(Updated August 30, 2012)
Visionworks may revise this Agreement from time to time. Although Visionworks may include a notice on the home page of the Site that the Agreement has been modified, such notice may not remain in place for any extended period of time. Accordingly, you should review the Agreement as posted on the Site from time to time. Using the Site after any revised Agreement has been posted will constitute your acceptance of the revised terms.
Purpose of the Site
The Site provides information and a number of different services to assist you in evaluating and shopping for various products sold by Visionworks, including high-quality eyeglasses, designer eyeglass frames, brand name prescription sunglasses, children’s eyeglasses, contact lenses, reading glasses, and specialty lenses. By using the Site, you acknowledge that Visionworks disclaims any responsibility for or liability related to your use of the Site (see “Disclaimer of Warranties” below).
Lawful Use; Use by Minors
Your access to and use of the Site is subject to all applicable international, federal, state and local laws and regulations. You represent and warrant that you will not use the Site in any manner or for any purposes that are unlawful or prohibited by this Agreement.
The Site is not targeted towards, nor intended for use by, anyone under the age of 18. By using the Site, you represent and warrant that you are 18 years of age or older. If you are not at least 18 years of age, do not use, access, or register for the Site. Visionworks reserves the right to terminate your membership in the event that Visionworks becomes aware you are under 18.
Certain features and services on the Site may require that you first register by creating a User Account. You are responsible for safeguarding the password that you use to access your User Account, and it is recommended that you choose a strong password, i.e., a password of sufficient length and complexity such that third parties will not readily guess your password. You should take measures to maintain and preserve the confidentiality of the username and password associated with your User Account, and you must notify Visionworks promptly of any unauthorized use or suspected breach of security of your User Account. Visionworks shall not be liable for any losses that may result from any unauthorized use of your User Account or failure to maintain appropriate confidentiality measures. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your User Account, whether or not you have authorized such activities or actions.
By contributing or submitting any content to the Site (hereinafter, “User Content”), you warrant that you are the author and owner of the intellectual property rights thereto, and you grant Visionworks a worldwide, perpetual, irrevocable, royalty-free, transferable right and license to use, copy, modify, delete in its entirety, adapt, publish, translate, create derivative works from, sell and distribute, or incorporate User Content into any form, medium or technology, without compensation or attribution to you. Additionally, you warrant that all “moral rights” that you may have in the User Content have been voluntarily waived by you. None of the User Content shall be subject to any obligation of confidence on the part of Visionworks, its agents, subsidiaries, affiliates, co-brand partners or other partners and their respective directors, officers and employees. Visionworks reserves the right to change or delete any User Content on the Site that Visionworks deems, in its sole discretion, to violate the content guidelines or any other provision of this Agreement.
You expressly agree that you shall not post any User Content: (i) that is known by you to be false, inaccurate or misleading; (ii) that infringes any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (iii) that violates any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (iv) that is or may reasonably be considered to be defamatory, libelous, hateful, racially or religiously biased or offensive, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation; pornographic or obscene; (v) for which you were compensated or granted any consideration by any third party; or (vi) that contains any computer viruses, worms or other potentially damaging computer programs or files.
Intellectual Property Rights
Unless otherwise noted, all text, images, graphics, photographs, video clips, designs, icons, sounds, information, data, price quotes, product specifications, and other materials appearing on the Site which are not User Content (the “Visionworks Content”) and all methods, methodologies, procedures, processes, know-how, software, algorithms, techniques, and other technology (the “Technology”) displayed, used, or incorporated on the Site by Visionworks are copyrights, trademarks, service marks, trade secrets, or other intellectual property or proprietary content owned or licensed by Visionworks.
You may use the Visionworks Content and Technology only for your own internal and informational purposes, but you may not reverse-engineer or decompile any of the Technology. You may print a copy of the Visionworks Content solely for those purposes, but you may not remove any copyright, trademark or other notice displayed on the corresponding webpage or print-out. You may not distribute, publish, transmit, modify, create derivative works from, or in any way exploit, any of the Visionworks Content and Technology, in whole or in part, for any purpose without the express written permission of Visionworks. Nothing in this Agreement shall be construed as granting any permission (except as set forth in this paragraph), right, or license in any of the Visionworks Content or Technology. All intellectual property rights are fully reserved by Visionworks and any third party owners of those rights. Portions of this website are licensed under U.S. Patent No. 5,930,474.
The trademarks, service marks, and logos used and displayed on the Site are trademarks of Visionworks and others. Elements of the Site are protected by copyright, trade dress and other laws and may not be copied or imitated, in whole or in part. No right or license to use any trademark, service mark, logo, graphic, sound, image, or other aspect of the Site is granted by this Agreement or your ability to use the Site.
Links to and from Other Websites
Portions of the Site may include links to third-party websites. In addition, you may have entered the Site via links on other third-party websites. Such links are provided or permitted to exist as a convenience measure, and Visionworks is not responsible for the information, advertising, products, services, content, or other material of any third-party website, regardless of whether such third-party website links to the Site or is accessible by a link from the Site. The inclusion and use of links does not imply sponsorship or endorsement by Visionworks of any third-party website.
Use of “Cookies” and Similar Tools
You understand and agree that Visionworks may store information on your computer in the form of a “cookie” or similar tool for purposes of improving the functionality of the Site.
Disclaimer of Warranties
Visionworks does not warrant that product descriptions, pricing, editorial commentary or any other Visionworks Content on the Site, regardless of its source, is accurate, complete, reliable or current. The Site is provided for informational purposes only and does not constitute an endorsement by Visionworks of any product, service or merchant. You should not rely on such information in situations where its inaccuracy would cause you to suffer any loss. Visionworks assumes no liability for inaccuracy or incompleteness in its search results, editorial content, user ratings, product ratings, or other content on the Site.
ALL PRODUCTS, SERVICES, INFORMATION, DATA, PRICE QUOTES, TEXT, AND RELATED GRAPHICS CONTAINED WITHIN OR AVAILABLE THROUGH THE SITE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. VISIONWORKS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE. WITHOUT LIMITING THE FOREGOING, VISIONWORKS DOES NOT WARRANT OR REPRESENT THAT THE SITE WILL OPERATE ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE AND ITS SERVERS WILL BE FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, VISIONWORKS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF (I) MERCHANTABILITY OR SATISFACTORY QUALITY, (II) FITNESS FOR A PARTICULAR PURPOSE, (III) TITLE, AND (IV) NON-INFRINGEMENT OF THE RIGHTS OF THIRD PARTIES.
Limitations on Liability
In no event shall Visionworks, its agents, licensors, or service providers, or any other person or entity involved in creating, promoting, maintaining, hosting, or otherwise making available any User Content, Visionworks Content, Technology, or other aspect of the Site, be liable to you or any other person or entity for any indirect, incidental, special, consequential, punitive, or other such damages, including but not limited to any damages associated with: (i) loss of goodwill, profits, business interruption, or data, or other such losses; (ii) your inability to use the Site, any unauthorized use of the Site, or any function of the Site or failure of the Site to function; (iii) the provision of or failure to provide any service though the Site; (iv) errors or inaccuracies in the User Content, Visionworks Content, Technology, or any advertising or other information, software, products, services, and related graphics used, viewed, or obtained through the Site; or (v) any property loss including damage to your computer or computer system caused by viruses or other harmful components encountered during or on account of access to or use of this Site or any third-party website linked to this Site. These limitations of liability shall apply regardless of the form of action, whether based in contract, negligence, strict liability, other tort, or otherwise, and even if Visionworks has been advised of the possibility of any particular damages. To the extent you allege or assert any damages associated with the Site which are not excluded by the foregoing, then Visionworks’ liability (and that of its agents, licensors, or service providers) for such damages shall not exceed one hundred dollars ($100.00 USD).
You agree to indemnify, defend, and hold harmless Visionworks, its agents, licensors, and service providers, and their respective past and present officers, directors, employees, and representatives, from and against any and all claims, actions, demands, liabilities, costs, and expenses, including, without limitation, reasonable attorneys’ fees, resulting from your breach of any provision of this Agreement, including any warranty you provide herein, or otherwise resulting in any way from your use of this Site.
Visionworks is committed to complying with U.S. copyright law. The Digital Millennium Copyright Act of 1998 (“DMCA”) provides recourse for owners of copyrighted material who believe that their rights under U.S. copyright law have been infringed on the Internet. Under the DMCA, copyright owners may contact the authorized agent of an Internet service provider to report alleged infringements of their protected works appearing on web pages hosted by the service provider. Upon receipt of a properly filed complaint satisfying the requirements of the DMCA, Visionworks will remove or block access to the allegedly infringing material hosted by Visionworks. If you believe in good faith that a notice of copyright infringement has been wrongly filed, you may submit a counter-notification to Visionworks. Visionworks customers who are the subject of a DMCA notification that meets the below criteria may be subject to account termination at Visionworks’ sole discretion. Visionworks will not be a party to disputes over alleged copyright infringement. If you believe that your copyrights have been infringed, or if a notice of copyright infringement has been filed against you, we advise that you seek legal counsel. We are providing the following information to you for informational purposes only.
Notification of Claimed Copyright Infringement
If you believe that a web page or other material hosted by Visionworks is violating your rights under U.S. copyright law, you may file a complaint of such claimed infringement with Visionworks’ designated agent in the manner described below. Visionworks’ agent designated to receive DMCA notifications may be contacted by email at the following address: Webmasteremail@example.com.
For your complaint to be valid under the DMCA, you must provide the following information when providing notice of the claimed copyright infringement:
- a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
- identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);
- identification or description of where the material that you claim is infringing is located on the Site, with enough detail that we may find it on the Site;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright or intellectual property owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
You should be aware that, under the DCMA, claimants who make misrepresentations concerning copyright infringement may be liable for damages incurred as a result of the removal or blocking of the material, court costs, and attorneys’ fees. For more details on the information required for valid DMCA notification, see 17 U.S.C. 512(c)(3).
After receiving a notification of alleged infringement, Visionworks will remove or disable access to the material hosted by Visionworks that is claimed to be infringing or claimed to be the subject of infringing activity. At the same time, Visionworks will provide the Internet service account holder(s) affected with a copy of the notice. Notified users may make a counter notification pursuant to sections 512(g)(2) and (3) of the DMCA. Please be advised that you may be held liable for damages if you make material misrepresentations pursuant to federal law in the counter notification. When we receive a counter notification, we may reinstate the material in question.
To file a counter-notification, notified users must provide a written communication with Visionworks designated agent in the manner described below. Visionworks’ agent designated to receive DMCA counter-notifications may be contacted by email at the following address: Webmasterfirstname.lastname@example.org.
For your counter-notification to be valid under the DMCA, you must provide the following information:
- Identify the material that Visionworks has removed or to which Visionworks has disabled access and the location at which the material appeared before it was removed or access to it was disabled.
- Provide your name, postal address, telephone number, email address, and a statement that you consent to the jurisdiction of the Federal District Court for the district in which your address is located, or if your address is outside of the United States, the judicial district in which Visionworks is located (the Western District of Texas), and that you will accept service of process from the person who provided the initial notification of infringement or an agent of such person.
- Include the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the removed material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
- Sign the paper or affix an electronic or digital signature to the communication in a form reasonably acceptable to Visionworks.
Upon receipt of a counter-notification in compliance with the DMCA, Visionworks will provide the person who provided the initial notification of claimed infringement with a copy of the counter-notification promptly.
After receipt of the counter-notification, Visionworks will generally replace the removed material and cease disabling access to it, unless Visionworks’ designated agent first receives notice from the person who submitted the initial notification that such person has filed an action seeking a court order regarding the removed material.
Governing Law; Disputes; Enforceability
These Terms and the relationship between you and Visionworks will be governed by the laws of the State of Texas, USA (or applicable federal law), without regard to its conflict of law provisions. You agree to submit to the personal jurisdiction of the state and federal courts located in Texas, and waive any objections thereto. You further agree that any dispute arising from or related to your use of the Site must be brought exclusively in the state or federal courts located in Bexar County, Texas, unless a Texas mandatory venue statute applies to the dispute, in which case the Texas county of mandatory venue shall be the exclusive jurisdiction for such dispute. You expressly consent to the personal jurisdiction of such courts and waive all objections hereto. If any provision of this Agreement shall be determined to be void or unenforceable in whole or in part, the remaining provisions of this Agreement shall not be affected thereby and shall remain in force and effect.
Visionworks may assign this Agreement and its rights and obligations hereunder to an affiliated company or, in the event of a merger or acquisition of Visionworks or the sale of substantially all of Visionworks’ assets related to the services being provided to you, to the surviving or successor entity with reasonable notice to you. You may not assign this Agreement or the rights and obligations hereunder without the prior written consent of Visionworks.
The term of this Agreement shall commence upon your first use of the Site, and shall continue (i) as long as you or any persons given access by you retain access rights to the Site, or (ii) until Visionworks ceases to operate the Site or closes your User Account. Visionworks shall not have any ongoing obligation to provide the Site; thus, Visionworks may cease to operate the Site at any time and for any reason. Without limiting the foregoing, Visionworks may cease to provide your User Account in the event of: (i) any dispute or termination of Visionworks’ relationship with you; (ii) any dispute concerning ownership or control of your User Account; or (iii) use of your User Account in a manner that Visionworks, in its sole discretion, considers improper or unacceptable.
Visionworks reserves the right to limit the period of time during which Visionworks may make any User Content pertaining to you available on the Site. The Site should not be viewed as your backup, archival or storage service with respect to any User Content.
Other Written Provisions
Your entry into this Agreement shall not affect any engagement letter or other written provisions and written agreements (collectively, “Other Written Provisions”) that may be operative between you and Visionworks, all of which shall remain in full force and effect according to their terms. With respect to your use of the Site, however, this Agreement shall govern in the event of any inconsistency between this Agreement and the Other Written Provisions.