1. User's Acknowledgment and Acceptance of Terms
2. Description of Services
We make various Services available including, but not limited to, remote monitoring services and personal emergency response services (PERS). You are responsible for providing, at your own expense, all equipment necessary to use the Services (aside from the equipment, hub and sensors that we provide you directly when you sign up for our Services), including a computer, mobile device (if you use our app), modem, and Internet access (including payment of all fees associated with such access).
3. Registration Data and Privacy
In order to access some of our Services, you will be required to use an account and password that can be obtained by completing our online registration form, which requests certain information and data ("Registration Data"), and maintaining and updating your Registration Data as required. By registering, you agree that all information provided in the Registration Data is true and accurate and that you will maintain and update this information as required to keep it current, complete, and accurate.
4. Code of Conduct
Your use of the Services is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the Service. By posting information in or otherwise using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this Site, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content – including text, communications, software, images, sounds, data, or other information – that:
4.1 is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, pornographic, obscene, offensive, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
4.2 victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
4.3 infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
4.4 constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as "spamming"), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
4.5 contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
4.6 impersonates any person or entity, including any of our employees or representatives.
If you believe a third party user has posted objectionable content, violated the code of conduct or breached the terms of these Terms of Service, please contact email@example.com.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the Site may be available to you or other authorized users of the Site. You shall not interfere with anyone else’s use and enjoyment of the Site or Services. Users who violate systems or network security may incur criminal or civil liability.
You agree that we may at any time, and at our sole discretion, terminate your membership, account, or other affiliation with our Site without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
5. Third Party Sites and Information
This Site may link you to other sites on the Internet or otherwise include references to information, documents, software, materials and/or services provided by other parties. These sites may contain information or material that some people may find inappropriate or offensive. These other sites and parties are not under our control, and you acknowledge that we are not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such sites, nor are we responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the Site or party by us, or any warranty of any kind, either express or implied.
6. Intellectual Property Information
Neither we nor our Affiliates warrant or represent that your use of materials displayed on, or obtained through, our Services will not infringe the rights of third parties. See below for a description of the procedures to be followed in the event that any party believes that content posted on this Site infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party.
7. Unauthorized Use of Materials
Please do not submit confidential or proprietary information to us unless we have mutually agreed in writing otherwise. We are also unable to accept your unsolicited ideas or proposals, so please do not submit them to us in any circumstance.
We respect the intellectual property of others, and we ask you to do the same. If you or any user of our Services believes its copyright, trademark or other property rights have been infringed by a posting on our Services, you or the user should send notification to our Designated Agent (as identified below) immediately. To be effective, the notification must include:
7.1 Identify in sufficient detail the copyrighted work that you believe has been infringed upon or other information sufficient to specify the copyrighted work being infringed).
7.2 Identify the material that you claim is infringing the copyrighted work listed in item 7.1 above.
7.3 Provide information reasonably sufficient to permit us to contact you (email address is preferred).
7.4 Provide information, if possible, sufficient to permit us to notify the owner/administrator of the allegedly infringing webpage or other content (email address is preferred).
7.5 Include the following statement: "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law."
7.6 Include the following statement: "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
7.7 Sign and send the written communication to the following Designated Agent for Claimed Infringement:
ATTN: Compliance Officer
683 Schofield Rd.
San Francisco, CA 94129
You acknowledge and agree that upon receipt of a notice of a claim of copyright infringement, we may immediately remove the identified materials from our Site without liability to you or any other party and that the claims of the complaining party and the party that originally posted the materials will be referred to the United States Copyright Office for adjudication as provided in the Digital Millennium Copyright Act.
8. Disclaimer of Warranties
UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY US, ALL MATERIALS AND SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, UNLESS OTHERWISE EXPRESSLY AGREED IN WRITING BY US, WE MAKE NO WARRANTY THAT (A) THE EQUIPMENT, SERVICES AND MATERIALS THAT WE PROVIDE WILL MEET YOUR REQUIREMENTS, (B) THE EQUIPMENT, SERVICES AND MATERIALS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE EQUIPMENT, SERVICES OR MATERIALS WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY EQUIPMENT, PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU FROM THE SITE FROM US OR OUR AFFILIATES WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
THIS SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS. WE MAY MAKE CHANGES TO THE EQUIPMENT, MATERIALS AND SERVICES THAT WE PROVIDE, INCLUDING THE PRICES AND DESCRIPTIONS OF ANY PRODUCTS OR SERVICES LISTED HEREIN, AT ANY TIME WITHOUT NOTICE. THE MATERIALS OR SERVICES AT THIS SITE MAY BE OUT OF DATE, AND WE MAKE NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES.
THE USE OF THE SERVICES OR THE DOWNLOADING OR OTHER ACQUISITION OF ANY MATERIALS THROUGH THIS SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND WITH YOUR AGREEMENT THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH ACTIVITIES.
THE USE OF OUR SERVICES AND EQUIPMENT IS LIMITED TO THE GEOGRAPHIC AREAS IN WHICH WE PROVIDE SERVICE. LIVELY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE USE OF OUR EQIUPMENT OR SERVICES OUTSIDE THE GEOGRAPHIC AREAS IN WHICH WE PROVIDE SERVICE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS, INJURY, DEATH, DAMAGE OR OTHER LOSSES THAT YOU OR ANY THIRD PARTY SUFFERS RESULTING FROM USE OF OUR SERVICES OR EQUIPMENT OUTSIDE THE GEOGRAPHIC AREAS IN WHICH WE PROVIDE SERVICE.
Through your use of the Site, you may have the opportunities to engage in commercial transactions with other users and vendors. You acknowledge that all transactions relating to any merchandise or services offered by any party, including, but not limited to the purchase terms, payment terms, warranties, guarantees, maintenance and delivery terms relating to such transactions, are agreed to solely between the seller or purchaser of such merchandize and services and you. WE MAKE NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THIS SITE, AND YOU UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THIS SITE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR OUR AFFILIATES.
You understand and agree that temporary interruptions of the Services may occur as normal events. You further understand and agree that we have no control over third party networks you may access in the course of the use of our Services, and therefore, delays and disruption of other network transmissions are completely beyond our control.
You understand and agree that our Services are provided "AS IS" and that we assume no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
9. Limitation of Liability
IN NO EVENT SHALL WE OR OUR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM FAILURE OR INTERRUPTIONS OF SERVICE, FAILURE OR DEFECTS OF EQUIPMENT, LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF OUR EQUIPMENT, SERVICES, SITE OR OF ANY WEB SITE REFERENCED OR LINKED TO FROM THIS SITE. LIVELY SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR ANY LOSS, INJURY, DEATH, DAMAGE OR OTHER LOSSES THAT YOU OR ANY THIRD PARTY SUFFERS RESULTING FROM USE OF OUR SERVICES OR EQUIPMENT OUTSIDE THE GEOGRAPHIC AREAS IN WHICH WE PROVIDE SERVICE.
FURTHER, WE SHALL NOT BE LIABLE IN ANY WAY FOR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THIS SITE OR FOR ASSISTANCE IN CONDUCTING COMMERCIAL TRANSACTIONS THROUGH THIS SITE, INCLUDING WITHOUT LIMITATION THE PROCESSING OF ORDERS.
SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Upon a request by us, you agree to defend, indemnify, and hold us and our Affiliates harmless from all liabilities, claims, and expenses, including attorneys’ fees, that arise from your use of the services or misuse of this Site. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
11. Security and Password
You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account if you do transfer or share your account.
12. Participation in Promotions
From time to time, our Services may include advertisements offered by third parties. You may enter into correspondence with or participate in promotions of the advertisers showing their products on our Services. Any such correspondence or promotions, including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions, are solely between you and the advertiser. We assume no liability, obligation or responsibility for any part of any such correspondence or promotion.
13. LivelyGrams, E-mail, Messaging and Chat Services
We may make email, messaging or chat services (collectively, "Communications") available to users of our Site, either directly or through a third-party provider. We make available separate supplemental agreements characterizing the relationship between you and us that, except where expressly noted or contradictory, includes these Terms.
We may employ automated monitoring devices or techniques to protect our users from mass unsolicited communications (also known as "spam") and/or other types of electronic communications that we deem inconsistent with our business purposes. However, such devices or techniques are not perfect, and we will not be responsible for any legitimate communication that is blocked, or for any unsolicited communication that is not blocked.
Mailboxes may have a limited storage capacity. If you exceed the maximum permitted storage space, we may employ automated devices that delete or block email messages that exceed the limit. We will not be responsible for such deleted or blocked messages.
14. International Use and Geographic Limitations
Although our Site may be accessible worldwide, we make no representation that materials on our Site are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited.
Our Services are available only in certain geographical areas. Please check our Site for the latest availability of our various Services. Our equipment is not intended for use and may not function properly outside the geographic areas where we provide our Service. In particular, our PERS equipment will not function outside of the geographic areas where we provide PERS Service. By subscribing to any of our Services, you agree to use our equipment only within the geographic areas where we provide our Service, and you agree that we are not liable or responsible for any losses, damages, injuries or death that result from failure of Services or equipment. Any offer for any product, service, and/or information made in connection with our Services is void where prohibited.
15. Termination of Use
Upon termination or suspension, regardless of the reasons therefore, your right to use the Services immediately ceases, and you acknowledge and agree that we may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or our Services. We shall not be liable to you or any third party for any claims or damages arising out of any termination or suspension or any other actions taken by us in connection with such termination or suspension.
16. Governing Law
This Site (excluding any linked sites) is controlled by us from our offices in the State of California, United States of America. It can be accessed from all 50 states, as well as from other countries around the world. As each of these places has laws that may differ from those of California, by accessing our Services both of us agree that the statutes and laws of the State of California, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of our Services and the purchase of products and services available through our Services. Each of us agrees and hereby submits to the exclusive personal jurisdiction and venue any court of competent jurisdiction within the State of California with respect to such matters.
All notices to a party shall be in writing and shall be made either via email or conventional mail (unless you are a registered user, in which case we may provide you notices through your account as well). Notices to us must be sent to the attention of Customer Service at firstname.lastname@example.org, if by email, or at 683 Schofield Rd., San Francisco, CA 94129, ATTN: Customer Service, if by conventional mail. Notices to you may be sent to the email or mailing address supplied by you as part of your Registration Data or. In addition, we may broadcast notices or messages through the Site, our apps or your account to inform you of changes to the Site or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
18. Entire Agreement
You agree not to sell, resell, reproduce, duplicate, copy or use for any commercial purposes any portion of this Site, or use of or access to our Services.
In addition to any excuse provided by applicable law, we shall be excused from liability for non-delivery or delay in delivery of products and services available through our Site arising from any event beyond our reasonable control, whether or not foreseeable by either party, including but not limited to, labor disturbance, war, fire, accident, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.
VERSION DATE: 20140312
LIVELY SUBSCRIPTION AGREEMENT
THIS IS A LEGALLY BINDING AGREEMENT between you and Lively, Inc. By ordering or using our System, you agree to all the terms and conditions of this Agreement. If you do not agree with the terms and conditions in this Agreement, you should not register on our Site or use our Services.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, you should not proceed with the registration process or use our Site or Service.
- 1. HOW TO USE THIS AGREEMENT
- We aim for this Agreement to be as readable and understandable as possible. Although some use of legal terminology is unavoidable, we use plain English and ordinary language wherever appropriate. We urge you to read this Agreement fully before using our Services.
Words that are capitalized have the specific meanings set forth in the “Definitions” section below.
If you purchase our Services for use by another person (such as a parent or loved one), that person is considered a “User” of the System under this Agreement. All Users of our Services are third party beneficiaries to this Agreement and are bound by all of the terms herein, such as our disclaimers and limitations of liability.
- 2. DEFINITIONS
"Agreement" means this Subscription Agreement and any Orders you place through our Site or your Lively account.
"Customer Information" means the billing, contact and User information you provide to us for your Lively account.
"Equipment" means the hub and sensors that collect information from around the home and communicate via the Network with the Lively servers.
“Lively”, “we” or “us” means Lively, Inc., doing business as “Lively”.
“Network” means the cellular communications network that enables the in-home Equipment to communicate with the Lively servers.
“Order” means your request to purchase Services and Equipment on our Site or through your Lively account.
“PERS Equipment” means equipment that electronically signals a monitoring agency for help. PERS equipment includes an emergency response activator, which is a small electronic device that the PERS recipient presses or is otherwise being activated to send a signal for help to the monitoring agency. The Lively hub accepts an electronic signal that generates cellular activation to the monitoring agency and other pre-designated recipients through a cloud service.
“PERS Services” means equipment and services of personal emergency response system provided by Lively.
“Services” means the remote monitoring services provided by Lively under this Agreement and PERS Services.
“Site” means our website located at mylively.com
“System” means the Lively monitoring system that uses sensors throughout the User’s living area, a hub device that collects information from the sensors, the Network that collects information via cellular data connection, and the Lively system that gathers information and enables you to access it through your Lively account.
“User” means you or anyone other than you that is a user of the System. If you install the System in the home of a friend or family member, the members of that household are automatically deemed “Users” under this Agreement.
“You” means the person or entity purchasing Equipment and Services under this Agreement.
- 3. SERVICES
We provide our Services on a subscription basis. During the term of this Agreement we will provide Services in accordance with your Order and this Agreement. Depending on the subscription purchased, and subject to availability, the Services may include one or more of the following: (i) the enabling of wireless transmission of data from sensors placed throughout the User’s home to a network operations center; (ii) providing remote access to sensor data via your Lively account; (iii) providing email and other alerts to you regarding sensor activity or inactivity; (iv) providing periodic email updates from family members to Users; and (v) providing PERS Services. We reserve the right to modify, add or eliminate Services from time to time without prior notice.
The Lively System is not intended for diagnosis or as a substitute for medical care or patient monitoring. It is not intended to provide automated treatment decisions, nor is it to be used as a substitute for professional healthcare judgement. You should not rely on our System as an indicator of health or well-being. The System is not intended to provide real-time data and is not suitable for Users requiring direct medical supervision or emergency intervention.
- 4. ACTIVATION, PAYMENT AND RENEWAL
- 4.1 Your Purchase. You hereby agree to purchase the Equipment and subscribe to the Services as described on your Order. You authorize us to charge your credit card for purchase price and taxes for the Equipment and Services.
- 4.2 Installation. We will ship to you the Equipment described on your Order. You are responsible for installing the Equipment and activating the System in accordance with the instructions we provide. OUR EQUIPMENT IS NOT INTENDED TO BE USED WITH EQUIPMENT OR NETWORKS OFFERED BY OTHER PROVIDERS. It is your responsibility to obtain and keep in effect all consents, authorizations, permits or licenses that may be required for the installation and operation of the System in the User’s premises. The system is being electronically monitored on a periodic basis for certain communication failures. If Lively identifies a communication failure, it will send an alert to the pre-designated recipients.
- 4.3 Activation. The Services will not begin and we will have no obligation to process information received from the System until we have received and processed (1) a copy of this Agreement electronically signed by you, (2) your completed Order and (3) your initial payment or deposit, if required.
- 4.4 Subscription Fees. Our Services are offered on a subscription basis. You agree to pay us subscription fees for the original term as set forth in your Order. If your subscription is renewed, you agree to pay us the then-applicable subscription fees for the renewal terms.
- 4.5 Automatic Payment. You authorize and agree that all amounts due to Lively under this Agreement, including the purchase price, activation fee and all subscription fees, are to be paid by automatic credit card debit pursuant to the credit card information you provided with your Order or through your mylively.com account. If your credit card payment is not honored, we may: (i) demand payment and you agree to pay the amount due; and/or (ii) elect to terminate this Agreement by giving you notice. Such termination does not relieve you of your obligation to pay for Services provided prior to such termination.
- 4.6 Automatic Renewal. After the original term described in your Order, the Services will automatically renew on a month-to-month basis at our then-current subscription fee rate unless terminated by you or us. We reserve the right to increase the subscription fee for any renewal term. You may cancel the Services pursuant to Section 5.2 if you no longer wish to pay for the Services.
- 4.7 Taxes; Third Party Costs. You agree to pay all sales, service, property, use, value-added or other local taxes applicable to your purchase and use of the Equipment and Services. If you or any User incurs any third party costs in connection with your use of our Services (such as utility bills, medical bills, ambulance or paramedic charges, permit fees, etc.), you agree that you will pay such costs and we are not responsible for payment of those amounts, whether imposed on you or us.
- 5. CANCELLATION; TERMINATION; REFUNDS
- 5.1 Cancellation. You may cancel your Order within 60 days from the date of your Order by contacting customer service and returning the complete System to us, postage prepaid.
5.2 Termination. If you have paid the initial or upfront hardware cost, then you may terminate your subscription at any time by giving us written notice through your Lively account or by contacting Lively customer service. If you notify us of termination during your original term or any renewed term, we will continue to provide Services, and you will continue to be obligated to pay, through the end of the then-current term as set forth in your Order. If you are on a month-to-month subscription, we will continue to provide Services, and you will continue to be obligated to pay, through the end of the then-current month. We may terminate your Service at the end of the original term or any renewal term by giving you at least 60 days advance written notice.
If, however, you have NOT paid an initial upfront hardware cost, and have agreed to a multi-month/year contract in exchange for zero payment upfront, you may only terminate the service at the earlier of: (i) your full payment of the hardware cost; or (ii) lapse of the multi-month/year contract.
We reserve the right to discontinue Services and/or terminate or suspend this Agreement immediately without notice if you fail to pay amounts when due, your payment method is denied or you or any User breaches this Agreement. If Service is suspended or terminated for any reason, and you ask us to reactivate Service, we may require prepayment of a reconnection fee. You understand that we may stop or suspend Services for any of the following reasons: (a) strikes, severe weather, earthquakes or other such events beyond our control affect the operation of the Network or so severely damage your premises that continuing Services would be impractical, (b) there is an interruption or unavailability of the cellular service connecting the System and the Network, (c) you do not pay any amounts when due, (d) we are unable to provide Service because of some action or ruling by any cellular carrier, governmental authority or other third party, and (e) for any other reason as determined in good faith by us.
In no event will we be liable for any damages or subject to any penalty as a result of us exercising the right to suspend or terminate of this Agreement. Your subscription shall not survive the expiration or termination of this Agreement, but all disclaimers of warranties, limitations of responsibility and liability, exclusions of damages and other remedies, and indemnification rights set forth in this Agreement shall survive its expiration or termination.
- 5.3 Termination In the Event of Death or other Hardship. In the Event of Death or other Hardship. All Services shall terminate upon user's death (by proof of death, such as a death certificate) or other hardship (as may be determined by Lively). If user paid for the Equipment in advance, then the services shall terminate upon notification of user's death or upon Lively's determination of hardship; and if user pays for the Equipment in installments, then the services shall terminate upon payment in full for the Equipment.
- 5.4 Refunds. If you cancel during the cancellation period described in Section 5.1, we will refund the prepayments or deposits you made to your credit card upon our receipt of all Equipment in good condition (Lively has the right to offset all damages to Equipment from any refund). After the end of the cancellation period described in Section 5.1, all sales are final and all payments are non-refundable.
- 6. YOUR LIVELY ACCOUNT
- 6.1 Account Access. We will provide you the opportunity to create a password-protected online account at our Site, through which you can manage your account and change or cancel your subscriptions. You are responsible for maintaining the confidentiality of your user login, password and user codes, and you are responsible for all uses of your login, password and user codes, and any related changes, whether or not authorized by you. You are also responsible for keeping all contact information (including billing information, email addresses and telephone numbers) current and accurate.
- 6.2 Responsibility for Users. If you purchase our Services for use by another person (such as a parent or loved one), that person is considered a “User” of the Services under this Agreement. All Users of the Services are third party beneficiaries to this Agreement and are bound by all of the terms herein, including, without limitation, our disclaimer of warranties and limitation of liability. You agree that, whenever this Agreement or our rules or regulations impose any requirement or prohibition on the User, you will cause all other members of your household or business and any other person having access directly or indirectly through you to the System and Services to comply with such requirement or prohibition and will be responsible for any noncompliance by such User. You must notify all other persons who may use the System that they are bound by the terms and conditions of this Agreement. You must also instruct them on the proper use of the System, including any User if different than you. You or the User will use the System in only accordance with the user manual.
- 6.3 Your Account Information. You must provide complete and accurate registration and account information when you establish your Lively account and when you Order any Services or Equipment from us. You must update this information through your Lively account or by calling customer service if there are any changes to this information. You agree that we may disclose your account information to meet the requirements of any governmental agency, independent carrier, or other third party to the extent necessary for the use and operation of the System and for legal and regulatory compliance purposes.
- 7. CELLULAR NETWORK; AC POWER
Our Equipment communicates via cellular telephone service provided by an independent carrier. The cellular telephone service provided by the independent carrier may fail or go off-line from time to time, and during any such outage our System will be unable to transmit and receive information. We may not receive timely notice of the communications outage from the independent carrier. We are not obligated to provide Services during any such outages. Cellular networks are regulated by federal and state agencies and changes in rules and regulations may require us to modify or terminate our Services.
Our Equipment relies on AC power provided by independent electric companies. The electric power provided by the independent providers may have outages from time to time, and during any such outage our System will be unable to operate. We may not receive timely notice of the power outage from the independent provider. We are not obligated to provide Services during any such outages.
- 8. LIMITED WARRANTY; DISCLAIMERS
- 8.1 Our Warranty. We hereby warrant that the Equipment purchased by you will be free of defects for one year after the date of sale. We will repair or replace any defective part without charge to you. We may use new or used parts of the similar quality and functionality and keep all replaced parts. Please note that replacement of defective parts or components is our only duty under this warranty. We make no other express warranty including any warranty of merchantability of the Service or System or their fitness for any special purpose. The Service and System are provided “as is,” with all faults, and we make no representation or warranty that the Service or System will be free from defects, that they will meet your needs, or that the Service will be uninterrupted. Our warranty does not include batteries and any other part that needs to be replaced due to accident, abuse, misuse, acts of god, vandalism, attempted unauthorized repairs, faulty electrical or telephone connections.
- 8.2 Warranty Service. Please call our service department at +1-888-757-0711 to initiate the service process. Often service problems can be solved by telephone. If the problem cannot be resolved we will send you instructions on how to obtain a replacement part and return the non-working part to us. You are obligated to return the non-working part to us within 30 days. If you fail to do so, we may charge you our prevailing price for the replacement part by debiting your credit card.
- 8.3 Out-of-Warranty Service. At the end of the warranty period, if you continue your paid subscription, we will continue to repair or replace defective Equipment pursuant to this Section 8 at our then-current rates. By ordering such services, you agree to pay for the repairs at such rates and authorize us to charge your credit card on file for such amounts.
- 8.4 Limitations; Exclusions. YOU AGREE THAT THIS IS OUR ONLY WARRANTY AND WE HAVE GIVEN YOU NO OTHER WARRANTY FOR THE SYSTEM. THE SYSTEM AND SERVICES HAVE CERTAIN LIMITATIONS. BY USING OUR SERVICES AND ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT WE DO NOT REPRESENT OR WARRANT THAT OUR SERVICES WILL PREVENT DEATH, BODILY OR PERSONAL INJURY, OR ANY OTHER INJURY OR DAMAGE TO YOU OR OTHERS WHO USE OUR SERVICES. WE HAVE NO CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY AGENCY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE SYSTEM BEING USED. YOU FURTHER UNDERSTAND THAT THE SYSTEM MAY FAIL TO FUNCTION PROPERLY. ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OF THE SYSTEM OR ITS FITNESS FOR ANY SPECIAL PURPOSE ARE LIMITED IN DURATION AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME STATES DO NOT ALLOW A LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THE WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS THAT MAY VARY FROM STATE TO STATE.
- 8.5 YOU ACKNOWLEDGE AND AGREE THAT IF WE WERE TO HAVE ANY LIABILITY GREATER THAN THE AMOUNTS DESCRIBED IN SECTIONS 8 AND 9 OF THIS AGREEMENT, OUR RISK OF LIABILITY WOULD BE TOO GREAT AND WE COULD NOT PROVIDE OUR SERVICES TO YOU. YOU AGREE THAT YOU SHOULD OBTAIN ANY LIFE, MEDICAL OR DISABILITY INSURANCE FOR THE PROTECTION OF ALL USERS THE SYSTEM. YOU ACKNOWLEDGE AND AGREE THAT OUR SYSTEM IS NOT A SUBSTITUTE FOR 911 EMERGENCY TELEPHONE SERVICE AND YOU HAVE SELECTED THE SERVICES WITH A FULL UNDERSTANDING OF THEIR LIMITATIONS. YOU ALSO ACKNOWLEDGE AND AGREE THAT YOU HAVE SELECTED THE SERVICES WITH A FULL UNDERSTANDING OF THE LIMITATION OF OUR LIABILITY IN SECTION 9.
- 8.6 User’s Care of PERS Equipment: Repairs and Additions. User agrees not to tamper with, remove or interfere with the PERS Equipment. User agrees to bear the cost of repairs, replacement, relocation or additions to the PERS Equipment made necessary as a result of any painting, alteration or damage, including damage caused by unauthorized intrusion to the premises, lightning or electrical surge, except for ordinary wear and tear, in which event repair or replacement shall be made by Lively at its expense.
- 8.7 User to Insure all Equipment. User shall insure Lively’s Equipment including PERS Equipment (in this section 8.7 the "Equipment") against fire and casualty and name Lively in said insurance policy as “loss payee” to at least the extent of the value of the Equipment which is the greater of US$199 and 12 months of subscription fees. User shall be responsible for any loss occasioned by fire or casualty and the cost of replacing or restoring the Equipment.
- 9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL WE OR OUR OFFICERS, DIRECTORS, SHAREHOLDERS, VENDORS, CONTRACTORS, EMPLOYEES OR AFFILIATES BE LIABLE TO YOU OR ANY USER, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM ANY ASPECT OF THE RELATIONSHIP PROVIDED FOR HEREIN.
You understand that: (a) we are not an insurer of your health or personal safety or the health or personal safety of persons who may use the Services; (b) you are solely responsible for providing any life, health or disability insurance for yourself and persons who use the System or Services, and insurance on your premises and its contents; (c) the amount you pay to us is based only on the value of the System and Services we provide; (d) notification systems may not always operate properly for various reasons; and (e) it is difficult to determine in advance what portion, if any, of any personal injury or death or property loss would be proximately caused by our failure to perform, our negligence, or a failure of the System or Services. Therefore, you agree that even if a court decides that our breach of this Agreement, a failure of the System or Services or repair services, or our negligence caused or allowed any harm or damage (whether personal injury, death or property loss) to you, a User or anyone in or about the premises where the System is installed, you agree that our total liability shall be limited to the greater of (i) $1,000 and (ii) the amount paid by you for the Service during the preceding 12 months. You further agree that this shall be the only remedy regardless of what legal theory (including without limitation, negligence, breach of contract, breach of warranty or product liability) is used to determine that we were liable for the injury or loss.
YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT THE FOREGOING LIMITATIONS OF LIABILITY FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL APPLY EVEN IF A LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS DEEMED UNCONSCIONABLE.
NOTE: SOME STATES DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.
- 10. INDEMNIFICATION
- If a User, insurer or other third party requests that we indemnify, contribute or otherwise pay for any harm or damages (including personal injury, death or property loss) connected with or resulting from (i) our breach of this Agreement, (ii) any failure of the System or Services or (iii) our negligence or other act or omission in providing the System or Services, you agree to reimburse us upon our request for any amount a court orders us to pay or we agree to pay (including the amount of our reasonable attorneys’ fees and any other losses or costs that we may pay in connection with the claim).
- 11. PRIVACY
In addition, User authorizes the release of medical information provided to Lively to the monitoring center, the law enforcement, the emergency medical or rescue personnel in the event the User uses the PERS Services emergency rescue personnel (including police, fire and paramedics) are dispatched to assist the User. Lively will not release any medical information provided by the User for any other reason or purpose unless required to the sake of the user or by law or law enforcement.
- 12. MISCELLANEOUS
- 12.1 Severability. If a court of competent jurisdiction finds any provision of this Agreement unlawful or unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. You and Lively intend that all restrictions on use, disclaimers of warranties, limitations of responsibility and liability, exclusions of damages or other remedies, and indemnification rights of Lively in this Agreement shall be upheld and applied to the maximum extent permitted by law.
- 12.2 Entire Agreement. This Agreement (including Orders that reference this Agreement) constitutes the entire agreement between you and Lively. By entering into this Agreement, you affirm that you are not relying on our advice, advertisements, or any other representation, promise, condition, inducement, or warranty, express or implied, from any person that is not expressly and specifically set forth in writing in this Agreement.
- 12.3 Assignment. We reserve the right to assign this Agreement or to subcontract any of our obligations hereunder without notifying you and without obtaining your consent. You may not transfer this Agreement to someone else (including someone who purchases or rents your premises) unless we approve the transfer in writing.
- 12.4 Subcontractors. We may use subcontractors to provide repairs and other Services. The provisions of this Agreement (including, without limitation, Sections 8 and 9) shall apply to them and the work they perform and protect them to the same extent as they apply to and protect us.
- 12.5 Governing Law and Venue. The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflicts of laws. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any dispute between the parties regarding this Agreement will be subject to the exclusive venue and applicable laws of the state and federal courts located in San Francisco County, California.
- 12.6 Third Party Beneficiary. You hereby agree that each User in the household where you install the System or Services is an intended third party beneficiary of this Agreement. All Users shall be bound by the terms and conditions of this Agreement and we may enforce the terms and conditions of this Agreement that apply to Users. Contractors that we use to provide warranty support or other Services are also intended third party beneficiaries of the appropriate provisions of this Agreement.
- 12.7 Notices. If you or we wish to give the other party written notices under this Agreement, they must be (a) in writing, (b) if to you, sent to your email address on file with us (or posted in your Lively account if no email address is on file), (c) if to us, sent by overnight courier, certified or registered mail, or other reliable means (with confirmation of delivery) to our principal business address listed on our Site. Notices will be effective upon delivery.
- 12.8 Force Majeure. To the extent that either party’s performance is prevented or delayed, either totally or in part, for reasons beyond that party’s reasonable control, then that party will not be liable for not performing, so long as it resumes performance as soon as practicable after the reason delaying performance no longer exists.
- 12.9 Electronic Agreement. For convenience, this Agreement is posted online and made available to you as part of the Ordering process at mylively.com. When you click “I Agree”, check the box or otherwise provide consent during the Ordering process, you and we are agreeing to be bound by this Agreement to the same extent as if you and we had manually executed a paper copy of this Agreement.
VERSION DATE: June 2015