Member Terms of Service
LAST UPDATED JUNE 19, 2017
LARKR MEMBER TERMS OF SERVICE
1. EMERGENCIES. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY OR THINKING ABOUT HARMING YOURSELF OR OTHERS, CALL 911 OR SEEK EMERGENCY MEDICAL HELP. THE PLATFORM IS NOT A SUBSTITUTE FOR OTHER MEDICAL TREATMENT YOU MAY NEED.
4. THERAPISTS. The LARKR Platform acts solely as an intermediary Platform to connect Therapists with Members of the Platform, and the Therapists are not LARKR’s employees, agents or representatives. THE PLATFORM DOES NOT INCLUDE THE PROVISION OF MEDICAL CARE, MENTAL HEALTH SERVICES, OR OTHER PROFESSIONAL SERVICES BY LARKR, AND LARKR IS NOT RESPONSIBLE FOR THE ACTS, OMISSIONS, OR WRONGDOING OF THERAPISTS. You are solely responsible for your relationship with the Therapist, and LARKR does not validate or control any of the Therapist Sessions. You are advised to exercise a high level of care and caution in the use of LARKR. While LARKR does have a research and verification process for onboarding Therapists on the Platform, LARKR does not guarantee the verification of degrees, qualifications, licensure, certification, credentials, competence, or background of any Therapist, nor do we make any representations as to the willingness or ability of a particular Therapist to provide you Sessions via the Platform. Further, we make no representation or warranty as to whether you will find the Sessions useful, appropriate, correct, satisfactory or suitable to your needs. We do not control the quality of the Sessions and we do not determine whether any Therapist is qualified to provide any specific service. You agree, confirm and acknowledge that you are aware of the fact that in some cases, the care offered through the Platform may not be a full and complete substitute for a face-to-face session by a therapist. You should never rely on or make health or well-being decisions purely on use of LARKR. Never disregard, avoid, or delay in obtaining medical advice from your doctor or other qualified healthcare therapist, or by traditional face-to-face appointment; because of information or advice you received through LARKR.
5. SCHEDULING SESSIONS. Sessions are conducted through the Platform via a HIPAA compliant e-communication video, instant message and voice software. You must have good connectivity to the Internet in order to conduct Sessions. When you request a Session via the Platform, it will match you with a Therapist based on your Member Data and a Therapist’s qualifications, availability and feedback from you or other Members on the Platform. While the LARKR Platform is designed to assist in matching you with a Therapist, we do not make any guarantees that the Therapist is a good match for you. It is your responsibility to conduct independent verification regarding any Therapist that provides you Sessions. If you do not like a particular Therapist, do not book another Session with that Therapist. You agree to be available on the Platform during your scheduled Session.
6. SESSION RECORDS. A Therapist will input notes via the Platform relating to your Sessions (“Therapist Session Notes”), and other Therapists who treat you will have access to all Therapist Session Notes relating to you. Once you book a Session with a Therapist, that Therapist will also have access to your Member Data and any notes that may have been inputted by you relating to any LARKR Session (“Member Session Notes”). Therapists are responsible adhering applicable rules, law and regulations, including professional, regulatory and ethical requirements with respect to use and confidentiality of your Therapist Session Notes and Member Session Notes. You may also provide feedback about your Therapist, which LARKR uses internally for quality control and matching purposes.
7. FEES. You will be charged a flat fee per completed Session, as communicated to you via the Platform before booking the Session (“Fee”). A portion of the Fee is for the Therapist Sessions, and LARKR does not participate, split or take a percentage of this portion of the Fee. LARKR, however, may separately attribute a portion of the Fee for use and operation of the LARKR Platform. Regardless of this payment, LARKR shall not be deemed as acting as the Therapist’s agent or as a provider of Sessions in any way. All Fees are paid in advance of your Session. In the event a Session is not completed due to acts by the Therapist, including a no-show or bad internet connectivity, you may request of refund by contacting LARKR through the Platform within 7 days of the scheduled Session in issue. In the event a Session is not completed because of your acts or conditions within your control, such as access to improper Internet reception or breach of this Agreement, then you forfeit the right to any refund in Fees for that incomplete Session. You agree that Fees may be charged on the credit card provided during the initial setup of your account, which is stored by a third party payment processor. You agree to maintain valid credit card information in your account.
8. PLATFORM OWNERSHIP, AVAILABILITY & RESTRICTIONS. The Platform, including its content and underlying software, is proprietary to, and a valuable trade secret of, LARKR. LARKR grants you a limited, personal, non-commercial, nonexclusive, nontransferable license to use the Platform only for the purposes set forth in this Agreement. Except as expressly provided for herein, nothing in this Agreement shall convey any other right or license by implication, estoppel, or otherwise in any rights of LARKR or its licensors. You agree not to copy any portion of Platform, including by screen save, or otherwise reverse engineer, decompile or disassemble the Platform or any portion of it. You agree to only use the Platform in compliance with this Agreement and all applicable law, rules and regulations, including without limitation intellectual property laws. You agree and commit not to make any use of the Platform in connection with unlawful, untruthful, harassing, privacy invading, abusive, threatening, vulgar, obscene, racist, infringing, criminal or potentially harmful content or behavior. LARKR reserves the right to modify, temporarily or permanently, the Platform and reserves the right at any time to terminate the current version of the Platform or prior versions of the Platform and/or limit future access to new versions and updates. We may, from time to time perform maintenance upon the Platform or experience hardware, software or other problems related to the Platform, resulting in interrupted service, delays or errors in the Platform. We will attempt to provide prior notice of such interruptions, delays or errors but cannot guarantee that such notice will be provided.
9. TERM & TERMINATION. LARKR may suspend or terminate your access to the Platform at any time, for any reason or for no reason at all. LARKR reserves the right to change, suspend, or discontinue all or part of the Platform, temporarily or permanently, without prior notice. LARKR may deny you access to the Platform at any time for any reason at the sole discretion of LARKR, including in the event you breach the terms of this Agreement. You may terminate this Agreement by deleting your LARKR account at anytime, and Sections [INSERT UPON FINAL DRAFT] shall survive termination of this Agreement.
10. DISCLAIMER OF WARRANTIES. ACCESS TO THE PLATFORM IS PROVIDED “AS IS” AND LARKR DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, LARKR MAKES NO WARRANTY (i) WITH RESPECT TO THERAPISTS, (ii) THAT THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THAT ANY INFORMATION CONTAINED ON, RESULTS THAT MAY BE OBTAINED FROM THE USE OF, OR OTHER ASPECT OF THE PLATFORM WILL BE ACCURATE, CURRENT, COMPLETE OR RELIABLE, OR (iv) THAT THE PLATFORM COMPLIES WITH ANY PROFESSIONAL, ETHICAL OR REGULATORY RULES OR REQUIREMENTS. YOU SHALL BE SOLELY AND FULLY RESPONSIBLE FOR ANY DAMAGE TO THE PLATFORM, ANY LOSS OF DATA, OR ANY IMPROPER USE OR DISCLOSURE OF INFORMATION ON THE PLATFORM CAUSED BY YOU OR ANY PERSON USING YOUR USERNAME OR PASSWORD. LARKR CANNOT AND DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY LOSS, DAMAGES OR LIABILITIES ARISING FROM THE FAILURE OF ANY TELECOMMUNICATIONS INFRASTRUCTURE, OR THE INTERNET OR FOR YOUR MISUSE OF ANY PROTECTED HEALTH INFORMATION, ADVICE, IDEAS, INFORMATION, INSTRUCTIONS OR GUIDELINES ACCESSED THROUGH THE SERVICE.
11. LIMITATION OF LIABILITY. YOUR USE OF THE PLATFORM, INCLUDING INTERACTION WITH THERAPISTS, IS AT YOUR OWN RISK AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER LARKR, NOR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR CONTRACTORS, SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS, LOST REVENUE, COST OF REPLACEMENT GOODS OR SERVICES ARISING OUT OF YOUR ACCESS TO OR USE OF PLATFORM, LOSSES FROM THE INABILITY TO ACCESS OR USE THE PLATFORM, OR NON-COMPLIANCE WITH FEDERAL OR STATE PROFESSIONAL, ETHICAL OR REGULATORY RULES OR REQUIREMENTS, WHETHER CAUSED BY LARKR OR THIRD PARTIES. IN NO EVENT SHALL LARKR’S TOTAL LIABILITY TO YOU EXCEED THE AMOUNT PAID TO YOU BY LARKR IN THE 30 DAYS IMMEDIATELY PRECEDING THE CLAIM.
12. INDEMNIFICATION. You agree to defend, indemnify, and hold harmless LARKR and where applicable, its past and present shareholders, members, parent companies, partners, Therapists, consultants, affiliates, contractors, subsidiaries, successors, predecessors, assigns, officers, directors, managers, employees, attorneys, agents, and all third parties working with LARKR, from and against any and all losses, claims, controversies, causes of action, demands, torts, damages, costs, attorney’s fees and liabilities of any kind actually or allegedly related to or arising out of, (i) any breach of this Agreement; (ii) any breach of applicable rules, laws or regulations, including without limitation intellectual property, defamation or privacy laws; (iii) improper access to your account or this Platform; (iv) any complaint by any third party regarding you as a Member.
13. ARBITRATION/NO CLASS ACTION.
You and LARKR agree that any dispute, claim or controversy arising out of or relating to (a) this Agreement or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Platform at any time, will be settled by binding arbitration between you and LARKR, and not in a court of law.
You acknowledge and agree that you and LARKR 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. Unless both you and LARKR otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and LARKR each retain the right to bring an individual action in small claims court and the right 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.
Rules and Governing Law.
The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.
The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.
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 AAA provides a form Demand for Arbitration - Consumer Arbitration Rules at www.adr.org or by calling the AAA at 1-800-778-7879). The Arbitrator will be either (1) a retired judge or (2) an attorney specifically licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute 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.
Location and Procedure.
Unless you and LARKR 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 documents you and LARKR 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. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. 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. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. LARKR will not seek, and hereby waives all rights LARKR may have under applicable law to recover, attorneys' fees and expenses if LARKR 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 $10,000, LARKR 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)).
If LARKR changes this Arbitration Agreement after the date you first agreed to the Terms (or to any subsequent changes to the Terms), you may reject any such change by providing LARKR written notice of such rejection within 30 days of the date such change became effective, as indicated in the "Effective" date above. This written notice must be provided by contacting LARKR at email@example.com. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this Arbitration agreement. By rejecting changes, you are agreeing that you will arbitrate any dispute between you and LARKR in accordance with the provisions of this Arbitration agreement as of the date you first agreed to the Terms (or to any subsequent changes to the Terms).
14. GOVERNING LAW. Except as provided in the arbitration clause above, this Agreement is governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles.
15. ASSIGNMENT. Member may not assign or otherwise transfer its rights under this Agreement. LARKR may freely transfer this Agreement, and this Agreement shall be binding upon and inure to the benefit of the respective heirs, successors and valid assigns of the parties.
15. NO WAIVER. No waiver is effective unless in writing signed by the waiving party.
16.FORCE MAJEURE. LARKR shall not be liable for failure or delay in performing its obligations hereunder if such failure or delay is due to a force majeure event or other circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war, insurrection, sabotage, embargo, fire, flood, labor disturbance, interruption of or delay in transportation, unavailability of third party services, failure of third party software or inability to obtain raw materials, supplies or power used in or equipment needed for provision of the Platform.
17. SEVERABILITY. If any part of this Agreement is determined to be illegal and/or unenforceable, all other parts shall be given effect separately and not be affected.
18. RELATIONSHIP. The LARKR Platform acts solely as an intermediary Platform to connect Therapists with Members of the Platform, and nothing contained in this Agreement shall be construed to constitute the parties as agents, partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking.
20. CONTACT. If you need to contact LARKR for any assistance relating to this Agreement or the Platform, please email firstname.lastname@example.org.