Terms of Service

Last Updated February 21st, 2015

Your acceptance of these Terms is required in order for you to access and use the EYES/ONLY Solution. By registering with EYES/ONLY, or by using the EYES/ONLY Solution in whole or in part, you are entering into a legally binding agreement with us. Please read these Terms carefully. If you do not agree to these Terms, you cannot use the EYES/ONLY Solution. We reserve the right at our discretion to propose modifications to these Terms periodically. We will notify you of such changes via an email sent to the email address we have on file for you or via other notification mechanisms. Your continued use of and access to the EYES/ONLY Solution after notice of such modifications indicates your acceptance of and agreement to the modified Terms. If you violate any of these Terms, your permission to use the EYES/ONLY Solution automatically terminates, unless such violation is waived by us in writing in our sole discretion.

 

The EYES/ONLY Solution is intended solely for persons who are 18 or older. Any access to or use of the EYES/ONLY Solution by anyone under 18 is expressly prohibited. By accessing or using the EYES/ONLY Solution, you represent and warrant that you are 18 or older.

 

You acknowledge that use of the EYES/ONLY Solution requires connection to, and data transfers over, the network and therefore may impact your data usage charges imposed by your wireless operator or other service provider. It is your responsibility to obtain at your cost all equipment, software and internet access necessary to use the EYES/ONLY Solution.

 

DEFINED TERMS

 

"App": the EYES/ONLY smartphone application available for download on third party application stores such as iTunes App Store and Google Play, including as may be updated or modified by EYES/ONLY in its sole discretion.

 

"Commercial Use": any commercial activity, including: (a) charging for access to the EYES/ONLY Solution or Content or for the Service's functionality or data directly or indirectly; (b) utilizing the EYES/ONLY Solution in whole or in part in any commercial website or application; and (c) emulating or framing the EYES/ONLY Solution in whole or in part, or passing it off as your own.

 

"Content": offers, promotions, messages, reviews, documents, advertisements, edits, variations, images, graphics, photos, video, audio, messages, polls, queries, posts, comments, signals, votes, ratings, rankings, and any other text, content, information or data, including profile data and any of the foregoing related to EYES/ONLY Offerings (such as EYES/ONLY Client reviews), that is created, derived from or accessible via use of the EYES/ONLY Solution, or otherwise made available by and to EYES/ONLY Clients, including any of the foregoing provided by an EYES/ONLY Client, EYES/ONLY Provider, or by us.

 

"EYES/ONLY": Eyes Only, Inc., a corporation organized under the laws of Delaware, USA. In these Terms, EYES/ONLY is referred to by "us", "we" or "our", as applicable.

 

"EYES/ONLY Client":  you and any other user of all or any part of the EYES/ONLY Solution.

 

"EYES/ONLY Offerings": any offers, promotions, experiences, products, services, rental space or equipment, goods, and solutions offered via the EYES/ONLY Solution.

 

"EYES/ONLY Provider": any third party that makes available EYES/ONLY Offerings via the EYES/ONLY Solution.

 

"EYES/ONLY Solution":  the App, the Site and the Services.

 

"Non-Commercial Use": any activity that is not Commercial Use, including personal, individualized use by a single person for that person's own benefit and the benefit of that person's close circle of friends, family or colleagues.

 

"Services": the services, features, application programming interfaces (APIs), and functionality accessible via use of the Site and the App, including functionality for the offering and matching of EYES/ONLY experiences and engagements, the bringing together of EYES/ONLY Providers with EYES/ONLY Clients, and the provision, modification, display, and management of Content, as well as any upgrades, enhancements, customizations, error corrections, deprecations, or other changes to such services that we may from time to time in our sole discretion implement.

 

"Site":  eyeson.ly and any web pages that are a part of eyeson.ly.

 

"Terms":  these Terms of Service and the EYES/ONLY Privacy Policy, as both may be modified from time to time.

 

"You" or "your": the individual using the EYES/ONLY Solution, or clicking "accept" or "agree" where indicated, or downloading or using the App or the Site, and thereby becoming bound by these Terms, and the company or other legal entity represented by such individual or for whom such individual uses the EYES/ONLY Solution, and all affiliates thereto.

 

1.0    ACCESS AND LICENSED RIGHTS

 

1.1    EYES/ONLY Solution Access.  Subject to your compliance with these Terms, we hereby grant to you, solely for your own Non-Commercial Use, the non-exclusive, non-transferable and non-sublicensable (a) access to the EYES/ONLY Solution; (b) right to use and display Content as permitted by the EYES/ONLY Solution; and (c) right to install and use the App on any single mobile computing device that you own or control on which the App is intended to run. Any distribution of the App is forbidden. Breach of these terms will result in automatic termination of your access to the EYES/ONLY Solution and Content, unless waived by us in writing in our sole discretion. We may modify the functionality, features, content and other attributes of the EYES/ONLY Solution in our discretion without notice.

 

1.2    EYES/ONLY App. The App is our confidential information protected by intellectual property laws and treaties and is licensed, not sold. All rights not expressly granted in section 1.1 are reserved. No other right or license will be implied by conduct or otherwise. We and/or our licensors retain all right, title and interest in the App, all copies of the App, and associated intellectual property rights. You acknowledge that the structure, sequence, organization and code of the App are our valuable trade secrets and copyrighted confidential information. You will not reverse engineer, modify, decompile, disassemble or otherwise attempt to derive the source code or other information from the App, except and only to the extent that: (a) such activity is expressly permitted by directly applicable law notwithstanding this limitation; and (b) it is essential to engage in such activity in order to obtain information needed to achieve interoperability of independently created software with the App or as otherwise provided by applicable law; and (c) we have not made such information available to you (for a fee or otherwise) under reasonable terms and conditions. Any information supplied to or obtained by you under this section may only be used by you for the purpose described in this section, and will not be disclosed to any third party or used to create any software which is substantially similar to the App.

 

1.3    Commercial Use. You may not use the EYES/ONLY Solution for any Commercial Use except as separately agreed between us in a signed writing. Such activity is not licensed or authorized under these Terms and if undertaken may result in pursuit of all available remedies for intellectual property rights (including copyright infringement), the availability of which you hereby acknowledge in the event of breach of these Terms or the EULA.

 

1.4    Licenses to Us.  You and each EYES/ONLY Client hereby grant to us the perpetual, irrevocable, worldwide, royalty-free, fully paid-up, sublicensable, non-exclusive right and license to use, reproduce, modify, create derivative works of, perform, display and distribute without restriction (including via any medium now known or later devised) Content, in whole or in part, for commercial and non-commercial purposes, including for purposes of providing, developing, improving, making available (including via public search engines), promoting and marketing the EYES/ONLY Solution and EYES/ONLY Offerings. Further, you agree that we are free to use and implement in perpetuity without compensation, attribution or obligation to you any feedback, benchmarks, requirements, suggestions, criticisms, improvements, recommendations, ideas, and error corrections provided by you to us relating to the EYES/ONLY Solution.

 

1.5    Reservation of Rights.  No other right or license to the EYES/ONLY Solution or Content is provided, and no other license will be implied, by course of conduct or otherwise. We grant no right or license with respect to our patents. Each EYES/ONLY Client retains all right, title and interest in and to such EYES/ONLY Client's Content, and all associated intellectual property rights, subject to these Terms. Subject to these Terms, we retain all right, title and interest in and to the EYES/ONLY Solution and our Content, and all associated intellectual property rights. Except as expressly authorized by these Terms, you will not use, reproduce, or distribute Content. The user interface, user experience, icons, presentation layer and elements, terminology, gamification, reports, layouts, and screen displays of or generated by the EYES/ONLY Solution are our copyrightable content, our trade dress and our trademarks and servicemarks, and will not be reproduced, distributed, or displayed except, and are licensed to you solely, for your internal use in accordance with these Terms, and not for external use or exploitation.

 

2.0    TERMS APPLICABLE TO CONTENT

 

2.1    Specific Prohibited Uses. You will not (a) use the EYES/ONLY Solution in a manner that gives you or any other person access to mass downloads or bulk feeds of any Content; or (b) delete, obscure, or in any manner alter any message, warning or link that appears in the EYES/ONLY Solution or the Content. EYES/ONLY Clients may not use any information obtained from the EYES/ONLY Solution to advertise to, solicit, or sell to any other person without our prior written consent.

 

2.2    Handling of Your Content. The App temporarily stores your Content in a manner such that deletion or malfunction of the App or malfunction of the Device on which the App is installed may result in the permanent deletion of your Content. Content is not uploaded and stored on our servers until the Content is uploaded via the upload mechanism in the App. We may at any time filter, alter, modify, or delete such Content in whole or in part before making it available on the Site and via the Service in our sole discretion, including in order to render the Content suitable for use with the EYES/ONLY Solution. You hereby waive any moral, neighboring or other rights you may have (including rights in the nature of attribution, integrity, privacy, paternity, and rights to object to derogatory treatment) in your Content that would otherwise preclude us from filtering, altering, deleting, or using, copying or distributing, in accordance with these Terms, your Content. You acknowledge and agree that we may continue to store, display and otherwise exercise the rights set forth in section 1.3 above with respect to your Content even after termination, deactivation, or archiving of your account.

 

2.3    Propriety of Content.  All Content, whether publicly posted or privately transmitted, is the sole responsibility of the EYES/ONLY Client or EYES/ONLY Provider from which such Content originated. You will not transmit Content or otherwise conduct or participate in any activities on or via the EYES/ONLY Solution which, in our sole judgment, is likely to be prohibited by law, or is violative or in breach of third party rights in any applicable jurisdiction, including without limitation laws governing libel and defamation, encryption of software, the export of technology, the transmission of obscenity, or the permissible uses of intellectual property. You agree not to upload, download, display, perform, transmit, or otherwise distribute any Content, or otherwise engage in any activity in connection with the EYES/ONLY Solution, that (a) is hateful, offensive, racist, bigoted, libelous, defamatory, obscene, abusive, pornographic, lewd, erroneous, stalking, or threatening; (b) advocates or encourages conduct that could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or foreign law or regulation; (c) constitutes infringement of the intellectual property rights of any party, including rights to the use of name and likeness, or violation of a right of privacy; (d) creates an impression that is incorrect, misleading, or deceptive, including without limitation by impersonating others or by otherwise misrepresenting identity or affiliation with a person or entity; or (e) divulges other people's private or personally identifiable information without their express authorization and permission. We may, in our sole discretion, terminate the Services as to any Content that we believe in our sole judgment is not in compliance with these Terms. We may preserve and disclose Content if required to do so by law or judicial or governmental mandate or as reasonably determined useful by us to protect the rights, property or safety of EYES/ONLY, EYES/ONLY Clients, EYES/ONLY Providers, and/or the public.

 

2.4    Use of Content.  Each EYES/ONLY Client, by using the EYES/ONLY Solution, may be exposed to Content that is offensive, indecent, objectionable, illegal, infringing, false or erroneous. Each EYES/ONLY Client must evaluate, and will bear all risks associated with, the use of any Content and the engagement with any other EYES/ONLY Client, including any reliance on the quality, integrity, accuracy, completeness, or usefulness of such Content or the purported identity of any EYES/ONLY Provider. We may refuse or delete any Content, including Content of which we become aware that fails to fulfill the purpose of the EYES/ONLY Solution, is in breach of these Terms, is otherwise contrary to law, or is otherwise inappropriate in our discretion. We do not guarantee the accuracy, integrity or quality of any Content. Under no circumstances will we be liable in any way for any Content, including, but not limited to, liability for any errors, inaccuracies, or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of, or action taken or not taken in response to, any Content. We will have no obligation or liability to you or any EYES/ONLY Client to maintain, store, or license Content, protect and maintain Content owners' intellectual property rights, or to enforce these Terms. You hereby waive and release any claims you may have against us arising or resulting from use or misuse of Content or your inability to effectively use Content, your failure to comply with these Terms, or for any act, omission, or conduct of any EYES/ONLY Provider or EYES/ONLY Client.

 

3.0    EYES/ONLY OFFERINGS; THIRD PARTY SITES

 

3.1    Third Party Sites.  The EYES/ONLY Solution, Content, EYES/ONLY Providers, or a third party may provide links to other websites or login access via such links. Such links will not be construed as an endorsement or sponsorship by us. We exercise no control over such other websites and web-based resources and are not responsible or liable for the availability thereof or the content, advertising, products or other materials thereon. We will not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by any user in connection such other sites and resources.

 

3.2    EYES/ONLY Providers. You understand that we make no guarantees, either express or implied, regarding your experience with EYES/ONLY Providers. You are solely responsible for your interactions and agreements with other EYES/ONLY Providers and your compliance with the terms, conditions and policies associated with EYES/ONLY Offerings. You understand that we do not conduct criminal, credit or other background checks or any other screening or filtering of EYES/ONLY Providers and we do not verify the statements of EYES/ONLY Providers. You are solely responsible for the payment of all applicable fees associated with any EYES/ONLY Offerings. YOU UNDERSTAND AND AGREE THAT EYES/ONLY IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN YOU AND EYES/ONLY PROVIDERS, NOR IS EYES/ONLY A BROKER, AGENT OR INSURER, OR IN ANY WAY BOUND BY ANY COMMITMENTS MADE BY EYES/ONLY PROVIDERS OR EYES/ONLY CLIENT. EYES/ONLY HAS NO CONTROL OVER THE PROVISION OF EYES/ONLY OFFERINGS OR THE CONDUCT OF EYES/ONLY PROVIDERS OR EYES/ONLY CLIENTS, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. You should make whatever investigation you deem necessary or appropriate before purchasing any EYES/ONLY Offering, including to determine whether: (a) the EYES/ONLY Provider in question is qualified to provide the EYES/ONLY Offering as described or promoted; and (b) the EYES/ONLY Offering is of the care and quality required and meets your particular purpose. Each EYES/ONLY Provider is solely responsible for the care and quality of the EYES/ONLY Offerings.

 

3.3    EYES/ONLY Provider Transactions. All EYES/ONLY Offerings may change at any time without notice. The EYES/ONLY Provider is exclusively responsible for the acceptance, delivery and fulfillment of your order. The EYES/ONLY Provider may require completion of an investigation into your creditworthiness prior to consummating the transaction or providing the EYES/ONLY Offering. Finalizing the process for selecting and ordering an EYES/ONLY Offering via use of the EYES/ONLY Solution (including by clicking "buy" or other affirmative indication of your intent to purchase) constitutes an irrevocable offer by you to purchase the EYES/ONLY Offering. Your purchase is not complete until the EYES/ONLY Provider notifies you of acceptance, which may require your affirmative agreement to the EYES/ONLY Provider's terms and conditions and satisfactory completion of a credit check. Acceptance is at each EYES/ONLY Provider's sole discretion. The EYES/ONLY Provider or EYES/ONLY may reject your offer and in such case, you have not concluded a contract with the EYES/ONLY Provider. EYES/ONLY will refund amounts paid by you only if your offer is rejected. Otherwise all payments to EYES/ONLY are non-refundable and any refund rights you have is a matter strictly between you and the EYES/ONLY Provider.

 

We do not guarantee best available rates or prices and do not guarantee against pricing errors. We reserve the right, in our sole discretion, to not process or to cancel any orders placed, if the price was incorrectly posted or if the EYES/ONLY Offering becomes unavailable for any reason. If this occurs, we will notify you by email.

 

Title and risk of loss for any EYES/ONLY Offering transfers to you in accordance with the EYES/ONLY Provider's terms and conditions. Warranties of quality, support services, helpdesk, return/refund policies, and your rights in the event of defective, delayed or otherwise unsatisfactory EYES/ONLY Offerings, if any, are exclusively as set forth in the EYES/ONLY Provider's terms and conditions. Any data or information you convey to the EYES/ONLY Provider is subject to the privacy and data usage policies, if any, of such EYES/ONLY Provider. We have no liability for the use or misuse of your information and data by EYES/ONLY Providers.

 

3.4    Invitation-Only EYES/ONLY Offerings. Certain EYES/ONLY Offerings are available for purchase only by members of certain groups or associations within the EYES/ONLY Solution. We exercise no control over and have no responsibility for the admission criteria of such groups, the application of such criteria, or the refusal to permit entry.

 

3.5    Risk of Physical Injury. Certain EYES/ONLY Offerings may include or require strenuous physical activity or the risk of personal injury or death. You acknowledge that undertaking such activities is solely at your own risk. 

 

4.0    LOCATION-BASED SERVICES

 

Some of the features of the EYES/ONLY Solution may enable us to access your location in order to provide more relevant or timely EYES/ONLY Offerings, or to otherwise tailor your experience with the EYES/ONLY Solution ("Location-Based Services").  In order to use certain Location-based Services, you must enable the applicable functions on your mobile phone. You may enable or disable such Location-based Services at any time through the App’s Settings menu.  If you choose to disable any Location-based Services on your device and/or opt out of any Location-based Services through the App’s Settings menu, you will not be able to utilize certain features of the App.  By enabling Location-based Services on your device, you agree and acknowledge that (i) device data we collect from you is directly relevant to your use of the App, (ii) we may provide Location-based Services related to and based on your then-current location, and (iii) we may use and store any such information collected in connection with the provision of Location-based Services in accordance with the Privacy Policy. You acknowledge that location data may be inaccurate.

 

5.0    SIGN-ON CREDENTIALS

 

5.1    Sign-On Credentials.  When creating an account, you represent and warrant that you have never been convicted of a felony. You will receive or will be permitted to create or use existing online user name and password information ("Sign-On Credentials"), and are wholly responsible for maintaining the confidentiality thereof and wholly liable for all activities occurring under such Sign-On Credentials. You will not transfer to any party your Sign-On Credentials, or use the Sign-On Credentials of another, without our prior written consent. You will immediately notify us at ____@eyeson.ly of any unauthorized use of Sign-On Credentials or any other breach of security. We will not be liable for any loss or damage arising from failure to comply with this section or from unauthorized use of the Sign-On Credentials. You will not have more than one EYES/ONLY Solution account at any one time and such accounts are not transferable.

 

5.2    Change of Username.  We may require you, as a condition of membership, to change your username if we believe appropriate (such as when a trademark owner complains about a username that does not closely relate to a user’s actual name).

 

5.3    Accuracy of Provided Information. You represent and warrant that all information that you submit upon creation of your account and via your use of the EYES/ONLY Solution, and all information you provide to EYES/ONLY Providers, is accurate, complete and truthful, and that you will promptly update any information provided by you that subsequently becomes inaccurate, incomplete, misleading or false.

 

6.0    SITE INTEGRITY

 

6.1    Prohibited Uses.  You will not use the EYES/ONLY Solution in any manner that could damage, disable, overburden, or impair any EYES/ONLY-controlled server, or the network(s) connected to any such server, or interfere with any other party's use and enjoyment of the EYES/ONLY Solution, including without limitation falsifying or altering Content except via normal and intended operation of the Services. You may not attempt to gain unauthorized access to other accounts, computer systems or networks connected to any of our servers or to any of the Services, including through hacking, password mining or any other means, or exploit bugs or vulnerabilities in the EYES/ONLY Solution. You are prohibited from violating or attempting to violate any security features of the EYES/ONLY Solution, including, without limitation: (a) accessing Content not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the EYES/ONLY Solution, or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with Services to any EYES/ONLY Client, user, host, or network, including, without limitation, by means of submitting a virus to the Site or Service, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (d) using the Site or Service to send unsolicited email or messages, including, without limitation, promotions, or advertisements for products or services; (e) publishing or linking to malicious Content intended to damage or disrupt another EYES/ONLY Client’s browser or computer or to compromise an EYES/ONLY Client’s privacy or anonymity; (f) forging any TCP/IP packet header or any part of the header information in any email or in any posting; (g) accessing or tampering with non-public areas of the Site or Service, our computer systems, or the technical delivery systems of our providers; (h) accessing or searching or attempting to access or search the EYES/ONLY Solution by any means (automated or otherwise) other than through the currently available, published interfaces that are provided by us (and only pursuant to these Terms), unless you have been specifically allowed to do so in a separate agreement with us; (i) deep-linking to the Site for any purpose (ie, posting a link to a Site web page other than the home page) except as otherwise expressly permitted by us on the Site; or (j) removing or obscuring any form of advertising or messaging displayed via the EYES/ONLY Solution.

 

6.2    No Harvesting or Crawling. You will not engage in harvesting or other collection of information about other EYES/ONLY Clients, including email addresses, without our prior and each such EYES/ONLY Client's prior written consent. You agree not to "crawl" the EYES/ONLY Solution or use or launch any automated system, including without limitation, "robots", "spiders", etc. that accesses the EYES/ONLY Solution or pulls Content therefrom.

 

6.3    No Framing. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Services on the Site. The Site and Services are for your Non-Commercial Use only, except as may otherwise be agreed by us in a separate signed writing. Without limiting the generality of the foregoing, you will not publish, distribute or transmit to the general public via any medium, whether via print, online, or otherwise, the Content or Services, except through the Site or as otherwise authorized by these Terms or by us, you will not engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the EYES/ONLY Solution, and you will not send messages purporting to be from us. You will not remove or attempt to obscure any copyright, trademark or other proprietary rights notices contained in or on the Site or associated with the Services, including ours and our licensors.

 

6.4    Account Data.  While we will endeavor to back up Site and Service data and make such data available in the event of loss or deletion, we have no responsibility or liability for the deletion or failure to store any Content. You acknowledge and agree that your Content shall not be retrievable or accessible except via your authorized use of the Services and that we are under no obligation to compile and return to you your Content, including if Services terminate for any reason or if you elect to deactivate your account. We reserve the right to mark as "inactive" and archive accounts and/or streams, queries, projects, forums, discussions or similar interactions that are inactive for an extended period of time. Further, you acknowledge that we may monitor and collect information (including but not limited to technical and diagnostic information) about your usage of the EYES/ONLY Solution in order to improve the EYES/ONLY Solution and to verify compliance with these Terms.

 

6.5    Notifications to Us. If you believe that you are entitled or obligated to act contrary to these Terms under any mandatory or applicable law, you agree to provide us with detailed and substantiated explanation of your reasons in writing at least thirty days before you so act, to allow us to assess whether we may, at our sole discretion, provide an alternative remedy for the situation, though we are under no obligation to do so.

 

6.6    Notifications to You. For purposes of service messages and notices about the Services to you, we may place a banner notice across Site pages or App screens to alert you to certain changes such as modifications to these Terms. Alternatively, notice may consist of an email from us to an email address associated with your account, even if we have other contact information. You also agree that we may communicate with you in relation to your account and otherwise in relation to these Terms through your account or through other contact information you have provided to us, including email, mobile number, telephone, or delivery services including the postal service. You acknowledge and agree that we will have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the EYES/ONLY Solution. 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.

 

6.7    Consent to Emails. When you become a EYES/ONLY Client, you agree and consent to receive email messages from us, which may be transactional, for account management purposes, or for communications relating to or provided as part of the Service, including notifications related to your purchase or use of EYES/ONLY Offerings, administrative notices and service announcements or changes, or emails containing commercial offers, promotions or special offers from us or third party partners.

 

6.8    Network Security Risks. Because no online system is perfectly secure or reliable, the internet is an inherently insecure medium, and the reliability of hosting services, internet intermediaries, your internet service provider, and other service providers cannot be assured, you accept security risks associated with or arising from your use of the EYES/ONLY Solution, and the responsibility for choosing to use a technology that does not provide perfect security or reliability.

 

7.0    DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION

 

7.1    Disclaimer. EACH EYES/ONLY CLIENT'S USE OF THE EYES/ONLY SOLUTION, EYES/ONLY OFFERINGS, AND CONTENT IS AT HIS OR HER SOLE RISK. THE EYES/ONLY SOLUTION, EYES/ONLY OFFERINGS, AND CONTENT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE ASSUME NO RESPONSIBILITY FOR THE ACCURACY, CURRENCY, TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE OR DISPLAY ANY CONTENT, EYES/ONLY CLIENT COMMUNICATIONS, PERSONALIZATION SETTINGS, OR OTHER INFORMATION OR DATA. WE WILL HAVE NO LIABILITY FOR ANY LOSS OF PROFIT, OPPORTUNITY, REVENUE, ADVANTAGE, INFORMATION OR DATA THAT RESULTS FROM USE OR RECEIPT OF THE EYES/ONLY SOLUTION, EYES/ONLY OFFERINGS, AND CONTENT, AND WE WILL HAVE NO LIABILITY FOR EMOTIONAL DISTRESS OR ANY OTHER DAMAGES RESULTING FROM YOUR INTERACTIONS OR DEALINGS WITH EYES/ONLY PROVIDERS, OR USE OR RECEIPT OF EYES/ONLY OFFERINGS. TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Specifically, we make no warranty that (a) the EYES/ONLY Solution, EYES/ONLY Offerings or Content will meet your requirements, goals or needs, (b) EYES/ONLY Solution, EYES/ONLY Offerings, or Content access will be uninterrupted, timely, secure or error-free, or (c) any errors or deficiencies in the EYES/ONLY Solution, EYES/ONLY Offerings or Content will be corrected. Further, scheduled and preventive maintenance, required and emergency maintenance work, or disruption of services from internet service and hosting providers, may interrupt the functioning of or access to the EYES/ONLY Solution, EYES/ONLY Offerings or Content.

 

7.2    Liability Limitation. EXCLUDING ONLY DAMAGES ARISING OUT OF OUR LIABILITY FOR OUR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR GROSS NEGLIGENCE, OR ANY OTHER LOSS FOR WHICH WE CANNOT LAWFULLY EXCLUDE LIABILITY, WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, OR EMOTIONAL DISTRESS DAMAGES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OF OR INABILITY TO USE THE EYES/ONLY SOLUTION, EYES/ONLY OFFERINGS AND ANY CONTENT; THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; UNAUTHORIZED DISPLAY, ACCESS TO OR DELETION OR ALTERATION OF CONTENT, INFORMATION OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY; OR ANY OTHER MATTER RELATING TO US, THE CONTENT, EYES/ONLY CLIENTS, EYES/ONLY PROVIDERS, EYES/ONLY OFFERINGS, OR THE EYES/ONLY SOLUTION. EXCLUDING ONLY OUR LIABILITY FOR OUR FRAUD, DEATH OR PERSONAL INJURY CAUSED BY OUR GROSS NEGLIGENCE, OR ANY OTHER LOSS FOR WHICH WE CANNOT LAWFULLY LIMIT LIABILITY, ANY LIABILITY TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED IN THE AGGREGATE TO THE LOWER OF $50 OR ALL AMOUNTS CLAIMED AS REVENUE BY US FROM AMOUNTS PAID BY YOU FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE CLAIM OR INCIDENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE OCCURRENCE OF THE CLAIM OR INCIDENT. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.

 

7.3    Indemnification. You agree to defend, indemnify, release and hold harmless us, our suppliers, and all officers, directors, employees, consultants, agents, and representatives of any of the foregoing (collectively "Protected Parties") in full from and against any and all claims (including third party claims), losses, liability, damages, and/or costs of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with: (a) your unauthorized access to or use of, the EYES/ONLY Solution, EYES/ONLY Offerings, or Content, (b) your breach of these Terms, (c) your use of EyeOnly Offerings or conduct engendered thereby, and any activities you conduct on or through the EYES/ONLY Solution, or (d) your infringement or misappropriation of any intellectual property rights or other rights of any person or entity. We may assume the exclusive defense and control of any matter for which you are required to indemnify us at your expense, and you agree to cooperate with our defense of these claims. You will not settle or compromise any claims without our prior written consent.

 

Further, in the event you have a dispute with one or more EYES/ONLY Clients or EYES/ONLY Providers, you hereby release the Protected Parties from claims, demands and damages (actual, direct and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable and unforeseeable, arising out of or in any way connected with such disputes. If any Protected Party is required to respond to legal process in any proceeding or forum, including by being served with requests to provide information or testimony, in connection with any such dispute, you agree to reimburse our reasonable costs (including lawyers fees) associated with such legal process.

 

FOR CALIFORNIA, USA RESIDENTS: You further agree that these Terms waive and release any claims that would otherwise be preserved by operation of section 1542 of the California Civil Code, which provides: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." You understand that you are releasing us from all claims, whether known or unknown to you, and whether or not you suspect that those claims may exist at this time.

 

8.0    GENERAL PROVISIONS

 

8.1    Force Majeure. Except for obligations to pay money hereunder, no delay, failure or omission by either party to carry out or observe any of its obligations hereunder will give rise to any claim against such party or be deemed to be a breach of this Agreement if and for as long as such failure or omission arises from any cause beyond the reasonable control of that party.

 

8.2    Service Discontinuance/Modification. We may from time to time modify or discontinue access to, temporarily or permanently, the Site or any Service thereon (or any part, feature, or functionality thereof, as well as internal rules of operation, eligibility, pricing, gamification, visibility to or accessibility of the public, and other aspects). We will not be liable for any such modification, suspension or discontinuance, even if certain features or functions, your settings, and/or any Content you have contributed or have come to rely on, are permanently lost.

 

8.3    Account Termination. We may terminate your or any other EYES/ONLY Client’s account for cause, including without limitation for: (a) violation of these Terms; (b) abuse of EYES/ONLY resources or any attempt to gain unauthorized entry to the EYES/ONLY Solution; (c) use of the EYES/ONLY Solution in a manner inconsistent with its purpose; (d) any such EYES/ONLY Client's request for such termination; or (e) requirements of or for failure to comply with applicable law, regulation, court or governing agency order, or ethical requirements. We may in addition terminate the availability of the EYES/ONLY Solution, any or all EYES/ONLY Offerings, or Content for our own business reasons, including if we elect to cease being in the business of providing it. Our termination of any EYES/ONLY Client's access to the EYES/ONLY Solution, EYES/ONLY Offerings, EYES/ONLY Providers or Content may be without notice and, on such termination, we may immediately deactivate or delete such EYES/ONLY Client's account and Content, and/or bar any further access. We will not be liable for any termination of EYES/ONLY Client's access. After account termination, you will not attempt to register a new account without our permission.

 

8.4    Account Deactivation. You may deactivate your account any time. Deactivation is your sole means of terminating your account. 

 

8.5    US Government Restricted Rights. Services are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the Services and related materials by the U.S. Government constitutes acknowledgment of our proprietary rights.

 

8.6    Trademarks. You are granted no right, title or license to any third party trademarks by these Terms, or to any of our trademarks or servicemarks. We reserve all right, title and interest in and to our trademarks, servicemarks, trade names, trade dress, domain names, and similar identifiers, including without limitation EYES/ONLYTM.

 

8.7    US DMCA. If you believe that your work has been copied and is accessible via the EYES/ONLY Solution in a way that constitutes copyright infringement in the United States, you may notify us by providing our copyright agent with the following in writing: (a) identification of the copyrighted work that you claim has been infringed; (b) identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material; (c) your name, address, telephone number, and email address; (d) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (e) a statement, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf. The above writing must be electronically or physically signed by you. If we receive such a claim, we may refuse or delete Content, or terminate a EYES/ONLY Client's account in accordance with these Terms. Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 (EYES/ONLY DMCA Agent, +1____, [address]) can be contacted via ____@eyeson.ly. In addition to forwarding your notice to the person who provided the allegedly illegal Content, we may send a copy of your notice (with your personal information removed) to Chilling Effects (www.chillingeffects.org) for publication and/or annotation. A link to your published notice will be displayed in place of the removed Content. We reserve the right to remove Content alleged to be infringing or otherwise illegal without prior notice and at our sole discretion. In appropriate circumstances, we will also terminate an EYES/ONLY Client’s account if the EYES/ONLY Client is determined to be a repeat infringer.

 

8.8    Governing Law. These Terms, the EYES/ONLY Solution, EYES/ONLY Offerings, Content, and any disputes related to or concerning any of the foregoing (including tort as well as contract claims, and whether pre-contractual or extra-contractual), will be governed by and settled in accordance with the laws of Tennessee and controlling US law, notwithstanding the choice of laws rules of any jurisdiction to the contrary. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these Terms, the EYES/ONLY Solution, EYES/ONLY Offerings or Content, must be filed within one year after such claim or cause of action arose, or be forever barred.

 

8.9    Dispute Resolution. Any disputes between or claims brought by you or us arising out of or related to these Terms, the EYES/ONLY Solution, EYES/ONLY Offerings, or Content (including tort as well as contract claims, and whether pre-contractual or extra-contractual, as well as the arbitrability of any disputes) will be referred to and finally settled by binding arbitration before the American Arbitration Association ("AAA") in accordance with the Commercial Rules of Arbitration in effect at the time of arbitration except as inconsistent with this section. The arbitration will be conducted by telephone, on-line and/or based solely upon written submissions where no in-person appearance is required. If in-person appearance is required, such hearings will be held in Nashville, Tennessee unless another location is mutually agreed upon by the parties. In all such cases, the arbitration will be administered by the AAA in accordance with their applicable rules. The arbitrator will apply the law specified in section 8.8 above. All awards may if necessary be enforced by any court having jurisdiction. The existence of any dispute, the existence or details of the arbitration proceeding, and all related documents, materials, evidence, judgments and awards therein, will be kept confidential. Except as required by law, no party will make any public announcements with respect to the proceeding or the award, except as required to enforce same. Notwithstanding the foregoing, nothing in this section will preclude the right and ability to file and maintain at any time an action for recovery of injunctive or provisional relief in any court of competent jurisdiction under the laws applicable thereto. All claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using arbitration in accordance with this section. Should either party file an action contrary to this section, the other party may recover lawyers' fees and costs, provided that the party seeking the award has notified the other party in writing of the improperly filed claim, and the other party has failed to withdraw the claim.

 

The parties hereby waive the right to a trial by jury and agree to only bring claims in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. In addition, we each agree that all disputes will be arbitrated only on an individual basis and not in a class, consolidated or representative action. The arbitrator does not have the power to vary these provisions.

 

8.10    Assignment. These Terms will not be assigned, delegated, or transferred by you, in whole or in part, whether voluntary, involuntary, by merger, consolidation, dissolution, sale of assets, or otherwise, without our prior written consent. Any such purported assignment, delegation or transfer without such written consent will be void. We may at any time assign these Terms without prior consent or notice. These Terms will be binding on, and inure to the benefit of, the parties and their respective and permitted successors and assigns.

 

8.11    Injunctive Relief. You acknowledge and agree that breach of these Terms, or any unauthorized use, disclosure or distribution of the EYES/ONLY Solution or Content, may cause irreparable harm to us, the extent of which would be difficult to ascertain, and that we will be entitled to seek immediate injunctive relief (in addition to any other available remedies, including remedies under applicable intellectual property rights law, the availability of which you hereby acknowledge), in any court of competent jurisdiction under the applicable laws thereto.

 

8.12    Tennessee-Based Site. The EYES/ONLY Solution is controlled by EYES/ONLY from its offices in Tennessee. We make no representation that the EYES/ONLY Solution is appropriate for use in other jurisdictions. Your use of or access to the EYES/ONLY Solution will not be construed as our purposefully availing ourselves of the benefits or privileges of doing business in any other state or jurisdiction other than Tennessee.

 

8.13    General. The Terms constitute the entire agreement between us and govern each EYES/ONLY Client's use of the EYES/ONLY Solution, superseding any prior agreements. Each EYES/ONLY Client may be subject to additional terms and conditions that may apply when that EYES/ONLY Client uses or purchases EYES/ONLY Offerings. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect. No waiver of any provision of these Terms will be deemed a further waiver or continuing waiver or such provision or any other provision, and our failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision. Nothing herein will be deemed to create an agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship of any kind between us and any user or other person or entity, nor do these terms extend rights to any third party. The parties hereto confirm that they have requested that these Terms and all attachments and related documents, if any, be drafted in English. Les parties ont exigé que le présent contrat et tous les documents connexes soient rédigés en anglais.

 

End of Terms

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