Effective Date: October 30, 2018
THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND WARBY PARKER RELATING TO THESE TERMS 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, 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.
Things happen quickly, both inside and outside of Warby Parker, so we will sometimes review these Terms to make sure they accurately reflect developments in current law and our business operations. We reserve the right to update and revise these Terms at any time upon 7 days’ notice. We’ll provide notice by changing the “Effective Date” at the top of this page so you can tell if these Terms have changed since your last visit. Please review these Terms regularly because 7 days after we post any changes, your continued use of the Services constitutes your acceptance of the revised Terms.
We only permit individuals who are at least 18 years old and can form legally binding contracts to use the Services. However, even non-adults deserve fantastic eyewear. You can use the Services if you are under 18, but only if you are at least 13 years old and only if a parent or legal guardian who is at least 18 years old supervises you. In all cases, the adult will be the user and is responsible for any and all activity. If you are younger than 13 years old, you may not use the Services (although your parents can still buy glasses for you.
Your use of the Services means you represent and warrant that you meet all eligibility requirements we outline in these Terms. However, we may refuse to let certain people access or use the Services. We may also change our eligibility criteria.
We offer the Services only for personal, noncommercial use, and not for the use or benefit of any third party (unless you are a parent or legal guardian using the Services for your minor child).
4. Your Account
You may be able to navigate some of the Services without creating a user account (”Account”); but certain Services (like making a purchase or ordering a Home Try-On) will require you to create an Account. If you create an Account, you are solely responsible for any activity that occurs through your Account. In order for us to provide you the best possible service, you agree to provide us with complete, accurate, and updated information for your Account at all times. If any information is incorrect or outdated, it can lead to errors or delays, for which we will not be responsible.
You can share a good book, a nice walk, or even a pair of (non-prescription) glasses. You should not, however, share your Account information. And you shouldn’t use another person’s Account or registration information for the Services without permission. Similarly, no one else should be able to use your Account without permission. You are solely responsible for keeping your Account and 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 Account.
You can always delete the personal information from your Account by emailing us at [email protected].
5. Home Try-On
Warby Parker offers a free, five-day Home Try-On program to help you pick your perfect frames. You may choose five frames (which are sent with non-prescription lenses) to try on at home for a five-day period (the “Try-On Period”). For more information about our Home Try-On program, click here or visit the Home Try-On section of our Help page. If the Try-On Period ends and any of the frames have not been placed in the mail, or the frames are returned damaged, we may charge your credit card for the full amount of each pair of frames that are missing or damaged, as explained in more detail on our Help page. By submitting your Home Try-On order, you authorize Warby Parker to charge your card, and you agree to all other terms of our Home Try-On program explained on our Help page. Currently, our Home Try-On program is only available to customers who live in the 50 United States.
6. Getting Your Warby Parker Eyewear
a. Selecting Your Frames. Warby Parker sells eyeglasses and sunglasses with either prescription or non-prescription lenses. To learn more about the lenses we offer, you can visit the Lenses section of our Help page. If you wish to purchase multiple frames using different prescriptions (for example, your distance prescription and your reading prescription), you will have to place those orders separately. To order frames, select your desired frame and click the “Add to Cart” button to add it to your order. When you check out, you will have the option of choosing between prescription and non-prescription lenses.
b. Your Prescription. If you are purchasing prescription eyewear, check out the Prescriptions section of our Help page for the information we need to fill your prescription and to learn how to provide your prescription information to us. If your prescription information is incomplete, we may need to take additional measures to track down current information, which could mean you have to wait longer for your glasses.
We keep your prescription on file for some time after you order your glasses, and we make that information available to you upon request. We will respond to your request as quickly as possible, but be aware that it could take us a day or two to retrieve older prescriptions. Please keep that in mind if you need your information by a certain day or time.
c. Delivery Information. We’ll need your name, address, and telephone number to complete your order and send you your Warby Parker purchase. For information about shipping and delivery, check out the Orders section of our Help page.
d. Payment Information. After you have made your eyewear selections and provided your prescription and shipping information, you will see a prompt for your payment details, such as your credit card information and any promotional codes or gift cards you may have. By entering your payment information and submitting your order, you authorize us and our third party payment processors to charge the amount of the order to your selected payment method.
e. Checking Order Status. We know how exciting it can be to get a delivery, so once your eyewear is on its way to you, we’ll send you an email confirmation with tracking information. Feel free to call us at 888.492.7297, email us at [email protected], or contact us via Twitter @WarbyParkerHelp if you would like to check the status of your order, or if you just want to chat about how excited you are about your new glasses.
f. Changing or Cancelling an Order. Our team works hard to process orders quickly so that you don’t have to wait. However, this means that although we will try our best to accommodate order modifications, we cannot guarantee them. To learn how to change or cancel an order, visit the Orders section of our Help page.
g. Risk of Loss. The risk of loss and title for all products you order passes to you upon our delivery to the carrier (such as FedEx, UPS, or USPS).
h. Returns, Exchanges, and Lens Replacements. For more information about returns and exchanges and replacing your lenses, check out the Orders section of our Help page.
i. Insurance. For information on how to apply your insurance to your purchase, click here.
j. Purchase Limits. We want to give all of our customers an opportunity to buy our glasses. Therefore, we do not authorize the purchase of commercial quantities of glasses, and we may place limits on purchases. We may also, among other things, restrict orders placed by or under the same customer account or the same credit card, or orders that use the same billing or shipping address. We reserve the right to limit, cancel or prohibit orders that, in our judgment, appear to be placed with an intent to resell or distribute our products. We further reserve the right to stop doing business with customers who violate this policy or any other part of our Terms. For more information about placing special orders, check out the Orders section of our Help page.
k. Language. Presently, our order process only supports the English language.
7. Communicating with Warby Parker
a. Text Messages. By opting-in to receive text messages from us or by sending us an initial text message, you agree to receive text messages (a.k.a. SMS messages) from Warby Parker, some of which may be considered marketing and may be sent using an autodialer. You also represent that you are the owner or authorized user of the wireless device you use to subscribe for the mobile service and that you are authorized to approve the applicable charges. You’ll be responsible for all messaging and data charges that may apply. You can opt-out of receiving text messages from us at any time by texting “STOP” from the mobile device receiving the messages. For additional help, you can contact us at 888.492.7297 or [email protected]. And don’t worry - you can make a purchase without agreeing to receive texts from us, and there are many other ways you can communicate with our friendly team, like phone, live chat, email, snail mail, and Morse code :-)
b. Security. We take your privacy very seriously, but the transmission of data over the Internet and mobile networks isn’t 100% secure. Text messages and emails you send to or receive from Warby Parker are not encrypted, which means that they’re vulnerable to interception by third parties. If you choose to communicate financial information, information about your health (including your prescription information), your insurance identification number, or any other sensitive information by text or email, you do so at your own risk. Worried about texting or sending anything sensitive? Just give us a call at 888.492.7297.
8. Intellectual Property
Imitation may be the sincerest form of flattery, but that doesn’t mean you can take any of our intellectual property. All of the content that appears on the Services, including all designs, illustrations, icons, photographs, video clips and written materials, as well as the compilation of the website, Services, and other materials, are the exclusive property of Warby Parker or our licensors and is protected by United States and international copyright laws. All trademarks, service marks, and trade names that appear on the Services and the overall “look and feel” of the Site, the App, and the Services (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 on the Services, 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 the Services. Any unauthorized use of any content or materials on the Services 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.
If you would like to request authorization to use the materials or content on the Services, please contact us at [email protected].
9. Right to Use the Services
After all of the restrictions above, we don’t want it to sound like you can’t even use the Services, so we’ll give you permission right here: subject to your complete and ongoing compliance with these Terms, you have the right to access and use the Services solely for your personal, non-commercial use. This right will allow you to use and enjoy the benefit of the Services as we provide them, in the manner we permit through these Terms. We don’t think you would need to do much else.
Subject to your complete and ongoing compliance with these Terms, you also have the right to use one copy of the App downloaded directly from Warby Parker or from a legitimate marketplace (such as Apple’s iTunes store), solely in object code format, for your personal, non-commercial use 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. The term App, as used in these Terms, includes any update or modification to the App that we make available to you (unless we provide you with separate terms when making the update or modification available).
If you are prohibited under applicable law from using the App or the Services, you may not use them.
10. Restrictions on Your Use of the Services
Just so we’re clear, however, these rights do not allow you to do any of the following:
- interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services.
- 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.
- resell or make any commercial use of the Services or any of the Service content.
- modify, adapt, translate, reverse engineer, decompile, disassemble, or convert into human readable form any of the Service content not intended to be so read, including using or directly viewing the underlying HTML or other code from the Services except as interpreted and displayed in a web browser.
- copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post, store, or transmit any of the Service content, including any Marks, in any form or by any means, including electronic, mechanical, photocopying, recording or otherwise.
- use any manual or automated software devices or other processes (including data mining, bots, spiders, automated tools or similar data gathering and extraction methods) to “crawl” or “spider” any page of the Services or to collect any information from the Services or any user of the Services.
- harvest or scrape any content from the Services, or using other automated or manual means to take our content without our prior consent.
- bypass, circumvent, or attempt to bypass or circumvent any feature of the Services or any measures we may use to prevent or restrict access to the Services, including other accounts, computer systems or networks connected to the Services.
- run any form of auto-responder or “spam” on the Services.
a. User Content
We want to hear from you. Occasionally, you may see areas on the Services where you can post information or communicate with us or other users. We hope you will use these tools to meet the rest of our community and give us your feedback. These areas may be in the form of social media posts, bulletin boards, chat rooms, comment areas, billboards, forums, newsgroups, postings sections or similar communications facilities.
“User Content” is any public communications or any other material you submit, distribute, transmit, or post to Warby Parker (through the Services; through our pages on third party sites, such as Instagram, Twitter and Facebook; or through activities in our stores). You will keep all ownership of and license rights in your User Content although, by providing content to us, you may grant us a license to use it, as we’ll discuss here.
When you submit, distribute, transmit, or post User Content, you give us a right and license to use, copy, reproduce, process, adapt, modify, publish, transmit, display, and distribute your User Content in any and all media formats or distribution channels. You agree that this license includes the right for Warby Parker to use your User Content to provide, promote, and improve the Services. You agree that this license is irrevocable, non-exclusive, perpetual, worldwide, transferable, sublicensable, fully paid, and royalty-free, and will survive termination of your Account. Please note that we may use User Content without compensation of any kind to you, including if we use User Content for advertising or promotional purposes. You also agree that if your User Content contains any ideas, concepts, know-how, or techniques, we can use the User Content and anything it contains for any purpose including, but not limited to, developing, manufacturing, and marketing products. Be assured you have our thanks. Lots of it.
In addition to giving Warby Parker a license, you also give each user of the Services an irrevocable, non-exclusive, perpetual, worldwide, transferable, sublicensable, fully paid, and royalty-free right and license to access your User Content through the Services and to use, edit, modify, publish, reproduce, distribute, prepare derivative works of, display, perform, adapt, and promote such submissions, including after any termination of your Account.
The bottom line is that if you share something with us, you keep ownership of it and can continue to do anything you want with it, but you allow us and our other users to use your User Content as we see fit. If you don’t agree to these conditions, then please don’t provide the materials to us.
b. Representations About Your User Content
We need you to promise us certain things about your submissions so that you don’t get us into trouble. (We really appreciate it.) When you submit User Content, you represent and warrant (archaic lawyer words for “pinky promise”) that:
- you hold all necessary right, title, and license to such materials (in other words, you own it or have the right to give it to us).
- your submission of such materials to Warby Parker does not and, when used by Warby Parker as authorized under these Terms, will not violate or infringe the rights of any third-parties, including any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights (you didn’t take it from someone else without permission).
- all User Content you provide is accurate, complete, up-to-date, and not misleading (you’re not lying).
In addition, any User Content must not:
- include any profanity or obscene, indecent, or pornographic material.
- contain any unauthorized or unsolicited advertising, such as spam (no one likes spam).
- contain software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of ours or of any third party.
- impersonate any person or entity (we like you just the way you are!).
- include anyone’s identification documents or sensitive financial information.
c. Private vs. Non-private Content
d. A Note About Third-Party Content and User Content
You may see a lot of content on the Services (especially with your new eyewear). Some of this content will come from other users or sources outside of Warby Parker. All content, including User Content and third-party content, is the responsibility of the party that creates it. Warby Parker does not control or endorse any User Content or third-party content, and we make no claims or representations regarding any content we do not create. We may provide links to third-party sites or resources, but these links do not mean we endorse or have any associations with the third parties. If any damage or loss results from your use of, reliance on, or any other connection between you and any content that any third party makes available, you acknowledge and agree that we are not responsible or liable, directly or indirectly. When you access third-party resources on the Internet, you do so at your own risk.
Disrupting traditional models in the eyewear industry keeps us pretty busy, but we still try to stay on top of things happening around the Services. We may review content on the Services, but we do not have an obligation to do so. We reserve the right to review, remove, block, or modify any content on the Services, including User Content, without notice or further obligation to you.
We take no responsibility related to third-party content, User Content, or any actions resulting from your use of any part of the Services. Warby Parker will have no liability in connection with any content submitted to, transmitted via, or displayed or posted on or through the Services, regardless of whether Warby Parker or another party provides it.
12. Copyright Policy
Just as we ask you to respect our intellectual property rights, we respect your rights and the rights of others, and we expect all our users to do the same. If we believe a user may be infringing upon someone’s intellectual property rights, we may remove the material. If we believe someone is repeatedly infringing, we will terminate that person’s access rights.
If you believe someone has posted on the Services a work that you own without your authorization, let us know. Please send a notice of copyright infringement containing the following information to our Designated Agent (whose contact information is below):
- a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed.
- identification of works or materials being infringed.
- identification of the material that is claimed to be infringing, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence.
- your contact information, including address, telephone number and, if available, e-mail address.
- a statement that you have a valid belief that the material is not authorized by the copyright owner, its agent, or the law.
- a statement made under penalty of perjury that the information provided is accurate and you are authorized to make the complaint on behalf of the copyright owner.
Please contact the Designated Agent to receive notice of claimed infringement by calling 888.492.7297, emailing [email protected], or writing Warby Parker, 233 Spring Street, New York, NY 10013, USA, Attn: Legal Department.
13. WARRANTY DISCLAIMER
a. We like you and want you to be a long-time customer, but we have no special relationship with you. You understand and agree that we have no control over, and no duty to take any action regarding:
- which users access the Services.
- what content you access via the Services.
- what effects the content may have on you.
- how you may interpret or use the content.
- what actions you may take as a result of your exposure to the content.
b. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. We make no representations concerning any content contained in or accessed through the Services, and, to the fullest extent permitted by law, we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such organizations and/or individuals.
(Sorry about this, but the below gets a little dense. All-caps doesn’t mean we’re yelling; our lawyers told us to do it.)
c. THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WARBY PARKER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES OR ANY CONTENT ON THE SERVICES, WHETHER PROVIDED OR OWNED BY WARBY PARKER OR BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. IN ADDITION, WARBY PARKER DOES NOT REPRESENT OR WARRANT THAT THE CONTENT ACCESSIBLE VIA THE SERVICES IS ACCURATE, COMPLETE, AVAILABLE, CURRENT, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE RESULTS OF USING THE SERVICES WILL MEET YOUR REQUIREMENTS.
14. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WARBY PARKER OR ANYONE REPRESENTING WARBY PARKER BE LIABLE TO YOU UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR (A) 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 THE SERVICES OR ANY ERRORS OR OMISSIONS IN ANY CONTENT; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF 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 THE SERVICES; OR (IV) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY (REGARDLESS OF THE SOURCE OF ORIGINATION) OR (B) ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) OF THE GREATER OF (I) FEES PAID TO US FOR THE APPLICABLE PRODUCTS; OR (II) $500.00.
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.
We really hope we won’t ever have to do this, but we reserve the right to terminate your license to use the Services or block or prevent your access to the Services, without providing you with notice or reason. In the event of termination, your obligations under these Terms will still continue.
16. Governing Law
No matter where you’re located, the laws of the State of New York will govern these Terms and the relationship between you and Warby Parker as if you signed or otherwise agreed to these Terms in New York, without regard to New York’s conflicts of laws rules. If any provisions of these Terms 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, 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 the Services or your breach of these Terms.
17. Dispute Resolution and Arbitration
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 or your use of the Services 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 or your use of the Services, 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. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, 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 will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) 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, 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., 233 Spring Street, New York, NY 10013, Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) 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, 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: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) 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 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(f) 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 17 will govern any action arising out of or related to these Terms.
If it turns out that any part of these Terms are invalid, void, or for any reason unenforceable, that term will be deemed severable and limited or eliminated to the minimum extent necessary. The limitation or elimination of the term will not affect any other terms. NOTHING IN THESE TERMS WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO YOU.
19. Consent to Electronic Communications
20. Notice Regarding Apple
To the extent that you are using the App on an iOS device, you further acknowledge and agree to the terms of this Section 20. You acknowledge that these Terms are between you and Warby Parker only, not with Apple Inc. (“Apple”), and that Apple is not responsible for the Services and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you, and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by you or any third party relating to the Services or your possession and/or use of the Services, including, but not limited to: (a) product liability claims; (b) any claim that the Services fail to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third party claim that the Services and/or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Services. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms and, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms.
You hereby represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
21. Entire Agreement
These Terms constitute the entire agreement between you and Warby Parker and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, with respect to these Services. Any rights not expressly granted herein are reserved.
We take our commitment to customers seriously, and we’ll do what we can for you. However, sometimes things may come up that are outside of our control. We will not be liable for any failure to perform any of our obligations stated in these Terms if the failure results from a cause beyond our reasonable control, including mechanical, electronic or communications failure or degradation.
You cannot assign, transfer or sublicense these Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without your consent. These Terms do not create any agency, partnership, joint venture, or employment relationship, and neither party has any authority to bind the other in any respect.
If we do not enforce any part of these Terms, it does not mean we give up the right to later enforce that or any other part of these Terms. In order for any waiver of compliance with these Terms to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
The section and paragraph headings in these Terms are for convenience only and do not affect their interpretation.
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