These Popfly Evergreens Terms of Use (these "Evergreens Terms") are entered into between Fly Kingdom Inc. d/b/a Popfly ("Popfly," "we," or "us") and the brand, retailer, merchant, or other entity that accepts these Evergreens Terms or enables, configures, or operates an Evergreen Program through the Platform ("Client," "Brand," or "you"). These Evergreens Terms are effective as of the date you first accept them or first enable an Evergreen Program, whichever is earlier (the "Effective Date").
By clicking to accept, enabling the Evergreens feature, configuring an Evergreen Program, or otherwise operating an Evergreen Program through the Platform, you agree to these Evergreens Terms on behalf of the entity you represent, and you represent that you are authorized to bind that entity.
1. Definitions
Capitalized terms not defined here have the meanings given in the Brand Platform Terms of Use. As used in these Evergreens Terms:
1.1 "Administrative Fee" means the fee payable to Popfly for operating the Evergreens Service, as set forth in the applicable Order Form or in-Platform pricing.
1.2 "Base Payout" means the fixed per-Period amount the Brand commits, through its Program Configuration, to pay an enrolled Creator who satisfies all required deliverables for that Period.
1.3 "Branch" means a tier within an Evergreen Program defining the deliverables, Base Payout, Performance Bonus terms, and gifting terms applicable to Creators assigned to that tier.
1.4 "Brand Platform TOU" means the Popfly Brand Platform Terms of Use in effect between the parties, together with the General Terms and all Order Forms, as each may be updated from time to time.
1.5 "Creator" means a content creator, influencer, or ambassador who applies to, is accepted into, or participates in an Evergreen Program. Enrolled Creators are referred to in the Platform as "members."
1.6 "Creator Compensation" means, collectively, all Base Payouts, Performance Bonuses, Adjustments, and Retroactive Payouts that become payable to a Creator under an Evergreen Program. Creator Compensation excludes the value of gifted product (which is addressed in §5.4) and affiliate commissions (which are addressed in §5.6).
1.7 "Evergreen Program" or "Program" means a recurring, always-on ambassador program that the Brand creates and configures on the Platform, in which the Brand sets objectives and compensation for Creators across recurring Periods, and the Evergreens Service automatically enrolls Creators, generates Periods, tracks compliance, and prepares Creator Compensation.
1.8 "Evergreens Service" means the Popfly feature that operates Evergreen Programs, including Period generation, evidence and metric ingestion, compliance evaluation, bonus evaluation and maturation, branch transitions, and payout preparation, and the associated operational services Popfly performs.
1.9 "Performance Bonus" means an additional amount the Brand commits, through its Program Configuration, to pay an enrolled Creator who meets a configured performance objective for a Period, calculated as either a fixed amount or a percentage of affiliate gross merchandise value ("GMV") on the basis the Brand configures, as further described in §5.3.
1.10 "Period" means one recurring cycle (monthly, unless otherwise made available) within an Evergreen Program for which deliverables are due and Creator Compensation may become payable.
1.11 "Payout Cycle" means the calendar period (identified as a year-month) in which prepared Creator Compensation is grouped for invoicing and disbursement.
1.12 "Program Configuration" means the Brand's description of, and rules and commitments for, an Evergreen Program as the Brand posts and maintains them on the Platform, including without limitation Branches, deliverable requirements, Base Payouts, Performance Bonus triggers and amounts, gifting terms, branch-transition rules, targeting, eligibility, and any other Program rules. The Program Configuration is the functional equivalent of, and is incorporated as, the deal-specific terms of each Evergreen Program.
1.13 "Requirement" means a per-Period deliverable defined in the Program Configuration. Required Requirements gate the Base Payout; optional Requirements do not.
1.14 "Retroactive Payout" means Creator Compensation for a prior, closed Period that becomes payable after that Period closed as a result of a Brand action (such as waiving or manually completing a Requirement) or the maturation of a deferred Performance Bonus.
1.15 "Review Window" means the period described in §6.1 during which the Brand may review, adjust, or decline prepared Creator Compensation before it becomes payable.
2. Relationship to Other Agreements
2.1 Incorporation. These Evergreens Terms supplement and are governed by the Brand Platform TOU, which is incorporated by reference. All terms of the Brand Platform TOU — including the Brand's representations, the ACH authorization (Brand Platform TOU §5.2), fee-collection and billing-dispute mechanics, confidentiality, indemnification process, the limitation of liability and liability cap, and the governing-law and dispute-resolution provisions — apply to these Evergreens Terms and to the Evergreens Service as if set forth herein.
2.2 Order of precedence. In the event of a conflict, the order of precedence is: (a) the applicable Order Form; (b) these Evergreens Terms; (c) the Brand Platform TOU; (d) the General Terms.
2.3 Evergreens is a distinct service; the Payment Services Terms do not govern it. The Evergreens Service and the payment services described in the Popfly Payment Services Terms of Use are separate and distinct services. The Popfly Payment Services Terms of Use do not apply to, and do not govern, any disbursement of Creator Compensation under an Evergreen Program; they continue to govern only non-Evergreens creator payments. To the extent the Brand has accepted the Payment Services Terms of Use (or any other agreement) and any provision of it could be read to apply to the Evergreens Service, these Evergreens Terms control, exclusively govern all Evergreens disbursements, and expressly supersede and override any such provision in its entirety, including without limitation any requirement of affirmative, written, or per-payment Brand approval and any characterization of an approval as irrevocable. The Brand's authorization, approval, and disbursement mechanics for the Evergreens Service are exclusively those set forth in §3 (Appointment; Authorization) and §6 (Brand Review; Deemed Approval), and the deemed-approval mechanism in §6.2 constitutes the Brand's approval of the applicable Creator Compensation for all purposes.
3. Appointment; Authorization to Operate on the Brand's Behalf
3.1 Appointment. The Brand appoints Popfly, and Popfly accepts the appointment, as the Brand's limited operator and disbursing agent for the sole purpose of operating the Brand's Evergreen Programs and preparing and disbursing Creator Compensation in accordance with the Brand's Program Configuration and these Evergreens Terms. This appointment is limited to the actions described in these Evergreens Terms and creates no general agency; except as expressly stated, the parties remain independent contractors (Brand Platform TOU §10.3).
3.2 Standing authorization (autopilot). The Brand acknowledges that the Evergreens Service operates on a substantially automated basis. The Brand authorizes and directs Popfly to take the following actions automatically, on a recurring basis, on the Brand's behalf and in accordance with the Brand's Program Configuration, without requiring the Brand's action on any individual Period, Creator, or payout:
(a) generate, open, and close Periods on the configured cadence, and snapshot the Brand's then-current Program Configuration into each Period as the binding terms for that Period;
(b) ingest, from the Brand's and Creators' connected sources, social, content, and performance data and attributed affiliate GMV, and use that data to evaluate Requirement compliance and Performance Bonus eligibility;
(c) evaluate and mature Performance Bonuses, including deferring affiliate-sales bonuses until the applicable return-adjustment window has elapsed and finalizing them on return-adjusted GMV;
(d) promote, demote, or transition Creators between Branches according to the branch-transition rules in the Program Configuration, provided the target Branch is Live, which may change a Creator's Base Payout and bonus terms for future Periods;
(e) for any Program the Brand designates as public, announce the Program to Creators on the Platform and distribute invitations and launch announcements to Creators on the Brand's behalf, at launch and thereafter;
(f) prepare Creator Compensation, including Base Payouts, Performance Bonuses, Adjustments, and Retroactive Payouts, and group it into Payout Cycles; and
(g) subject to §6 (Review Window) and §7 (Funding), disburse funded Creator Compensation to Creators through Popfly's third-party payment processor and report payment status.
3.3 The Brand remains in control of its commitments. Popfly acts only within the parameters the Brand establishes in its Program Configuration. The Brand is solely responsible for the contents of its Program Configuration, including all compensation commitments it makes, and may modify its Program Configuration on a prospective basis at any time, subject to §6.5 (closed Periods are frozen) and to configuration constraints the Platform applies (including elements, such as a connected gifting store or code pool, that become fixed once connected or in use). Popfly may make available calculators, presets, templates, recommendations, benchmark figures, and similar tools to help the Brand configure a Program; any values these tools generate are informational suggestions only, and any Program Configuration the Brand accepts, adopts, or allows to take effect is the Brand's own commitment. Popfly does not set, and is not responsible for, the amounts or terms of Creator Compensation.
3.4 Creator acceptance and brand discretion. The Evergreens Service does not auto-accept Creators. The Brand reviews and decides each application. Acceptance (whether individually or through bulk actions the Brand initiates), decline, promotion, demotion, and termination of any Creator are Brand decisions, and the Brand is responsible for them. Popfly may decline to process enrollment (including invitations and acceptances) for a Program whose Program Configuration is incomplete or internally inconsistent — for example, a Program that offers an affiliate-sales bonus without a connected affiliate program — until the Brand completes the required configuration.
4. The Evergreens Service
4.1 Description. Popfly will make the Evergreens Service available to the Brand as part of the Platform and will operate the Brand's Evergreen Programs substantially as described in the applicable Documentation, as the Evergreens Service may evolve.
4.2 Operational support. Popfly will perform the operational steps necessary to invoice the Brand and disburse funded Creator Compensation, and will report payment and invoice status through the Platform.
4.3 Changes. Popfly may modify, add, or remove features of the Evergreens Service from time to time, provided that Popfly will not materially diminish the core functionality during a paid Subscription Term except as required by law or a third-party provider.
4.4 Program data; reporting and improvement. In addition to the data authorizations in §3.2 and any rights in the Brand Platform TOU, the Brand authorizes Popfly to use data ingested for, and generated by, the Evergreens Service (including Creator content, social and performance metrics, and sales, click, and GMV data) to operate and provide the Evergreens Service — including surfacing Program activity, Creator content, performance, and payout and invoice status to the Brand through in-Platform dashboards, feeds, and reporting — and, in aggregated or de-identified form that does not identify the Brand, to operate, secure, benchmark, and improve the Platform and its features (including recommendation and calculator tools) and for platform trust, safety, and risk purposes.
5. Creator Compensation — Brand Commitments
5.1 The Brand is the sole obligor. All Creator Compensation is an obligation of the Brand to the Creator. Popfly is not the source of, and does not itself owe, any Creator Compensation; Popfly's role is limited to calculating, preparing, and (once funded) disbursing Creator Compensation as the Brand's disbursing agent. Each Creator looks solely to the Brand for Creator Compensation, consistent with the Popfly Creator Terms of Use.
5.2 Base Payout. When a Creator satisfies all required Requirements for a Period, the Brand is obligated to pay that Creator the Base Payout in effect for that Creator and Period (as snapshotted at Period generation and as the Brand may revise it during any open-Period edit window the Platform provides, and including any per-member override). A Creator who does not satisfy all required Requirements for a Period earns no Base Payout for that Period unless the Brand later revives the obligation under §5.5.
5.3 Performance Bonuses. Where the Program Configuration defines a Performance Bonus, the Brand is obligated to pay the Performance Bonus to a Creator who meets the configured objective for the Period only if that Creator also satisfies the requirements for a Base Payout for that Period. Once both are satisfied, the Performance Bonus is included in the next possible Payout Cycle, as follows:
(a) Fixed bonus. A flat amount, payable when the configured metric — engagement rate, impressions, or attributed affiliate sales — meets or exceeds the configured target for the Period. A Fixed bonus tied to engagement rate or impressions is evaluated and finalized when the Period closes for review. A Fixed bonus tied to attributed affiliate sales is, like the Percentage-of-GMV bonus in §5.3(b), deferred until the applicable maturation window has elapsed and is evaluated and finalized on return-adjusted GMV, so that returns and refunds are taken into account before the bonus is fixed or paid; the Creator earns such a bonus only if the return-adjusted metric meets or exceeds the target at maturation.
(b) Percentage-of-GMV bonus. An amount equal to the configured percentage (greater than 0% and not more than 100%) multiplied by the Creator's affiliate GMV for the Period on the basis the Brand configures. The Brand may configure the GMV basis as either (i) Program-attributed GMV — only sales attributed to the Program — or (ii) total merchant GMV — all of the Creator's settled sales for the connected merchant or store for the Period, including sales not attributed to the Program (for example, sales through the Creator's other links, storefronts, or programs). Percentage-of-GMV bonuses apply only to the affiliate-sales objective and are finalized on return-adjusted GMV after the applicable maturation window has elapsed. The maturation window is configured by the Brand within a range of 30 to 180 days; connecting the Program to a third-party affiliate network may raise the applicable minimum (currently to 60 days) to align with that network's settlement and return window. The Brand acknowledges that affiliate-sales bonuses are intentionally deferred until maturation so that returns and refunds reduce GMV before any amount is fixed or paid.
(c) Attribution sources. Affiliate GMV may be attributed through any attribution method connected to the Program — including Popfly-operated affiliate programs, storefront links, and third-party affiliate networks the Brand connects (such as AvantLink or Impact). Where GMV is reported by a third-party network or other external source, Popfly calculates on the data that source reports; the Brand's obligations under this §5.3 apply equally to GMV attributed through such sources.
5.4 Gifting is not cash Creator Compensation. Where the Program Configuration includes gifting, the gift is a benefit the Brand provides to Creators and a Brand-borne program cost. Gift value is not Creator Compensation, is not calculated or disbursed by Popfly as a cash payout, and is treated as a Brand-borne program cost. Gifting may be fulfilled either by physical product or by Brand-provided redemption or discount codes. Where gifting is fulfilled by physical product, physical fulfillment is governed by the Samples provisions of the Brand Platform TOU (including Popfly's bailee role). Where gifting is fulfilled by codes, the Brand is responsible for supplying and maintaining a sufficient quantity of valid codes, and authorizes Popfly to store those codes, distribute them to Creators, and track their assignment and redemption on the Brand's behalf; Popfly is not responsible for the validity, value, or honoring of any Brand-provided code. The Brand is responsible for gift eligibility, quantity, code supply, and budget. Every Branch must offer Creators at least one of: a Base Payout, Gifting, or a Performance Bonus. A Branch may have no Base Payout if it offers Gifting and/or a Performance Bonus instead; in that case, no cash Creator Compensation arises except any Performance Bonus, Adjustment, or Retroactive Payout the Brand configures or initiates.
5.5 Adjustments and Retroactive Payouts. The Brand may, through the Platform, (a) apply positive or negative Adjustments to a Creator's prepared compensation for a reason the Brand records, and (b) revive compensation for a prior, closed Period by waiving or manually completing a Requirement, resulting in a Retroactive Payout on a later Payout Cycle. Retroactive Payouts use the source Period's Base Payout amount unless the Brand specifies a custom amount via an Adjustment. All Adjustments and Retroactive Payouts are Brand commitments and are funded and reimbursed in the same manner as other Creator Compensation.
5.6 Affiliate commissions are separate. Where an Evergreen Program is connected to an affiliate program, affiliate commissions are governed by, and paid through, the separate affiliate payout pipeline under the applicable affiliate terms. Affiliate commissions are never Creator Compensation under these Evergreens Terms, even though attributed affiliate GMV may be used to evaluate Performance Bonuses.
5.7 No clawback of disbursed amounts. Once Creator Compensation has been disbursed to a Creator, it is final. Popfly will not reverse, debit, or claw back a disbursed amount. Corrections for over- or mis-payment are made only by way of a negative Adjustment applied to a future Payout Cycle or by the Brand's direct recourse against the Creator; Popfly has no obligation or liability with respect to recovery of disbursed amounts.
5.8 Budget figures are informational. Any budget amount the Brand configures for an Evergreen Program is a planning and reporting aid only. A configured budget does not cap, reduce, or condition any Creator Compensation the Brand has committed through its Program Configuration, does not obligate Popfly to block or warn on commitments that exceed it, and does not limit the Brand's funding and reimbursement obligations under §7. Any estimate, forecast, or spend-tracking or -monitoring aid the Platform presents in connection with a budget is likewise informational only, does not create any Popfly obligation to monitor, control, or warn on the Brand's spend, and does not modify these Evergreens Terms, notwithstanding any contrary in-Platform statement. The Brand is solely responsible for configuring its Programs within its intended spend.
6. Brand Review; Deemed Approval
6.1 Review Window. For each Period, when Popfly makes the Period's prepared Creator Compensation available for review (which occurs at the close of the Period), the Brand has a review window of seven (7) calendar days (the "Review Window") during which the Brand may, through the Platform, review the prepared Creator Compensation and decline or apply Adjustments to any payout.
6.2 Deemed approval (silence = approval). If the Brand does not decline or adjust a prepared payout before the close of the Review Window, the Brand is deemed to have approved that payout, and Popfly is authorized and directed to treat it as approved and to proceed to invoice and (once funded) disburse it. The Brand acknowledges that this deemed-approval mechanism is essential to the automated operation of the Evergreens Service and expressly authorizes Popfly to rely on it. This §6.2 supersedes any conflicting per-payment-approval requirement (see §2.3).
6.3 Declines; holds. A decline reflects the Brand's decision not to pay a particular payout for the applicable cycle and requires a recorded reason; a declined payout becomes final upon close of the relevant Period. Separately, after a Period closes Popfly may place an operational hold on a payout pending resolution of a recorded condition; a hold pauses, but does not extinguish, a payout the Brand still owes.
6.4 Brand inaction does not waive the Brand's obligations. Deemed approval establishes the Brand's authorization to disburse; it does not relieve the Brand of its funding and reimbursement obligations under §7, nor of its underlying compensation commitments to Creators.
6.5 Closed Periods are frozen. Once a Period is closed, its business terms are fixed. Prospective changes to a Program Configuration do not alter closed Periods. Changes to a closed Period are limited to late evidence, Brand-initiated waivers or completions and resulting Retroactive Payouts (each as described in §5.5), the maturation of deferred Performance Bonuses under §5.3, and Popfly's correction of a manifest error under §8.1.
6.6 Access does not condition deemed approval. The Brand is responsible for maintaining its access to the Evergreens Service and for reviewing prepared Creator Compensation within each Review Window. Deemed approval under §6.2 operates on the close of the Review Window and applies whether or not the Brand accesses the Platform during that window, including where the Brand's access to the Evergreens Service is limited by its then-current subscription or entitlements. A change in the Brand's subscription or entitlements does not, of itself, suspend the generation, preparation, deemed approval, invoicing, or funding of Creator Compensation for Programs the Brand has configured and continued to operate, and the Brand remains responsible for funding and reimbursing such Creator Compensation under §7.
7. Funding and Reimbursement (Collect-First)
7.1 Brand funds before disbursement. For each Payout Cycle, Popfly will present the Brand with an invoice for the approved Creator Compensation for that cycle plus the applicable Administrative Fee. The Brand will fund the full invoiced amount in advance of disbursement. Popfly may collect funded amounts by ACH debit or other authorized method pursuant to the Brand's authorization in the Brand Platform TOU §5.2 and the ACH Authorization Form.
7.2 No fronting by Popfly. Notwithstanding any other agreement between the parties, Popfly will not disburse any Creator Compensation to a Creator before the Brand has funded the corresponding amount. Popfly does not extend credit to the Brand for Creator Compensation under these Evergreens Terms and assumes no obligation to advance its own funds to Creators. Disbursement of approved Creator Compensation is conditioned on Popfly's receipt of cleared funds from the Brand covering that compensation.
7.3 Administrative Fee. The Brand will pay Popfly an Administrative Fee for operating the Evergreens Service, collected together with the funded Creator Compensation for each Payout Cycle. Unless a different rate is set forth in the applicable Order Form or in-Platform pricing, the Administrative Fee is ten percent (10%) of the Creator Compensation disbursed for each Payout Cycle.
7.4 Disbursement. Promptly after Popfly receives cleared funds for a Payout Cycle, Popfly will disburse the approved, funded Creator Compensation to the applicable Creators through Popfly's third-party payment processor and will report payment status through the Platform. Popfly may consolidate multiple payouts under a single invoice and a single funding event. Notwithstanding the foregoing, Popfly may exclude from prepared payouts, and decline to invoice or disburse, Creator Compensation for any Creator account that Popfly determines, in its sole discretion, fails the eligibility and authenticity requirements of the Popfly Creator Terms of Use (including the prohibition on artificial-intelligence-generated, virtual, or synthetic personas); the Brand will not be invoiced for amounts so excluded, and any funded but undisbursed amounts attributable to an excluded account will be credited or returned to the Brand.
7.5 Reimbursement obligation absolute; no set-off. The Brand's obligation to fund and reimburse Creator Compensation and Administrative Fees is absolute and not subject to set-off, counterclaim, or deduction, except for amounts the Brand disputes in good faith and in accordance with the billing-dispute provisions of the Brand Platform TOU.
7.6 Insufficient or missing funds. If the Brand fails to fund a Payout Cycle when due, fails to maintain valid payment-account information, or Popfly reasonably believes the Brand is unable or unwilling to fund, Popfly may withhold disbursement, suspend the affected Evergreen Program and the Evergreens Service, and/or suspend the Brand's access pursuant to the Brand Platform TOU, without liability to the Brand or to any Creator. Suspension does not relieve the Brand of its obligations to Creators.
7.7 Pass-through processing fees and taxes. The Brand is responsible for pass-through payment-processing fees and for all taxes other than taxes on Popfly's net income. The applicable processing fee is as set forth in the Order Form; if no Order Form specifies it, the following default rates apply: 1.2% for amounts Popfly collects from the Brand by ACH, and 3.3% for amounts Popfly collects from the Brand by credit card. Payment by wire transfer is available at Popfly's then-current wire rate; the Brand should consult its Popfly representative for the applicable wire rate. Popfly will provide tax forms (e.g., IRS Form 1099-NEC) to Creators as a courtesy on the Brand's behalf where applicable.
8. Calculations; Determinations
8.1 Popfly calculations. Popfly calculates Requirement compliance, Performance Bonus eligibility and amounts, branch transitions, and prepared Creator Compensation based on the Brand's Program Configuration and the data ingested by the Evergreens Service. Requirement compliance may be evaluated using the Brand's connected sources and storefronts generally and need not be limited to a single merchant or affiliate connection. As between Popfly and the Brand, Popfly's calculations performed in accordance with the Program Configuration are final and determinative absent manifest error, and Popfly has no liability for such calculations. In the event of a manifest error or a Platform defect affecting a calculation or the stored Program Configuration, Popfly may correct it, including by correcting affected configuration or transition data and by applying prospective corrections through the mechanisms in §5.5; such corrections are the Brand's sole remedy for a Popfly calculation or configuration error. The Brand is responsible for reviewing prepared Creator Compensation during the Review Window.
8.2 No duplicate payment. The Evergreens Service is designed so that a Creator receives a single Base Payout per source Period and a single payment per earned Performance Bonus, regardless of late submissions or repeated Brand actions. The Brand acknowledges that this anti-duplication design governs and that revived or late-resolved obligations are satisfied through the mechanisms in §5.5 rather than by additional duplicate payments.
8.3 Currency. All amounts are stated and paid in U.S. dollars unless otherwise specified in the Order Form. Amounts are rounded to two decimal places.
9. Brand Representations and Responsibilities
9.1 The Brand represents, warrants, and covenants that:
(a) it has full authority to establish each Program Configuration and to commit to the Creator Compensation it configures;
(b) its Program Configurations, Creator Compensation commitments, and Evergreen Programs comply with all applicable laws and regulations, including consumer-protection, advertising, endorsement, and disclosure rules (including the FTC's guidance on endorsements and the requirement that Creators clearly disclose material connections);
(c) it will maintain sufficient funds and valid payment-account information to fund each Payout Cycle in advance as required by §7;
(d) it is solely responsible for its relationships and agreements with Creators, including the resolution of any dispute regarding Creator Compensation, deliverables, or program participation; and
(e) the data it provides or connects for use by the Evergreens Service is accurate and lawfully provided.
10. Disclaimers; Indemnification; Limitation of Liability
10.1 Popfly not party to the Brand–Creator relationship. Popfly is not a party to, and is not responsible for, any agreement, arrangement, or dispute between the Brand and any Creator. Popfly does not determine Creator Compensation amounts or terms and disclaims all liability with respect to the Brand's relationship and interactions with Creators, including the payment or non-payment of Creator Compensation except for Popfly's failure to disburse funds the Brand has actually funded. Popfly may make available tools through which the Brand can report a Creator's conduct or performance; Popfly's receipt, classification, or handling of any such report is for Popfly's own platform-operations, trust, and safety purposes, does not constitute Popfly's resolution of, or participation in, the Brand's dispute with the Creator, and does not relieve the Brand of its responsibility under §9.1(d) to resolve such disputes.
10.2 Service disclaimer. Except as expressly stated in the Brand Platform TOU, the Evergreens Service is provided "AS IS," and Popfly disclaims all implied warranties to the fullest extent permitted by law, including any warranty that the Evergreens Service will achieve any particular program outcome or that ingested third-party data — including social and content metrics and sales, click, or GMV data reported by third-party affiliate networks or other connected sources — will be complete, timely, or accurate.
10.3 Indemnification. The Brand will indemnify, defend, and hold harmless Popfly and its affiliates in accordance with, and subject to the process set forth in, the Brand Platform TOU, against any claim arising out of (a) the Brand's Program Configurations or Creator Compensation commitments, (b) the Brand's relationships, agreements, or disputes with Creators, (c) the Brand's failure to fund or reimburse, or (d) the Brand's breach of these Evergreens Terms or violation of applicable law.
10.4 Limitation of liability. The limitation of liability and the aggregate liability cap set forth in the Brand Platform TOU apply to these Evergreens Terms and to the Evergreens Service. For clarity, amounts the Brand is obligated to fund or reimburse for Creator Compensation and Administrative Fees are not subject to that cap as a limitation on the Brand's payment obligations.
11. Term; Termination; General
11.1 Term. These Evergreens Terms take effect on the Effective Date and continue for so long as the Brand has access to or operates any Evergreen Program, unless earlier terminated in accordance with the Brand Platform TOU or these Evergreens Terms.
11.2 Termination; Pause and Archive. Either party may terminate the Evergreens Service as provided in the Brand Platform TOU. Popfly may suspend or terminate the Evergreens Service for non-funding or non-payment as provided in §7.6. Separately, the Brand may Pause or Archive an Evergreen Program through the Platform. Pause is reversible: it stops new Creator enrollment while in-flight Periods and deferred Performance Bonus settlement continue. Archive is a non-reversible Program sunset and is available only after in-flight Periods have closed and deferred Performance Bonuses and related payout review for the Program have completed. Pause and Archive are non-destructive; historical Program data remains available.
11.3 Effect on in-flight Periods and obligations. Terminating the Evergreens Service, or Pausing or Archiving a Program, does not relieve the Brand of its obligation to fund and reimburse Creator Compensation that became payable, or that the Brand committed to, for any Period that opened before that action, including Retroactive Payouts and matured Performance Bonuses attributable to such Periods. Pause does not stop Popfly from preparing, invoicing, or (once funded) disbursing those amounts. Archive ends new Periods after that settlement is complete. Popfly will not disburse any such amounts that the Brand has not funded.
11.4 Survival. §§1, 4.4, 5.1, 5.6, 5.7, 5.8, 7, 8, 9, 10, and 11 survive termination, along with any provisions of the Brand Platform TOU that by their nature survive.
11.5 Confidentiality. The confidentiality provisions of the Brand Platform TOU apply to these Evergreens Terms.
11.6 No agency beyond stated scope. Except for the limited disbursing-agent appointment in §3.1, nothing in these Evergreens Terms creates an agency, partnership, or joint venture between the parties.
11.7 Governing law; dispute resolution. These Evergreens Terms are governed by the laws of the State of Delaware, and any dispute is subject to the dispute-resolution provisions (including arbitration) of the Brand Platform TOU.
11.8 Entire agreement. These Evergreens Terms, together with the Brand Platform TOU, the General Terms, the applicable Order Form(s), and the Brand's Program Configuration, constitute the entire agreement between the parties regarding the Evergreens Service and supersede all prior or contemporaneous understandings regarding its subject matter.
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