Terms of Use
Last Updated: February 23, 2024
Introduction
These terms and
conditions of use (“Terms of Use”) govern your use of Visibly’s (“we,” “our,”
or “Company”) online interfaces and properties (e.g. websites and mobile
applications) owned and controlled by Visibly, including the Visibly, Inc.
website and the Eyecarelive website (collectively, the “Site”). PLEASE READ
THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION THAT MAY
AFFECT YOUR LEGAL RIGHTS, INCLUDING REQUIRING INDIVIDUAL ARBITRATION OF ANY
POTENTIAL LEGAL DISPUTES BETWEEN YOU AND VISIBLY AND WAIVING ANY RIGHT TO
PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. Your
compliance with these Terms of Use is a condition to your use of the Site. If
you do not agree to be bound by the Terms of Use, promptly exit this Site. By
continuing to use this Site, registering with or shopping at the Site, you accept
these Terms of Use, including the arbitration provision and class action
waiver. By using this Site, you also affirm that you are able and legally
competent to agree to and comply with these Terms of Use. If you do not meet
these requirements, you must not register for or purchase products from the
Site. If at any time you do not accept all of these Terms of Use, you must
immediately stop using the Site. Please also consult our Privacy Policy for a
description of our privacy practices and policies. The personal information you
submit to Visibly, Inc. and the Site is governed by the Privacy Policy. To the
extent there is an inconsistency between these Terms of Use and the Privacy
Policy, these Terms of Use shall govern.
We are committed to
protecting the privacy of children. You should be aware that this Site is not
intended or designed to attract children under the age of 18. We do not collect
personally identifiable information from any person we actually know is a child
under the age of 18.
Company’s failure to
exercise or enforce any right or provision of these Terms of Use shall not constitute
a waiver of such right or provision.
Ownership Of The Site
All pages within this
Site and any material accessed, sent or made available for use or download
through this Site are the property of Visibly, Inc. or its licensors, excluding
any eyeglass or contact lens prescriptions may not be copied, distributed, modified,
reproduced, published or used, in whole or in part, except for purposes
authorized or approved in writing by Company. The Site is protected by United
States and international copyright and trademark laws. The Contents of the
Site, including without limitation, files, documents, text, copy, graphics,
illustrations, photographs, images, audio, video and other visuals, and any
materials accessed, sent or made available for use or download through this
Site, exclusive of any eyeglass or contact lens prescriptions (“Content”) may
not be copied, distributed, modified, reproduced, published or used, in whole
or in part, except for purposes authorized or approved in writing by Company.
You may not frame or utilize framing techniques to enclose, or deep link to,
any name, trademarks, service marks, logo, Content or other proprietary
information (including images, text, page layout, or form) of Company without
our express written consent.
License to Access and
Use
You may access and use
the Site only for your personal use. Any other access to or use of the Site
constitutes a violation of these Terms and may violate applicable copyright,
trademark, or other laws. We make no representation that the Site is
appropriate or available for use in locations other than the United States. If
you choose to access this Site from locations other than in the United States,
you do so at your own initiative, at your own risk, and are responsible for
complying with applicable local laws.
You may not access,
use, or copy any portion of the Site or of the Content through the use of bots,
spiders, scrapers, web crawlers, indexing agents, or other automated devices or
mechanisms. You agree not to remove or modify any copyright notice or trademark
legend, author attribution, or other notice placed on or contained within any
content on the Site. Except as expressly authorized by us in writing, in no
event will you reproduce, redistribute, duplicate, copy, sell, resell, or
exploit for any commercial purpose, any portion of the Site or its content or
any access to or use of the Site or its content.
You agree and consent
to the use of email communications as part of the Company’s services, and
further agree that the Company may use reasonable efforts to communicate with
you via encrypted email, including via automated emails, but you acknowledge
that this may be impossible if your email service provider fails to meet
sufficient encryption standards, in which case, you agree to the use of
unencrypted email. You may opt out of receiving your information via email at
any time by contacting [email protected].
The U.S. export control
laws regulate the export and re-export of technology originating in the United
States. This includes the electronic transmission of information and software
to foreign countries and to certain foreign nationals. You agree to abide by
these laws and their regulations-including but not limited to the Export
Administration Act and the Arms Export Control Act and not to transfer, by
electronic transmission or otherwise, any content derived from this Website to
either a foreign national or a foreign destination in violation of such laws.
Site Security
You are prohibited from
violating or attempting to violate the security of the Site, including, without
limitation, (a) accessing data not intended for such user or logging onto a
server or an account which the user is not authorized to access; (b) attempting
to probe, scan or test the vulnerability of a system or network or to breach
security or authentication measures without proper authorization; and (c)
accessing or using the Site or any portion thereof without authorization, in
violation of these Terms of Use or in violation of applicable law. Violations
of system or network security may result in civil or criminal liability.
Company will investigate occurrences that may involve such violations and may
involve, and cooperate with, law enforcement authorities in prosecuting users
who are involved in such violations. You agree not to use any device, software
or routine to interfere or attempt to interfere with the proper working of this
Site or any activity being conducted on this Site.
Accuracy and Integrity
of Information
Although Company
attempts to ensure the integrity and accurateness of the Site, it makes no
representations, warranties or guarantees whatsoever as to the correctness or
accuracy of the Site and any Content, excluding the accuracy of the vision
test. It is possible that the Site or any Content could include typographical
errors, inaccuracies or other errors, and that unauthorized additions,
deletions and alterations could be made to the Site by third parties. In the
event that an inaccuracy arises, please inform Company so that it can be
corrected. Information contained on the Site may be changed or updated without
notice. Additionally, excluding the accuracy of the vision test, Company shall
have no responsibility or liability for information or Content posted to,
accessed through, sent through or made available for use or download through
the Site by any health care providers or non-Company affiliated third party.
Access to Site;
Indemnification
You must be at least
eighteen (18) years old and able to form legally-binding contracts to access or
use the Site. For those portions of the Site that have access limited by
requiring a user ID and password (“Protected Areas”), you agree to access
Protected Areas using only your user ID and password as provided to you by
Company. You agree to protect the confidentiality of your user ID and password,
and not to share or disclose your user ID or password to any third party. You
agree that you are fully responsible for all activity occurring under your user
ID. You are responsible for taking all reasonable steps to ensure that no
unauthorized person shall have access to your ID, passwords or accounts. It is
your sole responsibility to (1) control the dissemination and use of login
name, screen name and passwords; (2) authorize, monitor, and control access to
and use of your account and password; and (3) promptly inform the Company if
you believe your account or password has been compromised or if there is any
other reason you need to deactivate a password. Your access to the Site may be
revoked by Company at any time with or without cause. You are solely
responsible for any activity that occurs through your account or through your
personal device in connection with the Site. Similarly, for any portion of the
Site that you are able to access without creating an account, you are solely
responsible for any activity that occurs through your personal device in
connection with the Site. In order for Company to provide you the best possible
service, you agree to provide it with complete, accurate, and updated
information for your account at all times. If any information is incorrect or
outdated, it can lead to errors or delays, for which Company will not be
responsible. Excluding the accuracy of the vision test, you agree to defend,
indemnify and hold Company harmless from and against all third party claims,
damages and expenses (including reasonable attorneys’ fees) against or incurred
by Company arising out of your breach of these Terms of Use or violation of
applicable law, your use or access of the Site and/or any Content, or access by
anyone accessing the Site and/or any Content using your user ID and password.
Links to Other Sites
The Company may provide
links to third-party web sites. The Company also may select certain sites as
priority responses to search terms you enter and the Company may agree to allow
advertisers to respond to certain search terms with advertisements or sponsored
content. The Company does not recommend and does not endorse the content on any
third-party websites. The Company makes no representations whatsoever about any
other website that you may access through this Site. The Company is not
responsible for the content of linked third-party sites, sites framed within
the Site, third-party sites provided as search results, or third-party
advertisements, and does not make any representations regarding their content
or accuracy. When you access a non-Company site, please understand that it is
independent from Company, and that Company has no control over the Content on
that website. In addition, a link to a non-Company website does not mean that
Company endorses or accepts any responsibility for the Content, or the use, of
the linked site. It is up to you to take precautions to ensure that whatever
you select for your use or download is free of such items as viruses, worms,
Trojan horses, and other items of a destructive nature. If you decide to access
any of the third party sites linked to this Site, you do this entirely at your
own risk.
Submissions to the Site
If you submit, upload
or post any comments, ideas, suggestions, information, files, images or other materials
to us or our Site (“Submissions”) you agree to not include any Submissions that
(1) are defamatory, abusive, libelous, unlawful, obscene, threatening,
harassing, fraudulent, pornographic, or harmful, or that could encourage
criminal or unethical behavior, (2) violate or infringe the privacy, copyright,
trademark, trade dress, trade secrets or intellectual property rights of any
third person or entity, or (3) contain or transmit a virus or any other harmful
component. You agree not to contact other Site users, including health care
providers, through unsolicited e-mail, telephone calls, mailings or any other
method of communication. By making a Submission, you automatically grant, and
you represent and warrant that you have the right to grant, to Company an
irrevocable, perpetual, non-exclusive, transferable, royalty-free, worldwide
license (with the right to sublicense) to use, copy, adapt, publish, publicly
perform, publicly display, reformat, translate, excerpt (in whole or in part)
and distribute such Submission for any purpose, commercial, advertising, or
otherwise, on or in connection with the Site or the promotion thereof, to
prepare derivative works of, or incorporate into other works, such Submission,
and to grant and authorize sublicenses of the foregoing. By making a
Submission, you represent that you have all requisite rights to, and are
authorized to disclose, all of the information contained in the Submission. You
are fully responsible for any Submission you make and for the legality, reliability,
appropriateness, and originality thereof. Company is and shall be under no
obligation (1) to maintain any Submissions in confidence; (2) to pay to you any
compensation for any Submissions; or (3) to respond to any user Submissions.
Company does not
regularly review posted Submissions, but does reserve the right (but not the
obligation) to monitor and edit or remove any Submissions submitted to the
Site. You grant Company the right to use the name that you submit in connection
with any Submissions. You agree not to use a false email address, impersonate
any person or entity, or otherwise mislead as to the origin of any Submissions.
You are and shall remain solely responsible for the content of any Submissions
you make. Company and its affiliates take no responsibility and assume no
liability for any Submissions submitted by you or any third party.
You agree to defend,
indemnify and hold Company harmless from and against all third party claims,
damages and expenses (including reasonable attorneys’ fees) against or incurred
by Company arising out of any Submissions you post or allow to posted to the
Site.
Claims of Copyright
Infringement
We disclaim any
responsibility or liability for copyrighted materials posted on our Site. If
you believe that your work has been copied in a manner that constitutes
copyright infringement, please follow the procedures set forth below. Company
respects the intellectual property rights of others and expects its users to do
the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), we
will respond promptly to notices of alleged infringement that are reported to
Company’s Designated Copyright Agent, identified below.
Notices of Alleged
Infringement for Content Made Available Through the Site
If you are a copyright
owner, authorized to act on behalf of one, or authorized to act under any
exclusive right under copyright, please report alleged copyright infringements
taking place on or through our Site by sending us a notice (“Notice”) complying
with the following requirements.
● Identify the
copyrighted works that you claim have been infringed.
● Identify the
material or link you claim is infringing (or the subject of infringing
activity) and that access to which is to be disabled, including at a minimum,
if applicable, the URL of the link shown on the Site where such material may be
found.
● Provide your
mailing address, telephone number, and, if available, email address.
● Include both of
the following statements in the body of the Notice
○ “I hereby state
that I have a good faith belief that the disputed use of the copyrighted
material is not authorized by the copyright owner, its agent, or the law (e.g.,
as a fair use).”
○ “I hereby state
that the information in this Notice is accurate and, under penalty of perjury,
that I am the owner, or authorized to act on behalf of the owner, of the
copyright or of an exclusive right under the copyright that is allegedly
infringed.”
● Provide your
full legal name and your electronic or physical signature.
Deliver this Notice,
with all items completed, to our Copyright Agent:
Paul Foley
Visibly, Inc.
207 East Ohio Street #233
Chicago, IL 60611
Counter Notices
A poster of allegedly
infringing material may make a counter notice pursuant to the DMCA. When
Company receives a counter notice, it may reinstate the material in question.
To provide a counter notice to us, please provide the following information to
our Designated Copyright Agent.
● Identification
of the material that has been removed or to which access has been disabled on
the Site and the location at which the material appeared before it was removed
or access to it was disabled.
● A statement as
follows: “I hereby state under penalty of perjury that I have a good faith
belief that the material was removed or disabled as a result of mistake or
misidentification of the material to be removed or disabled.”
● Your name,
address, telephone number and, if available, email address.
● A statement as
follows: “I hereby consent to the jurisdiction in the state or federal courts
located in Cook County, Illinois, and I will accept service of process from the
complaining party who notified us of the alleged infringement or an agent of
such person.”
● Provide your
full legal name and your electronic or physical signature.
The Counter Notice
should be delivered to the following Designated Copyright Agent of Company:
Paul Foley
Visibly, Inc.
207 East Ohio Street #233
Chicago, IL 60611
Patents
One or more patents may
apply to this Site including, without limitation, those listed under our Patent
Information page.
Disclaimer of
Warranties
EXCLUDING THE ACCURACY
OF THE VISION TEST, COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE
AND/OR THE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE. EXCLUDING THE ACCURACY
OF THE VISION TEST, THIS SITE (INCLUDING (A) ANY SITE-RELATED SERVICE AND (B)
ANY CONTENT OR INFORMATION CONTAINED WITHIN, ACCESSED THROUGH, SENT THROUGH OR
MADE AVAILABLE FOR USE OR DOWNLOAD THROUGH THE SITE), IS PROVIDED “AS IS,” WITH
ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION,
QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. EXCLUDING THE ACCURACY OF THE
VISION TEST, COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY
DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. EXCLUDING
THE ACCURACY OF THE VISION TEST, COMPANY DOES NOT WARRANT THE ACCURACY,
COMPLETENESS OR TIMELINESS OF THE CONTENT OR INFORMATION OBTAINED THROUGH THE
SITE.
Without limiting the
foregoing, and excluding the accuracy of the vision test, Company, its licensors,
and its suppliers make no representations or warranties about the following:
● The accuracy,
reliability, completeness, currentness, or timeliness of the Content, software,
text, graphics, links, or communications provided on or through the use of the
Site or the Company’s services.
● The
satisfaction of any government regulations requiring disclosure of information
on prescription eyeglass or contact lens products (or other products) or the
approval or compliance of any software tools with regard to the Content
contained on the Site.
EXCLUDING THE ACCURACY
OF THE VISION TEST, YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF
THIS SITE, THE CONTENT, SITE-RELATED SERVICES, AND LINKED WEBSITES. EXCLUDING
THE ACCURACY OF THE VISION TEST, ALL SERVICES AND CONTENT ARE PROVIDED “AS IS”
WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND USE OF SERVICES AND CONTENT IS
AT YOUR OWN RISK. COMPANY DOES NOT WARRANT THAT FILES SENT OR MADE AVAILABLE
FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE
PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO
SATISFY YOUR NEEDS FOR DATA BACK-UP AND SECURITY. WARRANTIES RELATING TO ANY
PRODUCTS OR SERVICES OFFERED, SOLD AND/OR DISTRIBUTED BY COMPANY ARE SUBJECT TO
SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION
WITH THE APPLICABLE PRODUCTS OR SERVICES. COMPANY DOES NOT WARRANT THAT PRODUCT
DESCRIPTIONS ON THE SITE ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR
ERROR-FREE. IF A PRODUCT OFFERED ON THE SITE IS NOT AS DESCRIBED, YOUR SOLE
REMEDY IS TO RETURN IT IN UNUSED CONDITION.
Medical Advice Disclaimer
The Contents of the
Site are for informational and limited use purposes only. The Content is not
intended to be a substitute for professional medical advice, diagnosis, or
treatment and does not constitute medical advice or other professional advice.
Always seek the advice of your physician or other qualified health provider
with any questions you may have regarding a medical condition before making
medical or healthcare decisions. If you think you may have a medical emergency,
call your doctor or 911 immediately. Never disregard professional medical
advice or delay in seeking it because of something you have read on the Site.
The Company does not provide any healthcare treatment services, consultation or
medical advice; the sole purpose of the Company is to provide education, eye
care services, or a limited eyeglass or contact lens prescription based upon
information submitted and exam result analyzed by a licensed ophthalmologist.
If you experience any pain, symptoms, blurred vision, “seeing floaters” or
other maladies of the eye, consult your physician immediately or call 911. The
Content of the Site, including without limitation any Content accessed, sent or
made available for use or download through this Site (inclusive of any
information transmitted by third parties and/or healthcare providers and
eyeglass or contact lens prescriptions) does not constitute professional
medical advice, diagnosis, or treatment by the Company of any kind. You should
always seek the advice of your qualified healthcare professionals with any
questions or concerns you may have regarding your individual needs and any
medical conditions. The Company does not recommend or endorse any specific
tests, healthcare providers, physicians, products, treatments, therapeutics,
pharmaceuticals, devices, procedures, opinions or other information that may be
included on, accessed through, sent through or made available for use or download
through the Site.
Limitation of Liability Regarding Use of
Site
EXCLUDING THE ACCURACY
OF THE VISION TEST, COMPANY, ITS SUPPLIERS, LICENSORS AND ANY THIRD PARTIES
MENTIONED ON THIS SITE SHALL NOT BE AND ARE NEITHER RESPONSIBLE NOR LIABLE FOR
ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER
(INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA,
OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE,
CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY LINKED WEBSITE,
WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCLUDING THE
ACCURACY OF THE VISION TEST, YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE
SITE, CONTENT, AND/OR LINKED WEBSITES IS TO STOP USING THE SITE. EXCLUDING THE
ACCURACY OF THE VISION TEST, COMPANY, ITS SUPPLIERS, LICENSORS AND ANY THIRD
PARTIES MENTIONED ON THIS SITE SHALL NOT BE AND ARE NEITHER RESPONSIBLE NOR
LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, CAUSED BY, ARISING OUT OF OR
RELATING IN ANY WAY TO THE USE OR MISUSE OF THE SITE, THE CONTENT OFFERED BY
THE COMPANY, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL
THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR INJURY.
TO THE EXTENT YOU ARE DISSATISFIED WITH A PRODUCT SOLD ON THE SITE IN ANY WAY,
YOUR SOLE REMEDY IS TO RETURN IT IN UNUSED CONDITION. TO THE EXTENT ANY ASPECTS
OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM
LIABILITY OF COMPANY TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE
HUNDRED DOLLARS).
Termination of Access
We reserve the right,
in our discretion, to terminate your access to all or part of the Site, without
notice or liability, for any reason, including, but not limited to: (a) the
unauthorized use of any username or password, or (b) the breach of any
agreement between you and Company, including, without limitation, these Terms.
Following any such termination of access, you will continue to be bound
hereunder to the fullest extent applicable. You may not access the Site after
your access is terminated without our written approval.
SMS/MMS Mobile Message
Marketing Program (Including Cart Reminders)
(a) When you opt-in to
the service, we will send you an SMS message to confirm your signup.
(b) Our messaging
service will be used for marketing communications (including company updates,
events, sales, shopping cart reminders, etc.).
(c) You can cancel the
SMS service at any time. Just text “STOP” to the short code. After you send the
SMS message “STOP” to us, we will send you an SMS message to confirm that you
have been unsubscribed. After this, you will no longer receive SMS messages
from us. If you want to join again, just sign up as you did the first time and
we will start sending SMS messages to you again.
(d) If at any time you
forget what keywords are supported, just text “HELP” to the short code. After
you send the SMS message “HELP” to us, we will respond with instructions on how
to use our service as well as how to unsubscribe.
(e) We are able to
deliver messages to the following mobile phone carriers: Major carriers:
AT&T, Verizon Wireless, Sprint, T-Mobile, MetroPCS, U.S. Cellular, Alltel,
Boost Mobile, Nextel, and Virgin Mobile. Minor carriers: Alaska Communications
Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of
East Central IL (ECIT), Cellular One of Northeast Pennsylvania, Cincinnati Bell
Wireless, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat
Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat
Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular,
iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic
(Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle
Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Symmetry (TMP
Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless,
and West Central (WCC or 5 Star Wireless). ***Carriers are not liable for
delayed or undelivered messages***
(f) As always, message
and data rates may apply for any messages sent to you from us and to us from
you. Frequency of messages may vary. If you have any questions about your text
plan or data plan, it is best to contact your wireless provider. For all
questions about the services provided by this short code, you can send an email
to [email protected].
If you have any
questions regarding privacy, please read our Privacy Policy.
Dispute Resolution;
Arbitration Agreement
We will try to work in
good faith to resolve any issue you have with Site, including services and/or
Content ordered, accessed, sent or made available for use or download through
the Site, if you bring that issue to the attention of our customer service
department. However, we realize that there may be rare cases where we may not
be able to resolve an issue to a customer’s satisfaction.
You and Company agree
that any dispute, claim or controversy arising out of or relating in any way to
your use of the Site, including services and/or Content ordered, accessed, sent
or made available for use or download through the Site, shall be determined by
binding arbitration instead of in courts of general jurisdiction. Arbitration
is more informal than bringing a lawsuit in court. Arbitration uses a neutral
arbitrator instead of a judge or jury, and is subject to very limited review by
courts. Arbitration allows for more limited discovery than in court, however,
we agree to cooperate with each other to agree to reasonable discovery in light
of the issues involved and amount of the claim. Arbitrators can award the same
damages and relief that a court can award, but in so doing, the arbitrator
shall apply substantive law regarding damages as if the matter had been brought
in court, including without limitation, the law on punitive damages as applied
by the United States Supreme Court. You agree that, by agreeing to these Terms
of Use, the U.S. Federal Arbitration Act governs the interpretation and
enforcement of this provision, and that you and Company are each waiving the
right to a trial by jury or to participate in a class action. This arbitration
provision shall survive termination of these Terms of Use and any other
contractual relationship between you and Company.
If you desire to assert
a claim against Company, and you therefore elect to seek arbitration, you must
first send to Company, by certified mail, a written Notice of your claim
(“Notice”). The Notice to Company should be addressed to: Visibly, Inc, Attn:
Paul Foley; 207 East Ohio Street #233, Chicago, IL 60611 (“Notice Address”). If
Company desires to assert a claim against you and therefore elects to seek
arbitration, it will send, by certified mail, a written Notice to the most
recent address we have on file or otherwise in our records for you. A Notice,
whether sent by you or by Company, must (a) describe the nature and basis of the
claim or dispute, and (b) set forth the specific relief sought (“Demand”). If
Company and you do not reach an agreement to resolve the claim within 30 days
after the Notice is received, you or Company may commence an arbitration
proceeding or file a claim in small claims court. During the arbitration, the
amount of any settlement offer made by Company or you shall not be disclosed to
the arbitrator. You may download or copy a form Notice and a form to initiate
arbitration from the American Arbitration Association at www.adr.org. The
arbitration will be governed by the Commercial Arbitration Rules and the
Supplementary Procedures for Consumer Related Disputes (collectively, “AAA
Rules”) of the American Arbitration Association (“AAA”), as modified by these
Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are
available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by
requesting them from us by writing to us at the Notice Address. The parties
will mutually agree upon an arbitrator. The arbitrator is bound by the terms of
these Terms of Use. All issues are for the arbitrator to decide, including
issues relating to the scope and enforceability of these Terms of Use,
including this arbitration agreement. Unless Company and you agree otherwise,
any arbitration hearings will take place in Cook County, Illinois. The payment
of all filing, administration and arbitrator fees will be governed by the AAA
Rules. Each party shall pay for its own costs and attorneys’ fees, if any.
However, if any party prevails on a statutory claim that affords the prevailing
party attorneys’ fees, or if there is a written agreement providing for payment
or recovery attorneys’ fees, the arbitrator may award reasonable fees to the
prevailing party, under the standards for fee shifting provided by law.
YOU AND COMPANY AGREE
THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL
CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR
REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree
otherwise, the arbitrator may not consolidate more than one person’s claims
with your claims, and may not otherwise preside over any form of a
representative or class proceeding. The arbitrator may award declaratory or
injunctive relief only in favor of the individual party seeking relief and only
to the extent necessary to provide relief warranted by that party’s individual
claim.
If this specific
provision is found to be unenforceable, then (a) the entirety of this
arbitration provision shall be null and void, but the remaining provisions of
these Terms of Use shall remain in full force and effect, and (b) exclusive
jurisdiction and venue for any claims will be in state or federal courts in
Cook County, Illinois.
Terms of Sale
Availability and
Pricing. All products offered for sale are subject to availability and we
reserve the right to impose quantity limits on any order or reject all or any
part of an order without prior notice. Prices for products are subject to change
at any time, but changes will not affect any order for products you have
already placed.
Taxes. You are
responsible for any applicable sales, use, duty, customs or other governmental
taxes, levies or fees (“Taxes”) due with respect to your purchase of products
or services through our Site. We will collect applicable Taxes if we determine
we have a duty to collect Taxes. We will present an estimate of Taxes we
collect at checkout, except where we have clearly stated in writing that a
price includes Taxes. The actual Taxes charged may be adjusted from the amount
shown at checkout. Several factors may cause this, such as variances between
processor programs and changes in tax rates. We are not required to, and do
not, collect Taxes in all states. You may have a duty to directly report and
pay Taxes if we do not collect such Taxes.
Payment. Only valid
payment methods acceptable to us may be used to complete a purchase via the
Site. You represent and warrant that you are authorized to use your designated
payment method. You authorize us to charge your designated payment method for
the total amount of your order (including any applicable taxes and shipping and
handling charges). If any of the products in your order are unavailable, we
will only charge the prices, Taxes and other applicable charges associated with
the products that are included in the shipment.
Shipping; Risk of Loss.
You agree to pay any shipping and handling charges shown at the time you make a
purchase. We reserve the right to increase, decrease, add or eliminate shipping
and handling charges from time to time, but we will provide notice of the
changes applicable to you before you make your purchase. Any delivery dates or
times shown as part of the checkout process are estimates only and are not
guaranteed. Unless we state otherwise in writing, risk of loss or damage to a
product passes to you upon delivery of the product to our designated carrier.
Returns. Please see our
Fulfillment Policy for information about returning products you have purchased
from us.
Errors. In the event of
an error, we reserve the right to correct the error and revise your order
accordingly (which includes charging the correct price) or to cancel the order
and refund any amount charged.
Products Sold As Is.
The products we sell are manufactured by other companies. The manufacturer may
offer its own warranty, but unless otherwise stated on the product page, we do
not offer a warranty on those products. That means they are sold by “as is” and
“with all faults.” If the manufacturer offers a limited warranty for the
product, it can usually be found on the manufacturer’s website or with the
product packaging. For any product sold via the Site, you agree that your
remedy is solely with the product manufacturer and not Visibly.
We reserve the right to
remedy customer issues and concerns on a case by case basis. We reserve the
right, in our sole discretion, to resolve customer issues and concerns based on
the facts and circumstances of each customer.
Reselling Prohibited.
You are absolutely prohibited from reselling in any manner any products you
purchase from the Site.
Revisions; General
In the event that any
of the Terms of Use are held by a court or other tribunal of competent
jurisdiction to be unenforceable, such provisions shall be limited or
eliminated to the minimum extent necessary so that these Terms of Use shall
otherwise remain in full force and effect. These Terms of Use constitute the
entire agreement between Company and you pertaining to the subject matter
hereof. In its sole discretion, Company may from time-to-time revise these
Terms of Use by updating this posting. You should, therefore, periodically
visit this page to review the current Terms of Use, so you are aware of any
such revisions to which you are bound. All changes to these Terms of Use are
effective immediately when we post them, and they apply to all access to and
use of the Site thereafter. Your continued use of the Site or purchase of
products from Company means that you accept and agree to the changes. Certain
provisions of these Terms of Use may be superseded by expressly designated
legal notices or terms located on particular pages within this Site.
