TERMS OF SERVICE

These Terms of Service (these "Terms of Service") set forth the terms and conditions upon which Zenni Optical, Inc. ("Zenni") offers you, our third party end-users (each, an "End-User"), access to Zenni’s proprietary visual acuity testing services as well as other testing services that may be offered from Zenni from time to time (the "Service"), each of which are provided through the Zenni mobile application (the "App").  By clicking “I Agree” or by accessing or otherwise using the Service, you agree to be bound by these Terms.  If you do not agree to these Terms of Service, do not access or use the Services.  This is a legally enforceable contract. 

  1. LICENSE; RESERVATION OF RIGHTS
  1. Limited License to Use the Service.  Subject to End-User’s compliance with the terms and conditions of these Terms of Service, Zenni hereby grants to End-User a limited, personal, non-exclusive, non-transferable, license to use the App to access Service solely for the End-User’s own personal purposes.  Except for the licenses and rights expressly granted under these Terms of Service, no licenses or rights are granted by Zenni to End-User hereunder, by implication, estoppel or otherwise.  All such other licenses and rights are reserved unto Zenni.
  2. Other License Restrictions.   End-User shall not (i) copy or modify the Service or App for any purpose; (ii) reverse engineer, decompile, modify, translate, disassemble or discover the source code for all or any portion of the Service or the App; or (iii) distribute, disclose, market, rent, lease or otherwise transfer the Service or the App to any other person or entity.  End-User understands and acknowledges that neither the Service or App are intended to provide screening or diagnosis of eye health or any other disease, nor are the Service or App intended to replace an in-person eye exam.  End-User shall use the Service and App only consistent with the labeling and instructions provided by Zenni.  
  3. Intellectual Property Rights.  Zenni retains all intellectual property rights in and to the Service and the App and all related documentation interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights), including but not limited to any and all updates, enhancements, customizations, revisions, modifications, future releases and any other changes thereto, and all related information, material and documentation.  Except for rights specifically provided in this Agreement, End-User hereby assigns to Zenni all other intellectual property rights it may now or hereafter possess in the Service or the App and related documentation, and all derivative works and improvements thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights.  End-User also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Service or the App and any related documentation delivered to End-User by Zenni and all whole or partial copies thereof.
  1. WARRANTIES AND LIMITATIONS OF LIABILITY.
  1. Warranties.  Zenni warrants that Zenni will use commercially reasonable efforts to cause the Service and the App to operate in substantial conformance its published documentation.  Zenni’s sole obligation and End-User’s sole remedy with respect to any failure of the Service or the App to substantially conform to the documentation therefore is for Zenni to use commercially reasonable efforts to remedy any such failure as soon as is reasonably practicable, and if such failure is not remedied in a reasonable time, for End-User to terminate these Terms of Service pursuant to Section 4.2.
  2. End-User Content.  “End-User Content” means data, images or other content uploaded to the Service through the App or otherwise used in connection with the End-User’s use of the Service.  End-User (or its licensors) shall own and continue to own all right, title and interest in and to the End-User Content.  End-User hereby grants to Zenni a royalty-free license to use the End-User Content solely in connection with the use thereof through the App and the Service.  
  3. Warranty Disclaimer.  EXCEPT AS SET FORTH IN SECTION 2.1, ZENNI DISCLAIMS ANY AND ALL WARRANTIES RELATING TO THE SERVICE OR ANY OTHER MATTER COVERED BY THESE TERMS OF SERVICE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  ZENNI DOES NOT WARRANT THAT THE SERVICE OR APP WILL OPERATE WITHOUT INTERRUPTION OR DELAY AND/OR BE ERROR FREE, OR THAT ALL FAILURES OF THE SERVICE OR APP TO CONFORM TO THE DOCUMENTATION CAN OR WILL BE CORRECTED.  ZENNI MAKES NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY OF ANY CONTENT PROCESSED BY THE SERVICE OR THE APP.  
  4. Limitations of Liability.  IN NO EVENT SHALL ZENNI BE LIABLE FOR LOST PROFITS OR BUSINESS, LOSS OF GOODWILL, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR FOR ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH DAMAGES ARISE UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE AND REGARDLESS OF WHETHER SUCH PARTY IS ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.  The aggregate liability of Zenni for any and all claims arising under or in connection with these Terms of Service or its subject matter shall not exceed $100.  
  5. Essential Part of the Bargain.  The parties acknowledge that the disclaimers and limitations set forth in this Section 2 are an essential element of these Terms of Service between the parties and the parties would not have entered into these Terms of Service without such disclaimers and limitations.
  1. INDEMNIFICATION; UNAUTHORIZED USE
  1. Indemnification. End-User hereby agrees to indemnify and hold harmless Zenni from any and all damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) suffered or incurred by Zenni in connection with any claims that Zenni is required to pay to third parties to the extent such damages, settlement amounts, costs and expenses are attributable to End-User’s provision of the End-User Content, including any actual or alleged volitions of third party intellectual property by such End-User Content.
  2. Notification of Unauthorized Use.  End-User shall promptly notify Zenni in writing upon its discovery of any unauthorized use or infringement of the Service, the App, or the related documentation, or Zenni's intellectual property rights with respect thereto. Zenni shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Zenni brings such an action or proceeding, End-User shall cooperate and provide full information and assistance to Zenni and its counsel in connection with any such action or proceeding.
  1. TERM AND TERMINATION
  1. Term.  End-User’s access to the App and Services shall begin on the date End-User registers for the service and shall continue until terminated earlier under the provisions of this Article 6.
  2. Termination for Convenience.  Zenni may terminate End-User’s use of the Service at any time.  End User may terminate this Agreement at any time by cancelling its account for the Services and uninstalling the App.
  3. Effect of Termination.  Upon the expiration or sooner termination of these Terms of Service, all license rights of End-User under these Terms of Service shall automatically and immediately cease and End-User shall promptly cease all uses of the Service and shall uninstall the App.  Sections 2.2, 2.3, 2.4, 2.5, 4.3, 5 and 6 shall survive the expiration or sooner termination of these Terms of Service.
  1. DISPUTE RESOLUTION AGREEMENT; ARBITRATION AGREEMENT & CLASS ACTION WAIVER
  1. Covered Disputes and Arbitration Requirement.  End-User and Zenni agree to the following provisions for the resolution of any and all disputes and causes of action related to or connected with this Agreement, Zenni Website, the Services, and any related communications and offerings (a “Dispute”).  As set forth further in this Section, any Dispute shall be resolved by individual, final and binding arbitration under the rules of the American Arbitration Association.  END-USER AND ZENNI UNDERSTAND AND AGREE THAT EACH IS WAIVING ITS RIGHT TO SUE OR GO TO COURT TO ASSERT OR DEFEND OUR RIGHTS. OTHER RIGHTS THAT END-USER OR ZENNI MIGHT HAVE IN COURT, SUCH AS DISCOVERY AND JURY, MAY BE LIMITED OR NOT EXIST IN ARBITRATION.  
  2. Notice.  The party asserting a Dispute shall provide written notice to the other party describing the facts and circumstances (including by attaching any relevant documentation) and allowing the receiving party 60 days in which to respond. Notice shall be made by first class or registered mail to (1) Zenni Optical, Inc. at 150 Alameda del Prado, Novato, CA 94949 or (2) to End-User at the then-current address Zenni have on file with End-User’s account. Both End-User and Zenni agree that this notice procedure is a condition precedent, which must be satisfied before initiating any arbitration against the other party.
  3. How Arbitration Works.  Following the 60 day notice period, either party may initiate arbitration, which shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (together, “AAA Rules”), as modified by this Arbitration Agreement. The parties agree to arbitrate by video or as otherwise agreed between the parties. In the event the AAA is unavailable or unwilling to hear the dispute, the parties shall agree to, or the court shall select, another arbitration provider. The AAA Rules are available on the AAA’s website at www.adr.org. In order to initiate arbitration, End-User or Zenni must include with the arbitration demand the written notice required as part of the initial dispute resolution process, to be confirmed by AAA as a prerequisite to initiation of arbitration.  The arbitrator will have exclusive authority to resolve all issues, including the arbitrability of any dispute or claim, except that the state and federal courts in the State of California will have exclusive authority to decide (1) whether either party complied with the pre-arbitration notice requirements and enjoin any arbitration filed in breach of those requirements; and (2) the enforceability of the prohibition on class, collective, and representative actions, and claims for public injunctive relief. End-User and Zenni also agree that (1) an arbitration award will have no preclusive effect in any other arbitration unless both End-User and Zenni are parties to it, and (2) awards issued in other arbitrations will have no preclusive effect in the arbitration between us unless End-User and Zenni were both parties to the arbitration resulting in the award.  
  4. Class Action Waiver. End-User and Zenni each agree to waive the right to resolve any Dispute in court before a jury and that any arbitration will be conducted only on an individual basis and not in a class, collective or representative action.  Except for a claim for public injunctive relief, which will be severed from any arbitration and may be litigated in a state or federal court in the State of California, any relief or damages awarded to End-User or us will be End-User individual capacity.
  5. Mass Arbitrations.  If a “mass arbitration” is filed as defined under the AAA Mass Arbitration Supplementary Rules (“Mass Arbitration Rules”), End-User and Zenni agree to follow the Mass Arbitration Rules and Consumer Mass Arbitration and Mediation Fee Schedule, as modified by this Agreement.  To increase the efficiency of administration and resolution, in the event 50 or more mass arbitrations are filed, AAA shall (a) administer the demands in batches of 50 demands per batch (to the extent there are fewer than 50 arbitration demands left over after the batching described above, a final batch will consist of the remaining demands); and (b) designate one arbitrator per batch. Notwithstanding anything else in this Agreement, if 1,000 or more mass arbitration demands are filed consistent with the requirements of this Dispute Resolution Agreement, the relative advantages and efficiencies of arbitration may be lost.  In that circumstance, End-User or Zenni may elect to resolve the Dispute by a putative class action filed in the state or federal courts in New York. In that case, End-User and Zenni agree not to object to the filing of a putative class action concerning the Dispute, but do not waive any jurisdictional or other rights under the U.S. Constitution or Federal Rules of Civil Procedure, including the right to contest class certification under Rule 23.
  6. Right to Opt Out of this Arbitration Agreement. End-User may opt out of this Dispute Resolution Agreement within the first 30 days after the earliest of the first time End-User creates an account or otherwise accesses the Services.  End-User may also opt out of this Arbitration Agreement within 30 days after Zenni notifies End-User regarding a material change to this Arbitration Agreement. End-User may opt out by sending an email to legal@zennioptical.com or by sending a letter to 150 Alameda del Prado, Novato, CA 94949. End-User should include End-User printed name, mailing address, and the words “Reject Arbitration.”
  7. Applicable Law for Disputes.  End-User and Zenni agree that the Federal Arbitration Act shall govern any Dispute, including the interpretation, enforcement and all proceedings and that, to the extent applicable, the Dispute will be decided under the substantive law shall be the law of the State of California, excluding its conflict of laws rules, and the Agreement, our Privacy Policy and any other policies posted from time to time on the Site or otherwise provided to End-User.
  1. GENERAL
  1. Export Compliance. The Service and the App may be subject to U.S. and other national export controls and economic sanctions. Individuals or entities owned or controlled, registered in, or related to Cuba, Iran, Sudan, Syria, or North Korea are not permitted to use the App or access the Service without prior written permission from Zenni once granted by the appropriate jurisdiction. The rights and obligations of End-User shall be subject to such United States laws and regulations as shall from time to time govern the license and delivery of technology abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation to the Export Administration Act of 1979, and the Export Administration regulations issued by the Department of Commerce, International Trade Administration, Office of Export Administration. End-User each shall certify that it shall not, directly or indirectly, export, re-export or transship the Service in such manner as to violate such laws and regulations in effect from time to time. End-User shall indemnify and hold harmless Zenni from and against any and all losses, claims and expenses incurred by Zenni as a result of the breach of End-User's obligations under this Section.
  2. Independent Contractors.  In making and performing these Terms of Service, the parties are acting and shall act as independent contractors.  Neither party is, nor will be deemed to be, an agent, legal representative, joint venturer or partner of the other party for any purpose.
  3. Force Majeure.  In the event that Zenni is unable to perform its obligations under these Terms of Service because of acts of God, strikes, equipment or transmission failure, unavailability or poor performance of the Internet, or other causes reasonably beyond its control, Zenni shall not be liable to the End-User for any damages resulting from such failure to perform or otherwise from such causes.
  4. Governing Law.  These Terms of Service and its subject matter shall be governed in accordance with the law of the Commonwealth of Massachusetts, without reference to its conflict of laws principles.
  5. Public Statements.  Either party may disclose the existence of these Terms of Service but may not represent to any third party any positions, statements, intentions or other actions on behalf of the other.
  6. Assignment.  End-User may not assign any of its rights or privileges, or delegate any of its duties or obligations hereunder to any third party without the prior written consent of Zenni.  Any purported assignment in contravention of this Section shall be null and void.  Subject to the foregoing, these Terms of Service shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns.
  7. Notices.  All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand, facsimile transmission, reputable overnight delivery service, or certified mail (return receipt requested), postage prepaid to: (a) in the case of Zenni, to the address set forth on the Zenni website to the attention of the President; and (b) in the case of End-User, to the address set forth in its account information.
  8. Entire Agreement; Amendment.  These Terms of Service constitute the entire agreement between the parties concerning the subject matter hereof and supersedes all prior understandings and agreements between the parties, whether written or oral, regarding the subject matter hereof.  These Terms of Service may not be amended, supplemented or otherwise modified except by an instrument in writing signed by both parties and attached hereto.
  9. Waivers.  A waiver by either party of a breach or violation of any provision of these Terms of Service will not constitute or be construed as a waiver of any subsequent breach or violation of that provision or as a waiver of any breach or violation of any other provision of these Terms of Service.