Terms of Service
Last Updated July 13, 2020
Welcome to Lena. Lena provides real human virtual companions (collectively, the “Companions”) that provide support and guidance (as modified from time to time, collectively, the “Companion Services”) to seniors facing health challenges on their own ( “Users” or “you”). The website at https://www.joinlena.com (the “Site”) and the various other related services and other features, functions, software, applications and websites (together with the Companion Services, and the Site, collectively the “Lena Services”) are provided and operated, and are being made available to you and the other Users by Bloom Circle, Inc. d/b/a Lena (“Lena”, “us” or “we”). All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service.
IF YOU THINK THAT YOU ARE EXPERIENCING A MEDICAL EMERGENCY, CALL 911 OR PROCEED TO YOUR NEAREST EMERGENCY ROOM IMMEDIATELY!
These Terms contain an Arbitration provision which will, with limited exception, require you to submit disputes you have against Lena to binding and final arbitration. You will only be permitted to pursue claims against Lena on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
TO ACCESS AND USE THE COMPANION SERVICES, THE SITE AND THE OTHER LENA SERVICES, YOU MUST BE AT LEAST 18 YEARS OF AGE. BY CLICKING “I AGREE,” ACKNOWLEDGING YOUR AGREEMENT, AGREEING VERBALLY OR OTHERWISE ACCESSING OR USING THE COMPANION SERVICES, OR ANY OF THE OTHER LENA SERVICES, YOU REPRESENT THAT:
HAVE NOT BEEN PREVIOUSLY SUSPENDED OR REMOVED FROM THE COMPANION SERVICES, OR ANY OF THE OTHER LENA SERVICES;
YOU CONFIRM THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH LENA;
YOU WILL COMPLY WITH THESE TERMS AND ALL APPLICABLE LOCAL, STATE, NATIONAL AND INTERNATIONAL LAWS, RULES AND REGULATIONS; AND
YOU ARE NOT A COMPETITOR OF LENA AND DO NOT INTEND TO USE THE COMPANION SERVICES, OR ANY OF THE OTHER LENA SERVICES FOR REASONS THAT ARE IN COMPETITION WITH LENA OR OTHERWISE TO REPLICATE SOME OR ALL OF THE OTHER LENA SERVICES FOR ANY REASON.
3. The Companion Services
3.1 Accessing and Using the Companion Services.
(b) In registering to use the Companion Services, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted during the registration process (“Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Lena has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Lena has the right to prohibit you from accessing and using the Companion Services and/or any of the other Lena Services. You agree not to register using a false identity or information, or on behalf of someone other than yourself. You agree not to register or to access and use the Companion Services or any of the other Lena Services if you have been previously removed by Lena or if you have been previously banned from accessing and using the Companion Services or any of the other Lena Services.
3.2 Not Medical Advice.
Lena provides the Companion Services and the other Services to provide virtual companions to provide support and guidance to seniors facing health challenges on their own. NOTHING THAT THE COMPANIONS SAY OR DISCUSS SHOULD BE INTERPRETED AS MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. NEITHER LENA NOR ANY OF THE COMPANIONS PROVIDE MEDICAL SERVICES OR RENDER MEDICAL ADVICE. NOTHING SAID OR DISCUSSED BY THE COMPANIONS IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. You should always discuss any questions or concerns that you might have about your health or medical condition with your doctor or other healthcare provider.
Access and use of the Companion Services and other Lena Services are free to you. Your healthcare service provider or other third party will be responsible for any fees.
5. Right to Access and Use; Unauthorized Use.
5.1 Right to Access and Use
Subject to your compliance with all the terms and conditions set out in these Terms, Lena hereby grants to you the right to access and use the Companion Services, the Site and the other Lena Services, to the extent of, and in accordance with, these Terms.
5.2 Prevention of Unauthorized Use
Lena reserves the right to exercise whatever lawful means it deems necessary to prevent the unauthorized access or use of the Companion Services, or the circumvention of the other Lena Services, including, but not limited to, technological barriers, IP mapping, and directly contacting your Internet Service Provider (ISP) regarding such unauthorized use.
6. Additional Policies.
When requesting, accessing or using the Companion Services or any of the other Lena Services, you may be subject to any additional posted policies, guidelines or rules applicable to the Companion Services, the Site and the other Lena Services and the Features which may be posted from time to time (as modified from time to time, the “Policies”). All such Policies are hereby incorporated by reference into these Terms.
7. Respecting other People’s Rights.
Lena respects the rights of others and so should you. You therefore shall treat all Companions with respect.
8. Modification of these Terms.
Lena reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site, or any of the other Lena Services. If Lena updates these Terms, it will update the “last updated” date at the top of the Terms. Please check these Terms, including any Policies, periodically for changes. Your continued use of the Companion Services, or any of the other Lena Services after the posting of changes constitutes your binding acceptance of such changes. In the event of a change to these Terms that materially modifies your rights or obligations (including applicable fees), Lena will use commercially reasonable efforts to notify you of such change. Lena may provide notice through a pop-up or banner within the Lena Services, by sending an email to any address that we may have for you, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Lena may require you to provide consent by accepting the changed Terms. If Lena requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Lena, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the Lena Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE COMPANION SERVICES AND ALL OF THE OTHER LENA SERVICES.
To the extent that any modifications to the Terms or Policies are not allowed under applicable laws, the prior most recent version of the Terms or Policies shall continue to apply.
9. Digital Millennium Copyright Act.
It is Lena’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act. For more information, please go to Lena’s DMCA Notification Guidelines at https://Lena.io/DMCA/. If you file a notice with our copyright agent, it must comply with the requirements set forth in 17 U.S.C. § 512(c)(3). Lena reserves the right to terminate without notice any User’s access to the Companion Services, the Site and the other Lena Services if that User is determined by Lena to be a “repeat infringer.” In addition, Lena accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
10. Prohibited Conduct.
BY ACCESSING OR USING THE COMPANION SERVICES, OR ANY OF THE OTHER LENA SERVICES YOU, AGREE NOT TO:
10.1 Access or use the Companion Services or any of the other Lena Services for the benefit of anyone other than yourself except in accordance with these Terms, including selling, reselling or distributing, in whole or in part, the Companion Services, or using the Companion Services as part of a service bureau or outsourcing offering;
10.2 Provide any services, directly or indirectly, that are similar to, or based on, the Companion Services or any of the other Lena Services;
10.3 Copy, disclose, or distribute any data or other information available through the Companion Services, the Site or any of the other Lena Services, including any information, in any medium, including without limitation on the Site, by any automated or non-automated “scraping;”
10.4 Interfere with, circumvent or disable any security or other technological features or measures of the Companion Services or attempt to gain unauthorized access to the Companion Services;
10.5 Use bots or other automated methods to: access the Companion Services, download any information, send or redirect messages or perform any other activities through the Companion Services or any of the other Lena Services;
10.6 Take any action that Lena determines, in its sole discretion, imposes or may impose, an unreasonable or disproportionately large load on its infrastructure;
10.7 Upload invalid data, viruses, worms or other software agents through the Site and/or any of the other Lena Services;
10.8 Impersonate any person or entity, use a fictitious name, or misrepresent your affiliation with a person or entity;
10.9 Use the Companion Services, or any of the other Lena Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment; or
10.10 Use any of the Lena Services for any commercial solicitation purposes.
11. Third-Party Sites.
The Companion Services and/or any of the other Lena Services may include links or references to other web sites or services (“Third-Party Sites”) solely as a convenience to Users. These sites or services may include links to the information about health and wellness and other sites or services that we think may be of interest to our Users. Lena does not endorse any such Third-Party Sites or the services, information, materials, products, or services contained on or accessible through Third-Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the Lena Services are solely between you and such advertiser. Access and use of Third-Party Sites, including the information, materials, products, and services on or available through Third-Party Sites are solely at your own risk.
12. Mobile and Data Services.
You are responsible for any mobile and data charges that you may incur in connection with the use of the Companion Services and any of the other Lena Services. If you’re unsure what those charges may be, you should ask your service provider before using the Companion Services or any of the other Lena Services.
You agree that Lena in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the Companion Services or any of the other Lena Services that you may have with Lena and remove and discard all or any part of your information, at any time. Lena may also in its sole discretion and at any time prohibit you from accessing and using the Companion Services or discontinue providing access to the Companion Services or any of the other Lena Services, or any part thereof, with or without notice. You agree that any termination of your ability to access or use the Companion Services, or any of the other Lena Services may be effected without prior notice, and you agree that Lena will not be liable to you or any third party for any such termination. Lena reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Lena to disclose the identity of anyone posting any e-mail messages, or publishing or otherwise making available any materials that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that Lena may have at law or in equity. As provided herein, Lena does not permit copyright infringing activities on the Site or any of the other Services, and Lena shall be permitted to terminate access to the Companion Services or any of the other Lena Services. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD LENA HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY LENA DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER LENA OR LAW ENFORCEMENT AUTHORITIES.
Your only remedy with respect to any dissatisfaction with (i) the Companion Services, the Site or any of the other Lena Services, (ii) any term of these Terms or (iii) any policy or practice of Lena in operating the Companion Services, the Site or the other Lena Services, is to terminate your use of the Companion Services and the other Lena Services. You may terminate your use of the Companion Services and any of the other Lena Services at any time. After such termination, you must refrain from using the Companion Services and any of the other Lena Services until authorized by Lena.
14. Ownership; Proprietary Rights.
The Companion Services, the Site and the other Lena Services are owned and operated by Lena. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Lena Services provided by Lena (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on any of the Lena Services are the property of Lena or its subsidiaries or affiliated companies and/or third-party licensors or content providers. All trademarks, service marks, and trade names are proprietary to Lena or its affiliates and/or third-party licensors. Except as expressly authorized by Lena, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Lena reserves all rights not expressly granted in these Terms.
You hereby grant to Lena a non-exclusive, worldwide, fully paid-up, royalty-fee, non-terminable, perpetual, irrevocable right and license to use, disclose, modify, reproduce, license, distribute, commercialize and otherwise freely exploit any feedback, comments, or suggestions that you provide with respect to the Companion Services, the Site and/or the other Lena Services and all related intellectual property, without restriction of any kind and without any right of accounting.
You agree to indemnify, defend, and hold Lena its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners harmless from any third-party claims, losses, damages, or liabilities, including legal fees and expenses, arising out of your use or misuse of the Companion Services, the Site or any of the other Lena Services, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you herein. Lena reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Lena and you agree to cooperate with Lena’s defense of these claims. Lena will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
16. No Warranties; Disclaimers.
16.1 No Warranties.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, LENA AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “LENA PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE COMPANION SERVICES, THE SITE, THE OTHER LENA SERVICES AND THE FEATURES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LENA PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE COMPANION SERVICES, THE SITE, THE OTHER LENA SERVICES OR THE FEATURES, WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE LENA PARTIES OR THROUGH THE COMPANION SERVICES, THE SITE OR THE OTHER LENA SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
16.2 “As Is” and “As Available” and “With all Faults.”
YOU EXPRESSLY AGREE THAT THE COMPANION SERVICES, THE SITE AND ANY OF THE OTHER LENA SERVICES, AND THE FEATURES, ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD-PARTY SITE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH ANY OF THE LENA SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
16.3 PLATFORM OPERATION AND CONTENT.
THE LENA PARTIES DO NOT WARRANT THAT THE DATA, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE COMPANION SERVICES, THE SITE OR ANY OF THE OTHER LENA SERVICES OR THE FEATURES OR ANY THIRD-PARTY SITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
EXCEPT AS SPECIFICALLY PROVIDED IN WRITING BY LENA, THE LENA PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF ANY OF THE LENA SERVICES OR ANY THIRD-PARTY SITE IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
16.5 Harm to your Mobile Devices.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE COMPANION SERVICES, THE SITE OR ANY OF THE OTHER LENA SERVICES OR THE FEATURES OR ANY THIRD-PARTY SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR MOBILE DEVICES) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
17. Limitation of Liability and Damages.
17.1 Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, NEGLIGENCE, WILL THE LENA PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE COMPANION SERVICES, THE SITE OR ANY OF THE OTHER LENA SERVICES OR THE FEATURES OR ANY THIRD-PARTY SITE, OR ANY OTHER INTERACTIONS WITH LENA, ANY COMPANION OR ANY OTHER USER, EVEN IF LENA OR AN LENA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, LENA’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
17.2 Limitation of Damages.
IN NO EVENT WILL THE LENA PARTIES’ TOTAL CUMULATIVE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO YOUR ACCESS AND USE OF THE COMPANION SERVICES, THE SITE OR ANY OF THE OTHER LENA SERVICES OR THESE TERMS, OR YOUR INTERACTION WITH LENA OR ANY COMPANION (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF (A) $100 AND (B) AN AMOUNT EQUAL TO THE FEES (IF ANY) PAID BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
17.3 Release for Disputes between Users.
If you have a dispute with any Companion or other Users or other third parties, you hereby release Lena and the other Lena Parties from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you 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.”
17.4 Third-party Sites.
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN LENA AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE LENA SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITES.
17.5 BASIS OF THE BARGAIN.
YOU ACKNOWLEDGE AND AGREE THAT LENA HAS OFFERED THE COMPANION SERVICES AND THE OTHER LENA SERVICES AND THE FEATURES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND LENA, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND LENA. LENA WOULD NOT BE ABLE TO AUTHORIZE YOU TO ACCESS AND USE OF THE COMPANION SERVICES OR ANY OF THE OTHER LENA SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
17.6 Limitations by Applicable Law.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
18. United States Export Controls.
You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Companion Services or any of the other Lena Services or any underlying intellectual property, information or technology except in full compliance with all United States, foreign and other applicable export control laws and regulations.
Lena may provide you with notices, including those regarding changes to these Terms, by email, SMS text, regular mail or postings on any of the Lena Services. Notice will be deemed given twenty-four hours after the email is sent, unless Lena is notified that the email address is invalid. Alternatively, Lena may give you legal notice by mail to a postal address, if provided by you through any of the Lena Services. In such case, notice will be deemed given three days after the date of mailing. Notices posted on any of the Lena Services are deemed given 30 days following the initial posting.
The failure of Lena to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Lena.
19.3 Dispute Resolution.
If a dispute arises between you and Lena, the goal is to provide you with a neutral and cost-effective method of resolving the dispute quickly. Accordingly, you and Lena agree that any dispute, claim or controversy at law or equity that arises out of these Terms, the Companion Services, the Site or any of the other Lena Services (a “Dispute”) will be resolved in accordance with this Section 19.3 or as Lena and you otherwise agree in writing. Before resorting to these dispute methods, Lena strongly encourages you to first contact Lena directly to seek a resolution.
(a) Choice of Law. These Terms shall be governed in all respects by the laws of the State of Texas, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS OR ANY OF THE LENA SERVICES.
(b) Arbitration and Class Action Waiver.
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
(i) ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND LENA (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS OR ANY OF THE LENA SERVICES, INCLUDING WITHOUT LIMITATION YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION'S RULES FOR ARBITRATION AND YOU AND LENA HEREBY EXPRESSLY WAIVE TRIAL BY JURY. ANY ARBITRATION SHALL BE IN ENGLISH AND THE PLACE OF ARBITRATION SHALL BE HARRIS COUNTY, TX. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY SUCH RULES. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND LENA WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU MAY BRING DISPUTES ONLY ON YOUR OWN BEHALF.
Neither you nor Lena will participate in a class action or class-wide arbitration for any disputes covered by these Terms to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST LENA INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another User or third party, if Lena is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
(ii) Judicial Forum for Disputes. In the event that the agreement to arbitrate under Section 19.3(b) is found not to apply to you or your claim, you and Lena agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts covering Harris County, TX. Both you and Lena irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Lena may bring a claim for equitable relief in any court with proper jurisdiction.
(iii) Survival. This arbitration agreement will survive the termination of your use of the Companion Services or any of the other Lena Services or your relationship with Lena.
(c) 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section 19.3 above by sending written notice of your decision to opt-out to email@example.com. The notice must be sent to Lena within thirty (30) days of your use of any of the Lena Services or agreeing to these Terms, 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.
(d) Improperly Filed Claims. All claims you bring against Lena must be resolved in accordance with this Section 19.3. All claims filed or brought contrary to this Section 19.3 shall be considered improperly filed. Should you file a claim contrary to this Section 19.3, Lena may recover attorneys’ fees and costs up to $15,000, provided that Lena has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
If any provision of these Terms (including any Policies) is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from these Terms to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
19.5 Relationship of the Parties.
The parties agree that nothing in these Terms shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. You are and will remain an independent contractor in your relationship to Lena. Nothing in these Terms shall create any obligation between either party and a third party.
These Terms and related Policies, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Lena without restriction. Any assignment attempted to be made in violation of these Terms shall be void.
Upon termination of these Terms, your use of the Companion Services, the Site or any of the other Lena Services or the Features or your relationship with Lena any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to, Sections 1, 2 and 9 - 19.
The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and will not be deemed to limit or affect any of the provisions hereof.
19.9 Entire Agreement.
19.10 No Agency.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
19.11 Geographic Restrictions.
Lena is based in the state of Texas in the United States. Lena makes no claims that accessing or using or that any of the Companion Services or other Lena Services or any of the content is accessible or appropriate outside of the United States. Accessing or using the Companion Services, the Site or any of the other Lena Services may not be legal by certain persons or in certain countries. If you access any of these Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Lena with respect thereto.
19.12. Electronic Communications.
The communications between you and Lena use electronic means, whether you visit the Site or the other Lena Services or send Lena e-mails, or whether Lena posts notices on the Site or the other Lena Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Lena in an electronic form; and (b) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Lena provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. The foregoing does not affect your statutory rights.
The Companion Services, the Site and the other Lena Services are offered by Bloom Circle, Inc., Inc. located at: 2450 Holcombe Blvd. Ste X, Houston, TX 77021 and email: firstname.lastname@example.org.
If you are a California resident, you may have this same information emailed to you by sending a letter to Bloom Circle, Inc. d/b/a Lena¸2450 Holcombe Blvd. Ste X, Houston, TX 77021with your email address and a request for this information.
California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
© 2020 Bloom Circle, Inc.