TERMS AND CONDITIONS
Effective Date: May 18, 2018
Last Updated: March 5, 2019
These terms and conditions as amended from time to time (“terms”) are a binding contract between Lark Technologies, Inc. (“Lark”, “us”, or “we”), and you (“you”).
Notice Regarding Dispute Resolution: These Terms contain provisions that govern how claims You and we may have against each other are resolved (see Section 19 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require You to submit claims You have against us to binding arbitration, unless You opt-out in accordance with Section 19.6. Unless You opt-out of arbitration: (a) You will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) You will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1 LARK SERVICES
Lark is an A.I. healthcare provider, providing care for patients suffering from or at risk of chronic disease through the use of A.I. coaches. Powered by cutting edge A.I., Lark's A.I. coaches provide unlimited real-time text-message based counseling to each member to provide proven outcomes. Through the Services, Lark provides nutritional and wellness information services. To enjoy the Services via your smartphone or other Device, Your Device must satisfy certain system requirements. These requirements can be found on the Website and Google, Apple and Amazon App marketplaces. As used herein, the term “Device” refers to the device which is used to access the Services, including but not limited to computers, smartphones and tablets.
2 WHO MAY USE THE SERVICES
2.1 You may use the Services only if You agree to form a binding contract with Lark and are not a person barred from receiving the Services under the laws of the applicable jurisdiction. If You are accepting these Terms and using the Services on behalf of a company, organization, government or other legal entity, You represent and warrant that You are authorized to do so and have the authority to bind such entity to these Terms, in which case the words “You,” and “Your” as used in these terms shall refer to such entity.
2.2 Children under the age of 13 or 16 (depending on the applicable jurisdiction) in the United States of under the age or 16 in the European Union, United Kingdom or Switzerland are not permitted to use the Services. If You are under the age of 13, please do not attempt to access or use the Services.
2.4 In addition to the foregoing, access to the Services may be denied depending on eligibility and personal health circumstances.
3.1 REGISTRATION; ACCOUNT
You can access Lark via the Website and may register as a member of Lark (“Member”) via the App free of charge. To register as a Member, and depending on the manner in which You access the Services, You may need to provide Your email address, and create a username and password to be used in conjunction with that email address. You are responsible for maintaining the confidentiality of Your account and password and for restricting access to Your Device. Please use a strong password and limit its use to Your account. We cannot and will not be liable for any loss or damage arising from Your failure to comply with the above.
By registering as a Member, You warrant that: (a) You are legally capable of entering into binding contracts; (b) You are at least 13 years old and if Younger than 18 years old, that Your registration is done so with the consent of Your parents, guardians, authorized school officials, or counselors; (c) all registration information You submit is truthful and accurate; (d) You will maintain the accuracy of such information; and (e) Your use of the Services does not violate any applicable law or regulation.
3.3 MEMBERSHIP RULES GENERALLY
As a Member, You will receive access to certain sections, features and functions of the Services. By agreeing to become a Member, You opt in to receiving occasional special offer and marketing-based communication emails. You can easily unsubscribe from these emails by following the opt-out instructions in these emails.
You can control some communications from the Services. We may need to provide You with certain communications, such as service announcements and administrative messages. These communications are considered part of the Services and Your account, and You may not be able to opt-out from receiving them. In addition, in connection with Your use of the Services, You expressly consent to receiving communications from Lark via text messaging to Your Device.
Lark reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to Member support requests, or (v) protect the rights, property or safety of Lark, its users and the public.
Lark Members may access the Services through individual memberships (“Individual Membership”) or via corporate or employer-sponsored plans (“Sponsored Plan”). Subscription terms applicable to Sponsored Plans shall be governed by a separate agreement between the corporation or employer and Lark (“Sponsored Plan MSA”).
The following Section 4 applies solely to Individual Memberships.
Lark offers a limited-use free membership via the Lark App. In addition, Lark offers several paid subscriptions, which can be purchased via Your Device through Your applicable mobile application store.
Lark offers monthly (30 calendar days) and annual (365 calendar days) fee-based paid subscription options for Individual Memberships.
4.1 INDIVIDUAL MEMBERSHIP MONTHLY SUBSCRIPTION
Lark’s Individual Membership monthly subscription is paid in monthly installments. For each month that Your monthly subscription is active, You acknowledge and agree that Lark is authorized to charge the same credit card or other payment method (the “Payment Method”) as was used for the initial subscription fee in the amount of the then current monthly subscription fee. The monthly renewal subscription fees will continue to be billed to the Payment Method You provided, automatically until cancelled. You must cancel Your subscription at least 24 hours before the next renewal each month in order to avoid billing of the next month's subscription fee to the Payment Method You provided. Refunds cannot be claimed for any partial-month subscription period.
4.2 INDIVIDUAL MEMBERSHIP ANNUAL SUBSCRIPTION
Lark’s Individual Membership annual subscriptions are paid for by an initial one-time payment with automatic annual payments. You acknowledge and agree that Lark is authorized to charge the Payment Method used for the initial annual subscription fee at the rate secured at the time of purchase. This includes discounted rates secured with a promotional offer. You must cancel Your subscription at least 24 hours before the next annual renewal in order to avoid billing of the next year’s subscription fee to the Payment Method You provided. Refunds cannot be claimed for any partial-year subscription period.
4.2.1 NON-RENEWAL OPTION FOR PAID SUBSCRIPTIONS
You may discontinue auto-renewals of Your Individual Membership subscription at any time by logging into Your account and updating Your account settings to non-renewal.
4.2.2 INDIVIDUAL MEMBERSHIP PURCHASES SUBJECT TO DEVICE RESTRICTIONS
Please note that there may be additional limitations or restrictions on refunds imposed by Your Device’s applicable mobile application store. Your purchase will be subject to any applicable payment policies of the provider from whom You purchase Your Individual Membership subscription.
4.2.3 CHANGES TO PAYMENT METHOD
You agree to promptly notify Lark of any changes to the Payment Method You provided while any subscriptions remain outstanding. You are responsible for all applicable fees and charges incurred, including applicable taxes, and all subscriptions purchased by You.
4.2.4 GENERAL PAYMENT TERMS
All prices in US Dollars and Euros include local taxes. All prices in Pound Sterling include VAT unless otherwise stated. You agree not to hold us responsible for banking charges incurred due to payments on Your account. If payment is not received by us from the Payment Method You provided, You agree to pay all amounts due upon demand by us.
4.3 CHANGING FEES AND CHARGES
Lark may, at any time and from time to time, in our sole discretion, change the fees and charges, or add new fees and charges, in relation to any of the Services. If You do not agree to the change, You may cancel Your membership or subscription in Your account settings.
4.4 CANCELLATION BY YOU
You may cancel Your Individual Membership monthly subscription at any time. Cancellation is effective at the end of the applicable monthly period. Please make any such cancellation through Your account settings.
Lark offers a 7-day money back guarantee for new annual subscriptions. So long as You cancel Your new annual subscription within the first 7 calendar days after initial purchase, You are entitled to have the full cost refunded to You.
Please refer to and follow the policies of Your applicable mobile application store to cancel the automatic renewal of Your Individual Membership subscription.
4.5 CANCELLATION BY US
Any unauthorized use or violation of these Terms immediately and automatically terminates Your right to use the Services and may subject You to legal liability. We may suspend or terminate Your use of the Services as a result of Your fraud or breach of any obligation under these Terms. Such termination or suspension may be immediate and without notice.
5 PROMOTION CODES
Any promotion code or offer provided by us may not be used in conjunction with any other promotion code or offer, past or present. Introductory offers are only available to new users of the Services, except where expressly stated otherwise. Previous users or trial users of the Services do not qualify as a new Member. No promotion code or discount will apply to Sponsored Plan subscriptions.
6 PROHIBITED USE OF THE SERVICES
You are prohibited from and agree not to:
6.1 Upload, post, email or otherwise send or transmit or introduce any material that contains software viruses or any other computer code, files or programs designed to interrupt, harm, damage, destroy or limit the functionality of any computer software or hardware or equipment linked directly or indirectly with the Services or the Services themselves such as a virus, “spyware,” “adware” or other code that could adversely impact the Services.
6.2 Use any robot, spider, scraper or other automated means or interface not provided by us to access the Services or extract data or gather or use information, such as email addresses, available from the Services or transmit any unsolicited advertising, “junk mail,” “spam,” or “chain letters”.
6.3 Interfere with the servers or networks underlying or connected to the Services or to violate any of the procedures, policies or regulations of networks connected to the Services.
6.4 Take any action which might impose a significant burden (as determined by us) on the Services’ infrastructure or computer systems, or otherwise interfere with the ordinary operation of the Services.
6.5 Reverse engineer any licensed software, application, or any other aspect of the Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Services.
6.6 Access or use the Services in any way that is not in compliance with any applicable local, state, national or international law (including export laws), contracts, intellectual property rights or constitutes the commission of a tort, or for any purpose that is harmful or unintended (by us), or other than in full compliance with these Terms.
6.7 Impersonate any other person while using the Services, conduct Yourself in an offensive manner while using the Services, or use the Services for any illegal, immoral or harmful purpose.
6.8 Alter information on or obtained from the Services.
6.9 Resell any Services purchased through Lark for commercial purposes.
6.10 Download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on the Services.
6.11 Copy, distribute, republish or transmit in any way, without our prior written consent and Proprietary Content (as hereinafter defined).
6.12 Use the Services for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes).
By breaching the provisions of this Section 6, You may commit a criminal offence under applicable laws. Appropriate legal action may be taken for any illegal or unauthorized use of the Services and we may report any such breach to the relevant law enforcement authorities and co-operate with those authorities by disclosing Your identity to them. In the event of such a breach, Your right to use the Services will cease immediately.
7 PROPRIETARY CONTENT
You must respect the intellectual property laws protecting Lark’s Services. Any content available through the Services, including software (whether downloadable or not), text, audio, video, pictures, graphics, music, sound clips, images, likenesses, personal information and other works of authorship (collectively, “Proprietary Content”) is owned by Lark and protected by the intellectual property rights of Lark or its affiliates and/or third-party licensors, where applicable.
You acknowledge and agree that certain content made available through the Services is the property of third-party licensors and, without prejudice to any and all other rights and remedies available, each such licensor has the right to directly enforce relevant provisions within these Terms against You.
8 TRADE MARKS
Lark, the Lark logo and all other Lark product or service marks are trademarks of Lark. All intellectual property, other trademarks, logos, images, product and company names displayed or referred to on the Website or the Services are the property of their respective owners. Nothing grants You any license or right to use, alter or remove or copy such material. Your misuse of the trademarks displayed on the Services is strictly prohibited. Lark will enforce its trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.
9 MEMBER CONTENT
Lark may enable You to post, upload, store, share, send, or display photos, images, video, data, text, comments, and other information and content (“Member Content”) via the Services. You retain all rights to Member Content that You post in connection with the Services. By making Member Content available on or through the Services You hereby grant to Lark a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, publicly display, publicly perform, reproduce, translate, create derivative works from, and distribute the Member Content, in whole or in part, including Your name and likeness, in any media. The rights You grant us in this section are only for the limited purpose of offering and improving the Services.
You are responsible for Member Content. You represent and warrant that You own the Member Content or that You have all rights necessary to grant us a license to use the Member Content as described in these Terms.
Each time You submit Member Content to us, You represent and warrant to us as follows:
9.1 You own Your Member Content or have the right to submit it, and in submitting it You will not be infringing any rights of any third party, including intellectual property rights (such as copyright or trademark), privacy or publicity rights, rights of confidentiality or rights under contract.
9.2 Your Member Content is not illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, and does not encourage conduct that would be considered a criminal offense, and does not give Lark to civil liability, violate any law, or is otherwise deemed inappropriate.
9.3 Your Member Content is not untrue, misleading, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, invasive to another person’s privacy or protected data, hateful, or racially or otherwise objectionable.
9.4 Your Member Content is not of a type that You do not have a right to transmit under any law or under contractual or fiduciary relationships, such as proprietary and confidential information.
9.5 Your Member Content does not advertise any product or service or solicit any business.
9.6 Your Member Content does not identify any individual (including by way or name, address or a still picture or video) under the age of 18 and if Member Content identifies any individual over the age of 18, You have that person's consent to being identified in exactly that way in Your Member Content; and in submitting Your Member Content You are not impersonating any other person.
9.7 You will not collect usernames and/or email addresses of users for the purpose of sending unsolicited email.
9.8 You will not engage in criminal or tortious activity, including fraud, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets or attempt to impersonate another Member or person.
9.9 You will not engage in any automated use of the system, such as using scripts to alter our content.
9.10 You will not access, tamper with, or use non-public areas of the Services, Lark’s computer systems, or the technical delivery systems of Lark’s providers.
9.11 You will not attempt to probe, scan, or test the vulnerability of the Services or breach any security or authentication measures.
Lark is under no obligation to restrict or monitor Member Content in any way. LARK DOES NOT REGULARLY MONITOR THE ACCURACY OR RELIABILITY OF MEMBER CONTENT. However, Lark reserves the right to modify or remove any Member Content at any time, or to restrict, suspend, or terminate Your access to all or any part of the Services, particularly where Member Content breaches these Terms, and we may do this with or without giving You any prior notice.
Any opinions, advice, statements, services, offers, or other information or Member Content expressed or made available by third parties, including other users, are those of the respective author(s) and not of Lark. Lark neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, information, or statement made on the Services. We make no warranties or representations, express or implied, about Member Content, including as to its legality or accuracy. We disclaim all liability in connection with Member Content to the extent permitted by law.
10 END USER LICENSE AGREEMENT
The Services contain or embody copyright material, proprietary material or other intellectual property of Lark or its licensors. All right, title and ownership in the Services remains with Lark or its licensors, as applicable. The right to download and use the Services are licensed to You and are not being sold to You, and You have no rights in it other than to use it in accordance with this section and our other Terms. By using the Services, You agree to be bound by the terms of the license granted in this section.
Subject to payment of the applicable subscription fees and compliance with this section, Lark grants You a limited, revocable, non-transferable, non-sublicensable, non-exclusive license, under the rights Lark has in the Services, to privately display and perform the Services on Your Device for Your own personal, noncommercial purposes.
10.2 RESTRICTIONS ON LICENSE
You will not and will not allow a third party to:
10.2.1 Transfer, sublicense, or assign Your rights under this license to any other person or entity unless expressly authorized by Lark in writing provided, however that You may permit a third party to use the Services licensed to You under this section if such use is solely (a) on Your behalf, (b) for Your internal operations, and (c) in compliance with this section. You agree that You are liable for any breach of this section by that third party.
10.2.2 Copy, store, reproduce, modify, adapt or create derivative works of the Services.
10.2.3 Reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code for the Services or any component thereof.
10.2.4 Make the functionality of the Services available to third parties or the public, whether for free or on a rental, lease, loan, or other similar basis unless expressly authorized by Lark in writing.
10.2.5 Remove, modify, or conceal any product identification, copyright, proprietary, intellectual property notices or other marks on or within the Services.
10.2.6 Use the Services or any part of them to create any tool or software product that can be used to create software applications of any nature whatsoever.
10.2.7 Tamper with the Services or circumvent any technology used by Lark or its licensors to protect any content accessible through the Services.
10.2.8 Circumvent any territorial restrictions applied to the Services.
10.2.9 Use the Services in a way that violates this License Agreement or the other Terms.
10.3 DISTRIBUTION CONTENT
A limited amount of content will be marked and authorized for You to share in Your personal social channels (Facebook, Twitter, etc.) as part of Your blog or other online commentary, analysis or review (“Distribution Content”). With respect to Distribution Content, Lark grants You a limited right to download, reproduce and distribute such content over the internet. You may also modify such Distribution Content but only as required to technically enable the display and distribution of such content through Your computer systems and over the internet (e.g. a change in video format or file size) provided such modification does not materially alter the substance or quality of such content. Your display and distribution of Distribution Content may also be subject to other terms and conditions that are set forth in the description of such content in the Services, such as display and distribution of Distribution Content only within specified usage dates.
You agree not to publish the Distribution Content with other content that is known by You to be false, inaccurate, or misleading or that is, or that encourages activity or conduct that is, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable. Distribution Content may contain clear GIFs or cookies that enable us to collect information with respect to the distribution and consumption of such content.
10.4 VIOLATION OF LICENSE
If You violate the provisions of this Section 10, You may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Lark will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
11 LINKS TO APPS/SERVICES
We may provide links to other Apps or services for You to access. You acknowledge that any access is at Your sole discretion and for Your information only. We do not review or endorse any of those Apps or services. We are not responsible in any way for:(a) the availability of, (b) the privacy practices of, (c) the content, advertising, products, goods or other materials or resources on or available from, or (d) the use to which others make of these other Apps or services. We are also not responsible for any damage, loss or offence caused or alleged to be caused by, or in connection with, the use of or reliance on such Apps or services.
The Services must not be framed on any other website, nor may You create a link to any part of the Website or Services unless You have written permission to do so from Lark. We reserve the right to deny linking permission in our sole and absolute discretion. If You wish to make any use of material on the Website or the Services, please address Your request to firstname.lastname@example.org.
12 NO COMMERCIAL USE
The Services are not intended for commercial use. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by us without notice and may result in termination of privileges and the immediate cessation of Your right to use the Services.
13 AVAILABILITY OF SERVICES
Although we aim to offer You the best service possible, we make no promise that the Services will meet Your requirements and we cannot guarantee that the Services will be fault free. If a fault occurs in the Services, please report it to us at email@example.com and we will correct the fault as soon as we reasonably can. If the need arises, we may suspend access to the Services while we address the fault. We will not be liable to You if the Services are unavailable for any period of time.
Your access to the Services may be occasionally restricted to allow for repairs, maintenance or the introduction of new facilities or Services. We will restore the Services as soon as we reasonably can. In the event that the Services are unavailable, our usual order and cancellation deadlines apply; please notify us of changes to Your order via our email support@Lark.com.
14 SERVICES DISCLAIMERS
The information contained on the Services is for general information purposes only. While we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the Services or the information contained on the Services for any purpose. Any reliance You place on such information is therefore strictly at Your own risk.
15 MEDICAL DISCLAIMERS
Lark is a provider of mobile subscriptions for health and behavioral coaching content in the health & wellness space. We are not a medical device, nor do we provide medical advice. Lark is not a substitute for professional medical advice, diagnosis or treatment. Never disregard professional medical advice because of information You have received via the Services. While there is third party evidence that coaching can assist in the prevention and recovery process for a wide array of illnesses, Lark makes no claims or guarantees that this will be the case by using the Services. Any Member experiencing serious medical issues or needing medical advice should consult their doctor.
Any health information and links on the Services, whether provided by Lark or by contract from outside providers, is provided simply for Your convenience.
Any advice or other materials on the Services are intended for general information purposes only. They are not intended to be relied upon and are not a substitute for professional medical advice based on Your personal circumstances. The advice and other materials are intended to support the relationship between You and Your healthcare providers and not replace it. We are not liable or responsible for any actions taken due to Your having read or been told about such advice or other materials. In particular, to the fullest extent permitted by law, we give no representation or warranties about the accuracy, completeness, or suitability for any purpose of the advice, other materials and information published on the Services.
Lark does not endorse any specific product service or treatment plan and the benefits thereunder are subject to the terms of the applicable benefit agreement.
16 WARRANTIES; DISCLAIMERS OF WARRANTIES
Unless otherwise provided in a sponsored plan MSA, Lark provides the service “as is” and “as available”. To the maximum extent permitted by law, Lark makes no representations, warranties or conditions of any kind, express or implied, as to the operation of the services or the information, software, or content included in the services. Lark makes no representations or warranties that the services will be uninterrupted, error-free, virus-free, secure, or timely. To the maximum extent permitted by law, Lark expressly disclaims all representations, warranties or conditions of any kind, whether express or implied, including the implied representations, warranties or conditions of merchantability, fitness for a particular purpose, title, non-infringement and those arising from a course of dealing, trade, usage or performance. Some jurisdictions do not allow limitations on implied warranties, and therefore some of the above limitations may not apply to you. We urge you to keep backup copies of your member content, if any, that you maintain on or use with the services. If your use of the service results in the need for servicing or replacing property, material, equipment or data, we are not responsible for any resulting costs or damages.
In addition, Lark is not liable for:
16.1 Faulty operation of Devices during the registration process or during completion of a subscription or during the transmission of any data and/or for incorrect or overly slow transmission of data by the internet provider and/or any damage that occurs due to information submitted by You not being received by us or not being received promptly or not being considered, as a consequence of technical faults with our software or hardware (whether or not they are within or outside of our control).
16.2 Any loss or damage due to viruses or other malicious software that may infect Your Device, computer equipment, software, data or other property caused by You accessing, using or downloading from the Services, or from transmissions via emails or attachments received from us.
16.3 Any use of the Apps linked to the Services but operated by third parties.
17 LIMITATION ON LIABILITY
18 INDEMNITY BY YOU
You agree to hold Lark, and its subsidiaries, affiliates, officers, directors, employees, agents, attorneys, and suppliers, and each of their respective successors and assigns (collectively, the “Indemnified Persons”), harmless from, and indemnify them for, all damages, costs, expenses and other liabilities, including reasonable attorneys’ fees and expenses, relating to any claim arising out of or related to: (i) Your access to and use of the Services; (ii) Your violation of these Terms, and any applicable law or the rights of another person or party; (iii) any dispute You have with any Member of the Services; (iv) Lark’s resolution (if any) of any dispute You have with any Member of the Services; (v) Your improper authorization for Lark to collect, use or disclose any Member Content provided by You; (vi) Your improper use or handling of the Distribution Content; and (vi) any disclosures made with Your permission.
19 DISPUTE RESOLUTION; ARBITRATION AND DISPUTE RESOLUTION AGREEMENT
Please Read This Following Section Carefully—It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
19.1 INITIAL DISPUTE RESOLUTION
We are available by email at firstname.lastname@example.org to address any concerns You may have regarding Your use of the Services. Most concerns may be quickly resolved in this manner. The parties shall use their 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.
19.2 AGREEMENT TO BINDING ARBITRATION
If the parties do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 19.1 above, then either party may initiate binding arbitration in Santa Clara, California. 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 by the American Arbitration Association (“AAA”) on a confidential basis in accordance with the provisions of AAA’s Consumer Arbitration Rules, excluding any rules or procedures governing or permitting class actions. 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 this agreement, including, but not limited to any claim that all or any part of this agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. The arbitrator’s award shall be final and binding on the parties and may be entered as a judgment in any court of competent jurisdiction, subject to review in accordance with applicable statutes governing arbitration awards. The interpretation and enforcement of this agreement shall be governed by the Federal Arbitration Act.
THE AAA’S RULES GOVERNING THE ARBITRATION MAY BE ACCESSED AT WWW.ADR.ORG OR BY CALLING THE AAA AT 1.800.778.7879. TO THE EXTENT THE FILING FEE FOR THE ARBITRATION EXCEEDS THE COST OF FILING A LAWSUIT, WE WILL PAY THE ADDITIONAL COST. A REQUEST FOR PAYMENT OF FEES SHOULD BE SUBMITTED TO AAA ALONG WITH YOUR FORM FOR INITIATING THE ARBITRATION, AND WE WILL MAKE ARRANGEMENTS TO PAY ALL NECESSARY FEES DIRECTLY TO AAA. IF THE ARBITRATOR FINDS THE ARBITRATION TO BE NON-FRIVOLOUS, WE WILL PAY ALL OF THE ACTUAL FILING AND ARBITRATOR FEES FOR THE ARBITRATION, PROVIDED YOUR CLAIM DOES NOT EXCEED $75,000. THE ARBITRATION RULES ALSO PERMIT YOU TO RECOVER ATTORNEY’S FEES IN CERTAIN CIRCUMSTANCES.
THE PARTIES UNDERSTAND THAT, ABSENT THIS MANDATORY PROVISION, THEY WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL. THEY FURTHER UNDERSTAND THAT, IN SOME INSTANCES, THE COSTS OF ARBITRATION COULD EXCEED THE COSTS OF LITIGATION AND THE RIGHT TO DISCOVERY MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT.
19.3 CLASS ACTION AND CLASS ARBITRATION WAIVER
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their 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 in Section 19.2 shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
19.4 EXCEPTION - SMALL CLAIMS COURT CLAIMS
Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
19.5 EXCEPTION - CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT (PAGA) ACTION
Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
19.6 30 DAY RIGHT TO OPT OUT
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 19.2, 19.3, and 19.4 by sending written notice of Your decision to opt-out to the following email address: email@example.com. The notice must be sent within thirty (30) days of registering to use the Services, otherwise You shall be bound to arbitrate disputes in accordance with the terms of those sections. If You opt-out of these arbitration provisions, we also will not be bound by them.
19.7 EXCLUSIVE VENUE FOR LITIGATION
To the extent that the arbitration provisions set forth in Section 19.2 do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Santa Clara, California (except for small claims court actions which may be brought in the county where You reside). The parties expressly consent to the exclusive jurisdiction in Santa Clara, California for any litigation other than small claims court actions.
20 MODIFICATION OR CHANGES TO TERMS
We have the right to revise and amend these Terms from time to time without notice to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities. We will provide notice to You of any material change in the Terms by posting notice to the Website. Your continued use of the Services after such changes are made conclusively demonstrates Your acceptance of such changes. If Your purchase of the Services is on-going, we will give You prior notice of any changes to these Terms and You may elect to cancel the Services without penalty before the changed Terms affect You.
It is critical that You keep Your email contact information correct and updated with Lark at all times. In addition, we encourage You to check back regularly to review these Terms at least once every thirty (30) days.
21 MODIFICATIONS TO SERVICE
We reserve the right to modify or discontinue, and restrict or block access to, the Services without notice to You. We may modify or remove any content from the Services at any time without notice to You. We are not liable for any such modification, suspension, discontinuance or removal, and any such action by us will not affect Lark’s license to Member Content as stated in Section 9 above.
In addition to the foregoing, Lark’s policies and practices on the collection, use and handling of Your personal information shall be done in accordance with all applicable local laws and regulations.
23 GENERAL TERMS AND CONDITIONS
23.1 ASSIGNMENT BY US
Lark may transfer its rights and obligations under these Terms to any company, firm or person at any time if it does not materially affect Your rights under it. You may not transfer Your rights or obligations under these Terms to anyone else. These Terms are personal to You and no third party is entitled to benefit under these Terms except as set out here.
23.2 APPLICABLE LAW
Your use of the Services is governed by these Terms and these Terms shall be construed and enforced in accordance with the laws of the State of California, United States. Disputes arising from or in connection with Your use of the Services we provide are subject to the non-exclusive jurisdiction of the US and state courts located in the State of California.
We make no representations that the Services are appropriate or available for use outside of the United States or the UK. If You access the Services from any other jurisdiction You do so out of Your own volition and You are responsible for compliance with the applicable laws.
23.3 NO WAIVER
If we delay exercising or fail to exercise or enforce any right available to us under these Terms, such delay or failure does not constitute a waiver of that right or any other rights under these Terms.
23.4 FORCE MAJEURE
We will not be liable to You for any lack of performance, or the unavailability or failure, of the Services, or for any failure or delay by us to comply with these Terms, where such lack, unavailability or failure arises from any cause beyond our reasonable control.
In these Terms, unless the context requires otherwise: i) any phrase introduced by the words "including", "include", "in particular", "for example" or any similar expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and ii) references to the singular include the plural and to the masculine include the feminine, and in each case vice versa.
23.6 WRITTEN COMMUNICATIONS
Applicable laws require that some of the information or communications we send to You should be in writing. When using the Services, You accept that communication with us will be mainly electronic (including via text message). We will contact You by email or by text message, or provide You with information by posting notices on the Services. You agree to this electronic means of communication (including via text message) and You acknowledge that all contracts, notices, information and other communications that we provide to You electronically (including via text message) comply with any legal requirement that such communications be in writing. This condition does not affect Your statutory rights.
All notices given by You to us must be given to Lark at firstname.lastname@example.org. We may give notice to You at the email address You provide to us when You register, or in any of the ways specified in Section 23.6 above. Notice will be deemed received and properly served immediately when posted on the Services or when an email is sent. In proving the service of any notice, it will be sufficient to prove that such email was sent to the specified email address of the addressee.
If any court or competent authority decides that any of the provisions of these Terms are invalid, unlawful or unenforceable to any extent, the provision will, to that extent only, be severed from the remaining provisions, which will continue to be valid to the fullest extent permitted by law.
23.9 ENTIRE AGREEMENT
These Terms and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to their subject matter. We each acknowledge that neither of us relies on, or will have any remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms or the documents referred to in them. Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. Nothing in this section limits or excludes any liability for fraud.
23.10 THIRD PARTY RIGHTS
A person who is not a party to these Terms will not, subject to Section 19 (Dispute Resolution), have any rights under or in connection with these Terms.
23.11 COPYRIGHT INFRINGEMENT/DMCA
Lark respects the intellectual property rights of others and requests that users of the Services do the same. If You believe that Your work is being used in connection with the Services in a way that constitutes copyright infringement, You may notify us by providing our copyright agent with the following information in writing: (a) the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf; (b) identification of the copyrighted work that You claim has been infringed; (c) identification of the material that is claimed to be infringing and information reasonably sufficient to permit Lark to locate the material (for example, by providing a URL to the material); (d) Your name, address, telephone number, and email address; (e) a statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in Your notification is accurate and a statement, made under penalty of perjury, that You are the copyright owner or are authorized to act on the copyright owner’s behalf.
Our designated agent to receive notification of claimed infringement can be reached at:
Scherer Smith & Kenny LLP
Attn: Brandon D. Smith
140 Geary Street, 7th Floor
San Francisco, CA 94108
It is our policy to terminate in appropriate circumstances any account or Member for repeated infringement of intellectual property rights, including copyrights, and we also reserve the right to terminate an account or Member for even one instance of infringement.