Last revised: July 15, 2015

These terms and conditions of use (“Terms of Use”) govern your use of Opternative’s (“we”or “our”) online interfaces and properties (e.g. websites and mobile applications) owned and controlled by Opternative, including the Opternative, Inc. website (collectively, the “Site”). Your compliance with these Terms of Use is a condition to your use of the Site. If you do not agree to be bound by the Terms of Use, promptly exit this Site. Please also consult our Privacy Policy for a description of our privacy practices and policies. The personal information you submit to Opternative, Inc. (“Company”) and the Site is governed by the Privacy Policy. To the extent there is an inconsistency between these Terms of Use and the Privacy Policy, these Terms of Use shall govern.

We are committed to protecting the privacy of children. You should be aware that this Site is not intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we actually know is a child under the age of 13.

Ownership Of The Site

All pages within this Site and any material accessed, sent or made available for use or download through this Site are the property of Opternative, Inc. or its licensors. The Site is protected by United States and international copyright and trademark laws. The Contents of the Site, including without limitation, files, documents, text, copy, graphics, illustrations, photographs, images, audio, video and other visuals, and any materials accessed, sent or made available for use or download through this Site, inclusive of any eyeglass or contact lens prescriptions (“Content”) may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by Company. You may not frame or utilize framing techniques to enclose, or deep link to, any name, trademarks, service marks, logo, Content or other proprietary information (including images, text, page layout, or form) of Company without our express written consent.

License to Access and Use

You may access and use the Site only for your personal use. Any other access to or use of the Site constitutes a violation of these Terms and may violate applicable copyright, trademark, or other laws. We make no representation that the Site is appropriate or available for use in locations other than the United States. If you choose to access this Site from locations other than in the United States, you do so at your own initiative, at your own risk, and are responsible for complying with applicable local laws.

You may not access, use, or copy any portion of the Site or of the Content through the use of bots, spiders, scrapers, web crawlers, indexing agents, or other automated devices or mechanisms. You agree not to remove or modify any copyright notice or trademark legend, author attribution, or other notice placed on or contained within any content on the Site. Except as expressly authorized by us in writing, in no event will you reproduce, redistribute, duplicate, copy, sell, resell, or exploit for any commercial purpose, any portion of the Site or its content or any access to or use of the Site or its content.

Site Security

You are prohibited from violating or attempting to violate the security of the Site, including, without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; and (c) accessing or using the Site or any portion thereof without authorization, in violation of these Terms of Use or in violation of applicable law. Violations of system or network security may result in civil or criminal liability. Company will investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of this Site or any activity being conducted on this Site.

Accuracy and Integrity of Information

Although Company attempts to ensure the integrity and accurateness of the Site, it makes no representations, warranties or guarantees whatsoever as to the correctness or accuracy of the Site and any Content. It is possible that the Site or any Content could include typographical errors, inaccuracies or other errors, and that unauthorized additions, deletions and alterations could be made to the Site by third parties. In the event that an inaccuracy arises, please inform Company so that it can be corrected. Information contained on the Site may be changed or updated without notice. Additionally, Company shall have no responsibility or liability for information or Content posted to, accessed through, sent through or made available for use or download through the Site by any health care providers or non-Company affiliated third party.

Access to Site; Indemnification

You must be at least eighteen (18) years old to access or use the Site. For those portions of the Site that have access limited by requiring a user ID and password (“Protected Areas”), you agree to access Protected Areas using only your user ID and password as provided to you by Company. You agree to protect the confidentiality of your user ID and password, and not to share or disclose your user ID or password to any third party. You agree that you are fully responsible for all activity occurring under your user ID. You are responsible for taking all reasonable steps to ensure that no unauthorized person shall have access to your ID, passwords or accounts. It is your sole responsibility to (1) control the dissemination and use of login name, screen name and passwords; (2) authorize, monitor, and control access to and use of your account and password; and (3) promptly inform the Company if you believe your account or password has been compromised or if there is any other reason you need to deactivate a password. Your access to the Site may be revoked by Company at any time with or without cause. You agree to defend, indemnify and hold Company harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Company arising out of your breach of these Terms of Use or violation of applicable law, your use or access of the Site and/or any Content, or access by anyone accessing the Site and/or any Content using your user ID and password.

Links to Other Sites

The Company may provide links to third-party web sites. The Company also may select certain sites as priority responses to search terms you enter and the Company may agree to allow advertisers to respond to certain search terms with advertisements or sponsored content. The Company does not recommend and does not endorse the content on any third-party websites. The Company makes no representations whatsoever about any other website that you may access through this Site. The Company is not responsible for the content of linked third-party sites, sites framed within the Site, third-party sites provided as search results, or third-party advertisements, and does not make any representations regarding their content or accuracy. When you access a non-Company site, please understand that it is independent from Company, and that Company has no control over the Content on that website. In addition, a link to a non-Company website does not mean that Company endorses or accepts any responsibility for the Content, or the use, of the linked site. It is up to you to take precautions to ensure that whatever you select for your use or download is free of such items as viruses, worms, Trojan horses, and other items of a destructive nature. If you decide to access any of the third party sites linked to this Site, you do this entirely at your own risk.

Submissions to the Site

If you submit, upload or post any comments, ideas, suggestions, information, files, images or other materials to us or our Site (“Submissions”) you agree to not include any Submissions that (1) are defamatory, abusive, libelous, unlawful, obscene, threatening, harassing, fraudulent, pornographic, or harmful, or that could encourage criminal or unethical behavior, (2) violate or infringe the privacy, copyright, trademark, trade dress, trade secrets or intellectual property rights of any third person or entity, or (3) contain or transmit a virus or any other harmful component. You agree not to contact other Site users, including health care providers, through unsolicited e-mail, telephone calls, mailings or any other method of communication. By making a Submission, you automatically grant, and you represent and warrant that you have the right to grant, to Company an irrevocable, perpetual, non-exclusive, transferable, royalty-free, worldwide license (with the right to sublicense) to use, copy, adapt, publish, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such Submission for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such Submission, and to grant and authorize sublicenses of the foregoing. By making a Submission, you represent that you have all requisite rights to, and are authorized to disclose, all of the information contained in the Submission. You are fully responsible for any Submission you make and for the legality, reliability, appropriateness, and originality thereof. Company is and shall be under no obligation (1) to maintain any Submissions in confidence; (2) to pay to you any compensation for any Submissions; or (3) to respond to any user Submissions.

Company does not regularly review posted Submissions, but does reserve the right (but not the obligation) to monitor and edit or remove any Submissions submitted to the Site. You grant Company the right to use the name that you submit in connection with any Submissions. You agree not to use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of any Submissions. You are and shall remain solely responsible for the content of any Submissions you make. Company and its affiliates take no responsibility and assume no liability for any Submissions submitted by you or any third party.

You agree to defend, indemnify and hold Company harmless from and against all third party claims, damages and expenses (including reasonable attorneys’ fees) against or incurred by Company arising out of any Submissions you post or allow to posted to the Site.

Claims of Copyright Infringement

We disclaim any responsibility or liability for copyrighted materials posted on our Site. If you believe that your work has been copied in a manner that constitutes copyright infringement, please follow the procedures set forth below. Company respects the intellectual property rights of others and expects its users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”), we will respond promptly to notices of alleged infringement that are reported to Company’s Designated Copyright Agent, identified below.

Notices of Alleged Infringement for Content Made Available Through the Site

If you are a copyright owner, authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through our Site by sending us a notice (“Notice”) complying with the following requirements.

  1. Identify the copyrighted works that you claim have been infringed.
  2. Identify the material or link you claim is infringing (or the subject of infringing activity) and that access to which is to be disabled, including at a minimum, if applicable, the URL of the link shown on the Site where such material may be found.
  3. Provide your mailing address, telephone number, and, if available, email address.
  4. Include both of the following statements in the body of the Notice:
    • “I hereby state that I have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use).”
    • “I hereby state that the information in this Notice is accurate and, under penalty of perjury, that I am the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed.”
  5. Provide your full legal name and your electronic or physical signature.

Deliver this Notice, with all items completed, to our Copyright Agent:

        Pete Horkan
        Opternative, Inc.
        175 N Ada St., #200
        Chicago, IL 60607
      
Counter Notices

A poster of allegedly infringing material may make a counter notice pursuant to the DMCA. When Company receives a counter notice, it may reinstate the material in question. To provide a counter notice to us, please provide the following information to our Designated Copyright Agent.

  1. Identification of the material that has been removed or to which access has been disabled on the Site and the location at which the material appeared before it was removed or access to it was disabled.Ω
  2. A statement as follows: “I hereby state under penalty of perjury that I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.”
  3. Your name, address, telephone number and, if available, email address.
  4. A statement as follows: “I hereby consent to the jurisdiction in the state or federal courts located in Cook County, Illinois, and I will accept service of process from the complaining party who notified us of the alleged infringement or an agent of such person.”
  5. Provide your full legal name and your electronic or physical signature.

The Counter Notice should be delivered to the following Designated Copyright Agent of Company:

        Pete Horkan
        Opternative, Inc.
        175 N Ada St., #200
        Chicago, IL 60607
      
Disclaimer of Warranties

COMPANY DOES NOT WARRANT THAT ACCESS TO OR USE OF THE SITE AND/OR THE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE OR ERRORS IN THE CONTENT WILL BE CORRECTED. THIS SITE (INCLUDING (A) ANY SITE-RELATED SERVICE AND (B) ANY CONTENT OR INFORMATION CONTAINED WITHIN, ACCESSED THROUGH, SENT THROUGH OR MADE AVAILABLE FOR USE OR DOWNLOAD THROUGH THE SITE), IS PROVIDED “AS IS,” WITH ALL FAULTS, WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND TITLE/NON-INFRINGEMENT. COMPANY, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. COMPANY DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE CONTENT OR INFORMATION OBTAINED THROUGH THE SITE.

Without limiting the foregoing, Company, its licensors, and its suppliers make no representations or warranties about the following:

  1. The accuracy, reliability, completeness, currentness, or timeliness of the Content, software, text, graphics, links, or communications provided on or through the use of the Site or the Company’s services.
  2. The satisfaction of any government regulations requiring disclosure of information on prescription eyeglass or contact lens products (or other products) or the approval or compliance of any software tools with regard to the Content contained on the Site.

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE, THE CONTENT, SITE-RELATED SERVICES, AND LINKED WEBSITES. ALL SERVICES AND CONTENT (INCLUSIVE OF EYEGLASS AND/OR CONTACT LENS PRESCRIPTIONS) ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, AND USE OF SERVICES AND CONTENT IS AT YOUR OWN RISK. COMPANY DOES NOT WARRANT THAT FILES SENT OR MADE AVAILABLE FOR DOWNLOAD WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER DESTRUCTIVE PROGRAMMING. YOU ARE RESPONSIBLE FOR IMPLEMENTING PROCEDURES SUFFICIENT TO SATISFY YOUR NEEDS FOR DATA BACK-UP AND SECURITY. WARRANTIES RELATING TO ANY PRODUCTS OR SERVICES OFFERED, SOLD AND/OR DISTRIBUTED BY COMPANY ARE SUBJECT TO SEPARATE WARRANTY TERMS AND CONDITIONS, IF ANY, PROVIDED WITH OR IN CONNECTION WITH THE APPLICABLE PRODUCTS OR SERVICES.

Medical Advice Disclaimer

The Contents of the Site are for informational and limited use purposes only. The Content is not intended to be a substitute for professional medical advice, diagnosis, or treatment. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition. If you think you may have a medical emergency, call your doctor or 911 immediately. Never disregard professional medical advice or delay in seeking it because of something you have read on the Site. The Company does not provide any healthcare treatment services, consultation or medical advice; the sole purpose of the Company is to provide a limited eyeglass or contact lens prescription based upon information submitted and exam result analyzed by a licensed ophthalmologist. If you experience any pain, symptoms, blurred vision, “seeing floaters” or other maladies of the eye, consult your physician immediately or call 911. The Content of the Site, including without limitation any Content accessed, sent or made available for use or download through this Site (inclusive of any information transmitted by third parties and/or healthcare providers and eyeglass or contact lens prescriptions) does not constitute professional medical advice, diagnosis, or treatment by the Company of any kind. You should always seek the advice of your qualified healthcare professionals with any questions or concerns you may have regarding your individual needs and any medical conditions. The Company does not recommend or endorse any specific tests, healthcare providers, physicians, products, treatments, therapeutics, pharmaceuticals, devices, procedures, opinions or other information that may be included on, accessed through, sent through or made available for use or download through the Site. Reliance on any information appearing on, accessed through, sent through or made available for use or download through the Site, whether provided by Company, its content providers (including any healthcare providers who provide content through the Site), its clients, visitors to the Site or others, is solely at your own risk.

Limitation of Liability Regarding Use of Site

COMPANY, ITS SUPPLIERS, LICENSORS AND ANY THIRD PARTIES MENTIONED ON THIS SITE SHALL NOT BE AND ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, AND/OR ANY LINKED WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, CONTENT, SITE-RELATED SERVICES, AND/OR LINKED WEBSITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. COMPANY, ITS SUPPLIERS, LICENSORS AND ANY THIRD PARTIES MENTIONED ON THIS SITE SHALL NOT BE AND ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY PERSONAL INJURY, INCLUDING DEATH, CAUSED BY, ARISING OUT OF OR RELATING IN ANY WAY TO THE YOUR USE OR MISUSE OF THE SITE, THE CONTENT OR THE SERVICES OFFERED BY THE COMPANY, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR INJURY. TO THE EXTENT ANY ASPECTS OF THE FOREGOING LIMITATIONS OF LIABILITY ARE NOT ENFORCEABLE, THE MAXIMUM LIABILITY OF COMPANY TO YOU WITH RESPECT TO YOUR USE OF THIS SITE IS $500 (FIVE HUNDRED DOLLARS).

Termination of Access

We reserve the right, in our discretion, to terminate your access to all or part of the Site, without notice or liability, for any reason, including, but not limited to: (a) the unauthorized use of any username or password, or (b) the breach of any agreement between you and Company, including, without limitation, these Terms. Following any such termination of access, you will continue to be bound hereunder to the fullest extent applicable. You may not access the Site after your access is terminated without our written approval.

Dispute Resolution; Arbitration Agreement

We will try to work in good faith to resolve any issue you have with Site, including services and/or Content ordered, accessed, sent or made available for use or download through the Site, if you bring that issue to the attention of our customer service department. However, we realize that there may be rare cases where we may not be able to resolve an issue to a customer’s satisfaction.

You and Company agree that any dispute, claim or controversy arising out of or relating in any way to your use of the Site, including services and/or Content ordered, accessed, sent or made available for use or download through the Site, shall be determined by binding arbitration instead of in courts of general jurisdiction. Arbitration is more informal than bringing a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and is subject to very limited review by courts. Arbitration allows for more limited discovery than in court, however, we agree to cooperate with each other to agree to reasonable discovery in light of the issues involved and amount of the claim. Arbitrators can award the same damages and relief that a court can award, but in so doing, the arbitrator shall apply substantive law regarding damages as if the matter had been brought in court, including without limitation, the law on punitive damages as applied by the United States Supreme Court. You agree that, by agreeing to these Terms of Use, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and Company are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms of Use and any other contractual relationship between you and Company.

If you desire to assert a claim against Company, and you therefore elect to seek arbitration, you must first send to Company, by certified mail, a written Notice of your claim (“Notice”). The Notice to Company should be addressed to: Opternative, Inc, Attn: Pete Horkan; 175 N Ada St #200, Chicago IL 60607 (“Notice Address”). If Company desires to assert a claim against you and therefore elects to seek arbitration, it will send, by certified mail, a written Notice to the most recent address we have on file or otherwise in our records for you. A Notice, whether sent by you or by Company, must (a) describe the nature and basis of the claim or dispute, and (b) set forth the specific relief sought (“Demand”). If Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Company may commence an arbitration proceeding or file a claim in small claims court. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator. You may download or copy a form Notice and a form to initiate arbitration from the American Arbitration Association at www.adr.org. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms of Use, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by requesting them from us by writing to us at the Notice Address. The parties will mutually agree upon an arbitrator. The arbitrator is bound by the terms of these Terms of Use. All issues are for the arbitrator to decide, including issues relating to the scope and enforceability of these Terms of Use, including this arbitration agreement. Unless Company and you agree otherwise, any arbitration hearings will take place in Cook County, Illinois. The payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for payment or recovery attorneys’ fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for fee shifting provided by law.d

YOU AND COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

If this specific provision is found to be unenforceable, then (a) the entirety of this arbitration provision shall be null and void, but the remaining provisions of these Terms of Use shall remain in full force and effect, and (b) exclusive jurisdiction and venue for any claims will be in state or federal courts in Cook County, Illinois.

Revisions; General

In the event that any of the Terms of Use are held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that these Terms of Use shall otherwise remain in full force and effect. These Terms of Use constitute the entire agreement between Company and you pertaining to the subject matter hereof. In its sole discretion, Company may from time-to-time revise these Terms of Use by updating this posting. You should, therefore, periodically visit this page to review the current Terms of Use, so you are aware of any such revisions to which you are bound. Certain provisions of these Terms of Use may be superseded by expressly designated legal notices or terms located on particular pages within this Site.