Terms & Conditions
Last Modified: 05/17/23
1. IntroductionThese Terms & Conditions govern: (1) your access and use of the websites, applications, and other digital properties managed and owned by S. Rays, Inc., d/b/a Shady Rays and its subsidiaries and affiliates (collectively, “Shady Rays”, “we”, “us”, or “our”) (collectively, “Sites”); and (2) your access and use of Shady Rays’ products and services, including when you visit a Shady Rays physical store location (“Products”). The Sites and Products are collectively referred to here as the “Services”.
2. AcceptancePlease read these Terms & Conditions carefully before you access and use the Services. BY ACCESSING AND USING THE SERVICES YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE TERMS & CONDITIONS. If you do not want to agree to these Terms & Conditions, you must not access or use the Services, or discontinue any access or use of the Services.
3. Arbitration Notice
YOU AGREE THAT DISPUTES BETWEEN YOU AND SHADY RAYS CONCERNING YOUR ACCESS AND USE OF THE SERVICES WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. FOR MORE DETAILS ON THIS PROCESS, AND HOW YOU CAN OPT-OUT OF ARBITRATION, SEE SECTION 22 BELOW.
4. EligibilityThe Services are offered and available to individuals who are 18 years of age or the age of consent in the state of your residence. If you do not meet all of these requirements, you must not access or use the Services.
5. ChangesWe may revise and update these Terms & Conditions from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to your access and use of the Services thereafter. Your continued use of the Services following the posting of revised Terms & Conditions means that you accept and agree to the changes. You are expected to check this page so you are aware of any changes, as they are binding on you. If there are material changes to these Terms & Conditions, we may also provide you with notice of those changes through other channels, such as posting the changes to the Sites and/or communicating the changes via e-mail or other communication channels.
- Account Confidentiality. You must treat your account username and password as confidential and must not disclose such information to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or portions of it using your username, password, or other related information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security of such information. You also agree to ensure that you exit from your account at the end of each session on our Services. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.
- Disabling the Account. We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you or any other user has violated any provision of these Terms & Conditions.
- Keeping the Account Active. You must use your account to keep it active. This means you must sign in at least once in a twelve month period to keep your account, and associated Services, active, unless a longer period is provided under another agreement. We have the right to disable any account that is deemed to be inactive by us in our sole discretion.
- Fraudulent Use. If we reasonably suspect that your account is at risk of being used by a third party fraudulently (for example, as a result of an account compromise), we may suspend your account until you can reclaim ownership. Based on the nature of the compromise, we may be required to disable access. We reserve the right to disable any account that is deemed to have been potentially or actively compromised in our sole discretion.
- Account Ownership. You understand and acknowledge that you have no ownership rights in your account on the Services, and that if you cancel your account or your account is terminated, all information you have submitted as part of your account will be marked as deleted in and may be deleted from our systems. Information may be retained in our sole discretion.
7. Trademark and Acceptable Use
- Protected Materials. The Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (collectively, “Materials”) are owned by Shady Rays, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
- Marks. The trademarks, service marks, trade dress, trade names, and logos contained on the Services, including but not limited to the Shady Rays name and logo and other trademarks registered in the United States (collectively, “Marks”) are the sole property of Shady Rays. In addition, all page headers, custom graphics, and custom icons are Marks of Shady Rays.
- Limited Use. These Terms & Conditions permit you to use the Services for your personal, non-commercial use only. You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store, or transmit any of the material on our Services, except as follows:
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print or download one copy of a reasonable number of pages of the Sites for your own personal, non-commercial use and not for further reproduction, publication, or distribution.
- If we provide desktop, mobile, or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
- Prohibited Uses. You must not:
- Modify copies of any materials from our Services.
- Use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text.
- Delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Sites.
- Access or use for any commercial purposes any part of the Services or content contained therein.
- Termination of Access. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Services in breach of the Terms & Conditions, your right to use the Services will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the Services or any content on the Services is transferred to you, and all rights not expressly granted are reserved by Shady Rays. Any use of the Services not expressly permitted by these Terms & Conditions is a breach of these Terms & Conditions and may violate copyright, trademark, and other laws.
8. Notice of Copyright Infringement
- Copyright Infringement Notice. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512), Shady Rays has implemented procedures for receiving written notification of claimed infringements. Shady Rays has also designated an agent to receive notices of claimed copyright infringement. If you believe in good faith that your copyright has been infringed, you may submit such a request to email@example.com containing the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A description specifying the location on our website of the material that you claim is infringing;
- Your email address and your mailing address and/or telephone number;
- A 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; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
- Counter-Notice. If you believe that a notice of copyright infringement has been improperly submitted against you, you may submit a Counter-Notice, pursuant to the Digital Millennium Copyright Act, by sending a Counter-Notice to firstname.lastname@example.org containing the following information:
- Your physical or electronic signature;
- Identification of the material removed or to which access has been disabled;
- A statement under penalty of perjury that you have a good faith belief that removal or disablement of the material was a mistake or that the material was misidentified;
- Your full name, your email address, and your mailing address.
9. Prohibited Uses
- You may use the Services only for lawful purposes and in accordance with these Terms & Conditions. You agree not to use the Services:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- In any way that violates US international trade laws (including, without limitation, any laws and regulations implementing US and international sanctions programs on individuals, entities, or persons in sanctioned countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
- To impersonate or attempt to impersonate Shady Rays, a Shady Rays employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Shady Rays or users of the Services, or expose them to liability.
- Additionally, you agree not to:
- Use the Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Services, including their ability to engage in real time activities through the Services.
- Use any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material available through the Services.
- Use any manual process to monitor or copy any of the material on the Services, or for any other purpose not expressly authorized in these Terms & Conditions, without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Services.
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services are stored, or any server, computer, or database connected to the Services.
- Attack the Services via a denial-of-service attack or a distributed denial-of-service attack.
- Otherwise attempt to interfere with the proper working of the Services.
11. Mobile / SMS Terms / E-Mail
- Mobile Features / SMS Messaging. Some of the Services may, from time to time, have features that contain features for wireless device users (“Mobile Features”) and may allow you to opt-in to mobile services including SMS and/or MMS messaging programs (“SMS Messaging”). Your wireless provider may charge you for using Mobile Features or SMS Messaging, including fees related to the receipt of text messages or related to the transmission of data from your mobile device.
- Additional Fees. In order to receive Mobile Features or utilize SMS Messaging, your wireless provider may require you to purchase additional services, and you may have to pay additional fees for those services. You agree that you understand, have knowledge of and accept the fees that your wireless provider may charge you and that Shady Rays is not charging you and is not responsible for those fees.
- Consent / Autodialer. To the extent you sign up for any Mobile Features or SMS Messaging, you may agree to receive recurring text messages and you understand that we may use an autodialer or other sort of automated calling system to send marketing text messages to the mobile number you provided at the time of opting-in for any Mobile Features or SMS Messaging. Your consent to receive text messages is not required or not a condition to make purchase or use our services, including but not limited to any feature on our Website. Your wireless provider may apply message or data rates, which you know of and accept.
- Opt-Out. You understand that the service may be a recurring message program. You may opt-out of receiving text messages by replying STOP to any message received or by changing your contact methods through the Services.
- Updating Account. If you change or deactivate the phone number you provided to us upon sign up for any Mobile Features or SMS Messaging, you agree to update your account to ensure that any SMS messages intended for your receipt are not sent to any person who may acquire your phone number in the event your wireless provider reassigns your number.
- E-Mail Communications. You may be asked to consent to receive certain e-mail communications from time to time. You understand that you may stop any such communications by following the opt-out procedures set forth in any such communications or sending an e-mail to email@example.com.
12. Monitoring and Enforcement; TerminationWe have the right to:
- Take any action with respect to any use of our Services that we deem necessary or appropriate in our sole discretion, including if we believe that such use violates the Terms & Conditions, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Shady Rays.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services.
- Terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of these Terms & Conditions.
13. Products and Services
- Certain of our Products may have limited quantities and are subject to our Return Policy.
- Shady Rays makes every effort to ensure that all information through the Services, including descriptions of our Products and listed prices, is accurate and correct at all times. However, mistakes do happen. We will try to resolve all errors in information on the Sites as soon as reasonably possible.
- The colors of Products shown on our Sites will depend on many factors, including your display settings.
- The actual sizes and shapes of Products may differ from how they appear on your screen.
- We reserve the right, but are not obligated to limit the sales of our Products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis.
- We reserve the right to limit the quantities of any Services we offer.
- All descriptions of Products or Product pricing are subject to change at any time without notice, and at our sole discretion. We further reserve the right to discontinue any Product at any time. Any offer for any Product or service made on the Sites is void where prohibited.
- Pictures and images on the Sites are for illustration purposes only. For an accurate description of any Product and for details of what is included with any Product please refer to the corresponding written description.
- We will do our best to arrange delivery of Products within a reasonable time of ordering and the ship date as set out in the shipping confirmation communication.
- We reserve the right to adjust prices, Products, and offers at our discretion.
14. Reliance on Information / Disclaimer of Accuracy of InformationThere occasionally may be information through our Services that contains typographical errors, inaccuracies or omissions that may relate to Product descriptions, pricing, promotions, offers, Product shipping charges, transit times and availability. We reserve the right to correct any errors, inaccuracies or omissions, and to change or update information or cancel orders if any information in the Services is inaccurate at any time without prior notice (including after you have submitted your order).
We undertake no obligation to update, amend, or clarify information in the Services, including without limitation, pricing information, except as required by law. No specified update or refresh date applied in the Services should be taken to indicate that all information in the Services has been modified or updated.
15. Prescription DisclaimerShady Rays does not provide optometric, medical, or other professional services and is not licensed to practice optometry or medicine. None of the content offered through the Services be considered medical, optometric, or professional advice. You acknowledge and agree that Shady Rays does not provide medical advice, diagnosis, or treatment, and provides only a means to order eyewear in accordance with your existing eyeglass prescription.
Shady Rays must receive your eyeglass prescription to fulfill a prescription (Rx) order. Shady Rays shall take all reasonable precautions to ensure that all personal and/or health information is kept secure and confidential. You acknowledge and agree to the upload and transmission of your eyeglass prescription via this website.
Shady Rays will perform all reasonable efforts to verify your prescription in accordance with all applicable laws. You acknowledge and agree that all personal and/or health information that you have provided to Shady Rays is truthful, accurate, current, and complete including, without limitation, your uploaded and transmitted eyeglass prescription. You acknowledge and agree to maintain and promptly update any personal and/or health information to keep it truthful, accurate, current, and complete including, without limitation, your uploaded and transmitted eyeglass prescription.
Shady Rays will produce eyewear in accordance with the customer’s preferences and prescription. Prescription (Rx) eyewear must be matched specifically to each customer’s unique prescription. You acknowledge and agree that Shady Rays will not accept order cancellations, modifications, returns, or exchanges to prescription (Rx) orders.
Shady Rays provides its Services as requested and will make no independent inquiry into the use or suitability of Shady Rays' products for a particular customer. Shady Rays generally disclaims any liability for the use or suitability of any eyewear purchased from us and that it accurately reflects the customer's true prescription or vision. You are advised to take reasonable caution in wearing and using eyewear, preventing excess exposure to harmful ultraviolet (UV) rays and otherwise take care that your vision is not in any way negatively impacted by your use of eyewear. If there are any issues as to your vision and the use or suitability of Shady Rays' products whatsoever, you are advised to see professional eye care advice from a physician, optometrist, or other medical practitioner before using our services.
17. Links from the WebsiteIf the Services contain links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to our Services, you do so entirely at your own risk and subject to the terms & conditions of use for such websites.
18. Disclaimer of WarrantiesYOUR USE OF THE SERVICES, ITS CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT, AND ANY SERVICES OR PRODUCTS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER SHADY RAYS NOR ANY PERSON ASSOCIATED WITH SHADY RAYS MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER SHADY RAYS NOR ANYONE ASSOCIATED WITH SHADY RAYS REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, SHADY RAYS HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
19. Limitation on LiabilityTO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT WILL SHADY RAYS, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO IT, ANY PRODUCTS OBTAINED THROUGH THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. TO THE EXTENT ANY SUCH DAMAGES ARE REQUIRED BY APPLICABLE LAW, THEY SHALL BE CAPPED AT ONE HUNDRED DOLLARS ($100) (US). THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
20. IndemnificationYou agree to defend, indemnify, and hold harmless Shady Rays, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these Terms & Conditions or your use of the Services.
21. Force MajeureUnder no circumstances shall Shady Rays be held responsible or liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war (including but not limited to cyber related events and/or occurrences attributed to state and/or quasi-state actors by either public or privacy organizations and/or entities and/or governments), governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, lighting, or air conditioning.
22. Dispute Resolution, Arbitration, Class-Action Waiver, Jury Waiver
- Disputes. The terms of this Section shall apply to all Disputes between you and Shady Rays. For the purposes of this Section, “Dispute” shall mean any dispute, claim, controversy or action between you and Shady Rays, including but not limited to disputes concerning these Terms & Conditions, your use of the Services, and/or privacy or publicity rights, whether in contract, warranty, misrepresentation, fraud, tort, intentional tort, statute, regulation, ordinance, or any other legal or equitable basis. YOU AND SHADY RAYS AGREE THAT “DISPUTE” AS DEFINED IN THESE TERMS & CONDITIONS SHALL NOT INCLUDE ANY CLAIM OR CAUSE OF ACTION BY SHADY RAYS FOR (1) TRADE SECRET MISAPPROPRIATION; (2) PATENT INFRINGEMENT; (3) COPYRIGHT INFRINGEMENT OR MISUSE; AND/OR (4) TRADEMARK INFRINGEMENT OR DILUTION.
- Opt-Out. You may opt-out of these arbitration procedures and the waiver of class and representative proceedings specified in these Terms & Conditions by sending a written letter to Shady Rays at firstname.lastname@example.org within thirty (30) calendar days of your initial agreement to these Terms & Conditions (including your first use of the Services) that specifies: (1) your name; (2) your mailing address; (3) and your request to be excluded from the final, binding individual arbitration procedure and waiver of class and representative proceedings specified in this Section. In the event that you opt-out consistent with the procedures set forth above, all other terms of these Terms & Conditions shall continue to apply.
- Binding Arbitration. You and Shady Rays agree: (1) to arbitrate all Disputes between you and Shady Rays pursuant to the provision of these Terms & Conditions; (2) these Terms & Conditions memorialize a transaction in interstate commerce; (3) the Federal Arbitration Act (9 U.S.C. § 1, et seq.) governs the interpretation and enforcement of this Section (notwithstanding the choice-of-law provision contained herein); and (4) this Section shall survive termination in these Terms & Conditions.
- Dispute Notice. In the event of a Dispute, you or Shady Rays must first send to the other party a notice of the Dispute that shall include a written statement that sets forth the name, address, and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested (the “Dispute Notice”). The Dispute Notice to Shady Rays must be addressed to email@example.com (“Shady Rays Notice Address”). The Dispute Notice to you will be sent by certified mail to the most recent address we have on file or otherwise in our records for you, or via email if we do not have any such address on file. Within 60 calendar days upon either party receiving the Dispute Notice, the parties shall engage in a good faith informal dispute resolution conference, whether by phone, e-mail, or other channel as agreed between the parties. You and Shady Rays will work in good faith to schedule the informal conference at a mutually convenient time. If you are represented by counsel, your counsel may participate in the informal dispute resolution conference, but you shall also fully participate in such discussions. The arbitrator may dismiss any arbitration brought without first proceeding through the informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
- Mediation. In the event the parties cannot resolve the Dispute via the informal dispute resolution conference, the Dispute must first be submitted to non-binding mediation before a neutral third party before it may proceed to arbitration. Selecting the mediator, the appropriate terms for mediation (including costs), and a date for mediation shall be negotiated in good faith between the parties. The administrative fees associated with mediation shall be negotiated between the parties, but you will not be required to pay any such fees that exceed those fees you would be required to pay if proceeding in a court of law. Such fees also will not include attorneys’ fees and costs, if any, unless awarded during mediation. If the parties cannot agree to appropriate terms concerning mediation, the parties shall be entitled to proceed with an arbitration proceeding pursuant to this Section. The arbitrator may dismiss any arbitration brought without first proceeding through the informal dispute resolution conference. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
- Small Claims Court. Notwithstanding the foregoing, you may bring an individual action in the small claims court of your state, municipality, province or territory if the action is within that court’s jurisdiction and is pending only in that court.
- CLASS ACTION WAIVER. YOU AGREE THAT YOU MAY BRING DISPUTES AGAINST SHADY RAYS IN AN INDIVIDUAL CAPACITY ONLY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, INCLUDING WITHOUT LIMITATION FEDERAL OR STATE CLASS ACTIONS.
- MASS ACTION WAIVER. You and Shady Rays agree that any Dispute between you shall be resolved only in an individual arbitration pursuant to this Section. You and Shady Rays expressly waive the right to have any dispute, claim, or controversy brought, heard, administered, resolved, or arbitrated as a Mass Action, as defined below, and neither an arbitrator nor an arbitration provider shall have any authority to hear, arbitrate, or administer any Mass Action to award relief to anyone but the individual in arbitration, unless otherwise provided in this Section.
"Mass Action"includes instances in which you or Shady Rays are represented by a law firm or collection of law firms that has filed 25 or more arbitration demands of a substantially similar nature against the other party within 180 days of the arbitration demand filed on you or Shady Rays’ behalf, and the law firm or collection of law firms seek to simultaneously or collectively administer and/or arbitrate all arbitration demands in the aggregate. Notwithstanding this Section, nothing prevents you or Shady Rays from participating in a mass settlement of claims.
- Special Master Appointment. In the event there is a dispute concerning the Mass Action Waiver, the parties agree to resolve such dispute before a Special Master appointed by the arbitration provider and agreed to between the parties. The Special Master shall have authority to resolve disputes concerning: (i) filing fees owed with respect to any Mass Action; (ii) any dispute regarding whether this arbitration agreement has been followed; (iv) whether claimants are barred from proceeding with a Mass Action; (v) any dispute relating to the representation of the same claimant by multiple law firms; (vi) any dispute regarding discovery common to all claims; and (vii) any disputes regarding legal or factual issues common to all claims. If the Special Master determines you violated the Mass Action Waiver, either party shall have the opportunity to opt-out of arbitration within 30 days of the arbitrator’s decision. You may opt-out of arbitration by providing a written notice to firstname.lastname@example.org. Shady Rays may opt-out of arbitration by sending written notice of its intention to the arbitration provider and to you or your attorney, agent, or representative. For the avoidance of doubt, the ability to opt-out of arbitration at this stage in the proceedings only applies if the arbitrator or panel of arbitrators determines that you have violated the Mass Action Waiver. If the parties proceed with arbitration, the parties agree to the batching procedures below.
- Batching. After proceedings before the Special Master have concluded, and to the extent any Mass Actions are permitted to proceed, the parties agree that Mass Actions will be batched into groups of no more than 200 demands per batch by state of residence (with any remaining demands batched into a single group). The parties shall inform the arbitrator of the batches and their composition within 14 calendar days of the conclusion of proceedings before the Special Master. The arbitrator provider shall treat each batch of claims as one case, with each case having one demand for arbitration, one appointed arbitrator, and one set of administrative documents and filing fees per batch. The parties shall randomly assign sequential numbers to each batch, and only one batch shall proceed to arbitration at a time in the order of the random sequential numbers. A separate arbitrator will be appointed to, and administrative and filings fees assessed for, each batch as the batch proceeds to arbitration.
- Arbitration Procedure. If a party elects to commence arbitration, the arbitration shall be administered by the American Arbitration Association (“AAA”) and be governed by the AAA Commercial Arbitration Rules and Mediation Procedures (“AAA Commercial Rules”), and other applicable rules, including the AAA Consumer Arbitration Rules (“AAA Consumer Rules”), as modified by these Terms & Conditions. The AAA Commercial Rules and AAA Consumer Rules are available at adr.org. If there is a conflict between the AAA Commercial Rules and AAA Consumer Rules and the rules set forth in these Terms & Conditions, the rules set forth in these Terms & Conditions shall govern. All Disputes shall be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. The arbitrator is bound by the terms of these Terms & Conditions. The arbitrator, and not any federal, state, provincial, territorial or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms & Conditions, including, but not limited to, any claim that all or any part of these Terms & Conditions is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
- Hearing Format. Unless otherwise agreed, the arbitration shall take place in the State of Kentucky, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses). In all hearing formats, the arbitrator shall issue a written decision that explains the essential findings and conclusions on which an award, in any, is based. During the arbitration, the amount of any settlement offer made by Shady Rays or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Shady Rays is entitled. The discovery or exchange of non-privileged information relevant to the Dispute may be allowed during the arbitration.
- Arbitration Fees. The arbitration fees are governed by AAA’s Commercial Arbitration Rules and Mediation Procedures Administrative Fee Schedule (“Commercial Fee Schedule”) or Consumer Arbitration Rules Costs of Arbitration (“Consumer Fee Schedule”), as applicable, and as modified by these Terms & Conditions. AAA’s Commercial Fee Schedule and Consumer Fee Schedule are available at adr.org. You agree that if you initiate the arbitration, you will pay your filing fee. You shall not be required to pay a filing fee that exceeds any amounts you would otherwise be required to pay by applicable law when filing a claim in a court of relevant jurisdiction. You are responsible for all additional costs that you incur in the arbitration, including without limitation, fees for attorneys or expert witnesses.
- Arbitrator’s Authority. All issues of arbitrability shall be reserved to the arbitrator. The arbitrator may award relief, including but not limited to monetary, declaratory, injunctive or other equitable relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief. The decision of the arbitrator shall be in writing and shall briefly set forth the essential findings of fact and legal analysis. A judgment to enforce the award may be entered by a court of competent jurisdiction, however, any award that has been satisfied may not be filed or entered into court.
- Binding Authority / Confidentiality. The parties agree that that they are each waiving their right to a trial by jury to the maximum extent permitted by law, and that the arbitrator’s award shall be final and binding unless the parties otherwise agree in writing. All arbitration proceedings will be confidential and closed to the public and any parties other than you and Shady Rays.
- Amendments to this Section. Notwithstanding any provision in these Terms & Conditions to the contrary, you and Shady Rays agree that if Shady Rays makes any material amendments to the dispute resolution procedure and class action waiver provisions in these Terms & Conditions, Shady Rays will notify you and you will have thirty (30) calendar days from the date of notice to affirmatively opt-out of any such amendments by sending a written letter to the Shady Rays Notice Address that specifies: (1) your name; (2) your mailing address; and (3) your request to opt-out of such amendments. If you affirmatively opt-out of any future amendments, you are agreeing that you will arbitrate any Dispute between us in accordance with the language of this Section as stated in these Terms & Conditions, without any of the proposed amendments governing. If you do not affirmatively opt-out of any future amendments, you will be deemed to have consented to any such future amendments.
- Severability. If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms & Conditions remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms & Conditions.
- Exclusive Venue For Other Controversies. Shady Rays and you agree that any controversy excluded from the dispute resolution procedure and class action waiver provisions in this Section (other than an individual action filed in small claims court) shall be filed only in the courts located within the State of Kentucky and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such .
23. California Consumer NoticeCalifornia users are entitled to the following consumer rights notice: The Services are provided by Shady Rays. If you have a question or complaint regarding the Services, please contact us by writing to email@example.com. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by post at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
24. Governing Law; Jurisdiction and VenueThis Agreement will be governed by and construed in accordance with the laws of the State of Kentucky, without giving effect to its conflict of laws provisions or the laws of your state. If for any reason a court of competent jurisdiction or arbitrator finds any provision or portion of this Agreement to be unenforceable, the remaining portion of this Agreement will continue in full force and effect.
25. Waiver and SeverabilityNo waiver by Shady Rays of any term or condition set out in these Terms & Conditions shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Shady Rays to assert a right or provision under these Terms & Conditions shall not constitute a waiver of such right or provision.
If any provision of these Terms & Conditions is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms & Conditions will continue in full force and effect.
26. Entire AgreementThese Terms & Conditions constitute the sole and entire agreement between you and Shady Rays regarding the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Services.
27. Contact UsAll other feedback, comments, requests for technical support, and other communications relating to the Services should be directed to: firstname.lastname@example.org.
28. Refund PolicyWe offer completely free returns and exchanges on most items within 30 days of purchase. To start a return or exchange, visit returns.shadyrays.com. We will provide a prepaid return label for you to send any unwanted item(s) back. Once you select the item(s) to be returned, you will have the option to Shop Now in-store for something new or get a refund. If you choose Shop Now, you will receive an instant credit for the full retail value of your returning item(s) to shop for something else on the website – no additional discounts can be applied through Shop Now. If you opt for a refund or store credit, it will be sent back to the original payment method or store credit via e-gift card when Shady Rays receives the return.
Mystery pairs and items marked as Final Sale are not available for return or exchange. Prescription orders placed may be returned within 30 days of purchase for a refund or (1) remake if unsatisfied. Requests for prescription order returns should be sent to email@example.com.
29. Australia Specific Ocean Clean-Up ProgramVisitors to our site who are located in Australia will see detail on each product page which describes the fact that we clean up 160 plastic bottles from the ocean for each pair sold. Each pair of Shady Rays sunglasses sold in Australia will directly finance the cleanup of 160 bottles’ worth of ocean-bound plastic. Each individual pair of glasses (excluding protection program / warranty claims) will provide the noted level of clean-up following the sale. We partner with a company called Verdn in order to provide this clean-up on our behalf. To learn more about our partnership with Verdn, please visit: https://verdn.com/clients/shady-rays/.
30. Courier Specific Delivery ErrorsOnce your order is packed and given to the shipping courier (USPS, UPS, Fedex, or DHL), the ultimate delivery of that package is expected but out of our direct control. If your order shows fulfilled in our system and shows delivered via courier tracking number but you do not have your product for any reason, we reserve the right at our sole discretion to determine if to re-ship your order. Our team may require an additional shipping fee in order to re-ship. In addition, approved re-shipments may not happen more than once per order. Lastly, all re-shipment requests must be made within 30 days of your order showing fulfilled in our system. After that time we are unable to re-ship under any circumstances. Please reach out to firstname.lastname@example.org if you need assistance with a shipment that has not arrived to you. Once your order is packed and given to the shipping courier (USPS, UPS, Fedex, or DHL), the ultimate delivery of that package is expected but out of our direct control. If your order shows fulfilled in our system and shows delivered via courier tracking number but you do not have your product for any reason, we reserve the right at our sole discretion to determine if to re-ship your order. Our team may require an additional shipping fee in order to re-ship. In addition, approved re-shipments may not happen more than once per order. Lastly, all re-shipment requests must be made within 30 days of your order showing fulfilled in our system. After that time we are unable to re-ship under any circumstances. Please reach out to email@example.com if you need assistance with a shipment that has not arrived to you.
31. Product Discount ApplicationAll discount codes and related promotional pricing are applicable only when applied specifically by the customer during the checkout process on shadyrays.com. Orders placed prior to a sale or other promotion will not be eligible for future sales or promotions, regardless of whether the order in question has shipped or has arrived to the customer. In addition, coupon codes that are valid during a particular purchase but not specifically input by the customer during checkout cannot be applied to that order after the sale is complete.
32. Additional PoliciesFor more information about our additional policies, including our Lost & Broken Replacement Program, Limited Lifetime Craftsmanship Warranty, and Prescription Policies. More information can be seen here.