Effective Date: February 2, 2018
1. Your Prescription Check.
JAND, Inc. d/b/a Warby Parker (“Warby Parker,” “we,” “us” or “our”) operates a mobile application and related website (the “Prescription Check App”) and retail store service and related website (the “In-Store Prescription Check” and, collectively with the Prescription Check App, “Prescription Check”) that you may use for the purpose of performing a vision test that may allow you to update your eyewear prescription. When you use Prescription Check, you will provide us with certain information about yourself by (1) answering a series of questions (“Eligibility Questionnaire”) to determine whether you are eligible to participate in the Prescription Check Vision Test, (2) performing a series of tasks to help an Eye Doctor determine whether to issue you an updated eyewear prescription (“Vision Test”), and/or (3) communicating with Warby Parker or an Eye Doctor in connection with your use of Prescription Check. Prescription Check allows a licensed optometrist or ophthalmologist (each an “Eye Doctor”) to review your Eligibility Questionnaire, your Vision Test, and other information about you and provide you with certain telehealth services related to your vision (the “Services”). The In-Store Prescription Check Vision Test includes an acuity test and measurement of your refractive error using a handheld device. After reviewing your Eligibility Questionnaire, your Vision Test, and other information about you, one or more Eye Doctors, solely in their independent professional judgment, will determine whether to issue you an updated prescription for corrective eyewear or, alternatively, to recommend that you receive a comprehensive eye exam.
If you’d like to speak with the Eye Doctor who reviewed the results of your Eligibility Questionnaire and Vision Test, please call us at 888-492-7297 so that we can connect you with him or her. Upon your request, we can send a copy of your results to your primary care physician.
Please note that currently Prescription Check is available only to individuals in the United States between the ages of 18 and 50, and that we do not knowingly allow individuals under the age of 18 or above the age of 50 to access Prescription Check. Prescription Check may not be available in certain states. You may not access or use Prescription Check or the Services in any jurisdiction where Prescription Check or the Services would be unlawful.
Please note that neither Prescription Check nor the Services constitutes 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. Prescription Check is not a replacement for a comprehensive eye examination, and the Eye Doctors who provide you Services in connection with Prescription Check are not intended to replace in-person medical care. It is recommended that you receive a comprehensive eye examination at intervals recommended by your doctor. You should seek emergency help or follow-up care when recommended by an Eye Doctor or when otherwise needed, and you should continue to consult with your primary care physician and other healthcare professionals.
2. Healthcare Services.
All Eye Doctors who deliver Services through Prescription Check 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 Prescription Check 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 Prescription Check 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.
If you receive an eyewear prescription as a result of Prescription Check and the Services, we will email you a copy of the prescription. We will also add the prescription information to your Warby Parker account, which will appear in your account as “[your first name]’s Prescription Check Rx.” It is your right to use that prescription to purchase eyeglasses from anywhere you’d like.
If the Eye Doctor determines that you are not eligible for an updated eyewear prescription through Prescription Check, we will then notify you by email and may include additional notes or recommendations from the Eye Doctor.
4. Telehealth Informed Consent.
- You understand that neither Prescription Check 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 that your Eye Doctor may, in his or her independent professional opinion, determine that you are not eligible for an updated eyewear prescription through Prescription Check.
5. Your Information.
7. Your Warby Parker Account.
A personal Warby Parker account is required to access the Prescription Check App. If you have already created a Warby Parker account, you may access Prescription Check 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.
You agree to pay all fees or charges related to Prescription Check 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 Prescription Check, the Vision Test, or the Services. Please check with your vision insurance provider to see whether Prescription Check is reimbursable as an out-of-network benefit.
Currently, Prescription Check supports only the English language.
10. Intellectual Property.
All of the content that appears within Prescription Check, including without limitation all designs, illustrations, icons, photographs, video clips, and written materials, as well as the compilation of the Prescription Check 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 Prescription Check and the overall “look and feel” of Prescription Check (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 Prescription Check, 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 Prescription Check. Scraping Prescription Check 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 Prescription Check 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.
In addition, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party Prescription Check or related materials in any way; (ii) modify or make derivative works based upon Prescription Check or related materials; (iii) design or build a product using similar ideas, features, functions, or graphics of Prescription Check or copy any ideas, features, functions, or graphics of Prescription Check; 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 Prescription Check.
You are not permitted to do any of the following while accessing or using Prescription Check:
- 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 Prescription Check or any activities conducted within Prescription Check;
- bypass, circumvent, or attempt to bypass or circumvent any measures we may use to prevent or restrict access to Prescription Check, including without limitation other accounts, computer systems, or networks connected to Prescription Check;
- run any form of auto-responder or “spam” on Prescription Check; or
12. DISCLAIMER OF WARRANTIES
YOU EXPRESSLY AGREE THAT USE OF PRESCRIPTION CHECK IS AT YOUR SOLE RISK. PRESCRIPTION CHECK 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 PRESCRIPTION CHECK, 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 PRESCRIPTION CHECK, 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 PRESCRIPTION CHECK, 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 PRESCRIPTION CHECK, 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.
16. Governing Law.
17. Dispute Resolution.
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: JAND, Inc., 161 Avenue of the Americas, 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.
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.
18. Notice regarding Apple.
20. For Users in Colorado, Vermont, and Alaska.
If you are located in Colorado, the results of your Eligibility Questionnaire and Vision Test will be reviewed by Kathleen Maloney, O.D. If you are located in Vermont or Alaska, the results of your Eligibility Questionnaire and Vision Test will be reviewed by Peter Karth, M.D.