Application of this Agreement
THE FOLLOWING DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO THE USE OF THE FYi ECOMMERCE SITE AND RECEIPT OF RELATED SERVICES.
The terms and conditions of this agreement (the "Agreement") will govern the relationship between FYi Eye Care Services and Products Inc. and its affiliates (collectively "FYi") and the individual or company or other entity (the "Customer") who uses the FYi online retail store located at https://shop.fyidoctors.com, the associated website, the information contained at FYi’s online retail store and the associated website and in connection with all related services (collectively, the "FYi eCommerce Site").
BY ACCESSING OR USING ANY OF THE FYI ECOMMERCE SITE YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS SET OUT IN THIS AGREEMENT YOU MAY NOT ACCESS OR USE ANY OF THE FYI ECOMMERCE SITE.
Terms that are initially capitalized herein are defined in the above paragraph or in the last section of this Agreement.
Customer's License to the FYi eCommerce Site
FYi hereby grants, and Customer hereby accepts, subject to the terms and conditions of this Agreement, a non-exclusive and non-assignable license to access and use the FYi eCommerce Site. Customer shall not permit any other party to access or use the FYi eCommerce Site through use of Customer's user ID/password or otherwise. Customer will be solely responsible for all activity of any party using its user ID/passwords. Customer is solely responsible for ensuring that the user ID/passwords are kept secret. FYi may monitor Customer's use of the FYi eCommerce Site to ensure compliance with this Agreement. No copy of any software or any source code will be made available or delivered to Customer.
In order to purchase any Product, you will be required to provide some of your personal information in order that we may fulfill the order and, certain ancillary activities to such purchase, including following up with you on the order. You agree to (a) provide true, accurate, current and complete information about yourself as requested and (b) promptly update this information as required to keep it true, accurate, current and complete.
For certain Products, you are required to provide a valid prescription. You agree to not order any Product that requires a valid prescription unless you have a valid prescription. You agree to ensure that the information you provide when ordering matches the prescription as provided by your eye care professional. As well, we may, but have no obligation to, contacting your eye care professional to verify your prescription and solicit any other information we deem relevant.
FYi has made commercially reasonable efforts to accurately depict the colours, product descriptions and images of the Products on the FYi eCommerce Site. We cannot guarantee that your computer monitor or mobile device screen will display the colours and images accurately. We do not warrant that the colours, product descriptions and images of the Products on the FYi eCommerce Site are accurate, complete, current or error-free. If you purchase a Product and the Product does not match the colours, product description and images on the FYi eCommerce Site, your sole remedy and recourse is to return the Product in accordance with our return policy.
FYi will use commercially reasonable efforts to deliver Product that you have ordered as soon as FYi is able to the address you provide with your order. However, there may be a number of instances where your order may be delayed, including product not being in stock, special handling of product or prescription information needing to be verified. If you are dissatisfied with the delivery time, your sole remedy and recourse is to return the Product in accordance with our return policy.
Shipping information is set out at the FYi eCommerce Site, which can be found at https://shop.fyidoctors.com/Home/Shipping.
Product return policy is set out at the FYi eCommerce Site, which can be found at https://shop.fyidoctors.com/Home/Returns.
Fees and Payment
If you order any Product from the FYi eCommerce Site, you agree to pay for the same, including all taxes, in accordance with the terms of payment set out at the time of purchase.
Customer shall not, in respect of the FYi eCommerce Site:
Customer shall not attempt to circumvent any security measure implemented in the FYi eCommerce Site or attempt to gain access to any portion of the FYi eCommerce Site other than that which is needed to access and use the FYi eCommerce Site.
In the event any activity of FYi arises in connection with any activities of Customer which is in breach of this section, then Customer will pay FYi its fees for the time spent by FYi’s personnel on such activities on a time, expense and materials basis at FYi’s standard rates for the same.
Support and Maintenance
FYi shall provide telephone and email support with respect to the use of and access to the FYi eCommerce Site during the hours of 8 a.m. to 4:30 p.m. PST Monday to Friday, excluding statutory holidays observed in Delta, British Columbia. From time to time, FYi may change the hours and days of support in its complete discretion.
FYi reserves the right to limit this support in the event Customer is using a material amount of this support.
FYi may, in its sole discretion, correct defects and errors in the FYi eCommerce Site. Customer acknowledges and agrees that Customer’s sole remedy and recourse in connection with any defect or error in the FYi eCommerce Site or any failure to correct the same is for Customer to cease all use of the FYi eCommerce Site.
From time to time FYi and its Suppliers may make enhancements to the FYi eCommerce Site.
FYi will use industry standard security tools, technologies and processes to protect the FYi eCommerce Site and Customer Data against unauthorized access. However, Customer acknowledges and agrees that applications and systems which are made available over the Internet are inherently insecure against motivated individuals and FYi and its Suppliers shall have no obligation or liability to Customer for any breach of such security measures as a result of same.
Customer hereby authorizes (and hereby represents that it has the authority to authorize) FYi to conduct all activities as contemplated under this Agreement including, without limitation, storing, reproducing and processing the Customer Data and the use, disclosure and transmission of the same pursuant to and in connection with the FYi eCommerce Site and such other tasks, duties or activities reasonably necessary for FYi to carry out the intent of this Agreement.
By making any suggestion or comment to FYi, you will thereby be granting, and you agree to grant, to FYi a world-wide, royalty-free, non-exclusive and irrevocable license to use that suggestion or comment in any manner that FYi may wish, including to improve the FYi eCommerce Site or any Product. You hereby agree and acknowledge that you will not receive any compensation in connection with the same.
Further, you hereby agree and acknowledge that by providing a suggestion or comment you may be giving up certain proprietary rights, including the right to apply for a patent and the right to receive any economic benefit from your suggestion or comment. If you are not prepared to grant the foregoing license and to give up these rights or if you do not understand the consequences of providing a suggestion or comment then you should not provide the suggestion or comment to FYi. Further, if you are in doubt, we encourage you to speak to a lawyer.
Links to Internet Resources
Links to other Internet resources which are provided by FYi on the FYi eCommerce Site are provided as a courtesy and you may only use them at your sole risk. The condition, suitability, safety, accuracy, quality, integrity and legality of any information, content or other material or any products or services available from or through any links are not investigated, verified or monitored by FYi. FYi will not be responsible for any such information, content or other material or any such products or services. Further, the posting of any link does not mean FYi agrees with or endorses any information, content or other material or any products or services available from or through any such links.
No partnership or other relationship should be implied merely from the fact that a link to a third party website is provided on the FYi eCommerce Site.
Customer agrees that title to and ownership of the FYi eCommerce Site and any modifications or upgrades made thereto and all intellectual property rights therein shall at all times be held by FYi and its Suppliers.
Customer shall not have any right, title or ownership interest in the FYi eCommerce Site except the limited right to access and use the FYi eCommerce Site in accordance with the terms and conditions set out in this Agreement.
Customer may not, directly or indirectly, create derivatives, modify, decompile or reverse engineer the FYi eCommerce Site or do anything to attempt to reveal, generate or obtain the source code for the FYi eCommerce Site.
Product warranty information is set out at the FYi eCommerce Site, which can be found at https://shop.fyidoctors.com/Home/Warranty.
Warranty Disclaimer, Limitation of Liability and Liability Disclaimer
FYi does not represent or warrant that all defects and errors in the FYi eCommerce Site, the Services can or will be corrected. FYi and its Suppliers shall have no liability or obligation to Customer or any third party in the event of any defect or error or any omission in the FYi eCommerce Site or the Services.
THE FYI ECOMMERCE SITE AND SERVICES ARE PROVIDED STRICTLY ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE EXPLICITLY SET OUT HEREIN, FYI EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS CONCERNING THE FYI ECOMMERCE SITE , ALL PRODUCTS AND THE SERVICES, INCLUDING ANY AND ALL WARRANTIES AND CONDITIONS OF DESIGN, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, PERFORMANCE AND ANY AND ALL WARRANTIES AND CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, CUSTOM OR TRADE USAGE AND THOSE WHICH MAY BE IMPLIED BY STATUTE.
UNDER NO CIRCUMSTANCES SHALL FYI OR ANY OF ITS SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS, INTERRUPTION OF BUSINESS OR RELATED EXPENSES INCURRED OR SUFFERED BY CUSTOMER WHICH MAY ARISE IN CONNECTION WITH THE USE OR INABILITY TO USE THE FYI ECOMMERCE SITE, ANY PRODUCT OR SERVICES, OR ANY DEFECT OR ERROR IN THE FYI ECOMMERCE SITE, ANY PRODUCT OR SERVICES, WHETHER OR NOT FYI OR ANY OF ITS SUPPLIERS WAS TOLD OF OR KNEW OF OR OUGHT TO HAVE REASONABLY KNOWN OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR INJURY AND INCLUDING BUT NOT LIMITED TO THOSE RESULTING FROM DEFECTS IN THE FYI ECOMMERCE SITE, ANY PRODUCT OR SERVICES OR LOSS OR INACCURACY OF DATA OF ANY KIND OR INCORRECT RESULTS PRODUCED BY THE FYI ECOMMERCE SITE, ANY PRODUCT OR SERVICES. BECAUSE SOME STATES AND PROVINCES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES AND PROVINCES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
FYi'S AND ITS SUPPLIERS’ COLLECTIVE LIABILITY UNDER THIS AGREEMENT AND IN CONNECTION WITH THE USE OF THE FYI ECOMMERCE SITE, ANY PRODUCT OR THE SERVICES, OR ANY DEFECT OR ERROR IN THE FYI ECOMMERCE SITE, ANY PRODUCT OR SERVICES, UNDER ANY AND ALL CIRCUMSTANCES, ARISING IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO FYI FOR PRODUCTS ORDERED IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FINAL ACT OR EVENT WHICH GAVE RISE TO ANY SUCH LIABILITY. ALL SUCH LIABILITIES SHALL, IN AGGREGATE, BE SUBJECT TO THE DESCRIBED LIMITATION. THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION, TO BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS AND OTHER TORTS, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Basis of Bargain
Customer agrees and acknowledges: (i) that FYi has made available the FYi eCommerce Site in reliance on the warranty disclaimer, limitation of liability and liability disclaimer set forth herein; (ii) that the same reflect an appropriate allocation of risk between the parties (including the risk that a remedy may fail its essential purpose); and (iii) that the same forms an essential basis of the agreement between the parties. Customer agrees and acknowledges that FYi would not have been able to provide access to and use of the FYi eCommerce Site at the amounts charged for its Products on an economic basis without such allocations of risk.
Survival. The rights and obligations under Security, Data, Personal Information, Your Submissions, Title, Warranty Disclaimer, Limitation of Liability and Liability Disclaimer, Basis of Bargain, Survival and Attornment shall survive the termination of this Agreement for whatever reason. Termination does not relieve any party of any liability accruing at the date of termination including, without limitation, any fees due.
Notices. Any notice, direction or other communication given regarding the matters contemplated by this Agreement must be in writing, sent by personal delivery, courier or facsimile and addressed:
to FYi at:
300, 2424 4 Street SW
Calgary, AB T2S 2T4
Attention: Jillian Acton, Corporate Counsel
to Customer at the address provided during the registration process.
A notice is deemed to be given and received: (i) if sent by personal delivery or same day courier, on the date of delivery if it is business day and the delivery was made prior to 4:00 p.m. (local time in place of receipt) and otherwise on the next business day; (ii) if sent by overnight courier, on the fifth business day following delivery of the notice to the courier; or (iii) if sent by facsimile, on the business day following the date of confirmation of transmission by the originating facsimile.
A party may change its address for service from time to time by providing a notice in accordance with the foregoing. Any subsequent notice must be sent to the party at its changed address.
Suppliers. All Suppliers shall be entitled to all remedies, disclaimers of warranty, disclaimers of liability, limitations of liability and other provisions herein which indicate as being in favour of Suppliers, including without limitation, under the Warranty Disclaimer, Limitation of Liability and Liability. Customer agrees that all Suppliers shall be, as applicable: (i) entitled to raise any such disclaimers of warranty, disclaimers of liability and limitations of liability in defence of any claim by Customer; and (ii) entitled to any such remedy. Customer agrees that each Supplier shall be a third party beneficiary under this Agreement for the sole purposes of the foregoing and that Suppliers would not be suppliers in connection with the FYi eCommerce Site and/or the Services if they were not entitled to the benefits of the foregoing.
Waiver. A party's failure or delay in exercising any right under this Agreement will not operate as a waiver of that right.
Headings. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions.
Entire Agreement. This Agreement sets forth the entire agreement and understanding between the parties and supersede and cancel all previous negotiations, agreements, commitments and writings in respect of the subject-matter hereof and there are no understandings, representations, conditions made or assumed by the parties, other than those expressly contained in this Agreement.
Severability. If any term, covenant or condition of this Agreement or the application thereof to any party or circumstance shall be invalid or unenforceable to any extent the remainder of this Agreement and the application of such term, covenant or condition to a party or circumstance other than those to which it is held invalid or unenforceable shall not be affected thereby and each remaining term, covenant or condition of this Agreement shall be valid and shall be enforceable to the fullest extent permitted by law.
Governing Law. This Agreement will be governed by and interpreted and enforced in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein.
Attornment. The parties do hereby agree to submit and attorn to the exclusive jurisdiction of the Courts of Alberta for all matters arising out of or relating to this Agreement. Notwithstanding the foregoing, any party may apply to any court of competent jurisdiction for any equitable relief by way of restraining order, injunction, decree, specific performance, mandatory injunction or otherwise where damages could not adequately be compensated by monetary award and where the Courts of Alberta would not have adequate jurisdiction to grant an effective equitable remedy.
Rights and Remedies. The rights and remedies of a party hereunder are cumulative and no exercise or enforcement by a party of any right or remedy hereunder shall preclude the exercise or enforcement by the party of any other right or remedy hereunder or which the party is otherwise entitled by law or equity.
In this Agreement, the following terms shall have the indicated meaning:
"Customer Data" means any data or information which Customer creates on or provides to the FYi eCommerce Site.
"Personal Information" means any information about any identifiable individual including.
"Product" means any product that is made available from the FYi eCommerce Site, including contact lenses, glasses and related products.
"Service" means any service provided for the benefit of Customer in connection with this Agreement or in connection with the FYi eCommerce Site including, without limitation, the maintenance and support services, the delivery of any Product purchased and "Service" also includes the functionality of and the computer processing provided by the FYi eCommerce Site.
"Supplier" means any licensor, supplier or service provider that: (i) provides any services in connection with the FYi eCommerce Site or any Services, or (ii) developed or licenses any part of the FYi eCommerce Site.