THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION PROVISION AND WAIVER OF JURY TRIAL. PLEASE READ IT CAREFULLY BEFORE AGREEING.
Terms of Service
Effective Date: 07/13/17
Felix Gray, Inc. (hereinafter “Felix Gray,” “we” or “us”) provides this website, our computing applications and the data, information, tools, updates and similar materials delivered or provided by us (collectively, the “Service”), as well as products sold through the Service (the “Products”) subject to your agreement to and compliance with the conditions set forth in this Terms and Conditions Agreement (the “Agreement”). This Agreement sets forth the legally binding terms and conditions governing your use of the Service and purchase of the Products. By using the Service, making a purchase or otherwise entering into this Agreement, you are creating a binding contract with us. If you do not agree to these terms and conditions, you may not use the Service or purchase any Products.
We may revise or update this Agreement by posting an amended version through the Service and making you aware of the revisions. Your use of the Service following an update to this Agreement (or other acceptance method) is considered acceptance of the updated Agreement.
As long as you are in compliance with the conditions of this Agreement and all incorporated documents, we hereby grant you a limited, revocable, non-assignable, non-transferrable, non-sublicensable, non-exclusive license to use and access the Service only on your computing device for personal use. No rights not explicitly listed are granted.
The following additional terms are incorporated into this Agreement as if fully set forth herein:
- Copyright Policy
- Complaint Policy (including Privacy and Trademark)
While we make reasonable efforts to ensure that the Service remains available at times, we do not represent or warrant that access to the Service will be error-free or uninterrupted, or without defect, and we do not guarantee that users will be able to access or use the Service, or its features, at all times.
We reserve the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service, or any part thereof, with or without notice.
The Service may contain typographical errors or inaccuracies, including relating to price, and may not be complete or current. We reserve the right to correct any such errors, inaccuracies or omissions and to change or update information at any time without prior notice, even if your order has already been accepted or processed.
You must be at least thirteen (13) years old to use the Service. By using the Service, you represent that you meet this minimum age requirement.
Some parts or all of the Services may not be available to the general public, and we may impose eligibility rules from time to time. We reserve the right to amend or eliminate these eligibility requirements at any time.
Use of the Service may cause you to incur data charges from your provider.
Terms of Sale
Sales Territory. We sell and ships products only to the continental United States. Requests for shipments to U.S. territories or internationally can be made via e-mail to [email protected]. Shipping charges will be presented at checkout.
Sales. Contingent upon availability or other cause for declining your purchase order, your payment card account is charged upon submission of any order, regardless of such order’s content. Applicable taxes, if any, may be added to your order, depending on your location of shipment or the type of products you purchase.
If your order has been cancelled or declined for any reason, either before or after acceptance, we will make reasonable efforts to contact you to inform you of its cancellation or non-acceptance. Should an order which uses an incorrect, expired, or declined payment card be processed, we reserve the right to collect payment for such transaction, and you agree to be liable for any fees, including but not limited to attorney’s fees and collection costs, that we may incur in our efforts to collect such unpaid balance from you, plus interest.
In order to change the shipment address, or cancel your purchase, you must cancel or make that change within twelve (12) hours of making your purchase. No cancellations or changes are permitted after twelve (12) hours.
We may decline an order, for any reason or no reason, and subject to a refund, may cancel an accepted order at any time.
Shipment of Products. Title and risk of loss for any purchases pass to you upon our delivery to the carrier. We generally ship Products using FedEx or other national carrier within 1-2 business days of an order. Delivery is typically within 4-5 business days.
We recommend that all items be secured immediately upon delivery. If shipped to an address (other than a P.O. Box) you are responsible for arranging for an individual to be present at the time of delivery and for the Products to be properly received and secured. Any individual at the delivery address who accepts delivery is conclusively presumed to be authorized to receive the delivery. We are not responsible should such an individual not be authorized to accept such delivery. You agree that your sole method of recourse for unauthorized delivery resides with the carrier of your order. We are not responsible should you enter any incorrect or inaccurate destination data in your order. If no one is present at the designated location, your shipment may be placed at the designated destination at the discretion of the carrier.
Returns. Except where noted at the time of purchase, you may return any Products you purchase through the Services within 30 days of purchase, provided that the Product is still in its original condition. We may inspect returned Products upon receipt by us, and may only refund your purchase price if your returned Product is in acceptable condition. If a return is declined, we will return the product to you at the address to which you original indicated it should be shipped. Upon acceptance of a return, we will refund the purchase price to your method of payment. Shipping and handling charges are not refundable.
Rules of Conduct
Your use of the Service is conditioned on your compliance with the terms of this Agreement, including but not limited to these rules of conduct.
You agree that you will not violate any applicable law or regulation in connection with your use of the Service.
You agree not to distribute, upload, make available or otherwise publish through the Service any suggestions, information, ideas, comments, causes, promotions, documents, questions, notes, plans, drawings, proposals, or materials similar thereto (“Submissions”) or graphics, text, information, links, profiles, audio, photos, software, music, sounds, video, comments, messages or tags, or similar materials (“Content”) that:
- is unlawful or encourages another to engage in anything unlawful;
- contains a virus or any other similar programs or software which may damage the operation of our or another’s computer;
- violates the rights of any party or infringes upon the patent, trademark, trade secret, copyright, right of privacy or publicity or other intellectual property right of any party; or,
- is libelous, defamatory, pornographic, obscene, lewd, indecent, inappropriate, invasive of privacy or publicity rights, abusing, harassing, threatening or bullying.
You must keep your user name and password and any other information needed to login to the Service, if applicable, confidential and secure. We are not responsible for any unauthorized access to your account or profile by others.
You further agree that you will not do any of the following:
- modify, adapt, translate, copy, reverse engineer, decompile or disassemble any portion of the Service;
- interfere with or disrupt the operation of the Service, including restricting or inhibiting any other person from using the Service by means of hacking or defacing;
- transmit to or make available in connection with the Service any denial of service attack, virus, worm, Trojan horse or other harmful code or activity;
- attempt to probe, scan or test the vulnerability of a system or network of the Service or to breach security or authentication measures without proper authorization;
- take any action that imposes, or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
- harvest or collect the email address or other contact information of other users of the Service;
- scrape or collect content from the Service via automated or large group means;
- submit, post or make available false, incomplete or misleading information to the Service, or otherwise provide such information to us;
- register for more than one user account; or,
- impersonate any other person or business.
You are not licensed to access any portion of the Service that is not public, and you may not attempt to override any security measures in place on the Service.
Notwithstanding the foregoing rules of conduct, our unlimited right to terminate your access to the Service shall not be limited to violations of these rules of conduct.
Content Submitted or Made Available to Us
You are under no obligation to submit anything to us, and unless otherwise noted, we will not claim ownership of any Content. However, in order for us to provide the Service, we need your permission to process, display, reproduce and otherwise use content you make available to us.
Therefore, if you choose to submit any Content to the Service, or otherwise make available any Content through the Service, you hereby grant to us a perpetual, irrevocable, transferrable, sub-licensable, non-exclusive, worldwide, royalty-free license to reproduce, use, modify, display, perform, transmit, distribute, translate and create derivative works from any such Content, including without limitation distributing part or all of the Content in any media format through any media channels, including but not limited to the right to commercially use the rights of publicity, persona, trademark, image and name of the individuals and entities depicted in such Content.
By submitting any Content or Submissions to us you hereby agree, warrant and represent that: (a) the Content and Submissions do not contain proprietary or confidential information, and the provision of the Content and Submissions is not a violation of any third-party’s rights; (b) all such Submissions and Content are accurate and true, (c) we are not under any confidentiality obligation relating to the Content or Submissions; (d) we shall be entitled to use or disclose the Content or Submissions in any way; and (e) you are not entitled to compensation or attribution from us in exchange for the Submissions or Content.
You acknowledge that we are under no obligation to maintain the Service, or any information, materials, Submissions, Content or other matter you submit, post or make available to or on the Service. We reserve the right to withhold, remove and or discard any such material at any time.
Our Intellectual Property
Our graphics, logos, names, designs, page headers, button icons, scripts, and service names are our trademarks, trade names and/or trade dress. The “look” and “feel” of the Service (including color combinations, button shapes, layout, design and all other graphical elements) are protected by U.S. copyright and trademark law. All product names, names of services, trademarks and service marks (“Marks”) are our property or the property of their respective owners, as indicated. You may not use the Marks or copyrights for any purpose whatsoever other than as permitted by this Agreement.
You acknowledge that the software used to provide the Service, and all enhancements, updates, upgrades, corrections and modifications to the software, all copyrights, patents, trade secrets, or trademarks or other intellectual property rights protecting or pertaining to any aspect of the software (or any enhancements, corrections or modifications) and any and all documentation therefor, are and shall remain our sole and exclusive property or that of our licensors, as the case may be. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
Data Collection and Use
Enforcement and Termination
We reserve the right to deny all or some portion of the Service to any user, in our sole discretion, at any time. Without limiting the foregoing or assuming additional legal obligations, we have a policy of terminating repeat violators of the Copyright Act, in accordance with applicable law.
All grants of any rights from you to us related to Content, Submissions, or other materials, including but not limited to copyright licenses, shall survive any termination of this Agreement. Further, your representations, defense and indemnification obligations survive any termination of this Agreement.
Links and Third-Party Content
The Service may contain links. Such links are provided for informational purposes only, and we do not endorse any website or services through the provision of such a link.
The Service may contain articles, text, imagery, video, audio, data, information and other similar materials originating from third-parties. We do not endorse any third party content that may appear on the Service or that may be derived from content that may appear on the Service, even if such content was summarized, collected, reformatted or otherwise edited by us.
DISCLAIMERS AND LIMITATION ON LIABILITY
EXCEPT WHERE NOT PERMITTED BY LAW, YOU AGREE AND ACKNOWLEDGE THAT THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, AND WE, AND OUR PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS, MANAGERS, EMPLOYEES AND SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, ACCURACY, SUITABILITY, APPLICABILITY, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY OTHER WARRANTIES OF ANY KIND IN AND TO THE SERVICES. NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY.
USE OF THE SERVICE IS AT YOUR SOLE RISK. WE DO NOT WARRANT THAT YOU WILL BE ABLE TO ACCESS OR USE THE SERVICE AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; THAT DATA TRANSMISSION OR STORAGE IS SECURE OR THAT THE SERVICE IS FREE OF INACCURACIES, MISREPRESENTATIONS, VIRUSES OR OTHER HARMFUL INFORMATION OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT AS PROHIBITED BY LAW, IN NO EVENT SHALL WE OR OUR AFFILIATES, LICENSORS AND BUSINESS PARTNERS (COLLECTIVELY, THE “RELATED PARTIES”) BE LIABLE TO YOU BASED ON OR RELATED TO THE SERVICE, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND SHALL NOT BE RESPONSIBLE FOR ANY LOSSES OR DAMAGES, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE SERVICE.
Notwithstanding the foregoing, in the event that a court shall find that the above disclaimers are not enforceable, then, to the maximum extent permissible by law, you agree that neither we nor any of our subsidiaries, affiliated companies, employees, members, shareholders, officers or directors shall be liable for (1) any damages in excess of the greater of (a) $500.00 or (b) the amounts you paid to us for Products, or (2) any indirect, incidental, punitive, special, or consequential damages or loss of use, lost revenue, lost profits or data to you or any third party from your use of the Service or any goods sold or provided by us. This limitation shall apply regardless of the basis of your claim or whether or not the limited remedies provided herein fail of their essential purpose.
This limitation shall not apply to any damage that we cause you intentionally and knowingly in violation of this Agreement or applicable law that cannot be disclaimed in this Agreement.
SOME STATES, INCLUDING NEW JERSEY, MAY NOT PERMIT CERTAIN DISCLAIMERS AND LIMITATIONS, AND ANY SUCH DISCLAIMERS OR LIMITATIONS ARE VOID WHERE PROHIBITED.
You agree to defend, indemnify and hold us and our suppliers, subsidiaries, licensors, and licensees, and each of their officers, directors, shareholders, members, employees and agents harmless from all allegations, judgments, awards, losses, liabilities, costs and expenses, including but not limited to reasonable attorney’s fees, expert witness fees, and costs of litigation arising out of or based on (a) Submissions or Content you submit, post to or transmit through the Service (b) your use of the Service, (c) your violation of the Agreement, and (d) any conduct, activity or action which is unlawful or illegal under any state, federal or common law, or is violative of the rights of any individual or entity, engaged in, caused by, or facilitated in any way through the use of the Service.
Governing Law and Jurisdiction
You agree that any claim or dispute arising out of or relating in any way to the Products or Services will be resolved solely and exclusively by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement. The laws of the State of New York shall govern this Agreement, and shall be used in any arbitration proceeding.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the following address: 4428 Waldo Avenue, Bronx, NY 10471.
Arbitration under this Agreement will be conducted by the American Arbitration Association (AAA) under its rules then in effect, and shall be located in New York, New York. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
You and us agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, both you and us agree that parties have each waived any right to a jury trial.
Notwithstanding the foregoing, you agree that us may bring suit in court to enjoin infringement or other misuse of intellectual property or other proprietary rights.
To the extent arbitrations does not apply, you agree that any dispute arising out of or relating to the Services or Products, or to us, may only be brought by you in a state or federal court located in New York, New York. YOU HEREBY WAIVE ANY OBJECTION TO THIS VENUE AS INCONVENIENT OR INAPPROPRIATE, AND AGREE TO EXCLUSIVE JURISDICTION AND VENUE IN NEW YORK.
POLICIES FOR CHILDREN
The Service is not directed to individuals under the age of 13. In the event that we discover that a child under the age of 13 has provided personally identifiable information to us, we will make efforts to delete the child’s information if required by the Children's Online Privacy Protection Act. Please see the Federal Trade Commission's website for (www.ftc.gov) for more information.
Notwithstanding the foregoing, pursuant to 47 U.S.C. Section 230 (d), as amended, we hereby notify you that parental control protections are commercially available to assist you in limiting access to material that is harmful to minors. More information on the availability of such software can be found through publicly available sources. You may wish to contact your internet service provider for more information.
Severability. If any provision of this Agreement is found for any reason to be unlawful, void or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.
Revisions. In the event that we update this Agreement, you may be required to re-affirm the Agreement, through use of the Service, or otherwise.
No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement or your use of the Service.
Assignment. We may assign our rights under this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the Agreement without our prior written consent, and any unauthorized assignment by you shall be null and void.
No Waiver. Our failure to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
Notices. All notices given by you or required under this Agreement shall be in writing and addressed to: [email protected]
Equitable Remedies. You hereby agree that we would be irreparably damaged if the terms of this Agreement were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as we may otherwise have available to us under applicable laws.
Entire Agreement. This Agreement, including the documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Service, and supersedes all prior or contemporaneous communications, whether electronic, oral or written.
Office try on
A lot of times other people in your office are going to want to try on your Felix Grays. That’s fun, but a little annoying. That’s why we offer our office try-on program, which is currently in beta. We select participants within our existing customer base. If selected, you have the opportunity to participate. We’ll ship an Office Try-On box with 5 pairs of pre-selected glasses right to your office. Then, you’ll have one work week (i.e. 5 work days, which includes any day besides Saturday, Sunday, and major holidays) to share them with anyone in your office. Once the work week is over, you’ll return your Office Try-On box with all five frames. We’ll cover the shipping cost.
The Office Try-On program is a component of a referral program, which we currently do through Friendbuy. Please reference the Felix Gray/Friendbuy Terms & Conditions. As an Office Try-On participant, you are seen as The Referrer (i.e. the person who refers others to Felix Gray). You will receive 10% store credit for each first pair that Friend (i.e. person that you are referring) keeps (i.e. does not return). Friends must be first-time purchasers. You will only receive store credit on a single item purchase (i.e. if a Friend buys two pairs of glasses for each at $95 and keeps both, then you will only receive $9.50 of store credit, not $19.00).
In order to validate that you’re a real person, we need to you to submit your shipping information (office address) and your credit card information. We may send a temporary charge to validate your identity. This charge should typically disappear from your statement within 48 hours.
If the Try-On Period ends, and any of the frames have not been returned, or the frames are returned damaged, we will charge your credit card for the full amount of each pair of frames that are missing or damaged ($95 per non-prescription or reading lenses with acetate frame, $125 per non-prescription or reading lenses with titanium or combo frame (titanium+acetate), $145 per prescription lenses with acetate frame, $165 per prescription lenses with titanium or combo frame, plus sales tax where applicable.
In order to avoid any charges, please make sure your return is post-marked before the end of the program (i.e. on its way back to Felix Gray). If you need an extra day or two, just email us at [email protected] and we’ll try and accommodate you as best as possible.