Effective Date: February 2, 2018

Prescription Check Terms of Use

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.

By accessing and using Prescription Check, you agree to be bound by these Terms of Use and all other terms and policies. If you do not wish to be bound by any of these Terms of Use, you may not use Prescription Check or the Services. Note that these Terms of Use should not be confused with Warby Parker’s general website’s Terms of Use.

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.

THESE TERMS OF USE PROVIDE THAT ALL DISPUTES BETWEEN YOU AND WARBY PARKER RELATING TO THESE TERMS OF USE OR YOUR USE OF THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS OF USE, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY, AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW SECTION 17 (“DISPUTE RESOLUTION AND ARBITRATION”) FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH WARBY PARKER.

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.

3. Prescriptions.

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.

Prescription Check 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 Prescription Check 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 Prescription Check 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 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 and agree to the Prescription Check 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 Prescription Check.

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 Prescription Check. “Personal Information” is information about you, including your first name, last name, and demographic information, derived from your use of Prescription Check. By accepting these Terms of Use and using Prescription Check, 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 Prescription Check Privacy Policy describes the information that we gather from you when you use Prescription Check and how we use and share that 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.

8. Payment.

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.

9. Language.

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.

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 Prescription Check 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 Prescription Check 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 Prescription Check, or make or attempt to make any modification to Prescription Check; or (b) interfere with or circumvent any feature of Prescription Check, including without limitation any security or access control mechanism. You may not use Prescription Check for any purpose other than a purpose for which the Prescription Check is expressly designed. The term Prescription Check, as used in these Terms of Use, includes any update or modification to the Prescription Check App or In-Store Prescription Check that we make available to you. If you are prohibited under applicable law from using Prescription Check, 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 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
  • otherwise take any action in violation of these Terms of Use or our Prescription Check Privacy Policy.

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.

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 Prescription Check or block or prevent your access to Prescription Check, 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 Prescription Check 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 Prescription Check 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 Prescription Check, 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 16.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: 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.

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 16.F is found to be unenforceable or if the entirety of this Section 16 is found to be unenforceable, then the entirety of this Section 16 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 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 Prescription Check App on an iOS device, you further acknowledge and agree to the terms of this Section 17. 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 Prescription Check App or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Prescription Check App. In the event of any failure of the Prescription Check 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 Prescription Check App. Apple is not responsible for addressing any claims by you or any third party relating to the Prescription Check App or your possession and/or use of the Prescription Check App, including, but not limited to: (i) product liability claims; (ii) any claim that the Prescription Check 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 Prescription Check App and/or your possession and use of the Prescription Check App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Prescription Check 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 Prescription Check and any email, text, or other electronic communications related to your use of Prescription Check. 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 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.