Terms of Service
Pops Terms of Use
Last Updated Date: 10/29/2025
PLEASE READ THIS TERMS OF USE AGREEMENT (THIS “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU AND POPS HEALTH TECH INC. (“POPS,” “WE,” OR “OUR”), PROVIDERS OF THE POPS AI WEB AND MOBILE APPLICATIONS.
BY ACCESSING OR USING HEYPOPS.AI, OR ANY OTHER WEBSITE WITH AN AUTHORIZED LINK TO THESE TERMS, INCLUDING ANY WEB APPLICATION AVAILABLE AT APP.HEYPOPS.AI SUBDOMAIN (“WEBSITE”), REGISTERING AN ACCOUNT OR ACCESSING OR USING ANY DATA, INFORMATION, SERVICES, FEATURES OR RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (COLLECTIVELY, THE “SERVICES”), OR CLICKING ON A BUTTON OR TAKING ANOTHER ACTION TO SIGNIFY YOUR ACCEPTANCE OF THIS AGREEMENT, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE AT LEAST 18 YEARS OF AGE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE WEBSITE OR THE SERVICES.
PLEASE NOTE THAT SOME OF THE SERVICES ARE CURRENTLY AVAILABLE ONLY IN CERTAIN STATES. THE SERVICES MAY NOT BE AVAILABLE IN YOUR LOCATION. PLEASE CHECK BACK AS WE ARE CONTINUING TO EXPAND. POPS RESERVES THE RIGHT TO EXPAND OR RESTRICT THE AVAILABILITY OF THE SERVICES AT ANY TIME AND FOR ANY REASON.
DO NOT USE THESE SERVICES FOR EMERGENCY MEDICAL NEEDS. IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY, YOU SHOULD DIAL “911” IMMEDIATELY.
SECTION 14 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND POPS. AMONG OTHER THINGS, SECTION 14 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 14 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 14 (ARBITRATION AGREEMENT) CAREFULLY.
THIS AGREEMENT IS SUBJECT TO CHANGE BY POPS IN ITS SOLE DISCRETION AT ANY TIME AS SET FORTH IN SECTION 15.13 (AGREEMENT UPDATES).
1. USE OF THE SERVICES.
1.1 Generally. Through the Services, Pops makes available an AI-powered health assistant that helps users navigate their independent health insurance options, which through the ability to conduct AI-powered conversations (“Conversational Features”), is designed to enable users to become empowered to make a decision about their health insurance through health insurance education, plan analysis and plan support post-enrollment. As part of the Services, you may submit certain Inputs and other content and data related to your thoughts and emotions, and share other information about yourself, including your Registration Data (all such information, “Your Content”). The use of Your Content by Pops will be subject to the terms of our Privacy Policy.
1.2 Limitations of Services.
(a) The Services, including the Conversational Features, are not intended to provide medical advice to users and are provided for informational purposes only. YOU ACKNOWLEDGE AND AGREE THAT POPS DOES NOT PROVIDE ANY MEDICAL, PSYCHOLOGICAL, OR OTHER CLINICAL ADVICE OF ANY KIND OR MAKE ANY MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL DECISIONS. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR RELATIONSHIP WITH ANY HEALTHCARE PROVIDER, INCLUDING ANY HEALTHCARE PROVIDER WHO DIRECTS YOU TO USE THE SERVICES, IS SOLELY WITH SUCH HEALTHCARE PROVIDER. YOU ACKNOWLEDGE AND AGREE THAT POPS DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR THE ACCURACY, EFFICACY, VERACITY, COMPLETENESS, APPROPRIATENESS, OR SAFETY OF ANY INFORMATION OR RESOURCES RECEIVED OR PROVIDED OR MADE AVAILABLE THROUGH THE SERVICES.
(b) YOU ACKNOWLEDGE THAT POPS DOES NOT RECOMMEND OR ENDORSE ANY SPECIFIC TESTS, CLINICIANS, PRODUCTS, PROCEDURES, OPINIONS, OR OTHER INFORMATION OR RESOURCES MADE AVAILABLE THROUGH THE SERVICES. POPS DOES NOT ITSELF PROVIDE SERVICES REQUIRING PROFESSIONAL LICENSURE OR QUALIFICATIONS (E.G., PHYSICIAN OR OTHER MEDICAL OR PSYCHOLOGICAL PROFESSIONAL SERVICES), AND THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL, PSYCHOLOGICAL OR OTHER CLINICAL ADVICE OR OPINIONS.
(c) ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL, MENTAL, PSYCHOLOGICAL, OR OTHER HEALTH CONDITION. NEVER DISREGARD PROFESSIONAL MEDICAL OR CLINICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SERVICES. THE SERVICES ARE NOT INTENDED FOR EMERGENCY USE.
1.3 No Physician-Patient Relationship with Pops. The information generated by Pops or the Services, including the Conversational Features, should not be interpreted as a substitute for a healthcare professional consultation, evaluation, or treatment, and the information made available on or through the Services should not be relied upon when making medical or other clinical decisions or to diagnose or treat a medical, mental, psychological, or health condition. Nothing contained in the Services should be construed as such advice or diagnosis. YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, PSYCHOTHERAPIST-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY BETWEEN YOU AND POPS OR ANY OTHER USERS OF THE SERVICES. You are urged and advised to seek the advice of a professional therapist, physician or a medical professional with any questions you may have regarding your mental health, or any other information or resources that may be referenced, discussed, or offered under the Services. You represent to us (which representation shall be deemed to be made each time you use the Services), that you are not using the Services or participating in any of the activities offered by the Services for purposes of seeking medical attention. You further agree that, before using the Services, you shall consult your physician. If any information you receive or obtain from using the Services is inconsistent with the medical advice from your physician, you agree to follow the advice of your physician.
1.4 Not an Insurance Product.
(a) We are not a licensed independent insurance broker. We do not underwrite any policy, plan or package you may view through the Services. Any quotes or ranges we may display on the Services are non-binding. The final premium for any policy is determined by the underwriting insurance company following application. Medicare products and their availability may vary by state and your individual circumstances, and additional minimum coverage limits may be required in your state. The third-party insurance products made available to you by a broker are only available in the jurisdictions in which brokers are properly licensed.
(b) The Services are not health insurance or a substitute for health insurance, and the amounts you pay for the Services are not insurance premiums. The Services do not meet any individual health insurance mandate under federal or state law. If you desire any type of health or other insurance coverage, you will need to acquire such insurance separately.
1.5 Pops Properties. The Services, and the information, materials, and content made available through the Services (as these terms are defined herein) (each, a “Pops Property” and collectively, the “Pops Properties”) are protected by copyright laws throughout the world.
1.6 Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.
1.7 Updates. You understand that the Pops Properties are evolving. As a result, Pops may require you to accept updates to the Pops Properties that you have installed on your computer or mobile device. You acknowledge and agree that Pops may update the Pops Properties with or without notifying you. You may need to update third-party software from time to time in order to use the Pops Properties.
1.8 Pops Communications.
(a) By entering into this Agreement, using the Platform, or using the Services, you agree to receive communications from us, including via email. Communications from us and our affiliated companies may include but are not limited to operational communications concerning your Account (as defined in Section 2.1 (Registering Your Account) below) or your use of the Platform and Services, updates concerning new and existing features on the Platform, and news concerning Pops.
(b) Pops may offer one or more mobile message programs (collectively, the “Message Service”) that allows users to receive SMS/MMS mobile messages. If any Message Service involves the transmission of marketing messages via SMS/MMS (rather than operational messages related to your use of the Platform and Services), we will require you to separately opt-in to such Message Service to participate in such Message Service. You agree that your use of the Message Service is governed by these Terms. We do not charge for the Message Service, but you are responsible for all charges and fees associated with mobile messaging imposed by your wireless carrier and you acknowledge that your carrier may charge you or deduct usage credit from your account when you text us or we send messages to you. Message and data rates may apply. By enrolling a telephone number in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the number you specify, and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include marketing messages. You agree that these messages may be transmitted using an automatic telephone dialing system (“ATDS”), other automated systems for the selection or dialing of telephone numbers, or different technology. Your consent to receive mobile messages via an ATDS or other automated system for the selection or dialing of numbers is not required (directly or indirectly) as a condition of purchasing any property, goods or services. While you consent to receive messages sent using an ATDS, the foregoing shall not be interpreted to suggest or imply that any or all of our messages are sent using such a system. Message frequency varies. If you do not wish to continue participating in a Message Service program we offer, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message you receive from that program to opt out. You may receive an additional mobile message confirming your decision to opt out. You understand and agree that the foregoing options are the only reasonable methods of opting out. You acknowledge that our text message platform may not recognize and respond to unsubscribe requests that alter, change, or modify the STOP, END, CANCEL, UNSUBSCRIBE or QUIT keyword commands, such as the use of different spellings or the addition of other words or phrases to the command, and agree that that we and our service providers will have no liability for failing to honor such requests. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than those keyword commands set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out. To the extent you subscribe to more than one Message Service program that we operate, you must unsubscribe from each program separately. For Message Service support or assistance, text the HELP keyword in response to any message you receive through the Message Service or email us at support@pops.health. Please note that the use of this email address is not an acceptable method of opting out of Message Service. Opt outs must be submitted in accordance with the procedures set forth above. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we are not responsible for honoring requests made in such messages. The Message Service may not be available in all areas or supported by all carriers or all devices. Check with your carrier for details. Delivery of mobile messages is subject to effective transmission from your wireless carrier/network operator and is outside of our control. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you decide to change your mobile phone number, you agree to first opt out of each Message Service program in which your number is enrolled. For clarity, you acknowledge and agree that any disputes between you and us related to the Message Service will be governed by Section 14 (Arbitration Agreement).
2. REGISTRATION.
2.1 Registering Your Account. In order to access certain features of Pops Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website (“Account”).
(a) A “Broker Account” is a user Account for an individual working with an insurance broker seeking to use the Services for its internal business purposes who has signed a separate enterprise agreement with Pops (each, a “Broker”). In creating a Broker Account, we ask that you provide complete and accurate information about yourself, and maintain and promptly update such information to keep it true, accurate, current and complete. You may not impersonate someone else, create or use an Account for anyone other than yourself, provide an email address other than your own, or create multiple Accounts associated with your employer. A user who registers for a Broker Account is a “Broker User”.
(b) A “Consumer Account” is a user Account for a consumer to use the Services for his or her own non-commercial personal use. In creating a Consumer Account, we ask that you provide complete and accurate information about yourself, and maintain and promptly update such information to keep it true, accurate, current and complete. You may not impersonate someone else, create or use an Account for anyone other than yourself, provide an email address other than your own, or create multiple Accounts. A user who registers for a Consumer Account is a “Consumer User”.
2.2 Registration Data. You represent that you are (a) of legal age to form a binding contract; and (b) not a person barred from using Pops Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account; provided that Brokers are responsible for those activities occurring under Broker Accounts. You may not share your Account or password with anyone, and you agree to (i) notify Pops immediately of any unauthorized use of your password or any other breach of security; and (ii) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Pops has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Pops has the right to suspend or terminate your Account and refuse any and all current or future use of Pops Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an Account or use Pops Properties if you have been previously removed by Pops, or if you have been previously banned from any of Pops Properties.
2.3 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Pops Properties, including but not limited to, a mobile device that is suitable to connect with and use the Pops Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Pops Properties.
2.4 Connected Accounts. In order to access certain of the features and functions of the Services, you may be required to link or provide access to certain third-party accounts for which you are registered or subscribed (“Connected Accounts”) to the Platform or Services. By granting Pops access to any Connected Account, (i) you represent and warrant that you are entitled to disclose any log-in information provided by you in connection therewith (if applicable) and/or to grant Pops access to such Connected Accounts, (ii) you represent and warrant that you are in good standing with respect to such Connected Accounts, and (iii) you acknowledge that Pops may access data through any such Connected Account (which will constitute Your Content) so that it may be used in accordance with the terms of this Agreement. You further acknowledge and agree that each Connected Account, including access to and use thereof and uptimes related thereto, is solely determined by the applicable provider of the relevant Connected Account. Pops will have no liability for any unavailability of any Connected Account, or any third-party provider’s decision to discontinue, suspend or terminate any Connected Account. Without limiting the generality of the foregoing, you acknowledge that Pops has no control over, or other ability or obligation with respect to the maintenance, upkeep, status or support of any Connected Accounts or other component thereof, including the accuracy, timeliness, reliability, or completeness of any data accessed or made available through a Connected Account. Pops Parties will have no liability with respect to any acts, omissions, reliance, delays, errors or other liabilities arising from or related to any downtime, unavailability, inaccuracies or failures of any Connected Accounts.
3. CONTENT.
3.1 User Responsibility for Content. You acknowledge that all content on the Services (“Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Pops, are entirely responsible for all Content that you upload, post, message, text, transmit or otherwise make available (“Make Available”) through the Services, including all Inputs that you submit to our Conversational Features.
3.2 Use of AI. The Pops Properties use software and technology, including proprietary and third-party artificial intelligence and deep learning platforms, algorithms, and models (“Models”), to process user inputs and responses to queries from the Conversational Features (“Inputs”, which are part of Your Content hereunder), and generate and return outputs based on such Inputs, including recommendations and responses designed to better analyze the fit of specific insurance plans (“Outputs”). Pops does not claim ownership of any of your Inputs or Outputs, other than the information, materials, and content as part of the guided exercises and practices included as a part of the Services , which are considered part of Pops Properties. In order to provide the Services to you, you hereby grant to Pops a non-exclusive, irrevocable, perpetual, worldwide, fully-paid and royalty-free, transferable, sublicensable (through multiple tiers of sublicensees) right and license to use any Inputs and Outputs made available by you or otherwise generated in connection with your use of the Services solely for such purpose of providing the Services to you.
3.3 AI Disclaimer. You acknowledge that the Outputs are based on your Inputs, as well as Models and information, and, that Pops has no control over any such Inputs, Models or related information. Accordingly, all Outputs are provided “as is” and with “all faults”, and Pops makes no representations or warranties of any kind or nature with respect to any Outputs, including any warranties of accuracy, completeness, truthfulness, timeliness or suitability. You are solely responsible for your use of your Outputs created through the Services, and you assume all risks associated with your use of your Outputs, including any potential copyright infringement claims from third parties or any disclosure of your Outputs that personally identifies you or any third party. Furthermore, Pops will have no liability for the unavailability of any Models, or any third party’s decision to discontinue, suspend or terminate any third-party provided Models. You understand that additional license requirements may apply to certain Models, and will be included in information for such Models as part of your use of the Services and that you must review and comply with such requirements for the Models used.
3.4 Conversational Features. Pops provides Conversational Features that respond to user requests with automated replies, leveraging certain third party services to power the Services’ function, which are integrated into the Conversational Features, including without limitation as made available by OpenAI LLC, Eleven Labs, Inc. and its and their affiliates (each provider of such third-party service, a “Third Party Provider”). YOU, AND NOT POPS, SHALL BE SOLELY RESPONSIBLE FOR YOUR USE OF THESE FUNCTIONS, INCLUDING ANY USE OF THE RESULTS OF ANY INPUT AND DECISIONS MADE OR ACTIONS TAKEN BASED ON ANY INPUT. YOU ACKNOWLEDGE AND AGREE THAT ANY CONDUCT YOU ENGAGE IN AS A RESULT OF THE INFORMATION PROVIDED BY THE CONVERSATIONAL FEATURES OR ANY OTHER AI-ENABLED FEATURE MADE AVAILABLE THROUGH POPS OR THIRD PARTY PROVIDERS IS AT YOUR OWN RISK. BECAUSE CONVERSATIONAL FEATURES USE ARTIFICIAL INTELLIGENCE TO COMMUNICATE WITH YOU, THEY MAY PROVIDE INFORMATION THAT IS AN INACCURATE RESPONSE TO YOUR INPUTS IN ITS INTERACTIONS WITH YOU. YOU AGREE THAT POPS WILL NOT BE HELD LIABLE TO YOU OR ANY THIRD PARTY FOR THESE FEATURES (OR ANY OTHER AI-ENABLED FEATURE MADE AVAILABLE THROUGH POPS OR THIRD PARTY PROVIDERS) PROVIDING INACCURATE INFORMATION TO YOU.
3.5 Restrictions and Responsibility for Use. You shall comply with all obligations and commitments in the Agreement with respect to Your Content in connection with your use of the Services. You are solely responsible for the Inputs, Outputs and your use thereof. Without limiting the disclaimers in Section 10 (Disclaimer of Warranties and Conditions) below, you are responsible for reviewing any Output prior to your use and exercising your own judgement as to its suitability for use. Without limiting the foregoing and your representations and warranties under the Agreement, you shall not use submit any Inputs or use any Output that: (a) infringe or misappropriates any third party’s intellectual property rights or other proprietary rights; (b) are deceptive, discriminatory, biased, unethical, defamatory, obscene, pornographic or illegal; or (c) contain any viruses, worms or other malicious computer programming codes that may damage the Services. Pops reserves the right to suspend or terminate your access to the Services, or any part thereof, for any failure by you to comply with this Section. In addition to the foregoing, your obligations under the Agreement with respect to use of the Services, your representations and warranties and indemnification obligations, shall apply in full with respect to your use of the Services. You acknowledge and agree that, notwithstanding the automated suggestions provided by the Services, including the Conversational Features, you remain solely responsible for the content, legality, accuracy, and completeness of the Outputs, and any use thereof.
3.6 Storage. Pops has no responsibility or liability for the deletion or accuracy of Your Content; the failure to store, transmit or receive transmission of Your Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Pops Properties. You agree that Pops retains the right to create reasonable limits on Pops’ use and storage of Your Content, such as limits on file size, storage space, processing capacity, and similar limits described in the web pages or other documentation accompanying the Services and as otherwise determined by Pops in its sole discretion.
4. OWNERSHIP.
4.1 Pops Properties. Except with respect to Your Content, you agree that (a) Pops and its suppliers own all rights, title and interest in Pops Properties and (b) you have no right or title in or to any content or other data that appears on or in the Pops Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Pops Properties.
4.2 Trademarks. “POPS” and other related graphics, logos, trademarks, service marks and trade names used on or in connection with Pops Properties are the trademarks of Pops and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Pops Properties are the property of their respective owners.
4.3 Your Content. Pops does not claim ownership of Your Content. You grant Pops a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating the Services and providing Pops Properties to you and for other development, diagnostic, and corrective purposes for those or other offerings of Pops. Further you acknowledge and agree that Pops may collect usage related information and statistics with respect to your access to and use of the Services (“Usage Information”), and may use such Usage Information, on a de-identified, aggregated basis, to provide and improve the Services. You agree that you, not Pops, are responsible for all of Your Content that you make available on or in the Pops Properties.
4.4 Protected Health Information. You represent and warrant that you will provide written notice to Pops upon entering into this Agreement to the extent you are considered a “covered entity” or “business associate” under HIPAA. To the extent that you are a HIPAA covered entity or business associate and its Input and Your Content includes any “protected health information” (“PHI”) that is subject to HIPAA, then: (a) you agree that you must first inform Pops in writing of HIPAA’s applicability to the specifically identified Your Content; (b) you and Pops shall then negotiate in good faith and execute a mutually agreed upon business associate agreement (“BAA”), which the parties acknowledge and agree will govern the privacy and security of the protected health information that Pops access or receives on your behalf; (c) the terms of the BAA shall be incorporated by reference into this Agreement upon the execution of the BAA; and (d) the parties agree to comply with their respective obligations under the BAA. You acknowledge and agree that, between you and Pops, it is your responsibility to inform Pops of your HIPAA status and comply with this section to ensure the parties’ compliance with HIPAA.
4.5 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Pops through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Pops has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Pops a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation, maintenance, and improvement of Pops Properties and/or Pops’ business.
5. USER CONDUCT AND CERTAIN RESTRICTIONS. As a condition of use, you agree not to use Pops Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Pops Properties or any portion of the Pops Properties; (ii) frame or utilize framing techniques to enclose any trademark or logo located on the Pops Properties or any other portion of the Pops Properties (including images, text, page layout or form); (iii) use any metatags or other “hidden text” using Pops’ name or trademarks; (iv) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Pops Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (v) use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools, or the like) to “scrape” or download data from any web pages contained in the Pops Properties (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Pops Properties for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (vi) remove or destroy any copyright notices or other proprietary markings contained on or in the Pops Properties; (vii) impersonate any person or entity, including any employee or representative of Pops; (viii) interfere with or attempts to interfere with the proper functioning of the Pops Properties or use the Pops Properties in any way not expressly permitted by this Agreement, including but not limited to violating or attempting to violate any security features of the Pops Properties, introducing viruses, worms, or similar harmful code into the Pops Properties, or interfering or attempting to interfere with use of the Pops Properties by any other host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Pops Properties; or (ix) take any action or Make Available any Content on or through the Pops Properties that: (A) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (B) constitutes unauthorized or unsolicited advertising, junk or bulk email; or (C) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Pops’ prior written consent. The rights granted to you in this Agreement are subject to your compliance with the restrictions set forth in this Section. Any unauthorized use of the Pops Properties terminate the licenses granted by Pops pursuant to this Agreement.
6. INVESTIGATIONS. Pops may, but is not obligated to, monitor or review Pops Properties at any time. Although Pops does not generally monitor user activity occurring in connection with Pops Properties, if Pops becomes aware of any possible violations by you of any provision of this Agreement, Pops reserves the right to investigate such violations, and Pops may, at its sole discretion, immediately terminate your license to use Pops Properties, without prior notice to you.
7. THIRD-PARTY SERVICES. The Pops Properties may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) (collectively, the “Third-Party Services”). When you click on a link to a Third-Party Service, we may not warn you that you have left Pops Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Pops. Pops is not responsible for any Third-Party Services. Pops provides links to these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at your own risk. When you leave our Services, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8. FEES AND PURCHASE TERMS.
8.1 Third-Party Service Provider. Pops uses Stripe, Inc. and its affiliates (“Stripe”) as its third-party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) made within the Services (“Third-Party Service Provider”). If you make a purchase on the Services, you will be required to provide your payment details and any additional information required to complete your order directly to our Third-Party Service Provider. You agree to be bound by Stripe’s Privacy Policy (currently accessible at https://stripe.com/us/privacy) and its Terms of Service (currently accessible at https://stripe.com/legal/ssa) and hereby consent and authorize the Pops and Stripe to share any information and payment instructions you provide with one or more Third-Party Service Provider(s) to the minimum extent required to complete your transactions. Please note that online payment transactions may be subject to validation checks by our Third-Party Service Provider and your card issuer, and we are not responsible if your card issuer declines to authorize payment for any reason. For your protection, our Third-Party Service Provider uses various fraud prevention protocols and industry standard verification systems to reduce fraud and you authorize it to verify and authenticate your payment information. Your card issuer may charge you an online handling fee or processing fee. We are not responsible for this. In some jurisdictions, our Third-Party Service Provider may use third parties under strict confidentiality and data protection requirements for the purposes of payment processing services.
8.2 Payment.
(a) If you have a Broker Account, your access to and use of the Service is contingent on the applicable Broker’s payment of the fees required under its separate enterprise agreement with Pops. Pops has the right to suspend your Account and your access to the Services in the event of any delay by Broker in making any payments owed to Pops.
(b) If you have a Consumer Account, you shall pay all fees or charges (“Fees”) to your Account in accordance with the fees, charges and billing terms in effect at the time a Fee is due and payable. By providing Pops and/or our Third-Party Service Provider with your payment information, you agree that Pops and/or our Third-Party Service Provider is authorized to immediately invoice your Account for all Fees due and payable to Pops hereunder. You shall immediately notify Pops of any change in your payment information to maintain its completeness and accuracy. Pops reserves the right at any time to change its prices and billing methods in its sole discretion. You agree to have sufficient funds or credit available upon placement of any order to ensure that the purchase price is collectible by us. Your failure to provide accurate payment information to Pops and/or our Third-Party Service Provider or our inability to collect payment constitutes your material breach of this Agreement. EXCEPT AS SET FORTH IN THIS AGREEMENT, ALL FEES FOR THE SERVICES ARE NON-REFUNDABLE.
8.3 Taxes. The Fees will include any applicable Sales Tax. If any Services, or payments for any Services, under this Agreement are subject to Sales Tax in any jurisdiction and Pops has not included the applicable Sales Tax within the schedule of Fees, Pops will be responsible for the payment of such Sales Tax to the relevant tax authority and for any liability or expense, including, but not limited to, any penalties or interest, that may attach thereto. Upon your request, we will provide you with official receipts issued by the appropriate taxing authority, or other such evidence that we have paid all applicable taxes. For purposes of this section, “Sales Tax” means any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9. INDEMNIFICATION. You agree to indemnify and hold Pops, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Pops Party” and collectively, the “Pops Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) your use of, or inability to use, any Pops Property; (b) your violation of this Agreement; (c) your violation of any rights of another party, including any Registered Users; (d) your violation of any applicable laws, rules or regulations; or (e) Your Content (including Inputs). Pops reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Pops in asserting any available defenses. This provision does not require you to indemnify any of the Pops Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement and/or your access to Pops Properties.
10. DISCLAIMER OF WARRANTIES AND CONDITIONS.
10.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF POPS PROPERTIES IS AT YOUR SOLE RISK, AND POPS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. POPS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.
(a) THE POPS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) POPS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF POPS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF POPS PROPERTIES WILL BE ACCURATE OR RELIABLE.
(b) ANY DATA DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH POPS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS POPS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH DATA.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. POPS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM POPS OR THROUGH POPS PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, POPS MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT POPS’ SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
10.2 Not Intended for Emergency Use. POPS’ GOAL IS TO PROVIDE HELPFUL AND ACCURATE INFORMATION ON THE SERVICES. HOWEVER, THE SERVICES ARE DEPENDENT UPON A NUMBER OF FACTORS THAT ARE OUTSIDE THE CONTROL OF POPS. USE OF THE SERVICES SHOULD NOT REPLACE YOUR GOOD JUDGMENT AND COMMON SENSE. Use of the Services should not replace your good judgment and common sense. If you BELIEVE YOU are experiencing a medical or other emergency, call 911.
10.3 Medical-Related Disclaimers.
(a) THE CLAIMS MADE IN CONNECTION WITH THE SERVICES ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE OR MEDICAL CONDITION. POPS DOES NOT OFFER MEDICAL ADVICE OR DIAGNOSES, OR ENGAGE IN THE PRACTICE OF MEDICINE. THE CONTENTS OF THE SERVICES, INCLUDING TEXT, GRAPHICS, IMAGES, AND OTHER DATA CREATED BY THE SERVICES OR OTHERWISE PROVIDED THROUGH THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY, AND IS NOT INTENDED TO BE A SUBSTITUTE FOR ANY PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, TREATMENT, OR PUBLIC HEALTH INFORMATION.
(b) THE POPS PARTIES DO NOT THEMSELVES PROVIDE SERVICES TO YOU REQUIRING PROFESSIONAL LICENSURE OR OTHER SIMILAR QUALIFICATIONS (E.G., PHYSICIAN, PSYCHOLOGIST, OR OTHER CLINICAL PROFESSIONAL SERVICES) AND THE SERVICES PROVIDED BY THE CONVERSATIONAL FEATURES AND/OR THE SERVICES DO NOT CONTAIN OR CONSTITUTE, AND SHOULD NOT BE INTERPRETED AS, MEDICAL OR OTHER CLINICAL ADVICE OR OPINION.
(c) YOUR USE OF THE SERVICES DOES NOT CREATE A PATIENT OR LICENSED MEDICAL PROFESSIONAL RELATIONSHIP, PHYSICIAN-PATIENT PRIVILEGE, PSYCHOTHERAPIST-PATIENT PRIVILEGE, OR DOCTOR-PATIENT CONFIDENTIALITY.
10.4 No Liability for Your Choice of Insurance. The Pops Parties do not recommend or endorse any specific insurance company and do not provide advice on which insurer to select or which products to buy. The insurance information obtained by your use of the Services does not constitute an offer of insurance and is subject to the approval of the respective insurance issuers or providers. No contract for the provision of a policy of insurance is formed by your use of the Services. You are advised to seek the advice of professionals, as appropriate, regarding the evaluation of any specific, report, quote, opinion, advice or other material on the Services. You are solely liable for your choice in an insurance plan and your contractual relationship, benefits and obligation are between you and the insurance issuer/company that you choose.
10.5 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE POPS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE POPS PARTIES LIABLE, FOR THE CONDUCT OR OMISSIONS OF THIRD PARTIES, INCLUDING THE ACTIONS OF FIRST RESPONDERS OR ANY OTHER USERS OF THE SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11. LIMITATION OF LIABILITY.
11.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL POPS PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT POPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF POPS PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE POPS PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE POPS PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR YOUR CONTENT; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON POPS PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO POPS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A POPS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A POPS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A POPS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL POPS PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO POPS BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A POPS PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A POPS PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A POPS PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
11.3 Data. POPS ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY OF YOUR CONTENT, DATA, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
11.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POPS AND YOU.
12. TERMINATION.
12.1 Termination. This Agreement shall remain in full force and effect until your Account is terminated as provided herein. If you want to terminate this Agreement, you may do so by (i) notifying Pops at any time and (ii) closing your Account for the Services. Pops may terminate your Account if (a) you are in breach of this Agreement; (b) if Pops decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. Pops will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
12.2 Effect of Termination. Termination of any portion of the Services includes removal of access to such portion and barring of further use of such portion of the Services. Termination of all Services also includes deletion of Your Content, your password and all related information, files and data associated with or inside your Account (or any part thereof). Upon termination of any portion of the Services, your right to use such portion will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Pops will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
13. INTERNATIONAL USERS. The Pops Properties can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that Pops intends to announce such Services in your country. Pops Properties are controlled and offered by Pops from its facilities in the United States of America. Pops makes no representations that Pops Properties are appropriate or available for use in other locations. Those who access or use Pops Properties from other countries do so at their own volition and are responsible for compliance with local law.
14. DISPUTE RESOLUTION. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Pops and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
14.1 Agreement to Arbitrate. Subject to the terms of this Arbitration Agreement, you and Pops agree that any and all disputes, claims, controversies or disagreements that have arisen or may arise between you and Pops, whether arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved exclusively by final and binding arbitration, in accordance with the terms of this Arbitration Agreement, rather than in court, except that: (i) you and Pops may assert individual claims in small claims court if such claims qualify and remain in small claims court; and (ii) you or Pops may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf.
14.2 Waiver of Jury Trial. YOU AND POPS HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Pops are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 14.1 (Agreement to Arbitrate). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.3 Waiver of Class and Other Non-Individualized Relief. EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 14.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, determines that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Pops agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Minnesota. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Pops from participating in a class-wide settlement of claims.
14.4 Informal Dispute Resolution. Pops is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing Pops’s customer support at [support@pops.health]. If such efforts prove unsuccessful, you and Pops agree that good faith informal efforts to resolve Disputes before starting an arbitration or initiating an action in small claims court (“Informal Dispute Resolution”). You and Pops agree that as part of these efforts, either party has the option to ask the other to meet and confer telephonically or via videoconference (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you must also personally participate in the conference.
To initiate Informal Dispute Resolution, a party must give notice to the other party (“Notice”). Such Notice to Pops should be sent by email to support@pops.health or regular mail to our offices located at Pops Health Tech Inc., 5605 Woodcrest Drive, Edina, Minnesota 55424 (“Notice Address”). The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute. Pops will send Notice, including a description of the Dispute, to your email address or regular address on file. It is your responsibility to ensure your email and regular address are correct and remain up to date.
The Informal Dispute Resolution process lasts 45 days and is a mandatory precondition to commencing arbitration. During this period, either party has the option to ask the other to participate in an Information Dispute Resolution Conference as part of a good faith effort to resolve the Dispute. The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.
The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in Informal Dispute Resolution.
14.5 Rules and Forum. This Agreement evidence a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement, including the procedures governing Batch Arbitration, and any arbitration. If the Informal Dispute Resolution process described above does not resolve satisfactorily within forty-five (45) days after receipt of your Notice, you and Pops agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be conducted by National Arbitration & Mediation (“NAM”) in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedure (the “NAM Comprehensive Rules”) in effect at the time of arbitration, except as supplemented, where applicable, by the NAM Mass Filing Supplemental Dispute Resolution Rules and Procedures (the “NAM Mass Filing Rules”; together with the NAM Comprehensive Rules, the “NAM Rules”), and as modified by this Arbitration Agreement. The NAM Rules are currently available at https://www.namadr.com/resources/rules-fees-forms/.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Demand”). The Demand must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party will pay any necessary filing fees in connection with such arbitration. Any Demand you send to Pops should be sent by email to [support@pops.health] or the Notice Address. Pops will provide the Demand to your email address on file.
If the party requesting arbitration is represented by counsel, the Demand shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Demand. By signing the Demand, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that, consistent with the standards set forth in Federal Rule of Civil Procedure 11(b): (1) the Demand is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“Counsel’s Certification”).
Unless you and Pops otherwise agree, or the Batch Arbitration process discussed in Section 14.9 (Batch Arbitration) is triggered, the arbitration, including any in-person arbitration hearing, will be conducted in Hennepin County, Minnesota, or, at your election, in the county where you reside. Subject to the NAM Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of arbitration. If NAM is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any NAM fees and costs will be solely as set forth in the applicable NAM fee schedules (the “Fee Schedules”). However, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Pops will pay as much of the arbitration fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.
You and Pops agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
You and Pops agree that at least 14 days before the date set for an arbitration hearing, any party may serve an offer in writing upon the other party to allow judgment on specified terms. If the offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party shall not recover any post-offer costs to which they otherwise would be entitled and shall pay the offering party’s costs from the time of the offer.
14.6 Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from the NAM’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Demand, then the NAM will appoint the arbitrator in accordance with the NAM Rules, provided that if the Batch Arbitration process under Section 14.9 (Batch Arbitration) is triggered, NAM, without soliciting input or feedback from any party, will appoint the arbitrator for each batch, subject to your right to object to that appointment.
14.7 Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except that all Disputes arising out of or relating to Section 14.3 (Waiver of Class or Other Non-Individualized Relief), including any claim that all or part of Section 14.3 (Waiver of Class or Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that Section 14.3 (Waiver of Class or Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
14.8 Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Demand was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). To the extent, following a presentation on the merits, on its own motion or a party’s, and after affording a reasonable opportunity to respond, an arbitrator determines that a party who commenced arbitration did not bring its claim(s) consistent with Counsel’s Certification and the standards set forth in Federal Rule of Civil Procedure 11(b), the parties agree that the arbitrator shall, as part of its award, impose sanctions by ordering that the initiating party reimburse the responding party for all arbitration filing and administrative fees and arbitrator costs the responding party incurred under the Fee Schedules.
14.9 Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Pops agree that in the event that there are twenty-five (25) or more individual Demands of a substantially similar nature filed against Pops by or with the assistance of the same law firm, group of law firms, or organizations(“Claimants’ Counsel”), within a reasonably proximate period of time, for example, a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 Demands per batch (or, if between twenty-five (25) and ninety-nine (99) individual Demands are filed, a single batch of all those Demands, and, to the extent there are fewer than 100 Demands remaining after the batching described above, a final batch consisting of the remaining Demands); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch on a consolidated basis with one set of filing and administrative fees per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award, which will provide for any and all relief to which the arbitrator determines each individual party is entitled (“Batch Arbitration”). NAM shall administer all batches concurrently, to the extent possible.
All parties agree that Demands are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing Procedural Arbitrator or, should the circumstances so require, an Emergency Arbitrator, according to the NAM Rules, to determine the applicability of the Batch Arbitration process (the Procedural Arbitrator or Emergency Arbitrator, the “Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Pops.
You and Pops agree to cooperate in good faith with NAM to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Demands, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision, and nothing about the Batch Arbitration process will preclude any party from participating in any arbitration administered according to that process.
14.10 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the Notice Address, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. Any opt-out notice will be effective only if you send it yourself, on an individual basis, and opt out notices from any third-party purporting to act on your behalf will have no effect on your or Pops’s rights. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, including any previous versions of this Arbitration Agreement to which you agreed and did not timely opt out, which will remain in effect, and has no effect on any arbitration agreements with us you may enter in the future.
14.11 Invalidity, Expiration. Except as provided in Section 14.3 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement (other than Section 14.9 (Batch Arbitration)) are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. However, if Section 14.9 (Batch Arbitration) of this Arbitration Agreement is found under the law to be invalid or unenforceable then, in that case, the entire Arbitration Agreement shall be void, and the parties agree that all Disputes will be heard in the state or federal courts located in Hennepin County, Minnesota. You further agree that any Dispute that you have with Pops as detailed in this Arbitration Agreement must be initiated within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
14.12 Future Changes to Arbitration Agreement. You and we agree that Pops retains the right to modify this Arbitration Agreement in the future. Any such changes will be posted within your Account and on the Website and you should check for updates regularly. We agree that if Pops makes any future material change to this Arbitration Agreement, it will notify you. Your continued use of the Website or Services, including purchase of Products through the Website or Services, following the posting of changes to this Arbitration Agreement, constitutes your acceptance of any such changes. If you have previously agreed to a version of this Agreement with an arbitration agreement and you did not validity opt of arbitration then, changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of your previous agreement to arbitrate. Pops will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
15. GENERAL PROVISIONS.
15.1 Electronic Communications. The communications between you and Pops may take place via electronic means, whether you visit Pops Properties or send e-mails, or whether Pops posts notices on Pops Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Pops in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Pops provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
15.2 Release. YOU HEREBY RELEASE THE POPS PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION, WHATSOEVER, ARISING OUT OF OR RELATED TO ANY LOSS, PROPERTY DAMAGE, PHYSICAL INJURY, CONTAGIOUS DISEASE OR DEATH THAT MAY BE SUSTAINED BY YOU WHICH MAY BE SUSTAINED BY YOU WHILE USING OR IN CONNECTION WITH THE USE OF THE SERVICES. THIS RELEASE WILL BE BINDING UPON YOUR RELATIVES, SPOUSE, HEIRS, NEXT OF KIN, EXECUTORS, ADMINISTRATORS, AND ANY OTHER INTEREST PARTIES.
You waive and relinquish any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver, including any all rights and benefits which you have or may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction (including without limitation Missouri, Delaware and Pennsylvania) to the full extent that you may lawfully waive all such rights and benefits. You acknowledge that the releases in this Agreement are intended to be as broad and inclusive as permitted by law, and as a complete and continuous release and waiver of liability for any and all use of the Services.
15.3 Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Pops’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
15.4 Force Majeure. Pops shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
15.5 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Pops Properties, please contact us at EMAIL. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
15.6 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Pops agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state or federal courts located in Hennepin County, Minnesota.
15.7 Governing Law THE AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF MINNESOTA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE TERMS.
15.8 Notice. Where Pops requires that you provide an e-mail address, you are responsible for providing Pops with your most current e-mail address. In the event that the last e-mail address you provided to Pops is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Pops’ dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Pops at EMAIL or the Notice Address. Such notice shall be deemed given when received by Pops by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
15.9 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
15.11 Export Control. You may not use, export, import, or transfer Pops Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Pops Properties, and any other applicable laws. In particular, but without limitation, Pops Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Pops Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Pops Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Pops are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Pops products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
15.13 Agreement Updates. When changes are made, Pops will make a new copy of this Agreement available on the Service, and we will also update the “Last Updated” date at the top of this Agreement. If we make any material changes and you have registered an Account with us, we will also send an email with an updated copy of this Agreement to you at the email address associated with your Account. Unless otherwise stated in such update, any changes to this Agreement will be effective immediately for users without an Account and thirty (30) days after posting for users with an Account. Pops may require you to provide consent to the updated Agreement in a specified manner before further use of the Service is permitted. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE SERVICE.
15.14 Entire Terms. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.