Terms of Use


These Terms of Use and Conditions (hereinafter, these "Terms") apply to all users and clients of this website and include all pages, portals, mobile applications, channels, software, social media pages, including any services, features, pages, and functions contained or offered therein (collectively, "the Websites") provided by FGX International Inc. and its affiliated companies and subsidiaries based in the United States and Canada (collectively, "FGX" or "we"). These Terms are written in the English language. We do not guarantee the accuracy of any translated versions of these Terms. To the extent any translated versions of these Terms conflict with the English language version, the English language version of these Terms shall control.

Acceptance of Terms of Use

By using the Websites, you agree that you are over the age of eighteen (18) years of age and that you will abide by all applicable federal, state, and local laws and understand you will be legally bound by the terms and conditions of these Terms. You also agree to abide by the Privacy Policy and all future modifications or amendments to same. If for any reason you do not accept and agree to these Terms, then accessing the Websites is strictly prohibited.

Modification of Terms of Use

These Terms may be changed from time to time, and your use of the Websites following any such changes shall confirm your agreement to be bound by the Terms as modified.

No Medical Advice or Treatment

The Websites are intended solely for the informational purposes of the reader and cannot be relied upon for complete accuracy. Any information is not intended to diagnose health problems and does not replace the advice, diagnosis, or treatment of an eye doctor or medical professional. No representations are made, and no responsibility is assumed, for the information contained on the Websites. Contact your eye doctor or a medical professional directly if you have any questions concerning your health or vision.

Links to Third Party Websites

The Websites may contain links to other websites ("Linked Sites"). The Linked Sites are not under the control of FGX and FGX is not responsible for the contents of any Linked Site, including without limitation to any link contained in a Linked Site, or any changes or updates to a Linked Site. FGX is not responsible for webcasting or any other form of transmission received from any Linked Site. FGX provides Linked Sites only as a convenience, and the inclusion of any link does not imply endorsement by FGX of the Linked Sites or any association with its operators.

FGX Communication

Your submission of contact information, no matter the type, to the Websites constitutes acceptance of certain FGX communications. FGX may contact you via surveys to conduct research or to solicit your opinion on current services or new services that may be offered. FGX may, from time to time, contact you on behalf of external business partners about an offering that may be of interest to you. You may opt-out of these communications at any time using the means provided in the communication.

No Unlawful or Prohibited Use

As a condition of your use of the Websites, you warrant to FGX that you will not use the Websites for any purpose that is prohibited by these Terms or unlawful. You may not use the Websites in any manner which could damage, disable, overburden, or impair the Websites or interfere with any other party's use or enjoyment of the Websites. You may not obtain or attempt to obtain any materials not intentionally made available or provided on the Websites. Items purchased from FGX under a wholesale program may not be resold in any online marketplace in the absence of a written agreement. Please contact us for further clarification.

Use of Communications Services

The Websites may contain bulletin board services, chat areas, news groups, forums, communities, personal web pages, calendars, or other message or communication facilities designed to enable you to communicate with the public at large or with a group (collectively, "Communication Services"). The Communication Services are considered part of the Websites. You agree to use the Communication Services only to post, send, and receive messages and material that are proper and related to the Communication Services. The Communication Services cannot be used to conduct commercial activities, including, but not limited to, transactions, advertising, fundraising, contests, or other promotions, absent our prior written consent. FGX has no obligation to monitor the Communication Services. However, FGX reserves the right to review materials posted to a Communication Service and to remove any materials in its sole discretion.

FGX may terminate your access to any or all the Communication Services at any time without notice for any reason whatsoever.

FGX reserves the right at all times to disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in FGX' sole discretion.

Always use caution when giving out any personally identifying information about yourself or your children to or through a Communication Service. FGX does not control or endorse the content, messages or information found in any Communication Service and, therefore, FGX specifically disclaims any liability with regard to the Communication Services and any actions resulting from your participation in any Communication Service. Managers and hosts are not authorized FGX spokespersons, and their views do not necessarily reflect those of FGX.

Materials Provided to FGX

Any materials you provide to FGX (including feedback and suggestions) or post, upload, input or submit to the Websites (collectively "Submissions") shall be and remain the property of FGX. FGX is under no obligation to pay for or respond to Submissions. You hereby grant, and you represent and warrant that you have the right to grant, to FGX an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display, and prepare derivative works of, incorporate into other works, and otherwise use, your Submissions, and to grant sublicenses of the foregoing, solely for the purposes of including your Submissions in the Websites. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution concerning your Submissions.

By posting, uploading, inputting, providing, or submitting your Submission you warrant and represent that you own or otherwise control all of the rights to your Submission including, without limitation, all the rights necessary for you to provide, post, upload, input, or submit the Submission.

You are solely responsible for your Submissions. You assume all risks associated with use of your Submissions, including any reliance on their accuracy, completeness, or usefulness by others, or any disclosure of your Submissions that makes you or any third party personally identifiable. You hereby represent and warrant that your Submissions do not violate these Terms. You may not state or imply that your Submissions are in any way provided, sponsored or endorsed by FGX. Because you alone are responsible for your Submissions, you may expose yourself to liability if, for example, your Submissions violate the Terms. FGX is not obligated to backup any Submissions and Submissions may be deleted at any time.

Website Revisions & Accuracy

FGX or its service provider may, from time to time, revise the Websites and reserve the right to do so without recourse from you or any other user. You also agree that the Websites may contain inaccurate content — including potentially inaccurate pricing information associated with clerical or scriveners' errors — and FGX reserves the right to change or alter all content, including but not limited to pricing, present on the Websites.

Liability Disclaimers

OTHER THAN ANY EXPRESS WARRANTIES PROVIDED TO YOU IN WRITING ASSOCIATED WITH YOUR PURCHASE OF GOODS FROM FGX, THE WEBSITES AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE THROUGH THE WEBSITES ARE PROVIDED TO YOU "AS IS" WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND WE DISCLAIM ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS, AND CONDITIONS WITH RESPECT TO THE WEBSITES AND ALL SERVICES, INFORMATION, GOODS, AND MATERIALS MADE AVAILABLE THROUGH THE WEBSITES, INCLUDING THE REPRESENTATIONS AND WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE.

WE MAKE NO REPRESENTATION OR WARRANTY THAT THE WEBSITES (OR ANY PART THEREOF) WILL BE ACCURATE, COMPLETE, OR ERROR-FREE, NOR THAT ANY PARTICULAR SOFTWARE OR HARDWARE, WILL BE COMPATIBLE WITH THE WEBSITES, AND YOU HEREBY AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO (A) OBTAIN AND PAY FOR ANY SOFTWARE, HARDWARE AND SERVICES (INCLUDING INTERNET CONNECTIVITY) NEEDED TO ACCESS AND USE THE WEBSITES AND (B) ENSURE THAT ANY SOFTWARE, HARDWARE, AND SERVICES THAT YOU USE WILL FUNCTION CORRECTLY WITH THE WEBSITES. YOU AGREE THAT YOU MUST EVALUATE, AND THAT YOU SOLELY BEAR ALL RISKS ASSOCIATED WITH, THE USE OF THE WEBSITES, INCLUDING ANY RELIANCE ON THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY INFORMATION OR MATERIALS MADE AVAILABLE THROUGH THE SITE.

WE WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH THE WEBSITES, NOR FOR ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF OTHER INTANGIBLES, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE WEBSITES, OR UNAUTHORIZED INTERCEPTION OF ANY SUCH INFORMATION BY THIRD PARTIES, EVEN IF ADVISED IN ADVANCE OF SUCH DAMAGES OR LOSSES. FURTHER, WE WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RESULTING FROM YOUR USE OF THE WEBSITES OR FROM ANY INFORMATION OR MATERIALS ON THE SITE. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITES IS TO STOP USING THE WEBSITES. OUR MAXIMUM LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE SHALL BE THE TOTAL AMOUNT, IF ANY, PAID BY YOU TO US TO ACCESS AND USE THE WEBSITES.

IT IS POSSIBLE THAT APPLICABLE LAW MAY NOT ALLOW FOR LIMITATIONS ON CERTAIN IMPLIED WARRANTIES OR EXCLUSIONS OR LIMITATIONS OF CERTAIN DAMAGES; SOLELY TO THE EXTENT THAT SUCH LAW APPLIES TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IF APPLICABLE LAW PROHIBITS THE LIMITATION OR EXCLUSION OF A PARTY'S LIABILITY WITH RESPECT TO DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY'S NEGLIGENCE, FRAUD, OR ANY OTHER MATTER, THEN SUCH PARTY'S LIABILITY WILL NOT BE LIMITED OR EXCLUDED TO THE EXTENT OF SUCH PROHIBITION UNDER SUCH APPLICABLE LAW.

Indemnity

Except to the extent prohibited under applicable law, you agree to defend, indemnify, and hold FGX harmless from and against all claims, losses, costs, and expenses (including attorneys' fees) arising out of your use of, or activities in connection with, the Websites or your violation of the Terms. FGX reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us or any other indemnitee hereunder and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of FGX. FGX will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

If you are a California resident or resident of a state with a similar applicable law, you hereby expressly waive California Civil Code section 1542 in connection with the foregoing (or such other similar applicable law in your state), which states: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."

Termination/Access Restriction

FGX may reject your use of the Websites at any time and for any reason in FGX's sole discretion.

Disputes with FGX and Agreement to Arbitrate

You and FGX agree that any claim or dispute at law or equity that has arisen or may arise between us will be resolved in accordance with the provisions set forth in this Section. Please read this Section carefully. It affects your rights and will impact how claims you and we have against each other are resolved.

If a dispute arises between you and FGX, we want to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost-effective means of resolving the dispute quickly. Please contact us regarding disputes between you and FGX related to the Websites, including, without limitation, FGX's products and services.

You agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms and any claim or dispute that has arisen or may arise between you and FGX, except as otherwise stated in these Terms. You understand that the Websites are directed only to residents of the United States and Canada.

You and FGX each agree that any and all disputes or claims that have arisen or may arise between you and FGX, EXCEPT FOR A DISPUTE RELATING TO THE ENFORCEMENT OR VALIDITY OF YOUR, FGX'S, OR EITHER OF OUR LICENSORS' INTELLECTUAL PROPERTY RIGHTS, shall be resolved exclusively through confidential, final and binding arbitration. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

YOU AND FGX AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND FGX AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER FGX CUSTOMERS OR WEBSITE USERS.

The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Section. The AAA's rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA's website at http://www.adr.org.

The arbitration shall be held in Providence County, Rhode Island or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or FGX may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and FGX subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and FGX, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by applicable law. The arbitrator's award shall be confidential, final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

Payment of all filing, administration, and arbitrator fees will be governed by the AAA's rules.

With the exception of any of the provisions in these Terms relating to the prohibition of class and representative actions and non-individualized relief"), if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this Section shall still apply. If a court decides that any of the provisions in this Section (particularly the prohibition of class and representative actions and non-individualized relief) is invalid or unenforceable, then with respect to actions that would have been covered by such provision, the entirety of this Section shall be null and void. The remainder of these Terms, including all other provisions of this Section, will continue to apply.

Notwithstanding any provision in these Terms to the contrary, you and FGX agree that if FGX makes any change to this Section (other than a change to any notice address or website link provided herein) in the future, that change shall not apply to any claim that was filed in a proceeding against FGX prior to the effective date of the change. Moreover, if we seek to terminate this Section, any such termination shall not be effective until thirty (30) days after the version of the Terms containing this Section is posted to the Websites, and shall not be effective as to any claim that was filed in a proceeding against FGX prior to the effective date of termination.

Claims and Disputes Must Be Filed Within One Year.

To the extent permitted by law, and without limiting the effect of any disclaimer contained herein, any cause of action or claim you may have with respect to your use of the Websites, including, without limitation, any Website related product, services, or other content must be commenced within one (1) year after the claim or cause of action arises. This section applies to you and your heirs, successors and assigns.

Severability

If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.

Entire Agreement & Assignment

These Terms constitute the entire agreement between you and FGX with respect to the Websites and supersede all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and FGX with respect to the Websites. A printed version of these Terms and any notice given in electronic form shall be admissible in judicial or administrative proceedings to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. FGX may also freely assign its rights and obligations under these Terms.

Content & DMCA Policy

All of the content on the Websites including product images, trademarks, illustrations, designs, icons, photographs, artwork, images, and any video and audio materials are copyrights, trademarks, and other intellectual property owned, controlled or licensed by FGX. You may not copy, reproduce, publish, transmit, or otherwise use any copyrighted or trademarked materials present on the Websites without express written authorization to do so. You agree not to alter, delete, obscure, or change any proprietary rights affiliated with the Websites. FGX shall retain all rights in and to its copyrights, trademarks, trade names, brand names, and trade dress depicted on this site.

This Digital Millennium Copyright Act ("DMCA") Policy (hereinafter, the "Policy") applies to all users of the Websites. FGX respects the intellectual property rights of others, and we require that others, including our advertising partners, do the same. The Websites provide transitory digital network communications under 17 U.S.C. § 512(a) of the Copyright Act.

FGX complies with the notice-and-takedown procedures set out in the United States DMCA, which applies to content reported and removed for violating U.S. copyrights. Â If your content is removed under the DMCA takedown process as a result of a takedown notice, you will have an opportunity to file a counter-notification. When FGX receives an effective DMCA counter-notification, FGX forwards it to the party that reported the content. Â The information they receive includes your contact information.

DMCA Takedown Notices

Content owners of copyrighted material and their representing agents may submit a DMCA notice to FGX's registered Copyright Agent if they believe that infringing activity has taken place on the Websites. The abuse team will only consider valid reports of infringement.

You may submit a complete DMCA notice that features all the points described below only if the representing party sending the request is the content owner or the authorized agent acting on the behalf of the copyright owner. To be effective under the DMCA, any notification of claimed infringement must be in a written communication that includes substantially the following which must include a certification made under penalty of perjury:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, as well as information sufficient for FGX to determine the legitimacy of the signature and the identity of the signatory;

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site, including citation to the application copyright registrations where available;

(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit FGX to locate the material, including a timestamp and visible identification of the material in a screenshot or comparable medium, with all metadata intact;

(iv) Information reasonably sufficient to permit FGX to contact the complaining party, including an email address, telephone number, and, if available, physical mail address;

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and

(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Any such notifications of claimed infringement must be sent to:

FGX Copyright Agent
Attn: General Counsel
Address: 500 George Washington Highway,
Smithfield, Rhode Island 02917 USA
Email: legal@fgxi.com
Phone: 401-231-3800
Fax: 401-231-3818

Please note that if any notification of claimed infringement does not meet the above requirements, FGX has no responsibility to respond to or act on any such defective notification of claimed infringement. It is also the policy of FGX, in appropriate circumstances and in our sole discretion, to suspend or terminate accounts or access to individuals who are repeat copyright infringers.

DMCA Counter Notification

If you receive a notification of claimed infringement, you may submit a counter notification to us pursuant to the DMCA. Â It must include the following, which includes a certification made under penalty of perjury:

(i) Your physical or electronic signature, as well as information sufficient for FGX to determine the legitimacy of the signature and the identity of the signatory;

(ii) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;

(iii) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and

(iv) Your name, address, and telephone number, and a statement that you consent to the exclusive jurisdiction of any state or federal court located in Providence County, Rhode Island, and that you will accept service of process from the person who provided notification under the DMCA or an agent of such person.

Any such counter notification must be sent to:

FGX Copyright Agent
Attn: General Counsel
Address: 500 George Washington Highway,
Smithfield, Rhode Island 02917 USA
Email: legal@fgxi.com
Phone: 401-231-3800
Fax: 401-231-3818

Effective as of January 1, 2020