12.   WELLNESS PARTNER FEES

 

12.1. You shall have the right to set a fee payable to you that will be applied to those products and services sold to End Users through the Partner-Branded Platform (“Wellness Partner Service Fee”). Lyv Health shall collect and remit to you the Wellness Partner Service Fee for every purchase of products and services by End User on your Partner-Branded Platform, excluding any returns, refunds, and chargebacks.

 

13.   CONFIDENTIALITY

Each party (as a “Receiving Party”) agrees to hold in strict confidence and not to disclose to any third party any non-public, confidential, or proprietary information of the other party (the “Disclosing Party”) disclosed in connection with this Agreement (“Confidential Information”), and to use such Confidential Information only for the purposes of performing its obligations or exercising its rights under this Agreement. Each party shall protect the other’s Confidential Information using at least the same degree of care it uses to protect its own confidential information, but in no event less than reasonable care. These obligations shall not apply to information that: (a) is or becomes publicly available through no act or omission of the Receiving Party; (b) was already known to the Receiving Party at the time of disclosure; (c) is rightfully received from a third party without restriction; or (d) is required to be disclosed by law or court order, provided the Receiving Party provides prompt written notice and reasonable assistance to the Disclosing Party to seek a protective order. The obligations of this Section shall survive termination of this Agreement for a period of three (3) years.

 

14.   DISCLAIMERS OF WARRANTY

 

14.1. As Is. THE PLATFORM, END USER SERVICES, PARTNER-BRANDED PLATFORM AND OTHER SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. LYV HEALTH EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

 

LYV HEALTH DOES NOT WARRANT THAT: (A) THE PLATFORM, END USER SERVICES, OR SERVICES WILL MEET WELLNESS PARTNER’S REQUIREMENTS; (B) ACCESS TO OR USE OF THE PLATFORM, PARTNER-BRANDED PLATFORM, OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (C) ANY RESULTS OBTAINED FROM USE OF THE PLATFORM OR SERVICES WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED THROUGH THE PLATFORM, SERVICES, PARTNER-BRANDED PLATFORM, OR END USER SERVICES WILL MEET YOUR EXPECTATIONS. LYV HEALTH MAKES NO WARRANTY WITH RESPECT TO THE HEALTHCARE SERVICES PROVIDED BY THIRD-PARTY PROVIDERS AND DISCLAIMS ALL LIABILITY IN CONNECTION WITH YOUR RELIANCE AND USE OF SUCH HEALTHCARE SERVICES.

 

14.2. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE INCLUSION OF ANY PRODUCTS OR SERVICES ON THE SERVICES OR WITHIN THE END USER SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THESE PRODUCTS OR SERVICES WILL BE AVAILABLE AT ANY TIME OR AT THE PRICES THEN LISTED.

 

14.3. NO LIABILITY FOR CONDUCT OF OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE COMMUNITY FORUM. YOU ACKNOWLEDGE AND AGREE THAT LYV HEALTH IS NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD LYV HEALTH LIABLE, FOR THE CONDUCT OF OTHER USERS ON THE COMMUNITY FORUM, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. YOU UNDERSTAND THAT LYV HEALTH DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS IN THE COMMUNITY FORUM. LYV HEALTH MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE COMMUNITY FORUM.

 

14.4. Without limiting the foregoing, you acknowledge and agree that the availability of certain End User Services is subject to applicable federal and state laws, including laws governing the practice of medicine, telemedicine and the prescribing of medications via telehealth. Some End User Services may not be available in all U.S. states or jurisdictions, and availability may change at any time without notice due to changes in applicable law or regulation. Lyv Health reserves the right to restrict or suspend access to any End User Services and certain other products and services in any jurisdiction at any time, without notice, in order to comply with applicable law.

 

15.   LIMITATION OF LIABILITY

 

15.1. Exclusion of Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CONNECTION WITH A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA, GOODWILL OR BUSINESS OPPORTUNITIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF LIABILITY.

 

15.2. Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL SUBSCRIPTION FEES PAID BY YOU TO LYV HEALTH IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING CAP SHALL NOT APPLY TO: (I) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16 OR (II) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 13.

 

15.3. No Liability for Your Actions. Lyv Health is not responsible or liable for any acts, omissions, advice, recommendations, representations, warranties, negligence or misconduct by you or your employees, agents or contractors, or for any personal injury, death, property damage, loss or other harm arising out of or related to any services provided by you to the End User (including Wellness Services). In no event shall Lyv Health be liable to any End User or third party for any claims, damages, losses or expenses arising from or related to your services to End Users (including Wellness Services).

 

16.   INDEMNIFICATION

 

16.1. By You. You shall defend, indemnify, and hold harmless Lyv Health, its affiliates, officers, directors,
employees, agents and licensors (collectively, “Lyv Health Indemnitees”) from and against any claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) your breach of this Agreement or any representations or warranties herein; (b) your negligence, willful misconduct, or fraud; (c) your violation of any applicable law or regulation; (d) your business and services provided to End Users (including Wellness Services); (e) any claims by End Users arising from your conduct or representations; (f) any of Your Marks or Your Content, including any Lifestyle Data submitted without required End User consent; or (g) any claim that your use of the Services or End User Data is in violation of this Agreement or infringes, misappropriates or violates any third party’s intellectual property or other rights, including the right to privacy.

 

Lyv Health reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Lyv Health in asserting any available defenses. This Section 16.1 does not require you to indemnify any of the Lyv Health Indemnitees for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services provided hereunder. You agree that the provisions in this Section 16.1 will survive any termination of your Subscription, this Agreement and/or your access to the Services.

 

16.2. By Lyv Health. Lyv Health shall defend, indemnify, and hold harmless you and your officers, directors and employees from and against any third-party claims, liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any allegation that the Lyv Health IP infringes or misappropriates any third party’s U.S. intellectual property rights, provided that you (a) promptly notify Lyv Health of the claim in writing; (b) grant Lyv Health sole control over the defense and settlement; and (c) provide Lyv Health with reasonable assistance in connection therewith.

​​

17.   ARBITRATION AGREEMENT.  Please read this Section (the “Arbitration Agreement”) carefully.  It is part of your contract with Lyv Health and affects your rights.  It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

 

17.1. Applicability of Arbitration Agreement. If you live in the U.S., subject to the terms of this Arbitration Agreement, you and Lyv Health agree that any disagreement, controversy, or claim arising out of or relating in any way to your access to or use of the Services or this Agreement and prior versions of the Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (a) you and Lyv Health may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (b) you or Lyv Health 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). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that were not noticed or that involve facts occurring before the existence of this or any prior versions of the Agreement as well as claims that may arise after the termination of this Agreement. 

 

17.2. Informal Dispute Resolution. There might be instances when a Dispute arises between you and Lyv Health. If that occurs, Lyv Health is committed to working with you to reach a prompt, low‐cost and mutually beneficial resolution. You and Lyv Health agree to participate in good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Lyv Health agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate.

 

To initiate Informal Dispute Resolution, a party must give notice in writing to the other party (“Notice”). Such Notice to Lyv Health should be sent by email or regular mail to our offices located at the address listed in Section 19.14, Attn: Legal Department. The Notice must include: (a) your name, telephone number, mailing address, and e‐mail address associated with your Account (if you have one); (b) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (c) a description of the Dispute. Lyv Health will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date.

 

The Informal Dispute Resolution process lasts forty-five (45) days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to participate in an Informal Dispute Resolution Conference as part of a good faith effort to resolve the Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms or organizations represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.

 

The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in Informal Dispute Resolution.

 

17.3. Waiver of Jury Trial. YOU AND LYV HEALTH HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Lyv Health are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the sub entitled “Applicability of Arbitration Agreement” above. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

 

17.4. Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall affect the terms and conditions under the subsection 17.9 entitled “Batch Arbitration.” Notwithstanding anything to the contrary in this Arbitration Agreement, if a final decision, not subject to any further appeal or recourse, determines that the limitations of this subsection, “Waiver of Class and Other Non-Individualized Relief,” are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Lyv Health agree that the particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Lyv Health from participating in a class-wide or mass settlement of claims.

 

17.5. Rules and Forum. The Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. If Informal Dispute Resolution does not resolve satisfactorily within forty-five (45) days after receipt of a Notice, you and Lyv Health agree that either party shall have the right to finally resolve the Dispute through binding arbitration.

 

The arbitration will be administered by the National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures, and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.

 

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (a) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration, and the Account username (if applicable), as well as the email address associated with any applicable Account; (b) a statement of the legal claims being asserted and the factual bases of those claims; (c) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (d) a statement certifying completion of the Informal Dispute Resolution process as described above; and (e) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. Any Request you send to Lyv Health should be sent by email to partnersuccess@joinlyv.com. Lyv Health will provide the Request to your email address on file.

 

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (i) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (ii) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (iii) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”). 

 

Unless you and Lyv Health otherwise agree, or the Batch Arbitration process discussed in subsection 17.9 is triggered, the arbitration will be conducted in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”). 

 

You and Lyv Health agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

 

You and Lyv Health agree that at least fourteen (14) days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.

 

17.6. Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from NAM’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process under subsection 17.9 is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch.

 

17.7. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes regarding the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes regarding the subsection entitled “Waiver of Class and Other Non-Individualized Relief,” including any claim that all or part of the subsection entitled “Waiver of Class and Other Non-Individualized Relief” is unenforceable, illegal, void or voidable, or that such subsection entitled “Waiver of Class and Other Non-Individualized Relief” has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.

 

17.8. Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration costs and arbitrators’ fees the responding party incurred under the Fee Schedules.

 

17.9. Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Lyv Health agree that in the event that there are twenty-five (25) or more individual Requests of a substantially similar nature filed against Lyv Health by or with the assistance of the same law firm, group of law firms, or organizations (“Claimants’ Counsel”), within a ninety (90) day period, NAM shall (a) administer the arbitration demands in batches of 100 Requests per batch (or, if between twenty-five (25) and ninety-nine (99) individual Requests are filed, a single batch of all those Requests, and, to the extent there are fewer than 100 Requests remaining after the batching described above, a final batch consisting of the remaining Requests); (b) appoint one arbitrator for each batch; and (c) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be selected by Claimants’ Counsel or, if Claimants’ Counsel does not have a preference, by the arbitrator, and one final award (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.

 

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issue(s) and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Lyv Health.

 

You and Lyv Health agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (i) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (ii) the adoption of an expedited calendar of the arbitration proceedings.

 

This Batch Arbitration provision shall in no way be interpreted as authorizing or creating a class, collective, and/or representative arbitration or action of any kind, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.

 

17.10.   Invalidity, Expiration. Except as provided in the subsection entitled “Waiver of Class or Other Non-Individualized Relief,” if any part or parts of this Arbitration Agreement (other than Section 17.9) 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. However, if Section 17.9 of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in Delaware. You further agree that any Dispute that you have with Lyv Health as detailed in this Arbitration Agreement must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction. 

 

17.11.   30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out by regular mail to the address listed in Section 19.14, Attn: Legal Department, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal 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 arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed, and has no effect on any arbitration agreements with us you may enter in the future.

 

17.12.   Modification. You and we agree that Lyv Health retains the right to modify this Arbitration Clause in the future. Any such changes will be posted on the Platform and you should check for updates regularly. Notwithstanding any provision in these Terms to the contrary, we agree that if Lyv Health makes any future material change to this Arbitration Agreement, it will notify you. Your continued use of the Service, including the acceptance of services offered on the Services following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of these Terms with an arbitration agreement and you did not validly opt out of arbitration, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of arbitration. Lyv Health will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.

 

17.13.   Governing Courts. To the extent that the Dispute is not covered by any arbitration agreement between you and us, it shall proceed before the state or federal courts located in Delaware (except for small claims court actions which may be brought in the county where you reside).

 

18.   Term and Termination

 

18.1. Term. The term of this Agreement commences on the date when you accept this Agreement (as described in the preamble above) and continues in full force and effect while you use the Services, unless terminated earlier in accordance with this Agreement (the “Term”).

 

18.2. Termination of Services by Lyv Health.  Except as set forth above, the Subscription Fee for any Subscription is non-refundable. If you have materially breached any provision of this Agreement, or if Lyv Health is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Lyv Health has the right to, immediately and without notice, suspend or terminate any Services provided to you. Lyv Health reserves the right to terminate this Agreement and/or your access to the Services at any time without cause upon notice to you. In the event we exercise the termination right in the immediately foregoing sentence, we will refund you for any pre-paid portion of your unused Subscription. You agree that all terminations for cause are made in Lyv Health’s sole discretion and that Lyv Health shall not be liable to you or any third party for any termination of your Account.

 

18.3. Termination by You.  If you want to terminate this Agreement, you may do so by (i) notifying Lyv Health at any time and (ii) closing your Account for the Services. Your notice should be sent, in writing, to Lyv Health’s address set forth below.  ANY SUCH TERMINATION WILL BE EFFECTIVE AT THE END OF THE THEN-CURRENT TERM OF THE SUBSCRIPTION AS SET FORTH IN SECTIONS 11.3 AND 11.4 .

 

18.4. Effect of Termination.  Upon termination of any Subscription or the Services or the applicable feature or functionality thereof, your right to use the Services will automatically terminate, and we may delete Your Content associated therewith from our live databases. If we terminate your Account for cause, we may also bar your further use or access to the Services. We will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content or End User Data. All provisions of this Agreement which by their nature should survive, will survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitations of liability.

 

In the event this Agreement is terminated or expires, End Users will be able, for a period of ninety (90) days after such termination or expiration (or longer, as medically required, in the sole discretion of Lyv Health), to access the Partner-Branded Platform and finalize their order for products that have already been prescribed by a Third-Party Provider and complete any lab or diagnostic testing that had already been ordered by a Third-Party Provider. You agree that the Partner-Branded Platform shall continue to be made available to such End Users for this purpose and we may continue to use Your Marks and Your Content till such End User Services are concluded.

 

18.5. No Subsequent Registration.  If this Agreement is terminated for cause by Lyv Health or if your Account or ability to access the Services is discontinued by Lyv Health due to your violation of any portion of this Agreement or for conduct otherwise deemed inappropriate, then you agree that you shall not attempt to re-register with or access the Services through use of a different member name or otherwise.

 

19.   General Provisions

 

19.1. Non-Circumvention.  During the Term and for a period of one (1) year following expiration or earlier termination of this Agreement, Wellness Partner shall not, directly or indirectly, contact, solicit, or engage any Third-Party Provider introduced to or identified by Wellness Partner through the Platform or Services to perform services outside of or independently from the Platform, without Lyv Health's prior written consent. For the avoidance of doubt, this Section does not apply to Third-Party Providers with whom Wellness Partner had a pre-existing relationship prior to its first use of the Platform, as evidenced by written documentation.

 

19.2. Electronic Communications.  The communications between you and Lyv Health may take place via electronic means, whether you visit the Services or send Lyv Health emails, or whether Lyv Health posts notices on the Platform or communicates with you via email.  For contractual purposes, you (i) consent to receive communications from Lyv Health in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures and other communications that Lyv Health electronically provides to you satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).

 

19.3. Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Lyv Health’s prior written consent.  Lyv Health may, without your consent, freely assign and transfer this Agreement, including any of its rights, obligations, or licenses granted under this Agreement. Any attempted assignment, subcontract, delegation or transfer in violation of the foregoing will be null and void.

 

19.4. Force Majeure.  Lyv Health shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, pandemics, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

 

19.5. Agreement Updates.  When changes are made, Lyv Health will make a new copy of these Terms and/or Supplemental Terms, as applicable, available on the Platform, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Lyv Health may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICES.

 

19.6. Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY 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 THE AGREEMENT.

 

19.7. Notice.  Where Lyv Health requires that you provide an email address, you are responsible for providing Lyv Health with a valid and current email address.  In the event that the email address you provide to Lyv Health is not valid, or for any reason is not capable of delivering to you any notices required by this Agreement, Lyv Health’s dispatch of the email containing such notice will nonetheless constitute effective notice.

 

19.8. Waiver.  Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

 

19.9. Severability.  If any portion of this Agreement is held invalid or unenforceable, that portion must be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions must remain in full force and effect.

 

19.10.   Export Control.   You may not use, export, import, or transfer the Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Services, and any other applicable laws. In particular, but without limitation, the Services may not be exported or re-exported (i) into any United States embargoed countries, or (ii) 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 the Service, you represent and warrant that (A) 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 (B) you are not listed on any U.S. Government list of prohibited or restricted parties.  You also will not use the Services for any purpose prohibited by U.S. law. You acknowledge and agree that products, services and technology provided by Lyv Health 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 Lyv Health products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

 

19.11.   Supplemental Terms.  Your use of, and participation in, certain features and functionality of the Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in the applicable supplemental Services or will be presented to you for your acceptance when you sign up to use the supplemental Services. If these Terms are inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to such supplemental Services. 

 

19.12.   Entire Agreement.  The Agreement is 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.

 

19.13.   International Users.   The Site may be accessed from countries around the world and may contain references to services and content that are not available in your country. These references do not imply that Lyv Health intends to announce such service or content in your country. The Services are controlled and offered by Lyv Health from its facilities in the United States of America. Lyv Health makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.

 

19.14.   Contact. For questions about this Agreement, please contact:

Lyv Health, Inc.

Email: hello@joinlyv.com

169 Madison Ave STE 33657 New York, NY 10016