Terms and Conditions
Last Updated: October 31, 2022
THIS DOCUMENT CONTAINS AN ARBITRATION AGREEMENT AND CLASS ACTION WAIVER WHICH AFFECT YOUR LEGAL RIGHTS. YOU SHOULD REVIEW THIS DOCUMENT IN ITS ENTIRETY BEFORE ACCESSING OR USING THE SERVICES.
These terms and conditions (“Terms”) are a binding contract between Lark Technologies, Inc. (“Lark”, “us”, “our,” or “we”), and you.
These Terms contain the terms and conditions on which we supply content, products, software, and services through our website and all subdomains of, lark.com (the “Website”), our mobile applications (the “App(s)”) or via partner applications or other delivery methods to you (the Website and such content, products, programs, pilot programs, services, software, and the Apps are collectively referred to herein as the “Services”). You must agree to these Terms before using the Services. By using the Services, you agree to be bound and abide by these Terms and all applicable laws, rules, and regulations. If you do not agree to these Terms, you may not use the Services.
All references to “you” and “your,” as applicable, mean the person who accesses, uses, and/or participates in the Services in any manner, and each of your heirs, assigns, and successors. If you use the Services on behalf of an entity or another individual, you represent and warrant that you have the authority to bind that entity or individual, your acceptance of the Terms will be deemed an acceptance by that entity or individual, and “you” and ”your” herein shall refer to that entity, its directors, officers, employees, and agents.
1 LARK SERVICES
Lark provides real-time chat-based digital coaching and health-related information to our users. The programs covered by these Terms, include, without limitation: Diabetes Management, the Lark Diabetes Prevention Program (“DPP”), the extended Diabetes Prevention Program (“DPP Continued”), Hypertension Management, and Wellness or Well-being Coaching (the “Wellness Coaching”). In certain programs, you may be eligible to receive a third-party personal health-related device to help you better engage with the program. Please consult with your healthcare provider to determine whether the Services are appropriate for you. Some Services may be subject to additional guidelines, rules, or terms that are made available to you on the Services and govern the applicable Services. The Services can be accessed through a compatible Device. As used herein, the term “Device” refers to the device that is used to access the Services, including but not limited to computers and smartphones.
2 WHO MAY USE THE SERVICES
2.1 You may use the Services only if you can form and 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 Lark has previously prohibited you from accessing or using the Services, you are not permitted to access or use the Services.
2.2 In addition, the Services are available only to eligible users in the United States who are 13 or older. Children under the age of 13 are not permitted to use or otherwise access the Services. Certain Services are only offered to members of participating health plans who are 18 years of age or older.
2.4 In addition to the foregoing, access to the Services may be denied depending on eligibility, personal health circumstances, and other reasons at our discretion.
3.1 REGISTRATION; ACCOUNT; ELIGIBILITY
Certain aspects of the Services are available only to those who register for an account (each a “Member”). To register as a Member and depending on the manner in which you access the Services, you may need to provide your email address for purposes of creating a username and also create a password to be used in conjunction with that username. You are responsible for maintaining the confidentiality of your Member account and password and for restricting access to your Device. Please use a strong password and limit its use to your Member account. We will not be liable for any loss or damage arising from your failure to comply with the above. You are solely responsible for providing the correct name and insurance plan details upon registering for Lark and all activity that occurs on your Member account. We may assume that any communications or content under your Member account have been made by you. You must notify Lark immediately of any breach of security or unauthorized use of your Member account.
Some features of our Services are available only to people who meet certain health eligibility criteria. We also may limit the availability of the Services only to people who are eligible through health insurance plans, employers, healthcare companies, government programs, or other third-party partners (“Sponsored Plan”). Access to these programs and services may depend on whether you are eligible through membership in your health plan, your employment, or your association with a participating Lark partner. If you are eligible, you may participate in the applicable Lark programs or services, and such programs and services may be made available at no additional cost to you. Eligibility requirements for Lark programs may differ by Sponsored Plan, and such Sponsored Plans may change such that your eligibility for the Services are modified or terminated.
3.2 OUT-OF-NETWORK COVERAGE
Some health plans may cover Lark programs and services as an out-of-network benefit. If you are eligible to participate through an out-of-network benefit of your health plan, then, by registering as a Member you give Lark permission to bill your health insurance plan for the out-of-network costs of the program. When we do so, your health insurance plan may reimburse Lark in-whole or in-part. If your health plan declines to reimburse Lark, or reimburses Lark only in-part, then we will not seek any payment (including any co-pay) from you. However, Lark reserves the right to exclude you from continuing to participate in our program if your health plan declines coverage. If required by your Health Plan, Lark may contact your health plan on your behalf to obtain pre-authorization for you to enroll in Lark.
In order for Lark to directly bill your insurance company for the cost of out-of-network services, you agree as follows:
That by enrolling, you request that payment of authorized insurance benefits, including Medicare if you are a Medicare beneficiary, be made on your behalf to LARK TECHNOLOGIES, INC., for any covered services provided to you by Lark.
You authorize the release of any medical or other information necessary to determine these benefits or the benefits payable for related equipment or services to Lark, the Health Care Financing Administration, your insurance carrier or other medical entity. A copy of this authorization will be sent to the Health Care Financing Administration, your insurance company or other entity, if requested. The original will be kept on file by Lark.
This assignment of benefits shall remain in effect unless revoked by you in writing.
3.3 CONSUMER-PAID SUBSCRIPTIONS TO THE LARK APP AND SERVICES
For certain customers who are not able to access Lark via a participating health plan or as an out-of-network benefit, Lark offers Services via the Lark App which you can purchase as a monthly or a yearly subscription (each a “Subscription”). A description of features associated with each Subscription is available on the Website. When you purchase a Subscription (each, a “Transaction”), we may ask you to supply additional information relevant to your Transaction to Lark’s third-party payment processor, for example, your credit card number, the expiration date of your credit card and your address for billing (collectively, “Payment Information”). You represent and warrant that you have the legal right to use the payment method(s) submitted. If you choose to initiate a Transaction via the Services or Lark App, you agree to provide your Payment Information to Lark’s third-party payment processor so we can complete your Transaction. You also agree (a) to pay the applicable fees and any taxes; (b) that your credit card or third party account may be charged, including, but not limited to, your account with the app store or distribution platform (like the Apple App Store or the Google Play Store) where the App is made available (each, an “App Provider”), for verification, pre-authorization and payment purposes; and (c) to bear any additional charges that your App Provider, bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order. You’ll receive a confirmation email after we confirm the payment for your order. Your order is not binding on Lark until accepted and confirmed by Lark. All payments made are non-refundable and non-transferable, except as expressly provided in these Terms.
For Subscriptions to the Lark App and Services, all amounts are payable and charged at the time you place your order. For monthly or yearly Subscriptions, payments are payable at the beginning of the Subscription and, because each such Subscription renews automatically for an additional period equal in length to the expiring Subscription term until you cancel it, at the time of each renewal until you cancel, using the Payment Information you have provided. Lark reserves the right to change its pricing terms for Subscriptions at any time and Lark will notify you in advance of such changes becoming effective. Changes to the pricing terms will not apply retroactively and will only apply for Subscription renewals, after such changed pricing terms have been communicated to you. If you do not agree with the changes to Lark’s pricing terms then you may choose not to renew your Subscription in accordance with the “Cancellation By You” section below.
By registering as a Member, you warrant that: (i) you are legally capable of entering into binding contracts; (ii) you are at least 13 years old and if younger than 18 years old, that your registration is done so with the consent of a parent or legal guardian; (iii) all registration information you submit is truthful and accurate; (iv) you will maintain the accuracy of registration information; and (v) your use of the Services does not violate any applicable law or regulation.
3.5 MEMBERSHIP RULES GENERALLY
As a Member, you will receive access to certain sections, features and functions of the Services. We may send Members occasional special offers and marketing-based communication emails. You can unsubscribe from these emails by following the opt-out instructions in these emails.
You can control some communications from or related to the Services. We may need to provide you with certain communications, such as service announcements, information about your Member account, and administrative messages, which you may receive via email, text message, or push notification. These communications are considered part of the Services and your Member 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 receive communications from Lark via text messaging to your Device via the Lark App or SMS. You may communicate with us via email or by text message, and Members may also request communications from us via email or text message. By registering for the Services or communicating with us via email or text message, you are acknowledging and accepting the risks associated with using unencrypted email or text to communicate with us, particularly where you request communications that may include health information about you or others.
3.6 CANCELLATION BY YOU
For non-Subscription users, you may cancel your Membership at any time. Please make any such cancellation through your account settings in the mobile application.
For paid Subscription users, you must cancel your monthly or yearly Subscription before it renews to avoid the billing of the fees for the next Subscription period. If you purchase your Subscription via the Website, you can cancel the renewal of your subscription at any time by contacting us by email at email@example.com. If you purchase your Subscription via an App Provider, you can cancel the renewal of your Subscription at any time with the App Provider. You will not receive a refund for the fees you already paid for your current Subscription period and you will continue to receive the Services ordered until the end of your current Subscription period.
3.7 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 at our discretion, including as a result of your fraud or breach of any obligation under these Terms. Services available to you may also change or be terminated based on your Sponsored Plan. Termination or suspension may be immediate and without notice.
For paid Subscription users, Lark reserves the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Lark deems appropriate in its sole discretion. Lark will either not charge you or refund the charges for orders that we do not process or cancel.
4 PROGRAMS AND FEATURES
4.1 COACHING, GOALS, MISSIONS, AND MILESTONES
Lark’s Diabetes Management, DPP, DPP Continued, Hypertension Management, Heart Health, and Wellness Coaching programs provide digital coaching to help you, among other things: (i) set and track your progress toward achieving health-related goals, missions, and milestones; (ii) access additional informational health-related resources that may be available to you; (iii) review articles and other health and wellness-related content; and (iv) participate in health or wellness-related communities or discussion forums. These programs may be referred to as a different name depending on your Sponsored Plan. Certain programs may require you to select one or more health-related goals (“Goals”), which will help determine the content and activities that are presented to you. You may progress towards achieving your goals by participating in “Missions”, and you may track your progress and reach “Milestones” by logging activity, meals, or weight (i.e. through “Tracking”). Goals, Missions, Tracking, Milestones, and other content may differ in type and availability depending on the program and Sponsored Plan.
4.2 SCREENING QUESTIONS
Certain programs may include “Screeners,” which are questions for which we will use your answers to tailor the digital coaching experience, recommend Missions and other healthy activities to help you achieve your Goals, provide health-related educational content, and connect you with additional health-related resources. Screeners may differ in content and availability depending on the program and Sponsored Plan.
4.3 DIABETES MANAGEMENT
Lark’s Diabetes Management Program is designed to help eligible Members manage their Type 2 diabetes by making appropriate lifestyle changes, making healthier choices, and engaging in healthy behaviors. The Diabetes Management Program is not designed for Type 1 (Juvenile) diabetes. Eligibility requirements include meeting certain health-related criteria such as a diagnosis of Type 2 diabetes and membership in a Sponsored Plan.
4.4 DIABETES PREVENTION PROGRAM AND DPP CONTINUED
Lark’s Diabetes Prevention Program (“DPP”) is designed to help eligible Members reduce their risk of developing Type 2 Diabetes by focusing on building healthier habits and weight loss. Eligibility requirements include qualifying as prediabetic according to a survey designed by the Centers for Disease Control and Prevention and membership in a Sponsored Plan. Lark follows the DPP-program eligibility requirements set forth by the Centers for Disease Control and Prevention, which can be found here: https://www.cdc.gov/diabetes/prevention/program-eligibility.html. If you do not meet these eligibility requirements, Lark may opt to suspend or pause your Member account, or require further information from you or your healthcare provider. DPP is generally a one-year program, but depending on the Sponsored Plan, eligible Members may have continuing access to DPP Continued, which enables eligible Members to access the program beyond the first year to enable them to continue to make progress toward achieving Missions, Goals, and Milestones that have not yet been completed.
4.5 HYPERTENSION MANAGEMENT
Lark’s Hypertension Management Program is designed to help eligible Members manage hypertension by focusing on blood pressure monitoring, medication adherence, hypertension-specific guidance on diet and exercise, and coaching on weight loss, activity, stress, and sleep. Eligibility requirements include meeting certain health criteria including diagnosis with hypertension.
4.6 WELLNESS OR WELL-BEING COACH
Lark’s Wellness Coaching program is designed to help a user develop healthy habits and manage and improve their general health and wellbeing. Depending on the Sponsored Plan, the Wellness Coaching program may be referred to as “Well-being Coach.”
4.7 HEART HEALTH
Lark’s Heart Health Program is designed to help a user manage or reduce the risk of cardiovascular disease (CVD) by providing access to weight loss coaching, ASCVD risk assessments, medication adherence reminders, tobacco cessation counseling, and other features. Eligibility requirements include meeting certain health-related criteria including being diagnosed with or at risk for cardiovascular disease.
To help Members fully participate in the Program, you may be eligible to receive a Third Party Personal Health Device (as defined in Section 10 below), at no additional cost to you. The ability to earn a Third Party Personal Health Device may vary by Sponsored Plan and may contain minimum program engagement requirements, such as weighing in, completing Missions, and logging activity or meals. Eligibility determinations are made by Lark at its sole discretion.
4.9 COMMUNICATIONS WITH A LIVE COACH
4.10 PILOT PROGRAMS, USER TESTING OR INTERVIEWS, AND FEEDBACK
From time to time and depending on your Sponsored Plan, you may be eligible to voluntarily participate in a new Lark program or “pilot program” that is made available to certain Members on a limited basis. You may have to meet certain health-related or other criteria to participate. In addition, you may be contacted by Lark about participating in user testing or user interviews for the purpose of obtaining your feedback regarding your experience with Lark programs. Participation is voluntary, and by choosing to participate, you agree that Lark may record interviews with you and may use information that you provide to create summaries, presentations, insights or plans (collectively, the “Materials”). You agree that Lark may reproduce the Materials for its own business purposes and that all right, title, and ownership in and to the Materials, including any copyrights, shall be the exclusive property of Lark. Your participation in any pilot programs, user testing, or user interviews may be subject to additional terms and conditions or consents, but in any event, these Terms will apply.
Any feedback, comments, questions, or suggestions (collectively, “Feedback”) you may provide regarding the Services is entirely voluntary and we will be free to use such feedback, comments or suggestions without any obligation to you. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback; (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development; (iii) grant us an irrevocable, non- exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback; and (iv) irrevocably waive, and cause to be waived, against Lark any claims and assertions of any moral rights contained in such Feedback. These provisions regarding Feedback shall survive any termination of your Member account, these Terms, or the Services.
Lark manages a Facebook group that is open to Members because research shows that positive social and community support can help people reach their health and wellness-related goals. You may be invited to join the Facebook group while participating in a Lark program. Your participation in a Facebook group is voluntary. In addition to any terms and conditions imposed by Facebook, you must agree to certain rules and standards to join, and Lark may, but does not have the obligation to, monitor your activity to help ensure adherence to rules and standards. You agree that posts may be removed without warning if they are deemed by Lark to violate these rules, or for any other reason, in Lark’s sole discretion. While Lark may in its discretion monitor and remove posts, you acknowledge and agree that we do not do so routinely, and we are not the authors of, and are not responsible for, content posted by Members. Anything you post on a Facebook group may be visible to other group members, so do not post personal content that you do not wish to be made public. It is important to know that other Members who post information or opinions may not have medical or other relevant training or expertise. Do not treat anything posted as medical advice. Do not seek a diagnosis for or advice about your specific condition. Never disregard or delay seeking professional medical advice from a qualified healthcare provider because of something you read on our Facebook group or as part of the Services.
5 WE DO NOT PROVIDE MEDICAL ADVICE; TALK WITH YOUR DOCTOR
LARK IS A PROVIDER OF HEALTH & WELLNESS INFORMATION. WE ARE NOT A MEDICAL DEVICE, NOR DOES LARK DISPENSE MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT. LARK IS NOT A SUBSTITUTE FOR PROFESSIONAL ADVICE OR CARE. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION YOU HAVE RECEIVED VIA THE SERVICES. IF YOU THINK YOU MAY HAVE A MEDICAL EMERGENCY, CALL YOUR DOCTOR OR 911 IMMEDIATELY. ALWAYS SEEK THE ADVICE OF A QUALIFIED MEDICAL PROVIDER WITH ANY QUESTIONS YOU MAY HAVE ABOUT YOUR HEALTH AND BEFORE UNDERTAKING OR CHANGING AN EXERCISE REGIMEN, PHYSICAL ACTIVITY, DIET, WEIGHT LOSS PROGRAM, COURSE OF MEDICAL TREATMENT, OR TAKING ANY DRUGS, MEDICINES, OR SUPPLEMENTS.
Any health information and links on the Services, whether provided by Lark or by an outside entity, are provided simply for your information and convenience. Any information or materials on the Services are intended for general information purposes only. The information and 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 information or 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 materials or 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.
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,” or engage in any spamming or spimming.
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 including accessing, tampering with, or use of non-public areas of the Services, Lark’s computer systems, or the technical delivery systems of Lark’s service providers.
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 including attempting to probe, scan, or test the vulnerability of the Services or breach any security or authentication measures.
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 and criminal 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, create more than one account, 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, including without limitation engaging in any automated use of the system, such as using scripts to alter our content.
6.9 Resell any Services.
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).
6.13 Upload, post, or otherwise submit to or through the Services data with content that is illegal, obscene, defamatory, threatening, pornographic, harassing, hateful, racially or ethnically offensive, untrue, misleading, harmful, threatening, abusive, harassing, vulgar, invasive to another person’s privacy or protected data, encourages conduct that would be considered a criminal offense, violates any law, or is otherwise inappropriate.
6.14 Advertise any product or service or solicit business through the Services.
6.15 Attempt to indirectly undertake any of the foregoing.
Any breach of the provisions of this Section 6 may also constitute a crime 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 cooperate 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 and the 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 or its licensors 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.
Subject to your compliance with these Terms, Lark grants you a limited, non-exclusive, non-assignable, non-sublicensable, revocable, license to use the Services as it is provided to you by Lark solely for your personal use and only in a manner that complies with these Terms and all legal requirements that apply to you or your use of the Services. Lark may revoke this license at any time, in its sole discretion.
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 and are subject to our obligations under applicable laws, such as HIPAA.
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. Without limitation, you represent and warrant that 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. You further agree not to submit Member Content that identifies any individual (including by way or name, address or a still picture or video) under the age of 18. If you submit Member Content that identifies any individual over the age of 18, you represent and warrant that you have that person’s consent to being identified in exactly that way in your Member Content.
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 THIRD-PARTY APPS/SERVICES/DEVICES
Our Services may contain interfaces with personal health devices, including, but not limited to, digital scales, fitness trackers, blood pressure monitors, and glucometers (collectively “Third Party Personal Health Device(s)”) or links to other applications or online services (collectively, “Third Party Services”), that are owned and operated by third parties. You acknowledge that your enablement of any Third Party Personal Health Devices and/or accessing of Third Party Services is at your sole discretion and for your information only. We do not review or endorse any Third Party Personal Health Devices or Third Party Services. We are not responsible in any way for: (i) the availability, accuracy, functionality, validity, quality, legality, or recommendations of, (ii) the privacy practices of, (iii) the content, advertising, products, goods or other materials or resources on or available from, or (iv) the use to which you make of these Third Party Personal Health Devices and Third Party Services. We are also not responsible for any damage, loss or offense caused or alleged to be caused by, or in connection with, the use of or reliance on such Third Party Personal Health Devices and Third Party Services. Your use of any Third Party Personal Health Devices and/or Third Party Services is at your own risk and subject to the terms and conditions of use for such devices and 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.
11 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, termination of your Member account, and the immediate cessation of your right to use the Services.
12 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. 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. In the event that the Services are unavailable, you may notify us via email at firstname.lastname@example.org.
13 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.
14 WARRANTIES; DISCLAIMERS OF WARRANTIES
Lark provides the Services on an “as is” and “as available” basis. 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, including any health information available on or through 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 Services 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:
14.1 Faulty operation of Devices, 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).
14.2 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.
14.3 Any use of the applications or software linked to the Services but operated by third parties.
15 LIMITATION ON LIABILITY
To the maximum extent permitted by law, in no event shall Lark or its affiliates, suppliers, clients, or licensors be liable for any direct, indirect, special, incidental, consequential, exemplary or punitive damages, lost profits, lost revenue, loss of data, loss of privacy, loss of goodwill or any other losses arising from, or directly or indirectly related to, the use of, or the inability to use, the Services or the content, materials and functions related thereto, even if we have been advised of the possibility of such damages and even in the event of fault, tort (including negligence) or strict or product liability. In no event shall Lark be liable for any Member Content. In no event shall the total aggregate liability of Lark to you for all damages, losses, and causes of action (whether in contract or tort, including, but not limited to, negligence or otherwise) arising from these Terms or your use of the Services exceed, in the aggregate, the amount, if any, paid by you to Lark for your use of the Services during the previous 12 months or, if greater, $100.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so if you are a resident of any of those jurisdictions, the limitations above may not apply to you.
16 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 violation of these Terms, and any applicable law or the rights of another person or party; (ii) any dispute you have with any Member of the Services; (iii) Lark’s resolution (if any) of any dispute you have with any Member of the Services; or (iv) your Member Content.
If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his settlement with the debtor or released party.” This release includes the criminal acts of others. If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
17 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.
These Terms contain provisions that govern how claims you and we may have against each other are resolved, 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 17.6 below. Unless you opt-out of arbitration: (i) 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 (ii) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
17.1 INITIAL DISPUTE RESOLUTION
We are available by email at email@example.com 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 with each other, and good faith negotiations shall be a precondition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration. To adequately engage in initial dispute resolution, each party must notify the other party, in writing, of the facts of the dispute and all damages claimed. Such a writing must be sent to, as applicable: (i) the Member’s email address on file with Lark, or (ii) Lark Technologies, Inc., 2570 El Camino Real, Mountain View, CA 94040, with a copy to firstname.lastname@example.org (the “Dispute Notification”).
17.2 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 17.1 above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. All claims arising out of or relating to these Terms (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 JAMS on a confidential basis in accordance with the provisions of the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions and except that each party will be permitted at least one deposition unless forbidden by JAMS. If for any reason JAMS is unable to administer arbitration, either party may apply to a court to appoint an arbitrator pursuant to 9 U.S.C. section 5.
Except as explicitly set forth in this section 17, 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 these Terms, including, but not limited to any claim that all or any part of this agreement is void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in court under law or in equity. The arbitrator shall also be empowered to consolidate claims raised between the same parties to a single arbitration proceeding. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. 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. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. The interpretation and enforcement of this agreement shall be governed by the Federal Arbitration Act, and evidences a transaction involving commerce.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party’s identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has a right to impose sanctions for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS’ rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section 17 while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The Streamlined Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Lark to pay the additional cost. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, Lark will pay the remaining filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney’s fees in certain cases.
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.
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. You and Lark agree to submit to the personal jurisdiction of any federal or state court in Santa Clara, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
17.4 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. Notwithstanding any other provision of these terms, disputes regarding the interpretation, applicability, or enforceability of the class action waiver may be resolved only by a court and not by an arbitrator. If there is a final judicial determination that applicable law precludes enforcement of this paragraph’s limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
17.5 EXCEPTION – INTELLECTUAL PROPERTY AND SMALL CLAIMS COURT CLAIMS
Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court’s jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party’s claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party’s right to arbitration under this agreement.
17.6 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 this Section 17 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 October 31, 2022 or when you first registered to use the Services, whichever is later, 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.
17.7 CHANGES TO THIS SECTION
Lark will provide 30 days’ notice of any changes affecting the substance of this Section 17. Changes will become effective on the 30th day. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which Lark does not have actual notice are subject to the revised clause.
18 MODIFICATION OR CHANGES TO TERMS
We have the right to revise and amend these Terms from time to time without prior notice for any reason, including 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 or otherwise notifying you. Except as explicitly stated herein, your continued use of the Services after such changes are made conclusively demonstrates your acceptance of such changes.
It is critical that you keep your email contact information correct and updated with Lark at all times in your account settings on the mobile application.
19 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.
20 PRIVACY & SECURITY
20.1 YOUR PERSONAL INFORMATION
20.2 SAFEGUARDING DEVICES
It is your responsibility to safeguard Devices that you use to access the Services and to use appropriate security settings on those devices. If those Devices are lost, stolen, or misplaced, others may be able to access your Member account and your personal information using those Devices.
21 APPLICATION TERMS
21.1 APPLE DEVICE AND APPLICATION TERMS:
You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the app or your possession and use of the app, including, but not limited to, (i) product warranty or liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the App infringes a third party’s intellectual property rights.
In the event of any failure of the iOS version of the App to conform to any applicable warranty that has not been effectively disclaimed by these Terms, you may notify Apple, and Apple will refund the purchase price for the app (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and, as between Apple and Lark, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be Lark’s responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit Lark’s liability in this regard.
Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.
22 GENERAL TERMS AND CONDITIONS
22.1 ASSIGNMENT BY US
Lark may transfer its rights and obligations under these Terms to any company, firm, or person at any time. 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.
22.2 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. For claims not subject to arbitration, disputes arising from or in connection with your use of the Services we provide are subject to the non-exclusive jurisdiction of the federal and state courts located in the county of Santa Clara in the State of California.
We make no representations that the Services are appropriate or available for use outside of the United States. 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.
22.3 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.
22.4 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.
22.6 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. These messages may include personal and health information. This condition does not affect your statutory rights.
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.
22.9 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.
22.10 THIRD-PARTY RIGHTS
A person who is not a party to these Terms will not have any rights under or in connection with these Terms.
22.11 TRADE RESTRICTIONS
You acknowledge that the Services and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that Lark makes available (collectively “Excluded Data”) are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories currently including, but not limited to, Cuba, Russia, Ukraine, Sudan, Iran, North Korea, and Syria (“Trade Restrictions”). You represent and warrant that you are not: (i) located in an embargoed country or territory, (ii) under the control of an entity organized in or a resident of an embargoed country or territory, (iii) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department’s Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List; or (iv) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and U.S. Government EU Dual-Use Regulation EC 428/2009. You are solely responsible for complying with Trade Restrictions for all Excluded Data and any of its content transmitted through the Services.
22.12 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: (i) the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf; (ii) identification of the copyrighted work that you claim has been infringed; (iii) 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); (iv) your name, address, telephone number, and email address; (v) 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 (vi) 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:
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.
Please note that, pursuant to Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.