These terms of service (“Agreement” or “Terms”) are legally binding between you (“Creator,” “you”), and Popular Pays, Inc. (“Popular Pays,” “we,” “us,” or “our”).
IF YOU ARE UNSURE AS TO THE TERMS SET HEREIN, PLEASE DO NOT PROCEED FURTHER AND CONTACT US AT [email protected].
Popular Pays is the owner and operator of a unique technology platform and provides products and services (collectively “Services”) that enables companies, who wish to create content and/or advertise their products and services (“Brands”), and persons (“Creators”) to collaborate on the Brand’s advertising campaign (“Campaign Brief”). You may produce copy, text, video, images, photographs, graphics, messages or other materials (“Content”) pursuant to your participation in the Campaign Brief (a “Gig”) and to post, promote, and advertise the Content through your network (including your website or your posts on any website or social media provider account) using the Services.
PLEASE READ THESE TERMS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A BINDING AND MANDATORY CUSTOMER ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY DOWNLOADING OUR MOBILE APPLICATION, 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 OR THAT YOU HAVE PERMISSION FROM YOUR PARENT OR LEGAL GUARDIAN TO CREATE AN ACCOUNT AND TO AGREE TO THESE TERMS, AND UPON REQUEST YOU ARE ABLE TO PROVIDE PROOF OF SUCH PERMISSION; (C) YOU CAN FORM A BINDING CONTRACT; AND (D) YOU ACCEPT THE AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS AS WELL AS THE TERMS OF AN UNDERLYING CAMPAIGN BRIEF WHICH IS EXPRESSLY INCORPORATED AND REFERENCED HEREIN. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM AND/ OR THE SERVICES.
TO THE EXTENT THE SERVICES MAY BE USED TO REPRODUCE COPYRIGHTED MATERIALS FROM BRANDS, IT IS LICENSED TO YOU ONLY FOR THE REPRODUCTION OF NON-COPYRIGHTED MATERIALS, MATERIALS IN WHICH YOU OWN THE COPYRIGHT, OR MATERIALS YOU ARE AUTHORIZED AND LEGALLY PERMITTED TO REPRODUCE. IF YOU ARE UNCERTAIN ABOUT YOUR RIGHT TO COPY OR PERMIT ACCESS TO ANY MATERIAL, YOU SHOULD CONTACT YOUR LEGAL ADVISOR.
1. SERVICES AND LICENSE.
Subject to your compliance with the terms of this Agreement, we grant you access to the Popular Pays technology (the “Platform”) through our mobile application(s) (the “App”) and/or our website for Creators that is available at creators. popularpays.com (the “Website”) to use our Services.
If you access the Services via our App, we grant you a limited, non-exclusive and nontransferable license to: (a) download, install, and use the App for your or your Company’s use in accordance with these Terms on a single mobile device owned or otherwise controlled by you (“Mobile Device”) strictly in accordance with this Agreement, and (b) to access, stream, download and use on such Mobile Device content and Services made available in or otherwise accessible through the App, strictly in accordance with this Agreement.
If you access the Services through a Mobile Device, your wireless service carrier’s standard charges, data rates, and other fees may apply. Some or all of the Services’ functionality may not work with all carriers or mobile devices. By accessing the Services on a mobile device, you agree that we may communicate with you by push notifications, text message, or other electronic means to your Mobile Device and that certain information about your usage of the Services through the mobile device may be communicated to us.
This paragraph applies to any version of our App that you acquire from the Apple App Store. This Agreement is entered into between you and Popular Pays. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to our App. Popular Pays, not Apple, is solely responsible for our App and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
If you access our Platform and/or our Services through our Website, you need to make sure that your Internet connection is adequate for accessing our Website for Creators, our Platform, and our Services. You are solely responsible for your Internet connection including and not limited to the applicable charges, rates, tariffs and other fees that might apply. We grant you a limited, revocable, non-exclusive, non-transferable accessto our Website and our Platform and use the Services or the information solely for their intended purpose strictly in accordance with this Agreement and not to modify all or any portion of the Website, Platform, and/or Services.
YOU AGREE THAT POPULAR PAYS IS NOT LIABLE FOR ANY DAMAGES OR INJURY RESULTING FROM YOUR USE OF OUR WEBSITE, THE PLATFORM, THE SERVICE, OR PARTICIPATION IN A GIG. POPULAR PAYS PROVIDES NO WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY. THERE IS NO WARRANTY WHICH WILL EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. ANY DAMAGE ALLEGED FOR A LOSS OR INJURY IS LIMITED TO THE FEE, IF ANY, PAID TO POPULAR PAYS FOR THE ABILITY TO ACCESS THIS WEBSITE AND/OR THE PLATFORM.
2. SERVICE RESTRICTIONS.
You agree that the Services, including but not limited to the Platform, Website, App, graphics, trademarks, and editorial content, contain proprietary content, information and material, are owned by Popular Pays and/or its licensors, including our customers, brands and agencies, and is protected by applicable intellectual property and other laws, including but not limited to copyright. You agree that you will not use such proprietary content, information or materials other than for your permitted use of the Services or in any manner that is inconsistent with the terms of this Agreement.
You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, using the Services to transmit any computer viruses, worms, trojan horses or other malware, or by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Popular Pays is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using the Services.
3. RESERVATION OF RIGHTS.
You acknowledge and agree that the App, the Website, the Platform and the Services are provided under license, and not sold, to you. Except to the extent necessary to access and use the Platform and the Services, nothing in this Agreement grants any title or ownership interest in or to any copyrights, patents, trademarks, trade secrets or other proprietary rights in or relating to the Platform and the Services whether expressly, by implication, estoppel or otherwise. Popular Pays and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Platform and the Services, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
4. COMPLIANCE WITH LAWS AND POLICIES.
You agree that you and all Content will fully comply with applicable laws, rules, regulations, and industry guidelines, including but not limited to the Federal Trade Commission Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 CFR Part 255 (collectively, “Applicable Laws”), and that you will disclose in every post that mentions or features a Brand that you have received benefits from the Brand as described in this Agreement and the Campaign Brief. You will cooperate with us in removing or modifying any inappropriate Content relating to the Brand, its products, or the Campaign Brief from your blog, website, or your accounts on social networking websites, such as Instagram, Facebook, Pinterest, or Snapchat (“Social Media Provider”) or any other media over which you have control. To the extent you are not in compliance with the terms required under this Agreement (without limiting any remedies that may be available to us and a Brand in law or equity), you will promptly remove and take down any non-compliant Content.
5. REPRESENTATIONS AND WARRANTIES.
You represent and warrant that: (a) you have the full power and authority to enter into this Agreement and any Gig, and neither this Agreement nor your activity hereunder conflicts with any obligation on your part; (b) all information submitted by you and all statements made by you will comply with all Applicable Laws and is accurate, and (c) to the extent that you upload any Content through the use of the Platform and Services, you represent that you own all rights in, or have authorization or are otherwise legally permitted to upload, such Content and that such Content does not violate any terms of service applicable to any Social Media Provider, or this Agreement; (d) you are legally permissible to work on any Campaign that you apply to participate in, including compliance with any Fair Labor Standards Act (FLSA) or other youth or child labor laws for Creators who are under 18 years of age and that you are not under 13 years of age.
6. CONTENT LICENSE.
You grant to Popular Pays a non-exclusive license to copy, display, modify, distribute, store and otherwise use the Content you submit to the Services for the purposes of: (a) conducting our marketing activities in the promotion of the Services including but not limited to email marketing, case studies, cover photos, and use on our social networking websites, websites, and mobile applications and (b) performing our obligations under this Agreement, including provisioning your participation using the Services under a Campaign Brief. Subject to the terms of the applicable Campaign Brief, you agree that you shall grant to Brand or its agency an exclusive (except to the rights granted herein), worldwide, royalty-free, fully paid up, transferable, sub-licensable, perpetual, irrevocable license to copy, display, upload, distribute, store, modify and otherwise use any Content that you upload, transfer or post using the Services.
7. ACCOUNTS AND SOCIAL MEDIA PROVIDERS.
If you are under 13 years of age, do not create an account, download our App, or access our Website or Services in any manner. Popular Pays’ App, Services, and/or Website are not intended for anyone under 13 years of age. If you believe someone under 13 years of age may have created an Account on our Platform, please let us know by contacting us at [email protected].
If you are between 13 years of age and 18 years of age, then you may create an Account only if (a) you have permission from your parent or legal guardian to create an Account and to agree to these Terms, and upon request you are able to provide proof of such permission, and (b) you are legally permissible to apply for and complete Campaigns under the applicable federal and state laws and regulations, including compliance with Fair Labor Standards Act (FLSA) or other youth or child labor laws, if applicable.
If you are found to be in breach of this Section, Popular Pays’ reserves the right of terminating your Account immediately and barring you from establishing any other Account, without giving any notice to you.
DO NOT SIGN UP FOR AN ACCOUNT IF YOU DO NOT AGREE TO BE BOUND BY AND COMPLY WITH THESE TERMS. BY OPENING UP AN ACCOUNT YOU AGREE TO BOUND BY AND COMPLY FULLY WITH THESE TERMS.
8. POPULAR PAYS COMMUNICATION.
By establishing an Account with Popular Pays, you agree to receive communications from us, including via e-mail, text messages, and push notifications.
8.1 By Email. If you wish to not receive any promotional emails from Popular Pays please email [email protected] or follow the unsubscribe options in the promotional emails.
You may not be able to unsubscribe from receiving essential Service-related and Account-related informational (transactional) emails from Popular Pays. If you do wish to unsubscribe from such emails, please send your request to [email protected] with subject line: “Unsubscribe from Popular Pays Transactional Emails.” Please note that unsubscribing from such emails will impact your use and enjoyment of Popular Pays Platform, Services, Website and App and will impact your communication with us and/or Brands.
8.2 Push Notifications. You can opt out of receiving push notifications through your device settings. Please note that opting out of receiving push notifications may impact your use of our Services.
9. ACCEPTABLE USE POLICY AND CORRECTIVE ACTION.
You are responsible for your conduct and any Content that you upload, share, post, submit, publish, send, display or transmit (collectively, “Transmit”) via the Services. You agree that you will at all times not use the Services to:
- Transmit Content in any manner that infringes any intellectual property or other proprietary rights of any party;
- Transmit Content that is unlawful or promotes unlawful activity or provides instructional information about unlawful activities, or that is harmful, threatening, abusive, harassing, inflammatory, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, sexually suggestive, libelous, invasive of another’s privacy (or creates a privacy or security risk to any person), or hateful racially or ethnically;
- Transmit Content that constitutes unsolicited or unauthorized advertising or promotional materials or commercial activities;
- Impersonate any person or entity, or falsely state or otherwise misrepresent or fail to represent your affiliation with a person or entity; or
- Transmit any software viruses, spyware, worms, malware or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or other equipment.
10. APPLYING TO PARTICIPATE IN A CAMPAIGN.
If you wish to participate in a Campaign Brief, you authorize us to provide the Brand or its agency with some or all of the following information concerning you:
- your name and Social Media Provider identification and handle;
- your contact information and email address;
- rates and pricing to which you have agreed;
- sizing, product preferences, and biographical information;
- information from your Creator Profile; and
- any ideas, content or answers you provide to questions listed as part of the application process for each campaign.
Please note, your participation in a Brand’s Campaign Brief is referred to as a Gig, as defined above. You may choose to work on multiple Gigs at the same time.
A Campaign Brief includes the parameters, specifications, and terms and conditions of a Brand’s campaign. You agree to treat the contents of the Campaign Brief and any information related to the Brand and its agency as confidential and not to disclose such information to any third party. Your access to and use of the materials in the Campaign Brief requires you to review, acknowledge and accept the terms of the Campaign Brief, and once executed by you, will constitute a valid and binding agreement, and such terms and conditions will be incorporated into this Agreement for all purposes. Your failure to agree to the Campaign Brief will restrict you from participating in the Gig. Any non-compliance by you with the terms of such Campaign Brief will be deemed a violation of this Agreement.
In order to assign you a Gig or approve your participation in a Gig, Brands may be able to view your avatar, ratings, and content posted on your Social Media Provider. They will also be able to look at your stats related to completion of your Gigs, etc. If necessary, Brands will contact you through the Service.
If your Gig is approved and accepted, you agree to Transmit the Content to your Social Media Provider as directed in the Campaign Brief.
11. BRAND FEEDBACK.
After your Content is approved by the Brand, Brand may be able to give you a review based on the criterion that is listed on the Campaign Brief.
12. YOUR CODE OF CONDUCT AND OBLIGATIONS UNDER A CAMPAIGN BRIEF.
In connection with your participation in a Gig, you agree at all times that you will comply with the following code of conduct:
- You will abide by all terms and conditions outlined in the applicable Campaign Brief including but not limited to required social media tags and disclosures (“Required Tags”).
- You agree that you shall disclose your connection to the Brand in each post of Content as specified by the Campaign Brief by including, for instance, a hashtag such as #ad or #sponsored or a phrase similar to, “I’m working with [Brand Name]”.
- You agree to follow all required photo review and approval processes required by the Brand. You agree that you will not transmit any Content to your website or
Social Media Provider account without obtaining the prior approval of the Brand or its agency. You further agree that the Brand or its agency has the sole discretion to accept or reject your submitted Content.
- You agree to comply with all the applicable laws, rules, regulations, and guidelines.
- You will clearly and conspicuously identify your connection with the Brand (i.e. that you received benefits) at any time you make a public statement or post about Brand or its products or services.
- You will state your honest views regarding the products which must reflect your true and actual experiences, opinions and belief based upon your use of the Brand’s products or services. You agree not to make claims about the Brand or its products or services that are not within the reasonable written guidelines provided to you by the Brand or its agency.
- You will limit your posting of Content to those websites, and Social Media Provider accounts specified in the Campaign Brief.
- You will represent the Brand and its products and services in a positive light.
- You will not make any statements regarding the products or services of Brand’s competitors.
- You will not impersonate any other person or entity, actual or fictitious, including by impersonating an employee or consultant of Brand.
- You will respect the intellectual property and proprietary rights of others and you will not post any Content unless you have the necessary permissions including any identifiable third party brand logos or markers, and that you will not post the confidential or proprietary information of any party.
- You agree that if any Content contains an image of another identifiable person that you have obtained from them all necessary authorizations and will obtain a written release in a form acceptable to us as requested.
- You will ensure that the Content will not include Content that is profane, pornographic, sexually explicit, violent or derogatory of any ethnicity, race, gender, religion or faith, profession or age group; promotes excessive alcohol consumption, or in any way illegal drugs, tobacco, firearms/weapons or a particular political agenda; is obscene or offensive; or promotes or depicts unsafe activities or inhumane behavior or activities.
- You further ensure that the Content will not be placed adjacent to content that promotes pornography, violence, or the use of firearms, contains obscene language, or falls within another category stated in the Campaign Brief.
- You will comply with all industry-specific rules and regulations as instructed in the Campaign Brief relating to the advertising of Client’s products or services.
- You agree not to edit Content after Transmit, unless otherwise noted in the Campaign Brief or notified in writing by the Brand or Popular Pays.
- We reserve the right, for any reason or no reason, to remove from the Services any Content posted by you. To the extent you are not in compliance with the terms of the Campaign Brief (without limiting any remedies that may be available to us) you will promptly remove and takedown any non-compliant Content that you have posted to your Social Media Provider account(s), or any website to which you have posted Content.
Subject to your compliance with this Agreement and the Campaign Brief you shall be compensated in United States dollars (“Payment”) for the Content that is accepted by the Brand and posted to your Social Media Provider accounts or webpages in accordance with the terms of the Campaign Brief. To the extent that you are entitled to Payment, we will determine the method and you will provide reasonable cooperation in facilitating the Payment. For example, if we pay you through PayPal, you will be required to establish a PayPal account and to provide us with sufficient information to allow us to transfer funds to you. If we pay you via ACH through Dwolla, another third-party payment provider, you will provide Dwolla with accurate payment information through our Platform, and you expressly authorize Popular Pays’ service provider, Dwolla, Inc. to originate credit transfers to your financial institution.
You agree to provide accurate information for facilitating Payment. You may be required to enter the information for our above mentioned third-party payment providers over our Platform. Please note that Popular Pays does not store or display the information, except displaying the last four (4) digits of your bank account when you enter the information. If we are unable to facilitate the Payment because of inaccurate information provided by you, we will inform you through reasonable means and you will have 15 days to furnish accurate information to us for facilitating Payment.
You further agree and acknowledge that Popular Pays is not responsible for any Payment made to an incorrect back account or PayPal account based on incorrect information provided by you.
You agree to promptly return the monies to us, if the amount remitted to you is more than Payment due. You also agree to contact us immediately at [email protected] to inform us about the same.
You agree that you, the Creator, is responsible for all fees, such as equipment rentals, photographer fees, model fees, location fees, government fees etc., that may be incurred in connection with a Gig.
You further agree that you will report to all applicable government agencies as income all payments received by you pursuant to these Terms. This means you will be solely responsible for payment of all withholding taxes, social security, workers’ compensation, unemployment and disability insurance or similar items required by any government agency for any payments received by you. You are not entitled to any benefits paid or made available by Popular Pays to its employees, including, without limitation, any vacation or illness payments, or to participate in any plans, arrangements or distributions made by Popular Pays pertaining to any bonus, stock option, profit sharing, insurance or similar benefits. You agree to defend, indemnify and hold harmless Popular Pays and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney’s fees) arising from your breach of the foregoing obligations.
14. NON-SOLICITATION AND PROHIBITION ON RAIDING.
You agree that you shall not contact any Brand or its agency, or any of its personnel, agents or representatives outside of the Services and that you shall communicate exclusively through the Services. You agree, during the term of this Agreement and for a period of one (1) year thereafter, to only use the Services for any communication with a Brand or its agencies and that you will not directly or indirectly solicit or contact (including but not limited to e-mail, regular mail, express mail, telephone, fax, and instant message), attempt to contact or meet with any Popular Pays’ customers, including but not limited to any Brand or its agency with whom you have applied to or provided service for purposes of any offering or accepting goods or services similar to those provided by you under a Campaign Brief or competitive with those offered by other creators using the Services.
You acknowledge that a breach or threatened breach of this term would give rise to irreparable harm to Popular Pays for which monetary damages would not be an adequate remedy, and you hereby agree that in the event of a breach or a threatened breach by you of any such obligations, Popular Pays shall, in addition to any and all other rights and remedies that may be available to us in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
In the event that any information is disclosed to you through your access to the Services related in any way to Popular Pays and our business and the business of our customers which we deem to be confidential and proprietary, including but not limited to any Campaign Brief, you agree to hold such information in the strictest of confidence. You acknowledge that we or a Brand or its agency may provide confidential and proprietary information to you in connection with your use of the Services or participation in a Gig including, but not limited to Popular Pays’ Platform, App, identity of our customers, including any Brand or its agency contacts, names, phone numbers, addresses, e-mail addresses, campaign, Campaign Brief, campaign history, campaign preferences, pricing information and other information regarding a Brand’s products, services, or initiatives, or other topics of the Campaign Brief and all other information which Popular Pays considers to be confidential and proprietary or any special treatment that you may receive (which Popular Pays reserves the right to provide in its sole discretion to any creator). Except as needed to perform your obligations here under, during the Term, you shall keep confidential and not disclose any information contained in a Campaign Brief or prepared for while participating in a Gig, including, but not limited to, topics, story projects or source information, prior to such information becoming available to the public. During the Term of this Agreement, you will also keep confidential and not disclose the terms of this Agreement or to use any such information for your own purposes.
You shall indemnify, defend and hold Popular Pays and our officers, employees, managers, directors, customers and agents (the “Popular Pays Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Popular Pays Indemnified Parties arising from any of the following: (i) a breach of this Agreement or underlying Campaign Brief; (ii) the negligence, gross negligence or willful misconduct of you or your employees, agents or contractors; (iii) incorrect information provided by you in your Account or elsewhere ; or (iv) a failure by you or your employees, agents, contractors or invitees to comply with Applicable Laws and regulations.
17. DISCLAIMER OF WARRANTIES.
YOUR USE OF THE Platform and/OR the SERVICES IS AT YOUR SOLE RISK. THE Platform and/OR the SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, 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. WE MAKE NO WARRANTY THAT (I) Platform and/oR THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) ACCESS TO Platform and/OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE Platform and/OR the SERVICES WILL MEET YOUR EXPECTATIONS.
18. LIMITATION OF LIABILITY AND ASSUMPTION OF RISK.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, POPULAR PAYS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, INCLUDING FEES NOT RECEIVED AS A RESULT OF MALFUNCTION OF THE PLATFORM, WHETHER DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL POPULAR PAYS’ TOTAL LIABILITY FOR ALL CLAIMS RELATED THE SERVICES OR THIS AGREEMENT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100.00) OR ANY AMOUNTS PAID BY POPULAR PAYS TO YOU IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
YOU AND (IF APPLICABLE) YOUR PERSONAL REPRESENTATIVE, KNOWINGLY AND FREELY ASSUME ALL RISK WHEN ACCESSING THE PLATFORM, OR USING THE SERVICES. YOU, ON BEHALF OF YOURSELF, AND (IF APPLICABLE) YOUR PERSONAL REPRESENTATIVES AND YOUR HEIRS, HEREBY VOLUNTARILY AGREE TO RELEASE, WAIVE, DISCHARGE, HOLD HARMLESS, DEFEND AND INDEMNIFY POPULAR PAYS AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY CLAIMS, DISPUTES, DEMANDS, LIABILITIES, DAMAGES, LOSSES, AND COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) YOUR ACCESS TO OR USE OF THE PLATFORM, OR THE SERVICES (II) YOUR USE OF THE PRODUCTS OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM THE USE OF THE PLATFORM OR SERVICES, (III) VIOLATION OF THESE TERMS, INCLUDING, WITHOUT LIMITATION, YOUR BREACH OF ANY OF THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND FOR BODILY INJURY, WRONGFUL DEATH, EMOTIONAL DISTRESS, LOSS OF SERVICES OR OTHER DAMAGES OR HARM, WHETHER TO YOU OR TO THIRD PARTIES, WHICH MAY RESULT FROM YOUR USE OF THE SERVICES, (IV) CLAIMS, OR ANY DECISION BY A COURT, ARBITRATOR, OR GOVERNMENT AGENCY, THAT POPULAR PAYS IS OBLIGATED TO PAY ANY WITHHOLDING TAXES, SOCIAL SECURITY, UNEMPLOYMENT OR DISABILITY INSURANCE OR SIMILAR ITEMS IN CONNECTION WITH ANY PAYMENT RECEIVED BY YOU UNDER THE TERMS, (V) YOUR VIOLATION OF ANY THIRD-PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY RIGHT OF PRIVACY OR INTELLECTUAL PROPERTY RIGHTS, (VII) YOUR VIOLATION OF ANY APPLICABLE LAW, RULE OR REGULATION, (VIII) YOUR WILLFUL MISCONDUCT, OR (IX) ANY OTHER PARTY’S ACCESS AND USE OF THE SERVICE WITH YOUR UNIQUE USERNAME, PASSWORD OR OTHER APPROPRIATE SECURITY CODE.
19. TERM AND TERMINATION.
This Agreement is effective upon your creation of an Account. This Agreement may be terminated: (a) by Creator, without cause, upon seven (7) days’ prior written notice to Popular Pays; or (b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 13 of this Agreement. In addition, Popular Pays may terminate this Agreement, deactivate your Account, or your Gig (as applicable) in the event: (1) you no longer qualify to participate in a Gig; (2) you fall below Popular Pays or a Brand’s rating; (3) Popular Pays has the good faith belief that such action is necessary to protect the Brand, other Creators, or Popular Pay’s Platform and/or Services; or (4) at the request of the Brand.
In the event of a deactivation pursuant to (1)-(4) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Popular Pays’ or Brand’s (as applicable) reasonable satisfaction prior to Popular Pays’ permanently terminating the Agreement.
For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Popular Pays’ satisfaction, this Agreement will not be permanently terminated.
Sections 2, 3, 4, 6, 7, 11, 15 to 20 to 25, and 27 to 31 shall survive any termination or expiration of this Agreement.
20. RELATIONSHIP OF THE PARTIES.
The parties hereto are independent contractors and nothing contained herein shall be interpreted as creating any relationship other than that of independent contracting parties. The parties shall not be construed as being partners, joint venturers, shareholders, employer/employee, agent/servant. The Creator has no power or authority to bind Popular Pays to any obligation, agreement, debt or liability. The Creator shall not hold itself out as an agent or representative of Popular Pays.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
22. COPYRIGHT INFRINGEMENT/DMCA NOTICE
If you believe that any Campaign or Campaign Content violate your copyright, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c) must be provided to our designated Copyright Agent. It is our policy to terminate the accounts of repeat infringers.
- Your physical or electronic signature;
- Identification of the copyrighted work(s) that you claim to have been infringed;
- Identification of the material on our services that you claim is infringing and that you request us to remove;<
- Sufficient information to permit us to locate such material;
- Your address, telephone number, and e-mail address;
- A statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Popular Pays Copyright Agent to receive DMCA takedown notices is Aana Wherry Popular Pays, Attn: DMCA Notice, 130 S Jefferson St 4th floor, Chicago, IL 60661. You acknowledge that for us to be authorized to take down any content, your DMCA takedown notice must comply with all the requirements of this Section. Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
This Agreement is only for the benefit of you, the Creator. You shall have no right to assign this Agreement or any benefits or obligation hereunder to any other party or legal entity. Any attempted assignment shall be void. Provided however, if you are a Company or a legal entity using our Platform and Services, then upon our prior written approval, your employees or consultants may participate in the Gigs.
24. ANTI-BRIBERY AND EXPORT COMPLIANCE.
You agree not to promote, approach or use, distribute, transfer, provide, sub-license, share with, or otherwise offer the Services in violation of any Laws or this Agreement, including, without limitation, the United States Foreign Corrupt Practices Act, the UK Bribery Act and similar anti-corruption statutes in all jurisdictions. Without limiting the foregoing, you will not knowingly directly or indirectly export, re-export, transfer, make available or release (collectively, “Export”) the Services to any destination, person, entity or end use prohibited or restricted under US law without prior US government authorization to the extent required by regulation, including without limitation, any parties listed on any of the denied parties lists or specially designated nationals lists maintained under the EAR or the Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.) administered by the US Department of Treasury, Office of Foreign Assets Control without appropriate US government authorization to the extent required by regulation.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Services (“Submissions”), provided by you to us are non-confidential and we will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
During the Term and for five (5) years after that, you agree that you will not disparage Popular Pays or any of Popular Pay’s officers, directors or employees or otherwise take any action that reasonably be expected to adversely affect Popular Pay’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Popular Pays or any of its officers, directors or employees. You agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in Popular Pays refusing to enter into this Agreement.
27. FORCE MAJEURE.
Neither you or us shall be obliged to perform any of its obligations herein if either you or us is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of either you or us including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Popular Pays’ suppliers and customers, including Clients, Agencies or technology suppliers, including defects in objects, materials or software of third parties.
28. GOVERNING LAW.
This Agreement shall be governed by the law of the State of Illinois, without respect to its conflicts of laws principles. We each agree to submit to the personal jurisdiction of a state or federal court located in Chicago, Illinois, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 29 below.
29. DISPUTE RESOLUTION AND ARBITRATION.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH Popular pays AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
29.1 Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Popular Pays agree (a) to waive your and Popular Pays’ respective rights to have any and all Disputes arising from or related to this Agreement, use of our Services and Platform, resolved in a court, and (b) to waive your and Popular Pays’ respective rights to a jury trial. Instead, you and Popular Pays agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
29.2 No Class Arbitrations, Class Actions or Representative Actions. You and Popular Pays agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Popular Pays and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Popular Pays agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Popular Pays agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
Federal Arbitration Act. You and Popular Pays agree that these Terms affect interstate commerce and that the enforceability of this Section 29 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
29.3 Notice; Informal Dispute Resolution. You and Popular Pays agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Popular Pays shall be sent by certified mail or courier to Popular Pays, Inc., Attn: Legal, 130 S Jefferson St 4th floor, Chicago, IL 60661. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Popular Pays account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with this Agreement and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Popular Pays cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Popular Pays may, as appropriate and in accordance with this Section 29, commence an arbitration proceeding.
29.4 Process. EXCEPT FOR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND POPULAR PAYS AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR POPULAR PAYS WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND POPULAR PAYS WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Popular Pays agree that (a) any arbitration will occur in Chicago, Illinois, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section, and (c) that the state or federal courts of the State of Illinois, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
29.5 Authority of Arbitrator. As limited by the FAA, these Terms and the applicable AAA rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual. Notwithstanding anything to the contrary herein or the applicable AAA rules. discovery in the arbitration shall be limited to one set of interrogatories, one set of request for admissions, and one set of request for production of documents.
The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
29.6 Rules of AAA. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of AAA, or (b) waive your opportunity to read the rules of AAA and any claim that the rules of AAA are unfair or should not apply for any reason.
29.7 Severability. If any term, clause or provision of this Section 29 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 39 will remain valid and enforceable. Further, the waivers set forth in Section 29.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
29.8 Opt-Out Right. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 29 by writing to: POPULAR PAYS, Inc., Re: OPT-OUT, 130 S Jefferson St 4th floor, Chicago, IL 60661. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 28.
30. ENTIRE AGREEMENT.
31. GDPR and Privacy Shield.
For our European Creators.
- For the purposes of this GDPR Section, “European Creators” will mean a Creator, who resides in Europe.
- For the purposes of this GDPR Section, “Personal Data” will have the meaning ascribed to it in the GDPR.
- If you do not reside in Europe, this Section is not applicable to you unless you give us Personal Data, as defined in the GDPR, of a European resident for storage or processing.
- You and we both agree to comply with the letter and spirit of the European Union General Data Protection Regulation (“GDPR”), which goes into effect on May 25, 2018.
- You hereby authorize us to transport your Personal Data to the United States for processing in accordance with these Terms and this Agreement and in compliance with the applicable provisions of GDPR.
- You and we agree that the information identified in Section 10 above will be considered your Personal Data.
- At any time, upon your request, we will discontinue the transport of your Personal Data to the United States for processing provided we no longer need such information for billing and other operational purposes or legally required to keep such information.
- You acknowledge that, if we discontinue the transport of your Personal Data to the United States for processing, you will no longer be able to access our Platform and use our Services.
- We will use your Personal Data solely in conjunction with the Services that we are providing to you hereunder.
- We will not use your Personal Data for any purpose not connected to our provision of Services to you under these Terms and this Agreement.
- We agree not to disclose your Personal Data to any third party, who is not connected with or assisting us with our provision of Services under these Terms and this Agreement.
- We agree to notify you within 72 hours of us disclosing your Personal Data without your authorization to do so to any one not authorized hereunder to receive and use such Personal Data.
- At any time you register to become a Creator under these Terms and this Agreement, you will be asked to approve and/or click through and agree to these Terms, including this Section on GDPR.
- If you do not want to be bound by the terms of this GDPR Section, please do not register or download our mobile app or otherwise use the Services set forth herein.
Once you have registered to be a Creator under these Terms and this Agreement or otherwise use the Services set forth herein, you may opt out as a Creator simply by notifying us at [email protected].
- If you opt out, we will delete your Personal Data from our Platform and you will no longer be able to participate in a Campaign unless you re-register.
- Once you have registered to be a Creator under these Terms and this Agreement or otherwise use the Services set forth herein, you may at any time request us at [email protected] to provide you with a copy of all of your Personal Data that we have stored in our Platform.
- Once you have registered to be a Creator under these Terms and this Agreement or otherwise use the Services set forth herein, you may request us at [email protected] that we erase all of your Personal Data that we store in our Platform. We will do so as soon as possible provided that we are not required to keep part or all of such Personal Data by applicable law or your contractual obligations to the Brands in the Campaign Brief, the IO or other agreement that you have entered into with such Brands.
- You acknowledge that, if we have erased your Personal Data pursuant to your request, you will no longer be able to access the Platform or use the Services provided hereunder.
- You agree that, before you provide us or the Platform with the Personal Data of a European resident, including any pictures of such European resident, you will obtain the consent of such European resident to disclose such Personal Data to us (the “Consent”).
- You agree that you will keep such Consent for three years after the end of the GIG in which you used such Personal Data.
- You agree that you will provide us with copies of such consent upon our request.
- We agree to allow you or your representative to reasonably audit our books and records with respect to our storage and processing of your Personal Data.
- We will ensure that our personnel required to access your Personal Data and that of your European residents are properly trained in the handling of Personal Data and subject to a binding duty of confidentiality with regard to such Personal Data.
- We will implement and maintain appropriate technical and organizational measures to safeguard this Personal Data.
- We will protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of personal data and appropriate to the nature of the Personal Data, which is to be protected.
- If we provide Personal Data to third parties involved in providing the Service, we will include in our agreement with such third party terms which are at least as favorable to you as those contained herein and as are required by the GDPR and the terms and conditions of this Agreement.
- If we or you become aware of and confirm any accidental, unauthorized or unlawful destruction, loss, alteration, or disclosure of, or access to your Personal Data in the course of providing the Service (a “Security Breach”), we or you will notify the other of the Security Breach within forty-eight hours.
- You and we agree that the transport of your Personal Data will be in full compliance with (i) the standard contractual clauses promulgated by the European Union, copies of which have been reviewed by each of us and are available at http://ec.europa.eu/justice/data-protection/international-transfers/transfer/index_en.htm, (the “Standard Contractual Clauses”) or (ii) our EU-US Privacy Shield and Swiss-US Privacy Shield certifications (the “Privacy Shield”), once our filing for such certifications is accepted by the U.S. Department of Commerce.
- To the extent there are any inconsistencies between this Agreement, the Standard Contractual Clauses, or the Privacy Shield, the Standard Contractual Clauses or Privacy Shield, as applicable, will prevail.
- Each of us will immediately notify the other if we believe a violation of this Section 31 of this Agreement or of any of the Standard Contractual Clauses or Privacy Shield, as applicable.
- You and we will each use our best efforts and cooperate in good faith to cure the violation as soon as possible.
PLEASE NOTE THAT BY USING THE WEBSITE, APP, PLATFORM AND/OR THE SERVICES YOU ARE AGREEING TO BE BOUND BY AND TO COMPLY WITH THE TERMS DESCRIBED HEREIN. IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT USE OUR WEBSITE, APP, PLATFORM, AND/OR SERVICES AND EXIT IMMEDIATELY.