Terms of Service

Effective Date: August 1, 2018

 

Hello, and thanks for visiting! DigiVision, Inc., which does business as DigiVision, operates and provides services through www.digivision.com (the “Site”), and our retail locations. We’ll go by “DigiVision”, “we”, or “us” to keep it simple. We know these types of documents can get pretty dense, but we want you to read this, so we’ll do our best to keep it easy to read. We will also refer to the Site, the App, our retail locations, and the services available through them as the “Services.” These Terms of Use do not apply to your use of our Prescription Check mobile application or our in-store Prescription Check service. You can find the Terms of Use that apply to Prescription Check here.

Before using any of the Services, please read these Terms of Use (these “Terms”), our Privacy Policy, and any other policies and notices on the Site, on the App, or in any of our retail locations. Collectively, these materials contain terms, rules, and other guidelines related to your use of the Services. As a condition to your access to or use of the Services, you consent to be bound by these Terms, so please do not use the Services if you do not agree with all of these Terms. Some parts of the Services may have other terms, guidelines, or rules, and if you use those parts, those additional terms will also apply. Your use of the Services, and our provision of the Services to you, constitutes an agreement between you and DigiVision to be bound by each of the terms, guidelines, and rules incorporated into these Terms. Because these Terms are legally binding, we want to make sure you understand them (like really understand them), so if you have any questions, contact us at legal@digivision.com.

THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND DIGIVISION RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY, AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW SECTION 17 (“DISPUTE RESOLUTION AND ARBITRATION”) FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH DIGIVISION.

 

1. We Reserve the Right to Update and Revise These Terms of Use at Any Time

Things happen quickly, both inside and outside of DigiVision, so we will sometimes review these Terms to make sure they accurately reflect developments in current law and our business operations. We reserve the right to update and revise these Terms at any time upon 7 days’ notice. We’ll provide notice by changing the “Effective Date” at the top of this page so you can tell if these Terms have changed since your last visit. Please review these Terms regularly because 7 days after we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms.

 

2. Privacy

Our Privacy Policy details how we collect and use your information. Please review it if you would like to know more about how we collect and use your information.

3. Intellectual Property

Imitation may be the sincerest form of flattery, but that doesn’t mean you can take any of our intellectual property. All of the content that appears on the Services, including all designs, illustrations, icons, photographs, video clips and written materials, as well as the compilation of the website, Services, and other materials, are the exclusive property of DigiVision or our licensors and is protected by United States and international copyright laws. All trademarks, service marks, and trade names that appear on the Services and the overall “look and feel” of the Site, the App, and the Services (collectively the “Marks”) are proprietary to DigiVision, or the respective owners of such Marks. You may not display, reproduce, or otherwise use the content or materials on the Services, including the Marks, without first receiving written consent from us. You may not remove or otherwise modify any legal or trademark notices from any content we make available through the Services. Any unauthorized use of any content or materials on the Services is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.

If you would like to request authorization to use the materials or content on the Services, please contact us at info@digivision.com.

4. Restrictions on Your Use of the Services

Just so we’re clear, however, these rights do not allow you to do any of the following:

  • interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services.

  • take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third party providers’ infrastructure.

  • resell or make any commercial use of the Services or any of the Service content.

  • modify, adapt, translate, reverse engineer, decompile, disassemble, or convert into human readable form any of the Service content not intended to be so read, including using or directly viewing the underlying HTML or other code from the Services except as interpreted and displayed in a web browser.

  • copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post, store, or transmit any of the Service content, including any Marks, in any form or by any means, including electronic, mechanical, photocopying, recording or otherwise.

  • use any manual or automated software devices or other processes (including data mining, bots, spiders, automated tools or similar data gathering and extraction methods) to “crawl” or “spider” any page of the Services or to collect any information from the Services or any user of the Services.

  • harvest or scrape any content from the Services, or using other automated or manual means to take our content without our prior consent.

  • bypass, circumvent, or attempt to bypass or circumvent any feature of the Services or any measures we may use to prevent or restrict access to the Services, including other accounts, computer systems or networks connected to the Services.

  • run any form of auto-responder or “spam” on the Services.

  • otherwise take any action in violation of these Terms or our Privacy Policy.

 

5. Content

a. User Content

We want to hear from you. Occasionally, you may see areas on the Services where you can post information or communicate with us or other users. We hope you will use these tools to meet the rest of our community and give us your feedback. These areas may be in the form of social media posts, bulletin boards, chat rooms, comment areas, billboards, forums, newsgroups, postings sections or similar communications facilities.

“User Content” is any public communications or any other material you submit, distribute, transmit, or post to DigiVision (through the Services; through our pages on third party sites, such as Instagram, Twitter and Facebook; or through activities in our stores). You will keep all ownership of and license rights in your User Content although, by providing content to us, you may grant us a license to use it, as we’ll discuss here.

When you submit, distribute, transmit, or post User Content, you give us a right and license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute your User Content in any and all media formats or distribution channels. You agree that this license includes the right for DigiVision to use your User Content to provide, promote, and improve the Services. You agree that this license is irrevocable, non-exclusive, perpetual, worldwide, transferable, sublicensable, fully paid, and royalty-free, and will survive termination of your Account. Please note that we may use User Content without compensation of any kind to you, including if we use User Content for advertising or promotional purposes. You also agree that if your User Content contains any ideas, concepts, know-how, or techniques, we can use the User Content and anything it contains for any purpose including, but not limited to, developing, manufacturing, and marketing products. Be assured you have our thanks. Lots of it.

In addition to giving DigiVision a license, you also give each user of the Services an irrevocable, non-exclusive, perpetual, worldwide, transferable, sublicensable, fully paid, and royalty-free right and license to access your User Content through the Services and to use, edit, modify, publish, reproduce, distribute, prepare derivative works of, display, perform, adapt, and promote such submissions, including after any termination of your Account.

The bottom line is that if you share something with us, you keep ownership of it and can continue to do anything you want with it, but you allow us and our other users to use your User Content as we see fit. If you don’t agree to these conditions, then please don’t provide the materials to us.

b. Representations About Your User Content

We need you to promise us certain things about your submissions so that you don’t get us into trouble. (We really appreciate it.) When you submit User Content, you represent and warrant (archaic lawyer words for “pinky promise”) that:

  • you hold all necessary right, title, and license to such materials (in other words, you own it or have the right to give it to us).

  • your submission of such materials to DigiVision does not and, when used by DigiVision as authorized under these Terms, will not violate or infringe the rights of any third-parties, including any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights (you didn’t take it from someone else without permission).

  • all User Content you provide is accurate, complete, up-to-date, and not misleading (you’re not lying).

In addition, any User Content must not:

  • include any profanity or obscene, indecent, or pornographic material.

  • contain any unauthorized or unsolicited advertising, such as spam (no one likes spam).

  • contain software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of ours or of any third party.

  • impersonate any person or entity (we like you just the way you are!).

  • include anyone’s identification documents or sensitive financial information.

c. Private vs. Non-private Content

We take your privacy very seriously and are committed to keeping your private information, well, private. However, we also include certain features to open channels of communication, either among our users or between our users and us, and those features wouldn’t work if all your communication were completely private. Therefore, we don’t treat as private or confidential any User Content that you provide to those features of the Services. When in doubt, it is best to take a look at our Privacy Policy, which details the types of information we treat as confidential or private. If you post something publicly on the Services, others may be able to read it. You should always use caution when providing any personal information about yourself or anyone else, including your children.

d. A Note About Third-Party Content and User Content

You may see a lot of content on the Services (especially with your new eyewear). Some of this content will come from other users or sources outside of DigiVision. All content, including User Content and third-party content, is the responsibility of the party that creates it. DigiVision does not control or endorse any User Content or third-party content, and we make no claims or representations regarding any content we do not create. We may provide links to third-party sites or resources, but these links do not mean we endorse or have any associations with the third parties. If any damage or loss results from your use of, reliance on, or any other connection between you and any content that any third party makes available, you acknowledge and agree that we are not responsible or liable, directly or indirectly. When you access third-party resources on the Internet, you do so at your own risk.

Disrupting traditional models in the eyewear industry keeps us pretty busy, but we still try to stay on top of things happening around the Services. We may review content on the Services, but we do not have an obligation to do so. We reserve the right to review, remove, block, or modify any content on the Services, including User Content, without notice or further obligation to you.

We take no responsibility related to third-party content, User Content, or any actions resulting from your use of any part of the Services. DigiVision will have no liability in connection with any content submitted to, transmitted via, or displayed or posted on or through the Services, regardless of whether DigiVision or another party provides it.

6. Copyright Policy

Just as we ask you to respect our intellectual property rights, we respect your rights and the rights of others, and we expect all our users to do the same. If we believe a user may be infringing upon someone’s intellectual property rights, we may remove the material. If we believe someone is repeatedly infringing, we will terminate that person’s access rights.

If you believe someone has posted on the Services a work that you own without your authorization, let us know. Please send a notice of copyright infringement containing the following information to our Designated Agent (whose contact information is below):

  • a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.

  • identification of works or materials being infringed.

  • identification of the material that is claimed to be infringing, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence.

  • your contact information, including address, telephone number and, if available, e-mail address.

  • a statement that you have a valid belief that the material is not authorized by the copyright owner, its agent, or the law.

  • a statement made under penalty of perjury that the information provided is accurate and you are authorized to make the complaint on behalf of the copyright owner.

Please contact the Designated Agent to receive notice of claimed infringement by emailing info@digivision.com.

7. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DIGIVISION OR ANYONE REPRESENTING DIGIVISION BE LIABLE TO YOU UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR (A) ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER RESULTING FROM: (I) YOUR ACCESS TO, USE OF, OR RELIANCE ON ANY CONTENT PROVIDED THROUGH THE SERVICES OR ANY ERRORS OR OMISSIONS IN ANY CONTENT; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES OR DIGIVISION’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (I) FEES PAID TO US FOR THE APPLICABLE PRODUCTS; OR (II) $500.00.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS APPLY REGARDLESS OF LEGAL THEORY, WHETHER BASED ON TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DIGIVISION WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Termination

We really hope we won’t ever have to do this, but we reserve the right to terminate your license to use the Services or block or prevent your access to the Services, without providing you with notice or reason. In the event of termination, your obligations under these Terms will still continue.

 

9. Governing Law

No matter where you’re located, the laws of the State of Florida will govern these Terms and the relationship between you and DigiVision as if you signed or otherwise agreed to these Terms in Florida, without regard to Florida’s conflicts of laws rules. If any provisions of these Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. If a lawsuit or court proceeding is permitted under these Terms, then the parties agree to submit to the federal or state courts in Florida County, Florida for exclusive jurisdiction for the purpose of litigating any dispute arising out of or related to your use of the Services or your breach of these Terms.

10. Dispute Resolution and Arbitration

a. Generally. In the interest of resolving disputes between you and DigiVision in the most expedient and cost effective manner, you and DigiVision agree that every dispute arising out of or in connection with these Terms or your use of the Services will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and may be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND DIGIVISION ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

b. Exceptions. Despite the provisions of Section 17(a) nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

c. Arbitrator. Any arbitration between you and DigiVision will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting DigiVision. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). DigiVision's address for Notice is: DigiVision, Inc., 2600 Maitland Center Parkway, Maitland, FL 32751, Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or DigiVision may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or DigiVision must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, we will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by DigiVision in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

e. Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Florida County, Florida, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse DigiVision for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

f. No Class Actions. YOU AND DIGIVISION 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 DigiVision agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

g. Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice, you may reject the change by sending us written notice to our address for Notice within 30 days of the change, in which case your account with DigiVision will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.

h. Enforceability. If Section 17(f) is found to be unenforceable or if the entirety of this Section 17(f) is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 17 will govern any action arising out of or related to these Terms.

 

12. Severability

If it turns out that any part of these Terms are invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms. NOTHING IN THESE TERMS WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.

13. Consent to Electronic Communications

By using the Services, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

 

14. Notice Regarding Apple

To the extent that you are using the App on an iOS device, you further acknowledge and agree to the terms of this Section 20. You acknowledge that these Terms are between you and DigiVision only, not with Apple Inc. (“Apple”), and that Apple is not responsible for the Services and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you, and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Services and/or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.

You hereby represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.

 

15. Entire Agreement

These Terms constitute the entire agreement between you and DigiVision and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, with respect to these Services. Any rights not expressly granted herein are reserved.

16. Miscellaneous

We take our commitment to customers seriously, and we’ll do what we can for you. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including mechanical, electronic or communications failure or degradation.

You cannot assign, transfer or sublicense these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without your consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.

If we do not enforce any part of these Terms, it does not mean we give up the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.

The section and paragraph headings in these Terms are for convenience only and do not affect their interpretation.

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