Smart and Flip Phone Customer Agreement
Welcome to the Lively™ family! This Customer Agreement (“Agreement”) is between you and us, Best Buy Health, Inc. doing business as Lively, and applies to your use of any of our mobile phones, including the Jitterbug phones (each, a “Device”), your phone service, and any services and features provided to you via your Device (collectively referred herein as “Services” and individually referred herein as “Service”). References to “Lively”, “our”, “we”, or “us” refers to Best Buy Health, Inc. Please read this Agreement carefully.
Your Acceptance of the Agreement This section outlines the requirements of your acceptance of this Agreement.
Term Commitment You may cancel this agreement and close your services at any time.
Your Use of Your Device and Services These are the basic rules you must follow when using Lively products and services.
Your Monthly Rate Plan The monthly rate plan you selected will be governed by this Agreement. For more information on your plan, visit lively.com/myaccount.
Unlimited Data Plans This section describes our practice of reducing data speeds after the use of 20 GB for unlimited data plan customers.
Payment Terms This section explains your payment obligations, including taxes and surcharges, and our billing practices, including how your monthly fees are calculated, how to dispute charges on your invoice, and how recurring monthly payments are managed.
How to Cancel Your Services This section explains how to partially or fully cancel your services.
Returns and Refunds This section explains our 30-day return policy for products purchased directly from Lively and how to return your Device if has been purchased directly through a retailer.
Our Ability to Amend or Cancel Your Services This section explains our right to amend, modify, or supplement your Services and if and when we will notify of such changes. The section also explains our right to limit or end your services or this Agreement.
Performance Characteristics This section explains that while we aim to provide the best internet service on our phones, network performance may vary depending on, terrain, weather, vegetation, distance from the cell site, and other factors beyond our control.
Additional Terms For Text Messaging This section explains that the text messages you send or receive will incur charges, whether or not solicited.
Rights In Numbers And Electronic Addresses We Assign To You This section describes your rights with regard to the phone number and email address that might be assigned to you.
Transferring Or “Porting” Phone Numbers This section explains how you may transfer your phone number to a new carrier.
Availability Of Service This section describes how our ability to provide you service may vary by weather, topography, buildings, etc.
Suspending Service If Your Phone Is Lost Or Stolen This section describes your ability to suspend your service if your phone is lost or stolen.
Lively Services This section describes the additional services that are available with your Device (some require purchase), and the additional terms and conditions that may apply to your use of such services.
Disclaimer Of Warranties We provide our Devices and Services as is, and we make no promises or guarantees about the Devices and Services. Please read this section carefully; you should understand what to expect.
Manufacturer’s Limited Warranty This section explains where you can view information regarding our Standard Limited Warranty.
Indemnification This section describes your obligations to us if you breach the terms of this Agreement.
Limitations Of Liability We will not be liable for damages or losses arising from your use or inability to use the Devices or Services, or otherwise arising under these Terms. Please read this section carefully; it limits our obligations to you.
Governing Law This section provides details including our choice of law.
Our Relationship With You This section describes our contractual relationship.
Modification of this Agreement We may modify this Agreement without prior notice to you. Any modification to the Agreement will be effective on the date provided below.
We Can Assign This Agreement We may assign this Agreement at any time without notice to you.
DISPUTE RESOLUTION BY BINDING ARBITRATION This section describes what will happen if there is a dispute between you and us regarding the Devices and Services. Please read this section carefully; it limits certain legal rights you may have.
This Is The Entire Agreement This section contains miscellaneous legal details regarding this Agreement.
Effective Date This provides the date for when these Terms went into effect.
1. Your Acceptance of the Agreement
When you accept this Agreement, you are agreeing to be bound by its terms and conditions. You accept the Agreement by doing any of the following things:
Activate, use, or pay for your Services;
Give us a written or electronic signature indicating your acceptance; or
Tell us electronically that you accept.
If you do not wish to accept this Agreement, do not do any of the above actions. You represent that you’re at least 18 years old and have the legal capacity to accept this Agreement. If you are ordering for a friend or a member of your family, you are bound by the terms of this Agreement, unless and until, your friend or family member has agreed to the terms of this Agreement. If you’re ordering for a company, you’re representing that you are authorized to bind the company to the terms of this Agreement, where the context “you” means the company.
If you are a California resident and would like to learn more about your rights under California’s laws, please review our California Privacy Rights page. To review our California Privacy Rights page, click here.
3. Term Commitment
This Agreement begins when you take one of the actions described above in Section 1 and continues through the date your Service is terminated by you or us pursuant to this Agreement. There is no requirement that you maintain Service for any period of time.
4. Your Use of Your Device and Services
You agree to comply with U.S. or other applicable law regarding the transmission of any information obtained from the Services in accordance with this Agreement, not to use the Services for illegal purposes or in a manner inconsistent with this Agreement, and not to interfere with or disrupt the networks connected to the Services. You agree to use the Services solely for your own noncommercial use and benefit, and not for resale or other transfer or disposition to, or use by or for the benefit of, anyone else. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on our infrastructure. You acquire no rights to the Device, Services and/or materials we provide to you other than the limited right to utilize the Services in accordance with this Agreement.
5. Your Monthly Rate Plan
The monthly rate plan you select is part of this Agreement. Your monthly rate plan includes your service allotment, i.e., minutes, text messages, data, rates, and other terms. You can check your current usage by logging into lively.com/myaccount. We may introduce new or remove old technologies, features, or services that you can add for an additional charge. To the extent any condition in your plan expressly conflicts with this Agreement, the condition in your rate plan will apply.
6. Unlimited Data Plans
Unlimited Data Plans include 20GB of data at 4G LTE speed during your billing cycle (“Usage Level”). If you exceed your Usage Level during your current billing cycle, your data speed will be reduced to 128kpbs for the remainder of the billing cycle. Your voice and text services will not be affected. At the beginning of your next billing cycle, your service plan Usage Level will be reset and your upload and download speeds will be restored to normal. Please be aware that you are more likely to exceed your Usage Level if you use streaming video, a mobile hotspot (tethering), or if you download significant quantities of music files, movies, software applications, or engage in other high-bandwidth activities. You can check your current usage by logging into your MyLively.com account.
7. Payment Terms
7.1. Fees and Charges Associated with Your Service
7.1.1. Activation Fees
There is a $35 activation fee associated with beginning your Service. If your Service is cancelled by either you or us there may be a fee associated with reactivating your Service.
7.1.2. Monthly Fees
Your monthly service fees will be based on the minutes, text, or data plan you have chosen. If you have not selected a text plan, you will be charged $0.10 per text or photo message sent or received. Monthly minutes carry over and are available for 60 days.
Overage charges will apply if you exceed your monthly minutes, text, and/or data plan allowance. Overage charges of $0.10/MB will apply if service plan data is exceeded. Overage fees of $0.35/ minute and $0.10/text apply to talk and text in excess of monthly plan allowance.
Bonus minutes are not shared and will be available for use on your next bill cycle and expire at the end of that cycle.
7.1.3. Additional Service Fees
Additional features and services, such as Operator assistance, may have extra charges. You will be charged $0.99/call for calls to a Personal Operator in which a service is completed, and plan minutes will be deducted equal to the length of the call.
7.1.4. Usage Fees
Usage charges vary depending on where, when, and how you call, including toll-free and Operator-assisted calls.
7.1.5. Roaming And Long-Distance Charges
There are no long distance or roaming charges for any calls made within the domestic U.S. There may be additional charges for international calls and texts.
7.1.6. International Rates
When calling from the domestic U.S. to other countries, or when calling from outside of the domestic U.S., additional international calling rates will apply.
7.2. Your Payment Responsibilities
You are responsible to pay for the Services on time and in full (unless the law provides otherwise). Payment is due in full as stated on your bill. Failure to timely pay your invoice could result in Lively suspending or disconnecting your account or assessing a late fee. In addition, failure to pay may result in Lively seeking legal action against you. You are responsible for all costs and expenses related to the collection of your unpaid fees, including attorneys’ fees.
You are also responsible for directly paying all charges for Services provided to you by others (such as emergency service providers).
7.3. How We Calculate Your Bill
Your bill is our notice to you of your fees, charges, and other important information. It reflects the fees and charges in effect for your service plan at the time they are incurred. We charge for usage after calls are made or received and charge access and other fees in advance. The length of a call will be rounded up to the next full minute. Charges start when you’re connected to an outgoing or incoming call and end after you hang up your phone, the other party on your call hangs up, or the call ends through disconnection. We only bill for calls that connect, including calls answered by machines. Standard usage charges apply to toll-free calls. There may be additional usage charges for credit card or third-party Operator-assisted calls, which may be required in certain areas. You will incur usage charges at a minimum rate of $0.35 per minute if you exceed your service plan minutes. Billing for usage and related charges may sometimes be delayed. Delayed usage charges may be applied in the month they appear on your bill against minutes included in your service plan for that month, rather than against the included minutes for the month when you actually made or received the call. This may result in charges higher than you’d expect in the later month.
7.4. Your Responsibility To Tell Us About Disputed Charges
If you object to any fees or charges for Services, you must tell us in writing within 60 days after the fee or charge is incurred, (unless the law does not allow a limit, or the law requires a longer period), or you are waiving the dispute. Disputed charges may be sent to Lively, c/o Customer Care at 2200 Faraday Ave., Ste. 100, Carlsbad, CA 92008.
7.5. Your Responsibility To Pay Surcharges, Taxes, Fees, and Assessments
We are required by law to charge you certain taxes, surcharges and assessments that will be included on your bill. Also, we are entitled to impose surcharges to cover the cost of our own required contributions to certain federal programs, as well as administrative fees to help defray other expenses we incur. You are responsible for paying all fees, taxes, surcharges, and assessments associated with your Lively products and services. These may change from time to time, and we may not be able to give you advance notice about how these changes may affect you. Any customer who is eligible for an exemption from any tax or fee must provide us with a verifiable, valid and properly executed tax-exempt certificate. Any tax exemption applies only after the date we receive the certificate from you and have verified your eligibility for the exemption.
7.6. Payments, Deposits, Credit Cards, And Checks
We reserve the right to require recurring credit card billing for certain products or services. We also reserve the right to require an advance deposit (or an increased deposit) from you based on your payment history and changes in your plan and/or the frequency of use of our services. We’ll pay simple interest on any deposit at the rate the law requires. Please retain your evidence of deposit. You agree that we can apply deposits, payments, or repayments in any order to any amounts you owe us on your account(s). You can’t use a deposit to pay any bill unless we agree. We will not honor limiting notations you make on or with your checks. We may charge you up to $25 for any returned check or denied credit card charges, depending on applicable law.
7.7. Recurring Auto Payments
If you have chosen recurring automatic payments, you have authorized Lively to charge the credit card or debit card on file for recurring monthly payments. Your monthly service payment will be charged automatically to this credit or debit card, which will be kept on file. To cancel recurring monthly payment, you can contact our Customer Service Department at 1-800-733-6632.
8. How to Cancel Your Services
8.1. Any Service Cancellation
You may cancel your Service at any time for any reason. All you have to do is call us at 1-800-733-6632 and tell us you want to cancel the Service.
8.2. Cancelling Your Entire Service
If you wish to cancel your entire Service before the end of a given month, you’ll be responsible for any account charges and overages through the date of your final bill. If you have purchased any Add-On Minutes, they are not refundable, and those minutes will expire after your final bill. You will receive a final bill that will detail all the charges and credits on your account.
If you cancel your entire Service during a billing cycle, the cancellation will be effective the last day of your billing cycle. Because Lively does not bill for partial months of Services, your monthly billing charges will not be prorated. Lively will not refund a partial monthly service charge. You will be responsible for the entire billing cycle.
8.3. Partially Cancelling Your Service
If you wish to only cancel a specific Service or feature but keep your phone service active, you may do so at any time for any reason. All you have to do is call us at 1-800-733-6632 and tell us you want to cancel the specific Service. If you wish to cancel a specific Service or feature before the end of a given month, you’ll be responsible for any account charges through the last day of your billing cycle. The cancellation will be effective immediately. Because Lively does not bill for partial months of Services, your monthly billing charges will not be prorated. Lively will not refund a partial monthly service charge. You will be responsible for the entire billing cycle.
9. Returns and Refunds
9.1. 30-Day Return Policy for Purchases Directly Through Lively
If for any reason, within 30 days from date of purchase, you are not completely satisfied with your Service, we will refund the activation fee (less a $10 activation restock fee), the first month’s service charge, the cost of the Device (if Device is returned), plus applicable taxes, if you have not exceeded any Usage Limitation (defined below).
The activation fee is non-refundable if you:
Ordered a new phone without paying the activation fee;
Exceeded any Usage Limitation (defined below); or
Activated two phones and are returning only one phone.
Shipping charges are not refundable. To cancel your account and obtain a refund:
Call our Customer Service at 1-800-733-6632.
You will receive a return authorization number, address, and instructions for return.
All equipment must be in “like new” condition, as determined by us, in its original box
with all components and materials to be eligible for a refund.
All returns are at the customer’s expense. We will not begin processing your refund until the Device is received by us. It can take up to 21 business days to process a refund. Refunds, if applicable, will be processed back to the party that paid in the same manner that payment was received.
9.2. Phone Usage Limitations
9.2.1. Minutes Limitations:
Usage Limitation with respect to minutes means 30 minutes or less of talk time.
If you have used more than 30 minutes of talk time within 30 days from the date of purchase, but did not exceed your plan minutes, then we will charge you the lesser of:
Your monthly minute plan service charge; or
$0.35 per minute.
If you have used more than 30 minutes of talk time within 30 days from the date of purchase, and exceeded your plan minutes, then we will retain your monthly service charge plus $0.35 per minute for each additional minute over your plan minutes.
9.2.2. Data Limitations:
Usage Limitation with respect to Data means 50MB or less of data.
If you have used more than 50MB of data within 30 days from the date of purchase, but did not exceed your data plan, then we will charge you your monthly service charge.
If you have used more than your data plan within 30 days from the date of purchase, then we will retain your monthly service charge, plus $0.10 per each MB used over your monthly data plan.
9.2.3. Text Limitations:
Usage Limitation with respect to texts means 50 or less texts or picture messages.
If you have used more than 50 texts or picture messages within 30 days from the date of purchase, but did not exceed your text plan, then we will charge you the lesser of:
Your monthly text plan service charge; or
$0.10 per text or picture message.
9.3. How to Return Devices Purchased Through a Retailer
If your device was purchased from a retail location, it must be returned to that location and is subject to that retailer’s return policy.
You will also need to call our Customer Service at 1-800-733-6632 to cancel your account and monthly service charge.
10. Our Ability to Amend or Cancel Your Services
10.1. Our Right to Change, Amend, Modify or Supplement Your Service
Unless otherwise prohibited by law, we may change, modify, or supplement any Device and/or Services provided to you, including, but not limited to, rates, fees, prices, charges or features. We will provide notice regarding material changes to your Device or Services.
If you choose to use your Device and/or Service after that point, you’re accepting the change, modification, amendment, or supplement. If you do not accept the changes, amendments, modifications, or supplements, you can cancel the Service, just by calling us at 1-800-733-6632.
10.2. Our Rights To Limit/End Service Or This Agreement
We may terminate this Agreement at any time without notice if we cease to provide Service in your area. WE CAN, WITHOUT NOTICE, LIMIT, SUSPEND OR END YOUR SERVICE OR ANY AGREEMENT WITH YOU FOR VIOLATING THIS AGREEMENT OR FOR ANY OTHER GOOD CAUSE, INCLUDING, BUT NOT LIMITED TO:
For conduct that we believe violates this Agreement;
If we see excessive or unusual patterns that we, in our discretion, think may be fraudulent or abusive;
If you behave in an abusive, derogatory, harassing, or similarly unreasonable manner with any of our representatives, employees, or agents, whether in person, over the phone, or in writing;
If you fail to make all required payments when due;
If you resell our Services either alone or as part of any other goods or service;
If we discover that you are underage;
If we discover that you have made any statement or provided any information to us that was untrue or inaccurate at the time you provided it to us;
If you interfere with our operations;
If you become insolvent or go bankrupt;
If you fail to keep any promise set forth in this Agreement or any other agreement with Lively;
If you modify your Device from the manufacturer’s specifications;
If you provide Lively with inaccurate or misleading credit information;
If you allow anyone to tamper with your Lively number; or
If you use your Device and/or Services in any way that: (a) is harmful to, interferes with, or negatively affects our network, other customers, or the network of any other provider, (b) is harmful to, interferes with, or negatively affects our Services or operations, (c) infringes on our intellectual property rights or the rights of others, (d) results in the publication of threatening, offensive or illegal material, or generates spam or other abusive messaging or calling, a security risk, or a violation of privacy.
We can also temporarily limit your service for any operational or governmental reason.
11. Performance Characteristics
Lively provides mobile broadband Internet access service using its underlying carriers’ networks, which are designed to be suitable for real-time applications including voice and video. Our goal is to provide the best Internet service to all of our customers on an equitable basis. However, actual network performance may vary depending on, terrain, weather, vegetation, distance from the cell site, and other factors beyond our control. Lively may advertise speeds and latency up to maximum speeds expected to be achieved through the device over our underlying carriers’ networks. Numerous factors—including capacity constraints, network availability, environmental conditions, your device, whether you are tethering from a separate device, or the network management practices of our underlying carriers—may impact the actual speed and latency that you experience at any given time.
12. Additional Terms For Text Messaging
The message rates that we charge depend on the Lively service plan that you selected. You will incur message charges when you send or receive a message, whether the message has been read or unread, viewed, or unviewed, solicited or unsolicited. Lively does not guarantee that messages will be received. We are not responsible for lost or misdirected messages.
13. Rights In Numbers And Electronic Addresses We Assign To You
You do not have any rights in the personal identification number, email address or identifier we assign to you. The same is true for your wireless phone numbers, except for your right to transfer it. In the event we need to change or reassign them, we’ll let you know. Please know that your wireless phone number and/or name may appear when you call someone. We rely on this feature to provide services you enjoy.
14. Transferring Or “Porting” Phone Numbers
You may be able to transfer or “port” your phone number from us to another carrier or service provider. We cannot guarantee that this transfer will be successful. If you request that another service provider transfer or “port” your phone number, we will treat this request in the same manner as a request to cancel your Lively service. When the transfer is complete you will be responsible for all the terms of cancellation described in this Agreement. We may not be able to provide you with some services, such as 9-1-1 location services, while we implement the transfer.
15. Availability Of Service
Wireless phones use radio transmissions to access service. Therefore, we can’t provide service when your wireless phone is out of range of our provider’s transmission site or if sufficient network capacity is not available. You may not receive service in certain places, particularly in remote areas, with no service at all. Weather, topography, buildings, your wireless phone, and other conditions that are outside of our control may also cause dropped calls or other problems with your service.
16. Suspending Service If Your Phone Is Lost Or Stolen
Please notify us immediately if someone steals your phone or you lose it. We’ll be happy to provide a courtesy suspension of Service for 30 days or until you choose to replace or recover your phone – whichever comes first – if you haven’t received a courtesy of this kind within the prior year. Until your Service is suspended, you will be responsible for all fees and charges, including those related to the use of Services, even if used by another party. During the suspension, your phone will not be able to make calls or send text messages. Suspending your Service, however, will not suspend your normal monthly billing. We may require a sworn statement about the loss or theft.
17. Lively Services
Additional terms and conditions may apply to your use of the Device and/or Services. If applicable, these terms and conditions are incorporated by reference and made a part of this Agreement. You agree to abide by such other terms and conditions, including where applicable representing that you are of sufficient legal age to use or participate in such service or product. If there is a conflict between this Agreement and the terms and conditions applicable to a specific service or product, the latter terms shall control with respect to your use of that portion of that service or product.
17.1. Lively™ Link
Lively Link is an optional service that allows you to authorize contacts to have access to information about your Lively Urgent Response enabled-Device and Service. The information authorized contacts may access includes your current location, your “zone” locations for the past 7 days, your Lively Urgent Response enabled Device’s power status, and up to 30 days of logged calls to Lively Urgent Response. Authorized contacts may access this information through the Lively Link smartphone or web app. You may add or remove authorized contacts at any time through the Lively Link web app at https://link.greatcall.com.
17.2. Lively Urgent Response
17.2.1. How Lively Urgent Response Works
Lively Urgent Response is only available in the United States. Lively Urgent Response IS NOT A SUBSTITUTE FOR 9-1-1, and in fact, if Lively Urgent Response conferences in 9-1-1 emergency services on your behalf, there could be a delay in reaching 9-1-1 emergency services. The Service will only work if your account is current on payment and if your Device is charged, turned on, has network access, and the Lively Urgent Response is enabled. Lively Urgent Response may not be available in remote or enclosed areas. You agree that once you enroll in Lively Urgent Response, we will be able to track your approximate location whenever your Device is turned on and that we can provide this information to third-party service providers and/or emergency contacts that you designate in case of an emergency or service incident. However, we cannot guarantee that we can track your exact location, and, in some cases, we may only be able to provide the information provided in your Personal Emergency Profile. We will only use your location information for providing Lively Urgent Response.
17.2.2. About the Software
Lively Urgent Response requires software on your Device that we may need or want to change from time to time. We may do this remotely, or through a third-party service provider without notifying you first. You do not own the device software or acquire any rights to use or modify the device software on your own. You acknowledge that, except as required by law, you shall acquire no proprietary interest in the number (MDN) or SIM (Subscriber Identity Module) assigned by Lively for its use. You acknowledge that any intellectual property or software in the SIM not provided by Lively or you is the property of the supplier of wireless services to Lively, and such supplier may change or update the software or other data in the SIM card or the software in the devices over the air and utilize any capacity in the SIM card for administrative, network, business and/or commercial purposes. Your Device may include copyrighted software stored in semiconductor memories or other media. Any copyrighted software contained in the device may not be modified, reverse-engineered, decompiled, analyzed, distributed, reproduced, or otherwise used in any manner without the express, written consent of the copyright owner, except as specifically required by mandatory applicable laws or any applicable third-party software license terms. The purchase of a Lively Device does not grant any license under any intellectual property rights of any software provider, except for the normal, non-exclusive, royalty-free license to use of the Device that arises by operation of law in the sale of the device. All other rights are expressly reserved.
17.2.3. Your Use of Lively Urgent Response
You promise not to use Lively Urgent Response for any fraudulent, unlawful, or abusive purpose, or in any way that interferes with our provision of services to our other customers. If you do any of these things, you agree you will be responsible for any amount anyone else claims from us, plus any expenses, resulting from your actions. You are solely responsible for maintaining the content and accuracy of your Personal Emergency Profile, which may be updated by logging into lively.com/myaccount or providing us with your updates by mail.
17.2.4. Your Interactions With Lively Urgent Response Agents
We may record and monitor conversations between you and our Agents, emergency service providers, the police, or other third-parties. Please note that our Agents may also remain on the line if they conference in a third-party to assist in completing a service request. Please understand that we are not required to release any audio or physical records that are created as part of your use of Lively Urgent Response without a subpoena (unless otherwise required by law). We will do our best to accommodate you if English is not your first language and you require translation services, but we cannot guarantee the availability or competence of a third-party translator.
17.2.5. Connection To Other Service Providers
Our Agents may link, conference or transfer you to other service providers such as the police, fire department, ambulance service, 9-1-1 emergency services or towing service. We’ll use reasonable efforts to contact appropriate service providers for help when you ask for it, but we can’t promise that any service providers will respond in a timely manner or at all. Furthermore, we can’t promise we will provide the best service provider or guarantee any level of service from such service provider. The laws in some places require an emergency situation to be confirmed before emergency service providers will provide service. We will not contact emergency service providers in these locations in response to your call if we cannot hear your request for assistance or otherwise confirm that an emergency exists. We will attempt to have an Agent contact you after you have completed a 9-1-1 call to make sure that you do not need additional assistance but cannot guarantee this service in all cases or for all devices.
17.2.6. Your Responsibility For Others Who Use Your Lively Urgent Response Service
You are solely responsible for any use of Lively Urgent Response services associated with your Device, even if you are not the one using it, and even if you later claim the use was not authorized. You are also solely responsible for the Services requested by you, or by anyone using the Services on your behalf. You agree that our Agents may share your information with any authorized person calling Lively Urgent Response, or any other Service, on your behalf.
17.3. Urgent Care
Urgent Care, brought to you in partnership with FONEMED®, is not a substitute for dialing 9-1-1 and should not be used in a case of emergency. If you are experiencing a medical emergency, you should seek appropriate emergency medical assistance or call 9-1-1- immediately. FONEMED’s registered nurses and doctors offer advice regarding health care decisions and may prescribe prescriptions and refills for common medications over the phone.
We are not a health care provider and do not provide health care services or medical advice. FONEMED has confirmed that all of its nurses and doctors have appropriate licenses as required under state law. Because we are not a health care provider, we are not equipped to validate or confirm the accuracy or completeness of any of the advice made available by FONEMED or to determine whether such advice is appropriate for you or your specific needs and we are neither qualified to evaluate, nor responsible for assuring, that these nurses and doctors have the necessary expertise to provide appropriate advice to you. We are not liable for any act or omission, including negligence, of FONEMED or any FONEMED employee, contractor or agent. Use of Lively Urgent Response does not create any kind of treatment or other patient relationship with doctors or nurses. You should always seek the advice of your physician or other qualified health care provider if you have any questions about medical treatment or a medical condition.
17.4. Amazon Alexa
Certain phones include access to Alexa. Alexa is only available when your phone is powered on, flipped open (for flip phone users) and the screen is lit. Visual cues on your phone will indicate when Amazon Alexa hears you, and if the volume on your phone is turned up, an audio tone will also sound.
We did not create software that enables Alexa. We cannot guarantee that Alexa will hear you correctly, will correctly translate what you said, or will operate the way you expect it should work. By enabling Alexa, you understand and agree that we are not responsible for inaccuracies in your communications and interactions with Alexa.
17.5. Lively Protection Plan
The Lively Protection Plan provides you the peace of mind should something go wrong with your Device that is not covered by the standard limited manufacturer’s warranty. Plan coverage includes: accidental damage from handling, battery replacement, normal wear and tear, mechanical failure, and accessories. To learn more about how to purchase the Lively Protection Plan, click here.
17.6. Lively™ Rides
18. Disclaimer Of Warranties
WE MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR PHONE. WE CAN’T PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DON’T AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. THIS DOESN’T DEPRIVE YOU OF ANY WARRANTY RIGHTS YOU MAY HAVE AGAINST ANYONE ELSE.
19. Manufacturer’s Limited Warranty
To view information regarding our Standard Limited Warranty for Lively Devices, click here .
You agree to indemnify, defend and hold us harmless from any claims arising out of use of the phone or service, breach of this Agreement or violation of any laws or regulations or the rights of any third party by you or any person on your account or that you allow to use your phone or service.
21. Limitations Of Liability
We are each waiving important rights. Unless forbidden by law in a particular instance, we each agree as follows: (1) we are not liable for the actions or inactions of any service provider we contact for you, or for our inability to contact any service provider in any particular situation; (2) we, and our suppliers, are not liable to you for any injuries to persons or property arising out of or relating to your use of the Services; (3) OUR MAXIMUM LIABILITY TO YOU UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) IS LIMITED TO AN AMOUNT EQUAL TO THE PORTION OF THE CHARGES TO YOU FOR THE SERVICES RELATING TO THE PERIOD OF SERVICES DURING WHICH SUCH DAMAGES OCCUR; (4) UNLESS OTHERWISE PROVIDED IN THESE TERMS, YOUR MAXIMUM LIABILITY TO US UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) IS LIMITED TO ANY CHARGES DUE AND OWING BY YOU TO US, (5) NEITHER YOU NOR WE CAN RECOVER PUNITIVE DAMAGES, TREBLE, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, OR ATTORNEY’S FEES (YOU AND WE AGREE NOT TO MAKE, AND TO WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, COMPENSATORY DAMAGES AS LIMITED IN THIS AGREEMENT), (6) no one is liable to you for dropped calls or interrupted service, or for problems caused by or contributed to by you, by any third-party, by buildings, hills, tunnels, network congestion, weather, or any other things we do not control, (7) notwithstanding anything else in these Terms, you agree to excuse any non-performance by us or any service provider caused in whole or in part by an act or omission of a third party, or by any equipment failure, act of God, natural disaster, strike, equipment or facility shortage, or other causes beyond the control of us or our service providers, (8) you agree that neither we nor any service provider who sends you data or information through the Services is liable for any errors, defects, problems, or mistakes in that data or information, and (9) you agree that the limitations of liability and indemnities in these Terms will survive even after the Terms have ended. You also agree we are not liable for missed VoiceMail(s), or deletions of VoiceMail(s) from your VoiceMail box (if you have one), even if you’ve saved them.
These limitations of liability apply not only to you, but to anyone using the Services on your behalf, to anyone making a claim on your behalf, and to any claims made by your family, employees, customers, or others arising out of or relating to your Device. Some states don’t allow an exclusion or limitation of incidental or consequential damages or certain other damages, so some of the limitations above may not apply in some situations.
The supplier of wireless services to we shall have no liability whatsoever for your losses, claims or damages for any cause whatsoever, including but not limited to any failure or disruption of wireless services provided hereunder, regardless of the form of action, whether in contract, tort or otherwise. You shall not be deemed a third-party beneficiary of any contract between Lively and our supplier of wireless services.
The content or services of third-party providers may be suspended or discontinued at any time, and the third-party providers do not guarantee that any content or service will remain available for any period of time. Such content and services may utilize networks and transmission equipment outside the control of Lively or the third-party providers and Lively and the third party providers disclaim liability for any interruption or suspension of such content or service provided through the Device.
UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, OUR SUPPLIERS OR ANY THIRD PARTY PROVIDERS BE LIABLE, WHETHER UNDER CONTRACT OR TORT OR UNDER ANY OTHER BASIS, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM, OR IN CONNECTION WITH, THE INFORMATION CONTAINED IN, OR AS A RESULT OF THE USE OF ANY CONTENT OR SERVICE BY YOU OR ANY OTHER, EVEN IF WE, OUR AFFILIATES, OUR SUPPLIERS OR SUCH THIRD PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OF LEGAL RIGHTS OF THE CONSUMER, IT IS POSSIBLE THAT THESE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY IN SUCH JURISDICTIONS.
22. Governing Law
To the fullest extent permitted by law, and except as explicitly provided otherwise, this agreement and any disputes arising out of or relating to it will be governed by the laws of the state of California, in accordance with the Federal Arbitration Act, if applicable, without regard to its conflict of law principles, and by any applicable tariffs, wherever filed.
23. Our Relationship With You
This agreement does not create any fiduciary relationships between you and us. It doesn’t create any relationship of principal and agent, partnership, or employer and employee, either.
24. Modification of this Agreement
This Agreement may be updated, modified, or changed from time to time by us without notice to you. Any changes, amendments, modifications, or supplements to this Agreement will be posted on the Lively website. The date of the latest version of the Agreement will be indicated at the bottom of this page. Be sure to check the Lively website from time to time to make sure that you are aware of the most recent Agreement, which will govern your use of our products and services.
Your continued use of the Services constitutes your agreement to any changes, modification, or updates.
25. We Can Assign This Agreement
We can assign this agreement or your obligations to pay under it in whole or in part to anyone we choose. You cannot assign this agreement or your obligations to anyone else without our prior written consent.
26. DISPUTE RESOLUTION BY BINDING ARBITRATION
ANY DISPUTE INVOLVING YOU AND BEST BUY OR ANY OF ITS AGENTS MUST BE RESOLVED THROUGH INDIVIDUAL ARBITRATION, EXCEPT AS FOLLOWS:
ANY DISPUTE FALLING WITHIN THE JURISDICTIONAL SCOPE AND AMOUNT OF AN APPROPRIATE SMALL CLAIMS COURT MUST BE BROUGHT IN SMALL CLAIMS COURT ON AN INDIVIDUAL BASIS; AND
ANY DISPUTE TO SEEK TO ENJOIN INFRINGEMENT OR OTHER MISUSE OF INTELLECTUAL PROPERTY RIGHTS MAY BE BROUGHT IN ANY COURT OF COMPETENT JURISDICTION.
“Dispute” shall be interpreted broadly and cover any claim or controversy arising out of or relating in any way whatsoever to your relationship or interaction with Best Buy, its agents, and its present and future subsidiaries, affiliates, and designees – including, but not limited to, GreatCall, Lively, Geek Squad, Magnolia, and Pacific Sales – whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory. Examples of relationships or interactions giving rise to a covered claim include, without limitation: (1) your use of Best Buy’s websites; (2) your membership in any Best Buy loyalty or rewards program (e.g., My Best Buy®) or subscription-based services (e.g., Total Tech Support); (3) your receipt of delivery, repair or installation services or consultation services provided by Best Buy or its agents; (4) any communications between you and Best Buy; (5) application for financing; and/or (6) your purchase of products or services offered, sold, or distributed by Best Buy including, but not limited to, any Dispute arising from the advertising of, or the sales practices related to, such products and services. If you are a My Best Buy® member, Dispute shall also include all disputes that arose before your enrollment in, and after the cancellation or termination of, the My Best Buy® program, including any claims that are the subject of a purported class action litigation.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING YOUR RIGHT TO MAINTAIN OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION OR ADMINISTRATIVE PROCEEDING, TO SETTLE DISPUTES. THE RULES IN ARBITRATION ARE DIFFERENT. THERE IS NO JUDGE OR JURY, LESS DISCOVERY, AND LIMITED APPELLATE REVIEW. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD.
Either Party may initiate an arbitration proceeding by sending a demand to the American Arbitration Association (AAA) that describes the basis for the claim. You may serve a copy of a demand on our registered agent CT Corporation System, Inc., 100 South Fifth Street, Suite 1075, Minneapolis, MN 55402. The arbitration will be governed by the AAA’s Consumer Arbitration Rules or Commercial Arbitration Rules (collectively, the “AAA Rules”), as appropriate, and as modified by these Terms, and will be administered by the AAA. The AAA Rules and the form for filing an arbitration claim are available at www.adr.org. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules; however, we will reimburse those fees (but not any attorney’s fees) for claims totaling less than $10,000 except where (1) the claims fall within the jurisdictional scope and amount of an appropriate small claims court and, despite the requirement in this provision that such claims be brought in small claims court, you instead filed with AAA; or (2) the arbitrator determines your claims are frivolous. If the arbitrator finds that either the substance of your claim or the relief sought in your demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Best Buy for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed upon location.
YOU AND BEST BUY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. THIS MEANS THAT YOU MAY NOT PURPORT TO ACT ON BEHALF OF A CLASS OR ANY OTHER PERSON. 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 that party’s individual claim. The arbitrator may not award relief for or against anyone who is not a party to the arbitration proceeding. Further, unless both you and Best Buy agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If a court determines that public injunctive relief may not be waived and all appeals from that decision have been exhausted, then the parties agree that any claim for public injunctive relief shall be stayed pending arbitration of the remaining claims. If this specific paragraph is found to be unenforceable, then the entirety of this dispute resolution provision (except for the jury trial waiver) shall be null and void.
If for any reason a claim may proceed in court rather than in arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL, UNLESS SUCH WAIVER IS UNENFORCEABLE. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY.
This dispute resolution provision shall be governed by the Federal Arbitration Act. It shall survive any termination or cancellation of, or your participation in, any membership programs or subscription services. Any amendments to this dispute resolution provision shall not affect any then active or pending arbitration proceeding.
27. This Is The Entire Agreement
This Agreement, in additional to the policies and other terms referenced herein, is the entire agreement between you and us with respect to the Services and your device. It supersedes all other agreements or representations, oral or written, between us, past or present, and may not be amended except in a writing signed by us, unless otherwise stated herein. If any part of this Agreement is considered invalid, the rest of it will remain enforceable. No waiver of any part of this Agreement or of any breach of it, in any one instance will require us to waive any other instance or breach. In some circumstances we might decide to provide you service voluntarily even if you would not otherwise qualify. This will not be a waiver or require us to do so again.
28. Effective Date: December 15, 2021
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