Terms of Service


PopflyTM Creator Platform Subscription Terms of Use

Last Updated 4/25/25

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

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 CREATORS, YOU AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF YOURSELF AND, IF APPLICABLE, 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.

YOU ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 14 THAT AFFECT YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO THE PLATFORM AND SERVICES.

  1. Definitions

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

“Brand” means a brand, retailer, or merchant (including any representative of a brand, retailer or merchant) which uses the Platform to solicit Contributions.

“Creator Data” means any data, information, or material that is provided or submitted to the Services by Creator, including, without limitation, any requests, images, files, text, or any other information or material that Creator submits to the Services.

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

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

“Samples” means any products, merchandise, or other materials provided by a Brand to 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 to Creator in accordance with the terms of this Agreement.

  1. Account

You may be required to register with Popfly and create an account in order to use the Services. You agree that all registration information you give Popfly will be accurate, current, and complete. You will timely notify Popfly of any changes to any of the foregoing information. Your registration data, including any personal information, is governed by our Privacy Policy. You may not register for an account or use the Services if you are under 18.

You are responsible for controlling access to any PCs, mobile devices, or other end points that you allow to store your Services password, or on which you enable a "Remember Me" or similar functionality ("Activated Device"). Accordingly, you agree that you will be solely responsible for all activities that occur under your Services account, including the activities of any individual with whom you share an Activated Device. To protect your account, keep your password confidential. If you learn of any unauthorized use of your password, please contact Popfly at legal@popfly.com.

  1. Creator Agreements; Campaigns; Samples; Compensation; Payment
  1. Creator Agreements. Creator will be solely responsible for entering into an agreement with each Brand with which Creator engages in connection with Creator’s use of the Services (a “Creator Agreement”). As a courtesy, in connection with Creator’s access and use of the Services, Popfly may make available to Creator certain template documents that could be useful to Creator in connection with its use of the Services, including, without limitation, a template Creator Agreement (the “Template Documents”). Alternatively, Creator may choose to contract with Brands using a different form of Creator Agreement that is acceptable to Creator and the relevant Brand(s). CREATOR UNDERSTANDS AND AGREES THAT POPFLY IS NOT A PARTY TO OR RESPONSIBLE FOR ANY CREATOR AGREEMENT THAT CREATOR MAY ENTER INTO, OR FOR ANY PART’S PERFORMANCE UNDER ANY CREATOR AGREEMENT. POPFLY DISCLAIMS ALL LIABILITY WITH RESPECT TO CREATOR’S CREATOR AGREEMENTS, CREATOR’S RELATIONSHIP OR INTERACTIONS WITH BRANDS, AND ANY CONTRIBUTIONS CREATED BY CREATOR FOR BRANDS, TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN ADDITION, POPFLY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TEMPLATE DOCUMENTS. CREATOR 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. CREATOR AGREES THAT CREATOR, 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. CREATOR 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 CREATOR OR THE BRANDS WHICH ENGAGE CREATOR.
  2. Campaigns. Creators may use the Services to engage with Brands in order to review solicitations by Brands for Creators to provide Contributions to Brands for such Brand’s use in marketing campaigns, and to offer to provide such Contributions as a Brand has requested. The Brand posting a marketing campaign solely controls the information they share related to such campaign and any decision to accept a Creator’s offer to provide Contributions for such campaign. Creator and a Brand may enter into an agreement through the Services for the Creator to provide Contributions to the Brand 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.
  3. Samples. As part of the Services, Popfly may assist Brands in providing Samples to Creator. Popfly (including its subcontractors) is a bailee with respect to such Samples and is forwarding such Samples to the Creators on the applicable Brand’s behalf, and Popfly (including its subcontractors) is neither a seller nor a distributor of any Samples. Title to all Samples will at all times remain with the applicable Brand until delivered to Creator, at which time title to such Samples will pass directly from the Brand to Creator. Creator is solely responsible for Creator’s use of such Samples, including but not limited to all requirements related to truth in advertising, and acknowledges and agrees that Popfly will have no liability with respect thereto. Creator is also solely responsible for returning any samples, if requested by the Brand.
  4. Compensation and Payment. Creators retained by a Brand to provide Contributions may be compensated by such Brand in a number of ways, including monetary payments, the receipt of products, merchandise, or other materials, or a combination of both. Any compensation arrangement is determined by the Brand that organized a marketing campaign and is communicated to the Creator via the description of such marketing campaign. Any payment terms shall be set forth in the applicable Creator Agreement. For the avoidance of doubt, Popfly will not owe Creator any compensation in relation to Creator’s use of the Services, provision of Contributions to a Brand, or for any other purpose contemplated under this Agreement. Creator agrees that Popfly has no responsibility or liability with respect to the payment of any such compensation, and Creator shall look solely to the relevant Brand to collect any such compensation.
  5. Taxes. Creator acknowledges and agrees that Popfly will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes (including but not limited to any such taxes payable with respect to compensation or Samples received by Creator from a Brand), making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on Creator’s behalf under this Agreement. Creator shall be responsible for, and shall indemnify Popfly against, all such taxes or contributions, including penalties and interest.
  1. License Grant and Restrictions
  1. Licenses
  1. Services. Subject to the terms and limitations set forth in this Agreement, Popfly hereby grants to Creator a limited, non-exclusive, revocable, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable license to access and use the Platform via the internet solely for Creator’s internal business purposes.
  2. Creator Data. Creator 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, host, reformat, store, transmit, maintain and publicly display the Creator Data as necessary to provide the Services to Creator.
  3. Contributions. To the extent that Creator owns Contributions, Creator hereby grants to Popfly a irrevocable, perpetual, non-exclusive, transferable, sublicensable, royalty-free, fully paid, worldwide license to host, use, copy, reproduce, disclose, publish, broadcast, retitle, archive, store, cache, publicly perform, publicly display, reformat, translate, transmit, excerpt (in whole or in part), and distribute the Contributions in connection with providing, advertising and/or promoting the Platform and the Services.
  1. Restrictions. You may not reproduce, prepare derivative works based on, disclose, publish, distribute, rent, lease, or modify the Platform or any part thereof. You may not reverse engineer, decompile, translate, adapt, or disassemble the Platform or Services. You may not use the Platform or Services in a manner not contemplated by this Agreement. You may not copy any content from or scrape the Platform, the Services, or any related software. You may not use the Platform or Services to (i) violate any law or a third-party’s rights; (ii) submit excessive or unsolicited commercial messages or spam any users; (iii) transmit malicious content or viruses, including the introduction of malicious content or viruses into the Platform or Services; (iv) solicit other people’s login information, credit card numbers, or other sensitive information; (v) harass or bully other users; or (vi) host or transmit content that is hate speech, offensive, threatening or pornographic, or that incites violence or that contains nudity or graphic or gratuitous violence. You agree not to remove or obliterate any copyright, trademark, or other proprietary rights notices from the Platform or Services. You also agree not to permit any third party acting on your behalf to engage in any of prohibited activities under this Section 4.2. Popfly reserves the right, but is not obligated to, monitor your use of the Services for violations of this Agreement. Popfly may, in its sole discretion, may immediately remove or disable, with or without notice to you, any content 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.
  2. Contributions. You hereby represent and warrant to Popfly that, with regards to any Contributions, or any other materials, you upload to the Platform (collectively, “Uploads”), you (i) are the creator or owner, or otherwise have the necessary licenses, rights, consents, releases, and permissions to use and to authorize Popfly to use Uploads in any manner contemplated by this Agreement, and (ii) Uploads do not violate any applicable law, regulation, or rule, and do not infringe any intellectual property, publicity, privacy or other rights of any third party.
  1. Social Media

As part of the functionality of the Services, you may be able to link your Popfly account with your account on certain social media platform providers, such as Facebook, Instagram, or TikTok (each, a “Social Media Account”) by either: (1) providing your Social Media Account login information through the Services; or (2) allowing Popfly to access your Social Media Account, as is permitted under the applicable terms and conditions that govern your use of each Social Media Account. You represent and warrant to Popfly that (i) you are have all necessary rights and permissions to disclose your Social Media Account login information to Popfly and/or grant Popfly access to your Social Media Account and that doing so will not breach any of the terms and conditions that govern your use of the applicable Social Media Account, (ii) and such disclosure will not obligate Popfly to pay any fees or subject Popfly to any usage limitations imposed by the third-party service provider of the Social Media Account. By granting Popfly access to any Social Media Accounts, you understand and agree that (a) Popfly may access, make available, and store (if applicable) any content that you have provided to and stored in your Social Media Account (the "Social Media Content") in order to make such Social Media Content available on and through the Services via your Popfly account, including without limitation any friend lists, and (b) Popfly may submit to and receive from your Social Media Account additional information, to the extent you are notified of such submission or receipt at the time you link your Popfly account with the Social Media Account. Depending on the Social Media Accounts you elect to link, and subject to the privacy settings that you have set in such Social Media Accounts, personally identifiable information that you post to your Social Media Accounts may be available on and through your Popfly account on the Services. Please note that if a Social Media Account or associated service becomes unavailable or our access to such Social Media Account is terminated by the third-party service provider, then Social Media Content may no longer be available on and through the Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR SOCIAL MEDIA ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS. Popfly makes no effort to review any Social Media Content for any purpose, including but not limited to, for accuracy, legality, or non-infringement, and Popfly is not responsible for any Social Media Content. You acknowledge and agree that Popfly may access your email address book associated with a Social Media Account and your contacts list stored on your mobile device or tablet computer solely for purposes of identifying and informing you of those contacts who have also registered to use the Services. You will have the ability to disable the connection between your Popfly account on the Services and your Social Media Accounts at any time, and may do so by contacting Popfly by email at legal@popfly.com or through your account settings (if applicable). Popfly will attempt to delete any information stored on Popfly’s servers that was obtained through such Social Media Account, except the username and profile picture that become associated with your Popfly account.

The link between your Social Media Account and Popfly account is established by Phyllo, and is subject to Phyllo’s End User Agreement and Privacy Policy. You understand and agree that Popfly is not a party and shall have no liability related to such agreements or to Phyllo’s links or other services.

  1. Title
  1. You acknowledge and agree that the Platform and Services are proprietary to Popfly, its affiliates or licensors, and are protected under copyright law, trade secret law, patent law, and laws governing confidential information. You shall maintain the confidentiality of the Platform, Services, and any nonpublic information contained within the Platform and/or Services, irrespective of whether such information is labeled or marked with any proprietary legend or notice indicating its confidential nature. Popfly retains all rights, title, and interest in and to the Platform and Services, including (without limitation) all applicable intellectual property rights, as well as all modifications, enhancements, and derivative works thereof. This Agreement does not convey any title or interest in or to the Platform or Services to you, but only grants a limited right of use that is revocable in accordance with the terms of this Agreement. Popfly reserves all worldwide rights not expressly granted under this Agreement. All feedback, suggestions, improvements and similar information relating to the Platform or Services, or Popfly’s other products and services, provided by you shall be the sole property of Popfly, which may freely use them without any obligation to obtain consent or pay compensation.
  2. Assignment of all 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 4.1(c) above.
  1. Confidentiality

“Confidential Information” means all information disclosed by Popfly to you, whether orally or in writing, or otherwise disclosed to or obtained by you in connection with this Agreement and/or with the Platform or Services. Confidential Information includes information you receive from Brands or other third parties. The Platform and Services, and all information related thereto, are the Confidential Information of Popfly. Except as necessary to perform your obligations or exercise your rights under this Agreement, you shall not (i) use Confidential Information, or (ii) disclose Confidential Information to any third party, except your authorized employees and contractors (as applicable) who are bound by confidentiality agreements with terms no less restrictive than those of this Section 7 and who need to use or have access to the Confidential Information for the purposes contemplated by this Agreement. You shall exercise the same degree of care with Confidential Information as you exercise with your own confidential and proprietary information, and in no event less than a reasonable degree of care, and shall inform any authorized employees and contractors having access to Confidential Information of its confidential nature. You will be liable for the acts and omissions of any employees and/or contractors who have access to Confidential Information. Except for personal information protected by applicable law, Confidential Information shall not include any information to the extent that you can reasonably demonstrate, by contemporaneous written evidence, that such information (a) is or becomes part of the public domain, other than as a result of the actions of you or, if applicable, your employees or contractors, (b) was already rightfully known to you as of the time it is disclosed to or obtained by you, or (c) is subsequently learned from a third party not under a confidentiality obligation to Popfly. You may disclose Confidential Information if disclosure is reasonably necessary in your opinion to (i) comply with legal or administrative process (including to, civil and criminal subpoenas, court orders or other compulsory disclosures); or (ii) enforce this Agreement. Disclosure is permitted pursuant to this Section 7 provided you give Popfly prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Popfly’s cost, if Popfly wishes to contest the disclosure.

  1. Disclaimers

EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN, THE PLATFORM IS LICENSED AND PROVIDED SOLELY ON AN “AS IS” AND “WITH ALL FAULTS” BASIS, AND POPFLY, ITS AFFILIATED COMPANIES AND ANY THIRD PARTY SUPPLIERS AND LICENSORS HEREBY EXPRESSLY DISCLAIM, AND YOU EXPRESSLY WAIVE, RELEASE AND RENOUNCE, ALL WARRANTIES ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO: ANY IMPLIED WARRANTY OF ACCURACY, MERCHANTABILITY, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, LOSS OF DATA, OR FITNESS FOR A PARTICULAR PURPOSE; ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE; ANY WARRANTY OF TITLE OR NON-INFRINGEMENT; AND, ANY OTHER WARRANTY ARISING UNDER ANY THEORY OF LAW, INCLUDING TORT, NEGLIGENCE, STRICT LIABILITY, CONTRACT OR OTHER LEGAL OR EQUITABLE THEORY. POPFLY MAKES NO COMMITMENTS ABOUT THE DATA OR CONTENT WITHIN THE SERVICES. ADDITIONALLY, POPFLY SHALL HAVE NO LIABILITY WHATSOEVER ARISING FROM ANY THIRD PARTY SOFTWARE OR COMPONENTS. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING SUITABILITY FOR USE, SHALL BE DEEMED TO BE A WARRANTY BY POPFLY OR ANY OF ITS AFFILIATES OR THIRD-PARTY SUPPLIERS. POPFLY DOES NOT WARRANT THAT THE SERVICES IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION

  1. Limitation Of Liability

UNDER NO CIRCUMSTANCES SHALL POPFLY, ITS AFFILIATED COMPANIES, OR ITS THIRD PARTY SUPPLIERS OR LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTIES FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING ANY LOSS OR DAMAGE CAUSED BY THE SERVICES; ANY PARTIAL OR TOTAL FAILURE OF THE SERVICES; LOST PROFITS, LOSS OF DATA, LOSS OF BUSINESS, LOSS OF GOODWILL, OR LOSS OF USE OF EQUIPMENT OR SERVICES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY ASPECT OF THE SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT POPFLY, ITS AFFILIATES OR ITS THIRD PARTY SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL POPFLY’S CUMULATIVE LIABILITY TO YOU OR TO ANY OTHER PARTY FOR ANY LOSSES OR DAMAGES RESULTING FROM ANY CLAIMS, LAWSUITS, DEMANDS, OR ACTIONS ARISING FROM OR RELATING TO THIS AGREEMENT EXCEED $500 USD.

  1. Indemnification

You agree to defend, indemnify and hold harmless Popfly and its affiliated companies, and its and their respective officers, directors, shareholders, members, employees, agents and representatives from and against all out-of-pocket costs, damages, losses, judgments, fines, and expenses (including reasonable attorneys’ fees) (collectively, “Out-of-Pocket Costs”) arising from your breach of this Agreement, your use of the Services, or any third-party demand, claim or proceeding (each of the foregoing, a "Claim") arising from or in connection with (i) the Contributions, (ii) the Creator Data, (iii) your receipt, or failure to receive, and use of, Samples, and (iv) your use of the Services. Popfly will promptly provide written notice to you of any Claim for which it seeks indemnification under this Agreement and you shall assume the defense thereof; provided, however, that failure of the Popfly to provide such notice will not release you from any of your indemnity obligations except to the extent that your ability to defend such Claim is materially prejudiced by such delay. You shall not settle or compromise any such Claim without the full release of Popfly from all liabilities and obligations associated with the claim except for any obligations to which Popfly has consented to in writing. Additionally, you shall not admit liability or wrongdoing, or take any action that imposes any obligation on Popfly (including the payment of any amount), on behalf of Popfly without Popfly’s prior written consent in each instance. Popfly has the right to participate, at its own expense, in the defense of any Claim covered under this provision with counsel of its own choosing.

  1. Termination
  1. Popfly reserves the right, in its sole discretion, to restrict, suspend, or terminate this Agreement and your access to all or any part of the Services at any time and for any reason without prior notice or liability. Popfly reserves the right to change, suspend, or discontinue all or any part of the Services at any time without prior notice or liability.
  2. In addition to those provisions which by their nature are intended to survive any termination or expiration of this Agreement (including this Section 11.2), Sections 4.2, 4.3, 6-10, 12, and 13 of this Agreement shall specifically survive such termination or expiration
  1. Compliance with Law

You agree to use the Services in accordance with applicable United States laws, the applicable laws of the jurisdiction in which you reside, and the applicable laws of the jurisdiction where the Services are used 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, foreign trade control laws and regulations, copyright laws and other intellectual property laws. The Services may be subject to export and other foreign trade controls that restrict resale and/or transfers to other countries and parties. By accepting the terms of this Agreement, you acknowledge that you understand that the Services may be subject to such controls, including, but not limited to, the Export Administration Regulations and/or the foreign trade control regulations of the Treasury Department of the United States.

  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. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement.
  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 delivery 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 Creator may be sent to the latest business or e-mail address associated with Creator’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. Force Majeure. In no event will Popfly be liable for any unavailability of the Platform or other breach by Popfly of this License Agreement to the extent caused by any delay or failure of performance resulting from any cause beyond Popfly’s reasonable control, including but not limited to any strike, lockout, earthquake, hurricane, flood, fire, or other acts of God or nature, war, rebellion, civil disorders, laws, regulations, acts of civil or military authorities (including the denial or cancellation of any necessary license), epidemics, pandemics, and other public health emergencies, criminal or malicious acts of third parties, unavailability of materials, carriers or communications facilities, and Internet and network disruptions (collectively, a "Force Majeure Event").
  5. 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.
  6. 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.
  7. Assignment. You may not assign this Agreement (including by operation of law), in whole or in part, to any third party or agency without the prior written consent of Popfly. Popfly may freely assign this Agreement, in whole or in part, without your prior consent. 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.
  8. No Conflicting Terms. Popfly shall not accept, and this Agreement does not operate as an acceptance of, any different or additional terms and conditions, and this Agreement shall prevail over any such different or additional provisions, of any Creator order or any other Creator originated instruments.
  9. Entire Agreement; Modifications. This Agreement supersedes all previous agreements and understandings, whether oral or written, between Creator 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. Creator should regularly look at this Agreement and the “Last Updated” date at the beginning of this Agreement. Popfly will use reasonable efforts to give Creator notice of these modifications, such as posting notice of modifications on the web page for the Services or by emailing Creator at the then-current email address associated with its account. If Creator does not agree to the terms of the Agreement as modified pursuant to this paragraph, Creator must immediately cease all access to and use of the Services. Except as otherwise expressly provided in this Section 13.9, no modifications to this Agreement 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.
  10. Order of Precedence. In the event of any inconsistencies between this Popfly Creator Platform Subscription Terms of Use and the General Terms, this Creator Platform Subscription Terms of Use shall govern with respect to the subject matter in conflict.
  11. 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.
  1. Binding Arbitration

Without limiting your waiver and release in Section 8, you agree to the following:

  1. Purpose. Any and all Disputes (as defined below) involving you and Popfly will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 14 (the "Arbitration Provision") shall be broadly interpreted. Notwithstanding anything to the contrary in this Agreement, this Section 11 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.
  2. Definitions. The term "Dispute" means any claim or controversy related to the Platform or Services, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this Agreement or any prior agreement; (3) claims that arise after the expiration or termination of this Agreement; and (4) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class. As used in this Arbitration Provision, "Popfly" means Popfly and any of its predecessors, successors, assigns, parents, subsidiaries and affiliated companies and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of your access to the Platform or Services.
  3. Initiation of Arbitration Proceeding/Selection of Arbitrator. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc., (“JAMS”) by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Popfly by mail to 1600 Sunflower Ave., Costa Mesa, CA 92626, U.S.A.
  4. Right to Sue in Small Claims Court. Notwithstanding anything in this Arbitration Provision to the contrary, either you or Popfly may bring an individual action in a small claims court in the area where you access the Services if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
  5. Arbitration Procedures. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify Popfly about your Dispute. You can obtain the JAMS Rules from the JAMS by visiting its website (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless you and Popfly agree otherwise, any arbitration hearing will take place in Wilmington, Delaware. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
  6. Waiver of Class Actions and Collective Relief. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS OR USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
  7. Arbitration Fees and Costs. The payment of the JAMS fees and costs will be governed by the JAMS Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, Popfly will pay all fees and costs that it is required by law to pay.
  8. Severability and Waiver of Jury Trial. If any part of Section 14.6 of this Arbitration Provision is found to be illegal or unenforceable, the entire Arbitration Provision will be unenforceable and the Dispute will be decided by a court. WHETHER IN COURT OR IN ARBITRATION, YOU AND POPFLY AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY TO THE FULLEST EXTENT ALLOWED BY LAW. If any other clause in this Arbitration Provision is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision and the remainder of this Arbitration Provision will be given full force and effect.
  9. Continuation. This Arbitration Provision will survive the termination or expiration of this Agreement.

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