Last Updated: July 24, 2023
Notice Regarding Dispute Resolution and Your Right to Opt-Out: These Terms contain provisions that govern how claims you and we may have against each other are resolved (see Section 14 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 14€. Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. If you are located in the EU or the UK, in most cases the Dispute Resolution provisions will not affect your right to resolve disputes in your local court or tribunal.
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TABLE OF CONTENTS
- AFFIRMATIVE REPRESENTATIONS REGARDING YOUR USE OF THE SERVICE
- USER ACCOUNTS AND REGISTRATION
- COPYRIGHT INFRINGEMENT NOTICES
- TERMS OF SALE
- THIRD PARTY SITES
- SOCIAL MEDIA GUIDELINES
- OUR MANAGEMENT OF THE SERVICE
- WARRANTY DISCLAIMER; LIMITATION ON LIABILITY
- DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
When you use the Service, you represent that: (a) the information you submit is truthful and accurate; (b) your use of the Service and your use of services available on the Service do not violate any applicable laws or regulations; and (c) you are at least 18 years of age and a "natural person" in your country of residence, and are fully able and competent to enter into the terms, conditions, obligations, representations and responsibilities set for in these Terms, and to abide and comply with these Terms..
- USER ACCOUNTS AND REGISTRATION
- User Registration. You can visit and browse the Service without becoming a registered user of the Service, but you will not be able to place an order, view an order, track an order, save your favorites, save your recently viewed items, save your prescription information, or save your Zenni Frame Fit™ photo, unless you are a registered user of the Service. You can sign up to become a registered user of the Service by completing the registration process at https://www.zennioptical.com/login. If you sign up to become a registered user of the Service, you agree: (i) to provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (the "Registration Data"); (ii) to maintain and promptly update the Registration Data to keep it true, accurate, current and complete; and (iii) that you will comply with the rules governing prohibited uses in Section 3 and User Generated Content in Section 5 below.
While using the Services, you are required to comply with all applicable statutes, orders, regulations, rules and other laws. You are prohibited to, or assist any other persons to:
- use the Service for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Service without our express written consent;
- transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Service or the networks or services connected to the Service, including without limitation, hacking into the Service, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
- impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
- post advertisements or solicitations for jobs or employment on the Service, or otherwise use the Service to hire any person to perform work, including, without limitation, posting advertisements or solicitations for modeling jobs or talent or talent scouting positions on the Service;
- post on the Service any franchise, pyramid scheme, "club membership," distributorship or sales representative agency arrangement or other business opportunity which requires an up-front or periodic payment, pays commissions, or requires recruitment of other members, sub-distributors or sub-agents;
- post or generate User Content or use the Services that is intentionally misleading, false, or otherwise inappropriate or with the purpose of harming others, regardless of whether the Content or its dissemination is unlawful;
- post or generate User Content (as defined in Section 5) or use the Services that has any risk or possibility of exploiting, harming, or endangering the health or well-being of children or other minors ("Children"), such as images of Children in sexualized costumes, poses, or a sexual fetishistic context, or which identifies, directly or indirectly, alleged victims of child sexual exploitation, or for the purpose of exploiting, harming or attempting to exploit or harm Children in any way;
- post or generate User Content or use the Services which may be discriminatory towards a person's or class of people's race, religion, color, age, ethnicity, national origin, disability, physical, or mental characteristics, sexual orientation, gender expression, gender identity, family status, medical or genetic condition, personality characteristics, or physical appearance, including through the material distortion of the behavior of any such person or class of people in a manner that causes or is likely to cause that person or class of people physical or psychological harm;
- post or generate User Content or use the Services in such a way that damages the image or rights of Zenni, other users or third parties;
- send spam or other direct marketing communications or posting, transmitting or linking to any unsolicited advertising, promotional materials, or any other forms of solicitation or commercial content;
- post or transmit executable programming of any kind, including viruses, spyware, trojan horses, Easter eggs, or any other form of computer programming or disabling mechanism;
- use any robot, spider or other automatic program or device, or manual process to monitor, copy, summarize, or otherwise extract information from this Services or the Content in whole or in part, including, without limitation, creating any frames at any other Services pertaining to any portions of this Services;
- decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Service, or any portion thereof;
- circumvent, disable or otherwise interfere with security related features of the Service or features that prevent or restrict use or copying of any Materials (as defined in Section 10) or enforce limitations on use of the Service or the Materials on the Service; or
- intentionally or unintentionally perform or promote any activity that would violate any applicable local, provincial/state, national or international law, including, but not limited to, any regulations having the force of law while using or accessing the Services.
- OUR INTELLECTUAL PROPERTY RIGHTS
- Zenni Materials. Except for your Contributions and the Contributions of other users of the Service, all names, logos, text, designs, graphics, trademarks, service marks, trade dress, characters, interfaces, code, software, images, sounds, videos, photographs and other content appearing in or on the Service including the trademarks ZENNI® and ZENNI OPTICAL® and the Eye-shaped stripped logo® ("Materials") are owned by, used with permission or under license by Zenni and/or its licensors, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. All intellectual property rights associated with the Service, and related goodwill, are proprietary to Zenni or our licensors. You do not acquire any right, title or interest in any Material by accessing or using the Service. Any rights not expressly granted herein are reserved and retained by Zenni and its affiliates, parents, and subsidiaries.
- License Granted by Zenni. The Service and the Materials are for your information and personal use only and not for commercial exploitation. Subject to your compliance with these Terms, Zenni offers you a limited, non-exclusive, non-transferable, non-sub licensable license to access the Services and to access, download, and make personal and non-commercial use of Materials available on through the Services. You may not reproduce, duplicate, copy, sell, resell, visit, or otherwise exploit for any reason any part of the Services for any commercial purpose without the express written consent of Zenni. Except as otherwise expressly authorized herein or in writing by Zenni, you agree not to reproduce, modify, rent, lease, perform, display, transmit, loan, sell, distribute, or create derivative works based (in whole or in part) on all or any part of the Service or the Materials. Zenni reserves the right to refuse Service, terminate accounts, and/or cancel orders in its discretion, including, without limitation, if we believe that user conduct violates applicable law or is harmful to our interests. We reserve all rights in and to the Service and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials.
- USER GENERATED CONTENT
- User Content. Some of our services, including uploading photographs in connection with the Zenni Frame Fit™ service, are designed to allow you publish or transmit through our Services information or content ("User Content"). You retain ownership of all User Content you submit, post, display, or otherwise make available via the Services. You agree, represent and warrant that you have all rights necessary to submit the User Content. You shall not upload, post or otherwise make available on or through our Services any User Content protected by copyright, trademark or other proprietary rights of any third party without the express written permission of the owner of such right(s). You shall be solely liable for any damages resulting from any infringement of copyright, trademark, proprietary rights, or any other harm resulting from such User Content. PLEASE DO NOT SEND US ANY USER CONTENT, IDEAS, SUGGESTIONS, OR OTHER USER CONTENT THAT YOU WISH TO KEEP PRIVATE OR PROPRIETARY OR FOR WHICH YOU EXPECT TO RECEIVE COMPENSATION. By sending any ideas, concepts, know-how, proposals, techniques, suggestions or other User Content to us, you agree that: (i) we are free to use such User Content for any purpose, (ii) such User Content will be deemed not to be confidential or proprietary (iii) we may have something similar already under consideration or in development, and (iv) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances unless otherwise expressly agreed in writing by us. Be aware that we have no obligation to keep User Content confidential unless explicitly stated.
- License Granted by You. By submitting, displaying, posting, publishing or uploading any User Content, including information, text, graphics or other materials, using the Services, you grant Zenni and its related companies, agents, licensees, sublicensees, contractors, successors, legal representatives, assigns, and third-party service providers, and their respective retail partners, marketing or public relations agencies, and other affiliates ("Licensed Parties") a non-exclusive, fully-paid, royalty-free, irrevocable, transferable, perpetual, worldwide, fully sublicensable and unrestricted right and license to use, modify, publicly perform, publicly display, reproduce, create derivative works from, distribute, and/or otherwise use such User Content in any manner to be determined in the "Licensed Parties" sole discretion, including, but not limited to, on webpages and social media pages operated by the Licensed Parties, in promotional emails and advertisements, and in any and all other marketing, promotional and advertising initiatives, and in any media now or hereafter known. The Licensed Parties may use, display, reproduce, distribute, transmit, create derivative works from, combine with other materials, alter and/or edit your User Content in any manner in their sole discretion. You will not receive any compensation of any kind for the use of User Content. You also grant to other users of the Services a non-exclusive, fully-paid, royalty-free, and perpetual license to access your Content during the course of their use of the Services as authorized herein. In addition, You grant Zenni a non-exclusive license to use any User Content for research or academic purposes, where Zenni may redistribute, publish, or cause the publication of anonymized copies of User Content in research papers or academic papers. This license you grant to Zenni lasts for as long as User Content is protected by intellectual property rights. Content in violation of these Terms may be removed without notice.
It is our policy to expeditiously respond to notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act ("DMCA"). If you believe that material located on or linked to by us violates your copyright, you are encouraged to notify us in accordance with the Digital Millennium Copyright Act. To do so, please send an email to email@example.com with the Subject Line "DMCA Notice", and include the following:
- Identify the copyrighted work that you claim has been infringed;
- Identify the material or link on our Services that you claim is infringing your copyrighted work;
- Provide your full legal name, company affiliation, mailing address, telephone number, and email address; and
- Include in the body of your notice the following statement, followed by your electronic or physical signature: "I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of, the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed."
We will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. We will terminate our user's access to and use of our Services if, under appropriate circumstances, the alleged user is determined to be a repeat infringer of the copyrights or other intellectual property rights of Zenni or others.
- TERMS OF SALE
- Placing an Order Through the Service. In order to place an order through the Service, you must provide us with applicable order information. This order information includes (a) your full name and correct and complete address and shipping information, (b) your phone number, (c) payment information (credit card number, expiry and code numbers), (d) your frame selection, (e) your lens type, tints, and coatings, (f) your pupillary distance (PD) and (g) your applicable prescription (Rx) information. IF YOUR PRESCRIPTION HAS EXPIRED OR IS MORE THAN TWO YEARS OLD, WE RECOMMEND THAT YOU CONFIRM IT WITH YOUR DOCTOR OR EYE CARE PROVIDER PRIOR TO SUBMITTING AN ORDER. Your order information is saved in your user account for future use. We reserve the right to refuse to print, engrave or otherwise use submissions that are illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, encourage conduct that would be considered a criminal offense, that could give rise to civil liability, violate any law, or that we otherwise deem inappropriate or objectionable in our discretion.
- Custom Engraving (not applicable to Fast Frame). For any custom engraving order, you agree that the text or artwork you submit is yours, and that you own or have a license to all rights, title, and interest in all of the content that you provide in connection with placing a custom order. We reserve the right to refuse to print, engrave or otherwise use submissions that are illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, encourage conduct that would be considered a criminal offense, that could give rise to civil liability, violate any law, or that we otherwise deem inappropriate or objectionable in our discretion.
- Delivery for Standard Shipping. Most orders placed for standard delivery in the United States are shipped from one of our United States distribution centers, and most orders placed for standard delivery outside of the United States are shipped from Hong Kong. Orders for standard delivery are usually shipped from these locations within 7 to 14 business days from date of the order, depending on prescription type and other factors, and, as with all medical devices, your order is subject to government inspection, shipping delays, strikes and other unforeseeable events. Therefore, timing of delivery, receipt of the order by you, and other timing expectations might be delayed or impaired, and orders can take longer than expected. We do not guarantee a specific delivery date.
- Fast Frame Rush Delivery. Fast Frame orders with rush delivery are shipped from one of our United States distribution centers. In the event we find a discrepancy with your order, we will attempt to notify you to verify. If we are unable to reach you, your order may be canceled, and a refund will be issued to the original payment method.
- Returns. If you are not satisfied with eyeglasses you have ordered from us, you may return those eyeglasses either of the following two ways described in our Returns Policy, which you can view here. This includes returns on accessories, manufacturing defects, and discounted purchases. If you are located in the EU or the UK, this Section does not limit or exclude your warranty rights which you may have under the mandatory laws of your jurisdiction.
- Coupons /Special Sales. "Coupons" and "Coupon codes," "Sales," "Free Shipping" and other special pricing and deals are as advertised only. Please read the specific terms for the applicable offer to understand what restrictions or limitations may apply in your jurisdiction. All special pricing and deals will begin and end on the date and at the time specified with the applicable offer. All valid coupons and coupon codes will be provided through the Service or through advertising sponsored by us. We do not have an obligation to honor any coupons or coupon codes that are posted on third party websites or otherwise provided by third parties.
Right of Withdrawal (applicable to EU/UK residents only)
- If you are located in the EU or the UK, you have the following right to withdraw from your order in addition to the right of return that is granted to you in our Return Policy. Your right to withdraw under this Section 7.G does not apply when purchasing any of the following items: (i) sealed items which are not suitable for return due to health protection or hygiene reasons and which were unsealed after delivery; (ii) items that are made to your specifications or that are clearly personalized to your preferences.
- You have the right to withdraw from your order within 14 days without giving any reason. The withdrawal period is 14 days from the day on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the ordered items. To exercise your right of withdrawal, you must inform us (Zenni Optical, Inc. [ADDRESS, TELEPHONE NO, E-MAIL ADDRESS]) of your decision to withdraw from this order by an unequivocal statement (e.g. a letter sent by post, fax or e-mail). You may use the below model withdrawal form, but this is not obligatory. To meet the withdrawal deadline, it is sufficient for you to send your communication concerning your exercise of the right to withdraw before the withdrawal period has expired.
- If you withdraw your order, we shall reimburse to you all payments received from you, including the costs of delivery (with the exception of the supplementary costs resulting from your choice of a type of delivery other than the least expensive type of standard delivery offered by us), without undue delay and in any event not later than 14 days from the day on which we are informed about your decision to withdraw from this order. We will carry out such reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement. We may withhold reimbursement until we have received the items back or you have supplied evidence of having sent back the items, whichever is the earliest.
- You shall send back the items or hand them over to us [or NAME AND ADDRESS OF THIRD PARTY TO WHERE ITEMS SHALL BE RETURNED, IF APPLICABLE], without undue delay and in any event not later than 14 days from the day on which you communicate your withdrawal from this order to us. The deadline is met if you send back the items before the period of 14 days has expired. You will have to bear the direct cost of returning the items. You are only liable for any diminished value of the items resulting from the handling other than what is necessary to establish the nature, characteristics and functioning of the items.
- Model withdrawal form. If you wish to withdraw from the order, please complete and return this form:
To: Zenni Optical, Inc. [ADDRESS, E-MAIL ADDRESS]
I/we (*________) hereby withdraw from the my/our (*______) order for the purchase of the following items (*___________ ).
Name of consumer(s): __________________________
Address of consumer(s): ________________________
Signature of consumer(s) (only if this form is notified on paper)
We may occasionally sponsor contests in connection with the Service. All entries submitted for participation in any contest, whether or not sponsored solely by us or together with a co-sponsor, shall be deemed a User Content (as defined in Section 5(A)) and will be subject to the terms set forth in Section 5. Your contest entries and submissions will not be returned to you. The rules applicable to each contest will be provided to you along with the description of the applicable contest, and the applicable rules will supplement the terms and conditions included in these Terms. Please read the specific rules for the applicable contest to understand what restrictions or limitations may apply in your jurisdiction.
If you access or use any of our social media pages on Facebook, Pinterest, Twitter, Instagram or YouTube, we ask you to follow the following guidelines when contributing content or comments to these social media pages:
- Be Polite and Courteous. Excessive name calling, profanity, fighting words, discriminatory epithets, sexual harassment, bullying, gruesome language or the like, will not be tolerated.
- Stay on Topic. Keep the conversation relevant to the community and contribute to the dialogue. We reserve the right to remove content that is off-topic, out of context, spam, promotional or links to third party sites.
- Keep It Real. All l postings should come from a real person. We will delete any postings from our social media pages that we believe have come from fake or anonymous profiles.
- Contact Us with Your Concerns. We would like to hear about your complaints or concerns regarding the Service before you share them on our social media pages so that we can help resolve them for you. If you are a customer and have a customer service comment, complaint, concern or idea, we encourage you to give us a call at our toll-free number (800) 211-2105, or email our customer service team at firstname.lastname@example.org.
We reserve the right to remove content you post on our social media pages that violates these social media guidelines.
- OUR MANAGEMENT OF THE SERVICE
- Our Right to Manage the Service. We reserve the right, but do not undertake the obligation to: (a) monitor or review the Service for violations of these Terms and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates these Terms; (c) manage the Service in a manner designed to protect our and third parties' rights and property or to facilitate the proper functioning of the Service; (d) screen our users or members, or attempt to verify the statements of our users or members; (e) monitor disputes between you and other users or to terminate or block you and other users for violating these Terms; and/or (f) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Contribution or any portion thereof.
WARRANTY DISCLAIMER; LIMITATION ON LIABILITY
- DISCLAIMER OF WARRANTIES.
- EXCEPT FOR OUR WARRANTY OBLIGATIONS SET FORTH IN SECTION 5(D)(II), TO THE EXTENT PERMITTED BY APPLICABLE LAW, ZENNI HEREBY DISCLAIMS ALL WARRANTIES. THE SERVICE AND ALL CONTENT, MATERIALS OR ITEMS PROVIDED THROUGH THE SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE SITE, PRODUCTS WE SELL OR THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SITE, OR OUR PRODUCTS OR SERVICES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
- TO THE EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF THE SERVICE"™S CONTENT, THE CONTENT OF ANY SITE LINKED TO THE SERVICE, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON THE SERVICE OR LINKED TO BY THE SERVICE. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.
- YOU AGREE THAT ZENNI SHALL NOT BE RESPONSIBLE FOR ANY DELAY, FAILURE TO DELIVER, FAILURE IN PERFORMANCE OR INTERRUPTION OF SERVICE, RESULTING DIRECTLY OR INDIRECTLY: (A) FROM ACTS OF GOD, ACTS OF ANY GOVERNMENTAL AGENCY, NATURAL DISASTERS, ACTS OF WAR, INSURRECTION OR TERRORISM, STRIKES OR LOCKOUTS, UNAUTHORIZED NETWORK OR COMPUTER INTRUSION, OR INTERNET- OR COMPUTER-RELATED VIRUSES, HACKER ATTACKS OR OTHER AGENTS INTRODUCED BY A THIRD PARTY, FAILURE OF THE INTERNET AND OTHER CONDITIONS BEYOND OUR CONTROL, (B) SOLELY FROM ANY TECHNICAL REQUIREMENT FOR WHICH YOU ARE RESPONSIBLE, OR (C) SOLELY FROM YOUR INTENTIONAL ACTS OR OMISSIONS.
- IF YOU ARE A RESIDENT FROM THE EU OR THE UK THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER MAY NOT APPLY TO YOU.
- YOUR PURCHASES ARE FOR PERSONAL AND NONCOMMERCIAL USE ONLY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY HEREIN, ALL WARRANTIES ARE VOID AND ZENNI SHALL HAVE NO LIABILITY WHATSOEVER IF YOU RESELL, REBRAND, REDISTRIBUTE, OR ADULTERATE (INCLUDING WITHOUT LIMITATION BY PLACING NON-ZENNI LENSES INTO ZENNI FRAMES), OR OTHERWISE REDISTRIBUTE ANY PRODUCTS PURCHASED FROM ZENNI.
- EXCEPTIONS TO DISCLAIMERS AND LIABILITY LIMITATIONS. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS IN SECTIONS 12(A) AND 12(B) MAY NOT APPLY TO YOU.
You agree and hereby release, indemnify and defend Zenni and its directors, officers, employees, agents or service providers from all claims, demands, losses, expenses and costs (including reasonable attorneys' fees) arising out of or related to: (a) your use of the Services, (b) the User Content you provide to Zenni through the Services; (c) your conduct or interactions with other users of the Services; or (d) or your breach of any provision of these Terms. We will promptly notify you of any such claim, and will provide you (at your expense) with reasonable assistance in defending the claim. You will allow us to participate in the defense and will not settle any such claim without our prior written consent. We reserve the right, at our own expense, to assume the exclusive defense of any matter otherwise subject to indemnification by you. In that event, you will have no further obligation to defend us in that matter.
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. YOU UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. YOU FURTHER UNDERSTAND THAT THE RIGHTS TO DISCOVERY AND APPEALS MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT. IF YOU ARE LOCATED IN THE EU OR THE UK, THESE PROVISIONS WILL NOT AFFECT YOUR RIGHT TO RESOLVE DISPUTES IN YOUR LOCAL COURT OR TRIBUNAL.
- Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Most concerns may be quickly resolved in this manner. For any dispute with Zenni, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. Your notice of dispute must be individual to you and must include, as applicable, your name, your email address, and your residential address. The notice of dispute also must explain the facts of the dispute as you understand them and tell us what you want us to do to resolve the issue. The parties shall use their best efforts to settle any dispute directly through consultation and good faith negotiations, and you agree that a notice of dispute containing all of the information required above, followed by at least 60 days of good faith negotiation, are preconditions to either party initiating a lawsuit or arbitration. A notice of dispute will not be valid unless it contains all of the information required by this paragraph. If you commence an arbitration without having previously provided a valid and compliant notice of dispute, you and we agree that the applicable arbitration provider (or the arbitrator, if one has been appointed) must suspend the arbitration pending compliance with this paragraph. You and we authorize the arbitration provider or the arbitrator to decide summarily whether the party that commenced an arbitration complied with these notice requirements, relying solely on this Agreement and the notice of dispute provided (if any). All statutes of limitation shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
Except in the event of a Mass Arbitration (as defined below), the parties agree that all Claims shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures as modified by this Agreement, but excluding any rules or procedures that permit arbitration on a class-wide basis (collectively, the "JAMS Rules"). The JAMS Rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. The seat of the arbitration will be decided pursuant to the JAMS Rules. You or Zenni may elect to appear at the arbitration in person or, if you and we both agree, to conduct it remotely online via appropriate videoconferencing technology, in lieu of appearing live.
Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Rules. Except as expressly stated to the contrary below, the arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all arbitrability issues, as well as all issues or Claims arising out of or relating to the interpretation, applicability, or enforceability of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. In any arbitration before JAMS, the parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of this Agreement) with respect to any final award in an arbitration arising out of or related to this Agreement.
If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous and not in bad faith, we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration, unless the arbitrator determines that the claim was frivolous or brought in bad faith, in which case the arbitrator may award us our attorney's fees, expert witness fees, arbitration fees and/or costs. We will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
- Class Action and Class Arbitration Waiver. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING DISPUTES AGAINST THE OTHER PARTY ONLY IN AN INDIVIDUAL CAPACITY, AND NOT AS A CLASS ACTION, COLLECTIVE ACTION OR CLASS ARBITRATION, OR AS A PRIVATE ATTORNEY GENERAL. To the extent applicable law does not permit waiver of private attorney general claims, but permits them to be arbitrated, then such claims shall be resolved in arbitration. You and we each further agree to waive our respective right to file a class action or seek relief on a class basis. If there is a final determination that applicable law precludes enforcement of the waiver contained in this paragraph as to any claim, cause of action or requested remedy, then that claim, cause of action or requested remedy will be severed and may be brought in a court of competent jurisdiction, but the waiver contained in this paragraph shall be enforced in arbitration on an individual basis as to all other claims, causes of action or requested remedies to the fullest extent possible. In the event that a claim, cause of action or requested remedy is severed pursuant to this paragraph, then you and we agree that the claims, causes of action or requested remedies that are not subject to arbitration will be stayed until all arbitrable claims, causes of action and requested remedies are resolved by the arbitrator. If a court or arbitrator decides that any part of this Agreement to Binding Arbitration cannot be enforced as to a particular request for public injunctive relief, then that request for public injunctive relief (and only that request for public injunctive relief) must be brought in court and must be stayed pending arbitration of the arbitrable remedies.
Exceptions to Arbitration. Notwithstanding the parties' agreement to resolve all disputes through arbitration, either party may bring an action in state or federal court that only asserts claims for patent infringement or invalidity, copyright infringement, piracy, moral rights violations, trademark infringement, and/or trade secret misappropriation. Excluded claims are subject to the jurisdiction provisions in Section 32(h) below.
Either party may also seek relief in a small claims court for any individual disputes or claims within the scope of that court's jurisdiction. If an arbitration is filed, before the arbitrator is formally appointed, either party can send written notice to the opposing party and the applicable arbitration provider that it wants the case decided by a small claims court, after which the arbitration provider may close the case.
- Exception"”Mass Arbitration Before NAM. Notwithstanding the parties' decision to have arbitrations administered by JAMS, in the event 25 or more demands for arbitration are filed relating to the same or similar subject matter and sharing common issues of law or fact, and counsel for the parties submitting the demands are the same or coordinated, you and we agree that the demands will constitute a "Mass Arbitration." If a Mass Arbitration is commenced, you and we agree that it shall not be governed by the JAMS Rules or administered by JAMS. Instead, a Mass Arbitration shall be administered by National Arbitration & Mediation ("NAM"), a nationally recognized arbitration provider, and governed by the NAM rules in effect when the Mass Arbitration is filed as modified by this Agreement, including the NAM Mass Filing Supplemental Dispute Resolution Rules, but excluding any rules that permit arbitration on a class-wide basis (collectively, the "NAM Rules"). The NAM Rules are available at www.namadr.com or by calling 1-800-358-2550. Notwithstanding anything to the contrary above, you and we agree that if either party fails or refuses to commence the Mass Arbitration before NAM, you or we may seek an order from a court of competent jurisdiction compelling compliance with this agreement and compelling administration of the Mass Arbitration before NAM. Pending resolution of any such requests to a court, you and we agree that all arbitrations comprising the Mass Arbitration (and any obligation to pay arbitration fees) shall be stayed. You and we acknowledge that either party's failure to comply with this paragraph would irreparably harm the other, and you and we agree that a court may issue an order staying the arbitrations (and any obligation to pay arbitration fees) until any disagreements over the provisions of this paragraph are resolved by the court.
- 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions above by sending written notice of your decision to opt-out by emailing us at firstname.lastname@example.org.The notice must be sent within thirty (30) days of your first use of the Service following the effective date of this Agreement; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
- Term for Cause of Action. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within two (2) years after such claim or cause of action arose or be forever barred.
- Exclusive Venue for Litigation Not Subject to Arbitration. To the extent that the arbitration provisions set forth above do not apply or if you have opted out of arbitration, you and we agree to submit to the personal jurisdiction of the state and federal courts located in Los Angeles County, California and Salt Lake County, Utah, and you and we agree that any litigation shall be filed exclusively in state or federal courts located in San Francisco, California (except for small claims court actions which may be brought in the county where you reside). In the event of litigation not subject to this Agreement to Binding Arbitration, you and we agree to waive, to the maximum extent permitted by law, any right to bring a class action or any right to a jury trial, except where a class action or jury trial waiver is not permissible under applicable law
- Exception. Arbitration may not apply if you are a resident of the European Union and subject to the Alternative Dispute Resolution Directive (2013/11/EU) and the Online Dispute Resolution Regulation (EU 524/2013) (and any implement regulations in each member state of the EU), the agreement to arbitrate in these Terms will not apply if not permitted by law.
- NOTICE TO CALIFORNIA AND NEW JERSEY RESIDENTS
- New Jersey Residents. Notwithstanding any terms set forth in these Terms, if any of the provisions set forth in Sections 12 or 14 are held unenforceable, void or inapplicable under New Jersey law, then any such provision shall not apply to you but the rest of these Terms shall remain binding on you and Zenni. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys' fees, court costs, or other damages are mandated by statute. Notwithstanding any provision in these Terms, nothing in these Terms is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
- California Residents. Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Service, please send an email to email@example.com. Users may also contact us by writing to Zenni Optical, 448 Ignacio Blvd, #332, Novato, CA 94949. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
- No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
- Independent Contractors. Nothing in these Terms shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
- Assignment. We may assign our rights under these Terms without your approval. These Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you.
- Severability; Waiver. If, for whatever reason, a court of competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of these Terms shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
- Entire Agreement. These Terms reflect the entire agreement between the parties related to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties.
- Notices and Electronic Communications. When you send emails or text messages to us, you are communicating with us electronically. You consent to receive communications from us electronically. We will communicate with you by email, text message, push notifications services or by posting notices on our Services. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
We reserve the right to modify these Terms, at any time without prior notice, at our sole discretion. We will use reasonable efforts to notify you of such changes. However, it is your responsibility to check the "Last Updated" legend at the top of this page periodically to see when these Terms were last revised. When changes are made to these Terms, they will become immediately effective when published on this web page unless otherwise noted. If we modify these Terms materially, to the extent permissible under applicable law, such modification will be effective upon the earlier of (i) your first use of the Services with actual notice of such change, (ii) 30 days from the posting of such change. We may send you notice of the updated Terms at our sole discretion, and the manner of the notification may include, for example, email, posted notice on the Services, or another reasonable manner. Your continued access and use of the Services following any such change constitutes your acceptance to be bound by the revised Terms then in effect. You agree that you will review these Terms periodically and that you shall be bound by these Terms and any modifications to it. Since our Services are evolving over time, we may also change or discontinue all or any part of the Services, at any time and without notice.
These Terms will identify the date of the last update. Disputes arising under these Terms will be resolved in accordance with the version of the Terms in place at the time the Dispute arose. "Disputes" means any dispute, action, controversy, or claim arising out of or relating to any aspect of these Terms, whether based on contract, tort, statute, fraud, misrepresentation, or any other legal or equitable basis and regardless of whether a claim arises during or after the termination of these Terms.
If you have any questions about these Terms, your account or an order you have placed through the Service, please call us at (800) 211-2105, or email us at firstname.lastname@example.org.