Effective Date: [July 17, 2020]
Welcome to Lively, an online platform owned and operated by LiveLessonMasters, Inc (“we,” “our,” or “Lively”). These Terms of Service (the “Terms”) describe your rights and responsibilities in connection with your use of the Lively Platform.
We make the Lively Platform services available to Fans and Creators (“you,” “your,” or “User”) subject to your agreement to these Terms, and any supplemental terms that we present to you when you create an account specific to your role in the Lively Platform (i.e., Fan or Creator) (a “Supplement”). You will be given an opportunity to review the applicable Supplement prior to creating an Lively Platform Account for the features you wish to access as a Fan or Creator. These Terms and the applicable Supplement(s) (including any documents or policies referenced in these Terms and Supplements) are collectively referred to as the “Agreement.” All terms not defined in this paragraph or your Supplement have the meanings set forth in Section 1 (Definitions) below. In this Agreement, the words “include” and “including” will not be construed as terms of limitation.
This Agreement is a legally binding contract between you and Lively. You must read and agree to these terms before using and accessing using the Services. If you do not agree, you may not use the Services. You may use the Services only if you can form a binding contract with Lively, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Services by anyone under thirteen (13) years of age is strictly prohibited and in violation of this Agreement. If you are under eighteen (18) years of age, you may use the Service only with involvement of a parent or legal guardian and their consent and agreement to this Agreement.
Our collection and use of personal information in connection with your access to and use of the Lively Platform and Services, whether or not you are a registered User, is described in our Privacy Notice.
“Account” means an account you must register with us on the Lively Platform prior to accessing the Services.
“Applicable Law” means all applicable local, state, federal, and international laws, rules, and regulations.
“Confidential Information” means information, in whatever form, not generally known or readily available to the public, and proprietary and confidential to the disclosing party, including, with respect to Lively, the Lively Data and all non-public features of the Lively Platform; with respect to Users, the User Metrics and Content. Confidential Information does not include any information that was previously known to the receiving party.
“Content” means all content delivered by Creator to Fan, or vice versa, as part of the Session, including charts, graphs, tables, and illustration.
“Creator” means an individual registered with the Lively Platform to participate in a directory as available to engage in Sessions with Fans.
“Creator Bio” means a public individual Creator profile publicly displayed within the Lively Platform that contains biographical information (including, for example, employment history), a headshot, media clips, and other information Creator chooses to add.
“Fan” means an individual registered with the Lively Platform to participate in contracting to receive Sessions from a Creator.
“Lively Data” means statistical and use data collected by Lively pertaining to User use of the Services.
“Lively Fee” means the portion of the Service Fee that Lively retains as consideration for providing the Services, whether in the form of a share of Session Fees or Transaction Fees or a fee for subscription access to the Lively Platform.
“Lively Platform” means the Lively online and/or mobile application and the Lively website on which these Terms are made available and related domains and successor sites, including those directed to users outside the United States of America, through which the Services are made available.
“Recording” means an authorized recording of a Session made by a Creator through use of the Lively Platform.
“Service Fee” means the fee that we charge a Fan for its access to and use of the Services; such fee is the sum of Session Fees, Transaction Fees, and the Lively Fee.
“Services” mean the services provided by Lively through the Lively Platform.
“Session” means the engagement between Creator and Fan entered into through the Lively Platform, including, but not limited to, one-on-one sessions and live performances or other similar events.
“Session Fees” means the portion of the Services Fee that is owed by Lively to a Creator as consideration for such Creator’s engagement in a Session with a Fan through the Lively Platform.
“Transaction Fees” means the portion of the Services Fee that is owed by Lively to a Creator as consideration for such Creator’s distribution of a Recording to a Fan through the Lively Platform.
“User,” “you, and “your” refer to an individual, business, organization or other legal entity who accesses or uses the Services as a Creator or Fan through a registered Account.
“User Metrics” means any metrics specific to a User’s Account.
We may translate this Agreement into other languages for your convenience. Nevertheless, the English version governs your relationship with us, and any inconsistencies among the different versions will be resolved in favor of the English version available here. We may also update the Agreement from time to time. If we materially update any portion of the Agreement, we will notify you, at the email address provided in your Account profile, or other reasonable means (for example, by posting a revised Agreement through the Lively Platform or a notice on our website) before the date the update becomes effective. We will also post the updated Agreement in its original location marked with the new date. Changes will not be retroactive. If you object to any changes, you may terminate this Agreement by closing your Account. Your continued use of our Services after we publish or send a notice about our changes to these Terms means that you are consenting to the updated terms. Rejecting an updated Agreement will not affect any dispute between you and us arising prior to the date on which we posted the updated Agreement.
We grant you a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use and access the Services, and to access and view the Content (for the sole purpose of participating in the Session) and Recordings (as available) on the Lively Platform, subject to your Agreement and any conditions or requirements for certain areas or features of the Lively Platform. We retain the right at our sole discretion to deny anyone access or terminate access to the Services, at any time and for any reason. We also retain full discretion to prioritize, categorize, highlight, and otherwise modify the method of Fan discovery of Creator Bios, including through search results and tagging, in order to improve service quality and for other purposes. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by us or our licensors, except for the licenses and rights expressly granted in your Agreement.
You must register an Account with Lively in order to use the Services. Your Account is personal to you. You agree to: (a) not share your Account or transfer any part of it to anyone else; (b) provide accurate, current and complete information during the registration process and keep your Account up to date; and (c) keep your password secure and confidential. You agree to notify us immediately of any unauthorized use of your Account and are responsible for anything that happens through your Account prior to closing it or reporting misuse to us.
You may control your Account profile and how you interact with the Services by changing the settings in your Account. You consent to our using the email address you provide in your Account to send you Services-related notices, including any notices required by law, in lieu of communication by other means such as postal mail. We may also use your email address to send you other messages, such as changes to Services features, special offers, or Services-related newsletters. If you do not want to receive such email messages, you may unsubscribe as directed in the applicable communication. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
The Services are controlled and operated from facilities in the United States. Lively makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
Due to the nature of the Internet, we cannot guarantee the continuous and uninterrupted availability of any portion of the Lively Platform or Services and are not responsible for outages or disruptions of the Internet and telecommunications infrastructure which are beyond our control. We may temporarily restrict the availability of the Lively Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Lively Platform. We may enhance and modify the Lively Platform and introduce new Services from time to time but will provide notice to Users unless such changes are of minor nature with no material effect on our contractual obligations. We do not control, and are not responsible for, such third-party services, and shall have no liability for any failure or degradation of such third-party services beyond our reasonable control.
CREATORS ARE INDEPENDENT BUSINESS OWNERS. CREATORS ARE INDEPENDENT CONTRACTORS OF FANS AND NOT EMPLOYEES, PARTNERS, REPRESENTATIVES, AGENTS, JOINT VENTURERS, INDEPENDENT CONTRACTORS OR FRANCHISEES OF LIVELY. LIVELY DOES NOT PROVIDE SESSIONS AND DOES NOT EMPLOY INDIVIDUALS TO PROVIDE SESSIONS. BY CONNECTING PEOPLE AND BUSINESSES SEEKING SERVICES WITH SERVICE PROVIDERS, LIVELY OPERATES AS AN ONLINE MARKETPLACE THAT CONNECTS FANS WITH SERVICE PROVIDERS (CREATORS) WHO WISH TO PROVIDE A VARIETY OF SESSIONS. LIVELY AIMS TO VERIFY THE CREDENTIALS OF ALL CREATORS WHO PARTICIPATE IN THE SERVICES. HOWEVER, THE SERVICES ARE INTENDED AS AN INFORMATION RESOURCE AND NOT AN ADVISORY SERVICE; IT IS YOUR RESPONSIBILITY TO DETERMINE THE QUALITY AND CREDIBILITY OF INFORMATION OBTAINED, AS WELL AS THE REASONABLENESS OF RELYING ON SUCH INFORMATION FOR A PARTICULAR USE.
USERS HEREBY ACKNOWLEDGE THAT LIVELY DOES NOT SUPERVISE, SCOPE, DIRECT, CONTROL OR MONITOR A CREATOR’S SESSION AND EXPRESSLY DISCLAIMS (TO THE EXTENT PERMITTED BY LAW) ANY RESPONSIBILITY AND LIABILITY FOR THE WORK PROVIDED AND THE SESSIONS IN ANY MANNER, INCLUDING BUT NOT LIMITED TO A WARRANTY OR CONDITION OF GOOD AND WORKMANLIKE SERVICES, WARRANTY OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, STATUTE, ORDINANCE, REGULATION, OR CODE.
We act solely as an intermediary between the Creator and the Fan, collecting relevant payment details and facilitating payment through our third-party payment providers. In the event of an issue between a Fan and Creator, the Fan or Creator must report complaints to email@example.com with the relevant details of the dispute.
It is the express intention of each User that Creator perform the Session as an independent contractor to Fan. Nothing in this Agreement shall in any way be construed to constitute Creator as an agent, employee or representative of the Fan or Lively, or to create a joint venture between any of the parties.
Upon Account set-up, we collect both Creator and Fan payment details through our third-party payment provider in order to enable the Fan to pay Creator upon acceptance of a Session. If you are a Creator, please see Section 3 of the Creator Supplement for additional information and terms. If you are a Fan, please see Section 2 of the Fan Supplement for additional information and terms.
Your permission to use the Lively Platform and Services is contingent on your compliance with all Applicable Law, in addition to the following rules:
You shall not use, or encourage, promote, facilitate or instruct others to use the Services for any illegal, harmful or offensive use, including:
You shall not transmit, store, display, distribute or otherwise make available any Content through the Services that:
During and after the term of this Agreement, you will hold in the strictest confidence, and take all reasonable precautions to prevent any unauthorized use or disclosure of Confidential Information, and you will not (a) use the Confidential Information for any purpose whatsoever other than as necessary for the performance of the Session, or (b) disclose the Confidential Information to any third party without the prior written consent of Lively. You may also disclose Confidential Information to the extent compelled by Applicable Law; provided however, prior to such disclosure, you shall provide prior written notice to Lively and seek a protective order or such similar confidential protection as may be available under Applicable Law. You agree that no ownership of Confidential Information shall be conveyed to you by virtue of this Agreement or the performance hereof.
Each party’s confidentiality obligations will survive the expiration, termination, or cancellation of this Agreement for a period of two (2) years afterwards (or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws). We reserve the right at all times to disclose any information as necessary to satisfy any Applicable Law, legal process or governmental request.
As between you and Lively, you acknowledge and agree that we (or our licensors) own the Services and the copyrights, trademarks, service marks, trade names, trade secrets, and other intellectual and proprietary rights throughout the world associated with Lively, the Services (with the exception of your Content) and the Lively Data, which are protected by copyright, trade dress, patent, trademark, and trade secret laws and all other applicable intellectual and proprietary rights and laws. You agree not to remove or modify any copyright, trademark or other proprietary rights notice that appears on any portion of the Services, or on any materials printed or copied from the Services.
Any information shared through the Lively Platform, including audio, video, and text, can be stored, analyzed, and used to improve existing and future Lively products and Services or for other purposes. Such information can be stored and used for purposes including, but not limited to, changes to the Lively Platform’s search function, Creator-tagging and Fan-matching, and the production of data and trend reports. You acknowledge and agree that Sessions may be recorded and preserved by Lively, and used by Lively for quality control, or for the purpose of creating transcriptions. In addition, from time to time Lively may make available to Creators certain functionality allowing them to create Recordings for playback by Fans and other Users of the Lively Platform. Ownership of, and Lively’s right to use, any Recordings are set forth in the Creator Supplement. For the avoidance of doubt, you may not record, copy, display, or modify any of the Sessions: (i) without the prior written consent of Lively and all other individuals participating in the Session; and (ii) using any third-party tools or services.
We welcome and encourage suggestions for improvements and other feedback related to the Lively Platform. You may submit feedback by emailing us, through the “Contact” section of the Lively Platform, to firstname.lastname@example.org or by other means of communication. Any feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting feedback to us, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, sublicensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the feedback, and you irrevocably waive, and cause to be waived, against us or our Users any claims and assertions of any moral rights contained in such feedback.
Lively will not tolerate violations of intellectual property rights on the Services. If you are a copyright owner and believe that any Content or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”). To provide Lively notice of an infringement, you must provide a written communication to the attention of “DMCA Infringement Notification Dept.” care of email@example.com that sets forth the information specified by the DMCA (see http://www.copyright.gov/title17/92chap5.html#512). You may be liable for damages (including costs and attorneys' fees) if you materially misrepresent that an activity is infringing your copyright.
The Services are integrated with various third-party services and applications (collectively, “Third-Party Services”) that may make their content, products or services available to you. Examples of Third-Party Services include our domain registrar, social media platforms, e-commerce payment processors, video-conferencing service providers, and other integrations or extensions, stock images and email service subscriptions utilized in the Services. These Third-Party Services may have their own terms and policies, and your use of them will be governed by those terms and policies. Lively does not control Third-Party Services, and Lively is not liable for Third-Party Services or for any transaction you may enter into with them, or for what they do. When using Third-Party Services, your security is your responsibility. You also agree that Lively may, at any time and in Lively’s sole discretion, and without any notice to you, suspend, disable access to or remove any Third-Party Services. Lively is not liable for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses, or business disruption, costs or expenses you may incur or otherwise experience as a result (except where prohibited by applicable law).
The Services may contain links to third-party materials that are not owned or controlled by Lively. Lively does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Services or share your Content on or through any third-party website or service, you do so at your own risk, and you understand that this Agreement and the Privacy Notice do not apply to your use of such sites. You expressly relieve Lively from any and all liability arising from your use of any third-party website, service, or content, including without limitation Content submitted by other Users. Additionally, your dealings with or participation in promotions of advertisers found on the Services, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Lively shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
To the maximum extent permitted under Applicable Law, you agree to indemnify and hold Lively (and our officers, directors, employees, agents, service providers, licensors, and affiliates) harmless from any and all claims, actions, demands, damages, liabilities, regulatory proceedings, costs (including settlement costs), and expenses (including reasonable outside attorneys' fees and costs) arising from or in connection with (a) your breach of this Agreement; (b) your violation of any Applicable Law or rights, including intellectual property rights, of a third party; (c) your interaction with any other User or related services or products; (d) your access to or use of the Services; (e) your failure as a Creator or Fan to provide correct information; or (f) any other party’s access and use of the Lively Platform and Services with your unique username, password or other appropriate security code. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any such matter without our prior written consent. We will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
PLEASE READ THIS SECTION CAREFULLY, AS THIS SECTION LIMITS OUR LIABILITY TO YOU FOR ISSUES THAT MAY ARISE IN CONNECTION WITH YOUR USE OF THE LIVELY PLATFORM AND THE SERVICES. IF YOU DO NOT UNDERSTAND THE TERMS IN THIS SECTION OR ELSEWHERE IN THIS AGREEMENT, PLEASE CONSULT A LAWYER FOR CLARIFICATION BEFORE ACCESSING OR USING THE LIVELY PLATFORM AND SERVICES. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE WHICH MAY NOT BE LAWFULLY LIMITED.
THE LIVELY PLATFORM AND SERVICES ARE MADE AVAILABLE TO YOU ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, WITH THE EXPRESS UNDERSTANDING THAT THE SERVICES ARE INTENDED TO BE USED TO FACILITATE SESSIONS DIRECTLY BETWEEN FANS AND CREATORS, AND WE CANNOT AND DO NOT CONTROL USER CONTENT. WE DISCLAIM ALL LIABILITY WITH RESPECT TO USER CONTENT, INCLUDING COMPLIANCE WITH APPLICABLE LAWS, RULES AND GUIDES (SUCH AS FTC GUIDES CONCERNING SPONSORED ENDORSEMENTS). LIVELY MAKES NO CLAIMS OR PROMISES ABOUT THE QUALITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE SERVICES, THEIR SAFETY OR SECURITY, YOUR INTERACTION WITH OTHER USERS, OR THE CONTENT ON THE SERVICES. ACCORDINGLY, LIVELY IS NOT LIABLE TO YOU FOR ANY PERSONAL INJURY, LOSS OR DAMAGE THAT MIGHT ARISE, FOR EXAMPLE, FROM THE LIVELY PLATFORM’S INOPERABILITY, DEPLETION OF BATTERY POWER OR OTHER IMPAIRMENT OF DEVICES USED TO ACCESS THE LIVELY PLATFORM, SERVICES UNAVAILABILITY, SECURITY VULNERABILITIES, THE QUALITY, ACCURACY, OR RELIABILITY OF SESSIONS OR ACCOMPANYING INFORMATION ABOUT CREATORS OR THEIR BRANDS, FOR EXAMPLE, IF ANOTHER USER MISUSES YOUR CONTENT, IDENTITY OR PERSONAL INFORMATION, OR IF YOU HAVE A NEGATIVE EXPERIENCE WITH A FAN OR CREATOR THROUGH THE SERVICES. YOUR PURCHASE AND USE OF PRODUCTS OR SERVICES BY THIRD PARTIES THROUGH THE SERVICES OR MENTIONED IN SESSIONS IS AT YOUR OWN DISCRETION AND RISK. FANS AND CREATORS ARE INDEPENDENT CONTRACTORS AND NOT CONSULTANTS OR EMPLOYEES OF LIVELY.
LIVELY’S (INCLUDING OUR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, LICENSORS, AND AFFILIATES) MAXIMUM AGGREGATE LIABILITY TO YOU FOR LOSSES OR DAMAGES THAT YOU SUFFER IN CONNECTION WITH THE LIVELY PLATFORM, SERVICES OR THESE TERMS IS LIMITED TO THE GREATER OF (A) THE AMOUNT PAID, IF ANY, BY YOU TO LIVELY IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY; OR (B) THREE HUNDRED U.S. DOLLARS ($300). TO THE EXTENT PERMITTED UNDER LAW LIVELY SHALL NOT BE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA, OPPORTUNITIES, REPUTATION, PROFITS OR REVENUES, RELATED TO THE LIVELY PLATFORM OR SERVICES. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN LIVELY AND YOU.
If you wish to terminate your Agreement, you can do so at any time by closing your Account as directed in your Account settings, and no longer accessing or using the Services. We may close your Account, suspend your ability to use certain portions of the Services, terminate any license or permission granted to you hereunder, and/or ban you altogether from the Services for any or no reason, and without notice or liability of any kind. Any such action could prevent you from accessing your Account, the Services, your Content, or any related information. If this Agreement has been terminated for your breach, you are not entitled to a restoration of your Account or any of your Content. If your access to or use of the Services has been limited or your Account has been suspended or this Agreement has been terminated by us for your breach, you may not register a new Account or access and use the Services through an Account of another User. All sections of this Agreement which by their nature should survive termination will survive termination, including accrued rights to payment, confidentiality obligations, indemnification, warranty disclaimers, and limitations of liability.
You agree that (a) the Lively Platform and Services shall be deemed solely based in California, and (b) the Lively Platform shall be deemed a passive website that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
We are available by email at firstname.lastname@example.org to address any concerns you may have regarding your use of the Service. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
If we do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is resolved, then either you or we may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Services shall be finally settled by binding arbitration administered on a confidential basis by AAA, in accordance with the AAA Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the AAA Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of your Agreement, including, but not limited to, any claim that all or any part of your Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this Agreement shall be subject to the Federal Arbitration Act. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250) and the claim is found to be non-frivolous, we will pay the additional cost. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration.
You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery may be more limited in arbitration than in court.
You and we each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action, and you and we each expressly waive our respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief (a) in a small claims court for disputes or claims within the scope of that court’s jurisdiction; and (b) for any disputes relating to intellectual property rights, obligations, or any infringement claims.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You and we expressly consent to exclusive jurisdiction in of the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles, California, for any litigation other than small claims court actions. In the event of litigation relating to this Agreement or the Services, you agree to waive, to the maximum extent permitted by law, any right to a jury trial, except where a jury trial waiver is not permissible under Applicable Law.
Lively and you recognize that this Agreement is subject to, and intended to comply with, Applicable Law, and agree that the Services addressed in this Agreement do not exceed those which are reasonably necessary to accomplish the commercially reasonable business purposes of this Agreement.
This Agreement contains the entire understanding between Lively and you regarding the subject matter herein and supersedes all prior oral or written agreements between us. Lively and you, respectively, bind each of us, our successors, and permitted assigns to all the rights and obligations in this Agreement. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Except as expressly stated otherwise, nothing in this Agreement shall be deemed to confer any third-party rights or benefits, save that our corporate affiliates shall be deemed express third-party beneficiaries of this Agreement. No waiver, amendment, modification or addition to this Agreement shall be valid unless in writing and signed by both you and us.
If you have a question or complaint regarding the Lively Platform, please send an e-mail to email@example.com. You may also contact us by calling us at 1-352-870-4958. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with us. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
While we may help facilitate the resolution of disputes between Users, you must make any claim or complaint against a Fan or Creator directly with the Fan or Creator. If your claim or complaint is against Lively, and not specifically regarding a Session, you must submit the claim or complaint to us promptly, but in any event within thirty (30) days after the complaint arises. Any claim or complaint that is submitted after the thirty (30) days period may be rejected.
This Fan Supplement (the “Fan Supplement”) supplements the Lively Terms of Service (the “Terms”), which are incorporated herein (collectively, the “Agreement”), between you, a Fan who wishes to receive Sessions or Recordings from Creators through the Lively Platform, and Lively. All capitalized terms have the meanings set forth in the Terms. Any use or access to the Services by anyone under thirteen (13) years of age is strictly prohibited and in violation of this Agreement. If you are under eighteen (18) years of age, you may use the Service only with involvement a parent or legal guardian and their consent and agreement to this Agreement.
Our collection and use of personal information in connection with your access to and use of the Lively Platform and Services, whether or not you are a registered User, is described in our Privacy Notice.
If Fan chooses to enter into a transaction with Creator by scheduling a Session via the Lively Platform, this Agreement and other terms, conditions, rules, and restrictions associated with such a Session may apply. Fans acknowledge and agree that they, as Fans, and not Lively, are responsible for performing the obligations of any such agreements, and Lively disclaims all liability in connection therewith.
Certain aspects of the Services may be purchased on a subscription basis. Paid subscriptions automatically renew until canceled through the Lively Platform or by emailing Lively at firstname.lastname@example.org with the subject line “SUBSCRIPTION CANCELLATION – [Your Name]”. Lively will notify Fans of any price increases for paid subscriptions and, if required, seek consent to continue. Fans will be charged no more than twenty-four (24) hours prior to the start of the latest subscription period. If Lively cannot charge Fan’s payment method for any reason (such as expiration or insufficient funds), and Fan has not cancelled its subscription, Fan remains responsible for any uncollected amounts, and Lively will attempt to charge the payment method as Fan updates its payment method information. Lively reserves the right to cancel paid subscriptions if Lively is unable to successfully charge Fan’s payment method to renew such subscriptions. From time to time, Lively may offer free trials prior to charging Fan’s payment method. If Fan decides to unsubscribe from a paid subscription during the free trial period, Fan must cancel the subscription at least twenty-four (24) hours before the free trial ends.
From time to time, certain Creators may make available certain Recordings available for free or for a charge via the Lively Platform. Fan’s purchase of any such Recordings represents a limited, personal, nonexclusive license from the Creator, via Lively, to Fan to view the applicable Recording via streaming through the Lively Platform within the time period communicated at the time of purchase (e.g., twenty-four (24) hours or one (1) year). All such purchases are final. Prices may change at any time.
Fan agrees to pay Lively all Service Fees, including Session Fees and Transaction Fees, on the terms set forth herein. Fan acknowledges Lively is acting as limited payment collection agent for Creator in connection with the receipt of Session Fees and Transaction Fees paid to Lively by Fan. To the extent that Lively collects Session Fees and Transaction Fees from Fan for transmission to Creator, it does so on behalf of Creator as Creator’s limited payment collection agent. Accordingly, payment of the Session Fees and Transaction Fees to Lively shall be considered the same as payment of Session Fees and Transaction Fees made directly by Fan to Creator. Upon Fan’s delivery of payment for Session Fees and Transaction Fees to Lively, Fan’s payment obligation to Creator is extinguished in an amount equal to the payment for Session Fees and Transaction Fees delivered to Lively, and Lively is responsible for remitting such Session Fees and Transaction Fees Creator. If Lively fails to remit any such amounts it receives from Fan as payment for Session Fees and Transaction Fees to Creator, Lively is solely liable to Creator for such payments for Session Fees and Transaction Fees delivered by Fan to Lively, and Fan shall not have liability thereof.
In order to initiate a Session, Fan understands and agrees that it must pay to Lively all Service Fees prior to the date of the Session; provided, however, Fan may cancel the Session and receive a full refund of amounts paid for such Session if Fan cancels the Session at least twenty-four (24) hours in advance of the Session. Lively will process and collect the Service Fees payable in accordance with this Agreement and any additional terms of the Service. Please note that Lively cannot control any fees that may be charged to Fan by his or her bank related to Lively’s collection of the Service Fees, and Lively disclaims all liability in this regard.
Service Fees or reimbursements agreed through Lively or via the Lively Platform must be processed through Lively and Fan agrees not to pay Creator directly for such services or reimbursements. Except as otherwise provided herein, Service Fees are non-refundable.
Fans who believe they have been improperly charged for a Session and require a refund are asked to contact Lively at email@example.com.
Fan agrees that for a period of one (1) year following the date of introduction through the Services of Fan to Creator, whether or not Fan has chosen to engage in a Session with Creator, Fan will not directly or indirectly solicit or employ, or attempt to solicit or employ, such Creator to work or provide services or information of any kind, to or on behalf of Fan or any third party, other than as may be booked, paid for, and received through the Lively Platform.
This Creator Supplement (the “Creator Supplement”) supplements the Lively Terms of Service (the “Terms”), which are incorporated herein (collectively, the “Agreement”), between you, a Creator who wishes to provide Sessions to Fans through the Lively Platform (“Lively”). All capitalized terms have the meanings set forth in the Terms.
Our collection and use of personal information in connection with your access to and use of the Lively Platform and Services, whether or not you are a registered User, is described in our Privacy Notice.
Creators will have a public individual Creator profile that will contain biographical information (including, for example, employment history), a headshot, media clips, and other information Creator chooses to add (an “Creator Bio”), which must be approved by Lively prior to the publicization of such Creator Bio. Lively may assist in improving Creator’s Creator Bio, but Lively shall not publish such Creator Bio without Creator’s approval.
It is Creator’s responsibility to ensure that the Creator Bio is accurate, up to date, and that pursuant to Section 2 below, anything that Creator presents as his or her own is Creator’s own intellectual property.
Lively may verify information provided by, or about, Creator, including verifying such Creator’s identity and confirming Creator experience and credentials. If requested, Creator agrees to assist Lively in this process.
Lively shall retain the right to use, publish, and otherwise disseminate Creator’s name, public publications, media appearances, and any information in a Creator’s Bio for marketing purposes, business development purposes, and for any other lawful purpose.
Creator agrees not to accept any Session with any Fan unless Creator Bio is accurate, complete, and current. Creator understands that Lively, Fans, and Lively’s third party partners are entitled to rely on the Creator’s Creator Bio. Creator further understands that a Service Fee, once agreed, is binding and cannot be changed.
From time to time, Lively may make available to Creators certain functionality to allow Creators to record Sessions for further playback by Fans via the Lively Platform. You may not record or otherwise capture in any manner any Sessions using any third-party tools or services. In order to record a Session, you must have the prior written permission of all individuals participating in the Session both for the recording of such Session and for Lively’s distribution of Recordings in accordance with the Terms and this Creator Supplement.
RECORDINGS THAT YOU MAKE VIA THE Lively PLATFORM ARE OWNED BY YOU AND ARE NOT OWNED BY Lively.
However, by choosing to make available your Recordings for distribution via the Lively Platform through the functionalities provided thereon, you expressly grant, and represent and warrant that you have all rights necessary to grant, to Lively a royalty-free, sublicensable, transferable, irrevocable, worldwide right and license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such Recordings and your name, voice, likeness, and other publicity rights, in whole or in part, to the extent reasonably necessary for Lively to provide the Lively Platform. By way of example, and without limitation, the foregoing rights and licenses allow Lively to distribute and display the Recordings to Fans via online streaming through the Lively Platform and to modify the Recordings to the extent necessary to ensure usability (e.g., by making technical modifications to the Recordings to allow them to be viewable on different devices and at different levels of quality in accordance with a User’s Account settings and internet bandwidth restrictions).
The foregoing rights and licenses to your Recordings shall be effective for so long as you make your Recordings available for distribution through the Lively Platform; provided that: (i) with respect to Recordings licensed by Fans for a defined time period (e.g., one (1) year), Lively may continue to distribute and display such Recordings to such Fans through the Lively Platform for the duration of such defined time period notwithstanding your request to remove the Recordings from the Lively Platform; and (ii) with respect to Recordings that involve multiple Creators or that are part of a branded series of recordings, Lively may continue to distribute and display such Recordings through the Lively Platform for so long as Lively continues to pay you the amount agreed-upon between you and Lively with respect to such Recordings.
Creator represents and warrants that Creator possesses experience and knowledge in the subject areas of the Session, sufficient to qualify Creator as an expert in such areas.
Creator represents and warrants that the Session and materials provided by Creator in under this Agreement will not infringe, misappropriate, or otherwise violate any intellectual property rights or other rights of any third party.
Creator represents and warrants that Creator is party to no agreements, relationships, or commitments to any other person or entity that conflict with the provisions of this Agreement. Creator will not disclose any information to Fan which would conflict with any laws or confidentiality obligations by which Creator is bound. Creator will not enter into any such conflicting agreement, relationship or commitment during the term of this Agreement.
Creator acknowledges that Fan shall pay for the Sessions and Recordings through the Lively Platform. Creator agrees Lively or any party designated by Lively may collect Session Fees and Transaction Fees owed to Creator by Fan as Creator’s limited payment collection agent for the limited purpose of accepting funds from Fan for the Session using or through the Lively Platform by Fan. Creator agrees that any payment of Session Fees and Transaction Fees made by a Fan through or in connection with the Lively Platform and Services will be considered the same as a payment made directly to Creator, and Creator will provide the Session to Fan in the agreed-upon manner as if Creator has received the payment of Session Fees and Transaction Fees directly from Fan. Upon successful payment to Lively of the Session Fees and Transaction Fees due to Creator by Fan, Fan’s payment obligation to Creator for the Session Fees and Transaction Fees is terminated, and Lively is instead responsible for remitting the funds it receives from Fan to Creator, subject to the terms herein. Lively shall remit Session Fees and Transaction Fees upon conclusion of the Session. All payments from Lively to Creator will be made by Lively using the payment mechanism provided by the Creator in the Creator’s Account profile. Creator’s recourse is only against Lively if Lively fails to remit Session Fees and Transaction Fees received from a Fan pursuant to the terms hereof. Notwithstanding, Creator understands that Lively’s obligation to pay Creator is subject to successful receipt of payments of the Session Fees and Transaction Fees from Fan, and Lively is only liable to Creator for the payment of amounts it successfully receives from Fan. Lively assumes no liability for any acts or omissions of any Fan.
In the event a payment from a Fan is charged-back, refunded or reversed, Lively, in its discretion, may either reduce or set off against any amounts to be remitted or otherwise due to Creator under the Agreement by an amount equal to such chargeback, refund or reversal amount or invoice Creator for an amount equal to such chargeback or reversal and Creator shall pay to Lively such invoiced amount within thirty (30) calendar days of the invoice date.
Except for taxes based upon Lively’s gross revenues or net income, Fans and Creator agree to pay any taxes applicable to their respective use of and engagement through the Lively Platform and Services.
Unless otherwise expressly agreed by Lively in writing, Fan will not pay Creator directly for any services booked by Fan through the Lively Platform.
Creator agrees to indemnify and hold harmless the Fan, and Fan’s directors, officers and employees, from and against all actual losses, damages, liabilities, costs and expenses, including but not limited to attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with (a) any negligent, reckless or intentionally wrongful act of Creator, (b) any breach by the Creator of Applicable Law or any of the terms contained in this Agreement, and (c) any violation by Creator of a third party’s intellectual property rights.
Effective Date: [July 17, 2020]
LiveLessonMasters, Inc. (“we,” “our,” or “Lively”) provides this privacy notice to explain how we collect, use, and share your information, and some of the choices you may have. This privacy notice applies to our collection of information, including personal information, through the Lively website at golive.ly and mobile application (if and when available) (collectively referred to as the “Lively Platform”).
When we use the term “personal information,” we mean any information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual person.
We collect and use personal information you provide to use in the following ways:
We may receive personal information about you from our data partners and service providers and combine this information with other information we collect from or about you. The third parties may include our website operators and analytics providers. We use this information to administer and facilitate the Lively Platform, communicate with you about the Lively Platform, and to obtain insights into and protect the Lively Platform.
We use various technologies to collect information about the device or browser you use to navigate the Lively Platform, including:
In addition to the uses described above, we may collect and use personal information for the following purposes:
We may share your personal information in the following ways:
You have some choices regarding how we use your personal information, including the following:
We participate in interest-based advertising and use third-party advertising companies to serve targeted advertisements based on an individual’s browsing history. We permit third-party online advertising networks, social media companies and other third-party services, to collect information about an individual’s use of our online services over time so that they may play or display ads on other websites, or services an individual may use, and on other devices an individual may use. Typically, though not always, the information used for interest-based advertising is collected through data collection technologies, such as cookies, web beacons, embedded scripts, location-identifying technologies, and similar technology (collectively, “data collection technologies”), which recognize the device an individual is using and collect information, including click stream information, browser type, time and date the individual visited the website, AdID, precise geolocation and other information. We may share a common account identifier (such as a hashed email address or user ID) with our third-party advertising partners to help identify an individual across devices. We and our third-party partners use this information to make the advertisements an individual sees online more relevant to their interests, as well as to provide advertising-related services such as reporting, attribution, analytics and market research.
Choices About Online Ads
We support the self-regulatory principles for online behavioral advertising (Principles) published by the Digital Advertising Alliance (DAA). This means that we allow an individual to exercise choice regarding the collection of information about their online activities over time and across third-party websites for online interest-based advertising purposes. More information about these Principles can be found at www.aboutads.info. If an individual wants to “opt out” of receiving online interest-based advertisements on their internet browser from advertisers and third parties that participate in the DAA program and perform advertising-related services for us and our partners, they should follow the instructions at www.aboutads.info/choices, or http://www.networkadvertising.org/choices/ to place an “opt-out” cookie on their device indicating that they do not want to receive interest-based advertisements. Opt-out cookies only work on the internet browser and device they are downloaded onto. If an individual wants to opt-out of interest-based advertisements across all browsers and devices, they will need to opt-out on each browser on each device they actively use. If an individual deletes cookies on their device generally, they will need to opt-out again. If an individual wants to “opt out” of receiving online interest-based advertisements on mobile apps, they should follow the instructions at http://www.aboutads.info/appchoices.
We do not knowingly collect or solicit any information from anyone under the age of 13 on the Lively Platform and the Lively Platform are not targeted towards anyone under the age of 13. In the event that we learn that we have inadvertently collected personal information from someone under age 13, we will delete that information as quickly as possible. If you believe that we might have received information from a child under 13, please contact us at firstname.lastname@example.org.
We may choose or be required by law to provide different or additional disclosures relating to the processing of personal information about residents of certain states.
For residents of the State of Nevada in the United States, Chapter 603A of the Nevada Revised Statutes permits Nevada residents to opt out of future sales of certain covered information that a website operator has collected or will collect about the resident. To submit such a request, please contact us at email@example.com.
Your California Privacy Rights: For residents of California, California’s “Shine the Light” law (Civil Code Section § 1798.83) provides certain rights to California residents that have an established business relationship with us with regard to the disclosure of certain types of personal information to third parties for their direct marketing purposes. To opt out of having an individual’s personal information disclosed to third parties for their direct marketing purposes, please contact firstname.lastname@example.org and provide the individual’s contact information to be added to our suppression list.
The Lively Platform may contain links to third party websites or services, including those of our partners. You may also be able to interact with us or the Lively Platform through third parties, such as social media sites. This privacy notice does not apply to the practices of these or any other third parties. LIVELY is not responsible for the privacy practices of any entity that it does not own or control. We encourage you to review the privacy policies and terms of those third parties to learn more about their privacy practices.
If you have any questions about this privacy notice or the Lively Platform, please contact us by email at email@example.com.
This privacy notice is subject to occasional revisions. We will notify you of the changes by posting the new privacy notice on the Lively Platform and updating the effective date. We encourage you to check this page periodically to stay informed about how we are processing personal information.