EyeSmarty's Terms Of Use
Welcome to the EyeSmarty website. EyeSmarty provides and makes available this website subject to following terms of services please read these terms of use (“Terms”) very carefully before registering for the EyeSmarty web site and Service.
These terms of service (“Agreement”) govern you accessing content and using www.eyesmarty.com and its affiliate’s web sites and mobile applications. This Agreement between you (“you”, “user”, “your”) and EyeSmarty, is subject to change by us as described below. By clicking the “I Accept” button below, you
(i) accept this Agreement.
(ii) agree to be bound by these terms and conditions.
(iii) have entered into a binding agreement between you and
EyeSmarty.
1) What should you know?
This web site and any mobile application (collectively the “Site”) is owned and operated by EyeSmarty, LLC (referred to as “EyeSmarty” herein). The Site and its content (“Content”) and the EyeSmarty software shall be provided merely as a service (“Service”) and may only be accessed in accordance with this Agreement. Any violation of the copyright in the Content or these terms and conditions may be enforced by EyeSmarty or the copyright owner to the fullest extent allowed by law.
You acknowledge and agree that EyeSmarty may stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally at EyeSmarty's sole discretion, without prior notice to you. You may stop using tshe Services at any time. You do not need to specifically inform EyeSmarty when you stop using the Services. You acknowledge and agree that if EyeSmarty disables access to your account, you may be prevented from accessing the Services, your account details or any files or other materials which is contained in your account.
2) Use of this website and intellectual property rights
You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by EyeSmarty, unless you have been specifically allowed to do so in a separate agreement with EyeSmarty. You agree that you will not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). Unless you have been specifically permitted to do so in a separate agreement with EyeSmarty, you agree that you will not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose. You agree that you are solely responsible for (and that EyeSmarty has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage which EyeSmarty may suffer) of any such breach.
EyeSmarty does not charge for access using its mobile application; however, your carrier rates will apply, such as fees for text messaging and data charges. Upon prior notice however, your access to certain components of the Service shall be charged an appropriate fee which shall be payable through credit card. You hereby acknowledge, agree, and provide consent in order for users to sync any device with your information. By using a credit card for the payment of the fees, you represent and warrant to EyeSmarty that you are the authorized card holder and absolve EyeSmarty of any liability for any charges arising from the use of the Service. For single transactions, EyeSmarty shall charge the fees to your credit card once while recurring fees will be charged to your credit card on a monthly basis. EyeSmarty reserves the right to amend its schedule of fees and/or change its billing methods. Should you find any change or amendment unacceptable, you may opt to cancel your membership without however any right to demand refund for fees that have already accrued prior to such cancellation. EyeSmarty reserves the right to impose upon you any sales or use taxes which the Service may be subjected to.
4) Information posted to website
While EyeSmarty uses reasonable efforts to include accurate and up-to-date information on the Site, EyeSmarty makes no warranties or representations as to its accuracy. EyeSmarty assumes no liability or responsibility for any errors or representations in the Content or this Site.
6) Prohibited activities
a) EyeSmarty reserves all rights not specifically granted herein. You shall not modify any copyright notices, proprietary legends, any trademark and service mark attributions, any patent markings,and other indicia of ownership on the Content or other materials accessed through the Service. The delivery of, and license to, the Content and/or access to third party materials does not transfer to you any commercial or promotional use rights in the Content or any portion thereof. Any use of Content, or descriptions; any derivative use of this Site or its materials; and any use of data mining, robots, or similar data gathering and extraction tools is strictly prohibited. In no event shall the user frame any portion of the Site or any materials contained therein. As between the parties, EyeSmarty owns and shall continue to own all right, title and interest in and to all aggregate and statistical information or analyses created and developed by EyeSmarty from performance and usage data generated through your use of the Site (collectively, “Aggregate Data”). Aggregate Data is de-identified so that you cannot be identified as the source within the Aggregate Data.
b) Users of the Site may post comments, reviews, and other materials and submit suggestions, ideas, or other information, provided, the materials do not contain any unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, or hateful content or content which is racially, ethnically or otherwise objectionable, or which infringes upon the rights of any third party . You acknowledge that by accessing the Site, you may come into contact with content that you find harmful, offensive, threatening, indecent or objectionable and you acknowledge that EyeSmarty shall have no liability to you for the content including, but not limited to explicit language and other potentially offensive material. The user agrees to not impersonate any person or communicate under a false name or a name the user is not entitled or authorized to use. EyeSmarty has the right (but not the obligation) to remove, prohibit, edit or discontinue any content on the Site, including content that has been posted by users.
c) If you post content or submit material, unless such content or material submittal is subject to separate terms and conditions, EyeSmarty shall own such content and material and you hereby assign any rights in such content and material to EyeSmarty. In the event ownership in the content or material cannot be granted to EyeSmarty, you grant EyeSmarty and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive, sub licensable right and license to make, use, sell, sublicense, reproduce, distribute, perform, display, prepare derivative works from and otherwise exploit all such content and material as if it were the full owner thereof. Furthermore, you grant EyeSmarty, its affiliates, and sub-licensees the right to use your name and/or user name in connection with the content. You represent and warrant that all content and materials you provide shall be your original work product and will not be based on, or derived from, the proprietary information or items of a third party. Furthermore, you represent and warrant that your use of the Service in connection with any Content or third party content complies with all laws including, but not limited to, Pakistan/EU copyright law. You will defend, indemnify and hold EyeSmarty and its affiliates harmless from and against any claims resulting from any content or materials you provide hereunder or your use of the Service.
d) At your discretion, you may provide feedback to EyeSmarty concerning the functionality and performance of the Service from time to time, including, without limitation, identifying potential errors, improvements, modifications, bug fixes, or enhancements (“Feedback”). If you, through your evaluation or otherwise, suggests any Feedback, you hereby assign the ownership in all Feedback to EyeSmarty. In the event ownership in the Feedback cannot be granted to EyeSmarty, you grant EyeSmarty at no charge a perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such Feedback without restriction. You agree that EyeSmarty may disclose that Feedback to any third party in any manner and you agree that EyeSmarty has the ability to sublicense all Feedback in any form to any third party without restriction.
e) The Site may contain areas in which additional terms and conditions apply. For purposes of the use of such areas, in the event of a conflict between the terms and conditions of such other areas and these Terms and Conditions, the terms and conditions of the other area shall prevail. EyeSmarty may at any time revise these Terms and Conditions by updating this posting. You are bound by any such revisions and should therefore periodically visit this page to review the current Terms and Conditions to which you are bound.
f) You shall not transmit to EyeSmarty or upload to this Site
any Harmful Code or use or misappropriate the data on this Site
for your own commercial gain. “Harmful Code” shall mean any software (
sometimes referred to as “viruses,” “worms,” “trojan horses,”
“time bombs,” “time locks,” “drop dead devices,” “traps,”
“access codes,” “cancelbots” or “trap door devices”)
that:
(a) is intentionally designed to damage,
disrupt, disable, harm, impair, interfere with, intercept,
expropriate or otherwise impede in any manner, any data, storage
media, program, system, equipment or communication, based on any
event, including for example but not limited to
(i) exceeding a number of
copies,
(ii) exceeding a number of
users,
(iii) passage of a period of time,
(iv) advancement to a particular date or other
numeral, or
(v) use of a certain feature;
or
(b) would enable an unauthorized person to
cause such result; or
(c) would enable an unauthorized person to
access another person’s information without such other person’s
knowledge and permission.
g) You may not use your username and password for any unauthorized purpose.
h) EyeSmarty may retain and use, information collected in your use of the Service, provided such information does not individually identify you.
i) EyeSmarty does not knowingly collect any information from anyone who we know to be under the age of 13. If you are under the age of 18, you should use this website only with the involvement of a parent or guardian and should not submit any personal information to EyeSmarty. If EyeSmarty discovers that a person under the age of 13 has provided EyeSmarty with any personal information, EyeSmarty will use commercially reasonable efforts to delete such person’s personal information from all EyeSmarty systems.
j) EyeSmarty may terminate your access to our Site or the Service for any reason at any time. The provisions that by their nature are designed to survive termination or expiration of this Agreement shall survive termination or expiration of this Agreement or your access to our Site or Service.
7) Governing laws and jurisdiction
EyeSmarty operates this website within Pakistan, the local laws shall have exclusive jurisdiction and venue over any dispute arising out of this Agreement and sale, and you hereby consent to the jurisdiction of such courts. EyeSmarty shall not be liable to you for any delay or failure of EyeSmarty to perform its obligations hereunder if such delay or failure arises from any cause or causes beyond the reasonable control of EyeSmarty. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, labor strike, or delays by you in performing any requirements hereunder. This Agreement may not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing not made a part of the Agreement by its express terms. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity of this Agreement as a whole and any such provision should be enforced by authorities, and reconstructed if need be, to apply to the maximum extent allowable under applicable law. The failure by either party to enforce at any time any of the provisions of this Agreement, to exercise any election or option provided herein, or to require at any time the performance of the other of any of the provisions herein will not in any way be construed as a waiver of such provisions. Reasonable attorneys’ fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Agreement. The section headings used herein are for convenience only and shall not be given any legal import. Any dispute, controversy or claim arising under, out of or relating to this Agreement and any subsequent amendments of this Agreement, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to arbitration before the International Arbitration Center Pakistan (“IACP”) in accordance with the IACP Commercial Arbitration Rules. The place of arbitration shall be Islamabad, Pakistan. The language to be used in the arbitral proceedings shall be English. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief as necessary, without breach of this Section and without abridgment of the powers of the arbitrator. The arbitrator may award any form of individual or equitable relief, including injunctive relief. Any award will be final and conclusive to the parties and may be entered in any court of competent jurisdiction. You agree to the entry of injunctive relief to stop any lawsuit or to remove you as a participant in such a suit. This Agreement does not constitute a waiver of any of your rights and remedies to pursue a claim individually in binding arbitration, but not as a class action. This provision preventing you from bringing, joining or participating in class action lawsuits is an independent covenant. You may opt-out of this Section by providing written notice of your decision within thirty (30) days of the date that you first use the Site.
By using this Site, you signify your assent to these terms of use
and agree to comply with all applicable laws and regulations,
including Pakistan/EU export and re-export control laws and
regulations, copyright laws and other laws regarding intellectual
property. If you do not agree to these terms of use, please do not
use the Site.
THIS AGREEMENT SHALL BE GOVERNED AND INTERPRETED BY THE
PAKISTAN/EU/US LAWS WITHOUT REGARD TO THE CONFLICTS OF LAW
PROVISIONS THEREOF.
The materials on this Site are provided with “Restricted Rights.”
Use, duplication, or disclosure by the Government is subject to
restrictions as set forth in applicable laws and regulations. Use
of the materials by the Government constitutes acknowledgment
EyeSmarty's proprietary rights in them.
8) No warranties
THE MATERIALS, CONTENT ON THIS SITE AND SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. EYESMARTY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY CONTENT, MATERIALS POSTED ON THE SITE OR SERVICES. EYESMARTY MAKES NO GUARANTEES AS TO UPTIME OR AVAILABILITY OF THE SERVICE. TO THE FULLEST EXTENT POSSIBLE PURSUANT TO THE APPLICABLE LAW, EYESMARTY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OR OTHER VIOLATION OF RIGHTS. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EYESMARTY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, INCLUDING INTERNET CONGESTION, VIRUS ATTACKS, AND DENIAL OF SERVICE (DOS) ATTACKS.
9) Limitation of liabilities
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL EYESMARTY OR ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA OR PROFIT, ARISING OUT OF THE USE, OR THE INABILITY TO USE, THE MATERIALS ON THIS SITE OR THE SERVICE, EVEN IF EYESMARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. EYESMARTY'S AND ITS LICENSORS’ ENTIRE AND AGGREGATE LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED $100, EVEN IF EYESMARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IF YOUR USE OF MATERIALS FROM THIS SITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
10) Other General Provisions
This Agreement shall constitute the entire agreement between the parties regarding the subject matter hereof and supersede all proposals and prior discussions and writings between the parties with respect thereto. No failure or delay in enforcing any right or exercising any remedy will be deemed a waiver of any right or remedy. Each provision of this Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
EYESMARTY RESERVES ANY RIGHTS NOT EXPRESSLY GRANTED OR STATED IN THESE TERMS
