Terms of Service

PopflyTM Brand Platform Subscription Terms of Use

Last Updated 4/25/25

This Popfly Brand Platform Subscription Terms of Use (collectively, with the Popfly General Terms of Service, the “General Terms”) and all related Order Forms (as defined in Section 1 below), this “Agreement”) is an agreement between Fly Kingdom Inc., d/b/a Popfly, a Delaware corporation (“Popfly”), and the organization identified by Popfly as accessing or using the Services (as defined below) (“you” or “Client”).

BEFORE ACCESSING OR USING THE SERVICES, YOU MUST READ THIS AGREEMENT CAREFULLY. BY (1) CLICKING A BOX OR BUTTON INDICATING ACCEPTANCE OF THIS AGREEMENT, (2) ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT IN A SEPARATE DOCUMENT REFERENCING OR INCORPORATING THE TERMS OF THIS AGREEMENT, (3) ACCEPTING THIS AGREEMENT IN ANY OTHER MANNER SPECIFIED BY POPFLY, AND/OR (4) ACCESSING OR USING THE SERVICES AVAILABLE TO CLIENTS, YOU AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE COMPANY YOU WORK FOR OR REPRESENT. BY ACCEPTING THIS AGREEMENT ON BEHALF OF SUCH COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MUST NOT ACCESS OR USE THE SERVICES.

  1. Definitions

As used herein, the following terms shall have the definitions set forth below:

“Affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of the foregoing, “control” means ownership or the power to dispose of greater than fifty percent (50%) of any outstanding voting class of equity securities or interests in the subject entity.

“Client Content” means any data, information, or material that is provided or submitted to the Services by Client or any User, including, without limitation, any requests, images, files, text, or any other information or material that Client or its Users submit to the Services.

“Creator” means any content creator that Client engages through or in connection with the Services.

“Contribution(s)” means any content created for Client by a Creator in connection with such Client’s use of the Platform.

“Documentation” means the user manuals and other user documentation for the Services, if any, which may be made available electronically by Popfly or as otherwise may be provided by Popfly to Client.

“Order Form(s)” means any written or electronic Popfly order document or internet order page for Services that is signed or electronically accepted or submitted by Client to Popfly.

“Platform” means Popfly’s proprietary web-based platform and dashboard consisting of self-service content creator collaboration and management tools and workflows, as set forth in one or more Order Forms, as well as any updates, modifications, customizations or improvements thereto as Popfly may provide to Client from time to time.

“Samples” means any products, merchandise, or other materials provided by Client to a Creator, where such provision is conducted through or otherwise facilitated by the Platform.

“Services” means the provision of access to and use of the Platform as software-as-a-service, including without limitation the hosting of any Contributions, to Client in accordance with the terms of this Agreement.

“Subscription Term” means the term of Client’s subscription to use the Services as set forth in an Order Form.

“User” means an individual under the control of Client to whom Client has issued a personal user ID and password to access and use the Services. User does not mean a corporation, company, partnership, association, entity, or organization.

  1. License Grant and Restrictions
  1. Licenses
  1. Services. Subject to the terms and limitations set forth in this Agreement, and provided that Popfly has received timely payment of all fees owed under this Agreement, Popfly hereby grants to Client a limited, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable license during the Subscription Term to access and use the Platform via the internet, along with any accompanying Documentation, as specified in the Order Form and solely for Client’s internal business purposes. Client shall be responsible for all acts and omissions of persons who use the Services and Documentation and for ensuring their compliance with this Agreement. Client shall immediately notify Popfly of any loss or unauthorized access or use of a personal user ID or password.
  2. Client Content. Client hereby grants to Popfly a limited, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable (except to Popfly’s service providers as deemed necessary to provide services to Popfly) license to access, use, reproduce, capture, copy, modify, reformat, host, store, transmit, maintain and publicly display the Client Content during the Subscription Term as necessary to provide the Services to Client.
  3. Contributions. To the extent Client owns Contributions, Client grants to Popfly (i) a limited, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable (except to Popfly’s service providers as deemed necessary to provide services to Popfly) license to access, use, reproduce, capture, copy, modify, reformat, host, store, transmit, maintain and publicly display such Contributions during the Subscription Term as necessary to provide the Services to Client, and (ii) a limited, nonexclusive, worldwide, royalty-free, fully paid up, perpetual, non-transferable (except in connection with a permitted assignment of this Agreement), irrevocable (except in connection with Popfly’s uncured material breach of this Agreement), non-sublicensable (except to Popfly’s service providers), license to feature such contributions in the promotion, advertising, or marketing of Popfly’s products and services.
  1. Restrictions
  1. No Service Bureau Use. Client may use the Services only for its internal organizational purposes and may not provide outsourcing, service bureau, application service provider, or similar services to third parties.
  2. Copies and Modification. Client may make an unlimited number of copies of the Documentation solely for its internal organizational use. However, Client may NOT (nor authorize nor permit its employees, agents, independent contractors, or any other person or entity to) (i) modify or create derivative works of the Services or Documentation; (ii) distribute, re-sell, sublicense or publicly display or perform the Services or Documentation, any portion thereof, or any materials or information based upon the Services or Documentation; (iii) decompile, disassemble, or reverse-engineer any portion of the Platform or Services or otherwise attempt to derive their source code or protocols, or merge or bundle them with any other software, products or services; or (iv) remove any copyright, confidentiality, proprietary rights, or similar notices from the Services or Documentation.
  3. Restricted Rights. The Platform and Services and any related information are commercial computer software and commercial computer software documentation, and, as specified in FAR 12.212 or DFARS 227.7202, and their successors, as applicable, the U.S. federal government’s rights to use, reproduce or disclose such software, documentation and other information are restricted in accordance with the terms and conditions of this Agreement. Use, duplication or disclosure by the U.S. federal government is subject to the restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable.
  4. Suspension or Removal of Content. Client acknowledges that Popfly, in its sole discretion, may on reasonable prior written (email sufficing) notice to Client (provided that such prior written notice shall not be necessary where Popfly reasonably believes removal or suspension is necessary to avoid imminent litigation or other material harm to Popfly or third parties; in such event Popfly shall provide notice as soon as reasonably possible) remove or disable any content, including but not limited to Client Content and Contributions, if Popfly determines, in its sole good faith discretion, that such content is illegal or violates this Agreement, or that doing so is otherwise necessary to protect Popfly from financial or reputational harm. In the event of any removal or suspension of content pursuant to this Section 2.2(d), Client shall work with Popfly in good faith with the goal of alleviating the underlying issue giving rise to such removal or suspension and restoring the impacted content.
  1. Reservation of Rights. All rights not expressly granted to Client are reserved by Popfly. Client shall have no rights to receive any source code for the Services, nor use the Services except as expressly set forth in this Agreement.
  1. Client Responsibilities.
  1. Client will: (a) be solely responsible for managing the Contributions on the Platform except as explicitly stated in a separate written agreement with Popfly; (b) use the Services only for purposes permitted by this Agreement and any applicable local, state, national or international laws or regulations; (c) not use Services in a manner that violates any third-party agreements to which Client is a party or that are provided to Client by Popfly in advance, (d) not use the Services to perform or solicit the performance of any illegal activity or other activity which infringes Popfly’s rights or the rights of others (including any third party intellectual property rights); (e) not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the Services, or obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Services, including without limitation by reproducing or circumventing the navigational structure or presentation of the Services; (f) not attempt to gain unauthorized access to any portion or feature of the Services, or any other systems or networks connected to the Services or to any of Popfly’s servers, by hacking, password “mining” or any other means; (g) not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services or Popfly’s systems or networks, or any systems or networks connected to the Services; and (h) not use any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any transaction being conducted on the Services, or with any other person’s use of Services.
  2. Creator Agreements. Client will be solely responsible for entering into one or more agreements with each Creator that is engaged by Client in connection with Client’s use of the Services (each, a “Creator Agreement”). As a courtesy, in connection with Client’s access and use of the Services, Popfly may make available to Client certain template documents that could be useful to Client in connection with its use of the Services, including, without limitation, a template Creator Agreement (the “Template Documents”). Alternatively, Client may choose to contract with Creators using a different form of Creator Agreement that is acceptable to Client and the relevant Creator(s). CLIENT UNDERSTANDS AND AGREES THAT POPFLY IS NOT A PARTY TO OR RESPONSIBLE FOR ANY CREATOR AGREEMENT THAT CLIENT MAY ENTER INTO, OR FOR ANY PART’S PERFORMANCE UNDER ANY CREATOR AGREEMENT. POPFLY DISCLAIMS ALL LIABILITY WITH RESPECT TO CLIENT’S CREATOR AGREEMENTS, CLIENT’S RELATIONSHIP OR INTERACTIONS WITH CREATORS, AND ANY CONTRIBUTIONS CREATED BY CREATORS, TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN ADDITION, POPFLY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TEMPLATE DOCUMENTS. CLIENT ACKNOWLEDGES AND AGREES THAT POPFLY IS NOT PROVIDING ANY LEGAL OR OTHER ADVICE WITH RESPECT TO THE TEMPLATE DOCUMENTS. POPFLY IS NOT A LAW FIRM AND IS NOT ENGAGED IN THE PRACTICE OF LAW. THE TEMPLATE DOCUMENTS SHOULD NOT BE USED IN LIEU OF THE ADVICE OF COMPETENT LEGAL COUNSEL. CLIENT AGREES THAT CLIENT, AND NOT POPFLY, MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH THE USE OF THE TEMPLATE DOCUMENTS, INCLUDING ANY RELIANCE ON THE ACCURACY, LEGALITY, APPROPRIATENESS, COMPLETENESS OR USEFULNESS OF ANY SUCH TEMPLATE DOCUMENTS. CLIENT IS RESPONSIBLE FOR INFORMING ITSELF OF THE LAWS AND REGULATIONS APPLICABLE TO ITS JURISDICTION AND FOR COMPLYING WITH THEM. POPFLY HAS NO CONTROL OVER THE CONDUCT OF CLIENT OR THE CREATORS ENGAGED BY CLIENT.
  3. Campaigns. Client may use the Services to engage with Creators in order to solicit offers from Creators to provide Contributions to Client for Client’s use in marketing campaigns, and to accept offers from Creators to provide such Contributions. Client is solely responsible for the information posted in conjunction with any such solicitation and for any decision to accept a Creator’s offer to provide Contributions. Client and a Creator may enter into an agreement through the Services for the Creator to provide Contributions to Client by following the prompts to establish all agreed terms and mutual acceptance of those terms. For the avoidance of doubt, such mutual acceptance shall constitute a Creator Agreement.
  4. Samples. As part of the Services, Popfly may assist Client in providing Samples to Creators. Popfly may subcontract or otherwise delegate the storage, processing, shipping, handling, delivery, and other services related to Samples. Popfly (including its subcontractors) is a bailee with respect to such Samples and is forwarding such Samples to the applicable Creators on Client’s behalf, and Popfly (including its subcontractors) is neither a seller nor a distributor of any Samples. Client shall be responsible for all costs associated with the storage, processing, shipping, handling, delivery, and other services related to Samples, and as well as for procuring any necessary insurance for Samples. If Popfly pays any such costs on behalf of Client, Popfly shall promptly invoice Client for, and Client agrees to pay, such costs. Any provision by Popfly (including its subcontractors) of Samples to any Creators is contingent on Popfly’s receipt of the same from Client. Title to all Samples will at all times remain with Client until delivered to the applicable Creators, at which time title to such Samples will pass directly from Client to such Creators. Shipping and delivery dates are estimates only and cannot be guaranteed. Popfly is not liable for any delays or failure in shipment due to incorrect information provided by you, your failure to receive a shipment from a carrier, or other factors outside of our reasonable control. Client is solely responsible for the terms and conditions governing a Creator’s use of such Samples, including but not limited to all requirements related to truth in advertising. Client represents and warrants that all Samples will be provided to and used by Creators in accordance with applicable laws, rules and regulations, and acknowledges that Popfly will have no liability with respect thereto, including if a Creator fails to return a Sample or provide a desired Contribution.
  1. Title
  1. The Services, Platform, and Documentation furnished under this Agreement are licensed, not sold, to Client. Popfly possesses all right, title and interest in and to the Services, the Platform, the Documentation, and any copyrights, patents, trademarks, service marks, trade names, trade dress, trade secrets and any other proprietary rights that are associated with the Services, Platform, or Documentation throughout the world, and Client acknowledges that it receives no right, title or interest to the Services, the Platform, or the Documentation, except for the limited license rights provided within this Agreement. Popfly also retains title to any and all copies made of any embodiments or features of the Services, Platform, and Documentation, and upon any termination of this Agreement, all such copies must be returned to Popfly or destroyed, at Popfly’s instruction. Client agrees not to contest Popfly’s title or intellectual property rights in or to the Services, Platform, or Documentation, and Client shall not copy or emulate any features or functionality of the Services or Platform.
  2. Ownership, licensing and/or assignment of right, title and interest in and to any Contributions will be set forth in a Creator Agreement. Popfly does not claim any right, title, or interest in any Contribution beyond the limited license right set forth in Section 2.1(c) above.
  3. All feedback, suggestions, improvements, and similar information relating to the Services or Platform and provided by Client to Popfly shall be the sole property of Popfly, which may freely use them without any obligation to obtain consent or pay compensation.
  1. Ordering Services; Payment; Subscription Term; Termination
  1. Ordering Services. An Order Form submitted by Client will be binding on both parties when Popfly chooses to accept such Order Form electronically, or otherwise when an Order Form is signed by an authorized representative of each party.
  2. Fees. Subscription, usage, and other fees will be as set forth on each Order Form. Popfly may modify its pricing at any time, effective at the beginning of any new Subscription Term following Client’s then-current Subscription Term, by notifying Client in writing (e-mail sufficing) at least thirty (30) days in advance. If Client chooses to continue receiving the Services after the price change goes into effect, then it will be deemed to have accepted the price change beginning with the next Subscription Term; if it does not accept the price change, then it may cancel its subscription as described in Section 5.7 below. All fees are payable in advance unless a different payment schedule is expressly set forth in an Order Form. If for any reason Popfly cannot collect amounts owed under this Agreement when due, Popfly, in addition to any other remedies available to it, may immediately suspend or terminate Client’s access to or use of the Services.
  3. Creator Compensation and Invoicing. Compensation arrangements between Client and any Creator engaged by Client shall be set forth in a Creator Agreement between Client and such Creator. Client agrees to pay its Creators in accordance with the terms of the relevant Creator Agreements. Client may, in its sole discretion, elect to accept invoices from Creators through the Platform. Client agrees to pay to Popfly an administrative fee equal to ten percent (10%) of the amount of any such invoice.
  4. Taxes. Client shall be responsible for any applicable sales, use, value added or similar taxes payable with respect to Client’s subscription for the Services, or arising out of or in connection with this Agreement (including but not limited to any such taxes payable with respect to compensation of Creators engaged by Client), unless such taxes levied or imposed are based upon Popfly’s net income. If Client has tax-exempt status, Client shall provide written evidence of such status to Popfly.
  5. Billing Disputes. Client must provide Popfly with written notice of any disputed charges within seven (7) days after the disputed charge is incurred. All disputes not raised within this timeframe shall be deemed waived. If a dispute is submitted within this timeframe, Client is responsible for paying the undisputed portion of the charges on or before the due date. The dispute notice shall set forth in reasonable detail the information concerning the disputed charges and reasons for the dispute.
  6. General. All amounts due under this Agreement to Popfly shall be payable in U.S. dollars. Popfly may charge interest on overdue amounts at the rate of one and one-half percent (1.5%) per month or the highest lawful rate, whichever is less. In the event that Popfly must utilize a collection agency or institute legal proceedings to collect any fees or other amounts due under this Agreement, Client shall be liable for all reasonable attorneys’ fees, agency costs and other costs associated therewith.
  7. Subscription Term; Termination. The initial Subscription Term for the Services shall be as set forth on the relevant Order Form. Client’s subscription shall thereafter automatically renew for successive additional Subscription Terms of equal length, unless Client’s subscription is cancelled or this Agreement terminated in accordance with the terms hereof. Client may cancel its subscription for the Services (i) at any time by providing written notice to Popfly, with any such cancellation by Client shall be effective at the end of the current Subscription Term; or (ii) upon fifteen (15) days’ prior notice sent via e-mail or written notification if Popfly materially breaches this Agreement and fails to cure such breach during the thirty (30) day notice period. Popfly may terminate the Agreement and Client’s subscription for the Services (i) for non-payment as provided in Section 5.2 above; (ii) immediately upon notice via e-mail or written notification sent to the current Client e-mail or business address associated with Client’s account if Client breaches Section 2.2 above; (iii) upon fifteen (15) days’ prior notice sent via e-mail or written notification if Client materially breaches any other provision of this Agreement and fails to cure such breach during the seven (7) day notice period; or (iv) immediately upon e-mail or written notice in the event Client undergoes a dissolution, liquidation, composition, financial reorganization or recapitalization with creditors, assignment for the benefit of creditors, or the appointment of a receiver, trustee, custodian, or similar agent for Client’s business or property.
  8. Obligations upon and Effect of Termination. Upon any cancellation of Client’s subscription or termination of this Agreement, (i) all licenses granted to Client under this Agreement shall automatically terminate, (ii) Client agrees to return to Popfly or destroy (at Popfly’s instruction) all copies of the Documentation in its possession and (if requested by Popfly) provide written certification from an officer of Client to that effect, and (iii) Popfly may destroy and/or delete any Client Content and/or Contributions retained or hosted by Popfly, unless the parties enter into a separate agreement for Popfly to provide continued hosting for additional fees.
  9. Survival. In addition to those provisions which by their nature are intended to survive any termination or expiration of this Agreement (including this Section 5.9), Sections 2.2, 2.3, 4, 5.2-5.6, 5.8, 6, 8 9, and 10 of this Agreement shall specifically survive such termination or expiration.
  1. Confidentiality

Each party (as the “receiving party”) agrees not to permit access to or to disclose the other party’s (the “disclosing party”) Confidential Information, except to the receiving party’s authorized employees and contractors who are bound by confidentiality agreements with terms no less restrictive than those of this Section 6 and who need to use or have access to the disclosing party’s Confidential Information for the purposes contemplated by this Agreement. Each party shall be liable in accordance with the Agreement for the acts and omissions of its employees and contractors who receive Confidential Information. A receiving party shall use at least the same degree of care in protecting the disclosing party’s Confidential Information as such receiving party generally exercises in protecting its own most valuable proprietary information and shall inform its employees and contractors having access to the disclosing party’s Confidential Information of its confidential nature. In no event shall a receiving party use less than a commercially reasonable degree of care in protecting the disclosing party’s Confidential Information. “Confidential Information” means documents, data, software, and information which, when provided by the disclosing party to the receiving party: (a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; (b) are disclosed orally or visually, and identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within ten (10) business days; or (c) a reasonable person would understand to be confidential or proprietary at the time of disclosure. The Services, Platform, and Documentation, as well as results of benchmark and other tests run by either party and resulting from use of the Services, shall be deemed Popfly Confidential Information without any need for any markings or legends, and in addition to the other restrictions in this Section 6, shall not be disclosed to any competitor of Popfly. Notwithstanding the foregoing, the receiving party shall have no obligation of confidentiality with respect to any information which the receiving party can demonstrate by written documentation: (i) is already known to the receiving party at the time of disclosure; (ii) is or subsequently becomes publicly available through no wrongful act of the receiving party; (iii) is disclosed or provided to the receiving party by a third party without restriction and without having violated any confidentiality agreement of any party; or (iv) is developed independently by the receiving party without use of to the disclosing party’s Confidential Information. In addition, either party may disclose Confidential Information of the other to the extent required by law or a judicial or regulatory order; provided, however, that the party subject to the requirement furnishes the other party with as much advance written notice as possible under the circumstances and cooperates with its efforts to obtain a suitable protective order. If such an order is not obtained, or the party owning the information waives the non-disclosure obligation, the other party may disclose that portion of the Confidential Information which is subject to the judicial, legal or regulatory disclosure requirement. Each party shall promptly notify the other of any suspected unauthorized access, use, disclosure, alteration or loss of the other party’s Confidential Information and shall cooperate with such other party’s reasonable requests in connection with investigating and remediating any such incident.

Each party acknowledges that its breach of this Section 6 will cause the other party immediate and irreparable damage for which recovery of money damages would be inadequate. Therefore, each party agrees that the other party shall be entitled to seek injunctive relief to protect its rights under this Section 6 (in addition to any other remedies available to said party) without the necessity of posting bond.

  1. Warranty, Remedy and Restrictions
  1. Popfly Warranty. Popfly represents and warrants to Client that: (i) Popfly has the legal power and authority to enter into this Agreement; and (ii) the Services, as delivered by Popfly to Client and used in accordance with the Documentation, will substantially conform to the specifications as described in its then current Documentation during each Subscription Term (the “Functional Warranty”).
  2. Client Warranty. Client represents and warrants to Popfly that: (i) it has the legal power and authority to enter into this Agreement, and has all rights, licenses, consents, and permissions necessary to grant the licenses set forth in Sections 2.1(b) and (c) above; (ii) Client and its Users shall at all times comply, and will ensure that any Creators Client engages via the Services comply, with any laws, rules, and regulations applicable to their activities in connection with this Agreement (including, without limitation, any regulations, guidelines, staff reports, and enforcement actions or agency interpretations issued by the Federal Trade Commission (“FTC”) (including the FTC’s Safeguards Rule (16 CFR Part 314) and the FTC Guides Concerning the Use of Endorsements and Testimonials in Advertising), a state attorney general, or any other regulatory agency, including any such agencies’ interpretations of what constitutes unfair, deceptive, or abusive acts or practices); (iii) Client and the Users shall not upload, submit, store, publish or distribute any unlawful, infringing or libelous content, material, or data through the Services, or any content or material that contains viruses, worms, Trojan horses, malware or other surreptitious, harmful or invasive code; and (iv) Client has all rights and permissions necessary to provide the Client Content to Popfly for processing in accordance with this Agreement, and the Client Content will not violate the rights of any third party or any applicable law, rule, or regulation.
  3. Functional Warranty Remedies. As Client’s sole and exclusive remedy, and Popfly’s sole liability, for any breach of the Functional Warranty reported by Client, Popfly shall (i) take reasonable steps to correct or repair the Services so that they substantially conforms to their applicable Documentation, or (ii) if such correction or repair cannot be effectuated within a reasonable time, as determined by Popfly, terminate Client’s subscription and refund to Client a pro-rated amount of the prepaid fees for the Services for the applicable Subscription Term allocable to the period in which the Services could not be used.
  4. Exclusions. Popfly shall not be obligated to remedy any outage, failure, or defect in the Services that cannot be adequately repeated. The Functional Warranty also does not apply to any outage, failure or defect in the Services that results from (i) Client’s failure to maintain the proper production environment to access and use the Services (including any failure to maintain the systems and applications required by the Documentation), (ii) use of the Services in a manner or for a purpose not expressly permitted in this Agreement or the Documentation, (iii) failures of Client or third-party hardware, software, equipment or networks, or (iv) a Force Majeure Event (as defined in Section 10.5 below). Client also acknowledges that Popfly may modify the Services from time to time in its sole discretion, which modification may include the addition or deletion of features and/or functionality. Popfly will use reasonable efforts to post a notice on the Services or notify Client by e-mail at least thirty (30) days prior to any changes that may materially reduce or degrade the functionality or user experience of the Services.
  1. Indemnification and Infringement
  1. Indemnification.
  1. Popfly Indemnity. Provided that all fees and other amounts required by this Agreement have been timely paid, Popfly shall indemnify, defend, and hold harmless Client and its employees, agents, and representatives, from and against any claim, demand, suit, or proceeding (each, a "Claim") made or brought against Client by a third party, and any out-of-pocket costs, damages, fines, penalties, expenses, and fees (including reasonable attorneys’ fees) (collectively, “Costs”) incurred by Client in connection therewith, where the Claim alleges that the Platform, as used in accordance with the Documentation and this Agreement, infringes or misappropriates a United States patent, copyright, trademark, or other intellectual property right of a third party. Notwithstanding the foregoing, Popfly shall not be responsible to the extent that any alleged infringement or misappropriation arises from (i) the Client Content, Contributions, or Client’s systems, applications, or websites, (ii) alterations made by Client or third parties to the Platform without Popfly’s written authorization, (iii) any specifications, instructions or other information provided by Client or its Users, (iv) breach of this Agreement or improper or unauthorized use of the Platform by Client or any third party obtaining access through Client, or (v) combination of the Platform with products or services that are not provided by Popfly. Should any aspect of the Platform become, or in Popfly’s opinion likely to become, the subject of a claim of infringement or misappropriation, Popfly shall, at its option and expense either: (i) procure for Client the right to continue to use the Platform, or (ii) replace or modify the infringing element(s) of the Platform to make their use non-infringing without loss of substantial functionality. Notwithstanding the foregoing, if Popfly, in its sole discretion, determines that neither of the said options is available to it on commercially reasonable terms, Popfly, at its option, may terminate the provision or Client’s use of the allegedly infringing elements of the Platform and equitably reduce any ongoing fees accordingly.
  2. Client Indemnity. Client shall indemnify, defend, and hold harmless Popfly from any out-of-pocket costs, losses, and expenses (including reasonable attorneys’ fees and other litigation expenses) incurred in connection with a Claim relating to or arising out of (i) an actual or alleged breach by Client of its representations and warranties in this Agreement, (ii) Popfly’s storage, processing, shipping, handling, or delivery of Samples, (iii) Creator Agreements, (iv) Client’s use of, or decision to not use, Template Documents, and/or (v) the Client Content and/or the Contributions.
  1. Indemnification Process. The foregoing indemnification obligations of each indemnifying party will be dependent on the indemnified party: (i) providing the indemnifying party with prompt written notice of a Claim (provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is materially prejudiced thereby); (ii) permitting the indemnifying party to control the defense and settlement of the Claim; (iii) refraining from entering into any settlement or compromise of any such Claim without approval of the indemnifying party; (iv) providing the indemnifying party with reasonable information and assistance for the defense or settlement of the Claim, at the indemnifying party’s expense; and (v) using all commercially reasonable efforts to mitigate any loss, damage, or costs related to the Claim.
  2. Entire Liability. THIS SECTION 8 STATES THE ENTIRE LIABILITY OF POPFLY WITH RESPECT TO THE INFRINGEMENT OF ANY COPYRIGHTS, PATENTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS RELATED TO THE SERVICES, DOCUMENTATION, OR THEIR USE.
  1. Limitation of Warranty and Liability
  1. Warranty Limitations. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN SECTION 7, THE SERVICES, PLATFORM, AND DOCUMENTATION ARE PROVIDED “AS IS,” AND POPFLY MAKES AND CLIENT RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, AND POPFLY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LEGAL AND REGULATORY COMPLIANCE; ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, OR UNINTERRUPTED OR ERROR-FREE OPERATION; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE; OR ANY STATUTORY REMEDY. NO STATEMENT WHETHER MADE BY POPFLY’S EMPLOYEES, AGENTS, OR OTHERWISE SHALL BE DEEMED TO BE A WARRANTY BY POPFLY FOR ANY PURPOSE OR TO GIVE RISE TO ANY LIABILITY ON THE PART OF POPFLY. CLIENT ACKNOWLEDGES THAT IT IS SOLELY RESPONSIBLE FOR ASSESSING THE LEGAL AND REGULATORY REQUIREMENTS APPLICABLE TO ITS BUSINESS AND, ACCORDINGLY, THAT ANY SUCH REQUIREMENTS WILL NOT BE INCORPORATED INTO THE SERVICES UNLESS EXPRESSLY SET FORTH IN THE APPLICABLE ORDER FORM.
  2. Exclusion of Consequential and Related Damages. EXCEPT FOR A PARTY’S INTENTIONAL BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, A BREACH BY CLIENT OF SECTION 2 OR 3.1, OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8,IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF DATA OR USE OF DATA, OR INTERRUPTION OF BUSINESS OR OPERATIONS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE SERVICES OR PLATFORM, EVEN IF SUCH PARTY OR ITS REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
  3. Limitation of Liability. EXCEPT FOR A PARTY’S INTENTIONAL BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, A BREACH BY CLIENT OF SECTION 2 OR 3.1, A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR CLIENT’S PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR THE SERVICES OR PLATFORM FOR ANY AND ALL CLAIMS AND DAMAGES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CLIENT UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH THE LAST CLAIM OR DAMAGE AROSE.
  4. Material Part of Agreement. Client agrees that the disclaimer of warranties and limitations of liability in this Section 9 are a material inducement and consideration for Popfly to enter into this Agreement and provide the Services and Documentation at their current pricing. Accordingly, such provisions shall be enforced as written even if a remedy fails of its essential purpose.
  1. General
  1. Governing Law. This Agreement shall be governed by the laws of the State of Delaware, without reference to conflicts of laws principles. Any controversy or claim arising out of this Agreement shall be settled by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures, and judgment on the award rendered by the arbitrator(s) shall be entered in the state or federal courts for New Castle County, Delaware. Arbitration shall be conducted in Wilmington, Delaware. Each party shall bear its own expenses but shall evenly share the arbitrator's fee . The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. Notwithstanding the foregoing, either party may seek temporary or emergency injunctive relief in any court of competent jurisdiction to protect and preserve its rights in its intellectual property and Confidential Information.
  2. Notices. All notices or reports shall be in writing and shall be delivered by personal delivery, facsimile transmission, e-mail, overnight mail or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery or upon acknowledgment or confirmation of receipt of e-mail or facsimile transmission. Notices to Popfly shall be sent to 1600 Sunflower Ave., Costa Mesa, CA 92626 (or such other address as Popfly designates by notice sent pursuant to this paragraph), and shall be addressed to [CONTACT]. All notices to Client may be sent to the latest business or e-mail address associated with Client’s account.
  3. No Agency. The parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed to create a joint venture, partnership, or agency relationship between the parties in this Agreement.
  4. Non-Solicitation. A party shall not, and shall procure that its Affiliates shall not, during this Agreement and for a period of twelve (12) months from the effective date of termination of this Agreement, attempt to solicit or entice away any person who is or has been during the term of this Agreement an employee or contractor of the other party (or its Affiliates) involved in Popfly’s performance or Client’s receipt of the Services, provided that this restriction does not prohibit bona fide recruitment procedures conducted through general media advertisement not specifically directed to such persons. In addition, nothing herein shall be construed to limit Client’s ability to engage with content creators through the Platform. Both parties recognize that the damages for a breach of this Section 10.4. are difficult to measure, and that a party may incur irreparable harm requiring injunctive relief if the other party hires its employees or contractors in violation of this Section 10.4.
  5. Force Majeure. Neither party shall be liable to the other, following notice thereof, for any failure or delay in the performance of its obligations (except for required payments) for any cause that is beyond the reasonable control of such party, including, without limitation, acts of God, shortages of supplies, labor or materials, strikes and other labor disputes, storms, floods, acts of war or terrorism, failures or delays of common carriers (including, but not limited to, failures or delays in shipping Samples), third-party hacking and other criminal or malicious activities, utility brown-outs, failures of telecommunications or the Internet, and actions by a governmental authority (such as changes in government codes, ordinances, laws, rules, regulations, or restrictions) (collectively, “Force Majeure Events”). For the avoidance of doubt, Force Majeure Events do not include economic hardship, changes in market conditions, and/or insufficiency of funds, including to the extent caused by or resulting from any of the circumstances described in this Section 10.5.
  6. Waiver. If one party fails to enforce a provision of this Agreement, it shall not be precluded from enforcing the same provision at another time. To be effective any waiver must be in writing and executed by an authorized signatory of the party to be charged.
  7. Severability. If any provision of this Agreement is deemed unenforceable or invalid by law or by a court decision, the provision shall be changed and interpreted if possible to accomplish the intent of the provision within the constraints of the law. Only that provision that is deemed unenforceable or invalid, and not the entire Agreement, shall be invalidated.
  8. Assignment. Neither party may assign this Agreement (including by operation of law), in whole or in part, to any third party without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without consent to (i) an Affiliate, or (ii) a successor (by merger, consolidation, purchase of assets, reorganization or otherwise) to substantially all of the assets or business of the business unit to which this Agreement relates. Popfly may also, without notice, utilize subcontractors and agents to provide aspects of the Services, provided, however, that Popfly shall remain primarily responsible for compliance with its obligations under this Agreement.
  9. No Conflicting Terms. Popfly shall not accept, and this Agreement does not operate as an acceptance of, any different or additional terms and conditions (including in any Client purchase order or similar document), and this Agreement shall prevail over any such different or additional provisions of any Client purchase order or any other Client originated instruments.
  10. Entire Agreement; Modifications. This Agreement supersedes all previous agreements and understandings, whether oral or written, between Client and Popfly with respect to its subject matter and the use of the Services. Popfly reserves the right to modify this Agreement for any reason. Client should regularly look at this Agreement and the “Last Updated” date at the beginning of this Agreement. Popfly will use reasonable efforts to give Client notice of these modifications, such as posting notice of modifications on the web page for the Services or by emailing Client at the then-current email address associated with its account. Client agrees that it will be subject to the modified Agreement with respect to Order Forms entered into on or after the date of the modification; however, Popfly will not apply modifications to the Agreement retroactively to Order Forms entered into before the date of the modification unless Client affirmatively consents to the same. If Client does not agree to the terms of the Agreement as modified pursuant to this paragraph, Client must not enter into any new Order Forms after the “Last Updated” date. Except as otherwise expressly provided in this Section 10.10, no modifications to this Agreement or any Order Form shall be valid unless made in writing and signed by a duly authorized representative of each party. There are no third-party beneficiaries to this Agreement.
  11. Order of Precedence. In the event of any inconsistencies between this Popfly Brand Platform Subscription Terms of Use, the General Terms, and any Order Form, the conflict shall be resolved in the following decreasing order of priority: (i) the Order Form, (ii) this Popfly Brand Platform Subscription Terms of Use; and (iii) the General Terms.
  12. Press Release. Popfly may issue a press release regarding Client’s entry into this Agreement and use of the Services, the contents of which shall be subject to Client’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned. Popfly may also, without consent, refer to Client as a Client or user of the Services in marketing materials, trade shows and other promotional or industry-focused communications. Otherwise, Popfly will not use Client’s name, logos or trademarks for any publicity or promotional purpose without obtaining Client’s prior written consent.
  13. No Draftsman’s Presumption. The parties acknowledge that each party had the opportunity to engage counsel in connection with reviewing and negotiating this Agreement and that, accordingly, no draftsman’s presumption or similar rule of construction shall be applied to construe this Agreement in favor of or against either party.

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