This Agreement was last revised on June 14, 2023.
Use of Our Service.Overview. The Service is a place that enables eyeglass providers to order prescription eyeglasses from optical labs, enabling such providers to monitor the entire eyeglass order cycle from initiation to shipment via our online dashboard. The Service enables providers to enter prescription information, frame type, lens specifications and customizations (such as tinting, gradient lenses, bifocals, sunglasses, UV protection, scratch resistance, and the like) via a user-friendly interface, and to chat online with lab personnel to get updates or make changes in real time. By enabling Users to find, view, and learn about our Company and our offerings, our goal is to generate efficiency in the eyeglass ordering process enabling practitioners, labs, and consumers to have a better experience.
SpecCheck grants you permission to use the Service as set forth in this Agreement, provided that: (i) you will not copy, distribute, or disclose any part of the Service in any medium; (ii) you will not alter or modify any part of the Service other than as may be reasonably necessary to use the Service for its intended purpose; (iii) you acknowledge, accept and agree that there are certain health and safety risks involved in utilizing our content, and that you accept such risks, and (iv) you will otherwise comply with the terms and conditions of this Agreement.
Eligibility. Use of the Service is void where prohibited. This Service is intended solely for Users who are twenty-one (21) years of age or older, and any registration, use or access to the Service by anyone under 21 is unauthorized, unlicensed, and in violation of this Agreement. SpecCheck may terminate your account, delete any content or information that you have posted on the Service, and/or prohibit you from using or accessing the Service (or any portion, aspect or feature of the Service) for any reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 21. You further agree that as a condition to accessing the Service, you will provide only true and accurate identification documentation to Us or our third-party service providers. You are responsible for the security of any account verification information and your Account, such as usernames and passwords, including without limitation your Users’ usernames and password.
Communications and Notifications; Email Address. By providing SpecCheck with your email address, you consent to our use of the email address to send you Service-related notices, including, among other things, notices required by law, in lieu of postal mail. We may also use your email address to send you other messages, including changes to SpecCheck features, marketing messages, and special offers. If you do not want to receive such email messages, you may opt out by clicking on the “unsubscribe” link at the bottom of the email, sending us an email at firstname.lastname@example.org or by sending mail to the following postal address:
SpecCheck Technologies Inc
2261 Market Street, #5183, San Francisco, CA 94114
Opting out may prevent you from receiving email messages regarding updates, improvements, or special offers.You represent and warrant that the email address you provide to us is your own. You agree not to use the email address of any other person at any time. You may not impersonate someone else (e.g., adopt the identity of a co-worker). You agree to notify SpecCheck immediately if you suspect any unauthorized use of your email address. You are solely responsible for any and all activity that occurs on your account. You must notify SpecCheck immediately of unauthorized use of your email address and related information. Although SpecCheck will not be liable for your losses caused by any unauthorized use of your email address and related information, you shall be liable for the losses of SpecCheck or others due to such unauthorized use.
Fees and Billing
We provide the Service for the fees, if any, and other charges set forth in our pricing section here. All prices listed exclude all sales taxes, fees, use taxes, charges, duties, levies and similar governmental charges (“Sales Taxes”) imposed on the provision of the Service and all such Sales Taxes shall be borne solely by and paid by the Account Owner to us and deemed to be in addition to the fees charged in connection with the Service. You acknowledge that it is Your responsibility to ensure payment in advance for all paid aspects of the Service, and to ensure that your credit or debit cards or other payment instruments accepted by us and/or our processor, including Stripe, continue to be valid and sufficient for such purposes. We may suspend or terminate Your use and Your Account’s use in the event of any payment delinquency. You will not be entitled to any refund on termination or expiration of the Agreement or any refund for the partial use of the Service or credits at any time. All fees paid are non-refundable. In the event of any termination or expiration of the Agreement, you will remain liable for any charges incurred or unpaid amounts owed by You to Us.
Payment and Billing Services
In order to use payment processing services and the billing services, you may have to agree to certain terms from our third-party payment processor(s) and Your use of the Service will be dependent on You agreeing to such terms, if any. You also acknowledge and agree that while you are using the Service through an Account, we will bill you automatically for the applicable fees, on a monthly basis. You agree that we are not responsible for any payment disputes, refund requests, refunds or any other payment issues related to payments made, received or processed by or through the Service. As between us and you, you shall be solely responsible for the collection or payment of all taxes, fees, and duties or other amounts, however designated, and including without limitation value added and withholding taxes that are levied or based upon any order placed through the Service.
User Data and User Data Responsibility.
User Data License. In connection with User Data you upload or submit to or which is created, generated and/or collected through use of the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize us to use, retain, copy, and process the User Data in the Service and as contemplated by this Agreement. You agree that by uploading, submitting or making any User Data available to or through use of the Service, You hereby automatically at such time grant SpecCheck (and its affiliates) a non-exclusive, worldwide, royalty-free, sublicensable, and transferable license to use, reproduce, distribute, prepare derivative works of, perform and display User Data (including User Data that is created, collected or generated by the Service or SpecCheck using the User Data you submit) solely for the purposes of providing the Service. You further agree that the license includes the right to copy, analyze and use any of Your User Data as SpecCheck may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service and any promotion of the Service. You acknowledge and agree that SpecCheck may record sessions of Your use of the Service in order to provide and improve the Service or other SpecCheck products/services.
Additional Representations and Warranties. You shall be solely responsible for your own User Data and the consequences of posting or publishing it. In connection with User Data, you affirm, represent and warrant, in addition to the other representations and warranties in this Agreement, the following: (i) You are at least 21 years of age, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement; and (ii) Your User Data and SpecCheck’s use thereof as contemplated by this Agreement and the Service will not infringe any rights of any third party, including but not limited to any Intellectual Property Rights, privacy rights and rights of publicity.
Marketing CommunicationsConsent and Communication Channels. By accessing and using our Services, you acknowledge and agree and consent that, to the extent permitted under applicable law, we may send you marketing materials and communications, including promotional offers, updates, newsletters, and other related information (hereinafter collectively referred to as "Marketing Materials").
Restrictions While Using the Service.You agree that You will not, and will cause Members and Users to not:Post, display or transmit information or data or User Data, including the unauthorized use of any payment method, that violates any law, regulation or rule, or the rights of any third party including without limitation Intellectual Property Rights;Post or transmit viruses, Trojan horses, worms, spyware, time bombs, cancelbots, or other computer programming routines that may harm the Service or interests or rights of other users, or that may harvest or collect any data or personally identifiable information about other users without their consent;Post or transmit any information or data or User Data that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable;Use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to the SpecCheck servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; orAttempt to gain unauthorized access to any other User’s Account, password or User Data, or allow more than one person to use an Account.You agree that You and your Members and Users will not upload, publish, or submit to any part of the Service any User Data that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless You, the appropriate Member or Users are the owner of such rights or have permission from the rightful owner to upload or submit the User Data and to grant SpecCheck all of the license rights granted in this Agreement. You agree that SpecCheck will have no liability for, and You agree to defend (at SpecCheck’s option), indemnify, and hold SpecCheck harmless for, any claims, losses or damages arising out of or in connection with Your use of any User Data.
Term and Termination.
This Agreement shall remain in full force and effect while you use the Service. SpecCheck may permanently or temporarily terminate, suspend, or otherwise refuse to permit your access to the Service without notice and liability, if, in our sole determination, you violate any of terms of this Agreement, including the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Service; (iv) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (v) interfering with the proper working of the Service; or, (vi) bypassing the measures we may use to prevent or restrict access to the Service, including, but not limited to, registering for the Service with an email address that is not rightfully yours. Upon termination of this Agreement or Your Account, all licenses granted by Us to use the Service, including, without limitation, the Software, will automatically terminate, and all User Data in Your Account will be retained no more than thirty (30) days after termination or expiration of Your Account or this Agreement, and deleted on expiration of such thirty (30) daytime frame. You are responsible for requesting from SpecCheck the retrieval of all User Data as You require or is required by law by contacting email@example.com prior to the Account termination date. The following terms will survive any termination of this Agreement: Sections 1, 5, 16, 17, 18, 19, 20, 21 and 26. You will not be entitled to any refund on termination or expiration of the Agreement.
Proprietary Rights.Intellectual Property Rights.
For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
Content. Except for your User Data, the Service and its materials, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos and music (the “Content”), and all Intellectual Property Rights related thereto, are the exclusive property of SpecCheck and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any materials or content accessible on the Service. Use of the Content, User Data or materials on the Service for any purpose not expressly permitted by this Agreement is strictly prohibited.
Ideas and Comments. You may choose to, or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place SpecCheck under any fiduciary or other obligation, that we are free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to you. You acknowledge that, by acceptance of your submission, SpecCheck does not waive any rights to use similar or related ideas previously known to SpecCheck, or developed by its employees, or obtained from sources other than you.
Trademarks. “SpecCheck”, and other Service graphics, logos, page headers, button icons, scripts, and service names are trademarks, registered trademarks or trade dress of SpecCheck Technologies Inc, a Delaware corporation, and/or its licensors and affiliates. The Company’s trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits SpecCheck. All other trademarks not owned by SpecCheck that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by SpecCheck.
SpecCheck Rewards Program
The SpecCheck Rewards Program and its benefits (the “Rewards Program”) are offered at the sole discretion of SpecCheck. Membership in and application for membership in the Rewards Program is void if prohibited by law in the state or country of the Account Owner’s domicile. The Rewards Program is available only for the Account Owner and not any other Member.The Program has no predetermined termination date and will continue until such time as We decide to terminate the Program. Such termination may occur, at any time, with or without notice. SpecCheck reserves the right to add, modify, delete or otherwise change any of the rules, procedures, conditions, benefits, or rewards pertaining to the Rewards Program at its sole discretion, with or without notice, even though changes may affect the value of rewards or benefits already accumulated. This means that SpecCheck may make changes that affect, but are not limited to, rules and procedures for the use of the rewards or benefits, continued availability of rewards or reward types.
For example, we could:
- Change the SpecCheck rewards you can earn
- Change the number of points or actions required to redeem for rewards
- Impose caps on earning rewards and/or using points
- Cancel rewards and/or the Rewards Program
If we cancel the Rewards Program, we’ll notify you at least 30 days in advance. You'll be able to earn or use points during that time, but we may change or cancel certain rewards.
You agree that:
To participate in the Rewards Program and to have an Account.When you redeem rewards, you release SpecCheck and all its affiliates from liability for your use of points, for the reward and how you use it, and for your participation in the Rewards Program.We and participating retailers aren't responsible for replacing any lost, stolen or damaged certificates, tickets or gift cards.Generally, you cannot use points, and we may cancel your Account, if your Account is in restricted status, canceled or past due, or there is a return payment outstanding. You are solely responsible for learning about and paying any federal, state or local taxes that may apply to earning or using points. Points may be considered taxable income to you and may be reported to the IRS on Form 1099 or Form 1042-S. Please consult your tax advisor if you have questions about the tax treatment of earning or using points.Points do not belong to you and are not your property. You cannot transfer them to someone else's Account, you cannot sell them, and you cannot pass them on as part of a legal action, such as a divorce, an inheritance or bankruptcy.The value of points varies according to how you choose to use them.
Lose Points or RewardsWhen we cancel your Account. If we cancel any of your Account for any reason, you'll lose all the points and rewards in your Account.
When you cancel your Account. You will immediately lose all of the points and rewards if you cancel your Account.
When you engage in or attempt to abuse, misuse or game SpecCheck Rewards.
If we determine in our sole judgment that you engaged in abuse, misuse or gaming in connection with earning or using points or that you may attempt to do so, we may:Temporarily suspend your ability to earn rewards and use pointsTake away any points or rewards in your AccountCancel your Account
No Reliance; Not Medical Advice. This site is meant to be used as a means to generally learn about prescription eyeglasses, which are unique deliverables to each individual based upon a visit with a licensed eye care practitioner. In no way should the content contained in the Service be relied upon, or be a substitute for, professional medical advice, diagnosis, or treatment, and is not intended to replace the relationship between you and your medical provider. Always seek the advice of your physician or other qualified health provider with any questions you may have regarding a medical condition or change in health. Never disregard professional medical advice or delay in seeking it because of something you have read or viewed on or through the SpecCheck Service. All content of the website is subject to modification, change and/or being withdrawn at any time in the sole discretion of SpecCheck and its affiliates. Instructions or guidance provided on our Service is not a substitute for listening to your own body. Reliance on any information provided by SpecCheck, SpecCheck employees, others appearing on the Service at the invitation of SpecCheck, or other visitors to the Service is solely at your own risk and is not medical or healthcare advice. Not all activities described on the Service are suitable for everyone. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY.
No Doctor/Patient or Any Other Medical Relationship Established. Utilizing our Service as a User in any manner does not, under any circumstances, create a doctor-patient or any other medical relationship between You and SpecCheck.
The photographs contained in this website may be stock photography. Such photographs are used in this website to depict the aspirational spirit of the lifestyles to be achieved rather than any that may exist or that may be proposed and are merely intended as illustrations of the activities and concepts depicted therein.
DMCA Copyright Policy.
You may not post, modify, distribute, or reproduce in any way, any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of SpecCheck to terminate privileges of any User who repeatedly infringes the copyright rights of others upon receipt of prompt notification to SpecCheck by the copyright owner or the copyright owner’s legal agent.Without limiting the foregoing, if you believe that your work has been copied and posted on the SpecCheck Service in a way that constitutes copyright infringement, please provide us with the following information: (i) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (ii) a description of the copyrighted work that you claim has been infringed; (iii) a description of where the material that you claim is infringing is located on the SpecCheck Service; (iv) your address, telephone number, and email address; (v) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.Please provide this information to:
Copyright Notices - SpecCheck
2261 Market Street, #5183, San Francisco, CA 94114
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Please note that this procedure is exclusively for notifying SpecCheck and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with the Company’s rights and obligations under the Digital Millennium Copyright Act (“DMCA”), including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.In accordance with the DMCA and other applicable law, SpecCheck has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, members who are deemed to be repeat infringers. SpecCheck may also, at its sole discretion, limit access to the Service and/or terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.Counter-Notice. If you believe that your User Data that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your User Data, you may send a counter-notice to the Company’s copyright agent containing the following information: (i) your physical or electronic signature; (ii) identification of the User Data that has been removed or to which access has been disabled and the location at which the User Data appeared before it was removed or disabled; (iii) a statement that you have a good faith belief that the User Data was removed or disabled as a result of mistake or a misidentification of the User Data; and (iv) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court in San Francisco, California, and a statement that you will accept service of process from the person who provided notice of the alleged infringement.If a counter-notice is received by the Company’s copyright agent, SpecCheck may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed User Data or cease disabling it in ten (10) business days. Unless the copyright owner files an action seeking a court order against the User Data provider, Member, or User, the removed User Data may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, in our sole discretion.
Though you may access the Service via a mobile device, SpecCheck shall not be liable for any delay in performing or failure to perform any obligation hereunder by circumstances beyond our reasonable control including (without limitation) any technical problems beyond the control of SpecCheck such as (for example) defects, congestion or failures of capacity or otherwise in the public data or telephone or mobile carrier network or caused by atmospheric interference, your mobile device being turned off for an extended period of time so that messages are not retained, or your being unable to obtain mobile network coverage.
SpecCheck has implemented commercially reasonable technical and organizational measures designed to secure your personal information and User Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your PII, PHI and or User Data for improper purposes. You acknowledge that you provide your personal information at your own risk.
Third-Party Websites, Advertisers or Services.
Your dealings with or participation in promotions of advertisers to which you opt-in and/or find on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that SpecCheck shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You agree to defend, indemnify and hold harmless SpecCheck and its subsidiaries, agents, and other affiliated companies, and the employees, contractors, agents, officers and directors of each, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service, including any content therein and any data or User Data transmitted or received by you; (ii) any injury, property damage, illness, disability, medical costs and expenses. death, loss of services or otherwise arising out of, relating to, or in connection with your engaging in any activity offered via the Service; (iii) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (iv) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (v) your violation of any law, rule or regulation of the United States or any other country; (vi) any claim for damages that arise as a result of your User Data or any information that is submitted by you or via your account; (vii) any claim or penalty from a taxing authority related to your activities on the Service; or (viii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, SPECCHECK, ITS SUBSIDIARIES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD.THE SPECCHECK SERVICE MAY CONTAIN LINKS TO THIRD-PARTY WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY SPECCHECK. SPECCHECK HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, THE CONTENT, POLICIES, OR PRACTICES OF ANY THIRD-PARTY WEBSITES. YOU EXPRESSLY RELIEVE SPECCHECK FROM ANY AND ALL LIABILITY ARISING FROM YOUR USE OF ANY THIRD-PARTY WEBSITE OR SERVICES.SPECCHECK DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH SPECCHECK SERVICE AND SPECCHECK WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SPECCHECK, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. SPECCHECK’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY, WILL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO SPECCHECK HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE, IF ANY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT EXPAND SUCH LIMIT. SPECCHECK IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY MEMBER OR OTHER USER OF THE SERVICE. UNDER NO CIRCUMSTANCES WILL SPECCHECK BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. FOR THE AVOIDANCE OF DOUBT, THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 19 IS BASED ON THE ACTUAL MEMBERSHIP FEES PAID BY YOU TO SPECCHECK DIRECTLY AND DOES NOT INCLUDE ANY PAYMENT PROCESSOR FEES NOR ANY PAYMENTS MADE, RECEIVED OR PROCESSED BY OR THROUGH THE SERVICE.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPECCHECK ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT OR DATA; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, INCLUDING DEATH, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICE, INCLUDING VIEWING, PLAYING OR DOWNLOADING ANY MATERIALS ON OR FROM THE SERVICE, OR OTHERWISE IN CONNECTION WITH THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PII OR PHI STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR DATA OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR DATA POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY; AND/OR (VIII) ANY AND ALL RISKS AND RESPONSIBILITY OF INJURY, PHYSICAL HARM OR DEATH ARISING IN CONNECTION WITH ANY EQUIPMENT. IN NO EVENT SHALL SPECCHECK, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO SPECCHECK HEREUNDER.THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SPECCHECK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
With the exception of class actions, small claims court filings, or actions for preliminary injunctive relief (as further discussed below), any other dispute of any kind between you and SpecCheck arising under this Agreement or in connection with your use of the Service (“Dispute(s)”), if unresolved through the informal process outlined above, will be resolved by binding arbitration in Los Angeles County, California. If you are an individual consumer using the Service primarily for personal reasons (“Individual Consumer”), as opposed to an individual accessing the Service for business purposes, and you are located within the United States, you may alternatively select your state of residence as the place of arbitration, but all other actions remain subject to the venue and choice of law provisions in Section 18b.
The arbitrator presiding over a Dispute will be a retired judge or justice of any state or federal court with substantial experience in the subject matter relevant to the matter in dispute and will follow Delaware law, exclusive of conflict or choice of law rules, in adjudicating the dispute. BY AGREEING TO ARBITRATE, YOU WAIVE ANY RIGHT YOU HAVE TO A COURT OR JURY TRIAL.
The parties acknowledge that this Agreement evidences a transaction involving interstate commerce.
Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act.
The parties agree that the arbitrator presiding over a Dispute will be instructed, whenever practicable, to resolve threshold legal issues by way of motions filed by the parties. The parties also agree that they will follow JAMS’ streamlined arbitration rules and procedures then in effect in arbitrating any Dispute, except to the extent that the JAMS rules are inconsistent with this Section 18c including the class action waiver described below. The JAMS rules are available at www.jamsadr.com.
Both parties reserve the right to seek a preliminary injunction or temporary restraining order from a federal or state court located in Los Angeles County, California. However, after such request for relief has been adjudicated by such court, the remainder of the Dispute will be resolved by binding arbitration as set forth herein.
Class Action Waiver.
Availability and Use Outside of the United States.
The Service is controlled, offered and operated from facilities in the United States. SpecCheck makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals located in the United States. Notwithstanding the foregoing, SpecCheck retains all rights, including all Intellectual Property Rights, to the Service and the Content therein, throughout the world.
SpecCheck may provide notifications, whether such notifications are required by law or are for marketing or other business-related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by SpecCheck in our sole discretion. SpecCheck reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in this Agreement.
Notice to California Users.
Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
This Agreement, together with any other legal notices and agreements published by SpecCheck via the Service, shall constitute the entire agreement between you and SpecCheck concerning the Service.
The Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision, and no waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term.
The section titles in this Agreement are for convenience only and have no legal or contractual effect.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SpecCheck without restriction.
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