7. User Responsibilities.

7.1.   You agree to:

• Provide accurate and complete information

• Keep your login credentials secure

• Use the Services only for lawful and intended purposes

• Not interfere with or disrupt the Services or their security

You are solely responsible for any use of your account and for all activity that occurs under your credentials.

 

7.2.   As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Service or any portion of the Services;  (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Services or any other portion of the Services (including images, text, page layout or form);  (iii) use any metatags or other “hidden text” using Lyv’s name or trademarks;  (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law;  (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Services 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);  (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Services; (vii) impersonate any person or entity, including any employee or representative of Lyv; (viii) interfere with or attempts to interfere with the proper functioning of the Services or use the Services in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host, or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services; or (ix) take any action or make available any content on or through the Services that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Lyv’s prior written consent.  The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this section. Any unauthorized use of the Services terminates the licenses granted by Lyv pursuant to this Agreement.

 

7.3.   Lyv may, but is not obligated to, investigate, monitor, pre-screen, remove, refuse, or review the Services, including Your Content and User Content, at any time. You hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.

 

7.4.   If Lyv believes that criminal activity has occurred, Lyv reserves the right to, except to the extent prohibited by applicable law, disclose any information or materials on or in the Services, including Your Content, in Lyv’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request, (ii) enforce this Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property, or personal safety of Lyv, its users or the public, and all enforcement or other government officials, as Lyv in its sole discretion believes to be necessary or appropriate.

 

7.5.   Subject to any applicable account settings that you select, you grant Lyv a non-exclusive, transferable, perpetual, irrevocable, worldwide, fully-paid, royalty-free, sublicensable (through multiple tiers of sublicensees) right (including any moral rights) and license to use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, publicly perform, publicly display and derive revenue or other remuneration from Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other users.  Please remember that other users may be able to search for, see, use, modify and/or reproduce any of Your Content that you submit to any area of the Services that is accessible by other users. Lyv does not claim ownership of Your Content.  However, when you make available any Content on or to the Services, you represent that you own and/or have sufficient rights to Your Content to grant the forgoing license.

 

7.6.   You agree that submission of any ideas, suggestions, documents, and/or proposals to Lyv through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Lyv 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 Lyv 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 the Services and/or Lyv’s business.

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8. INTERACTIONS WITH OTHER USERS.

8.1.   User Responsibility.  You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services; provided, however, that Lyv reserves the right, but has no obligation, to intercede in any disputes between you and any other users. You agree that Lyv will not be responsible for any liability incurred as the result of your interactions with other users.

 

8.2.   Content Provided by Other Users.  The Services may contain content, information, and data provided by other users. Lyv is not responsible for and does not control such content. Lyv does not approve or endorse, or make any representations or warranties with respect to such content.  You use all such content and interact with other users at your own risk.

 

9. THIRD-PARTY SERVICE.

9.1.   Third-Party Websites, Applications and Ads.   The Services may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”) (collectively, the “Third-Party Services”).  When you click on a link to a Third-Party Service, we will not warn you that you have left the Service and you become subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Services are not under the control of Lyv. Lyv is not responsible for any Third-Party Services. Lyv provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith.  You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.

 

9.2.   Sharing Your Content and Information Through Third-Party Services.  Lyv may provide tools through the Services that enable you to export information, including any any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials your upload, post, email, transmit or otherwise make available through the Services (“Your Content”), to Third-Party Services [, including through features that allow you to link your Account with an SNS account, or through our implementation of third-party buttons (such as “like” or “share” buttons)]. By using one of these tools, you agree that Lyv may transfer that information to the applicable Third-Party Service. Lyv is not responsible for any Third-Party Service’s use of your exported information.

 

9.3.   Third-Party Application Access.  With respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you shall only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple Media Terms of Service, except that such App Store Sourced Application may be accessed, acquired, and used by other accounts associated with the purchaser via Apple’s Family Sharing function, volume purchasing, or Legacy Contacts function. Notwithstanding the first sentence in this section, with respect to any Application accessed 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 Application on a shared basis within your designated family group.

 

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

 

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

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

9.4.3.In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application 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 Application.  As between Lyv 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 Lyv.

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

9.4.5.You and Lyv acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Lyv and Apple, Lyv, 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 this Agreement.

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

9.4.7.Without limiting any other terms of this Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.

 

10.  Payment Terms

10.1.            Third-Party Service Provider.  Lyv uses Stripe, Inc. Paypal, and its affiliates as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (“Third-Party Service Provider”). If you make a purchase on the Service, you will be required to provide your payment details and any additional information required to complete your order directly to our Third-Party Service Provider. You agree to be bound by [Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/ssa)] and hereby consent and authorize the Lyv and [Stripe] to share any information and payment instructions you provide with one or more Third-Party Service Provider(s) to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.

 

10.2.            Payment. You agree to pay all fees associated with the Services as described at the time of purchase. Lyv reserves the right to change pricing or billing terms at any time. Continued use of the Services after changes are posted constitutes your acceptance of the updated terms. By providing Lyv and/or our Third-Party Service Provider with your payment information, you agree that Lyv and/or our Third-Party Service Provider is authorized to immediately invoice your account for all fees due and payable to Lyv hereunder and that no additional notice or consent is required. You shall immediately notify Lyv of any change in your payment information to maintain its completeness and accuracy. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Lyv and/or our Third-Party Service Provider or our inability to collect payment constitutes your material breach of this Agreement.  Except as set forth in this Agreement, all fees for the Service are non-refundable.

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10.3.            Subscriptions.  If you purchase access to certain features and functionality of the Services on a time-limited basis (a “Subscription”), the fee for such Subscription (“Service Subscription Fee”) will be billed at the start of the Subscription (“Subscription Service Commencement Date”) and at regular intervals in accordance with your elections at the time of purchase. Lyv reserves the right to change the timing of our billing. Lyv reserves the right to change the Subscription pricing at any time in accordance with Section 17.5. If changes to the Subscription price occur that impact your Subscription, Lyv will use commercially reasonable efforts to notify you, such as by sending an email to the email address associated with your account. If you do not agree with such changes, you may cancel your Subscription as set forth in Section 10.3.1(i).  Lyv is not obligated to provide the Services to you until Lyv accepts your order by a confirmatory email, SMS/MMS message, or other appropriate means of communication.

 

10.3.1.   Automatic Renewal.  If you elect to purchase a Subscription, your Subscription will continue and automatically renew at Lyv’s then-current price for such Subscription until terminated in accordance with this Agreement. The frequency at which your Subscription renews (i.e., weekly, monthly, annually, etc.) will be designated at the time at you sign up for the Subscription. By subscribing, you authorize Lyv to charge the payment method designated in your account now, and again at the beginning of any subsequent Subscription period. Upon renewal of your Subscription, if Lyv does not receive payment, (i) you shall pay all amounts due on your account upon demand and/or (ii) you agree that Lyv may either terminate or suspend your Subscription and continue to attempt to charge your designated payment method until payment is received (upon receipt of payment, your account will be activated and for purposes of automatic renewal, your new Subscription commitment period will begin as of the day payment was received).

(i)          Cancelling Subscriptions.  If you purchased your Subscription directly from Lyv, you may cancel your Subscription by logging into and going to the “Manage Membership” page of your “Member Dashboard” page] or by contacting Lyv at hello@lyvhealth.co. If you did not purchase your Subscription directly from Lyv, please refer to the party or method through which you purchased your Subscription for cancellation instructions. Your cancellation generally will take effect at the end of the billing cycle in which you cancel, and you will maintain access to your Account until then.

 

10.4.            Taxes. The fees do not include any Sales Tax (defined below) that may be due in connection with the Services provided under this Agreement. If Lyv determines it has a legal obligation to collect Sales Tax from you in connection with this Agreement, Lyv shall collect such Sales Tax in addition to the fees. If any services, or payments for any services, under this Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Lyv, you shall be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you shall indemnify Lyv for any liability or expense Lyv may incur in connection with such Sales Taxes. Upon Lyv’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.

 

10.5.            Free Trials and Other Offers. Lyv may offer additional promotions or discounts related to Subscriptions from time to time. Please read the details of those offers carefully, as any additional terms presented to you during the sign-up process will form part of the Agreement. Unless specified in writing, all discount offers that require payment are non-refundable. Any free trial or other promotion must be used within the specified time frame of the trial or promotion. YOU MAY BE REQUIRED TO HAVE A VALID PAYMENT METHOD ON FILE AND ACCEPT THE TERMS OF AN AUTOMATICALLY RENEWING PAID SUBSCRIPTION, INCLUDING THOSE DESCRIBED IN THIS SECTION, IN ORDER TO INITIATE A FREE TRIAL OR PROMOTIONAL MEMBERSHIP; IF YOU DO NOT CANCEL BEFORE YOUR FREE TRIAL OR PROMOTIONAL MEMBERSHIP PERIOD ENDS, YOUR ACCOUNT WILL BE CONVERTED TO A PAID SUBSCRIPTION AND WILL BE CHARGED IN ACCORDANCE WITH THESE SUBSCRIPTION TERMS.

 

11.  Intellectual Property.

All content, software, designs, text, graphics, and marks on the Services are the property of Lyv or its licensors and are protected by intellectual property laws. You may not reproduce, distribute, modify, or create derivative works without prior written permission.

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12.  No Warranty.

12.1.            As Is.  YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS.  THE LYV PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICE. 

12.1.1.   THE LYV PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SERVICES WILL MEET YOUR REQUIREMENTS (SUCH AS THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICE); (2) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE ADVICE, RESULTS, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.

12.1.2.   ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND/OR ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

 

12.2.            No Liability for Conduct of Third Parties.  YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH THIRD PARTIES ON THE SERVICES, INCLUDING OTHER USERS AND PROVIDERS. YOU ACKNOWLEDGE AND AGREE THAT THE LYV PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE LYV PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.  YOU UNDERSTAND THAT LYV DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS. LYV MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.  LYV MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICE, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICE.

 

12.3.            Medical Disclaimer. THOUGH CERTAIN ASPECTS OF THE SERVICES, RESULTS, INSIGHTS, AND THIRD-PARTY SERVICES FACILITATED THROUGH LYV MAY BE PROVIDED BY HEALTHCARE PROFESSIONALS, NEITHER LYV NOR OUR AFFILIATES OFFERS YOU MEDICAL ADVICE, OPINION, GUIDANCE, DIAGNOSIS, TREATMENT, OR CARE, OR ANY OTHER MEDICAL SERVICES, IN THE COURSE OF PROVIDING SERVICES OR OTHERWISE. LYV DOES NOT INTERFERE WITH THE PRACTICE OF MEDICINE BY MEDICAL PROVIDERS OR THE PROVISION OF LABORATORY SERVICES BY LABORATORIES, EACH OF WHOM IS SOLELY RESPONSIBLE FOR MEDICAL CARE, LABORATORY SERVICES AND TREATMENTS PROVIDED TO YOU.

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13.  Limitation of Liability.

13.1.            Disclaimer of Certain Damages.  YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL THE LYV PARTIES  BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES,  IN EACH CASE WHETHER OR NOT ANY LYV PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SERVICE, OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR THIRD PARTIES, ON ANY THEORY OF LIABILITY, INCLUDING TO THE EXTENT RESULTING FROM: (i) THE USE OR INABILITY TO USE THE SERVICE; (ii) ANY GOODS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (v) ANY OTHER MATTER RELATED TO THE SERVICE, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY  OR ANY OTHER LEGAL THEORY.  THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO LIABILITY OF A LYV PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A LYV PARTY’S NEGLIGENCE; OR FOR (A) ANY INJURY CAUSED BY A LYV PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

 

13.2.            Cap on Liability.   TO THE FULLEST EXTENT PERMITTED BY LAW, THE LYV PARTIES SHALL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (i) THE TOTAL AMOUNT PAID TO LYV BY YOU DURING THE THREE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (ii) $100;   OR (iii) IF APPLICABLE, THE STATUTORY REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY DOES NOT APPLY TO LIABILITY OF A LYV PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A LYV PARTY’S NEGLIGENCE; OR (B) ANY INJURY CAUSED BY A LYV PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.

 

13.3.            User Content.  LYV ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

 

13.4.            Exclusion of Damages.  CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.  IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

 

13.5.            Basis of the Bargain.  THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LYV AND YOU.

 

14.  Indemnification

You agree to indemnify, defend, and hold harmless Lyv, its affiliates, officers, employees, agents, and licensors (collectively, “Lyv Parties”) from and against any claims, liabilities, damages, losses, or expenses  (including reasonable attorneys’ fees) arising out of:

• Your use, or inability to use, or misuse of the Services;

• Your violation of this Agreement;

• Any false or misleading information provided by you;

• Any breach of your representations or warranties;

• Your violation of any applicable laws, rules or regulations;

• Your Content; or

• Your violation of the rights of another party, including any user.

​Lyv 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 in asserting any available defenses.  This provision does not require you to indemnify any of the Lyv Parties 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 Service provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to the Service.

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15.  ARBITRATION AGREEMENT

 

15.1.            Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Lyv 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 of the Lyv Site, any Communications you receive, any products sold or distributed through the Lyv Site, the Services, or the Terms and prior versions of the Terms (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (1) you and Lyv may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (2) you or Lyv 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 at the time you first became subject to these Terms but that arose or involve facts occurring before the existence of this or any prior versions of the Terms as well as claims that may arise after the termination of these Terms. 

 

15.2.            Informal Dispute Resolution. There might be instances when a Dispute arises between you and Lyv. If that occurs, Lyv is committed to working with you to reach a prompt, low‐cost and mutually beneficial resolution. You and Lyv 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 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 should be sent by email to hello@lyvhealth.co or regular mail to our offices located at 199 N Harvard St, N605, Boston MA 02134.The Notice must include: (1) your name, telephone number, mailing address, and e‐mail address associated with your account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of the Dispute, including the specific relief sought. Lyv 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 Notice must be signed by the party initiating the Dispute (i.e., either you personally or a Lyv representative). 

 

The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. The Informal Dispute Resolution Conference, if requested by either party, 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 deadlines shall be tolled while the parties engage in Informal Dispute Resolution.

 

15.3.            Waiver of Jury Trial.  YOU AND Lyv 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 are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in the subsection 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.

 

15.4.            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 it, affect the terms and conditions under the subsection 15.9 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 agree that that 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. The parties agree that any claims or requests for relief that are severed from an arbitration may not proceed in litigation and shall be stayed until all Disputes between the parties that remain in arbitration are finally resolved. All other Disputes shall be arbitrated or litigated in small claims court. This subsection does not prevent you or Lyv from participating in a class-wide or mass settlement of claims.

 

15.5.            Rules and Forum.  The Terms evidence 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, or after completion of the Informal Dispute Resolution Conference, if requested, you and Lyv 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 Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), 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 “Demand”). The Demand must include: (1) 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; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States Dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) a statement certifying that the requesting party will pay any necessary filing fees in connection with such arbitration. Any Demand you send to Lyv should be sent by email to hello@lyvhealth.co]. Lyv will provide the Demand to your email address on file. [DC9] It is your responsibility to keep your contact information up to date.

 

If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, 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): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) 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 (3) 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 otherwise agree, or the Batch Arbitration process discussed in subsection 15.9 is triggered, the arbitration, including any in-person arbitration hearing, will be conducted in the State of Delaware or 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 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 agree that at least 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.

 

15.6.            Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of [California] 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 Demand, then NAM will appoint the arbitrator in accordance with NAM Rules, provided that if the Batch Arbitration process under subsection 15.9 is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to your right to object to that appointment.

 

15.7.            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.

 

15.8.            Attorneys’ Fees and Costs. Unless fee shifting is specifically authorized by law or by the NAM Rules, 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 Demand 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 parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.  If you or Lyv need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall be entitled to recover from the other party its reasonable costs, necessary disbursements, and reasonable attorneys' fees incurred in securing an order compelling arbitration.

 

15.9.            Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Lyv agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against Lyv by or with the assistance of the same law firm, group of law firms, or organizations, within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.

 

All parties agree that Demands 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 Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “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.

 

You and Lyv 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 Demands, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) 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.

 

15.10.         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 to: hello@lyvhealth.co 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 Lyv account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. [Any Opt-Out Notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or Lyv’S rights.] 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 did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.[DC10] 

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15.11.         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 15.9) 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 15.9 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 the State of Delaware. You further agree that any Dispute that you have with Lyv 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. 

 

15.12.         Modification. You and we agree that Lyv retains the right to modify this Arbitration Agreement in the future.  Any such changes will be posted at www.lyhealth.co/terms-of-service  and you should check for updates regularly.  Notwithstanding any provision in these Terms to the contrary, we agree that if Lyv makes any future material change to this Arbitration Agreement, it will notify you.  Your continued use of the Lyv Site and/or Services, including the acceptance of products and services offered on the Site 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 validity opt of arbitration then, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of your previous agreement to arbitrate. Lyv will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of these Terms.