Terms and Conditions
DayOD LLC Terms and Conditions
This Terms and Conditions Agreement (“ Agreement”) contains important information about your legal rights, remedies, and obligations, and is a legally binding agreement between you (“you” or “User”) and DayOD LLC (“DayOD,” “we”, or “us”), governing your use of DayOD’s Site and Site Services(collectively, Services”).You understand that by using the DayOD Site or Site Services (which generally means using in any way our work marketplace www.DayOD.com or our applications), and by clicking accept when prompted on the Site, you agree to be bound by all agreements which constitute DayOD’s Terms of Service, and you agree that the “ Terms of Service” means every agreement linked herein and includes the Fee and, Privacy Policy and this Term and Conditions Agreement, including Section 14 which contains an arbitration agreement and class action waiver that applies to claims brought against DayOD in the United States. You have an opportunity to opt out of arbitration as provided in Section 14 You should read all of our terms carefully because you are promising not to break any agreements in the Terms of Service.
If you want to use our work marketplace or any of our services (which we refer to altogether as Services), whether just by looking around or by registering an account, you must first read and agree to this Agreement (including the dispute resolution and arbitration provisions in Section 14). If you don’t understand this Agreement or you don’t agree to all of its terms and conditions, you may not use our Services. If you do not understand or agree to this Agreement, do not click to accept this Agreement, “Sign Up”, “Create My Account”, or similar, and do not visit DayOD.com, use our mobile applications, or otherwise use our Services. If you are using our Services on behalf of a business or legal entity, you may only do so if you have authority to agree to the Terms of Service on behalf of that business or legal entity.
To make these terms a little easier to understand, we capitalize certain terms and capitalizing them means they have a special meaning. Section 16 provides the definitions of some capitalized terms and others are defined throughout the Terms of Service (look for quotation marks and bold font).
When you see this 
symbol, look for a simple summary for each section. We wrote these to help you get a quick overview, but you'll need to read the sections completely to get all the details of what you're agreeing to.
1. DAYOD ACCOUNTS
How you can register for a DayOD account and the different types of accounts that you can have.
1.1 REGISTRATION
You must register for an account to have full access to our Services, and your registration is subject to our approval.
You must register for an account with us (“ Account”) to access and use certain portions of our Services. Registered users of our Services are “Users”, and unregistered users are “ Site Visitors”.
Your Account registration is subject to approval by DayOD. We reserve the right to decline registration either to join DayOD or to add an Account of any type, for any lawful reason, including supply and demand, cost to maintain data, or other business considerations.
1.2 ACCOUNT ELIGIBILITY
You promise to use our Services for business purposes only. You also promise that you are eligible to enter into this Agreement, including because you are 18 years or older.
DayOD offers the Services for your business purposes only and not for personal or consumer use. By registering for an Account or by using our Services, you represent that you: (a) are doing business under your own name as a self- employed individual/sole proprietor or are an employee or agent of an independent business (such as a corporation, limited liability company, or other entity); (b) will use our Services for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting, and any offering or provision of Contracted Optometrist Services; and (d) are either a legal entity or an individual who is at least 18 years old (or the age of majority in your country if the age of majority is over 18), and that you can form legally binding contracts.
1.3 ACCOUNT PROFILE
You must provide accurate personal information when you sign up and you must update your account if your personal information changes. We can suspend or terminate your account if the information you give us is false, outdated,or incomplete.
To register for an Account to use our Services, you must complete a User profile (“ Profile”), which you consent to be shown to other Users and to be shown to the public. You agree to provide accurate and complete information on your Profile—and on all registration and other forms you access while using our Services or provide to us—and you agree to keep that information current. You agree not to provide any false or misleading information about your identity or location, your business, the beneficial owner(s) of your business, your professional license, or the services your business provides, and you agree to correct any information that is or becomes false or misleading. We reserve the right to suspend or terminate the Account, or access to our Services, of anyone who provides false, inaccurate, or incomplete information in creating, marketing, or maintaining a Profile or an Account.
1.4 ACCOUNT TYPES
We offer two types of accounts (“Account Types”):Clinic and Contracted OptometristYou can only register for one account type at a time. Each Account Type will need to have its own Profile, username and password. Each Account Type has its own unique signup and login page. Never share your Account password with anyone.
Once you register for your Account (only one per User), you cannot add other Account Types under the same username and password. For example, if you already have a Contracted Optometrist Account Type (defined below), you cannot add a Clinic Account Type (defined below) to your Contracted Optometrist Account without re-registering. You agree not to register for or maintain more than one of the same Account and Profile without express written permission from us.
If you create an Account as an employee or agent on behalf of a company, you represent and warrant that you are authorized to enter into binding contracts, including the Terms of Service, on behalf of yourself and the company. More than one person can create an Account as an employee or agent on behalf of the same company.
1.5 ACCOUNT PERMISSIONS
You are responsible for all activity on your Account.
You agree not to request or allow another person to create an Account for you, your use, or your benefit, except that authorized employees or agents may create an Account on behalf of your business. By granting authorized employees or agents permission to create an Account for you, you represent that: (a) the User is authorized to act on your behalf; and
(b) you are fully responsible and liable for what the User does and does not do, including with respect to making payments and entering into Service Contracts and the Terms of Service. If any User violates the Terms of Service, it may affect your ability to use our Services. When an Account is closed, DayOD may close any related Accounts as well.
1.6 IDENTITY AND LOCATION VERIFICATION
You will allow us to verify your identity, license to practice optometry, location, and business affiliations from time to time.
When you register for an Account and periodically thereafter, your Account will be subject to verification, including but not limited to validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on DayOD. You authorize DayOD, directly or through third parties, to make any inquiries necessary to validate your identity, your location, and confirm your ownership of your business, email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes providing official government or legal documents, and cooperating with other reasonable requests we make to verify your identity. During verification some Account features may be temporarily limited but will be restored if verification is successfully completed.
1.7 USERNAME AND PASSWORDS
You will keep your username and password secret and will not share them, and you will not use anyone else’s username and password.
Each person who uses our Services must register for their own Account with a username and password. You are responsible for safeguarding and maintaining the confidentiality of your username and password and agree not to share
your username or password with anyone. You are responsible for safeguarding your username and password and for any use of our Services with your username and password. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password. You further agree not to use the Account or log in with the username and password of another User.
2. PURPOSE OF DAYOD
What we do and do not do when providing our Services and some of your responsibilities when using our Services.
The DayOD Site is a work marketplace where Clinics and Contracted Optometrists can identify each other and advertise, buy, and sell Contracted Optometrist Services online. Subject to the Terms of Service, DayOD provides the Services to Users, including hosting and maintaining the DayOD Site, facilitating the formation of Service Contracts, and assisting Users in resolving disputes which may arise in connection with those contracts. When a User enters a Service Contract, the User agrees to use the Services exclusively to invoice, receive, and pay any amounts owed under the Service Contract.
2.1 RELATIONSHIP WITH DAYOD
We offer a work marketplace: an online platform for Users to find and connect with each other. We are not involved directly in your negotiations or the delivery of Contracted Optometrist Services and are not a party to any agreements you may make with other Users. You are solely responsible for your content published to DayOD and for your agreements with other Users, including performance under the agreements.
DayOD offers a platform that enables Users to find one another, enter into service relationships and agreements, receive and provide Contracted Optometrist Services, and make and receive payments through Stripe Connect (https://stripe.com/legal/connect-account). DayOD neither performs nor employs individuals to perform Contracted Optometrist Services. You acknowledge and agree that DayOD does not supervise, direct, control, or monitor Users in the performance of any contractual obligations they may have under a Service Contract or Direct Contract and agree that:
(a) DayOD is not responsible for ensuring the accuracy or legality of any User Content, for which Users are solely responsible; (b) DayOD is not responsible for the offering, performance, or procurement of Contracted Optometrist Services, (c) DayOD does not make any representations about or guarantee any particular User’s offered services, and
(d) nothing will create an employment, agency, or joint venture relationship between DayOD and any User offering services. While DayOD may provide certain badges on Contracted Optometrist or Clinic profiles, such badges are not guarantees, including of quality or ability or willingness of the badged Contracted Optometrist or Clinic to complete a Service Contract.
You further acknowledge and agree that Users, and not DayOD, are solely responsible for (a) evaluating and determining the suitability of any Clinic, or Contracted Optometrist; (b) assessing whether to enter into a Service Contract with another User and for verifying any information about another User, including Composite Information; (c) deciding whether to enter into a Service Contract on DayOD as well as the contract terms, and (d) negotiating, agreeing to, and executing any terms or conditions of the contracts and for performing and monitoring performance under them. All Contracts between Users are directly between the Users and DayOD is not a party to those contracts. Nothing in this Agreement is intended to or does prohibit or discourage any User from engaging in any other business activities or providing any services through any other channels they choose, provided, if applicable, Users comply with the Opt Out provisions described in Section 7. Users are always free to engage in such other business activities and services and are encouraged to do so.
As part of our constant effort to improve our Services for our customers, we may test or otherwise temporarily offer certain features and beta tools for your use. We will generally flag on the Site or in related customer forums when a particular tool is being tested and how the feature works, but we do not guarantee that the Site, or any of its tools or features, will be available at any given time.
2.2 TAXES AND BENEFITS
Contracted Optometrists are responsible for paying their own taxes, obtaining their own insurance, and ensuring they comply with applicable laws and regulations.
Contracted Optometrist acknowledges and agrees that Contracted Optometrist is solely responsible for: (a) all tax liability associated with payments received from Contracted Optometrist’s Clinics and through DayOD, and that DayOD will not withhold any taxes from payments to Contracted Optometrist unless required to under applicable law; (b) obtaining any liability, health, workers’ compensation, disability, unemployment, or other insurance needed or required by law, and that Contracted Optometrist is not covered by or eligible for any insurance from DayOD; (c) determining and fulfilling Contracted Optometrist’s obligations under applicable laws and regulations with respect to invoicing and reporting, collecting, or remitting any applicable taxes or charges; and (d) if outside of the United States, determining if DayOD is required by applicable law to withhold any amount of the Contracted Optometrist Fees and notifying DayOD of any such requirement and indemnifying DayOD for any requirement to pay any withholding amount to the appropriate authorities (including penalties and interest). In the event of an audit of DayOD, Contracted Optometrist agrees to promptly cooperate with DayOD and provide copies of Contracted Optometrist’s tax returns and other documents as may be reasonably requested for purposes of such audit, including but not limited to records showing Contracted Optometrist is engaging in an independent business as represented to DayOD.
2.3 MARKETPLACE FEEDBACK AND USER CONTENT
Users publish and ask DayOD to publish information and feedback on the Site. We are not responsible for that content, and your publication or use of it is at your own risk.
You acknowledge and agree that Users publish and request DayOD to publish on their behalf information on the Site such as feedback, composite feedback, or geographical location. Such information is based on data that Contracted Optometrists or Clinics voluntarily submit to DayOD and does not constitute an introduction, endorsement, or recommendation by DayOD. You agree that DayOD is not responsible for verifying such information and provides it solely for the convenience of Users, but providing false or misleading information violates this Agreement and may result in revocation of your access to use the Site Services.
You acknowledge and agree that User feedback benefits the marketplace and its Users, and you specifically request and agree that DayOD may make available to other Users individual and composite feedback about Users, including you. You acknowledge and agree that any feedback results for you, including your star rating score and other User Content highlighted by DayOD on the Site or otherwise (“ Composite Information”), may include User comments, User ratings, indicators of User satisfaction, and other feedback left by other Users. DayOD is not responsible for monitoring, influencing, contributing to or censoring these opinions. You agree to notify DayOD of any error or inaccurate statement in your feedback results, including the Composite Information, and you agree that DayOD may rely on the accuracy of such information if you do not. DayOD provides its feedback system as a means for Users to share their working experiences with and opinions of other Users publicly, and you acknowledge and agree that posted composite or compiled feedback and any other Composite Information relates only to the business advertised in the Profile and not to any individual person. You agree not to use the Composite Information to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
By using the Services, you may encounter content or information that might be inaccurate, incomplete, delayed, misleading, illegal, offensive, or otherwise harmful. DayOD generally does not review or monitor User Content. You agree that we are not responsible for User Content. We cannot always prevent the misuse of our Services, and you agree that we are not responsible for any such misuse. DayOD reserves the right (but is under no obligation) to remove posted feedback or information that DayOD determines violates the Terms of Service or negatively affects our marketplace, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of DayOD.
3. CONTRACTUAL RELATIONSHIP BETWEEN CLINIC AND CONTRACTED OPTOMETRIST
This section discusses the relationships you may decide to enter into with another User, including contracts to buy or sell Contracted Optometrist Services with another User.
3.1 SERVICE CONTRACTS
Users, not DayOD, are responsible for deciding whether to enter into agreements with other Users and for determining what the terms of those agreements will be.
As provided in Section 2.1 above, if a Clinic and a Contracted Optometrist decide to enter into a Service Contract, the contract is a contractual relationship directly between the Clinic and the Contracted Optometrist; DayOD is not responsible for and is not a party to any Service Contract and under no circumstances will any such contract create an employment or any service relationship between DayOD and any User.
With respect to any Service Contract, Clinics and Contracted Optometrists may enter into any agreements that they deem appropriate (e.g., confidentiality agreements, invention assignment agreements, assignment of rights, etc.), provided that those agreements do not conflict with, narrow, or expand DayOD’s rights and obligations under the Terms of Service, including this Agreement and the applicable Service Contract Payment Instructions.
Service contracts are divided into 3 sections as shown below.
|
Service Contract |
Scheduling template |
Contracted hours |
|
Monday – Friday Contract |
3 patients per hour |
8 AM to 6 PM OR 9 AM to 6 PM OR 10 AM to 7 PM (with 1 hour for lunch) |
|
Saturday Contract |
3 patients per hour |
8 AM to 2 PM OR 9 AM to 3 PM |
|
Sunday Contract |
3 patients per hour |
11 AM to 4 PM OR 12 PM to 5 PM |
- With respect to additional walk-in and emergency patients, they will be seen at the Contracted Optometrists
- Half day shifts are paid at ½ of the requested day
3.2 DISPUTES AMONG USERS
You agree to try to resolve your disputes with other Users by following the Job Escalation process found on the job page in your profile. Only Clinics are allowed to dispute Jobs.
For disputes arising between Clinics and Contracted Optometrists, you agree to abide by the Job Escalation process resolution process that is explained in the Service Contract Payment Instructions that apply to your Service Contract. If that process does not resolve your dispute, you may pursue your dispute independently, but you acknowledge and agree that DayOD will not and is not obligated to provide any further dispute resolution assistance.
If Contracted Optometrist or Clinic seeks an order from an arbitrator or court that might direct DayOD, or our Affiliates to take or refrain from taking any action with respect to an Service Contract Payment Account, that party will (a) give us at least five (5) business days’ prior notice of the hearing on the order; (b) include in any such order a provision that, as a precondition to any obligation affecting DayOD be paid in full for any amounts to which we would otherwise be entitled; and (c) include in any such order a provision that, as a precondition to any obligation affecting DayOD, DayOD be paid for the reasonable value of the services the order obligates us to undertake.
Unless otherwise requested by the clinic or Contracted Optometrist, funds for the Service Contract will become available to the Contracted Optometrist at 11:59 PM on the date services were rendered as defined in the Service Contract.
3.3 CONFIDENTIAL INFORMATION
Users can agree to their own confidentiality terms. If they do not, these terms apply. Users agree to keep other Users’ confidential information a secret.
Users may agree to any terms they deem appropriate with respect to confidentiality, including those set forth in the Optional Service Contract Terms. If Users do not agree to their own confidentiality terms, this Section 3.3 (Confidential Information) applies.
To the extent a User provides Confidential Information to another User, the recipient will take reasonable steps to keep that information confidential. On a User’s written request, the party that received Confidential Information will promptly destroy or return the disclosing party’s Confidential Information and any copies of it contained in or on its premises, systems, or any other equipment otherwise under its control. Users specifically agree that this Section 3.3 applies to information exchanged for purposes relating to evaluating whether to enter into a Service Contract, even if such contract is never agreed to.
4. WORKER CLASSIFICATION AND CONTRACTED OPTOMETRIST PAYMENT
Contracted Optometrist is an independent contractor and agrees to use DayOD Payment processing for employment relationships.
4.1 WORKER CLASSIFICATION
Clinics and Contracted Optometrists understand and agree that Contracted Optometrists utilizing the DayOD platform are independent contractors.
Clinic warrants its decisions regarding classification are correct and its manner of engaging Contracted Optometrists complies with applicable laws, regulations, and rules. DayOD is not responsible for worker classification as between Clinic and Contracted Optometrist, and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, franchisor/franchisee or employer-employee relationship between DayOD and a User.
4.2 CONVERSION FEES
If Clinics wish to engage Contracted Optometrists as employees, Clinics agree to pay DayOD a conversion fee.
Clinic agrees to pay DayOD a conversion fee of $5000 if it will receive services from a Contracted Optometrist under terms and conditions that would give rise to an employment relationship. Clinic agrees to notify DayOD LLC via email and pay the conversion fee within 90 days of the conversion from Contracted Optometrist to employee.
Contracted Optometrist acknowledges and agrees that DayOD will have no control over and is not responsible for the terms and conditions of any employment relationship that may arise between Contracted Optometrist Clinic, including the selection process, pay rate, work hours, employment dates, or working conditions.
5. DYNAMIC PRICING
DayOD LLC utilizes dynamic pricing when offering shifts or service contracts to optometrists utilizing the platform.
Clinics card on file will be billed for the amount they have indicated for the posted shift, with no additional fees applied. Similarly, Contracted Optometrists will be reimbursed the full amount they request in their profile for service contracts accepted through the platform.
AI Algorithm and Candidate Matching. DayOD employs a proprietary AI algorithm to identify potential candidates who are eligible for posted shifts based on the criteria in their user profiles. This algorithm helps ensure efficient and accurate matching between clinics and Optometrists.
Acceptance of Service Contracts. Acceptance of a service contract offered to Contracted Optometrists is deemed to occur when the Contracted Optometrist confirms acceptance through the platform, via email or via text. By accepting a service contract, Contracted Optometrists agree to fulfill the obligations outlined in the contract and abide by the terms and conditions of DayOD LLC.
Payment for Service Contracts. Upon acceptance of a service contract, the clinic's designated payment method will be charged the amount indicated in their posted shift. This payment will be processed promptly to confirm the booking and secure the services of the Contracted Optometrist.
Brance Office License Fees. In states where a "Branch Office License" or similar fee is required by the state's regulatory board of optometry, DayOD will allocate funds to the Contracted Optometrist to cover any fees associated with the "Branch Office License." It is the responsibility of the Contracted Optometrist to obtain the Branch Office License. Users acknowledge and agree that while DayOD facilitates the process by compensating the Contracted Optometrist for board fees associated with this placement, DayOD is not liable for obtaining such license.
Race Event. In situations where multiple Contract Optometrists are available for a particular service contract, the match is made via “race event”, indicating that whichever OD accepts the job first via text, email or other electronic means utilizing the platform will be awarded the contract.
5.1 TAXES
DayOD does not collect taxes except when required by law.
5.2 NO FEE FOR INTRODUCING OR FOR POSTING
DayOD does not introduce Clinics to Contracted Optometrists. DayOD offers a platform that enables Contracted Optometrists to introduce themselves and may from time-to-time highlight available shifts / service contracts to Contracted Optometrists that may be of interest. Therefore, DayOD does not charge a fee when a Contracted Optometrist finds a suitable Clinic. In addition, DayOD does not charge clinics any fee or dues for posting or viewing feedback, including Composite Information.
6. PAYMENT TERMS AND PAYOUT SERVICES
This section describes how DayOD’s Payout Services work and discusses your agreement to pay Contracted Optometrist Service Fees on Service Contracts, what happens if a Clinic doesn’t pay, and related topics.
6.1 PAYOUT SERVICES
DayOD LLC utilizes Stripe Connect (https://stripe.com/legal/connect-account) services to Users to deliver, hold, and receive payment for a Service Contract, and to pay fees to DayOD (“Stripe Connect”). DayOD LLC is a North Carolina corporation. The Stripe Connect Services are intended for business use, and you agree to use the Stripe Connect Services only for business purposes and not for consumer, personal, family, or household purposes.
6.1.1 PAYOUT INSTRUCTIONS
We follow what is in the applicable Payout Instructions when we give the money held by us to the Contracted Optometrist or back to the Clinic for a Service Contract.
DayOD LLC will use and release funds deposited to a Stripe Connect Payout Account only in accordance with this Agreement and the applicable Payout Instructions. You acknowledge and agree that DayOD LLC acts merely as a coordinator for delayed payment from the Clinic to the Contracted Optometrist. DayOD LLC is only obligated to perform those duties expressly described in this Agreement and any applicable Payout Instructions. DayOD will release funds from your Stripe Connect Account in reliance on your authorization, this Agreement, and as required by applicable law.
6.2 CLINIC PAYMENTS ON SERVICE CONTRACTS
This section describes when and how Clinic payments are made on their contracts with Contracted Optometrists.
Service Contracts. Clinic becomes obligated to pay applicable amounts into the Contracted Optometrist OD Wallet immediately upon Contracted Optometrists acceptance of a Service Contract offer for the full amount or for the half day shift if half day shift is acceptable to clinic. Clinic automatically and irrevocably authorizes and instructs DayOD to charge
Clinic’s credit card on file for the amount indicated for the posted shift / service contract.
Service Contract payments to the Contracted Optometrist are held as pending, in the Contracted Optometrist’s OD Wallet on the DayOD application.
Clinic acknowledges and agrees that failure by Clinic to dispute a Service Contract prior to 11:00 PM the day of the shift, is an authorization and instruction to release payment to the Contracted Optometrist’s OD Wallet.
6.3 DISBURSEMENTS TO CONTRACTED OPTOMETRISTS ON SERVICE CONTRACTS
This section describes when Contracted Optometrists receive their funds that we were holding for the Contracted Optometrists in Service Contract Payment.
On an undisputed completion of a Service Contract, DayOD will make the Pending ServiceContract’s Fee Available in the Contracted Optometrist’s OD Wallet. The Contracted Optometrist will utilize the Cashout functionality to move the funds from their OD Wallet to their Stripe Connect Account.
Stripe Connect will require the User to create a free Stripe Connect account to be used to transfer the Fees to their Bank Account or other Payment Methods as indicated on the Stripe Connect Platform. Stripe may charge the User a transaction Fee based on the Payout method.
Fixed-Price Service Contracts. Contracted Optometrist Fees become available to Contracted Optometrists no later than 24 hours post completion of the Service contract / shift.
Except as expressly provided in the Terms of Service or as prohibited by applicable law, DayOD may refuse to process, may hold the disbursement of the Contracted Optometrist Fees or any other amounts and offset amounts owed to us, or take such other actions with respect to the OD Wallet Account as we deem appropriate in our sole discretion if: (a) we require additional information, such as Contracted Optometrist’s tax information, government-issued identification or other proof of identity, address, or date of birth; (b) we have reason to believe the Contracted Optometrist Fees may be subject to dispute or chargeback; (c) we suspect a User has committed or attempted to commit fraud or other illicit acts on or through the Site or is using the Site unlawfully; (d) we believe there are reasonable grounds for insecurity with respect to the performance of obligations under this Agreement or other Terms of Service; or (e) we deem it necessary in connection with any investigation, required by applicable law, or necessary due to circumstances outside of our control after a commercially reasonable effort has been made by us due to such circumstances. If, after investigation, we determine that the hold on the disbursement of the Contracted Optometrist Fees is no longer necessary, DayOD will release the hold as soon as practicable.
In addition, except as expressly provided in the Terms of Service and to the extent permitted by applicable law, we reserve the right to seek reimbursement from you, and you will reimburse us, if we: (i) suspect fraud or criminal activity associated with your payment, withdrawal, or Project; (ii) discover erroneous or duplicate transactions; or
(iii) have supplied our services in accordance with this Agreement yet we receive any chargeback from the Payment Method used by you or your Clinic despite our provision of the Services in accordance with this Agreement. You agree that we have the right to obtain such reimbursement by DayOD to charge your account(s), offset any amounts determined to be owing, deduct amounts from future payments or withdrawals, charge your Payment Method, or use other lawful means to obtain reimbursement from you. If we are unable to obtain such reimbursement, we may, in addition to any other remedies available under applicable law, temporarily or permanently revoke your access to the Services and close your Account.
6.4 NON-PAYMENT OR DEFAULT
This section describes the actions DayOD can take if a Clinic does not pay fees on time. DayOD is not responsible for a Clinic’s non-payment of fees.
If Clinic is in “default”, meaning the Clinic fails to pay the Contracted Optometrist Fees or any other amounts when due under the Terms of Service, or a written agreement for payment terms incorporating the Terms of Service (signed by an authorized representative of DayOD), DayOD will be entitled to the remedies described in this Section 6.4 in addition to such other remedies that may be available under applicable law or in such written agreement. For the avoidance of doubt, Clinic will be deemed to be in default on the earliest occurrence of any of the following: (a) Clinic fails to pay the Contracted Optometrist Fees when due; (b) Clinic fails to pay a balance that is due or to bring, within a reasonable period of time but no more than 30 days after accrual of the charge, an account current after a credit or debit card is declined or expires; (c) Clinic fails to pay an invoice issued to the Clinic by DayOD within the time period agreed or, if no period is agreed, within 30 days; (d) Clinic initiates a chargeback with a bank or other financial institution resulting in a charge made by DayOD for Contracted Optometrist Fees or such other amount due being reversed to the Clinic; or (e) Clinic takes other actions or fails to take any action that results in a negative or past-due balance on the Clinic’s account.
If Clinic is in default, we may, without notice, temporarily or permanently close Clinic’s Account and revoke Clinic’s access to the Services, including Clinic’s authority to use the Site to process any additional payments, enter into Service Contracts, or obtain any additional Contracted Optometrist Services from other Users through the Site. However, Clinic will remain responsible for any amounts that accrue on any open contracts at the time a limitation is put on the Clinic’s Account as a result of the default. Without limiting other available remedies, Clinic must pay DayOD upon demand for any amounts owed, plus interest on the outstanding amount at the lesser of one and one-half percent (1.5%) per month or the maximum interest allowed by applicable law, plus attorneys’ fees and other costs of collection to the extent permitted by applicable law.
At our discretion and to the extent permitted by applicable law, DayOD or its other Affiliates may, without notice, charge all or a portion of any amount that is owed to any Payment Method on file on the Clinic’s Account; set off amounts due against other amounts received from Clinic or held by for Clinic by DayOD or another Affiliate; make appropriate reports to credit reporting agencies and law enforcement authorities; and cooperate with credit reporting agencies and law enforcement authorities in any investigation or prosecution.
DayOD does not guarantee that Clinic is able to pay or will pay Contracted Optometrist Fees, and DayOD is not liable for and may reverse Contracted Optometrist Fees if Clinic is in default or initiates a chargeback of funds with their financial institution. Contracted Optometrist may use the dispute process as described in the Terms of Service in order to recover funds from Clinic in the event of a default or may pursue such other remedies against Clinic as Contracted Optometrist chooses. If DayOD recovers funds from a Clinic who initiated a chargeback or who is in default pursuant to this Section 6.4, DayOD will disburse any portion attributable to Contracted Optometrist Fees to the applicable Contracted Optometrist to the extent not already paid by Clinic or credited by DayOD through any Payment Protection program.
6.5 NO RETURN OF FUNDS AND NO CHARGEBACKS
Clinics agree that, once DayOD charges their Payment Methods, the charge cannot be refunded except on a condition agreed and outlined by DayOD. Clinics agree not to initiate any chargebacks from their credit card companies, banks, or the like.
Clinic acknowledges and agrees that DayOD may charge, or debit Clinic’s designated Payment Method for the Contracted Optometrist Fees incurred as described in the applicable in the Terms of Service Agreement. Once DayOD charges or debits the Clinic’s designated Payment Method for the Contracted Optometrist Fees, the charge or debit is non-refundable, except as provided in the Terms of Service or as otherwise required by applicable law. Clinic also acknowledges and agrees that the Terms of Service provide a dispute resolution process as a way for Clinic to resolve
disputes. To the extent permitted by applicable law, Clinic therefore agrees not to ask its credit card company, bank, or other Payment Method provider to charge back any Contracted Optometrist Fees or other fees charged pursuant to the Terms of Service for any reason. A chargeback in breach of this obligation is a material breach of the Terms of Service. If Clinic initiates a chargeback in violation of this
Agreement, Clinic agrees that DayOD may dispute or appeal the chargeback, institute collection action against Clinic, close Clinic’s account, and take such other action it deems appropriate.
6.6 PAYMENT METHODS
Clinics agree to designate a Payment Method and authorize us to charge that Payment Method.
In order to use certain Site Services, Clinic must provide account information for at least one valid Payment Method.
Clinic hereby authorizes DayOD, as applicable, to run credit card authorizations on all credit cards provided by Clinic, to store credit card and banking or other financial details as Clinic’s method of payment consistent with our Privacy Policy, and to charge Clinic’s credit card (or any other Payment Method) for the Contracted Optometrist Fees and any other amounts owed under the Terms of Service. To the extent permitted by applicable law and subject to our Privacy Policy, you acknowledge and agree that we may use certain third-party vendors and service providers to process payments and manage your Payment Method information.
By providing Payment Method information through the Site or by authorizing payments with the Payment Method, Clinic represents that: (a) Clinic is legally authorized to provide such information; (b) Clinic is legally authorized to make payments using the Payment Method(s); (c) if Clinic is an employee or agent of a company or person that owns the Payment Method, that Clinic is authorized by the company or person to use the Payment Method to make payments on DayOD; and (d) such actions do not violate the terms and conditions applicable to Clinic’s use of such Payment Method(s) or applicable law.
When Clinic authorizes a payment using a Payment Method via the Site, Clinic represents that there are sufficient funds or credit available to complete the payment using the designated Payment Method. To the extent that any amounts owed under this Agreement, or the other Terms of Service cannot be collected from Clinic’s Payment Method(s), Clinic is solely responsible for paying such amounts by other means.
DayOD is not liable to any User if DayOD does not complete a transaction as a result of any limit by applicable law or your financial institution, or if a financial institution fails to honor any credit or debit to or from an account associated with such Payment Method. DayOD will make commercially reasonable efforts to work with any such affected Users to resolve such transactions in a manner consistent with this Agreement.
7. NON-CIRCUMVENTION
You agree to communicate through the Site and make and receive payments only through the Site for two years from the date you first identify or meet your Clinic or Contracted Optometrist on the Site, unless you pay a Conversion Fee. Violations of this Section constitute a serious breach and may result in permanent suspension of your Account.
7.1 MAKING PAYMENTS THROUGH DAYOD
You agree to exclusively use DayOD to make payments for work that arises out of a relationship you made through DayOD for two years from the date you first established the relationship.
You acknowledge and agree that a substantial portion of the compensation DayOD receives for making the Site available to you is collected through the Service Fee described in Section 5 and that in exchange a substantial value to you is the relationships you make with other Users identified through the Services (the “DayOD Relationship”). DayOD only receives the Service Fee when a Clinic and a Contracted Optometrist pay and receive payment through the Site.
Therefore, except as set out in Section 7.2, for 24 months from the start of an DayOD Relationship (the “Non- Circumvention Period”), you agree to use the Site as your exclusive method to request, make, and receive all payments for work directly or indirectly with that person or arising from that relationship and not to circumvent the Payment Methods offered on the Site unless you pay a fee to take the relationship off of the Site (the “Conversion Fee”). If you use the Site as an employee, agent, or representative of another business, then the Non-Circumvention Period applies to you and other employees, agents, or representatives of the business or its successor when acting in that capacity with respect to the other User. If you, or the business you represent, did not identify and were not identified by another person through the Site, such as if you and another User worked together before meeting on the Site, then the Non-Circumvention Period does not apply. By way of example only, you agree that during the non-circumvention period you will not:
Offer or solicit or accept any offer or solicitation from parties identified through the Site to contract, hire, invoice, pay, or receive payment in any manner other than through the Site.
Invoice or report on the Site or in a Conversion Fee request an invoice or payment amount lower than that actually agreed, made, or received between Users.
Refer a User you identified on the Site to a third party who is not a User of the Site for purposes of making or receiving payments other than through the Site.
You agree to notify DayOD immediately if a person suggests making or receiving payments other than through the Site in violation of this Section 7 or if you receive unsolicited contact outside of the Site. If you are aware of a breach or potential breach of this non-circumvention agreement, please submit a confidential report to DayOD via email.
You acknowledge and agree that a violation of this Section 7.1 is a material breach of the Terms of Service and may result in your Account being permanently suspended and charged the Conversion Fee (defined above). This Section still applies if you choose to cease using the Site, and you must pay the Conversion Fee for each other User you wish to continue working with after you cease using the Site.
7.2 COMMUNICATING THROUGH THE SITE; NOT SHARING CONTACT DETAILS
Prior to entering a Service Contract, you agree to communicate with other Users exclusively through DayOD. The provisions of this Section 7.2 apply to any interaction between Users, and do not apply to any interaction between Users where the Clinic is an Enterprise Clinic. For purposes of the Terms of Service, “Enterprise Clinic” means a Clinic that has consistently posted more than 500 shifts per calendar year.
For Users subject to this Section 7.2, Users agree to use the communication services available on the Site to communicate with other Users prior to entering into a Service Contract. You agree that prior to entering into a Service Contract, you (a) will use DayOD as the sole manner to communicate with other Users; (b) will not provide your Means of Direct Contact (defined below) to any other User or another person that you identified or were identified by through the Site; (c) will not use Means of Direct Contact of another user to attempt to or to communicate with, solicit, contact, or find the contact information of a User outside of DayOD; (d) will not ask for, provide, or attempt to identify through public means the contact information of another User; and (e) will not include any Means of Direct Contact or means by which your contact information could be discovered in any profile, proposal, job posting, invitation, or pre-hire communication through the Site’s communications services (including in each case in any attached file), except as otherwise provided on the Site.
For purposes of the Terms of Service, “Means of Direct Contact” means any information that would allow another person to contact you directly, including, without limitation, phone number, email address, physical address, a link to a contact form or form requesting contact information, any link to an applicant management system or means to submit a proposal or application outside of the Site, or any information that would enable a user to contact you on social media or other
website or platform or application that includes a communications tool, such as MS Teams, Zoom, Slack, Wechat, or Facebook. Information is a Means of Direct Contact if it would enable another user to identify any of the information above through other sources, such as going to a website that included an email address or identifying you through social media.
You acknowledge and agree that a violation of this Section 7.2 is a material breach of the Terms of Service, and your Account may be permanently suspended for such violations.
7.3 OPTING OUT
You may opt out of the non-circumvention agreement if you pay a fee.
You may opt out of the obligations in Section 7.1 with respect to each DayOD Relationship only if the Clinic or Contracted Optometrist pays DayOD a Conversion Fee which is a minimum of $2,000 USD and up to $10,000 USD for each DayOD Relationship, unless Clinic and Contracted Optometrist have had an DayOD Relationship for at least two (2) years.
The Conversion Fee may be calculated differently for DayOD Relationships when the Clinic is an Enterprise Clinic if the Enterprise Clinic contract with DayOD provides for different terms.
To learn more about the Conversion Fee or how to pay it visit our Help Center.
You understand and agree that if DayOD determines that you have violated Section 7, it may (a) charge your Payment Method the Conversion Fee (including interest) if permitted by law or send you an invoice for the Conversion Fee (including interest), which you agree to pay within 30 days, (b) close your Account and revoke your authorization to use the Services, and (c) charge you for all losses and costs (including any and all time of DayOD’s internal workforce) and reasonable expenses (including attorneys’ fees) related to investigating such breach and collecting such fees.
You agree that the Conversion Fee is fair and reasonable. If Clinic and Contracted Optometrist have had a DayOD Relationship for at least two (2) years, the Conversion Fee is waived. The Conversion Fee is not refundable. DayOD will apply a discount on the Conversion Fee that is equal to the total amount of Service Contract charges that Clinic has paid to DayOD in the preceding twelve (12) months on each marketplace Service Contract between the Clinic and the Contracted Optometrist. In no event shall the Conversion Fee be discounted below the minimum of $2,000 USD.
8. RECORDS OF COMPLIANCE
You agree to make and keep all required records.
You are solely responsible for creation, storage, and backup of your business records. You agree that DayOD has no obligation to store, maintain or provide you a copy of any content or information that you provide, except to the extent required by applicable law.
9. WARRANTY DISCLAIMER
We are not responsible for the quality, safety, or reliability of our Services.
DayOD and its affiliates make no representation or warranty about the services, including that the services will be uninterrupted or error-free, and provide the Services (including content and information) on an “as is” and “as available” basis. To the maximum extent permitted by applicable law, DayOD and its affiliates disclaim any implied or statutory warranty, including any implied warranty of title, accuracy of data, non-infringement, merchantability, or fitness for a particular purpose.
10. LIMITATION OF LIABILITY
Any liability we may have to you is limited.
DayOD is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to: (i) your use of or your inability to use our Site or Site Services; (ii) delays or disruptions in our Site or Site Services; (iii) viruses or other malicious software obtained by accessing, or linking to, our Site or Site Services; (iv) glitches, bugs, errors, or inaccuracies of any kind in our Site or Site Services; (v) damage to your hardware device from the use of the Site or Site Services; (vi) the content, actions, or inactions of third parties’ use of the Site or Site Services; (vii) a suspension or other action taken with respect to your Account; (viii) your reliance on the quality, accuracy, or reliability of job postings, Profiles, ratings, recommendations, and feedback (including their content, order, and display), Composite Information, or metrics found on, used on, or made available through the Site; and (ix) your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to the Terms of Service.
Additionally, in no event will DayOD, our affiliates, our licensors, or our third-party service providers be liable for any special, consequential, incidental, punitive, exemplary, or indirect costs or damages, including, but not limited to, litigation costs, installation and removal costs, or loss of data, production, profit, or business opportunities. The liability of DayOD, our affiliates, our licensors, and our third-party service providers to any User for any claim arising out of or in connection with this Agreement or the other Terms of Service will not exceed the lesser of: (a) $2,500 or (b) any fees retained by DayOD with respect to service contracts on which User was involved as Clinic or Contracted Optometrist during the six-month period preceding the date of the claim.
These limitations will apply to any liability, arising from any cause of action whatsoever arising out of or in connection with this Agreement or the other Terms of Service, whether in contract, tort (including negligence), strict liability, or otherwise, even if DayOD has been advised of the possibility of such costs or damages and even if the limited remedies provided herein fail of their essential purpose. Some states and jurisdictions do not allow for all of the foregoing exclusions and limitations, so to that extent, some or all of these limitations and exclusions may not apply to you.
11. RELEASE
You agree not to hold us responsible for any dispute you may have with another User.
In recognition of the fact that DayOD is not a party to any contract between Users, you hereby release DayOD, our other Affiliates, and our respective officers, directors, agents, subsidiaries, joint ventures, employees and service providers from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any dispute you have with another User, whether it be at law or in equity that exist as of the time you enter into this Agreement. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Contracted Optometrist Services provided to Clinic by a Contracted Optometrist and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in the Service Contract Payment Instructions.
To the extent applicable, you hereby waive the protections of California Civil Code § 1542 (and any analogous law in any other applicable jurisdiction) which says: “A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
This release will not apply to a claim that DayOD failed to meet our obligations under the Terms of Service.
12. INDEMNIFICATION
If you do something using our Services that gets us sued or fined, you agree to cover our costs or losses as described below.
You will indemnify, defend, and hold harmless DayOD, LLC our other Affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) your or your agents’ use of the Services, including any payment obligations or default (described in Section 6.4 (Non-Payment or Default)) incurred through use of the Services; (b) any Work Product or User Content related to your use of the Services; (c) any Service Contract entered into by you or your agents, including, but not limited to, the classification of a Contracted Optometrist as an independent contractor, any employment-related claims; (d) your or your agents’ failure to comply with the Terms of Service; (e) you or your agents’ failure to comply with applicable law; (f) negligence, willful misconduct, or fraud by you or your agents; and (g) you or your agents’ violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights. For purposes of this Section 12, your agents include any person who has apparent authority to access or use your account demonstrated by using your username and password.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including attorneys’ fees) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against you or a third party or other User.
13. AGREEMENT TERM AND TERMINATION
This section discusses when and how long this Agreement will last, when and how either you or DayOD can end this Agreement, and what happens if either of us ends the Agreement.
13.1 TERMINATION
You and DayOD both have the right to end this Agreement, but certain rights and obligations will survive after this Agreement ends.
Unless both you and DayOD expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion at any time, without explanation, upon written notice to the other, which will result in the termination of the other agreements as well, except as otherwise provided in this Agreement. You may provide written notice to support@dayod.com. In the event you properly terminate this Agreement, your right to use the Services is automatically revoked, and your Account will be closed.
You agree that DayOD is not a party to any Service Contract between Users. Consequently, you understand and acknowledge that termination of this Agreement (or attempt to terminate this Agreement) does not terminate or otherwise impact any Service Contract or Project entered into between Users. If you attempt to terminate this Agreement while having one or more open Service Contracts / Shifts, you agree that (a) you thereby instruct DayOD to close any open
contracts; (b) you will continue to be bound by this Agreement and the other Terms of Service until all such service contracts have closed on the Site and your access to the Site has been terminated; (c) DayOD will continue to perform those Services necessary to complete any open transaction between you and another User; and (d) you will continue to be obligated to pay any amounts accrued but unpaid as of the date of termination or as of the closure of any open Service Contracts, whichever is later, to DayOD for any Services or such other amounts owed under the Terms of Service and to any Contracted Optometrists for any Contracted Optometrist Services.
Without limiting DayOD’s other rights or remedies, we may revoke or limit access to the Services, deny your registration, or revoke your access to the Site and refuse to provide any or all Services to you if: (i) you breach any terms and conditions of this Agreement or any portion of the Terms of Service; (ii) we have reasonable reason to believe that you have provided false or misleading information to us; (iii) we conclude that your actions may cause legal liability for you or others; may be contrary to the interests of the Site or the User community; or may involve illicit or illegal activity; or (iv) we are required to by law, legal process, or law enforcement. If your Account is temporarily or permanently closed, you may not use the Site under the same Account or a different Account or re-register for a new Account without DayOD’s prior written consent. If you attempt to use the Site under a different Account, we reserve the right to reclaim available funds in that Account and/or use an available Payment Method to pay for any amounts owed by you to the extent permitted by applicable law.
You acknowledge and agree that the value, reputation, and goodwill of the Site depend on transparency of Users’ Account status to all Users, including you and other Users who have entered into Service Contracts with you. You therefore agree that: if DayOD decides to temporarily or permanently close your account, DayOD has the right (but no obligation) where allowed by law to: (y) notify other users that have entered into Service Contracts with you of your closed account status, and (z) provide those users with a summary of the reasons for your account closure. You agree that DayOD will have no liability arising from or relating to any notice that it may or may not provide to any user regarding closed account status or the reason(s) for the closure.
13.2 ACCOUNT DATA ON CLOSURE
Except as otherwise required by law, if your Account is closed, you will no longer have access to information or material you kept on the Site and any content stored in your Account may be deleted, for which DayOD expressly disclaims liability. DayOD may retain some or all of your Account information as permitted or required by law and the Privacy Policy.
13.3 SURVIVAL
After this Agreement terminates, the terms of this Agreement and any other agreements that expressly or by their nature contemplate performance after this Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions related to arbitration, audits, intellectual property, non-circumvention, indemnification, fees, reimbursements, and limitations of liability each contemplate performance or observance after this Agreement terminates. The termination of this Agreement for any reason will not release you or DayOD from any obligations incurred prior to termination of this Agreement or other parts of other agreements or that may accrue related to any act or omission prior to such termination.
14. DISPUTES BETWEEN YOU AND DAYOD
Section 14 discusses your agreement with DayOD and our agreement with you about how we will resolve any disputes between us, including that we will both first try to resolve any dispute informally and, if you are in the United States, that we both agree to use arbitration instead of going to court or using a jury if we can’t resolve the dispute informally.
Please read the following paragraphs carefully because they require you and us to agree to resolve most all disputes between you and us through binding individual arbitration.
14.1 DISPUTE PROCESS, ARBITRATION, AND SCOPE
If a dispute arises between you and DayOD or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, unless you opt out as provided in Section 14.4.4 below, you, DayOD, and our Affiliates agree to resolve any and all claims, disputes, or controversies that arise out of or relate to this Agreement, the other Terms of Service, your relationship with DayOD (including without limitation any claimed employment with DayOD or one of our Affiliates or successors), the termination of your relationship with DayOD, or the Services (each a “Claim” and collectively, “Claims”)
through binding arbitration on an individual basis in accordance with this Section 14 (sometimes referred to as the “Arbitration Provision”).
Claims that may not be subject to predispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203), Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (Public Law 117-90), or by generally applicable law are excluded from the coverage of this Arbitration Provision.
By agreeing to arbitrate disputes under this Agreement, THE PARTIES ARE EXPRESSLY GIVING UP ANY AND ALL RIGHTS TO A JURY TRIAL OR COURT TRIAL BEFORE A JUDGE. The parties instead elect to have Claims resolved by arbitration. The arbitrator’s decision shall be final and binding on the parties, subject to review on the grounds set forth in the Federal Arbitration Act (“FAA”)).
14.2 CHOICE OF LAW
This Agreement, any other agreements, and any Claim will be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of law provisions.
However, notwithstanding the foregoing sentence, this Arbitration Provision is governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.).
14.3 INFORMAL DISPUTE RESOLUTION
Before serving a demand for arbitration of a Claim, you and DayOD agree to first notify each other of the Claim. You agree to notify DayOD of the Claim by email to support@DayOD.com, and DayOD agrees to provide to you a notice at your email address on file (in each case, a “Notice”). You and DayOD then will seek informal voluntary resolution of the Claim. Any Notice must include pertinent account information, a brief description of the Claim, and contact information, so that you or DayOD, as applicable, may evaluate the Claim and attempt to informally resolve it. Both you and DayOD will have 60 days from the date of the receipt of the Notice to informally resolve the other party’s Claim and avoid the need for further action.
15. GENERAL
Additional terms of the agreement between you and DayOD, including the Privacy Policy contain our full agreement, how the agreement will be interpreted and applied, and your agreement not to access the Site from certain locations.
15.1 ENTIRE AGREEMENT
This Agreement, together with the other Privacy Policy, is the only agreement between you and us regarding the Services and supersedes all prior agreements for the Services and supersedes any prior agreements between us for actions occurring after the effective date of this Agreement.
15.2 MODIFICATIONS; WAIVER
We may modify these terms and will provide you with reasonable advance notice of substantial changes.
Subject to the conditions set forth herein, DayOD may amend this Agreement and any of the other agreements that comprise the Terms of Service at any time by posting a revised version on the Site. DayOD will provide reasonable advance notice of any amendment that includes a Substantial Change (defined below), by posting the updated Terms of Service on the Site and providing notice on the Site or by email. If the Substantial Change includes an increase to Fees charged by DayOD, DayOD will provide at least 30 days’ advance notice of the change but may not provide any advance notice for changes resulting in a reduction in Fees, any temporary or promotional Fee change, or changes that do not constitute a Substantial Change. Any revisions to the Terms of Service will take effect on the noted effective date. No modification or amendment to the Terms of Service will be binding upon DayOD unless they are agreed in a written instrument signed by a duly authorized representative of DayOD or posted on the Site by DayOD. Email will not constitute a written instrument as contemplated by this Section 15.2.
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
15.3 ASSIGNABILITY
You may not transfer any rights you have under our Terms of Service unless we give you approval.
These Terms of Service and any rights or obligations hereunder may not be transferred or assigned by you unless you follow the provisions in this Section.
In order to assign the Terms of Service or your Account to a successor after an acquisition of your company or substantially all of your assets, a merger, or another change in majority ownership of your company, you must provide written notice to DayOD via email to support@dayod.com that includes (a) your Account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, (f) a statement indicating the manner in which your company was acquired, (g) the name and contact information of the acquiror, and (h) the effective date of such change in ownership. If DayOD does not object via email within 15 business days of sending of an email, then the assignment is permissible, provided in both cases that such notice is properly addressed. The foregoing does not apply to Enterprise Clinics.
No other assignments are valid without DayOD’s prior written consent, which can be requested via email. Any other attempted transfer or assignment will be null and void.
15.4 SEVERABILITY; INTERPRETATION
If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions of this Agreement will continue in full force and effect. To the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or
such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law
so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in one jurisdiction will not in any way affect the legality, validity, or enforceability of that or any other provision in any other jurisdiction.
15.5 FORCE MAJEURE
When certain circumstances beyond your or our control arise, we both will be temporarily relieved from performing our obligations under this Agreement.
The parties to this Agreement will not be responsible for any delay or failure to perform any obligation under this Agreement for a reasonable period due to labor disturbances, accidents, fires, floods, pandemics, telecommunications or Internet failures, strikes, wars, riots, rebellions, terrorism, blockades, acts of government, governmental requirements and regulations or restrictions imposed by law or any other similar event beyond the parties’ reasonable control.
15.6 PREVAILING LANGUAGE AND LOCATION
The English language version of the Terms of Service will be controlling in all respects and will prevail in case of any inconsistencies with translated versions, if any. The Site is controlled and operated from our facilities in the United States.
15.7 ACCESS OF THE SITE OUTSIDE THE UNITED STATES
DayOD makes no representations that the Site or Services are appropriate or available for use outside of the United States. Those who access or use the Site from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable laws and regulations, both in the United States and abroad, including export and import regulations (e.g., the Export Administration Regulations maintained by the U.S. Department of Commerce and the sanctions programs maintained by the U.S. Department of the Treasury Office of Foreign Assets Control). You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software.
In order to access or use the Services, you must and hereby represent that neither you, any company you represent, nor any beneficial owner of you or your company are: (a) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (b) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or
(c) an individual, or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce Denied Persons or Entity List, the U.S. Department of Treasury Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State Debarred Parties List or otherwise ineligible to receive items subject to
U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate, that you will immediately cease using the Services and your license to use the Services will be immediately revoked.
15.8 CONSENT TO USE ELECTRONIC RECORDS
DayOD and its Affiliates may need to provide you with certain communications, notices, agreements, statements or disclosures in writing regarding our Services. You consent to receive these records electronically from DayOD and its Affiliates rather than in paper form.
16. DEFINITIONS
Below we define capitalized terms that appear in this Agreement or other parts of the Terms of Service. Other capitalized terms are defined above, which you can tell because the term is put in quotation marks and bold font.
Capitalized terms not defined below or above have the meanings described in the Site Terms of Use or elsewhere in the Terms of Service.
“Clinic” means any authorized User of the Site or Site Services, including Service Contract Services, to seek or obtain Contracted Optometrist Services, including from another User.
“Confidential Information” means any material or information provided to, or created by, a User to evaluate a Project or the suitability of another User for the Project, or provided in connection with a Project, regardless of whether the information is in tangible, electronic, verbal, graphic, visual, or other form. Confidential Information does not include material or information that: (a) is generally known by third parties as a result of no act or omission of Contracted Optometrist or Clinic.
(b) was lawfully received by User without restriction from a third party having the right to disseminate the information; (c) was already known by User prior to receiving it from the other party and was not received from a third party in breach of that third party’s obligations of confidentiality; or (d) was independently developed by User without use of another person’s Confidential Information.
“Service Contract” means a contract entered into on DayOD between a Contracted Optometrist on DayOD and a Clinic on DayOD to provide Eyecare services for a “shift” as defined above in section 3.1
“OD Wallet” means virtual wallet used to review and disburse funds by the Contracted Optometrist.
“Contracted Optometrist” means any authorized User of the Site or Site Services, that utilizes the Site to advertise, provide, or receive payment for the provision of Contracted Optometrist Services to Clinics.
“Contracted Optometrist Fees” means, the fixed fee requested by the contracted optometrist for the particular Service contract.
“Contracted Optometrist Services” means all services performed for or delivered to Clinics by Contracted Optometrists.
The term “including” as used herein means including without limitation.
“Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, in each case, under the laws of any state, country, territory or other jurisdiction.
“Payment Method” means a valid credit card issued by a bank acceptable to DayOD, a bank account linked to your account, a debit card, or such other method of payment as DayOD may accept from time to time in our sole discretion.
“Project” means an engagement for Contracted Optometrist Services that a Contracted Optometrist provides to a Clinic under a Service Contract on the Site.
“Staffing Employee” means a Contracted Optometrist enrolled in DayOD Payroll, accepted for employment by a Staffing Provider, and assigned by the Staffing Provider to provide Contracted Optometrist Services to one or more Clinic(s).
“Service Contract” means, as applicable, (a) the contractual provisions between a Clinic and a Contracted Optometrist governing the Contracted Optometrist Services to be performed by a Contracted Optometrist for Clinic for a Project;
“Substantial Change” means a change to the terms of the Terms of Service that materially reduces your rights or increases your responsibilities.
“DayOD App” means the online platform accessed using www.DayOD.com , or any DayOD’s downloaded application.
“User Content” means any comments, remarks, data, feedback, content, text, photographs, images, video, music, or other content or information that you or any Site Visitor or User post to any part of the Site or provide to DayOD, including such content or information that is originally generated through the use of generative AI tools or as a result of questions
