Welcome to the website managed by # 1 Online Eye Test LLC, a New York limited liability company (“# 1 Online Eye Test,” “We,” or “Us”). These terms of service (referred to as the “Terms”) dictate how you may access, interact with, or use our website at www.online-eye-test.com and any other online services we may control, own, or offer in the present or future (collectively, the “Services”).
In these Terms, “You” or “User” refers to any individual or entity accessing, browsing, submitting content, or otherwise interacting with the Services.
These Terms are significant and have legal implications for your rights, so it is crucial to review them thoroughly. Be aware that these Terms enforce a binding arbitration clause that mandates the resolution of disputes individually through arbitration and limits potential remedies.
The use of our Services is subject to your unconditional acceptance of the Terms outlined herein. Certain services, features, or tools within the Services might follow specific guidelines, terms, or rules; these will accompany the features and integrate with these Terms. Using the Services represents your acceptance of all these Terms. WHEN ACCESSING, UTILIZING, BROWSING, OR FINALIZING A FINANCIAL TRANSACTION THROUGH THE SERVICES, YOU CONFIRM THAT YOU HAVE READ, UNDERSTOOD, AND HAVE AGREED TO BE BOUND BY THESE TERMS. YOU MAY NOT ACCESS OR USE THE SERVICES IF YOU DO NOT AGREE TO THESE TERMS.
Refer to our Privacy Policy
Our Privacy Policy details our practices on using, sharing, and maintaining any personally identifiable information you choose to provide, such as your name, address, date of birth, driver’s license number, and contact details.
1.OUR SERVICES
# 1 Online Eye Test is a provider of remote visual acuity assessments to satisfy vision test requirements for driver’s license renewals. We are not a government entity nor affiliated with any government agency. # 1 Online Eye Test has approval to provide and submit vision test results to certain government entities.
You understand that utilizing # 1 Online Eye Test’s Services does not form a medical professional/patient relationship and does not constitute medical advice, opinion, diagnosis, or treatment. These Services are provided to assist you in obtaining a visual acuity examination for renewing your driver’s license and submitting it accordingly.
Subject to compliance with these Terms, we will grant access to the Services. Access is temporary, and without notice, we may withdraw or modify the Services we provide. We will not be liable should the Services become unavailable.
You must be at least eighteen (18) years of age to use the Services. When accessing the Services, you represent that you are legally an adult and can meet all obligations in this Agreement. We refrain from collecting personal data from individuals under 13, either online or offline.
2.ACCESS TO SERVICES
We commit to commercially reasonable efforts to ensure the Services are available, but we shall not be liable for: (a) scheduled downtime; or (b) downtime caused directly or indirectly by factors beyond our control, such as (i) acts of God; (ii) interruptions or failures of Internet providers, web hosting services, or telecommunications; (iii) failures in your computer systems or networks; or (iv) your breach of these Terms.
3.APPOINTMENT PREPARATIONS
To use our Services effectively, ensure you have an Internet connection and device with a camera and can present your current driver’s license. One of our team members will assist through a video call for the test. Remove sensitive information from your environment. We may archive audio or video from your appointment or allow third-party trainers quality control access.
You need ten (10) feet of open space between you and the device. Securely position your device and ensure room to walk this distance. Ensure your test environment is safe, as we bear no responsibility for injuries from surrounding objects. If you require any special accommodations for accessibility, contact us beforehand—any necessary adjustments will be made prior to your interaction with the Services.
4.PAYMENTS, REFUNDS, AND CANCELLATIONS
(a) Payment Details. You’ll pay a one-time fee to access the Services. Our service fee is independent from any charges by the DMV or other agencies involved in driver’s license renewal. By providing payment details, you permit our third-party Payment Processor to process fees linked to your test. We don’t retain credit card data beyond the last four digits of your card number and type.
Our Payment Processor may require financial details such as your credit card number, expiration, CVV/CVC code, and your billing addresses. You represent that you have the authority to use the payment methods provided. We may pre-authorize your card to verify its validity and credit availability before purchase. Although we aim for secure data transmission to third-party payment processors, We are not responsible for any fees or charges assessed by third parties or any errors in the processing of payments by third parties, including any errors that result from third-party negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information. The Payment Processor handles transactions, and you agree to release and hold Us harmless from any errors, negligence, or misconduct by the Payment Processor.
You authorize Payment Processor to directly remit Us any applicable fees owed to Us. We are not liable for any fees incurred due to billing errors.
(b) Appointment Cancellation. You may cancel up until the scheduled appointment without a fee if you don’t pass the test. Refunds will be given if results are not accepted by the DMV. We have no obligation to provide refunds or credits, however, we may offer them under extraordinary circumstances at our discretion.
(c) Price Adjustments; Offers. We may set, change, or remove prices, fees, and surcharges for any service acquired through our Services. We can extend different promotional offers to users selectively. Offers exclusive to others will not affect your fee obligations. Occasionally, promotional discounts through codes may be presented, but these are non-transferable and not redeemable for cash. Promotions and programs may be discontinued or modified at any time, at our discretion.
5.PROHIBITED USES
The Services are limited to authorized uses. Any breaches of these Terms or by user content may lead to termination of access. Users are prohibited from utilizing the Services to:
(a) Infringe on the rights of others, including defaming, stalking, harassing, or threatening them;
(b) Conduct unlawful, deceptive, or fraudulent acts;
(c) Misrepresent the origin or content of transmitted information;
(d) Engage automated systems like “bots” to access forbidden parts of the Services;
(e) Employ technology to access unauthorized Service areas;
(f) Introduce viruses that harm or limit functionality;
(g) Test the Services’ security or use unauthorized means to access them;
(h) Overload our systems;
(i) Modify Services or tamper with others’ content without permission;
(j) Use Services in critical environments where failures may cause damage or harm;
(k) Access Services improperly or interfere with others’ use of them;
(l) Display Services data externally or in public without prior consent;
(m) Encourage unlawful activity or violate applicable laws;
(n) Breach these Terms.
6.TERMINATION
We hold the right to restrict or suspend user access whenever we choose, for any or no reason, without prior notice. Should a breach of Terms be suspected, access to # 1 Online Eye Test Services may be suspended. We will not be liable for access termination. When deemed necessary, we might alert law enforcement about suspected misuse or fraudulent activity potentially causing termination of your use of the Services.
7.WE DO NOT PROVIDE MEDICAL ADVICE
The information supplied through the Services is for informational purposes or guidance and is not considered professional medical advice. Any information supplied through the Services or by any of our employees or agents, whether by telephone, email, video call, letter, facsimile, or other form of communication, is for informational purposes or general guidance and does not constitute medical or other professional advice. Health-related information provided through the Services is not a substitute for medical advice and it is important that you not make medical decisions without first consulting your personal physician or other healthcare professional.
The online visual acuity test does not substitute for professional eye care evaluation. It’s not designed for diagnosing or treating medical conditions. This test simply aims to give you a general idea about your visual capacity such that you can renew your driver’s license. Follow this test with a full vision assessment from an eye professional. For medical emergencies, call healthcare professionals and 911 immediately.
YOUR USE OF THE SERVICES DOES NOT REPLACE PROFESSIONAL HEALTHCARE OR CREATE A PATIENT-PROVIDER RELATIONSHIP, WHETHER THROUGH OUR SERVICES OR OUR COMMUNICATIONS WITH YOU. NOTHING STATED OR POSTED ON THE SERVICES OR AVAILABLE THROUGH ANY SERVICES IS INTENDED TO BE, AND MUST NOT BE TAKEN TO BE, THE PRACTICE OF MEDICINE OR OTHER PROFESSIONAL HEALTHCARE ADVICE, OR THE PROVISION OF MEDICAL CARE. DO NOT USE THE SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU EXPERIENCE A MEDICAL EMERGENCY, IMMEDIATELY CALL A HEALTHCARE PROFESSIONAL AND 911.
8.INTELLECTUAL PROPERTY
You are granted a revocable, non-exclusive license to access and use the Services, subject to your adherence to these Terms. As a condition of your use of the Services, you warrant to Us that you will not use the Services for any purpose that is unlawful or prohibited by these Terms.
All content within the Services — from text and graphics to software — is the property of # 1 Online Eye Test or its licensors and is protected by copyright and intellectual property laws. You agree to observe and abide by all copyright and other proprietary notices, legends or other restrictions contained in any such content and will not make any changes thereto. No unauthorized use of content is allowed, and the content isn’t for resale. No ownership rights in any content are transferred to you.
9.DIGITAL MILLENNIUM COPYRIGHT ACT COMPLIANCE
# 1 Online Eye Test respects the intellectual property of others, and we ask all of our users to do the same. If you believe that your copyrighted work has been copied and is accessible on a website through which our Services may be accessed in a way that constitutes copyright infringement, please provide # 1 Online Eye Test’s Copyright Agent (as set forth below) with notification containing the following information required by the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):
Please send this notification to our copyright agent at: # 1 Online Eye Test LLC, Attention: Copyright Claims, 44-70 21st St. #3256, Long Island City, NY 11101.
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying # 1 Online Eye Test and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with # 1 Online Eye Test’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, # 1 Online Eye Test has adopted a policy of terminating, in appropriate circumstances, users who are deemed to be repeat infringers. # 1 Online Eye Test may also in its sole discretion limit and/or terminate access to the Services for any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
10.PROVIDING FEEDBACK
You hereby grant # 1 Online Eye Test a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to incorporate and use any of your suggestions, input, or other feedback relating to the Services (collectively, the “Feedback”) for any purpose without notice to, approval by, or compensation to you.
11.THIRD PARTY WEBSITES
The Services may contain links to websites that are owned, controlled, developed, sponsored and/or maintained by third parties and which may be subject to additional terms and conditions ("Third-Party Websites"). If you click on a link to a Third-Party Website, # 1 Online Eye Test will not warn you that you have left the Services or that you are subject to the terms and conditions of another website or third-party service provider. # 1 Online Eye Test does not review, monitor, operate and/or control the Third-Party Websites and # 1 Online Eye Test makes no guarantees, representations, and/or warranties as to, and shall have no liability for, the content, products or services available on or through and/or the functioning of the Third-Party Websites. By providing access to Third Party Websites, # 1 Online Eye Test is not recommending and/or otherwise endorsing the products and/or services provided by the sponsors and/or owners of those websites. Your access to and/or use of the Third-Party Websites, including, without limitation, providing information, materials and/or other content to the Third-Party Websites, is entirely at your own risk. # 1 Online Eye Test reserves the right to discontinue links to any Third-Party Websites at any time and for any reason, without notice.
12.ELECTRONIC COMMUNICATIONS
When you use the Service or send us communications, you agree to communicate with us electronically. This Agreement and any other documents referenced in the Agreement will be considered a “writing” or “in writing” to comply with applicable legal requirements and will be legally enforceable between the parties. Printed versions of this Agreement and the referenced documents will be admissible in any legal proceeding. For clarity, mere use of the Service does not constitute electronic communication.
13.ERRORS AND OMISSIONS
Information errors or omissions may exist on the Services, possibly affecting product descriptions, promos, or availability. We reserve the right to correct any errors, inaccuracies, or omissions, and to change or update information or cancel transactions if any information in the Services is inaccurate at any time without prior notice. We are under no obligation to update Information in the Services unless mandated by law. WE ARE NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF INFORMATION PROVIDED BY USERS OF THE SERVICES OR ANY OTHER DATA OR INFORMATION PROVIDED OR RECEIVED THROUGH THE SERVICES. WE RESERVE THE RIGHT TO CORRECT ANY ERRORS OR OMISSIONS IN THE SERVICES.
14.INDEMNITY
YOU AGREE TO RELEASE, INDEMNIFY, AND HOLD HARMLESS # 1 ONLINE EYE TEST AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, REPRESENTATIVES, AND THIRD PARTIES, FOR ANY LOSSES, COSTS, LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES) RELATING TO OR ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SERVICES, YOUR VIOLATION OF THESE TERMS OR YOUR VIOLATION OF ANY RIGHTS OF A THIRD PARTY, OR YOUR VIOLATION OF ANY APPLICABLE LAWS, RULES OR REGULATIONS. WE RESERVE THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH US IN ASSERTING ANY AVAILABLE DEFENSES. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” IF YOU ARE A RESIDENT OF ANOTHER JURISDICTION, YOU WAIVE ANY COMPARABLE STATUTE OR DOCTRINE.
15.HARM FROM COMMERCIAL USE
If commercial or content republishing harm arises, financial recovery might not suffice. The appropriate remedy will include injunctive relief to restrict such activities.
16.DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” # 1 ONLINE EYE TEST DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, # 1 ONLINE EYE TEST MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
# 1 ONLINE EYE TEST DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD-PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED OR OBTAINED FROM THIRD-PARTY PROVIDERS IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
# 1 ONLINE EYE TEST DOES NOT CONTROL, MANAGE OR DIRECT ANY THIRD-PARTY PROVIDERS. THIRD-PARTY PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF # 1 ONLINE EYE TEST. IF A DISPUTE ARISES BETWEEN YOU AND OR ANY OTHER THIRD PARTY, YOU RELEASE # 1 ONLINE EYE TEST FROM LOSSES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
17.LIMITATION OF LIABILITY
IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY THIRD PARTY CLAIMING UNDER OR THROUGH YOU) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SITE AND/OR THE SERVICES. THESE EXCLUSIONS APPLY TO ANY CLAIMS FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED IN ACCORDANCE HEREIN TO THE MAXIMUM EXTENT PERMITTED BY LAW.
UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF THE # 1 ONLINE EYE TEST PARTIES TO YOU FOR ANY CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE, REGARDLESS OF THE FORM OF THE ACTION, EXCEED THE GREATER OF (a) THE TOTAL AMOUNT OF FEES, IF ANY, THAT YOU PAID FOR THE SERVICES, OR (b) $100; EXCEPT THAT, FOR ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF YOUR USE OF SERVICES, IN NO EVENT SHALL OUR CUMULATIVE LIABILITY THEREOF REGARDLESS OF THE FORM OF ACTION EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, REMITTED TO AND RETAINED BY # 1 ONLINE EYE TEST FOR PROVIDING SERVICES FOR APPOINTMENTS MADE BY YOU IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE APPLICABLE CLAIM.
THE LIMITATIONS OF THIS SECTION WILL NOT LIMIT OR EXCLUDE LIABILITY FOR THE GROSS NEGLIGENCE, FRAUD, OR INTENTIONAL MISCONDUCT OF THE # 1 ONLINE EYE TEST PARTIES OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW.
18.DISPUTE RESOLUTION
Both parties agree that any disputes relating to your Service usage, validity, enforcement, or termination of the Agreement will be handled per this section. If you have any dispute with us, you and # 1 Online Eye Test agree that before taking any formal action, you will contact us at support@online-eye-test.com with a description of the dispute and your contact information and allow thirty (30) days to pass, during which we will attempt to reach an amicable resolution of any issue with you.
19.MANDATORY ARBITRATION
BY AGREEING TO THESE TERMS, YOU AGREE THAT YOU ARE REQUIRED TO RESOLVE ANY CLAIM THAT YOU MAY HAVE AGAINST # 1 ONLINE EYE TEST ON AN INDIVIDUAL BASIS IN BINDING ARBITRATION AND NOT AS A CLASS, COLLECTIVE, COORDINATED, CONSOLIDATED, MASS AND/OR REPRESENTATIVE ACTION. BINDING ARBITRATION IS A PROCEDURE IN WHICH A DISPUTE IS SUBMITTED TO ONE OR MORE ARBITRATORS WHO MAKE A BINDING DECISION ON THE DISPUTE. IN CHOOSING BINDING ARBITRATION, YOU AND # 1 ONLINE EYE TEST ARE OPTING FOR A PRIVATE DISPUTE RESOLUTION PROCEDURE WHERE YOU AGREE TO ACCEPT THE ARBITRATOR’S DECISION AS FINAL INSTEAD OF GOING TO COURT. YOU AND # 1 ONLINE EYE TEST ARE EACH WAIVING YOUR RIGHT TO A JURY TRIAL.
(a) Procedure. You and # 1 Online Eye Test agree that any dispute, claim or controversy arising out of or relating to (i) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (ii) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms will be settled by binding arbitration between you and # 1 Online Eye Test, and not in a court of law. The arbitration shall be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules") then in effect, except as modified by this Arbitration Agreement. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable.
(b) Federal Arbitration Act. Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of New York. The Arbitrator’s award shall be final, and judgment may be entered upon it in any court having jurisdiction. In the event that any legal or equitable action, proceeding or arbitration arises out of or concerns these Terms, the prevailing party shall be entitled to recover its costs and reasonable attorney’s fees. The parties agree to arbitrate all disputes and claims in connection with these Terms or any disputes arising as a result of these Terms, whether directly or indirectly, including Tort claims that are a result of these Terms. The entire dispute, including the scope and enforceability of this arbitration provision, shall be determined by the Arbitrator. YOU UNDERSTAND AND AGREE THAT YOU ARE GIVING UP THE RIGHT TO GO TO COURT AND HAVE A DISPUTE HEARD BY A JUDGE OR JURY. This Arbitration Agreement shall survive the termination of these Terms.
(c) Exceptions. There are only two exceptions to this Agreement to arbitrate: (i) if either party reasonably believes that the other party has in any manner violated or threatened to infringe the intellectual property rights of the other party, the party whose rights have been violated may seek injunctive or other appropriate interim relief without bond in any court of competent jurisdiction or (ii) each party will retain the right to seek relief in a small claims court for disputes or claims within the scope of the jurisdiction of such courts.
(d) Costs of Arbitration. You and # 1 Online Eye Test agree that payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules unless otherwise stated in this Agreement to arbitrate. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous or without merit, you agree that # 1 Online Eye Test is relieved of its obligation to reimburse you for any fees associated with the arbitration.
(e) Amendments. Notwithstanding any provision in this Agreement to the contrary, You and We agree that if We make any amendment to this Agreement to arbitrate in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against # 1 Online Eye Test prior to the effective date of the amendment. However, the amendment shall apply to all other disputes or claims governed by the Agreement to arbitrate that have arisen or may arise between you and # 1 Online Eye Test If you do not agree to these amended terms, you shall not access or use the Services, and the revised terms will not bind you.
(f) Forum. If the Agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to arbitrate, as a result of a decision by the arbitrator or court order, you agree (except as otherwise provided by law) that any claim or dispute that has arisen or may arise between you and # 1 Online Eye Test must be resolved exclusively by a state or federal court located in New York County, New York. You and # 1 Online Eye Test agree to submit to the exclusive personal jurisdiction of the courts situated in New York City, New York, for the purpose of litigating all such claims or disputes.
(g) Opt-Out Procedure. If you are a new user, you can choose to reject the agreement to arbitrate provision ("Opt-out") by emailing us an Opt-out notice to support@online-eye-test.com ("Opt-Out Notice"). The Opt-out Notice must be received no later than thirty (30) days after the date you accept the terms of this Agreement for the first time. If you are not a new user, you have until thirty (30) days after the posting of the new terms to submit an arbitration Opt-out notice. To Opt-out, you must email your name, address (Including street address, city, state, and zip code), email address to which the Opt-out applies, and an unaltered digital image of your valid driver’s license to: support@online-eye-test.com. This procedure is the only way. You can Opt-out of the Agreement to arbitrate. If you Opt-out of the Agreement to arbitrate, all other parts of this Agreement and this Disputes Section will continue to apply to you. Opting out of this Agreement to arbitrate does not affect any previous, other, or future arbitration agreements that you may have with # 1 Online Eye Test. By agreeing to this agreement, you now irrevocably waive any right you may have (i) to a court trial (other than small claims court as provided above), (ii) to serve as a representative, as a private attorney general, or in any other representative capacity, or to participate as a member of a class of claimants, in any lawsuit, arbitration or other proceeding filed against Us and/ or related third parties, and (iii) to a trial by jury even if any arbitration is not required under these Terms.
(h) Statute of limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the site, services, or this agreement must be filed within one (1) year after such claim or cause of action arises, or it will be forever barred.
(i) Applicable Law. You and We agree that United States federal law, including the Federal Arbitration Act, and (to the extent not inconsistent with or pre-empted by federal law) the laws of the State of New York, without regard to conflict of laws principles, will govern all Covered Dispute Matters. Such body of law will apply regardless of Your residence or the location of where You use the Services.
20.CLASS ACTION WAIVER
Any arbitration or action under these Terms will take place on an individual basis; class arbitrations and class/representative/collective actions are not permitted. THE PARTIES AGREE THAT A PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PUTATIVE CLASS, COLLECTIVE AND/OR REPRESENTATIVE PROCEEDING, SUCH AS IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION AGAINST THE OTHER. Further, the arbitrator or judge may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
21.ENTIRE AGREEMENT
This document constitutes the entire agreement regarding Service engagement and overrides any prior communication or proposal. This Agreement prevails over all related discussions, whether electronic, oral or written, between you and us.
22.MODIFICATION TO THESE TERMS
We reserve the right, in our sole discretion, to change the Terms under which the Services are offered. The most current version of the Terms will supersede all previous versions. We may alter or amend our Terms by giving you reasonable notice. You will be deemed to have accepted any amendment to these Terms by your continued to use the Services.
23.RELIANCE ON INFORMATION POSTED
Commentary and other materials posted on the Services is not intended to amount to advice You should rely upon. We therefore disclaim all liability and responsibility arising from any reliance placed on any materials by included within the Services, by You or by anyone who may be informed of any of its contents.
24.RELATIONSHIP BETWEEN THE PARTIES
# 1 Online Eye Test is an independent contractor, and nothing in these Terms shall be construed as making Us a partner, joint venturer, agent, legal representative, employer, contractor, or employee of a party making use of the Services.
25.FORCE MAJEURE
In the event that We are prevented or delayed from performing, in whole or in part, as a result of an event or series of events, including, but not limited to, acts of God; acts of war, acts of terrorism, insurrection, riots, civil disorders, or rebellion; quarantines, pandemics or epidemics; embargoes; government mandates; labor strikes; error or disruption to major computer hardware or networks or software failures; or other causes beyond Our reasonable control, We shall be excused from performance under these Terms.
26.SEVERABILITY AND NO WAIVER
The unenforceability of any provision of this Agreement will not affect the enforceability of any other provision. If any provision is found to be void, invalid, or unenforceable, then it will be revised and interpreted to accomplish the objectives of such provision to the extent possible under applicable law, and the remaining provisions will continue in full force and effect. Our non-enforcement of any provision of this Agreement or right under applicable law will not be construed as our waiver of any enforcement rights under the same or different circumstances at any time in the future. We reserve all rights under applicable law.
27.TRADE AND ECONOMIC SANCTIONS AND EXPORT CONTROLS
The Services may be subject to economic and trade sanctions and export control laws in your applicable jurisdiction. You agree that you will not violate such laws and that you will be solely responsible for any such violation to the extent permitted by law. You represent that neither you, any business you represent, nor any beneficial owner of you or your business are: (i) a citizen or resident of a geographic area in which access to or use of the Service is prohibited by applicable law, decree, regulation, treaty, or administrative act; (ii) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (iii) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or otherwise ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Service.
28.HEADINGS AND INTERPRETATION
The headings and sub-headings in this Agreement are included for reference purposes only and will not affect the meaning or interpretation of this Agreement in any way. The words “include,” “includes,” or “including” will be deemed to be followed by “without limitation.” This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the drafting party.
29.TERMS SPECIFIC TO CALIFORNIA USERS
Under California Civil Code Section 1789.3, Users from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
30.NOTICES
You agree that we will provide notices and messages to you within the Service or if required, via email or regular mail. You may provide # 1 Online Eye Test notice, and such notice will be deemed provided once received by # 1 Online Eye Test notice, addressed via mail to the address noted in the below “Contact Us” section.
31.CONTACT US
If you have any questions about these Terms or would like to report a violation of these Terms, please contact us at support@online-eye-test.com.