Terms & Conditions
1 GENERAL INFORMATION
1.1 LARK SERVICES
These Terms & Conditions (these “Terms”) contain the terms and conditions on which we supply content, products or services listed on www.lark.com (the “Website”), through our applications (the “Apps”) or via partner Apps or other delivery methods to you (the Website and such content, products, services and the Apps are collectively referred to herein as the “Services”). Please read these terms and conditions, carefully before ordering any Services from the Website or third party stores (e.g. the Apple App Store, the Android Play Store, Amazon, etc.). The terms “Lark,” “us” or “we” refers to Lark Technologies, Inc. The term “Device” refers to the device which is used to access the Services including but not limited to computers, smart phones and tablets. The term “you” refers to the user of the Services. When you order (“Order”) any Services from the Website, or otherwise use or access the Website and Apps or other Services, you agree to be bound by these Terms and all applicable laws, rules and regulations. You may also be asked to click “I accept” at the appropriate place prior to your purchase of or other access to the Services. At such time, if you do not click “I accept”, you will not be able to complete such purchase or gain such access. By using the Website or other Services, you indicate that you accept these Terms and that you agree to abide by them. If you do not agree to these Terms, please refrain from using the Website and other Services.
Our contact email address is email@example.com. All correspondence to Lark including any queries you may have regarding your use of the Website or other Services or these Terms should be sent to our contact email address.
1.2 BASIS OF SALE
(a) These Terms and the Order set out the whole agreement between you and us for the supply of the Services. In order to participate in certain Services, you may be notified by us that you are required to agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to such Services in which you choose to use, those additional terms are hereby incorporated into these Terms.
(b) Please check that the details in these Terms and on the Order are complete and accurate before you use or commit yourself to purchase the Services. If you think that there is a mistake, please make sure that you ask us to confirm any changes in writing, as we only accept responsibility for statements and representations made in writing by an officer of Lark.
1.3 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. 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.
2 MEMBERSHIPS AND SUBSCRIPTIONS
2.1 BECOMING A MEMBER
You may sign up as a Lark registered user of the Website and Apps free of charge (a “Member”). To become a Member you need to go to the relevant section of the Website, and/or Apps then submit your email address to us, 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.
By placing an Order through the Website or other Services, 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 placement of an Order 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.
2.2 ONCE A MEMBER
You are responsible for maintaining the confidentiality of your account, password and other User Information and for restricting access to your Device to further help protect such information. You are responsible for updating your User Information.
2.3 USE OF LARK BY MINORS
Children between the ages of 13 and 18 or the age of majority in their jurisdiction of residence ("Minors") may use the Services. Lark recommends, but does not require, that use by such Minors be done with the guidance and support of their parents, guardians, authorized school officials, or other qualified adults. If you are a parent or guardian and you allow your Minor to use the Services, you agree to be bound by the Minor's use of the Services and by these Terms. Children under the age of 13 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.
As a Lark App Member you will receive access to certain sections, features and functions of the Services that are not available to non-members.
By agreeing to become a Member you opt in to receiving occasional special offer, marketing, and Journey based communication emails. You can easily unsubscribe from these emails by following the opt-out instruction in these emails.
Lark memberships and subscriptions are not transferable and therefore cannot be sold or exchanged or transferred in any way whatsoever.
2.5 DEVICE REQUIREMENTS
To enjoy Lark via your smartphone or other Device, your Device must satisfy certain system requirements. These requirements can be found on the Website and the Google, Apple and Amazon App marketplaces.
“Gift Subscriptions” are pre-paid memberships to the Service. A person who purchases the gift is referred to in these terms as the “Giftor”. A person who receives and redeems a Gift Subscription to the Service is referred to in these terms as the “Recipient”. Gift subscriptions are paid for as a one-off upfront payment. Once bought, the Giftor will receive an Order confirmation and receipt. The Lark gift subscription will be sent to the Recipient on the Giftor’s specified date. Gifting codes can only be used once in the country for which they were purchased and cannot be redeemed for cash, resold or combined with any other offers, including free trial. Please note that gifting codes cannot be redeemed if the Recipient has already purchased a subscription through the Apple iTunes Store or our iPhone application. We will automatically bill the Payment Method you provided for any purchased Gift Subscriptions at the time of purchase, not delivery. There are no refunds or other credits for Gift Subscriptions, which are not redeemed. Lark will notify the Recipient prior to the end of the Gift Subscription that the gift period is about to expire. Lark is not responsible if a Gift Subscription is lost, stolen or used without permission.
2.7 CORPORATE AND OTHER CONSUMER COMMUNITIES
While Lark is a consumer products company, there is increasing interest by large consumer communities (corporations, healthcare partners, hospitals, etc.) (“Communities”) to introduce the Services to their employees and members. In some cases, these Communities may supplement these Terms with their own terms and conditions. In such event, these Community terms and conditions shall also apply to your use of the Services. In the event of any conflict with such additional terms and these Terms, these Terms shall prevail.
3 CANCELLATION OF SERVICES
3.2 CANCELLATION BY US
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. A breach of these Terms, includes without limitation, the unauthorized copying or download of our audio or video content from the Website or the Apps.
3.3 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 user. No promotion code or discount will apply to corporate or other Community subscriptions.
4 PROHIBITED USE OF THE SERVICES
You agree not to 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. You agree not to interfere with the servers or networks underlying or connected to the Website or the other Services or to violate any of the procedures, policies or regulations of networks connected to the Website or the other Services. You may not access the Website or the other Services in an unauthorized manner.
You agree not to 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.
By breaching the provisions of this section 4, you may commit a criminal offence under applicable laws. We may report any such breach to the relevant law enforcement authorities and we may 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.
5 MATERIALS OFFERED THROUGH THE SERVICES
All materials (including software and content whether downloaded or not) contained on the Website or the other Services are owned by Lark (or our affiliates and/or third party licensors, where applicable), unless indicated otherwise. You agree and acknowledge that the materials are valuable property and that other than any specific and limited license for use of such materials, you shall not acquire any ownership rights in or to such materials. The materials may not be used except as provided for in these Terms, and any other relevant terms and conditions provided to you without our prior written permission.
You acknowledge and agree that certain materials on the Website and in the other Services are 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.
Audio or video content from the Lark Journey not explicitly indicated as downloadable may not be downloaded or copied from the Website or the other Services or any Device.
The Website and the other 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. You must not use any part of the materials used on the Website or the other Services for commercial purposes without obtaining a written license to do so from us. Material from the Website or the other Services may not be copied or distributed, or republished, or transmitted in any way, without our prior written consent. Any unauthorized use or violation of these Terms immediately and automatically terminates your right to use the Website and the other Services and may subject you to legal liability. You agree not to use the Website or the other Services for illegal purposes (including, without limitation, unlawful, harassing, libelous, invasion of another’s privacy, abusive, threatening or obscene purposes) and you agree that you will comply with all laws, rules and regulations related to your use of the Website and the other Services. Appropriate legal action may be taken for any illegal or unauthorized use of the Website or the other Services.
A limited amount of content will be marked and authorized for the user to share in their personal social channels (Facebook, Twitter, etc.). With respect to content made available by Lark through the Services that is specifically identified as available for distribution by you (“Distribution Content”) as part of your blog or other online commentary, analysis or review (“User Commentary”), Lark grants you a limited right to download, reproduce and distribute such content over the internet as part of your User Commentary. 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, libellous, 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.
You may not otherwise 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. If you make other use of the Services, or the content, code, data or materials thereon, except as otherwise provided above, 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.
5.2 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 other 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.
6 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 firstname.lastname@example.org 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 help@Lark.com.
7 USER MATERIAL
The Services may let you submit material to us: for example, you can upload a photo to your profile, post subjects and comments in the community and comment on various matters in various parts of the Services. You may be able to upload video, images or sounds. In these Terms, we use the term “User Material” to refer to any material of any kind that you submit to us, including text, files, images, photos, video, sounds and musical or literary works. User Material does not include the account information you provide when you register as a Member or when you subsequently change that information.
This section 7 sets out the rights and obligations that each of us have in connection with User Material. If you review or submit User Material you are agreeing to do so in accordance with these Terms. If you do not want to review or submit User Material in accordance with these Terms, then you should not do so.
We do not systematically review User Material submitted by you or other users. We are not responsible for the content of User Material provided by you or any other user. We do not necessarily endorse any opinion contained in such material. We make no warranties or representations, express or implied, about User Material, including as to its legality or accuracy. We disclaim all liability in connection with User Material to the extent permitted by law.
We reserve the right, in our sole discretion, to refuse to post or to remove or edit any of your User Material, or to restrict, suspend, or terminate your access to all or any part of the Services, particularly where User Material breaches this section 7, and we may do this with or without giving you any prior notice.
We may link User Material or parts of User Material to other material, including material submitted by other users or created by Lark or other third parties.
Each time you submit User Material to us, you represent and warrant to us as follows:
You own your User Material 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 trade mark), privacy or publicity rights, rights of confidentiality or rights under contract.
Your User Material 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.
Your User Material does not advertise any product or service or solicit any business.
Your User Material does not identify any individual (including by way or name, address or a still picture or video) under the age of 18 and if User Material identifies any individual over the age of 18, you have that person's consent to being identified in exactly that way in your User Material; and in submitting your User Material you are not impersonating any other person.
You will not collect usernames and/or email addresses of users for the purpose of sending unsolicited email.
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 user or person.
You will not engage in any automated use of the system, such as using scripts to alter our content.
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.
You will not attempt to probe, scan, or test the vulnerability of the Website, the Apps or any other Lark system or network or breach any security or authentication measures.
8 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.
You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists. You must not establish a link from any Website that is not owned by you. The Website and the other Services must not be framed on any other Website, nor may you create a link to any part of the Website or the other Services unless you have written permission to do so from Lark. We reserve the right to withdraw linking permission with written notice. The Website from which you are linking must comply in all respects with the content standards set out in our acceptable use policy. If you wish to make any use of material on the Website or the other Services other than that set out above, please address your request to email@example.com.
9 SERVICES DISCLAIMER
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.
10 MEDICAL DISCLAIMER
Lark is a provider of online and 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. 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 user 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.
11 LICENSE AGREEMENT
Subject to the terms of this License Agreement, and these other Terms, and your payment of applicable subscription fees, Lark grants you a limited, non-exclusive, revocable license to stream, download and make personal non-commercial use of the Services.
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 rights 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 License Agreement and our other Terms.
You agree that you will not and you will not assist or permit any third party to:
Copy, store, reproduce, transmit, modify, alter, reverse-engineer, emulate, de-compile, or disassemble and Services in any way, or create derivative works of the Services;
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;
Rent, lease, loan, make available to the public, sell or distribute the Services in whole or in part;
Tamper with the Services or circumvent any technology used by Lark or its licensors to protect any content accessible through the Services;
Circumvent any territorial restrictions applied to the Services; or
Use the Services in a way that violates this License Agreement or the other Terms.
You may not make the Services available to the public.
The Services made available (in whole or in part) are owned by Lark or its licensors and your use of them must be in accordance with these Terms.
12 DISPUTE RESOLUTION
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Lark agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Lark are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Lark otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at https://www.adr.org/active-rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Lark otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Lark submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Lark will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Lark will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Lark changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Lark’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Lark in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
13 GENERAL TERMS AND CONDITIONS
13.2 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.
13.3 INDEMNITY BY YOU
You agree to defend, indemnify and hold Lark and its directors, officers, members, investors, managers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Services, your placement or transmission of any message, content, information, software, or other submissions through the Services, or your breach or violation of the law or of these Terms. Lark reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Lark defense of such claim.
13.4 WARRANTIES AND LIMITATIONS
(a) We warrant to you that any Service purchased from us will, on delivery, conform in all material respects with its description and be of reasonably satisfactory quality.
(b) We warrant that we will use reasonable skill and care in making the Services available to you during your subscription.
(c) Nothing in this sections 13.4 or otherwise in these Terms shall exclude or in any way limit Lark’s liability for: fraud; or death or personal injury caused by its negligence; or liability to the extent the same may not be excluded or limited as a matter of law.
(d) The Services and their content are otherwise provided on an “as is” basis and we make no representations or warranties of any kind with respect to it, including as to the accuracy, completeness or currency of the Services or their content. We assume no liability or responsibility for any errors or omissions in the content of the Services, or any failures, delays, or interruptions in the provision of the Service. We disclaim and exclude any express or implied warranties or representations, including any warranties as to merchantability or fitness for a particular purpose of the Services to the broadest extent permitted by law. We make no warranties or representations, express or implied, as to the timeliness, accuracy, quality, completeness or existence of the content and information posted on the Services. We make no warranties or representations, express or implied, for technical accessibility, fitness or flawlessness of the Services. We make no warranties or representations that your use of content and information posted on the Services will not infringe rights of third parties.
(e) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity are, to the extent permitted by law, excluded.
13.5 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.
13.6 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.
13.7 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.
13.9 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. We will contact you by e-mail or provide you with information by posting notices on the Services. You agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically 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 email@example.com. We may give notice to you at the e-mail address you provide to us when you register, or in any of the ways specified in section 13.9 above. Notice will be deemed received and properly served immediately when posted on the Services or when an e-mail is sent. In proving the service of any notice, it will be sufficient to prove that such e-mail was sent to the specified e-mail 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.
13.12 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.
13.13 THIRD PARTY RIGHTS
A person who is not party to these Terms will not, subject to section 12 (DMCA), have any rights under or in connection with these Terms.
13.14 OUR LIABILITY
We will use reasonable endeavors to remedy faults in the Services. If we fail to comply with these Terms, we will be liable to you only for the purchase price of the Service in question. In addition, we will not be liable for:
Faulty operation of computers 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).
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 Website or any other Service, or from transmissions via emails or attachments received from us.
Any use of Apps linked to the WEbsite or the other Services but operated by third parties.
These Terms are effective and were last updated on May 18th, 2018.
PLEASE READ THIS LICENSE AGREEMENT ('AGREEMENT') CAREFULLY BEFORE USING THE SOFTWARE APPLICATION PRODUCTS AND SERVICES ("APP") OFFERED BY LARK TECHNOLOGIES, INC. ('LARK'). BY DOWNLOADING THE LARK SOFTWARE APPLICATION ("APP") OR USING THE LARK APPS OR SERVICES IN ANY MANNER, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.
IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL THE TERMS AND CONDITIONS OF THE AGREEMENT, YOU HAVE NO RIGHT TO USE THE WEBSITE, APPS, OR SERVICES. TO REJECT THESE TERMS, YOU MUST DELETE THE APP FROM YOUR MOBILE DEVICE IMMEDIATELY.
1. ACCESS TO THE SERVICES. The App or application services offered from time to time by Lark in connection therewith are owned and operated by Lark. Lark may offer to provide certain services to you through the App, as described more fully on the App, that have been selected by you through the process provided on the App (together with the App, 'Services'). The term 'Services' shall include, without limitation, use of the App, any service Lark performs for you and the content offered by Lark on the App. Lark may change, suspend or discontinue the Services at any time, including the availability of any feature, database, or content. Lark may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. You may only use the Services and the App for your own personal, non-commercial use, and not for the use or benefit of any third party. You may only use the App in connection with the Services, and for no other use. Any software component embodied in the App is licensed to you, and not sold. Lark reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on the App, or by sending you a notice via email or postal mail. You shall be responsible for reviewing and becoming familiar with any such modifications. Your use of the Services or the App following such notification constitutes your acceptance of the terms and conditions of this Agreement as modified.
Lark does not knowingly collect or solicit personal information from anyone under the age of 13 or knowingly allow such persons to register for the Services. If you are under 13, please do not attempt to register for the Services or send any information about yourself to us, including your name, address, telephone number, or email address. No one under age 13 may provide any personal information to Lark or on the Services. In the event that we learn that we have collected personal information from a child under age 13 without verification of parental consent, we will delete that information as quickly as possible. If you believe that we might have any information from or about a child under 13, please contact us at firstname.lastname@example.org.
You represent and warrant to Lark that: (i) you are an individual (i.e., not a corporation) and you either are of legal age to form a binding contract or have your parent's permission to do so, and you are at least 13 years or age or older; (ii) all registration information you submit is accurate and truthful; and (iii) you will maintain the accuracy of such information. You understand and acknowledge that if you do not keep your account current and up-to-date, the App may not function properly. You also certify that you are legally permitted to use and access the Services and the App and take full responsibility for the selection and use of and access to the Services and the App. This Agreement is void where prohibited by law, and the right to access the Services and the App is revoked in such jurisdictions.
You shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, or otherwise use the Services and the App, including, without limitation, modems, hardware, software, and long distance or local telephone service. You shall be responsible for ensuring that such equipment or ancillary services are compatible with the Services and App.
2. APP CONTENT. The App and its contents are intended solely for the personal, non-commercial use of App users and may only be used in accordance with the terms of this Agreement. All materials displayed or performed on the App (including, but not limited to text, graphics, articles, photographs, images, illustrations (also known as the 'Content')) are protected by copyright. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the Services, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any third party right.
The App is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section 2), create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part.
You may download or copy the Content (and other items displayed on the App for download) for personal non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. You shall not store any significant portion of any Content in any form. Copying or storing of any Content other than personal, noncommercial use is expressly prohibited without prior written permission from Lark or from the copyright holder identified in such Content's copyright notice. You shall not link to the App without Lark's prior written consent.
Under no circumstances will Lark be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred in connection with use of or exposure to any Content posted, emailed, accessed, transmitted, or otherwise made available via the Services.
3. YOUR WARRANTY. You warrant, represent and agree that you will not contribute any Content or otherwise use the Services or the App in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; (iv) involves commercial activities and/or sales without Lark's prior written consent such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including without limitation any employee or representative of Lark; or (vi) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program. Lark reserves the right to remove any Content from the Services at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content or if Lark is concerned that you may have breached the immediately preceding sentence), or for no reason at all. You, not Lark, remain solely responsible for all Content that you upload, post, email, transmit, or otherwise disseminate using, or in connection with, the Services, and you warrant that you possess all rights necessary to provide such content to Lark and to grant Lark the rights to use such information in connection with the Services and as otherwise provided herein.
4. RESTRICTIONS. You are responsible for all of your activity in connection with the Services and the App. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the Services or the App. You may not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Lark user. Use of the Services or the App to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity is expressly prohibited. You will not run Maillist, Listserv, any form of auto-responder, or 'spam' on the Services, or any processes that run or are activated while you are not logged on to the App, or that otherwise interfere with the proper working of or place an unreasonable load on the Services' infrastructure. Further, the use of manual or automated software, devices, or other processes to 'crawl,' 'scrape,' or 'spider' any page of the App is strictly prohibited. You will not decompile, reverse engineer, or otherwise attempt to obtain the source code of the Services or the App. You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Services and the App.
5. WARRANTY DISCLAIMER. Lark has no special relationship with or fiduciary duty to you. You acknowledge that Lark has no control over, and no duty to take any action regarding: which users gain access to the Services; what Content you access via the Services; what effects the Content may have on you; how you may interpret or use the Content; or what actions you may take as a result of having been exposed to the Content. You release Lark from all liability for you having acquired or not acquired Content through the Services. The Services may contain, or direct you to websites containing, information that some people may find offensive or inappropriate. Lark makes no representations concerning any content contained in or accessed through the Services, and Lark will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services.
THE SERVICES, APP, CONTENT, WEBSITE AND ANY SOFTWARE ARE PROVIDED ON AN 'AS IS' BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
7. REGISTRATION AND SECURITY. As a condition to using the App or some aspects of the Services, you may be required to register with Lark and select a password and user name ('Lark User ID'). You shall provide Lark with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of your account. You may not (i) select or use as a Lark User ID a name of another person with the intent to impersonate that person; or (ii) use as a Lark User ID a name subject to any rights of a person other than you without appropriate authorization. Lark reserves the right to refuse registration of or cancel a Lark User ID in its discretion. You shall be responsible for maintaining the confidentiality of your password.
8. INDEMNITY. You will indemnify and hold Lark, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of your access to or use of the Services or the App, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL LARK OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE WEBSITE, THE APP, THE SERVICES, OR THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFOR OR $200; (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND LARK'S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
10. THIRD PARTY WEBSITES. The Services may contain links to third party websites that are not owned or controlled by Lark. When you access third party websites, you do so at your own risk. You hereby represent and warrant that you have read and agreed to be bound by all applicable policies of any third party websites or services relating to your use of the Services and that you will act in accordance with those policies, in addition to your obligations under this Agreement. Lark has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites. In addition, Lark will not and cannot monitor, verify, censor or edit the content of any third party site.
By using the Services, you expressly relieve and hold harmless Lark from any and all liability arising from your use of any third party website. Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Lark shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. If there is a dispute between participants on this site, or between users and any third party, you understand and agree that Lark is under no obligation to become involved. In the event that you have a dispute with one or more other users, you hereby release Lark, its officers, employees, agents, and successors in rights from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our service. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: 'A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.'
11. TERMINATION. This Agreement shall remain in full force and effect while you use the Services. You may terminate your use of the Services or your membership at any time by following the instructions on the App. Lark may terminate or suspend your access to the Services, your right to use the App, or your membership at any time, for any reason, and without warning, which may result in the forfeiture and destruction of all information associated with your membership. Lark may also terminate or suspend any and all Services, your right to use the App, and access to the App immediately, without prior notice or liability, if you breach any of the terms or conditions of this Agreement. Upon termination of your account, your right to use the Service and App, and to access the App and any Content, will immediately cease. All provisions of this Agreement which, by their nature, should survive termination, shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, and limitations of liability.
12. MISCELLANEOUS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Lark shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Lark's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including 'line-noise' interference). If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Lark's prior written consent. Lark may transfer, assign or delegate this Agreement and its rights and obligations without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Lark in any respect whatsoever.
13. ARBITRATION; GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Santa Clara County, California using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ('JAMS') then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Any arbitration under this Agreement will take place on an individual basis: class arbitrations and class actions are not permitted. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND LARK ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Northern District of California.
14. COPYRIGHT DISPUTE POLICY. Lark has adopted the following general policy toward copyright infringement in accordance with the Digital Millennium Copyright Act or DMCA (posted at www.lcweb.loc.gov/copyright/legislation/dmca.pdf). The address of Lark's Designated Agent to Receive Notification of Claimed Infringement ('Designated Agent') is listed at the end of this Section. It is Lark's policy to (1) block access to or remove material that it believes in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue service to repeat offenders.
A. Procedure for Reporting Copyright Infringements:
If you believe that material or content residing on or accessible through the Services infringes a copyright, please send a notice of copyright infringement containing the following information to the Designated Agent listed below:
A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Lark is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material identified in (3) is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
B. Once Proper Bona Fide Infringement Notification is Received by the Designated Agent:
It is Lark's policy:
to remove or disable access to the infringing material;
to notify the content provider, member or user that it has removed or disabled access to the material; and
that repeat offenders will have the infringing material removed from the system and that Lark will terminate such content provider's, member's or user's access to the Services.
C. Procedure to Supply a Counter-Notice to the Designated Agent:
If the content provider, member or user believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider, member or user believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider, member, or user, must send a counter-notice containing the following information to the Designated Agent listed below:
A physical or electronic signature of the content provider, member or user;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
A statement that the content provider, member or user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
Content provider's, member's or user's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider's, member's or user's address is located, or, if the content provider's, member's or user's address is located outside the United States, for any judicial district in which Lark is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Lark may send a copy of the counter-notice to the original complaining party informing that person that Lark may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Lark's discretion.
Please contact Lark's Designated Agent to Receive Notification of Claimed Infringement at the following address:
Designated Agent to Receive Notification of Claimed Infringement:
Lark Technologies Inc.
2570 W El Camino Real, Suite 100
Mountain View, CA 94040
15. SAMSUNG DEVICE AND APPLICATION TERMS. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE APPLICATION THAT IS INCLUDED HEREIN, AND ANY SERVICE AND CONTENT PROVIDED TO YOU THROUGH SUCH APPLICATION, ARE BEING PROVIDED TO YOU BY LARK AND NOT BY SAMSUNG ELECTRONICS CO., LTD. ("SAMSUNG").
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, SAMSUNG IS NOT RESPONSIBLE FOR ANY PRIVACY OR ANY OTHER PRACTICES OF LARK AND EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY SUCH APPLICATIONS, SERVICES, CONTENTS OR YOUR USE THEREOF.
16. APPLE DEVICE AND APPLICATION TERMS. YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE APPLICATION THAT IS INCLUDED HEREIN, AND ANY SERVICE AND CONTENT PROVIDED TO YOU THROUGH SUCH APPLICATION, ARE BEING PROVIDED TO YOU BY LARK AND NOT BY APPLE INC. ("APPLE").
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, APPLE IS NOT RESPONSIBLE FOR ANY PRIVACY OR ANY OTHER PRACTICES OF LARK AND EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY SUCH APPLICATIONS, SERVICES, CONTENTS OR YOUR USE THEREOF.
CONTACT. If you have any questions, complaints, or claims with respect to the Services, you may contact us at http://support.lark.com or Lark Technologies Inc., 2570 W El Camino Real, Suite 100 Mountain View, CA 94040 or 408-915-5275.
Lark is a registered trademark of Lark Technologies, Inc., an A.I. healthcare provider, providing care for patients suffering from or at risk of chronic disease through the use of A.I. coaches. Lark is not a medical device, nor does it provide medical advice. Lark is not a substitute for professional medical advice, diagnosis or treatment. Anyone experiencing serious medical issues or needing medical advice should consult their doctor. Lark does not endorse any specific product service or treatment Health care plans and the benefits thereunder are subject to the terms of the applicable benefit agreement.