Application of this Agreement
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO THE USE OF THE DIRECT VISION SITE AND RECEIPT OF RELATED SERVICES.
The terms and conditions of this agreement (the “Agreement”) will govern the relationship between Direct Vision and its affiliates and the individual or company or other entity (the “Customer”) who uses the associated website and in connection with all related services (collectively, the “Direct Vision Site”).
BY ACCESSING OR USING ANY OF THE DIRECT VISION SITE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS SET OUT IN THIS AGREEMENT YOU MAY NOT ACCESS OR USE ANY OF DIRECT VISION SITE.
This Agreement and the rights and obligations of the parties involved, including all non-contractual obligations arising under or in connection with this Agreement, shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to choice or conflicts of law rules. In the event of a dispute, claim or controversy arising out of or relating to this Agreement, you irrevocably consent to submit to the exclusive jurisdiction of the courts of the Province of British Columbia for any claim, proceeding or action under the Terms of Service, except for any claim, proceeding or action by Direct Vision or its affiliates for equitable relief.
Customer’s licence to the direct vision site
Direct Vision hereby grants, and the Customer hereby accepts, subject to the Terms and Conditions of this Agreement, a non-assignable and non-exclusive license to access the Direct Vision website. The Customer shall not permit any other party to access or use the Direct Vision site using the Customer’s user ID or password. The Customer will be completely responsible for any use of their user ID or passwords by any party other than themselves. The Customer agrees to keep all user IDs and passwords secret and safe. Direct Vision may monitor the Customer’s use of the Direct Vision site to ensure compliance with this Agreement. No copy of any software or any source code will be made available or delivered to the Customer.
In order to purchase any Product, some personal information may be required from the Customer in order to complete the transaction and ensure that the order has been fulfilled correctly. The Customer agrees to (a) provide true, accurate, current and complete information as requested and (b) promptly update this information as required to keep it true, accurate, current and complete.
For certain Products, you must provide a valid prescription. You hereby agree not to order any Product that requires a valid prescription unless you have a valid prescription, provided by an Optometric/Medical professional. You hereby ensure and warrant to Direct Vision, by placing your order, that any information provided to Direct Vision matches a valid prescription given by an appropriate licensed healthcare professional. Furthermore, Direct Vision is hereby authorized to contact your professional eye care provider to confirm the veracity of information provided by you and to inquire about any other information that may otherwise be of relevance.
Direct Vision has made every possible effort to provide the Customer with accurate depictions of the Products’ colour, physical dimensions, shape and make. However, Direct Vision does not guarantee that the colours, product descriptions and images of the Products on the Direct Vision are accurate, complete, current or error-free. If you purchase a Product and the Product does not match the colours, product descriptions and images on the Direct Vision Site, your sole remedy and recourse is to return the Product in accordance with our return policy.
Fees and Payment
If you order any Product from the Direct Vision site, you agree to pay for the same, including all taxes, in accordance with the terms of payment set out at the time of purchase.
Customer shall not, in respect of the Direct Vision site:
- Deposit or process any Customer Data which infringes or potentially infringes any third party intellectual property or proprietary rights including without limitation, copyright, patent, trademark or trade secret, right of publicity or privacy;
- Deposit or process any Customer Data in violation of any applicable laws;
- Deposit or process any Customer Data which is harmful or potentially harmful including, without limitation, that which places the integrity or security of any computer system at risk or which is or contains a virus, Trojan horse, worm, time bomb or other harmful or invasive computer program or file;
- Undertake any activity which creates liability or damage or potentially creates liability or damage to Direct Vision, any Supplier or any other user or creates damage or potentially creates damage to the Direct Vision site or the computer systems or data of Direct Vision, any Supplier or any other user; or
- Undertake any activity which creates undue burden or interferes with the Direct Vision site or its use by other users.
The Customer shall not attempt to circumvent any security measure implemented in the Direct Vision site or attempt to gain access to any portion of the Direct Vision site other than that which is needed to access and use the Direct Vision site for the express purpose of browsing or purchasing glasses.
In the event any activity of Direct Vision arises in connection with any activities of the Customer which is in breach of this section, then the Customer will pay Direct Vision its fees for the time spent by Direct Vision personnel on such activities on a time, expense and materials at the standard rates provided by Direct Vision for the same.
Support and Maintenance
Direct Vision shall provide email support with respect to the use of and access to the Direct Vision site during the hours of 9 a.m. to 4:30 p.m. EST Monday to Friday, excluding statutory holidays observed by Direct Vision at the company’s discretion. Direct Vision may change the hours and days of support without notice or reason.
Direct Vision reserves the right to limit this support in the event the Customer is misusing or straining support services.
Direct Vision may, in its sole discretion, correct defects and errors in the Direct Vision site. The Customer acknowledges and agrees that the Customer’s sole remedy and recourse in connection with any defect or error in the Direct Vision site or any failure to correct the same is for the Customer to cease all use of the Direct Vision website.
Direct Vision may occasionally update the Direct Vision site, which will render the site unusable for a short period of time.
Direct Vision will protect the Site and Customer Data against unauthorized access within reason, through use of industry standard security technology. However, the Customer acknowledges and agrees that applications and systems which are made available over the Internet are inherently insecure Direct Vision and its Suppliers shall have no obligation or liability to the Customer for any breach of security measures.
Customer hereby authorizes Direct Vision to conduct all activities required under this Agreement including storing, reproducing and processing the Customer Data and the use, disclosure and transmission of the same pursuant to and in connection with the Direct Vision Site and such other tasks, duties or activities reasonably necessary to carry out the intent of this Agreement.
Direct Vision may use your information in order to customize the Site to the needs of the Customer and enhance the overall experience of our applications for other Customers. Direct Vision may release personal information if required by law or in the good-faith belief that such action is necessary or appropriate.
Links to third party sites
This Website may contain hyperlinks to websites operated and owned by parties other than Direct Vision Such hyperlinks are provided solely for your reference only and Direct Vision makes no representations or warranties with respect to such sites or the contents contained therein. Any hyperlinks to third party websites do not imply any endorsement of the material contained therein or any association to the respective operators and owners of same.
Direct Vision provides the highest quality products available and therefore warranties against manufacturers defects for a period of 365 days from the time of delivery. In the event of a problem please contact our customer service department obtain a return label to facilitate a refund or exchange.
Warranty disclaimer, limitation of liability and liability disclaimer
Direct Vision does not represent or warrant that all defects and errors in the Direct Vision Site, the Services can or will be corrected. Direct Vision and its Suppliers shall have no liability or obligation to Customer or any third party in the event of any defect or error or any omission in the Direct Vision Site or the Services.
THE DIRECT VISION SITE AND SERVICES ARE PROVIDED STRICTLY ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE EXPLICITLY SET OUT HEREIN, DIRECT VISION DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS CONCERNING THE DIRECT VISION SITE , ALL PRODUCTS AND THE SERVICES, INCLUDING ANY AND ALL WARRANTIES AND CONDITIONS OF DESIGN, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, PERFORMANCE AND ANY AND ALL WARRANTIES AND CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, CUSTOM OR TRADE USAGE AND THOSE WHICH MAY BE IMPLIED BY STATUTE.
UNDER NO CIRCUMSTANCES SHALL DIRECT VISION OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR RELATED EXPENSES INCURRED OR SUFFERED BY CUSTOMER WHICH MAY ARISE IN CONNECTION WITH THE USE OR INABILITY TO USE THE SITE, ANY PRODUCT OR SERVICES, OR ANY DEFECT OR ERROR IN THE SITE, ANY PRODUCT OR SERVICES, WHETHER OR NOT DIRECT VISION OR ANY OF ITS SUPPLIERS WAS TOLD OF OR KNEW OF OR OUGHT TO HAVE REASONABLY KNOWN OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR INJURY AND INCLUDING BUT NOT LIMITED TO THOSE RESULTING FROM DEFECTS IN THE SITE, ANY PRODUCT OR SERVICES OR LOSS OR INACCURACY OF DATA OF ANY KIND OR INCORRECT RESULTS PRODUCED BY THE SITE, ANY PRODUCT OR SERVICES. BECAUSE SOME STATES AND PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES AND PROVINCES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
DIRECT VISION AND ITS SUPPLIERS’ COLLECTIVE LIABILITY UNDER THIS AGREEMENT AND IN CONNECTION WITH THE USE OF THE SITE, ANY PRODUCT OR THE SERVICES, OR ANY DEFECT OR ERROR IN THE SITE, ANY PRODUCT OR SERVICES, UNDER ANY AND ALL CIRCUMSTANCES, ARISING IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO DIRECT VISION FOR PRODUCTS ORDERED IN THE 365 DAY PERIOD IMMEDIATELY PRECEDING THE FINAL ACT OR EVENT WHICH GAVE RISE TO ANY SUCH LIABILITY. ALL SUCH LIABILITIES SHALL, IN AGGREGATE, BE SUBJECT TO THE DESCRIBED LIMITATION. THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Survival. The rights and obligations under Security, Data, Personal Information, Your Submissions, Title, Warranty Disclaimer, Limitation of Liability and Liability Disclaimer, Basis of Bargain, Survival and Attornment shall survive the termination of this Agreement for whatever reason. Termination does not relieve any party of any liability accruing at the date of termination including, without limitation, any fees due.
Suppliers. All Suppliers shall be entitled to all remedies, disclaimers of warranty, disclaimers of liability, limitations of liability and other provisions herein which indicate as being in favour of Suppliers, including without limitation, under the Warranty Disclaimer, Limitation of Liability and Liability. Customer agrees that all Suppliers shall be, as applicable: (i) entitled to raise any such disclaimers of warranty, disclaimers of liability and limitations of liability in defence of any claim by Customer; and (ii) entitled to any such remedy. Customer agrees that each Supplier shall be a third party beneficiary under this Agreement for the sole purposes of the foregoing and that Suppliers would not be suppliers in connection with the Direct Vision and/or the Services if they were not entitled to the benefits of the foregoing.
Waiver. A party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right.
Headings. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties and supersede and cancel all previous negotiations, agreements, commitments and writings in respect of the subject-matter hereof and there are no understandings, representations, conditions made or assumed by the parties, other than those expressly contained in this Agreement.
Severability. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall be invalid or unenforceable to any extent the remainder of this Agreement and the application of such term, covenant or condition to a party or circumstance other than those to which it is held invalid or unenforceable shall not be affected thereby and each remaining term, covenant or condition of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law.
Governing Law. This Agreement will be governed by and interpreted and enforced in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein.
Attornment. The parties do hereby agree to submit and attorn to the exclusive jurisdiction of the Courts of British Columbia for all matters arising out of or relating to this Agreement. Notwithstanding the foregoing, any party may apply to any court of competent jurisdiction for any equitable relief by way of restraining order, injunction, decree, specific performance, mandatory injunction or otherwise where damages could not adequately be compensated by monetary award and where the Courts of British Columbia would not have adequate jurisdiction to grant an effective equitable remedy.
Rights and Remedies. The rights and remedies of a party hereunder are cumulative and no exercise or enforcement by a party of any right or remedy hereunder shall preclude the exercise or enforcement by the party of any other right or remedy hereunder or which the party is otherwise entitled by law or equity.
In this Agreement, the following terms shall have the indicated meaning:
“Customer Data” means any data or information which Customer creates on or provides to the Direct Vision Site.
“Personal Information” means any information about any identifiable individual including.
“Product” means any product that is made available from the Direct Vision Site, including contact lenses, glasses and related products.
“Service” means any service provided for the benefit of Customer in connection with this Agreement or in connection with the Direct Vision Site including, without limitation, the maintenance and support services, the delivery of any Product purchased and “Service” also includes the functionality of and the computer processing provided by the Direct Vision Site.
“Site” refers to the website for Direct Vision.
“Supplier” means any licensor, supplier or service provider that: (i) provides any services in connection with the Direct Vision Site or any Services, or (ii) developed or licenses any part of the Direct Vision Site.