1. Your Virtual Vision Test.

2. Healthcare Services.

All Eye Doctors who deliver Services through Virtual Vision Test are independent professionals and are solely responsible for the eye care services provided to you. Warby Parker does not provide optometric or medical services through Virtual Vision Test and is not licensed to practice optometry or medicine. Instead, we contract with one or more professional corporations and/or licensed Eye Doctors to provide the Services to you. None of the content on Virtual Vision Test or communications you receive from Warby Parker should be considered medical or optometric advice. You acknowledge and agree that Warby Parker does not provide medical advice, diagnosis, or treatment, and provides only a technology platform and infrastructure for connecting individuals with independent third party Eye Doctors. You acknowledge and agree that the Eye Doctors are solely responsible for and will have complete authority, responsibility, supervision, and control over the provision of the medical services, including the updated prescriptions for eyeglasses.

3. Prescriptions.

If you receive an eyewear prescription as a result of using Virtual Vision Test and the Services, we will email you a copy of the prescription. We will also add the prescription information to your Warby Parker account. It is your right to use that prescription to purchase eyeglasses or contact lenses from anywhere you’d like.

If the Eye Doctor determines that you are not eligible for a renewed eyewear prescription through Virtual Vision Test, we will then notify you by email and may include additional notes or recommendations from the Eye Doctor.

A quick note: Emails you send to or receive from Warby Parker or an Eye Doctor are not encrypted, which means that they’re vulnerable to interception by third parties. By using Virtual Vision Test, you agree that Warby Parker may email you a copy of your prescription and that Warby Parker and, if applicable, an Eye Doctor may communicate with you over email.

4. Telehealth Informed Consent.

Virtual Vision Test and the Services constitute a form of telehealth, which involves the electronic transmission of information between patients and healthcare professionals who provide optometric and/or medical services to patients remotely. We believe that telehealth—and Virtual Vision Test specifically—has the potential to provide a number of benefits, such as more efficient vision testing and improved access to eye care and eyewear prescriptions, since Virtual Vision Test enables patients to consult Eye Doctors from distant and convenient locations. However, as with any healthcare services, there are potential risks associated with the use of telehealth. Delays in evaluation or treatment could occur due to deficiencies or failures of the electronic equipment or systems. In rare instances, security protocols could fail, causing unauthorized access to your Personal Information or Health Information. Additionally, limitations in the technology, lack of access to complete information (including medical records), and the remote nature of telehealth may limit an Eye Doctor’s ability to determine whether an updated eyeglass prescription should be issued. By accepting these Terms of Use, you acknowledge and agree that:

• You understand that neither Virtual Vision Test nor the Services is a comprehensive eye examination, or should be considered, or used as a substitute for, a comprehensive eye examination, and neither tests for abnormalities, diseases, or risk factors of disease.
• You understand that you may expect the anticipated benefits from the use of telehealth in your care, but that no results can be guaranteed or assured.
• You understand and agree to our Privacy Policy.
• You understand that your Eye Doctor may, in his or her independent professional opinion, determine that you are not eligible for an updated eyewear prescription through Virtual Vision Test.

5. Your Information.

"Health Information" is information that relates to your past and present health or vision conditions (including medications, ailments, and prescriptions) that is derived from your use of Virtual Vision Test. “Personal Information” is information about you, including your first name, last name, and demographic information, derived from your use of Virtual Vision Test. By accepting these Terms of Use and using Virtual Vision Test, you agree and confirm that all Health Information and Personal Information that you have provided to Warby Parker and/or Eye Doctors is truthful and accurate, including, without limitation, your answers to the Eligibility Questionnaire.

6. Privacy.

Our Virtual Vision Test Privacy Policy describes the information that we gather from you when you use Virtual Vision Test and how we use and share that information.

7. Your Warby Parker Account.

A personal Warby Parker account is required to access the Virtual Vision Test App. If you have already created a Warby Parker account, you may access Virtual Vision Test by entering your username and password on the app’s sign-in screen. If you do not have a Warby Parker account, you may create one within the app. Please do not use anyone else’s Warby Parker account and do not share your Warby Parker account information with anyone else. You are solely responsible for keeping your Warby Parker account and Warby Parker account password secure and for any consequence resulting from your failure to do so. You should never publish, distribute, or post login information for your Warby Parker account. You do not need a Warby Parker account in order to use the In-Store Prescription Check, but you will need to provide your email address.

8. Payment.

You agree to pay all fees or charges related to Virtual Vision Test as posted at the time of your Vision Test. By entering your payment information, you authorize us and our third party payment processors to charge the amount due. Please note that you will be charged for your Vision Test only if an Eye Doctor issues you an eyewear prescription as a result of your Vision Test. Currently, we are not accepting any vision insurance for Virtual Vision Test, In-Store Prescription Check, the Vision Test, or the Services. Please check with your vision insurance provider to see whether the Services are reimbursable as an out-of-network benefit.

9. Language.

Currently, In-Store Prescription Check and Virtual Vision Test supports only the English language.

10. Intellectual Property.

All of the content that appears within Virtual Vision Test, including without limitation all designs, illustrations, icons, photographs, video clips, and written materials, as well as the compilation of the Virtual Vision Test App and other materials, are the exclusive property of Warby Parker or our licensors and are protected by United States and international copyright laws. All trademarks, service marks, and trade names that appear within Virtual Vision Test and the overall “look and feel” of Virtual Vision Test (collectively the “Marks”) are proprietary to Warby Parker, or the respective owners of such Marks. You may not display, reproduce, or otherwise use the content or materials within Virtual Vision Test, including the Marks, without first receiving written consent from us. You may not remove or otherwise modify any legal or trademark notices from any content we make available through Virtual Vision Test. Scraping Virtual Vision Test or using other automated or manual means to take our content without our prior consent is expressly prohibited. Any unauthorized use of any content or materials on Virtual Vision Test is strictly prohibited and violates copyright, trademark, and/or other intellectual property laws, and/or the laws of privacy, publicity, and/or communications regulations and statutes.

However, subject to your compliance with these Terms of Use, we grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use one copy of the Virtual Vision Test App downloaded directly from Warby Parker or from a legitimate marketplace (such as Apple’s App Store), solely in object code format, for your personal use for lawful purposes, on a single compatible mobile device that you own or control, for the purpose of accessing and using the Services in accordance with these Terms of Use. You may not reproduce, distribute, publicly display, or publicly perform Virtual Vision Test or any part of the Services. Unless, and solely to the extent that, such a restriction is impermissible under applicable law or applicable third party license, you may not (a) decompile, reverse engineer, or otherwise access or attempt to access the source code for Virtual Vision Test, or make or attempt to make any modification to Virtual Vision Test; or (b) interfere with or circumvent any feature of Virtual Vision Test, including without limitation any security or access control mechanism. You may not use Virtual Vision Test for any purpose other than a purpose for which the Virtual Vision Test is expressly designed. The term Virtual Vision Test, as used in these Terms of Use, includes any update or modification to the Virtual Vision Test App or In-Store Prescription Check that we make available to you. If you are prohibited under applicable law from using Virtual Vision Test, you may not use it.

In addition, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party Virtual Vision Test or related materials in any way; (ii) modify or make derivative works based upon Virtual Vision Test or related materials; (iii) design or build a product using similar ideas, features, functions, or graphics of Virtual Vision Test or copy any ideas, features, functions, or graphics of Virtual Vision Test; or (iv) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses, or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Services.

11. Access to Virtual Vision Test.

You are not permitted to do any of the following while accessing or using Virtual Vision Test:

• take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third party providers’ infrastructure
• interfere or attempt to interfere with the proper working of Virtual Vision Test or any activities conducted within Virtual Vision Test
• bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to Virtual Vision Test, including without limitation other accounts, computer systems, or networks connected to Virtual Vision Test
• run any form of auto-responder or “spam” on Virtual Vision Test; or
• otherwise take any action in violation of these Terms of Use or our Privacy Policy.

12. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY AGREE THAT USE OF VIRTUAL VISION TEST IS AT YOUR SOLE RISK. VIRTUAL VISION TEST AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WARBY PARKER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, AND SYSTEM INTEGRATION.

13. Limitation of Liability.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WARBY PARKER ITS OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, LICENSORS, OR THIRD PARTIES WITH WHOM WE CONTRACT (INCLUDING EMPLOYEES OR INDEPENDENT CONTRACTORS OF SUCH THIRD PARTIES) BE LIABLE TO YOU UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER RESULTING FROM: (I) YOUR ACCESS TO, USE OF, OR RELIANCE ON ANY CONTENT PROVIDED THROUGH VIRTUAL VISION TEST, THE ELIGIBILITY QUESTIONNAIRE, THE VISION TEST, OR THE SERVICES OR ANY ERRORS OR OMISSIONS IN ANY CONTENT; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF VIRTUAL VISION TEST, THE ELIGIBILITY QUESTIONNAIRE, THE VISION TEST, OR THE SERVICES OR WARBY PARKER’S SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM VIRTUAL VISION TEST, THE ELIGIBILITY QUESTIONNAIRE, THE VISION TEST, OR THE SERVICES; OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH VIRTUAL VISION TEST, THE ELIGIBILITY QUESTIONNAIRE, THE VISION TEST, OR THE SERVICES BY ANY THIRD PARTY (REGARDLESS OF THE SOURCE OF ORIGINATION). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS APPLY REGARDLESS OF LEGAL THEORY, WHETHER BASED ON TORT, STRICT LIABILITY, BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT WARBY PARKER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14. Indemnification.

You agree to indemnify, defend, and hold harmless Warby Parker, its officers, directors, employees, agents, subsidiaries, affiliates, licensors, and suppliers, from and against any claim, actions, demands, liabilities, and settlements, including without limitation reasonable legal and accounting fees (“Claims”), resulting from, or alleged to result from, your violation of these Terms of Use. In addition, you agree to indemnify, defend and hold harmless your Eye Doctors from and against any third party Claims resulting from your failure to follow the advice or recommendation of such Eye Doctor.

15. Termination.

Warby Parker reserves the right to terminate your license to use Virtual Vision Test or block or prevent your access to Virtual Vision Test, without providing you with notice or reason. In the event of termination, your obligations under these Terms of Use will still continue.

16. Governing Law.

No matter where you’re located, the laws of the State of New York will govern these Terms of Use and the relationship between you and Warby Parker, without regard to New York’s conflicts of laws rules. If any provisions of these Terms of Use are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. If a lawsuit or court proceeding is permitted under these Terms of Use, then the parties agree to submit to the federal or state courts in New York County, New York for exclusive jurisdiction for the purpose of litigating any dispute arising out of or related to your use of Virtual Vision Test or your breach of these Terms of Use.

17. Dispute Resolution.

A. Generally. In the interest of resolving disputes between you and Warby Parker in the most expedient and cost effective manner, you and Warby Parker agree that every dispute arising out of or in connection with these Terms of Use or your use of Virtual Vision Test will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and may be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms of Use or your use of Virtual Vision Test, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms of Use. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS OF USE, YOU AND WARBY PARKER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

B. Exceptions. Despite the provisions of Section 17.A, nothing in these Terms of Use will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

C. Arbitrator. Any arbitration between you and Warby Parker will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures 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 filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Warby Parker. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

D. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Warby Parker's address for Notice is: Warby Parker Inc., 233 Spring Street, 6th Floor East, New York, NY 10013, Attn: Legal Department. The Notice must: (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Warby Parker may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Warby Parker must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, we will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Warby Parker in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

E. Fees. If you commence arbitration in accordance with these Terms of Use, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Warby Parker for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

F. No Class Actions. YOU AND WARBY PARKER 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 Warby Parker agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

G. Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice, you may reject the change by sending us written notice within 30 days of the change to our address for Notice within 30 days of the change, in which case your account with Warby Parker will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.

H. Enforceability. If Section 17.F is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms of Use.

18. Notice regarding Apple.

To the extent that you are using the Virtual Vision Test App on an iOS device, you further acknowledge and agree to the terms of this Section 18. You acknowledge that these Terms of Use are between you and Warby Parker only, not with Apple Inc. (“Apple”), and that Apple is not responsible for the Virtual Vision Test App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Virtual Vision Test App. In the event of any failure of the Virtual Vision Test App to conform to any applicable warranty, you may notify Apple and Apple will refund to you any applicable purchase price for the mobile application. To the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Virtual Vision Test App. Apple is not responsible for addressing any claims by you or any third party relating to the Virtual Vision Test App or your possession and/or use of the Virtual Vision Test App, including, but not limited to: (i) product liability claims; (ii) any claim that the Virtual Vision Test App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Virtual Vision Test App and/or your possession and use of the Virtual Vision Test App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Virtual Vision Test App. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Use, and, upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as a third party beneficiary of these Terms of Use. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

19. Applicability of these Terms of Use.

These Terms of Use apply only to your use of Virtual Vision Test and any email, text, or other electronic communications related to your use of Virtual Vision Test. These Terms of Use do not apply to your use of other Warby Parker websites, apps, or stores. Please visit warbyparker.com/terms-of-use for more information.

20. For Users in North Carolina, Missouri, Utah, Wisconsin, and Vermont.

For Users located in North Carolina, Missouri, Utah, Wisconsin, or Vermont, the results of your Eligibility Questionnaire and Vision Test will be reviewed by a practitioner as set forth in Table 1 below.

Table 1. Eligibility Questionnaire Practitioner Disclosure.