PATIENT TERMS OF SERVICE
Last Updated: March 8, 2021
One more thing … our Service is not intended for emergency situations, so if you have a medical emergency, call 911 or go to an emergency room facility immediately! This would include, but is not limited to, any sudden loss of vision in one or both eyes, significant pain, nausea, or vomiting, any significant trauma to the eye, or an experience of flashes of light in your side vision or a sense of a veil or curtain coming over or into your vision.
EyecareLive is an interactive mobile application provided to you by EyecareLive. EyecareLive’s products and services include EyecareLive’s EyecareLive platform and application and EyecareLive’s Vision Screen application. Your access and use of the application or any part thereof, or anything associated with it, including its contents and any products or services provided by EyecareLive (collectively, the “Service”) are governed by this Terms of Service (this “Agreement”). The Service is intended for access and use only by residents of the United States of America and Canada. Please read this Agreement carefully before using the Service.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
1. GENERAL TERMS AND CONDITIONS
By accessing or using our Service, you agree to be bound by this Agreement and to use our Service in accordance with the terms and conditions of this Agreement. If you do not agree to the terms and conditions of use for our Service as set forth in this Agreement, you may not use the Service.
We reserve the right, at our sole discretion, to change or modify this Agreement at any time. If we need to modify or change the terms of this Agreement, we will post the revised Terms of Service through our Service and update the “Last Revised” date to reflect the date of the changes. You are responsible for being aware of any modifications or changes made to this Agreement. By continuing to use our Service after we post such modifications or changes, you agree to the terms of this Agreement, as modified or changed.
Simply Stated: By using EyecareLive, you’re agreeing to the Terms of Service. If any changes are made, the Terms of Service will be updated. By continuing to use EyecareLive, you’re agreeing to the changes.
2. WHAT SERVICE DOES EYECARELIVE PROVIDE?
Our Service is designed to enable you to obtain telehealth consultations and treatment for common non-emergency medical conditions of or affecting the eye and its immediately surrounding tissues (eyelids, lashes, etc.) by facilitating the connection between you and a licensed healthcare provider that specializes in the care of the eye (a “Provider”). Your Provider may be an optometrist, an ophthalmologist, or another licensed health care provider trained in the diagnosis and management of eye diseases. Once you are connected to one or more Providers through our Service, each of those Providers may be referred to as “your Provider.” Your Provider is solely responsible for providing you with medical care. Your Provider is neither an agent nor employee of EyecareLive. We act only as a technology platform to connect you with professional healthcare Providers who may be available to provide you with certain non-emergency medical eye care. We do not control or interfere with the practice of medicine or optometry by Providers, each of whom is solely responsible for the health care services he or she provides. We do not practice medicine or optometry and we give no medical advice.
Simply Stated: EyecareLive provides the technology to connect you with licensed healthcare Providers for non-emergency telehealth consultations concerning your vision and your eyes, but only your Provider makes decisions about your medical care and treatment.
3. TERRITORIAL RESTRICTIONS
Our Website and Services are available for use in the United States (“US”), Canada, and some other countries other than in the European Union, European Economic Union, and Switzerland (collectively “Europe”). Please be aware that information you provide to EyecareLive while accessing/using our Website and Services may be transferred to and processed in the US or Canada and will be subject to applicable US and/or Canadian laws. Note that the privacy and data protection laws in the US and Canada may not be equivalent to such laws in your country of residence. If you are worried about that, do not register for or use our Services.
OUR WEBSITE AND/OR SERVICES ARE NOT CURRENTLY AVAILABLE OR AUTHORIZED FOR USE AND DOWNLOAD IN THE EUROPEAN UNION, EUROPEAN ECONOMIC AREA, AND SWITZERLAND. Please do not register for or use our Services if you live anywhere in the European Union, European Economic Area, or Switzerland. If you do, we will de-register you immediately when we find out.
4. IS THE EYECARELIVE SERVICE RIGHT FOR YOU?
In some cases, our Service may not be the most appropriate way for you to seek or obtain medical eye care and treatment. For example, certain conditions may require an in-person procedure or very specialized providers not available through our Service. To assist you in determining whether our Service is a fit for your needs, we ask a series of initial questions during registration before we connect you with a Provider. Based on your responses to these questions, we may determine that our Service is not well suited to the particular issue for which you are seeking treatment. In such a case, you will receive an alert notifying you that you will be unable to use our Service for the particular issue you submitted and providing additional information regarding next steps. If this occurs, your registration will remain on file with EyecareLive, but you will not be connected with a Provider nor will you have established a physician relationship with any Provider. You will not be charged for any services provided to you in connection with your submission if we are unable to connect you with a Provider. You can always return to EyecareLive at a later time to submit a request for another condition or issue.
Simply Stated: We may determine that our Service is not appropriate for your particular medical condition or issue. If so, you will be notified that your submission has been halted and you will not be charged for your submission.
5. MEDICAL AND OCULAR EMERGENCIES
IF YOU ARE EXPERIENCING A MEDICAL OR EYE RELATED EMERGENCY, OR YOU HAVE SUFFERED A SUDDEN LOSS OR CHANGE OF VISION IN ONE OR BOTH EYES, CALL 911 AND/OR SEEK EMERGENCY MEDICAL HELP.
Simply Stated: Once again, if you have an emergency, call 911 or go to an emergency room immediately!
To use our Service, you are required to set up an account (“Account”). When you set up an Account, you are required to enter your name, email address, password (“Password”) and certain other information (e.g., date of birth, contact information, credit card information, and relevant medical history). You agree that all information you provide is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it current. You may not transfer or share your Password or Account (collectively, the “Account Information”) with anyone.
You are responsible for maintaining the confidentiality of your Account Information and for all activities that occur under your Password or Account. You agree to immediately notify us upon becoming aware of any unauthorized use of your Account Information. EyecareLive reserves the right to take any and all action, as it deems necessary, regarding the security of our Service and your Account Information. Under no circumstances shall EyecareLive be held liable to you for any liabilities or damages resulting from or arising out of your use of our Service, your use of the Account Information, or your release of the Account Information to a third party.
To use our Service, you must also reside in a jurisdiction in which we offer our Service, and you must be at least 18 years of age.
Simply Stated: To use EyecareLive, you must live in a state where our Service is offered and be at least 18 years old. You will create an account and provide the requested information in a truthful manner. Do not share your password with anyone. It is your responsibility to keep your account information and activity confidential.
7. CONSENT TO PARTICIPATE IN TELEMEDICINE
You hereby consent to our and our Providers’ using telemedicine (remote diagnosis and advice) in conjunction with the advice and counsel being provided to you via our platform in accordance with the terms and conditions set forth in this Terms of Service. You may withdraw this consent at any time by emailing us at [email protected]. But please note that if you withdraw this consent, it may affect our and our Providers’ ability to provide you our Service and the advice and counsel set forth in this Terms of Service.
To the extent that your doctor provides you with a prescription for contact lenses, eyeglasses or pharmaceuticals, you agree that the prescription can be provided to you electronically that can be downloaded and printed.
You understand and agree that renewal of a contact lens or eyeglass prescription depends on the completeness and accuracy of Your information. EyecareLive cannot verify the completeness and accuracy of Your information. Therefore, EyecareLive will not be responsible for any adverse consequences if Your information is inaccurate or incomplete, and You will indemnify EyecareLive for any fraudulent or intentionally inaccurate information. You also understand and agree that by using EyecareLive, EyecareLive facilitates and coordinates your requested prescription renewal, including the coordination and sharing of your prescription information with your preferred contact lens or eyeglasses dispensing services relating to your prescription and prescription renewal.
A prescription renewal via EyecareLive is not intended to replace a comprehensive eye exam. It is Your responsibility to schedule a comprehensive eye exam with your regular eye care professional on a periodic basis recommended by Your eye care professional.
8. CONSENT TO OBTAIN ELECTRONIC MEDICAL RECORDS
You hereby consent to us and our Providers pulling your medical records from your medical and health service providers for use in conjunction with advice and counsel being provided to you via our platform in accordance with the terms and conditions set forth in this Terms of Service. You may withdraw this consent at any time by emailing us at [email protected]. But please note that if you withdraw this consent, it may affect our and our Providers’ ability to provide you our Service and the advice and counsel set forth in this Terms of Service.
9. HIPAA/PIPEDA CONSENT
You hereby consent to our healthcare Providers, provided they are a covered entity as defined by Health Insurance Portability and Accountability Act (“HIPAA”), if you are located in the United States, or by Personal Information Protection and Electronics Document Act (“PIPEDA”), if you are located in Canada, to access, use, and disclose your Protected Health Information (“PHI) for treatment, payment, and health care operations provided to you via our platform in accordance with the terms and conditions set forth in this Terms of Service. You may withdraw this consent at any time by emailing us at [email protected]. But please note that if you withdraw this consent, it may affect our and our Providers’ ability to provide you our Service and the advice and counsel set forth in this Terms of Service.
10. ACCESS RIGHTS
Subject to your compliance with the terms and conditions of this Agreement, we hereby grant you a limited, non-exclusive, nontransferable right to access our Service and use our Service on your computer and the mobile device(s) that you own or control solely for your personal non-commercial use.
You agree that you will not, and will not attempt to: (a) interfere with or disrupt the functioning of the Service in any manner, including the functioning of any software, hardware, network or server connected to the Service; (b) distribute or transfer in any manner the Service or any part of the Service to any third party; (c) copy or modify the Service or any part of the Service for any purpose; (d) incorporate by any means any of the Service content into another application, website or service; (e) reverse-engineer or create derivative works based on any part of the Service for any purpose, commercial or otherwise; or (f) use the Service in any manner that is inconsistent with this Terms of Service. We reserve the right, in our sole discretion, to deny use of our Service to anyone for any reason.
Simply Stated: We give you permission to access and use EyecareLive, and in return, you agree to use our Service responsibly and in accord with this Agreement.
11. ACCEPTABLE USE
Use of our Service requires that you comply with acceptable use behavior as determined by EyecareLive. As part of your responsibilities, you agree that you will not: (a) use the Service in any unlawful manner; (b) use the Service in any manner that is harmful, hateful, harassing, abusive, or otherwise offensive to any other person or entity (including your Provider); (c) interfere with or inhibit any other user from using or enjoying the Service; (d) use the Service as a means to distribute unsolicited or unauthorized communications, advertisements or spam; (e) access or search the Service by any means other than the authorized public interface; (f) collect or use any data or Service content that violates any third-party right; (g) create a false identity, impersonate another person or entity, or otherwise misrepresent yourself or the condition of your health or your problem; (h) breach or otherwise circumvent any security measures incorporated into the Service; or (i) use the Service in any manner that is considered unacceptable by EyecareLive.
Simply Stated: You agree that you will not misuse or abuse our Service, and you will not engage in any behavior that may be offensive or harmful to others.
12. FEES AND PURCHASE TERMS
The fees for telehealth consultations are published on our website. Fees are subject to change. EyecareLive, on behalf of your Provider, will charge you for the medical services provided by your Provider, and you agree to pay for all medical services provided to you.
You will provide EyecareLive with a valid credit card or any other method of payment accepted by us (“Payment Provider”) when you set up your Account with our Service. By providing EyecareLive with your Payment Provider and associated payment information, you agree that EyecareLive, or its authorized agent, is authorized to invoice your Account at the time any payments are due and charge your designated Payment Provider account. If any payments are subject to sales tax in any jurisdiction, you also agree to pay the required sales tax, and any related penalties or interest. EyecareLive may automatically charge sales taxes for addresses within jurisdictions where such taxes are required. Unless otherwise agreed to by EyecareLive, all fees paid are non-refundable. You are responsible for all fees and charges associated with your Account. Neither EyecareLive nor your Provider makes any guarantees or promises about the outcome of any treatment you may receive, and your obligation to pay for the services provided is independent of whether or not any care or treatment is successful.
We use a third-party payment processor (the “Payment Processor”) to charge your Payment Provider account. The processing of payments in connection with your use of our Service will be subject to the terms, conditions and privacy policies of the Payment Processor and the Payment Provider responsible for your designated method of payment, in addition to this Agreement with EyecareLive. We are not responsible for any errors by the Payment Processor or the Payment Provider.
At present we do not process any insurance claims, nor will your Provider process insurance claims on your behalf. It is solely up to you to contact your health or vision care plan, determine whether your coverage applies, and submit a claim if applicable. We do not accept assignments on any insurance or third-party payer claims. You are responsible for the full fee charged for Provider care through our Service regardless of whether you later are able to receive reimbursement from your health plan for part or all of the cost.
Simply Stated: You agree that EyecareLive is authorized to bill your account and charge your designated method of payment when payments are due, including any sales tax that may be required. EyecareLive and your healthcare Provider do not currently process insurance claims or claims for third-party payers, and it is your responsibility to submit claims if your health or vision plan provides coverage.
We alone own all right, title and interest in and to our Service, including all intellectual property rights, and any suggestions, ideas or other feedback provided by you or any other party relating to our Service. Any copy, modification, revision, enhancement, adaptation, translation, or derivative work of or created from our Service shall be owned solely and exclusively by EyecareLive, as shall any and all patent rights, copyrights, trade secret rights, trademark rights, and all other proprietary rights. You shall not remove or permit any third party to remove any proprietary rights from our Service or its contents.
Certain names, logos, and other materials displayed in our Service may constitute trademarks, trade names, service marks or logos (“Marks”) of EyecareLive or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with us or those other entities.
We reserve the right to modify or discontinue, temporarily or permanently, our Service, or any portion thereof, with or without notice. We will not be liable to you or any third party should we exercise that right. We will not, however, interfere with the doctor-patient relationship between you and your Provider. That relationship is independent of EyecareLive.
Simply Stated: We own our Service, and you agree not to infringe upon any of our proprietary rights, like our rights to the EyecareLive’s name and logo. You also understand that any feedback you may provide about our Service will be the property of EyecareLive.
You may delete your Account at any time for any reason by sending us an email at [email protected]. EyecareLive may terminate your Account and use of our Service at any time for any reason. You understand that termination of your Account may involve deletion of your Account Information from our live databases as well as any content that you uploaded to the Service using such Account, but your Providers, or EyecareLive on behalf of the Providers, may retain your Account Information in accordance with applicable laws and professional standards. You agree that we will not be liable for any termination of your access to our Service or deletion of your Account or content uploaded by you.
Simply Stated: You’re free to stop using EyecareLive at any time, and we’re likewise free to deny use to anyone at any time.
OUR SERVICE IS PROVIDED ON AN “AS IS” BASIS. ANY ACCESS TO OR USE OF OUR SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. WE DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO OUR SERVICE, OR WITH RESPECT TO ANY INFORMATION, PRODUCT, SERVICE, MERCHANDISE OR OTHER MATERIAL PROVIDED ON OR THROUGH OUR SERVICE (INCLUDING ANY CONSULTATIONS OR OTHER SERVICES YOU MAY RECEIVE FROM YOUR PROVIDERS). WE DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS OR USEFULNESS OF OUR SERVICE. WE DO NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, OR ANY ADVERSE INCIDENT.
Simply Stated: Our Service is provided “as is.” We take great pride in EyecareLive and our commitment to our users, but we can’t guarantee that our Service or the functioning of our Service will be error-free. If you find anything that needs to be corrected or experience any problems, please let us know.
17. COPYRIGHT INFRINGEMENT/DMCA NOTICE
If you believe that any content on our Website violates your copyright, and you wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) (“DMCA Takedown Notice”) must be provided to our designated Copyright Agent. It is our policy to terminate the accounts of repeat infringers.
- Your physical or electronic signature;
- Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on our services that you claim is infringing and that you request us to remove;
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
The EyecareLive’s Copyright Agent to receive the DMCA Takedown Notices is Raj Ramchandani, EyecareLive, Inc. Attn: DMCA Notice, 1010 W Fremont Avenue, Sunnyvale, CA 94087. You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
18. LIMITATION OF LIABILITY
IN NO EVENT WILL EYECARELIVE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE ARISING OUT OF THIS AGREEMENT, OR THE USE OF, OR THE INABILITY TO USE, OUR SERVICE, INCLUDING, WITHOUT LIMITATION, ANY INFORMATION MADE AVAILABLE THROUGH OUR SERVICE OR ANY SERVICES PERFORMED BY ANY HEALTHCARE PROVIDERS YOU CONNECT WITH VIA OUR SERVICE (INCLUDING CLAIMS OF MEDICAL MALPRACTICE), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN THE MAXIMUM LIABILITY FOR ALL CLAIMS OF EVERY KIND WILL NOT EXCEED ONE HUNDRED DOLLARS (U.S. $100.00). THE FOREGOING LIMITATION OF LIABILITY WILL COVER, WITHOUT LIMITATION, ANY TECHNICAL MALFUNCTION, COMPUTER ERROR OR LOSS OF DATA, AND ANY OTHER INJURY ARISING FROM THE USE OF OUR SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. TO THE EXTENT THAT WE MAY NOT DISCLAIM ANY IMPLIED WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF OUR LIABILITY WILL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
OUR SERVICE IS PROVIDED ON AN “AS IS” BASIS. ANY ACCESS TO OR USE OF OUR SERVICE IS VOLUNTARY AND AT THE SOLE RISK OF THE USER. WE DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO OUR SERVICE, OR WITH RESPECT TO ANY INFORMATION, PRODUCT, SERVICE, MERCHANDISE, OR OTHER MATERIAL PROVIDED ON OR THROUGH OUR SERVICE. WE DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, OR USEFULNESS OF OUR SERVICE. WE DO NOT WARRANT THAT THE SERVICE WILL FUNCTION WITHOUT DELAYS, DISRUPTIONS, INTERFERENCES, IMPERFECTIONS, OR ANY ADVERSE INCIDENT.
You agree to indemnify and hold harmless EyecareLive, its parents, principals, subsidiaries, affiliates, licensors, and suppliers, and the officers, directors, employees, consultants, and agents of each, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses and fees (including reasonable attorneys’ fees and court costs) that such parties may incur as a result of or arising from your use of our Service, your violation of this Terms of Service, or your violation of any rights of any other person or entity. We reserve the right to control the defense of any claim for which we are entitled to indemnification, and you agree to provide us with such cooperation as is reasonably requested by us.
20. RELATIONSHIP OF PARTIES
The parties hereto are independent contractors, and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint ventures, shareholders, employer/employee, or agent/servant. You have no power or authority to bind EyecareLive to any obligation, agreement, debt or liability. You shall not hold itself out as an agent or representative of EyecareLive.
21. GOVERNING LAW
This Agreement shall be governed by the law of the State of Delaware, without respect to its conflict of laws principles. Each of the parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in Santa Clara County, California, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 21.
22. DISPUTE RESOLUTION AND ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH EYECARELIVE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and EyecareLive agree (a) to waive your and EyecareLive’s respective rights to have any and all Disputes arising from or related to this Agreement, use of our Services and Platform, resolved in a court, and (b) to waive your and EyecareLive’s respective rights to a jury trial. Instead, you and EyecareLive agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
No Class Arbitrations, Class Actions or Representative Actions
You and EyecareLive agree that any Dispute arising out of or related to this Terms of Service or the sites, content or products is personal to you and EyecareLive and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and EyecareLive agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and EyecareLive agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Federal Arbitration Act
You and EyecareLive agree that this Terms of Service affect interstate commerce and that the enforceability of this Section 21 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
Notice; Informal Dispute Resolution
You and EyecareLive agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to EyecareLive shall be sent by certified mail or courier to EyecareLive, Inc., Attn: Legal, 1010 W Fremont Avenue, Sunnyvale CA, 94087. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your EyecareLive’s Account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and EyecareLive cannot agree on how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or EyecareLive may, as appropriate and in accordance with this Section 21, commence an arbitration proceeding.
EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND EYECARELIVE AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR EYECARELIVE WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND EYECARELIVE WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and EyecareLive agree that (a) any arbitration will occur in Santa Clara County, California, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of California, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
Authority of Arbitrator
As limited by the FAA, this Terms of Service and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitral, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by this Terms of Service. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules, discovery in the arbitration shall be limited to one set of interrogatories, one set of request for admissions, and one set of request for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waive, all rights we may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Rules of AAA
The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by this Terms of Service, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
If any term, clause or provision of this Section 21 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 21 will remain valid and enforceable. Further, the waivers set forth herein are severable from the other provisions of this Terms of Service and will remain valid and enforceable, except as prohibited by applicable law.
YOU HAVE THE RIGHT TO OPT OUT OF BINDING ARBITRATION WITHIN THIRTY (30) DAYS OF THE DATE YOU FIRST ACCEPTED THE TERMS OF THIS SECTION 21 BY WRITING TO: EYECARELIVE, INC., RE: OPT-OUT, 1010 W FREMONT AVENUE, SUNNYVALE CA 94087. IN ORDER TO BE EFFECTIVE, THE OPT OUT NOTICE MUST INCLUDE YOUR FULL NAME AND CLEARLY INDICATE YOUR INTENT TO OPT OUT OF BINDING ARBITRATION.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services, or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. All the sections intended to survive the termination of this Agreement shall survive. The section titles in this Agreement are for convenience only and have no legal or contractual effect. Except as explicitly stated otherwise, any notices to EyecareLive shall be given by certified mail, postage prepaid and return receipt requested to EyecareLive, Inc. at 1010 W Fremont Avenue, Sunnyvale CA 94087. Any notices to you shall be provided to you through our Website or App or given to you via the email address or physical address you provide to EyecareLive during the registration process.
You agree to the use of electronic documents and records in connection with your registration, future transactions and communications involving our Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Any use of third-party software provided in connection with our Service, or any third-party product or service accessed or used in connection with our Service, will be governed by the applicable third-party’s license or terms of service, and not by these Terms of Service. If you access our Service from Apple’s App Store, you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and as such, Apple will have the right to enforce this Agreement. In addition to this Agreement, your use of our Service must comply with all applicable third-party terms of agreement.
Any and all provisions of this Agreement that would reasonably be expected to be performed after the termination of this Agreement shall survive and be enforceable after such termination, including, without limitation, provisions relating to ownership, indemnification, limitation of liability and governing law.
Simply Stated: Any dispute related to these Terms of Service that cannot be resolved informally will be resolved by binding arbitration in Santa Clara County, California, under the rules of the American Arbitration Association. However, please contact us if you have any issues, and we will do our best to take care of them for you. Your satisfaction is our top priority.