Lively, Inc. Terms of Use

Version 4.0

Effective Date: February 25, 2017

Last revised on: April 1, 2019

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER”) AND Lively, Inc. (“Lively”, “us”, “our”, and “we”).

SECTION 9 OF THESE TERMS IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 9 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.BY ACCESSING OR USING LIVELYME.COM, OR ANY OTHER WEBSITE WITH AN AUTHORIZED LINK TO THE TERMS (THE “SITE”), INSTALLING OR USING OUR MOBILE APPLICATION (“APP”), REGISTERING AN ACCOUNT OR ACCESSING OR USING ANY CONTENT, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE SITE OR APP (COLLECTIVELY, THE “SERVICES”), YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). YOU MAY NOT ACCESS OR USE THE SITE OR ACCEPT THE TERMS IF YOU ARE NOT AT LEAST 18 YEARS OLD. EXCEPT AS OTHERWISE PROVIDED HEREIN, IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MAY NOT ACCESS AND/OR USE THE SERVICES.

Your use of the Services is also subject to any additional terms, conditions and policies that we separately post on the Services (“Supplemental Terms”) which are incorporated by reference into this Agreement. To the extent there is any conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control with respect to the subject matter of such agreement.

Lively reserves the right to modify the Terms or its policies relating to the Services at any time, effective upon posting of an updated version of these Terms or any applicable Supplemental Terms on the applicable Services. You should regularly review these Terms, as your continued use of the Services after any such changes constitutes your agreement to such changes.

You acknowledge and agree that Lively is a health savings account platform. WE DO NOT PROVIDE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT, NOR ARE WE AN EMPLOYEE HEALTH OR WELFARE BENEFIT PLAN OR INSURANCE. WE ARE NOT SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR TO ANY STATE OR LOCAL INSURANCE LAW. WE ARE ALSO NOT A BANK OR FINANCIAL INSTITUTION, ALTHOUGH WE MAY PARTNER WITH BANKS AND FINANCIAL INSTITUTIONS. INFORMATION OBTAINED FROM LIVELY LICENSORS AND FROM THE SITE, INCLUDING TEXT, TOOLS, AND SERVICES, IS FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT REPLACE PROFESSIONAL MEDICAL, FINANCIAL OR TAX ADVICE.

  1. Use of the Services and Lively Properties

    1.1 License. The Application, the Site, the Services, and the information and content available on the Site and in the App and the Services (as these terms are defined herein) (each, a “Lively Property” and collectively, the “Lively Properties”) are protected by copyright laws throughout the world. Subject to these Terms, Lively grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, noncommercial use.

    1.2 Application License. Subject to your compliance with the Terms, Lively grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes. Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced App”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application access through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the App on a shared basis within your designated family group.

    1.3 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) must be retained on all copies thereof.

    1.4 Modification. Lively reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that Lively will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.

    1.5 No Support or Maintenance. You acknowledge and agree that Lively will have no obligation to provide you with any support or maintenance in connection with the Site.

    1.6 Ownership. You acknowledge that all the intellectual property rights, including copyrights, patents, trade marks, and trade secrets, in the Site and its content are owned by Lively or Lively’s suppliers. Neither these Terms (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights. Lively and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.

    1.7 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:

    (a) You agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).

    1.8 Enforcement. We reserve the right (but have no obligation) to monitor or review Lively Properties and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or any applicable law. Such action may include immediately terminating your license to use Lively Properties or your Account in accordance with Section 7, and/or reporting you to law enforcement authorities.

    1.9 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Lively through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Lively has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Lively a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties and/or Company’s business.

  2. Registration 2.1 Registering Your Account. In order to access certain features of Lively Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Site (“Account”) or has an account with the provider of the App for the user’s mobile device.

    2.2 Registration Data. In registering an account on the Site, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (l) at least thirteen (13) years old; (m) of legal age to form a binding contract; and (n) not a person barred from using Lively Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Lively Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Lively immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Lively has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Lively has the right to suspend or terminate your Account and refuse any and all current or future use of Lively Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform or SNS at any given time. Lively reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Lively Properties if you have been previously removed by Lively, or if you have been previously banned from any of Lively Properties.

  3. Third-Party Links, Applications & Ads; Other Users 3.1 Third-Party Websites, Applications & Ads. Lively Properties may contain links to third-party websites and services, applications and/or display advertisements for third parties (collectively, “Third-Party Websites, Apps & Ads”). When you click on a link to a Third-Party Website, Third-Party App or Third-Party Ad, we will not warn you that you have left Lively Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Links, Apps & Ads are not under the control of Lively, and Lively is not responsible for any Third-Party Websites, Apps & Ads. Lively provides access to these Third-Party Websites, Apps & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links, Applications & Ads. You use all Third-Party Links, Applications & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you leave our Site, and the Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party websites or Third-Party Apps, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with any third party.

    3.2 App Stores. You acknowledge and agree that the availability of the App and the Services is dependent on the third party from whom you received the App license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Terms are between you and Lively and not with the App Store. Lively, not the App Store, is solely responsible for Lively Properties, including the App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Lively Properties, including the App. You agree to comply with, and your license to use the App is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using any Lively Property, including the App. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce it.

    3.3 Release. You hereby release and forever discharge the Lively (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links, Applications & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”

  4. Indemnification. You agree to indemnify and hold Lively and its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers and licensors (each, a “Lively Party” and collectively, the “Lively Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Lively Property, (b) your violation of these Terms; or (c) your violation of applicable laws or regulations. Lively reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims and not to settle any matter without the prior written consent of Lively. Lively will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this section will survive any termination of your Account, the Terms and/or your access to Lively Properties.

  5. Disclaimers YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF LIVELY PROPERTIES IS AT YOUR SOLE RISK, AND LIVELY PROPERTIES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND LIVELY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.

    LIVELY PARTIES MAKE NO WARRANTY THAT THE LIVELY PROPERTIES WILL MEET YOUR REQUIREMENTS, BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.

    ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH LIVELY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INLCUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS LIVELY PROPERTIES, OR ANY OTHER LOS THAT RESULTS FROM ACCESSING SUCH CONTENT.

    THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. LIVELY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO THE SERVICES, INLCUDING BUT NOT LIMITED TO THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

    THE LIVELY PARTIES DO NOT PROVIDE: (1) FINANCIAL ADVICE OR FUNCTION IN ANY WAY AS A LICENSED FINANCIAL ADVISOR; (2) MEDICAL ADVICE OR FUNCTION IN ANY WAY AS A LICENSED DOCTOR, NURSE OR MEDICAL PRACTITIONER; OR (3) TAX ADVICE OR FUNCTION IN ANY WAY AS A TAX ADVISOR. YOU SHOULD CONSULT WITH A LICENSED PROFESSIONAL BEFORE MAKING ANY FINANCIAL, MEDICAL OR TAX DECISIONS, AND YOU UNDERSTAND THAT ANY INFORMATION PROVIDED BY THE LIVELY PARTIES IS NOT A SUBSTITUTE FOR THE ADVICE AND COUNSEL OF SUCH LICENSED PROFESSIONALS.

    SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR REPRESENTATIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST. AS SUCH, SOME OF THE ABOVE LIMITATION MAY NOT APPLY IN FULL TO YOU.

  6. Limitation on Liability TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LIVELY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR COSTS ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE LIVELY PROPERTIES, WHETHER OR NOT LIVELY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

    UNDER NO CIRCUMSTANCES WILL LIVELY PARTIES BE LIABLE TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THESE TERMS (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50).

    THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE LAWS OF SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  7. Term and Termination. Subject to this section, these Terms will remain in full force and effect while you use the Lively Properties. Notwithstanding the foregoing, you hereby acknowledge and agree that the Terms commenced on the earlier to occur of (a) the date you first used Lively Properties or (b) the date you accepted the Terms and will remain in full force and effect while you use any Lively Properties, unless earlier terminated in accordance with the Terms. We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms.

    If you want to terminate the Services provided by Lively, you may do so by (a) notifying Lively at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Lively’s address set forth below.

    Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. You understand that any termination of your Account may involve deletion of your information associated with your Account from our live databases. Lively will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your account information. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

  8. International users. Lively Properties can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Lively intends to announce such Services in your country. Lively Properties are controlled and offered by Company from its facilities in the United States of America. Lively makes no representations that Lively Properties are appropriate or available for use in other locations. Those who access or use Lively Properties from other countries do so at their own volition and are responsible for compliance with local law.

  9. Dispute Resolution. Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with Lively and limits the manner in which you can seek relief from us.

    9.1 Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Site or these Terms, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Lively may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms or any prior version of these Terms.

    9.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Lively, Inc. c/o/ Legal, 188 King St., #502, San Francisco, CA 94107. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Lively will pay them for you. In addition, Lively will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous.

    You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

    9.3 Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Lively. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.

    9.4 Waiver of Jury Trial. YOU AND LIVELY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Lively are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in section 9.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

    9.5 Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other claims shall be arbitrated.

    9.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Lively, Inc. c/o/ Legal, 188 King Street #502, San Francisco, CA 94107, support@livelyme.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your username (if any), the email address you used to set up your Account (if you have one), and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of these Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.

    9.7 Severability. Subject to section 10.10, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

    9.8 Survival of Terms. This Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with Lively.

    9.9 Modification. Notwithstanding any provision in these Terms to the contrary, we agree that if Lively makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) of which you had already provided notice to Lively.

  10. General

    10.1 Export Control. You may not use, export, import, or transfer Lively Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Lively Properties, and any other applicable laws. In particular, but without limitation, Lively Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Lively products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

    10.2 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

    10.3 Electronic Communications. The communications between you and Lively use electronic means, whether you use the Site or send us emails, or whether Lively posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Lively in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Lively provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your statutory rights.

    10.4 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Lively’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

    10.5 Exclusive Venue. To the extent the parties are permitted under these Terms to initiate litigation in a court, both you and Lively agree that all claims and disputes arising out of or relating to these Terms will be litigated exclusively in the state courts in San Francisco, California or federal courts located in the Northern District of California.

    10.6 Governing Law. These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any conflict of law or other principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

    10.7 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced App accessed through or downloaded from the Apple App Store:

    (a) You acknowledge and agree that (i) the Terms are concluded between you and Lively only, and not Apple, and (ii) Lively, not Apple, is solely responsible for the App Store Sourced App and content thereof. Your use of the App Store Sourced App must comply with the App Store Terms of Service.

    (b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.

    (c) In the event of any failure of the App Store Sourced App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced App to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced App. As between Lively and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Lively.

    (d) You and Lively acknowledge that, as between Lively and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced App or your possession and use of the App Store Sourced App, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

    (e) You and Company acknowledge that, in the event of any third-party claim that the App Store Sourced App or your possession and use of that App Store Sourced App infringes that third party’s intellectual property rights, as between Lively and Apple, Lively, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.

    (f) You and Lively acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced App, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced App against you as a third-party beneficiary thereof.

    (g) Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced App.

    10.8 Notice. Where Lively requires that you provide an e-mail address, you are responsible for providing Lively with your most current e-mail address. In the event that the last e-mail address you provided to Lively is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Lively’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Lively at the following address: Lively, Inc., Attn: Legal, 188 King St. #502, San Francisco, CA 94107. Such notice shall be deemed given when received by Lively by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

    10.9 Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    10.10 Severability. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

    10.11 Entire Terms. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.