Terms of Service

Last Updated: 12/22/2023

Kouper Inc., and its subsidiaries (collectively, “Kouper,” “we,” “us,” “our”) provide certain services (described below) to you through its website located at https://www.kouperhealth.com/ (the “Site”), and via SMS and/or MMS messages sent through an automated telephone dialing system (the “Text Service”), including any updated or new features, functionality and technology (collectively with the Site and Text Service, the “Service”), subject to the following terms of service (as amended from time to time, the “Terms of Service”). By accessing the hyperlink delivered through the Text Service and selecting to opt into the Service, or otherwise using the Site, Text Service or any other aspect of the Service, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you do not accept the terms and conditions of these Terms of Service, you will not access, browse, or otherwise use the Service.

We may also provide you with access to certain affiliated or partnered medical groups or other providers of healthcare or medical services (the “Affiliated Medical Groups”). The Affiliated Medical Groups employ or contract with physicians and other allied health professionals (“Providers”) who offer certain healthcare and medical services (“Healthcare Services”). By accepting these Terms of Service, you acknowledge and agree that any services you receive from the Affiliated Medical Groups or Providers are not subject to these Terms of Service. If you are a Provider and acting in that capacity, these Terms of Service do not apply to you, and you must enter into a separate agreement with Kouper regarding your access and use of the Service.

We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Service user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. You should periodically visit this page to review the current Terms of Service so you are aware of any revisions. If you do not agree to abide by these or any future Terms of Service, you will not access, browse, or use (or continue to access, browse, or use) the Service. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THIS AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST KOUPER ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.

Your Privacy

At Kouper, we respect the privacy of our users. For details please see our Privacy Policy. By using the Service, you consent to our collection and use of personal information as outlined therein. All such terms are hereby incorporated by reference into these Terms of Service.

Additional Terms

In addition, when using or receiving the Service, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time. All such terms are hereby incorporated by reference into these Terms of Service.

Access and Use of the Service

Service Description: The Service provides the ability to use SMS and/or MMS messages to arrange Healthcare Services from Providers in your location following a hospital stay.

Communication with Kouper Team: Representatives of Kouper or Providers may contact you via the Service to schedule consultations, to remind you of appointments, to collect payment, and/or to discuss your diagnosis and treatment plan. We may also contact you via the Service to discuss various aspects of the Service.

Medical and Healthcare Services and Disclaimers

No Treatment Offered by Kouper, Inc.: Kouper, Inc. is not authorized to provide services requiring professional licensure, does not offer any medical treatment or perform any clinical health services, and does not provide any medical advice. The purchase of non-prescription drugs is not a medical service and does not create a medical provider relationship.

We will share data with third parties at your request and only as permitted by the Health Insurance Portability and Accountability Act (“HIPAA”).

NO HEALTHCARE PROVIDER/PATIENT RELATIONSHIP IS CREATED BETWEEN KOUPER, INC. AND AN INDIVIDUAL, INCLUDING WHEN AN INDIVIDUAL USES THE SERVICE; A HEALTHCARE PROVIDER/PATIENT RELATIONSHIP MAY BE CREATED BETWEEN ONE OR MORE PROVIDER AND A PATIENT WHEN THE PATIENT RECEIVES MEDICAL ADVICE FROM A PROVIDER.

The Service is not intended or implied to be a substitute for professional medical diagnosis or treatment. You are encouraged to confirm any information or advice obtained from or through the Service with other sources, and review all information and advice regarding any medical condition or treatment with your primary care physician or other healthcare professional. NEVER DISREGARD PROFESSIONAL MEDICAL ADVICE OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON OR ACCESSED THROUGH THE SERVICE.

IF YOU THINK YOU OR SOMEONE USING THE SERVICE MAY HAVE A MEDICAL EMERGENCY, CALL 911 IMMEDIATELY. IF YOU ARE THINKING ABOUT SUICIDE, OR ARE WORRIED ABOUT A FRIEND OR LOVED ONE COMMITTING SUICIDE, CALL THE NATIONAL SUICIDE PREVENTION LIFELINE AT 800-273-8255.

While you are not establishing a relationship with Kouper, Inc. as a healthcare provider, by using the Service you establish a direct customer relationship with Kouper, Inc.

Health Related Content: While Kouper provides certain Healthcare Services, most material included in the Service Content (defined below) or otherwise available on or via the Service describes general principles of healthcare that should not be construed as specific instructions for individual patients, and is for general information purposes only. It is for reference only and should not be used to determine treatment for specific medical conditions—only a healthcare provider can do that. You understand and agree that in no event will Kouper be liable for any decision made or action taken in reliance on such general information contained thereon, and reliance thereon is solely at your own risk. Kouper makes no representation and assumes no responsibility for the accuracy of information contained on or available through the Service, including but not limited to Service Content, and such information is subject to change without notice.

Your Registration Obligations: You may be required to register with Kouper in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the registration form. Such registration data and certain other information about you are governed by our Privacy Policy. Kouper is not liable for any loss or damage arising from your failure to comply with these obligations. If you are under 18 years of age, you are not authorized to use the Service with or without registering.

User Account, Password and Security: When creating your account, you represent and warrant that you will provide accurate and complete information. You are expected to use “strong” passwords (passwords that use a combination of upper and lowercase letters, numbers and symbols) with your account. You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account, even if due to misuse or any unauthorized access. You must exercise caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information. You understand and agree that your account is personal to you and you agree not to provide any other person with access to the Service using your username, password, or other security information. You also agree to ensure that you logout from your account at the end of each session. You agree to immediately notify Kouper of any unauthorized use of your password or account or any other breach of security. Kouper will not be liable for any loss or damage arising from your failure to comply with this Section.

Deleting Your Account: You may delete your account at any time by sending an email with the request in the subject line to info@kouperhealth.com. Note that doing so may delete all your data and information stored on the Service or shared via the Service, and we will bear no responsibility for such loss of data or information; provided that we may retain any information or data as permitted under these Terms of Service and subject to our rights under the Privacy Policy, or as may be necessary or advisable in order to comply with any applicable laws, rules, statues, orders or regulations (collectively, “Law”). All fees that may have been incurred prior to de-registration will be due and owing, until paid in full, such account deletion notwithstanding.

Modifications to Service: Kouper reserves the right to suspend, limit, condition modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Kouper will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

Other Users: You are solely responsible for your interactions with other users of the Service. We will have no liability for your interactions with other users of the Service, or for any user’s action or inaction. Kouper will have no obligation to you to enforce these Terms of Service or any other agreement against any other user of the Service. Kouper reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

Information of Other Users: You represent, warrant and promise that: (a) you will use the personal information of other users of the Service that you can view or access via the Service in accordance with applicable communication, privacy and data protection Laws; (b) you shall not further disclose any such personal information to a third party; (c) you will not use such personal information from to send unsolicited mail, e-mails, phone calls, SMS, or faxes regarding promotions and/or advertising of your or a third party’s products or services; and (d) you will respect the privacy choices of other users.

General Practices Regarding Use and Storage: You acknowledge that Kouper may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Kouper’s servers on your behalf. To the extent Kouper is storing or processing information or data that is defined under HIPAA as “Protected Health Information” (“PHI”), Kouper will comply with the applicable privacy and security requirements set forth under HIPAA, and as further discussed in the Privacy Policy. You acknowledge that Kouper reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Kouper reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice. You further acknowledge that in the event Kouper terminates an inactive account, Kouper may delete any data, including PHI, once the account is deemed to be inactive, and we will bear no responsibility for such loss of data or information; provided that we may retain any information or data as permitted under these Terms of Service and subject to our rights under the Privacy Policy, or as may be necessary or advisable in order to comply with any Law.

Conditions of Access and Use

User Conduct: You are solely responsible for all code, content, images, information, data, text, software, photographs, graphics, messages or other materials (“content”) that you upload, share, input, post, publish, email or display (hereinafter, “share”) via the Service (collectively, the “User Content”). The following are examples of the kind of content and/or use that is illegal or prohibited by Kouper. Kouper reserves the right to monitor all use of the Service, and to investigate and take appropriate legal action against anyone who, in Kouper’s sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:

share any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any Law or under contractual or fiduciary relationships; (iii) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) is illegal, offensive, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; (vi) is false, misleading, or otherwise deceptive; or (vii) in the sole judgment of Kouper, may expose Kouper or its users to any harm or liability of any type;
interfere with or disrupt the Service or servers or networks connected to the Service, or disobey or violate any requirements, procedures, policies or regulations of networks connected to the Service;
violate any applicable Law;
impersonate any person or entity, or falsely state or misrepresent your affiliation with a person or entity;
harvest or collect email addresses or other contact information or personally identifiable information of other users of the Service;
take any action that imposes, or may impose, as determined in our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
copy or store any significant portion of the Service Content;
monetize the Service Content through advertising, subscriptions or other means;
further or promote any criminal activity or enterprise;
circumvent, remove, alter, deactivate, degrade, or thwart any of the content protections in or geographic restrictions on any content (including Service Content) available on or through the Service, including through the use of virtual private networks, or by bypassing measures preventing or restricting access to the Service or Service Content; or
engage in or use any data mining, robots, scraping, or similar data gathering or extraction methods. If you are blocked by Kouper from accessing the Service (including by blocking your IP address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or virtual private network).

United States Use: The Service is based in the United States. We make no claims concerning whether the Service may be downloaded, viewed, or be appropriate for use outside of the United States. If you access the Service from outside of the United States, you do so at your own risk.

Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or share for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is solely for your personal, non-commercial use.

Mobile Services and Software

Mobile Services: The Service includes certain services that are available via a mobile device, including (a) the ability to share content to the Service via a mobile device, and (b) the ability to browse the Service and the Site from a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices.

Text Service: By using the Service, you consent to accept and receive communications from us to the contacts you provide to us in connection with the Text Service, even if you have opted in to the National Do Not Call List, any state Do Not Call List, or the internal Do Not Call List of any company. In the event you no longer want to participate in the Text Service, you agree to notify us directly. In the event you change or deactivate your mobile telephone number, you agree to promptly update your Kouper account information to ensure that your messages are not sent to the person that acquires your old number.

There is no additional charge for the Text Service, but your mobile carrier’s or other service provider’s standard message and data rates apply to any messages you send or receive through the Text Service, including confirmations and subsequent texts. Your carrier may prohibit or restrict certain mobile features and certain mobile features may be incompatible with your carrier or mobile device. We are not liable for any delays in the receipt of, or any failures to receive, any SMS or MMS messages, or other communications, as delivery is subject to effective transmission by your mobile carrier or other service provider and compatibility of your mobile device. Please contact your mobile carrier or other service provider if you have any questions regarding these issues or your mobile data and messaging plan or services.

As described in the Text Service enrollment and consent message link, you may text “STOP” to cancel such communications as you are not required to consent to the Text Service as a condition of using the Service. You can also text “HELP” for customer support information. If you choose to cancel your Text Service, you agree to receive a final text message from the Text Service confirming your cancellation.

You will also receive information, communications, updates and reminders about your account via the Text Service.

If you would like to opt out of all communications from us, including information, communications, updates and reminders about your account please contact our customer support team at info@kouperhealth.com, however, you acknowledge that this may affect your ability to effectively use the Service.

Software: The technology and software underlying the Service, including any proprietary technology or algorithms embodied in Kouper’s software or distributed in connection therewith (the “Software”) are the property of Kouper and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Kouper.

Open Source Software: The Software may contain or be provided together with open source software. Each item of open source software is subject to its own license terms, which can be made available by written request to info@kouperhealth.com. If required by any license for particular open source software, Kouper makes such open source software, and Kouper’s modifications to that open source software (if any), available by written request to info@kouperhealth.com. Copyrights to the open source software are held by the respective copyright holders indicated therein.

Intellectual Property Rights

Service Content, Software and Trademarks: You acknowledge and agree that the Service Content is protected by copyright, patent, trademark, trade secret or other proprietary rights and Laws. The Service Content is protected by United States and foreign intellectual property Laws. Unauthorized use of the Service Content may result in violation of copyright, trademark, and other Laws. You have no rights in or to the Service Content, and you will not use, copy or display the Service Content, including but not limited to use of framing or mirrors, except as permitted under these Terms of Service. No other use is permitted without our prior written consent, and any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. You may not sell, transfer, assign, license, sublicense, or modify the Service Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Service Content in any way for any public or commercial purpose (except that the foregoing does not apply to your own User Content that you legally share).

Kouper name and logos are trademarks and service marks of Kouper (collectively the “Kouper Trademarks”). Other Kouper, product, and service names and logos which may be used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Kouper. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Kouper Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from use of Kouper Trademarks will inure to our exclusive benefit.

User Content: You represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. You hereby grant Kouper a nonexclusive, worldwide, royalty-free, fully paid up, transferable, sublicensable (directly and indirectly through multiple tiers), perpetual, irrevocable license to copy, display, share, perform, distribute, store, modify and otherwise use your User Content, subject to the Privacy Policy for the operation and provision of the Service; for our other business purposes, including the improvement or enhancement of the Service, the development and provision or new products, services and offerings, and for other development or corrective purposes in connection with the Service and other Kouper offerings, products or services, in each case in any form, medium or technology now known or later developed; to create aggregated or other de-identified data, and the marketing or promotion of any of the foregoing; except to the extent that any use would be prohibited by HIPAA or other applicable Law. You represent and warrant that any authorized use of your User Content by Kouper does and will not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, and intellectual property rights.

You hereby authorize Kouper and its third-party service providers to derive statistical and usage data relating to your use of the Service (“Usage Data”). We may use Usage Data for any purpose at any time in accordance with applicable Law and our Privacy Policy.

Any questions, comments, suggestions, ideas, feedback or other information about the Service (“Submissions”), provided by you to Kouper are non-confidential and Kouper will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that Kouper may preserve content and may also disclose content if required to do so by Law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable Laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Kouper, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

Third-Party Services and Websites

The Service may provide links or other access to services, sites, technology, and resources that are, in whole or in part, provided or otherwise made available by third parties (the “Third-Party Services”). Your access and use of the Third-Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and you may be required to authenticate to or create separate accounts to use Third-Party Services on the websites or via the technology platforms of their respective providers. Some Third-Party Services will provide us with access to certain information that you have provided to third parties, including through such Third-Party Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating Third-Party Services and our use, storage and disclosure of information related to you and your use of such Third-Party Services within the Service, please see our Privacy Policy. Kouper has no control over and is not responsible for such Third-Party Services, including for the accuracy, legality, availability, reliability, or completeness of results of, or information shared by or available through Third-Party Services, and such information is subject to change without notice, or on the privacy practices of Third-Party Services. We encourage you to review the privacy policies of the third parties providing Third-Party Services prior to using such services. You, and not Kouper, will be responsible for any and all costs and charges associated with your use of any Third-Party Services. Kouper enables these Third-Party Services merely as a convenience and the integration or inclusion of such Third-Party Services does not imply an endorsement or recommendation. Any dealings you have with third parties while using the Service are between you and the third party. Kouper will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third-Party Services.

Indemnity and Release

You agree to release, indemnify and hold Kouper and their officers, employees, directors, service providers, licensors, and agents (collectively, “Indemnitees”) harmless from any from any and all losses, damages, expenses, including reasonable attorneys’ fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. Notwithstanding the foregoing, you will have no obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that, if known by him or her, would have materially affected his settlement with the debtor or releasing party.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, AND TO THE EXTENT PERMISSIBLE BY LAW, THE SERVICE, THE SERVICE CONTENT, AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. KOUPER EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT; PROVIDED, HOWEVER THAT SUCH DISCLAIMER SHALL NOT APPLY TO ANY HEALTHCARE SERVICES PROVIDED BY PROVIDERS. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS WHICH VARY BY JURISDICTION.

KOUPER MAKES NO WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) ANY CONTENT PROVIDED THROUGH THE SERVICE IS ACCURATE, LEGALLY COMPLIANT, UP-TO-DATE, RELIABLE OR CORRECT, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

KOUPER MAKES NO WARRANTY WITH RESPECT TO ANY HEALTHCARE SERVICE TO THE EXTENT KOUPER IS RELIANT UPON, USING OR INCORPORATING ANY THIRD PARTY SERVICES, INCLUDING INFORMATION PROVIDED BY NON-PROVIDERS OR OUTSIDE PROFESSIONALS OR ANY OTHER PRODUCT MADE AVAILABLE BY A THIRD PARTY.

TO THE EXTENT PERMITTED BY LAW, KOUPER EXPRESSLY DISCLAIMS, AND YOU HEREBY EXPRESSLY RELEASE KOUPER FROM ANY AND ALL LIABILITY WHATSOEVER FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES, LOSS, HARM, AND/OR DAMAGES ARISING FROM AND/OR IN ANY WAY RELATED TO YOUR INTERACTIONS OR COMMUNICATIONS OR DEALINGS WITH ANY OUTSIDE PROFESSIONALS, INCLUDING WITHOUT LIMITATION ANY CARE OR SERVICES PROVIDED BY ANY OUTSIDE PROFESSIONALS, ANY ACTS AND/OR OMISSIONS OF OUTSIDE PROFESSIONALS, OR PAYMENT DISPUTES.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT, EXCEPT AS MAY BE EXPRESSLY PROVIDED HEREIN, KOUPER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF KOUPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (A) THE USE OR THE INABILITY TO USE THE SERVICE; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (C) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (D) ANY SERVICES PROVIDED BY ANY OUTSIDE PROFESSIONALS; OR (E) ANY OTHER MATTER RELATING TO THE SERVICE (EXCLUDING ANY HEATH CARE SERVICES PROVIDED BY PROVIDERS). IN NO EVENT WILL KOUPER’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID KOUPER IN THE LAST SIX (6) MONTHS (IF AT ALL), OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.

IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

Dispute Resolution by Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.

a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Kouper, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Service, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. 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. You agree that, by entering into these Terms of Service, you and Kouper are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.

b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND KOUPER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND KOUPER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.

c. Pre-Arbitration Dispute Resolution
Kouper 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 Kouper’s customer support at info@kouperhealth.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Kouper should be sent to:

Kouper Inc.
817 Broadway 7th Floor New York, NY 10003
(“Notice Address”).

The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Kouper and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Kouper may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Kouper or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Kouper is entitled.

d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator administered by JAMS in accordance with JAMS’ Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this Section, and as of the date of this Agreement). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. For information on JAMS, please visit its website, https://www.jamsadr.com/. Information about the JAMS Rules and fees for disputes can be found at JAMS’ relevant page, https://www.jamsadr.com/rules-download/. If there is any inconsistency between any term of the JAMS Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable Law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.

Unless Kouper and you agree otherwise, the seat of arbitration shall be Philadelphia, Pennsylvania. If your claim is for $10,000 or less, Kouper agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the JAMS Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.

e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the JAMS Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Kouper will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Kouper will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Kouper will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the JAMS Rules.

f. Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.

g. Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of the Terms of Service will continue to apply.

h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Kouper agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Service, you may reject any such change by sending Kouper written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).

Termination

You agree that Kouper, in its sole discretion, may suspend, limit, condition or terminate your account, Subscription, or use of the Service, or any feature or function thereof and remove and discard any content within the Service, and may reject any order you place for the purchase of Products, for any reason, including, without limitation, for lack of use or if Kouper believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service or Subscription may be referred to appropriate law enforcement authorities. Kouper may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that, except as may be explicitly set forth herein, any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that Kouper may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Kouper will not be liable to you or any third party for any termination of your access to the Service or your Subscription (except as may be explicitly set forth herein).

General

These Terms of Service constitute the entire agreement between you and Kouper and govern your use of the Service, superseding any prior agreements between you and Kouper with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Kouper agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York, New York. The failure of Kouper to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any Law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign these Terms of Service without the prior written consent of Kouper, but Kouper may assign or transfer these Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

Questions? Concerns? Suggestions?

Please contact us to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service:

By mail: Kouper Inc.
ATTN: Legal
817 Broadway 7th Floor New York, NY 10003

By e-mail: info@kouperhealth.com with a subject line of “Terms of Service.”