Welcome to the Lively Health mobile App provided by Joe & Emmy Liu Foundation, a private not-for-profit foundation (collectively, “Company”, “we”, “our”, “us”) and thank you for choosing our products (“Products”) and services (“Services”). By becoming a member or using our Products and Services, you are accepting and agreeing to these terms and conditions (“Terms”) and additional terms we may post at our website or provide with our Products from time to time. If there is any inconsistence between the terms at different places, these Terms herein control. Please read them carefully. You represent and warrant that you have rights, authority and capacity to accept and agree to these Terms. We reserve the right, at our sole discretion, to modify the Terms at any time, so please review the Terms each time prior to making a new purchase from our Store. You shall be responsible for reviewing and becoming familiar with any such modifications. If you do not agree with any of these Terms, you should not become a member of the Products and the Services and must cease to use our Products and Services including your account, our software and our application from your mobile device or computer immediately. Your use of the Products or the Services following such modification constitutes your acceptance of the Terms as modified.
Subject to the Terms, our Services may include mobile-based Lively Health service, use of the user account, and the mobile and website application. Details of the Services are described on our website. The Services are for your own use, and not for the use or benefit of any third party. We may change, suspend, or discontinue the Services at any time, including the availability of any feature, database, connectivity, or content associated therewith. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. You are consenting to automatic software update of the Service. You may only use the Services and Products in a manner that complies with all laws that apply to you. We can’t and won’t be responsible for your use of the Services or the Products in a way that breaks the law. You are solely responsible for complying with all applicable laws and regulations of the city, the county, the state and the country for which the Products are installed.
To use the Services, you must register a user account and provide information about yourself as prompted by the registration form. You represent and warrant that:
You can at any time choose to cancel your account at your convenience.
You are responsible for your own health. Joe & Emmy Liu Foundation is not a medical organization, and we will not provide you with any medical advice or diagnosis. The purpose of the Services is solely to help our users record certain lifestyle habits and collect useful information on healthy life extension. Information made available through the Services and by our partners and affiliates shall solely be used for recreational and educational purposes. Always consult with your doctor before starting a diet or fitness program or if you experience any pain or discomfort. Lively Health cannot guarantee any health, weight and/or fitness results or improvements. Our Services are only intended for healthy individuals, and please do not use our Services if you suffer from, or might suffer from, any medical condition that may be impaired by diet or exercise. Lively Health cannot guarantee that the nutritional information provided in our database is accurate, reliant, or complete. Lively Health is not responsible for any personal injury or any other damages that may have been the result, direct or indirect, of any use or misuse of the Services.
All rights in and to the Services, including any trademarks, service marks, trade names and copyrighted content (collectively “Intellectual Property”) presented within the Service are the property of the Company and/or third parties. You agree not to use Intellectual Property for any other purposes except for your use of the Service unless required otherwise by applicable mandatory law. By submitting user information to Lively Health, you warrant and represent that you hold the copyright, trademark and/or other intellectual property rights to your content. You agree to grant Lively Health a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use user information to the extent necessary for Lively Health to operate and maintain the Service. This license shall remain valid until the respective user information is deleted from the Service by you or by Lively Health in accordance with these Terms.
Our Products and Services cannot eliminate occurrences of events including but not limited to poor lifestyle choices and medical issues. We are not liable for any risk that you, your property, any person, or property of others, may be subject to damage, injury or loss if such an event occurs, and we are not liable for any such damage, injury or loss. The allocation of such risk remains with you and not with us. You will be solely responsible for any and all loss, liability, or damage, including to your body, computer, mobile device, and all other items and pets in your premises, resulting from your use of the Products and the Services. In accepting the Terms, you release, waive, discharge and promise not to sue or bring any claims of any type against us, and our agents, employees, contractors, subsidiaries, dealers, affiliates, parents or partners for any damage, injury or loss relating or alleged to relate in any way to the Products or the Services provided by us. To the maximum extent permitted by applicable law, IN NO EVENT WILL (1) WE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY DAMAGES FOR LOST DATA OR LOST PROFITS, ARISING FROM OR RELATING TO THE PRODUCTS OR THE SERVICES, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND (2) OUR TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATED TO THE PRODUCTS OR THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY YOU TO US OR OUR AUTHORIZED PARTNER FOR THE PRODUCTS AND THE SERVICES AT ISSUE IN THE PAST 6 MONTHS PRIOR TO THE CLAIM, THREATEN CLAIM OR ISSUE IS BROUGHT OR MADE BY YOU OR YOUR REPRESENTATIVES. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. WE FURTHER DISCLAIM ALL LIABILITY OF ANY KIND OF OUR VENDORS OR LICENSORS.
THIS SECTION 5 APPLIES NO MATTER HOW THE LOSS, DAMAGE, INJURY OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO THE PERFORMANCE OR NONPERFORMANCE BY US OF OUR OBLIGATIONS UNDER THESE TERMS OR FROM NEGLIGENCE (ACTIVE OR OTHERWISE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF US, OUR AGENTS OR OUR EMPLOYEES.
If a dispute arises between you and us, we will try our best to address your concerns. You agree that you will first notify us about any dispute you have with us regarding the Terms and/or the Products and/or the Services.
(1) Limited Statute of Limitation. YOU MUST CONTACT US WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT, INCIDENT, OR FACTS RESULTING IN LOSS, INJURY OR DAMAGE OR GIVING RISE TO A DISPUTE, OTHERWISE YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM OR TO BRING ANY SUIT OR ACTION BASED UPON SUCH EVENT, INCIDENT, FACTS, OR DISPUTE.
You further agree, subject to section 7, to submit any claim, dispute, action, cause of action, issue, or request for relief to binding arbitration rather than by filing any lawsuit in any forum other than set forth in this section 7. Further, you agree that arbitration is final and binding and subject to only very limited review by a court. You also waive your right to any form of appeal, review or recourse to any court or other judicial authority, insofar as such waiver may be validly made. This arbitration clause shall survive termination of the Terms. This section is intended to be interpreted broadly to encompass all disputes or claims arising out of or relating to your use of our Services and/or Products. Any disputes or claims made by you or your representatives against us arising out of or relating to Terms and/or use of our Services and/or Products (whether based on contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you may take claims to small claims court if they qualify for hearing by such a court.
(3) Arbitration Procedures
You must first present any claim or dispute to us by contacting our customer support to allow us an opportunity to resolve the dispute. You may request arbitration if your claim or dispute cannot be resolved within 60 days. We may request arbitration against you if we can’t solve the issues with you within 60 days after we notify you of a dispute or claim in accordance with section 9. The arbitration of any dispute or claim shall be conducted in accordance with the then current and applicable rules of the American Arbitration Association as modified by these Terms. The place of any arbitration will be San Francisco, California, United States, and will be conducted in the English language. You and we agree that these Terms evidence a transaction in interstate commerce and this arbitration provision will be interpreted and enforced in accordance with the U.S. Federal Arbitration Act and federal arbitration laws. Claims will be heard by a single arbitrator. An arbitrator may not award relief in excess of or contrary to what these Terms provide, order consolidation or arbitration on a class wide or representative basis, or award punitive damages or any other damages aside from the prevailing party’s actual damages or order injunctive or declaratory relief, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content or results of any arbitration, except as may be required by law or for purposes of enforcement or appeal of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.
There shall be no right or authority for any claims subject to this section to be arbitrated on a class action or consolidated basis or brought in a purported representative capacity on behalf of the general public including but not limited to as a private attorney general.
(4) Costs of Arbitration
All administrative fees and expenses of arbitration will be divided equally between us and you. Each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration hearing.
(5) Exception of Confidentiality and Intellectual Property Rights. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect our confidential information and intellectual property rights or to prevent loss of data or damage to our servers in any court of competent jurisdiction.
The Terms will be governed by and interpreted in accordance with the laws of the State of California, United States, without giving effect to any choice-of-law rules that may require the application of the laws of another jurisdiction. You agree that the exclusive jurisdiction (personal and, as allowed, subject matter) and venue for any action relating to the Terms shall be a federal or state court in Alameda County, California, and you consent to such jurisdiction and venue, unless such claim and dispute is required to be arbitrated as set forth in section 7.
(1) Waiver. Your waiver stated under these Terms includes the express waiver under CALIFORNIA CIVIL CODE SECTION 1542 WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU HEREBY WAIVE ANY SIMILAR PROVISIONS IN ANY OTHER JURISDICTIONS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder.
(2) Transfer. These Terms are not assignable, transferable or sublicensable by you except with our prior written consent or expressly agreed under these Terms. We may transfer, assign or delegate the Terms and associated rights and obligations without your consent.
(3) Electronic Communications. You agree that all terms and conditions, agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. When you order in the Store, we collect and store your email address. From that point forward, your email address is used to send you information about our Products and Services unless you opt-out of such emails. We are not responsible for any automatic filtering you or your network provider may apply to email notifications. We may also provide notification to you by posting such notice at our website.
A copy of the Terms produced from electronic format is legally equivalent to the original for any and all purposes, including litigation.
(4) Severability. If any section of these Terms is found to be unenforceable or invalid, that section shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable.
(5) Entire Agreement. Both parties agree these Terms contain the entire understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.
(6) Headings. Headings for each section have been included above for convenience, but such headings do not have any legal meaning.