Lively Wearable Terms and Conditions
Welcome to the Lively™ family! Thank you for using our devices and services. These terms and conditions (“Terms”) apply to your use of the Lively Wearable device (“Lively Wearable” or “Device”), Lively Wearable service including Lively app, Lively Link™, Fall Detection, Activity Tracker, Daily Challenges, and Urgent Response Service (collectively referred to herein as “Services” and individually referred to herein as “Service”). References to “Lively”, “our”, “we”, or “us” refers to Best Buy Health, Inc. Please read these Terms carefully.
THESE TERMS INCLUDE A BINDING ARBITRATION AGREEMENT, CLASS ACTION WAIVER, AND JURY TRIAL WAIVER THAT AFFECT YOUR RIGHTS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT. PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION BELOW.
Your Acceptance of the Terms This section outlines the requirements of your acceptance of these Terms.
Term Commitment You may cancel these Terms and close your Services at any time.
Your Use of Services These are the basic rules you must follow when using Lively products and services.
How Your Lively Wearable Works This section explains how the Lively Wearable works with your smartphone and the various features available with your Device.
Lively App License Grant This section explains your license rights when using the Lively app in connection with your Device.
Payment Terms This section explains your payment obligations, including taxes government fees, 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.
Canceling Your Lively Wearable Services This section explains how to cancel your Services.
Reactivating or Changing Your Lively Wearable Service This section explains how you may reactive or change 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.
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.
Our Right to Change, Amend, Modify or Supplement Your Lively Wearable Services This section explains our right to amend, modify, or supplement your Services and if and when we will notify of such changes.
Our Right to Limit, Suspend, or Terminate Your Lively Wearable Services This section explains our right to limit or end your services or this Agreement.
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.
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 these Terms We may modify these Terms without prior notice to you. Any modification to these Terms will be effective on the date provided below.
We Can Assign These Terms We may assign these Terms at any time without notice to you.
Dispute Resolution by Binding Individual 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 these Terms.
Effective Date This provides the date for when these Terms went into effect.
1. Your Acceptance of the Terms
By accepting, you are agreeing to be bound by its Terms. You accept these Terms 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 Terms, 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 the Terms. If you are ordering for a friend or a member of your family, you are bound by the terms of the Terms, unless and until, your friend or family member has agreed to the terms of the Terms. If you’re ordering for a company, you’re representing that you are authorized to bind the company to the terms of the Terms, where the context “you” means the company.
If you would like to learn more about your rights under individual state laws, please review our States Privacy Rights page. Click States Privacy Rights page to review.
3. Term Commitment
These Terms begin when you take one of the actions described above in Section 1 and continue through the date your Service is terminated by you or us pursuant to these Terms. There is no requirement that you maintain Service for any period of time.
4. Your Use Of The 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 these Terms, not to use the Services for illegal purposes or in manner inconsistent with these Terms, 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 Lively Wearable, Services and/or materials we provide to you other than the limited right to utilize the Services in accordance with these Terms.
5. How Your Lively Wearable Works
Your Lively Wearable device requires a compatible smartphone and the Lively app. For Services to function properly, your account must be current on payment and these conditions must be met:
Be running Android 7.0 / iPhone iOS 11 and above
be powered on;
have an adequate wireless signal;
be in audible range
have location services enabled;
have airplane mode off;
have Bluetooth on; and
be running the Lively app.
Your Lively Wearable must:
be paired and connected to your compatible smartphone via Bluetooth; and
have adequate battery level (your Lively Wearable device is powered by a CR 2450 battery that will last up to four months and is easily replaceable).
Lively Wearable, Activity Tracker, and Daily Challenges are not medical devices or medical services. Activity Tracker and Daily Challenges are intended for fitness purposes only and are not intended to diagnose, cure, mitigate, treat or prevent diseases. Consult your physician before you begin or modify any exercise program.
We provide Activity Tracker and Daily Challenges as services. While the information contained within the applications is periodically updated, no guarantee is given that the information provided is correct, complete, or current. Any updates may be made without notice to you.
Some content within Daily Challenges is derived from or may lead to other destinations, including those operated and maintained by third-parties. We include this information and any links solely as a convenience to you, and the presence of such information or link does not imply responsibility for or an endorsement of the linked site, its operator, or its contents (exceptions may apply). Reproduction, distribution, republication, and/or retransmission of material contained within these services are prohibited.
6. Lively App License Grant
The Lively app software is licensed, not sold, to you by Lively and it is for use only under the terms of this License. The Lively app is intended for your personal, non-commercial use and may not be rented, leased, sold, or redistributed by you. Lively retains ownership of the Lively app software and reserve all rights not expressly granted to you. In its sole discretion, Lively may make available app updates and the terms of this License shall govern such updates unless such update is accompanied by a separate license, in which case the terms of that license will govern.
Subject to the Terms herein, you are granted a limited non-exclusive license to use the Lively app software on a single device. You may not, and you agree not to enable others to, reverse engineer, disassemble, attempt to derive the source code of, create derivative works of, or modify the software or any services provided by the software.
You acknowledge and agree that certain Lively app features transmit data through your Bluetooth-paired and connected smartphone and could impact charges to your wireless data plan. You agree that all such charges are your responsibility. You can view and control data use of apps, including the Lively app, in your smartphone settings.
7. Payment Terms
7.1 Your Payment Responsibilities
You are responsible to pay for the Services on time and in full (unless the law provides otherwise). We invoice for Services one month in advance. Invoices are due 18 days from the bill cycle date. A late payment in defined as anything received after that date. 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).
7.2 Recurring Auto Payments
By activating our Services, 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.
7.3 Your Responsibility To Tell Us Right Away 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.
7.4 Your Responsibility To Pay For Taxes And Government Fees
You promise to pay all federal, state and local taxes, and other fees and service charges that we are required by law to collect and remit to the government on the Services we provide to you. These charges may change from time to time without advance notice.
8. Canceling Your Lively Wearable Services
You can cancel your Service at any time. All you have to do is call us at 1-800-733-6632 and tell us you want to cancel the Service. We will cancel the service immediately and you will not be charged for any future months. If you purchase a year of the Services in advance and stop your service in the middle of the annual period, we will refund you the remaining months of the Service. If you cancel your Services during a billing cycle, the cancellation will be effective immediate. However, because we do 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. Reactivating Or Changing Your Lively Wearable Service
We will only accept requests from you (or from someone we believe is your authorized agent) to activate, cancel, or reactivate your Services. If we do any of these things, you agree to pay any charges associated with these requests. We will attempt to retrieve your previously stored Personal Emergency Profile if you reactivate your Services, but we cannot guarantee our ability to retrieve it.
10. Returns and Refunds
10.1 30-Day Return Policy for Purchases Directly Through Lively
If you have purchased your Lively Wearable directly from Lively and for any reason you are not completely satisfied with your Service or Lively Wearable, you can return your Lively Wearable within 30 days of purchase and we will refund the first month’s service charge and the cost of the Lively Wearable (if Lively Wearable if returned), plus applicable taxes.
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 Lively, in its original box with all components and materials to be eligible for a refund.
Shipping charges are not refundable. 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.
10.2 Returning Devices Purchased Through a Retailer
If your Lively Wearable 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.
11. Lively Services
11.1 Lively Urgent Response
11.1.1 How Lively Wearable Works With Urgent Response
In the event help is needed, pushing the button on your Lively Wearable device will alert Lively Urgent Response through your connected smartphone using the Lively app. Calls with Lively Urgent Response are made through your compatible smartphone using the Lively app and use wireless plan minutes like a normal cellular call. For Android and iOS applications, your connected smartphone will automatically place an outgoing call to Lively Urgent Response. In some cases, Apple iOS, Lively Urgent Response will place an incoming call to your connected smartphone that you must answer to connect.
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 Lively Urgent Response is enabled. Lively Urgent Response may not be available in remote or enclosed areas.
You agree that once you enroll in a Lively Health and Safety plan, we will be able to track your approximate location whenever your Lively Wearable is paired and connected by Bluetooth to your compatible, powered-on smartphone. You agree that we can provide this information to third-party service providers and authorized Lively Link contacts 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.
11.1.2 Your Use Of 5Star 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 in whole or in part from your actions. You are solely responsible for maintaining the content and accuracy of your Personal Emergency Profile in the Lively app. For more information regarding Lively services, please visit our support page.
11.1.3 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 Lively Urgent Response is not required to release any audio or physical records that are created as part of the 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.
11.1.4 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.
11.1.5 Your Responsibility For Others Who Use Your Lively Urgent Response Service
You are solely responsible for any use of Lively Urgent Response associated with your Lively Wearable, 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 service through Lively Urgent Response on your behalf. You agree that our agent may share your information with any authorized person calling Lively Urgent Response on your behalf.
11.2 Optional Services
Additional terms and conditions may apply to your use of Optional 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. Click Support Page for more information on Lively Services.
11.2.1 Lively Link
Lively Link allows you to authorize contacts to have access to information about your Lively Wearable services. The information authorized contacts may access includes the battery status of your paired and connected Lively Wearable, up to 30 days of step counts and Daily Challenge and points history, as well as up to 30 days of logged falls or calls to Lively Urgent Response, including location information at the time of the Lively Urgent Response event. 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 your Lively app. Lively Link is available with the purchase of the Preferred or Ultimate Health and Safety plan.
11.2.2. Fall Detection
Fall Detection works only when wearing Lively Wearable around the neck in the specially designed and included lanyard. Fall Detection works in conjunction with your Lively Urgent Response. Using patented algorithms, the service detects falls and, through Lively app on your Bluetooth-connected smartphone, alerts Lively Urgent Response that you need help. You will have an opportunity to cancel the call to Lively Urgent Response if you do not need assistance.
We cannot guarantee that the Service will always accurately determine a fall. You should always push their button when you need help, if possible. Button signal range may vary due to device sensitivity, battery strength, and other environmental factors. Fall Detection is available with the purchase of the Ultimate Health and Safety plan.
11.2.3. Nurse On-Call
Nurse On-Call 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. The registered nurses and contracted physicians offer advice regarding health care decisions and physicians may prescribe prescriptions and refills for common medications over the phone. Physicians do not prescribe DEA controlled substances, non-therapeutic drugs, and certain drugs which may be harmful because potential for abuse. Before you speak with a physician you will be asked questions according to standardized protocol. Escalation to a physician is in the nurses’ sole discretion. Physician consults are subject to availability and may require appointments or a callback. In the event that physician services are not available, the nurse may suggest that you contact your primary care physician or visit your local Urgent Care. Thenurses and contracted physicians reserve the right to deny care for potential misuse of services.
Lively is not a healthcare provider. Because Lively is not a healthcare provider, we are not equipped to validate or confirm the accuracy or completeness of any of the advice made available by contracted physicians 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 acts or omissions, including negligence, of the contracted physicians. Use of Nurse On-Call does not create any kind of treatment or other patient relationship with nurses or physicians. 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.
11.2.4. Care Advocate
Care Advocate brought to you by Lively allows our customer to work with a licensed social worker to develop a Personal Care Plan. Customer will first participate in a screening which will help identify possible areas of opportunity where the Care Advocate can offer assistance. Then together with the Care Advocate, the customer will determine their personal objective and wellness goals, as well as next steps. Care Advocates can advise on areas of wellness, health, personal care, and technology. Care Advocates cannot provide legal, financial, or medical advice. For certain areas of expertise, your Care Advocate may connect you with professionals in specialized practices that can address your questions and concerns. Lively utilizes third-party resources to connect customers with such professionals. Lively is not responsible for any acts or omissions, including negligence, by these third-party partners or the professionals or services recommended by them.
11.2.5 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. Click Lively Protection Plan to learn more.
12. Our Right To Change, Amend, Modify or Supplement Your Lively Wearable 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.
13. Our Right To Limit, Suspend, Or Terminate Your Lively Wearable Services
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
We can also temporarily limit your service for any operational or governmental reason.
14. Disclaimer of Warranty
While we strive to ensure that our Services are provided without interruption and are accurate and reliable, we, and our suppliers, make no representation or warranty, either expressly or tacitly, for the accuracy, reliability, completeness, correctness or otherwise with respect to the Services and we assume no liability or responsibility of any kind for omissions or errors in the Services. Use of our Services is at your own risk. We assume no liability for or relating to the delay, failure, interruption or corruption of any voice, call quality, or data transmitted on a device while using Lively Wearable.
TO THE FULLEST EXTENT PERMITTED BY LAW, WE, OUR SUPPLIERS, AND OUR THIRD-PARTY CONTENT AND SERVICE PROVIDERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR THIRD-PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE, AND FREEDOM FROM COMPUTER VIRUS. SPECIFICALLY, WE, OUR AFFILIATES, OUR SUPPLIERS, AND OUR THIRD-PARTY CONTENT AND SERVICE PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS INCLUDING ERRORS OR OMISSIONS, CURRENTNESS OR TIMELINESS OF CONTENT, SOFTWARE, TEXT, GRAPHICS, LINKS, OR COMMUNICATIONS PROVIDED ON OR THROUGH THE USE OF THE SERVICES.
15. 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 your Lively Wearable; (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 THESE TERMS), (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.
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 Lively Wearable. 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.
16. Governing Law
To the fullest extent permitted by law, and except as explicitly provided otherwise, These Terms 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.
17. Our Relationship With You
These Terms 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.
18. Modification of Terms
These Terms may be updated, modified, or changed from time to time by Lively without notice to you. Any changes, amendments, modifications, or supplements to these Terms will be posted on the Lively website. The date of the latest version of the Terms 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 Terms, 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.
19. We Can Assign These Terms
We can assign These Terms or your obligations to pay under it in whole or in part to anyone we choose. You cannot assign These Terms or your obligations to anyone else without our prior written consent.
20. DISPUTE RESOLUTION BY BINDING INDIVIDUAL ARBITRATION (THIS SECTION DOES NOT APPLY TO AARP MEMBERS)
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., Best Buy Totaltech™); (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.
Before either Party may initiate an arbitration proceeding, you and Best Buy agree to engage in a good faith effort to resolve the Dispute informally for 60 days, unless that time is extended by agreement. If you intend to initiate an arbitration proceeding, you must first send a fully completed notice of your Dispute (the “Notice”) to Best Buy. The Notice must include your name and contact information (address, telephone number, and email address) and information sufficient to enable Best Buy to identify any transaction at issue. The Notice must also include a detailed description of (1) your Dispute; (2) the specific facts supporting your claim(s); (3) the nature and basis of the damages you claim to have suffered; and (4) a calculation and explanation of the relief sought. Your Notice shall be personally signed by you and sent to Best Buy at CT Corporation System, Inc., 1010 Dale Street North, St. Paul, MN 55117-5603 or by email at Arbitration@BestBuy.com. If Best Buy intends to initiate an arbitration proceeding, it will send a Notice to you at the contact information we have on file. If requested by Best Buy as part of this mandatory informal dispute resolution process, you agree to personally participate (along with your counsel, if you are represented) in a telephone conference to discuss the potential resolution of the Dispute between you and Best Buy. If the Dispute is not resolved within 60 days after receipt of the Notice (or the longer period agreed to by the Parties), you or Best Buy may proceed with individual arbitration (this informal process is a condition precedent to doing so.). If the sufficiency of a Notice or compliance with this mandatory informal dispute resolution process is at issue, it may be decided by a court at either Party’s election, and any formal dispute resolution proceeding shall be stayed pending resolution of the issue. A court shall have the authority to enforce this condition precedent, which includes the power to enjoin the filing or prosecution of a demand for arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the Parties engage in this informal process.
If the Parties are not able to resolve the Dispute through the mandatory informal dispute resolution process referenced above, either Party may initiate an arbitration proceeding by sending a demand to the American Arbitration Association (AAA) that describes the nature and basis for the claim and includes all of the information required in the Notice. The Party initiating arbitration must include as part of the demand a personally signed certification of compliance with the informal dispute resolution process. You may serve a copy of a demand on our registered agent CT Corporation System, Inc., 1010 Dale Street North, St. Paul, MN 55117-5603. The arbitration will be governed by the AAA’s applicable 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. If the AAA is unavailable or unwilling to administer the arbitration consistent with this Dispute Resolution section, another arbitration provider shall be selected by the Parties that will administer the arbitration consistent with it. If the Parties cannot agree on a provider, one shall be selected by a court that will administer the arbitration consistent with this Dispute Resolution section.
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s Rules; however, Best Buy will consider reimbursing the consumer portion of the AAA fees upon a showing of financial hardship.
The Parties shall be responsible for their own attorney’s fees and costs in arbitration, unless they are authorized by law or the arbitrator determines that a claim or proceeding was frivolous or brought for an improper purpose or in bad faith (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitrator shall apply the provisions of Federal Rule of Civil Procedure 68 after entry of the award.
You may choose to have the arbitration conducted by telephone, virtually, based on written submissions, or at an in person hearing in the county where you live or at another mutually agreed upon location. Best Buy reserves the right to request a hearing from the arbitrator. You agree to personally appear at any in person hearing (along with your counsel if you are represented).
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, PRIVATE ATTORNEY GENERAL, 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 a claim for 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.
This paragraph sets forth additional procedures that apply to mass arbitrations. If twenty-five (25) or more similar claims are asserted against Best Buy by the same or coordinated counsel or are otherwise coordinated, you understand and agree that these additional procedures apply and that the resolution of your Dispute might be delayed. Counsel for the claimants and counsel for Best Buy shall each select fifteen cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. Each of these thirty (30) cases shall be assigned to a different arbitrator. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of this bellwether process. If the Parties are unable to resolve the remaining cases after the conclusion of the initial thirty (30) proceedings after conferring in good faith, each side shall select another fifteen (15) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. Each of these thirty (30) cases shall be assigned to a different arbitrator. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the Parties agree otherwise. Identical sets of arbitrators shall not be assigned to sets of bellwether proceedings. This staged process shall continue with thirty (30) cases in each set of bellwether proceedings, consistent with the parameters identified above, including that the remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed, until all the claims included in these coordinated filings, including your case, are adjudicated, settled, or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to these additional procedures that apply to mass arbitrations from the time of the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. You and Best Buy agree to engage in this process in good faith. A court shall have the authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Best Buy.
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.
21. This Is The Entire Agreement
These Terms, in additional to the policies and other terms referenced herein, are the entire agreement between you and us with respect to your Lively Wearable device and Services. The Terms supersede 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 these Terms is considered invalid, the rest of the Terms will remain enforceable. No waiver of any part of these Terms or of any breach of them, 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..
22. Effective Date: December 13, 2022.
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