TERMS AND CONDITIONS FOR SERVICE
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS CONTAIN A BINDING AND MANDATORY CUSTOMER ARBITRATION AND CLASS ACTION WAIVER PROVISION. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY ESTABLISHING AN ACCOUNT, USING THE PLATFORM AND/OR OUR SERVICES, AND/OR NAVIGATING OUR WEBSITE, YOU AGREE THAT (A) YOU HAVE READ AND UNDERSTOOD THE AGREEMENT; (B) REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD; (C) YOU CAN FORM A BINDING CONTRACT; AND (D) YOU ACCEPT THE AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
YOU UNDERSTAND AND AGREE THAT POPULAR PAYS IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN CUSTOMERS AND CREATORS. POPULAR PAYS HAS NO CONTROL OVER THE CONDUCT OF CUSTOMER AND CREATORS, AND OTHER USERS OF THE SERVICE, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, AND THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT HAVE AUTHORITY TO ACCEPT THE TERMS, OR IF YOU DO NOT AGREE
WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM AND/ OR THE SERVICES.
1. SERVICES AND ACCESS TO PLATFORM.
1.1 Services. Subject to these Terms and Conditions (the “Terms”), Provider will provide Customer and Customer’s Authorized Users access to Platform, access to Creators through the Platform, and/or media buys in accordance with these Terms and the web-based form used to collect your account and payment information, to outline any additional deal terms, and through which you can read and agree to these Terms (the “Platform Services Sign Up Form”; collectively, the “Services”). For the purposes of these Terms, “Creator” means an independent contractor who has created a profile on the Platform and who wishes to participate in a Campaign by providing Creator Content in accordance with the Campaign Brief; “Campaign” means the content creation and/or marketing campaign created by Customer for its benefit or on behalf of its Authorized User (defined below) in which Creators may offer to participate through the Platform; and “Campaign Brief” or “Brief” means a marketing campaign criteria or specifications provided by the Customer for a Campaign, made available on the Platform, and accepted by each Creator who wishes to participate in the Campaign.
1.3 Access to Services and Platform. In order to access our Services or the Platform you will have to establish an account (the “Account”). Your login credentials for your Account are confidential. Please do not share them with anyone, unless you have been authorized to do so by Provider or by your organization. If the Account is created on behalf of an entity, please do not share the login credentials with anyone who is not authorized to access the Account.
1.4 Authorization Limitations and Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, directly or indirectly, and will not permit or authorize third-parties or Authorized Users to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, mine data from Provider’s systems, ideas or algorithms of the Platform, documentation or data related to the Service; modify, translate, or create derivative works based on the Platform; (ii) rent, lease, or otherwise permit third-parties to use the Platform; (iii) use the Services to provide services to any unauthorized third-parties; (iv) circumvent or disable any security or other technological features or measures of the Service or Platform; or (v) remove any proprietary notices or labels.
2.1 Creator Content and Approved Creator Content. “Creator Content” is content created by Creator that includes and is not limited to creative materials, audio, written text in captions and blogs, photographs, video, or other deliverables provided by an Approved Creator to Customer pursuant to the Campaign Brief. Provider will enable eligible Creators to apply to participate in the Campaign Brief. From the eligible Creators, Customer will select Creators to participate in the Brief (hereinafter, “Approved Creators”). The Approved Creators will create Creator Content and Customer will approve Creator Content submitted by the Approved Creators to be used by the Customer and/or to be posted on one or multiple social media platform by the Approved Creator, if required by the Campaign Brief. Such selected Creator Content is hereinafter referred to as “Approved Creator Content.”
2.2 Creator Compensation. Provider shall pay all compensation owed to Approved Creators arising out of their completed performance of service, Approved Creator Content.
2.3 Creator Agreement. All Creators agree to and are bound by the Creators Terms of Service (the “Creator Terms”) when they establish an Account with Provider, start using Provider’s Platform, and/or apply for a Campaign.
2.4 Provider Responsibility. Provider, excluding its obligations under deal terms outlined in the Platform Services Sign Up Form, is not responsible or liable for any delay or failure of performance caused in whole or in part by an Approved Creator under the Brief. Notwithstanding the foregoing, upon Customer’s written notice of Approved Creators’ delay in performance or obligations under the Campaign Brief, Provider shall: (i) seek to have the Approved Creator correct the Creator Content; and/or (ii) replace the noncompliant Approved Creator with another Creator, subject to approval by Customer.
2.5 Relationship. Notwithstanding the above, Customer acknowledges and agrees that Creators and Approved Creators are providing services as an independent contractor and pursuant to the Customer’s specifications and approvals and that Provider is not responsible for any Approved Creator Content that is approved by Customer. Furthermore, Customers and Provider are independent contractors of each other.
3. RESTRICTIONS AND RESPONSIBILITIES.
3.1 Customer Campaign Obligations. Customer will: (i) submit the Campaign Brief to be posted on the Platform; (ii) ensure any requirements in the Campaign Brief comply, at all times, with applicable laws, rules, regulations, and industry guidelines relating to the advertising of its products and services, including the FTC Guides, and do not violate any third-party rights, including Intellectual Property Rights; (iii) select Approved Creators to participate in the Campaign; (iv) will be responsible for providing Creators with “In-Kind Rewards” (which means products, services or gift cards that are provided to Approved Creators by Creator to facilitate Approved Creator’s participation in the Campaign) (v) notify Provider via the Platform or email of any complaints, problems or performance issues with an Approved Creator; (vi) monitor its Campaign and notify the applicable Approved Creator and Provider in the event it discovers Creator Content in violation of any third-party rights; (vii) select Approved Creator Content for the Campaign; (viii) ensure that Approved Creator Content does not infringe intellectual property rights of any third-party; and (ix) ensure that Approved Creator does not infringe upon personality rights of a third-party.
3.2 Warranties and Representations. Customer represents, covenants, and warrants that Customer will not directly or indirectly: (i) use the Services other than in compliance with all applicable laws and regulations; (ii) use Platform and/or Services to communicate any message or material that is harassing, libelous, threatening, obscene or would violate the Intellectual Property Right or privacy right of any person or is otherwise unlawful or that would give rise to civil liability; (iii) use Platform and/or Services in a manner that constitutes or encourages conduct that could constitute a criminal offense or could result in a civil action under any applicable law or regulation; (iv) otherwise access or use Platform and/or Services beyond the scope of this Agreement; (v) access or use Platform and/or Services for purposes of competitive analysis of the Services or for the development, provision or use of a competing software service or product or any other purpose that is to Provider’s detriment or commercial disadvantage; (vi) disparage and/or inappropriately treat the Creators that are on the Platform; (vii) take any action that will disparage Provider or will harm Provider’s business and reputation; or (vii) access or use the Platform and/or Services to damage, upload, transmit or otherwise provide to or through Platform and/or Services any information or materials that Customer knows to be unlawful or injurious. Customer will defend, indemnify, and hold Provider harmless for any damages, costs, expenses, litigation, fines, fees or comparable assessments of any nature (collectively “Damages”) resulting from a breach of the above representations, covenants and warranties. Breach of these warranties and representations will be considered material breach of the Agreement.
3.3 Non-Solicitation. During the term outlined in these Terms or in the Platform Services Sign Up Form, and for 12 months thereafter, Customer shall not directly recruit or solicit (other than by general advertisement) any employees of the Provider, or any Creators or Approved Creators involved in any respect with Customer’s Campaign.
4. INTELLECTUAL PROPERTY RIGHTS.
4.1 Platform and Provider Materials. All right, title and interest in and to the Platform, any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications thereto including all Intellectual Property Rights therein are and will remain with the Provider and the respective rights holders in the Third-Party Materials. Furthermore, Provider will own all the rights in the Feedback. Customer has no right, license or authorization with respect to the Platform, and related materials, except as expressly set forth herein. All other rights in and to the Platform are expressly reserved by Provider and the respective third-party licensors. For the purpose of these Terms, particularly this Section 4, “Intellectual Property Rights” mean all rights granted, applied for or otherwise now or hereafter in existence under or related to any patents, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
4.2 Consent to Use Customer Data. Subject to the terms and conditions of this Agreement, the Customer hereby grants Provider a limited, non-transferable, non-exclusive, non-sub licensable, royalty-free license to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and make derivative works of the data, which is separate from Customer Materials (defined below), provided by the Customer (the “Customer Data”). Notwithstanding anything to the contrary, Provider has the right to collect and analyze
data and other information relating to the provision, use and performance of Platform and related systems and technologies, and Provider will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Platform and for other development, diagnostic and corrective purposes in connection with the Platform and other Provider’s offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.3 Customer Material. With respect to any Customer or its Authorized User’s trademarks or service marks (collectively, “Marks”), or other Intellectual Property Rights that is provided or specified in a Brief (“Customer Materials”), Customer hereby grants to Provider a non-exclusive, non-transferable, non-sublicensable, limited license to use such Customer Materials during the Term outlined in these Terms or in the Platform Services Sign Up Form, solely in connection with providing the Services.
4.4 New Customer Materials. Customer and its Authorized User, as applicable, also grants to Provider a non-exclusive, non-transferable, non-sublicensable, perpetual, limited license to use such Creator Content that Customer acquires rights to under this Agreement and the applicable Campaign Brief (“Customer New Materials”) for its internal use, and for marketing and advertisement.
4.5 Limited Trademark License; Marketing Materials. Customer and its Authorized User, as applicable, hereby grants Provider a royalty-free, non-exclusive, non-transferable, non-sublicensable, limited license to use Customer’s or its Authorized User’s Marks solely for the purpose of press releases, marketing, etc. in accordance with Customer’s or its Authorized User’s trademark usage policy.
4.6 Provider’s Intellectual Property Rights. Customer acknowledges that Provider owns all right, title and interest in and to its intellectual properties, including, without limitation, Provider’s Platform, all of Provider’s Marks, copyrights, trade secrets, patents, and/ or designs, if any, in each case, whether presently existing or later developed by Provider. Provider’s Intellectual Property Rights also include any derivative works created under this Agreement. Provider will own any and all derivative works created under this Agreement.
4.7 Notwithstanding anything to the contrary, Provider shall have the right, even after the expiration/termination of this Agreement, to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services, Platform and related systems and technologies, for internal business purposes and to disclose such data in aggregate or other de-identified form in connection with its business. Additionally, if through the Platform Customer chooses to connect their Facebook and/or Pinterest Ads Manager account(s) (the “Ads Manager Accounts”) to the Platform, Customer gives permission to Provider to use third-party’s API or SDK on Approved Creator Content that is exported via the Platform to Customer’s Ads Manager Account(s). This is so that Provider can access and display to Customer in the Platform performance data from ads using Approved Creator Content created and managed from Customer’s Ads Manager Account(s). Provider may also collect anonymized performance data related to Approved Creator Content used in this way. No rights or licenses are granted except as expressly set forth herein.
4.8 No Rights Transferred. The Parties agree that nothing herein shall give either Party any right, title or interest in any of the other Party’s intellectual property rights, or except as provided herein, any right to use any of the other Party’s intellectual property rights in any way.
5.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). A non-exhaustive list of Confidential Information of Provider includes non-public information regarding features, functionality, pricing, products plans, customer lists, Creator names, vendor lists, terms of contracts including this Agreement, and performance of the Services. Confidential Information of Customer includes non-public data provided by Customer to Provider to enable the provision of the Services, including marketing plans, product information, and campaign information (“Customer Data”). To be clear, however information for both Parties listed is only considered Confidential Information for so long as it has not been made known to the public by the Disclosing Party or through the rightful action of a third-party. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (v) is or becomes generally available to the public, or (w) was in its possession or known by it prior to receipt from the Disclosing Party, or (x) was rightfully disclosed to it without restriction by a third party, or (y) was independently developed without use of any Confidential Information of the Disclosing Party or (z) is required to be disclosed by law.
6. PAYMENT OF FEES.
6.1 Fees. You shall pay Provider the Platform Fees (the “Platform Fees”) in the amount set forth in the Platform Services Sign Up Form. Unless stated otherwise in the Platform Services Sign Up Form, Platform Fees will be charged in the same amount each month during the Term, starting on the first day on which you gain access to the Platform. In order to complete the Platform Services Sign Up Form and to gain access to the Platform, you will be required to enter a valid credit card into our third party payment processor. Any Fee or Fees incurred by you from selecting Approved Creators on the Platform will be charged to your credit card at the end of each calendar month and are owed immediately at that time. You shall make all payments in US dollars. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Provider’s net income.
7. TERM; TERMINATION.
7.1 Initial Term and Additional Term. The initial term of this Agreement will begin on the day the Platform Services Sign Up Form is completed and Platform Fees are paid, and remain in full force and effect for the amount of time outlined in the Term section of the Platform Services Sign Up Form (the “Initial Term”) without any additional action by either of the Parties. Unless stated otherwise in the Platform Services Sign Up Form, the Agreement will automatically
extend unless the Agreement is terminated under the terms of this Section 8 (“Additional Terms” and, with the Initial Term and the Renewal Term, collectively the “Term”).
7.2 Termination. This Agreement and its associated Platform Services Sign Up Form may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows: (a) if the other Party fails to perform or observe any material term or condition in this Agreement or the Order Form and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party; (b) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding will not have been dismissed or stayed within 60 days after such filing, or (c) Customer uses the Services or our Platform in a manner that would cause a risk of harm or loss to us or other users, including Creators; or (d) If you have not paid fees for usage of Services and Platform for more than two (2) months. (e) as additionally outlined in the Platform Services Sign Up Form. We reserve the right to suspend or terminate your access to the Services and our Platform with notice to you if any of the above events happen. We will provide you with reasonable advance notice via the email address associated with your Account to remedy the activity that prompted us to contact you and give you the opportunity to export Customer Data from our Services or Platform, if applicable. If after such notice you fail to take the steps we ask of you, we’ll terminate or suspend your access to the Services. Upon termination of this Agreement, each Party will promptly return, or at the other Party’s request, destroy (and provide confirmation of such destruction signed by a legal officer), all Confidential Information of the other Party. Sections 5-7,8.2, 9-15 will survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement will expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration will survive such termination.
7.3 Effect of Termination. Upon termination of this Agreement, each Party will promptly return, or at the other Party’s request, destroy (and provide confirmation of such destruction signed by a legal officer), all Confidential Information of the other Party. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, non-solicitation and limitations of liability. All undisputed payment to Provider for Services fully rendered or substantially rendered (which will include payment for Approved Creators, if Approved Creators have been selected irrespective of whether Creator Content has been created or not) will become due immediately.
8. WARRANTY AND DISCLAIMER. Provider shall maintain the Services and Platform in a manner which minimizes errors and interruptions. The Services that will be provided in a professional and workmanlike manner. Services or Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or because of other causes beyond Provider’s reasonable control, but Provider shall use reasonable efforts to provide notice in writing or by e-mail of any scheduled service disruption. HOWEVER, PROVIDER DOES NOT WARRANT THAT THE SERVICES OR
PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES, THE PLATFORM, AND IMPLEMENTATION SERVICES AND PLATFORM ARE PROVIDED “AS IS” AND PROVIDER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PURPOSE AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON OR GROSS NEGLIGENCE, WILFUL MISCONDUCT, OR VIOLATIONS OF SECTION 4 (INTELLECTUAL PROPERTY RIGHTS), AND SECTION 5 (CONFIDENTIALITY), A PARTY AND ITS SUPPLIERS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR (A) ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; OR (C) ANY MATTER BEYOND PROVIDER’S REASONABLE CONTROL FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAYABLE BY CUSTOMER TO PROVIDER FOR THE SERVICES UNDER THE APPLICABLE IO THAT GAVE RISE TO THE LIABILITY, WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 Dispute Resolution. The Parties will endeavor to resolve any dispute with respect to the Agreement, terms included in the Platform Services Sign Up Form, or the Terms in good faith within thirty (30) days of a dispute being raised by one Party with the other Party. The Parties agree that any unresolved controversy or claim arising out of or relating to this Agreement (excluding claims for injunctive or other equitable relief) will be submitted to mandatory and binding arbitration under the auspices of JAMS in Chicago, Illinois in accordance with its rules then in effect. In any such action or proceeding, the prevailing party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator will be final, binding, and conclusive upon the Parties. Each Party irrevocably waives any right to a trial by jury that it might have
under any applicable law, rule of regulation. This dispute resolution provision shall be governed by the Federal Arbitration Act.
11.2 Modifications. Popular Pays reserves the right, at its sole discretion to modify or discontinue, temporarily or permanently, the Site, Services or to modify these Terms at any time and without prior notice. If we modify these Terms, we will post the modification on the Site. We will also update the Last Updated Date at the top of these Terms. Modifications to these Terms will automatically take effect upon posting; provided, however, that material changes to the Terms will be effective as to an existing Customer thirty (30) days after posting. By continuing to access or use our Platform or Services after we have posted a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease accessing or using the Platform and Services.
11.3 If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by either Party except with the party’s prior written consent, except in connection with an assignment to a party’s parent, wholly owned subsidiary, or a successor to all or substantially all of its assets (whether by merger, transfer of assets or equity interests, or otherwise). This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created because of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Illinois without regard to its conflict of laws provisions.