TERMS OF SERVICE
In order to use the eyeQ® service (the “The Service” or “eyeQ®”), access the information contained on the eyeQ® website (the “Website”) or make use of the services provided by eyeQ® (the “Service” or “Services”), you (hereinafter referred to as “You” or “Customer”) must first read this agreement (the “Agreement”) and accept it. You may not avail Yourself of the Service, Website or Services if You do not accept this Agreement and the terms therein. You accept the terms of the Agreement by clicking to accept, by agreeing to the terms of the Agreement in the user interface for any eyeQ® Service, or by using the eyeQ® phone numbers or Services. You understand and agree that we will treat Your use of the Services as acceptance of the terms from that point onwards. BY USING eyeQ® AND THE eyeQ® WEBSITE, YOU CONSENT TO THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE PLEASE DO NOT USE THE WEBSITE AND/OR SERVICES.
If You are accepting on behalf of Your employer or another entity, You represent and warrant that: (i) You have full legal authority to bind your employer, or the applicable entity, to these terms of service; (ii) You have read and understand this Agreement; and (iii) You agree, on behalf of the party that You represent, to this Agreement. If You don’t have the legal authority to bind Your employer or the applicable entity, please do not create an account.
We reserve the right to change these Terms of Service from time to time without notice by posting them to eyeQ®’s website. When we do, we will also revise the “last update” date of these Terms of Service. Your continued use of the Service after such posting will constitute acceptance by You of such amendments.
1. Grant of Rights to Use Services
1.1 Subject to Your acceptance of and compliance with this Agreement and with the payment requirements for the Services, eyeQ® hereby grants You a limited, non-exclusive, non-transferable, non-sublicenseable, revocable right and license during the Term of this Agreement in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement. Unless explicitly stated otherwise, any new features provided by eyeQ® that augment or enhance the current Services shall also constitute “Services” and shall be subject to these terms and conditions. You may not, nor allow any third party to, copy, distribute, sell, disclose, lend, transfer, convey, modify, decompile, disassemble or reverse engineer the Services for any purpose whatsoever. You may not allow any unauthorized third party to access the Services for any purpose whatsoever. All rights not expressly granted under this Agreement are retained by eyeQ®.
2. Representations and Warranties; Disclaimers; Limitations of Liability
2.1 You represent and warrant that You will not use the eyeQ® Website, Services, eyeQ® Properties, eyeQ® Marks, or Your message Content in a manner that violates the Acceptable Use Policy. To this effect, we ask that You take reasonable precautions to promote best practices. Although eyeQ® does not assume the duty or obligation to monitor any materials created, posted or sent by You or any third parties, eyeQ® reserves the right, in its sole and absolute discretion, to monitor any and all materials posted or sent by You or any third parties at any time without prior notice to ensure that they conform to any usage guidelines or policies relating to our Website or Services.
2.2 You agree that eyeQ® will not be liable for damages (including consequential or special damages) arising out of any use of the Service or any loss related to use of the Service or any such loss and You hereby waive any claims with respect to any such loss, whether based on contractual, tort or other grounds, even if eyeQ® has been advised of the possibility of damages.
2.3 You represent and warrant: (i) that You are solely responsible for Your Content (defined as message content between yourself, agents, customers, and employees, including messaging in signage), including without limitation, the accuracy, appropriateness and completeness of Your Content and all product-related materials and descriptions; (ii) that You have the necessary rights and licenses, consents, permissions, waivers and releases to use and display Your Content; (iii) that Your Content (a) violates, misappropriates or infringes any rights of us or any third party, (b) constitutes defamation, invasion of privacy or publicity, or otherwise violates any rights of any third party, or (c) is designed for use in any illegal activity or promotes illegal activities, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, illegal or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, or age; (iv) that Your Content contains any harmful components; and (v) to the extent to which You use any of the eyeQ® Marks, that You will conduct Your business in a professional manner and in a way that reflects favorably on the goodwill and reputation of eyeQ®. You also represent and warrant that You are responsible for any charges incurred by virtue of Your use of the Service.
2.4 eyeQ® PROPERTIES, THE eyeQ® MARKS, THE SERVICES AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, CONTENT, IMAGES, MATERIALS AND OTHER DATA OR INFORMATION PROVIDED BY US OR OUR LICENSORS IN CONNECTION THEREWITH (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” WE AND OUR LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE eyeQ® PROPERTIES, THE eyeQ® MARKS, THE SERVICES OR THE PROMOTIONAL CREDITS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR LICENSORS DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. WE AND OUR LICENSORS DO NOT WARRANT THAT THE SERVICES OR WEBSITE WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE DATA YOU STORE WITHIN THE SERVICES WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. WE AND OUR LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY SERVICE OR WEBSITE INTERRUPTIONS, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY THIRD PARTY OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
2.5 NEITHER WE NOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE eyeQ® PROPERTIES, THE eyeQ® MARKS, THE SERVICES OR PROMOTIONAL CREDITS; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
3.1 Customer shall be responsible for all charges up to the amount of each invoice, and shall pay all charges in U.S. Dollars or in such other currency as agreed to in writing by the parties. Unless agreed to by the parties in writing, Customer shall pay all charges in accordance with the payment terms in the applicable invoice. Attempts to receive payment will be attempted three times, and after the final failed attempt the Customer’s account(s) will be suspended. Customer acknowledges and agrees that any credit card and related billing and payment information that Customer provides to eyeQ® may be shared by eyeQ® with companies who work on eyeQ®’s behalf, such as payment processors and/or credit agencies, solely for the purposes of checking credit, effecting payment to eyeQ® and servicing Customer’s account. eyeQ® may also provide information in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. eyeQ® shall not be liable for any use or disclosure of such information by such third parties.
4. Be Nice
4.1 Should you have additional users affiliated or connected to your relationship with eyeQ® Be nice to your guests. It’s just good business. We promise we’ll always be nice to you, since you’re our customer.
4.2 Be nice to us, too. We’re good people who are trying to run a business by offering a service that we hope will help your business, make your customers happy, and make the world a little better.
4.3 Be nice to our service. If you encounter any issues with the Service during your use, plesae contact us and make us aware of what you are experiencing. We will do our best to resolve any issues in a timely and mutually beneficial manner.
5. Non-payment and cancellation of account
5.1 In the event that payment fails on your account’s billing card, we will retry three times. We will retry the first time one day later, and if that fails we will attempt again three days after that. If that attempt fails, we will attempt again five days later. If that final payment attempt fails, we will suspend your account. After each failure we will notify the account administrator(s) by email.
6. 90 Day Performance Guarantee
6.1 Our goal is to make sure you are completely satisfied with the eyeQ® program. If for any reason at all you’re not absolutely thrilled with eyeQ®, simply contact us within 90 days of your original purchase and we’ll refund you for every single penny.
7.1 To the fullest extent permitted by law, eyeQ® DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION FOR NONINFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. To the fullest extent permitted by law, eyeQ® disclaims all guarantees regarding quantity, quality, or timing of: (i) site performance; (ii) performance guarantees past or present; (iii) availability of features or compatibility; (iv) any such medical claims arising from use of the product; EXCEPT FOR INDEMNIFICATION AMOUNTS PAYABLE TO THIRD PARTIES HEREUNDER AND CUSTOMER’S BREACHES OF SECTION 1, TO THE FULLEST EXTENT PERMITTED BY LAW: (a) NEITHER PARTY WILL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, REVENUE, INTEREST, GOODWILL, LOSS OR CORRUPTION OF DATA OR FOR ANY LOSS OR INTERRUPTION TO CUSTOMER’S BUSINESS) WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY; AND (b) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER IS LIMITED TO AMOUNTS PAID OR PAYABLE TO eyeQ® BY CUSTOMER FOR THE MESSAGE GIVING RISE TO THE CLAIM. Except for payment obligations, neither party is liable for failure or delay resulting from a condition beyond the reasonable control of the party, including without limitation to acts of God, government, terrorism, natural disaster, labor conditions and power failures.