Terms
Review Wave’s (“Review Wave”) PracticePal platform and EyeDeal Warranty, LLC’s (“EyeDeal Warranty” and together with Review Wave, collectively, “we,” “our,” “us”) warranty platform (the “Platforms”). These Terms of Service (the “Terms of Service” or “Agreement”) are intended to form the foundation of the governing items with respect to your use of the Platforms. We may update these Terms of Service at any time. By signing up to sell warranties via the Order Form (as defined below) on the PracticePal website, you are agreeing to these Terms of Service.
1. DEFINITIONS
“Authorized User” means any of your employees, consultants, contractors or agents authorized by your administrator to access and use the EyeDeal Warranty Service on behalf of your business, in each case subject to such person’s agreement to be bound by the Terms of Service.
“Front End Code” means our user interface display and usability platform. This includes, but is not limited to, the layout, color scheme, HTML pages and source code, etc.
“EyeDeal Warranty Materials” means any documentation, user guides or other similar materials provided by EyeDeal Warranty to you in connection with your use of the EyeDeal Warranty Service.
“EyeDeal Warranty Service” means the provision of services related to claims under the Guardsman Warranty including, but not limited to, filing of the claim with Guardsman and dispersing payment to you.
“Guardsman Warranty” means an eyeglass warranty, serviced and underwritten by Guardsman, and purchased by your patients, subject to the terms and conditions of these Terms of Service.
“Order Form” means the online order form for the EyeDeal Warranty Service or for Services submitted by you either during an online sign-up process or separately signed by you and submitted to EyeDeal Warranty, and any future purchase order or order form that makes reference to this Agreement. The EyeDeal Warranty Order form(s) shall be governed by the Terms and Conditions of this Agreement and are incorporated herein by reference.
“PII” means: (i) first and last name; (ii) physical/home address; (iii) email address; and (iv) phone number.
“PHI” means: (i) “protected health information” as defined in 45 CFR § 160.103; and (ii) any other patient or health information protected by the Health Insurance Portability and Accountability Act of 1996, as it may be amended from time to time (“HIPAA”), including the regulatory revisions implemented pursuant to the Health Information Technology for Economic and Clinical Health Act (the “HITECH ACT”).
“Services” means any implementation, training or other professional services provided by Review Wave or EyeDeal Warranty to you pursuant to the terms of an Order Form.
“Third Party Content” means the content, including software code that a EyeDeal Warranty partner or other third party may bundle with the EyeDeal Warranty Service, for a specific market or niche offering.
“Your Data” means registration information, information concerning your Authorized User(s) and customers and contacts, business, marketing and financial information, and any similar data that you upload to the EyeDeal Warranty Service.
2. TERM & TERMINATION
Standard Term. The term of this Agreement shall begin on the submission or execution of your Order Form (the “Term”). The Term will automatically terminate when all active Order Forms have been terminated in accordance with the terms of the Order Form.
a. Termination for Material Breach. In the event it is alleged during the Term that you experience a loss of business critical functionality caused by Review Wave or EyeDeal Warranty more than three (3) times during any rolling twelve (12) month period which causes substantial harm to you and Review Wave and EyeDeal Warranty are unable to cure such alleged issue(s) within thirty (30) days of your written notice to us after the third instance, then, you may terminate this Agreement and/or any active Order Forms (“the Date of Termination”).
b. Effect of Termination. Upon termination of the Term other than termination for material breach in Section 2(a) above, all Fees (defined in Section 8 below) then due and payable to EyeDeal Warranty must be paid in full. Contingent upon its receipt of all such Fees, EyeDeal Warranty will continue to make Your Data available for downloading through the termination date. In the event the Agreement is terminated in accordance with Section 2(a) above, then you shall pay for all fees up to the Date of Termination and shall be relieved of its remaining payment obligations for the remainder of the Term.
3. NON-COMPETE and NON-SOLICITATION.
You agree that during the Term, you and/or your Authorized User(s) may not use any of our Confidential Information, data, or other content relating to the Platforms or user accounts in any manner whatsoever other than for purposes of the Services, and shall not use any such information to compete, directly or indirectly with us, or solicit any competitor of ours.
4. INCORPORATION BY REFERENCE.
The following documents are incorporated by reference as though fully included within these Terms of Service. Your acceptance of these Terms of Service constitutes your agreement to follow the following policies and laws.
- Review Wave Privacy Policy;
- PracticePal Terms of Service;
- EyeDeal Warranty Order Form;
- Review Wave Acceptable Use Policy;
- Testimonial Disclaimer Statement;
- Guardsman Warranty Terms and Conditions; and
- Business Associate Agreement
5. NOTICE TO MINORS.
We aim to fully comply with all federal laws and, thus, at a minimum, you must be at least eighteen (18) years of age to use the Platforms. If you are a minor, you must obtain the consent of your parent or legal guardian to use the Platforms and agree to these Terms of Service. No one under eighteen (18) years of age may provide any personal information, and we do not knowingly collect personal information from children under the age of eighteen (18).
If you are under eighteen (18) years of age, please do not send any information about yourself to us, or to anyone else through the Platforms. Personal information includes, but is not limited to, your name, address, telephone number, or email address. If we learn we have collected any personal information from anyone under the age of eighteen (18), we will immediately delete that information per the requirements of the Children’s Online Privacy Protection Act and any other applicable laws. If you believe we have received information from or about a child under the age of eighteen (18), please contact us at support@practicepal.io with a subject heading Terms of Service.
6. USER ACCOUNTS.
In order to use certain features of the Platforms, you may need to create an account. If the Platforms require you to create a user account, you are only to use your user account and not the user account of another without their permission.
You agree you shall immediately notify us of any unauthorized use of your username, password, or any other breach of security whatsoever. In order to safeguard your security, the security of these Platforms, and the user experience of others, you agree to log out of your account at the end of each session on the Platforms. Please remember to exercise particular caution when accessing your account from a public or shared computer so others are not able to view or record your password or other personal information.
As you browse these Platforms, you may be asked to provide certain registration details or other information. It is a condition of your use of the Platforms that all the information you provide on the Platforms is correct, current, and complete.
We reserve the right to disable any user identification code, username, or password, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have failed to comply with any provision of the Terms of Service, or any other applicable agreement, law, or regulation.
7. TECHNICAL SUPPORT.
In connection with the provision of technical support, training, and other EyeDeal Warranty Services, you agree that we may remotely log-in to your computers, devices, and systems for purposes of providing the support, training, or other EyeDeal Warranty Services, including, without limitation, technical trouble shooting, answering questions, benchmarking and providing training to you or your personnel. Remote login may be conducted through the use of third party entities. You further agree that we may also remotely log-in at any time as necessary or appropriate to maintain our EyeDeal Warranty Services. We reserve the right to log off accounts that are inactive for an extended period of time. In addition, we may quarantine suspected messages. We also may modify any domain and user settings with or without notice, including without limitation, altering settings so that spam or bulk e-mail is denied, rather than being quarantined, to avoid space capacity issues which jeopardize the technical or economic viability of the services offered, or the system used to implement the services. You agree that we may automatically check the version of a EyeDeal Warranty Service that you are utilizing and may provide updates or upgrades remotely via the Internet. You consent to the receipt of updates or upgrades by means of download to your computers and systems. You agree to keep your computers powered on during the EyeDeal Warranty Services runtimes that you specify. You must add Review Wave and EyeDeal Warranty to the “allowed” list of programs and ensure that your firewall and anti-virus software programs do not block us. Additionally, your practice management software must always be accessible by us. It is your responsibility to contact us if you are upgrading or changing your computer systems.
7.1 Third-Party Integrations. The EyeDeal Warranty Service contains features that enable us to integrate our software into third party software and/or applications (“Software Provider”) (such as your practice management software) in order for us to provide key aspects of our services. By enabling us to integrate its Service with your Software Provider you are representing to us that you have complied with the terms and conditions of your Software Provider in authorizing our access.
To enable our service features, you give us express permission and consent to access your server(s) in order to integrate the EyeDeal Warranty Service. These integration requirements may change from time-to-time and we will post notifications of these changes. Your continued use of the EyeDeal Warranty Service serves as your express consent to update our integration procedures with the required Software Provider.
7.2 Data Storage, Security, and Backup. When a patient purchases the Guardsman Warranty via the PracticePal platform, EyeDeal Warranty receives certain PII of the patient, which will be saved in PracticePal and provided to Guardsman in connection with the Guardsman Warranty. EyeDeal Warranty itself does not access, store, process, maintain, or possess any PII of the patient. EyeDeal Warranty also does not collect any patient payment details, including credit card information.
8. PAYMENT TERMS.
The retail cost of the Guardsman Warranty (along with the product and other services) will be collected from the patient by you via your standard payment methods. The purchase of the Guardsman Warranty will be processed through the PracticePal platform’s check-out functionality, and the funds from the patient’s purchase of the Guardsman Warranty will be deposited into your designated operating account (the "Payment Account"). For this purchase, the PracticePal platform will be set up so that EyeDeal Warranty will directly debit the Payment Account for its warranty price, which price shall be determined based on the fee schedule set forth below (the "Fees"). Note that you will keep a portion of the Guardsman Warranty price in accordance with the fee schedule set forth below.
Such payment shall take place by automated clearing house ("ACH") transfer from the Payment Account directly to EyeDeal Warranty. You agree to deliver to EyeDeal Warranty the ACH payment details and to undertake all required actions and execute any required documents, instruments or agreements necessary for EyeDeal Warranty to initiate ACH transfers from the Payment Account to EyeDeal Warranty. You authorize such ACH payment in the amounts, whether fixed or variable, and at the frequency permitted under the Order Form or these Terms of Service.
9. NON-PAYMENT; OTHER SUSPENSION RIGHTS OR REMEDIES.
We may terminate the EyeDeal Warranty Service if the billing or contact information provided by you is false or fraudulent. We also reserve the right, in our discretion, to suspend your access and/or use of the EyeDeal Warranty Service: (a) where any payment is due but unpaid and you have been requested but failed to promptly cure such payment failure; or (b) in the event a dispute arises on your account as to who at your business has authority to act or manage your account and we are not promptly provided with written instructions from the interested parties associated with your account that fully resolves the dispute. You acknowledge and agree that if a dispute arises as to management of your account, then: (i) if the listed owner of the account is a corporation, limited liability company or other registered entity, we may rely on public records (to the extent available) concerning the appropriate authorized executives or managers of your entity; or (ii) if the listed owner is a dba or sole proprietorship, or any other entity for which public records of control are not readily accessible online, we may assume that the person or entity that has been making payments on your account has the authority to manage the account. You agree that we shall not be liable to you nor to any third party for any suspension of the EyeDeal Warranty Service resulting from your non-payment of fees or from a dispute as to the management rights to your account.
9.1 Our Remedies if You Pay Late or Fail to Pay. You may be billed fees, charges, and assessments related to late or non-payments if for any reason we do not receive payment for full amounts billed to you by the due date.
9.1.1 Late or Non-Payments. YOU WILL BE ASSESSED A LATE FEE OF TEN PERCENT (10%) PER MONTH FOR ANY AMOUNT THAT HAS NOT BEEN PAID IN FULL AFTER 45 DAYS FROM THE DATE THE INVOICE WAS SENT.
9.1.2 Fees Not Considered Interest or Penalties: We do not anticipate that you will fail to pay on a timely basis, and we do not extend credit to customers. Any fees, charges, and assessments due to late payment or nonpayment are liquidated damages intended to be a reasonable estimate of our costs resulting from late payments and non-payments. These costs will be difficult to calculate or to predict when we set such fees, charges, and assessments, because we cannot know in advance: (a) whether you will pay on a timely basis, if ever; (b) if you do pay late, when you will actually pay; and (c) what costs we will incur because of your late payment or non-payment.
9.1.3 Collection Costs: If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. If you change your telephone number or other contact information without notifying us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by us or our collection agent as a result of any attempt to collect any debt through the telephone number or contact information you provided, including any costs or liabilities associated with misdirected calls.
9.1.4 Suspension/Disconnect: If you fail to pay the full amount due for any or all charges then we, at our sole discretion in accordance with and subject to applicable law, may suspend or disconnect access to the EyeDeal Warranty Service you receive without a reduction in the fee or charges for access to the EyeDeal Warranty Service.
9.2 Reconnection Fees and Related Charges. If you resume access to the EyeDeal Warranty Service after any suspension as described, we may require you to pay additional activation fees. These fees are in addition to all past due charges and other fees. Reconnection of the EyeDeal Warranty Service is subject to our credit policies, this Agreement and applicable law.
10. WARRANTY CLAIMS PROCESS
When a patient has a claim under the Guardsman Warranty, the patient will file such claim directly with you. You will then file the claim with EyeDeal Warranty via the PracticePal platform. We will submit the claim to Guardsman. To the extent the claim is accepted by Guardsman, Guardsman will pay out the proceeds of the claim to EyeDeal Warranty. EyeDeal Warranty will then issue a credit directly to your Payment Account via the PracticePal platform. You will be solely responsible for settling the claim with your patient.
11. INTELLECTUAL PROPERTY OWNERSHIP.
Unless otherwise noted, all content on the Platforms, including any names, logos, trademarks, service marks, brand identifiers, copyrights, trade dress, or other intellectual property appearing on the Platforms, including the organization, compilation, look and feel, illustrations, graphics, artworks, videos, music, software, and other works of the Platforms (the “Works”) are owned by Review Wave or EyeDeal Warranty, or used with permission of the third party (the “Owners”), and are protected under copyright, trademark, and other intellectual property and proprietary rights laws. All right, title, and interest to the Works remain with Review Wave, EyeDeal Warranty and/or the Owners. Nothing herein shall be interpreted to grant you a license to use any of the Works without Review Wave, EyeDeal Warranty and/or the Owners permission.
12. CONTENT FROM THIRD PARTIES.
Any and all content from third parties is for informational purposes only and we do not verify the accuracy or truthfulness of any material. Specifically, we do not independently verify information. We do not independently verify the accuracy or truthfulness with respect to the operation of any of the locations identified in the Platforms, including the hours of operation, availability of certain products/services, or otherwise.
13. CONTENT POSTED BY USERS.
Any and all content (including replies to reviews or testimonials) posted by you to the Platforms, to our social media pages, or any other area to which you may have access to or the ability to post content, must comply with these Terms of Service, any other agreement controlling your relationship with us, and any applicable federal, local, or state laws and regulations.
By using the Platforms, you are agreeing to these Terms of Service, and warrant that: (a) you have obtained the necessary permissions of any and all third parties for any content posted and/or otherwise made available by you; (b) to the best of your knowledge, any and all content posted and/or otherwise made available by you is truthful and accurate, and not misleading in any manner; and (c) you are not violating any law, regulation, code, or otherwise in your posting and/or sharing of the content, including intellectual property, right of privacy, and defamation, or any other applicable law, regulation, or order. For purposes of clarity, you specifically agree to comply with all local, state and federal laws including but not limited to HIPAA as it relates to PHI. If you are unsure whether the content you are considering posting relates to any HIPAA and/or PHI measure, you agree to seek independent counsel before posting said content.
You further agree to indemnify, defend, and hold harmless Review Wave and EyeDeal Warranty from any and all liability, claim, cause of action, loss, or damages resulting from content you post and/or otherwise make available to the Platforms, to our social media pages, or any other area to which you may have access to or the ability to post content.
You hereby grant an irrevocable, fully prepaid, perpetual license to Review Wave and EyeDeal Warranty to use anything posted and/or otherwise made available by you to the Platforms.
13.1 TESTIMONIAL DISCLAIMER STATEMENT.
In the event you decide to submit a testimonial review regarding the EyeDeal Warranty Services, you agree and acknowledge to be bound to the terms and conditions located here at https://practicepal.io/testimonial-disclosure-statement/.
14. RESTRICTIONS ON USE.
Except as expressly provided herein, nothing on the Platforms shall be construed as granting or conferring any license under Review Wave’s, EyeDeal Warranty’s and/or the Owners’ intellectual property rights, whether by estoppel, implication, or otherwise. Notwithstanding anything herein to the contrary, we may revoke any of the foregoing rights and/or your access to the Platforms, or any part thereof, including blocking your IP address, at any time without prior notice.
You are expressly prohibited from using any Front End Code for any purpose outside of the intended design and implementation of your authorized use of the EyeDeal Warranty Service. Any replication or use of any aspect of the Front End Code or other Review Wave or EyeDeal Warranty application or Services for any purpose designed or intended to compete with Review Wave’s or EyeDeal Warranty’s solutions is strictly prohibited.
15. TECHNICAL SUPPORT.
During the Term, you will be entitled at no extra charge to access online user guides, knowledge bases and self-help tools, and any additional standard technical support resources (collectively, “Technical Support”) for the EyeDeal Warranty Service offered by EyeDeal Warranty from time to time, and the terms of conditions of which may be described and updated from time to time on the support or customer care sections of the relevant PracticePal website (https://practicepal.io/). We reserve the right to modify the posted terms and conditions for Technical Support, at any time in our sole discretion.
16. HIPAA.
The Health Insurance Portability and Accessibility Act (“HIPAA”) relates to the handling of health information, namely to regulate the transmission of PHI. Review Wave and EyeDeal Warranty are not health providers and do not provide any type of medical care, services, or otherwise to patients, or any other person or entities. While the Platforms may be used to store a patient’s PHI, we do not utilize any PHI or other information for any type of medical care, or other related use. You agree to alert us in writing if you will be using the Services to store or process PHI. To the extent that you do use the Services to store or process PHI, then the terms of the EyeDeal Warranty Business Associate Agreement will apply to any PHI stored or processed by you using the Services and the terms of the EyeDeal Warranty Business Associate Agreement are incorporated herein by reference. To the extent necessary, you are solely responsible for obtaining patient consents or authorizations prior to using the Services to store or process PHI and prior to allowing access to PHI by Review Wave or EyeDeal Warranty. You agree to indemnify and hold Review Wave and EyeDeal Warranty harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees) that arise due to your failure to obtain any such consents or authorizations.
17. USE OF NAMES IN MARKETING.
You may use EyeDeal Warranty’s name and credentials in an appropriate and acceptable manner for your standard marketing promotions, provided that you agree to cease or alter such use at our request where such use is contrary to EyeDeal Warranty’s branding policies, could cause any brand confusion in the market or is otherwise objectionable to EyeDeal Warranty. Similarly, we may use your business name in an appropriate and acceptable manner for standard marketing promotions, provided that we agree to cease or alter such use at your request where such use is contrary to your branding policies, could cause any brand confusion in the market or is otherwise objectionable to you. Acceptable and standard marketing promotions include, but are not limited to: client listings, press releases, surveys, interviews, reputable business publications, television, and web site presentation and promotion, etc.
18. SUBMITTED IDEAS.
Any ideas, comments, suggestions, notes, drawings, concepts, or other information submitted to Review Wave or EyeDeal Warranty, whether through the Platforms or by other means, shall be deemed to be non-confidential and non-proprietary. We do not owe you any confidentiality or nondisclosure obligations, whether express or implied. We shall be entitled to unrestricted use of the idea, comment, suggestion, note, drawing, concept, or other information for any purpose whatsoever, commercial or otherwise, without compensation to you.
19. OWNERSHIP OF YOUR DATA.
As between you, Review Wave, and EyeDeal Warranty, Your Data and any similar data provided to Review Wave or EyeDeal Warranty is and shall remain your property. To enable Review Wave and EyeDeal Warranty to provide you with the EyeDeal Warranty Service, and subject to the Terms of Service, you hereby grant to Review Wave and EyeDeal Warranty a non-exclusive right to use, copy, distribute and display Your Data solely in connection with our operation of the EyeDeal Warranty Service on your behalf. You, not Review Wave or EyeDeal Warranty, shall have sole responsibility for the accuracy, integrity, and reliability of Your Data, and we will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of Your Data. We will protect any of Your Data provided to us as confidential in accordance with the Confidential Information provision below.
20. CONFIDENTIAL INFORMATION.
For purposes of this Agreement, confidential information shall include the business terms in the Order Form, Your Data, the EyeDeal Warranty Service and the EyeDeal Warranty Materials, and any information that is clearly identified in writing at the time of disclosure as confidential or that should be reasonably understood to be confidential by the receiving party given the nature of the information and the circumstances of its disclosure (“Confidential Information”). Each party agrees: (a) to receive and maintain in confidence all Confidential Information disclosed to it by the other party or by a third-party; (b) not to use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights hereunder; (c) to limit the internal dissemination of Confidential Information to those employees and contractors of the recipient who have a need to know and an obligation to protect it; and (d) to protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Review Wave and EyeDeal Warranty will restrict their employees’ access to Your Confidential Information to only those employees necessary to successfully provide the EyeDeal Warranty Service. Review Wave and EyeDeal Warranty may disclose Confidential Information on a need-to-know basis to its contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services for Review Wave or EyeDeal Warranty in connection with the performance of this Agreement. Confidential Information shall not include information that: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. This Section will not be construed to prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority. The parties agree to give the other party prompt notice of the receipt of any subpoena or other similar request for such disclosure.
21. NO ARCHIVE.
The Platforms are not and shall not function as an archive. Neither Review Wave nor EyeDeal Warranty shall have any liability to you or any other person for loss, damage, or destruction to any submission. You shall be solely responsible for maintaining independent archival and backup copies of any submission.
22. DISCLAIMERS.
Without limiting anything herein, the Platforms, its content, and all of its features, are provided to you “AS IS” and “AS AVAILABLE” without warranty of any kind with respect to the Platforms, its content, and of its features, either express or implied, including but not limited to fitness for a particular purpose, title, or non-infringement. No advice or information, whether oral or written, obtained by you from Review Wave or EyeDeal Warranty shall create any warranty, representation, or guarantee not expressly stated herein. Additionally, we do not make any warranties that the Platforms will be secure, error free, or otherwise meet your expectations. We do not warrant that the Platforms, their content, or features are correct, accurate, or reliable. We reserve the right to change any part of the Platforms at any time without notice.
23. LIMITED WARRANTIES.
You warrant that your business shall, at all times, comply with, and shall remain solely responsible for compliance with, all applicable federal, state and local laws and regulations, as well as the Review Wave Acceptable Use Policy, in connection with your use of the EyeDeal Warranty Service, and you agree to indemnify and hold Review Wave and EyeDeal Warranty harmless from and against any third party or government claims, including all related damages, costs and expenses (including reasonable attorneys’ fees), that arise due to your violation of law or breach of this warranty in your use of the EyeDeal Warranty Service.
24. LIMITATION OF LIABILITY.
Your use of the Platforms is at your own risk. Review Wave, EyeDeal Warranty, their affiliates, and their respective officers, directors, agents, and representatives will not be liable to you, or any third party, for any damages, direct or indirect, incidental, consequential, special, or punitive, including, without limitation, loss of data, income, profit, or goodwill, loss of or damage to property and claims of third parties arising out of your access to or use of the Platforms, or arising out of any action taken in response to or as a result of the Works, or other information available on the Platforms, however caused, whether based on breach of contract, tort, proprietary rights infringement, product liability, or otherwise. The foregoing shall apply even if Review Wave or EyeDeal Warranty was advised of the possibility of such damages. If you become dissatisfied in any way with the Platforms, the Terms of Service, or any other applicable agreement, your sole and exclusive remedy is to stop your use of the Platforms and its services. You hereby waive any and all claims against Review Wave, EyeDeal Warranty, their affiliates, officers, directors, agents, representatives, and licensors arising out of your use of the Platforms. If any portion of this limitation on liability is found to be invalid or unenforceable, then the aggregate liability of Review Wave, EyeDeal Warranty, their affiliates, and their respective officers, directors, agents, and representatives shall not exceed one hundred dollars ($100). The Platforms would not be provided without such limitations and you agree that the limitations and exclusions of liability, disclaimers, and exclusive remedies herein will survive even if found to have failed their essential purpose.
25. NO FRAMING OR LINKING.
Framing, in-line linking, or other methods of association with the Platforms are expressly prohibited without prior written approval from Review Wave and EyeDeal Warranty.
26. INTERNATIONAL USERS
The Platforms are hosted in the United States. If you are attempting to access the Platforms from a physical location within the European Union, Asia or any other region with laws or regulations governing data collection, use, and disclosure that differ from the United States, please be advised that your use of the Platforms is governed by United States law, and the Terms of Service. To the extent you provide Personal Information through the Platforms you are transferring your Personal Information to the United States and you consent to: such transfer; the application of the laws of the United States and the State of California with respect to any dispute arising from or related to your use of the Platforms; exclusive jurisdiction of the courts of the State of California.
27. CHOICE OF LAW & VENUE AND DISPUTES.
The laws of the State of Texas shall govern these Terms of Service without regard to conflict of laws provisions.
Any dispute relating in any way to your visit to, or use of, the Platforms, to the products you purchase through the Platforms, or to your relationship to Review Wave or EyeDeal Warranty shall be submitted to confidential arbitration in Dallas, Texas; provided, however, that to the extent that you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Texas. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to, venue and jurisdiction in the state and federal courts in Dallas, Texas.
Arbitration under these Terms of Service will be conducted be administered by the JAMS, Inc. (“JAMS”), pursuant to its Arbitration Rules & Procedures (the “JAMS Rules”). The arbitrator shall have the power to decide any motions brought by any party to the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss and demurrers, and motions for class certification, prior to any arbitration hearing. The arbitrator shall have the power to award any remedies available under applicable law, and the arbitrator shall award attorneys’ fees and costs to the prevailing party, except as prohibited by law. You agree that the arbitrator shall administer and conduct any arbitration in accordance with Texas law, including the Texas Code of Civil Procedure and the Texas Evidence Code, and that the arbitrator shall apply substantive and procedural California law to any dispute or claim, without reference to the rules of conflict of law. To the extent that the JAMS Rules conflict with Texas law, Texas law shall take precedence. The decision of the arbitrator shall be in writing, and the arbitrator’s award will be final and binding and may be entered into as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms of Service will be joined to an arbitration involving any other party subject to these Terms of Service, whether through class action proceedings or otherwise. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platforms or these Terms of Service must be filed within one (1) year after such claim of action arose or be forever banned.
YOU,REVIEW WAVE, AND EYEDEAL WARRANTY AGREE THAT EACH MAY ONLY 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 you, Review Wave, and EyeDeal Warranty 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.
28. ATTORNEYS’ FEES.
In the event that either Review Wave, EyeDeal Warranty, or you or your Authorized User(s) shall institute an action or proceeding to enforce any rights hereunder, including any action for collection, the prevailing party shall be entitled to seek and recover reasonable attorney’s fees, costs, and expenses.
29. INDEMNIFICATION.
You agree to defend, indemnify and hold harmless Review Wave, EyeDeal Warranty, their respective members, affiliates and/or partners, and their respective officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees that may, at any time, arise out of or relate to your authorized, unauthorized, lawful or unlawful use of the Platforms, including but not limited to the EyeDeal Warranty Services, your breach of the Terms of Service as stated herein or as modified from time to time in our sole discretion, your inability to access the EyeDeal Warranty Materials and/or EyeDeal Warranty Services, the use of any linked sites, your reliance on any errors or omissions, or the propagation and/or contraction of any computer virus in connection with your use of the EyeDeal Warranty Materials and/or EyeDeal Warranty Services.
30. FORCE MAJEURE.
Except for Your obligation to pay Fees for the EyeDeal Warranty Service or other Services rendered, neither party will be responsible for failure of performance due to causes beyond its control. Such causes include (without limitation) accidents, acts of God, labor disputes, actions of any government agency, civil disturbance or Act of Parliament or other Government action, strike, postal delay, shortage of materials, extreme weather conditions, disaster conditions, acts of terrorism, or the stability or availability of the Internet or a portion thereof, or any other reason beyond the control of Review Wave or EyeDeal Warranty.
31. ABILITY TO ACCEPT TERMS OF SERVICE.
You affirm that you are more than the legal age in the territory in which you reside, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in the Terms of Service, and to abide by and comply with the Terms of Service.
32. CHANGES AND UPDATES.
We may revise these Terms of Service from time to time. Your use of the Platforms following any revised Terms of Service shall be deemed an acceptance of the revised policy. Your use of the Platforms following any revised Terms of Service shall be deemed an acceptance of the revised policy governing any and all use, including prior use, of the Platforms by you. We recommend you review these Terms of Service from time to time to stay updated. We will make a commercially reasonable effort to obtain your consent before implementing revisions which materially affect the disclosure or use of your Personal Information. If you disagree with the terms of these Terms of Service at any time, your sole remedy is to terminate your use of the Platforms and inform us of such termination.
33. MISCELLANEOUS TERMS OF SERVICE.
33.1 Notice. Notices regarding this Terms of Service to EyeDeal Warranty shall be in writing and sent by first class mail or overnight courier (if from within the United States), or international courier, addressed to EyeDeal Warranty, Attn. Administrator, 300 Davis St., McKinney, TX 75069. EyeDeal Warranty may give notice applicable to EyeDeal Warranty’s general customer base by means of a general notice on the EyeDeal Warranty Service portal, and notices specific to you by electronic mail to your designated contact’s email address on record with EyeDeal Warranty, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to your address on record in EyeDeal Wave’s account information. All notices shall be deemed to have been given three (3) days after mailing or posting (if sent by first class mail), upon delivery in the case of courier, or twelve (12) hours after sending by confirmed facsimile, email or posting to the EyeDeal Wave Service portal.
33.2 Waiver. The failure of either party to enforce any right or provision in this Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
33.3 No Joint Venture. None of the Terms of Service or use of the EyeDeal Wave Service shall be construed as constituting an employer-employee, joint venture, pooling arrangement, partnership, teaming effort, or agency arrangement between the parties. Neither party shall have any right to obligate or bind the other in any manner whatsoever, and nothing contained herein shall give, or is intended to give, any rights of any kind to any third party.
33.4 No Assignment. You may not assign or transfer this Terms of Service or any interest herein, in whole or in part, without EyeDeal Warranty’s prior written approval, which approval shall not be unreasonably withheld. Any attempted assignment or grant in derogation of the foregoing shall be void.
33.5 Headings and Terms Contractual. Paragraph headings contained herein are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Terms of Service. These Terms of Service are contractual in nature and not mere recitals.
33.6 Severability and Construction. If any part of these Terms of Service is determined to be invalid or unenforceable pursuant to applicable law, then it shall be construed in a manner which is valid and enforceable that is closest to the intentions set forth herein. The remainder of the Terms of Service shall remain in full force and effect.
33.7 Entire Terms of Service. These Terms of Service supersede all previous arrangements or understandings, whether written or oral, and contain the entire agreement of the parties with respect to the subject matter thereof and hereof.
33.8 Export. You agree that U.S. export control laws and other applicable export and import laws govern Your use of the EyeDeal Warranty Service. You represent that you are neither a citizen of an embargoed country nor prohibited end user under applicable U.S. export or anti-terrorism laws, regulations and lists. You agree not to use or export, nor allow a third party to use or export, the EyeDeal Warranty Service or technology in any manner that would violate applicable law, including but not limited to applicable export and import control laws and regulations.
33.9 Government End Use. If you are an agency or unit of the U.S. Government (“Government”), the EyeDeal Warranty Service is provided for ultimate Government use solely in accordance with the provisions of the Federal Acquisition Regulation (“FAR”) and supplements thereto, including the Department of Defense (“DoD”) FAR Supplement (“DFARS”, set forth in this Section. Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR §12.211 (Technical Data) and FAR §12.212 (Computer Software) and, for DoD transactions, DFARS § 252.227-7015 (Technical Data – Commercial Items) and DFARS § 252.227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If the Government has a need for rights not conveyed under these terms, it must negotiate with EyeDeal Warranty to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
