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Contact Lens Subscription Agreement

 

This Contact Lens Subscription Agreement (the "Agreement") between you and National Vision, Inc., a Georgia corporation (hereinafter referred to as "we," "us," "our," or "NVI"), is entered into as of the date of your acceptance of this Agreement (the “Effective Date”). The terms "you" and "your," as used in this Agreement, refer to the person accepting this Agreement, as set forth below. You and NVI are sometimes collectively referred to in this Agreement as the "Parties" or, individually, a "Party." 

ARBITRATION AND WAIVER OF CLASS ACTION: THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL REQUIRE YOU TO SUBMIT ANY CLAIMS YOU HAVE AGAINST NVI TO BINDING FINAL ARBITRATION, SUBJECT TO SOME EXCEPTIONS. PLEASE SEE BELOW FOR COMPLETE TERMS. PLEASE NOTE THAT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST NVI ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION OR PROCEEDING. YOU WILL ONLY BE PERMITTED TO SEEK RELIEF FROM NVI ON AN INDIVIDUAL BASIS. THIS INCLUDES BUT IS NOT LIMITED TO MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF. 

CONTACT LENS USE WARNING: IF THE PATIENT USING CONTACT LENSES EXPERIENCES ANY VISION CHANGE, WATERY EYES, UNEXPLAINED EYE DISCOMFORT, OR REDNESS, THE PATIENT MUST REMOVE HIS OR HER CONTACT LENSES IMMEDIATELY AND CONSULT A DULY LICENSED AND QUALIFIED EYE CARE PROFESSIONAL BEFORE WEARING THE CONTACT LENSES AGAIN.



1. Description of Subscription Services. This Agreement sets forth the terms of NVI’s contact lens subscription service program whereby you agree to subscribe to regular shipments of contact lenses and related accessories from NVI to be delivered to the designated contact lens wearer on a quarterly basis (the "Subscription"), in exchange for your monthly subscription payments. 

2. Acceptance of Agreement. After reviewing a copy of this Agreement, you may accept it by indicating your acceptance on NVI’s in-store electronic terminal. A link to this Agreement will be sent to the email address you provide to us. 

3. Products and Patient Information. As a part of the Subscription, you agree to provide NVI with the following information: 

    1. Contact Lens Information: contact lens brand and type, quantity to be sent per shipment, and valid prescription information (with contact lenses satisfying such selection criteria being referred to herein as the "Contact Lenses");



    1. Accessory Selection: type and quantity of accessories, if any, to be purchased and included with each Subscription shipment the ("Accessories" and, together with the Contact Lenses, the "Products"); and



  1. Patient Information: the name and delivery address for the natural person to whom the Contact Lenses are validly prescribed (such person being the "Patient").



4. Subscription Term and Termination. The term for the Subscription will commence on the Effective Date, and will continue for an initial term of one year (the "Initial Term"), and thereafter will renew for subsequent one year terms (each, a "Renewal Term," and, collectively with the Initial Term, the "Term") until cancelled by either Party, or until the Contact Lens prescription expires and is not replaced by a valid and current replacement prescription. You may cancel a Subscription at any time for any reason by calling us at 877-868-8946. Upon cancellation, you will be responsible for payment of any outstanding balance associated with any Products that have been sent but not fully paid for, and this outstanding balance, if any, will be collected from you at the time of your cancellation of the Subscription. We may cancel a Subscription at any time for any reason, including for non-payment of the Subscription Fee (defined below). 

5. Subscription Fee Payment. The "Subscription Fee" shall be an amount equal to the total annual cost of the Products for a Subscription, including all applicable taxes and shipping and handling fees, divided by twelve (12), to represent equal monthly installment payments for one year’s supply of Products. You agree to pay the Subscription Fee to NVI on a monthly basis using the payment card or bank account information you provide to NVI during your registration for the Subscription, beginning on the first date of the Subscription and continuing throughout the Term. You are solely responsible for all fees charged to your payment card or bank account by the card issuer, bank, or financial institution. You may update your payment information at any time by contacting NVI’s Customer Service by calling us at 877-868-8946. If you modify the delivery address for the Subscription during the Term, the taxes associated with delivery of the Products to such new address may require a change to the Subscription Fee; in such an event, we may contact you to update your payment authorization, if needed. 

6. Subscription Fulfillment. NVI agrees to fulfill the Subscription by way of regularly scheduled shipments of the Products to the Patient’s delivery address that you provide to NVI. Shipments will be made every three (3) months, subject to delays due to Holds (defined below), delays in Subscription Fee payments, or delays due to prescription expiration. Each Shipment will contain a ninety (90) day supply of the Products. The first shipment will be sent upon your acceptance of this Agreement, validation of your prescription, and NVI’s receipt of the first Subscription Fee amount. 

7. Subscription Hold. You may request one or more temporary holds on a Subscription (each, a "Hold") by contacting NVI’s Customer Service to delay a Subscription Fee payment and the delivery of a shipment by thirty (30) days. 

8. Change in Price or other Agreement Terms. We may modify the terms of this Agreement, including the price terms, by sending you notice of the proposed changes at least thirty (30) days in advance of the effective date of such changes to the email address or mailing address you have provided to NVI in connection with the Subscription. In addition, if the Patient’s prescription for Contact Lenses changes during the Term, and the cost of the type of Contact Lenses required by the new prescription is different than the cost of the prior prescription under the Subscription, the Subscription Fee will be adjusted accordingly for the duration of the Term, with thirty (30) days’ prior notice to you. 

If you do not wish to accept the modified Agreement terms, you may terminate this Agreement as provided in Section 4 (Subscription Term and Termination). Your continuation of the Subscription after the date any such modifications to the Agreement terms, including price terms, become effective constitutes your acceptance of the Agreement as modified. 

9. Returns. Products shipped as a part of the Subscription can be returned to your local NVI store within thirty (30) days of receipt by the Patient for any reason in manufacturer’s original, unopened packaging. You will receive a refund for the returned Products up to the value of applicable Subscription Fees you paid to us in connection with the returned Products, and applicable taxes, less shipping and handling costs and a restocking fee of five dollars ($5.00). If any portion of the Products are defective, you may return such defective portion to us at any of our stores or by mail free of charge at any time for replacement or a full refund of the portion of the Subscription Fee, applicable taxes, and shipping and handling applicable to such defective portion of the Products. 

10. Consent to Electronic Communications. You consent to receive communications from NVI electronically via the email address you provide to us during the registration for the Subscription. 

11. Customer Representations, Warranties, and Covenants. As of the Effective Date, you represent, warrant, and covenant to NVI as follows:

    1. You are 18 years of age or older;

 

    1. If you are not the Patient, you have been validly authorized by the Patient to obtain a Subscription for such Patient;

 

    1. If the Patient is younger than 18 years of age, you are such Patient’s parent or legal guardian, or personal representative under applicable state law, or are otherwise authorized to enter into a contract to purchase a Subscription for such person;

 

    1. All information submitted to us in connection with the Subscription is true, accurate, and current, and its disclosure to us is valid and properly authorized;

 

    1. The Patient’s prescription for Contact Lenses has been validly issued by a qualified and duly licensed professional; such prescription for Contact Lenses shall remain valid throughout the Term, and if such prescription expires during the Term, you agree to provide a replacement prescription, validly issued for the Patient by a qualified and duly licensed professional;

 

    1. You agree to pay the Subscription Fee;

 

    1. The payment information you provided to NVI in connection with payment of the Subscription Fee is accurate and valid as of the Effective Date, and shall remain accurate and valid throughout the Term; you are authorized to use the payment card or bank account you provided to NVI for payment of the Subscription Fee; you agree to promptly notify NVI if such payment method is no longer valid and promptly provide a replacement payment method for the Subscription Fee payments; and

 

  1. You are purchasing the Contact Lenses for the valid and lawful personal use of the Patient and not for use by any other person or for resale.


12. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL NVI OR ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR AGENTS ("NVI PARTIES") BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS) EVEN IF ANY OF THE NVI PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

The Parties acknowledge that the Subscription Fee is based upon the limitation of liability as set forth herein. In a jurisdiction that does not allow the exclusion or limitation of liability for certain damages, the aggregate liability of NVI shall be limited in accordance with this Agreement to the fullest extent permitted by law. 

If, despite this disclaimer of damages of any kind, NVI Parties are held liable for any damages hereunder, the sole and maximum liability shall be limited to the Subscription Fee paid for the Term. 

13. One Year Limitation on Claims. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. 

14. Indemnity. You agree to release, indemnify, and hold harmless the NVI Parties from any and all losses, damages, expenses, including reasonable attorneys’ fees, claims, actions of any kind and injury (including death) arising out of or relating to the Subscription, your violation of this Agreement, or of any rights of another person or entity, even where such losses, damages and expense are caused by any of the NVI Parties’ own negligence. 

For California Residents: You waive California Civil Code Section 1542, which provides that "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." 

For Residents of Other Jurisdictions: If you are a resident of another jurisdiction, you waive any statute or doctrine comparable to California Civil Code Section 1542 to the fullest extent permitted by law. 

15. Dispute Resolution by Binding Arbitration and Class Action Waiver. 

Arbitration. If the Parties do not resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding individual arbitration governed by the Federal Arbitration Act ("FAA"). You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved on an individual basis before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the Parties may enforce the arbitrator’s award. 

No Class Action Procedure. Notwithstanding any of the foregoing or any other provision of this Agreement, class arbitration is not permitted under any circumstance. The Parties agree that, by entering into this Agreement, THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITY, and not as a plaintiff or class member in any purported class or representative proceeding. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. 

Court To Decide Disputes Regarding Nonavailability Of Class Action Procedure. Although the non-availability of any form of representative or class proceeding is clear from this Agreement, should any dispute arise regarding or relating to the existence, validity, enforceability, or interpretation of this Section 15, the federal court located in Atlanta, Georgia shall have the sole and exclusive jurisdiction to hear and determine the issue. 

16. Governing Law; Consent to Jurisdiction and Venue. This Agreement is governed by the laws of the State of Georgia, without giving any effect to any conflict of law provisions. Any legal action or proceeding in any way related to this Agreement that is not subject to arbitration, as set forth above, shall be brought exclusively in a federal court in the Northern District of Georgia. Each of the Parties consent to the exclusive personal jurisdiction and venue of such court. 

17. Entire Agreement. This Agreement, as may be amended from time to time in accordance with its terms, constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede any and all prior agreements and understandings between the Parties with respect to the subject matter hereof, including, without limitation, any warranties, representations, or agreements between the Parties not set forth in this Agreement. 

18. Force Majeure. Neither Party shall be held responsible for any reasonable delay or failure in performance hereunder due to causes beyond such Party’s reasonable control. 

19. No Waiver. The failure of NVI to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. 

20. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. If any provision of this Agreement is stricken in accordance with this section, then the stricken provision shall be replaced, to the extent possible, with a legal, enforceable, and valid provision that is as similar in tenor to the stricken provision as is legally enforceable. 

21. Assignment. You may not assign this Agreement. NVI may assign or transfer this Agreement, including by operation of law, in whole or in part, without restriction. 

22. Headings. The headings contained herein are for convenience only and shall not affect the construction of this Agreement. 

23. Costs and Attorney Fees. Each Party shall pay their own attorney fees, court costs, arbitration fees, costs of investigation, expert fees and other related expenses incurred in connection with any enforcement of rights under this Agreement. Except as otherwise expressly set forth herein, each Party shall be responsible for all expenses incurred by it in the course of its performance under this Agreement. 

24. Notices. Notices to you may be made via email or regular mail at the email address or mailing address you provide to NVI in connection with the Subscription. Notices to NVI may be made by contacting us by regular mail at Building 2200, 2435 Commerce Ave NW, Duluth, GA 30096, Attention: Subscriptions; and by email at cservice@nationalvision.com.