We (the folks at POPSMASH) are on a mission to empower content creators, influencers, businesses and brands. We hope you love our products and services. These Terms of Service (“Terms”) describe our commitments to you, and your rights and responsibilities when using our services. Please read them carefully and reach out to us if you have any questions.
Terms of Service
Throughout these Terms, “you” applies to both individuals and entities that access or use our Services. If you are an individual using our Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity to the Agreement and that by using our Service(s), you are accepting the Agreement on behalf of that entity. Your Agreement is with POPSMASH Inc. We refer to POPSMASH, POPSMASH, Inc and POPSMASH Inc. collectively as “POPSMASH” or “we” throughout these Terms.
Who Has Rights Under this Agreement
- This agreement does not give any rights to any third parties.
- You cannot transfer your rights or obligations under this agreement without our consent.
- Our rights and obligations can be assigned to others. For example, this could occur if the ownership of POPSMASH changes (e.g. through merger, acquisition, or sale of assets) or by law.
You will be solely responsible and liable for any activity that occurs under your account. You are responsible for keeping your account information up-to-date and for keeping your password secure.
You are responsible for maintaining the security of your account, associated accounts (for example, connected social media accounts you may use for login) and any Service-related website, store, or other content, and you are fully responsible for all activities that occur under your account and any other actions taken in connection with our Services. You shall not share or misuse your access credentials. You must immediately notify us of any unauthorized uses of your account or of any other breach of security. We will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
When you initially log in (e.g. create a log in or log in with Facebook and connect your Instagram account) we will automatically create a POPSMASH account for you, which is required to use our services. When you create a POPSMASH account (occurs when you login, access or in any way use POPSMASH Services), we consider that to be an inquiry about our products and services, which means that we may contact you to share more details about what we have to offer. Don't worry -- if you aren't interested in learning more, you can opt out of the marketing communication, whether it's an email, phone call, text message or any other means of communication.
Minimum Age Requirements
Our Services are not directed to children. Access to and use of our Services is only for those over the age of 13 (or 16 in the European Union). If you are younger than this, you may not register for or use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 13 years of age or older (or 16 years or older in the European Union).
Responsibility of Visitors and Users
We have not reviewed, and cannot review, all of the content (such as, but not limited to, text, photo, video, audio, code, computer software, items for sale, or other materials) posted to our Services by users or anyone else (“Content”) and are not responsible for any use or effects of such Content. So, for example:
- We do not endorse any Content or represent that Content is accurate, useful, or non-harmful. Content could be offensive, indecent, or objectionable; include technical inaccuracies, typographical mistakes, or other errors; or violate or infringe the privacy, publicity rights, intellectual property rights (see our Copyright Infringement and DMCA Policy section to submit copyright complaints), or other proprietary rights of third parties.
- If you post Content, comment on a website, or otherwise make (or allow any third party to make) Content available on our Services, you are entirely responsible for the Content, and any harm resulting from, that Content or your conduct.
- We disclaim any responsibility for any harm resulting from anyone’s use, purchase, or downloading of Content. If you access or use any Content, you are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
- Any Content offered for sale through any of our Services are the seller’s sole responsibility, and you agree that you will look solely to the seller for any damages that result from your purchase or use of Content.
- We are not a party to, and will have no responsibility or liability for, any communications, transactions, interactions, or disputes between you and the provider of any Content.
- Please note that additional third party terms and conditions may apply to the downloading, copying, purchase, or use of Content.
We also have not reviewed, and cannot review, all of the material, including computer software, made available through the websites and web pages that link to, or are linked from, POPSMASH or our other Services. For example:
- We do not have any control over those websites and are not responsible for their contents or their use.
- The existence of a link to or from one of our Services does not represent or imply that we endorse such website.
- You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
- We disclaim any responsibility for any harm resulting from non-POPSMASH websites.
Fees, Payment, and Renewal
Fees for Paid Services. Some of our Services are offered for a fee, such as some POPSMASH premium membership plans, and some aditional Services (collectively, “Paid Services”). By using a Paid Service, you agree to pay the specified fees (for example, fees associated with specific features). Depending on the Paid Service, there may be one-time fees, recurring fees, follower-based fees, revenue-based fees or other fees. For recurring fees, we’ll bill or charge you for in regular automatically-renewing intervals (such as monthly, annually, or biennially), on a pre-pay basis until you cancel, which you can do at any time by contacting the relevant support team. For revenue-based fees you pay us a percentage of the revenue you generate. Revenue-based fees are ongoing.
Taxes. To the extent permitted by law, or unless explicitly stated otherwise, all fees are exclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees, or charges now in force or enacted in the future (“Taxes”). You are responsible for payment of all applicable Taxes relating to your use of our Services, your payments, or your purchases. If we are obligated to pay or collect Taxes on the Fees you’ve paid or will pay, you are responsible for such Taxes, and we may collect payment for such Taxes.
Payment. If your payment fails or if Paid Services are otherwise not paid for or paid for on time, we may immediately cancel or revoke your access to the Paid Services. If you contact your bank or credit card company to decline or reverse the charge of fees for Paid Services, we may revoke your access to our Services in general.
Automatic Renewal. To ensure uninterrupted service, recurring Paid Services are automatically renewed. This means that unless you cancel a Paid Service before the end of the applicable subscription period, it will automatically renew, and you authorize us to invoice you or use any payment mechanism we have on record for you to collect the then-applicable subscription fee (as well as any Taxes). By default, your Paid Services will be renewed for the same interval of time as your original subscription period. For example, if you purchase a POPSMASH annual plan, you will be charged each year for the following 12-month period. We may charge your account up to one month before the end of the subscription period. It is your responsibility to make sure you are checking your email (including any spam or other filters) in order to receive any reminder email we send to you in advance of renewal. The date for the automatic renewal is determined automatically based on the date of the original purchase and cannot be changed. You can view your renewal date for POPSMASH Paid Services by visiting your POPSMASH account page.
Renewal Pricing. POPSMASH pricing is based on follower counts. Your renewal priced is based on your follower count at the time of renewal. If changes to your follower count (for example, growth in number of followers) changes the plan tier you are in, your subscription will not change plan tiers until the next renewal cycle. For example, if your follower count grows significantly but you are on an annual renewal cycle, you will benefit from your current lower cost plan until your next renewal cycle.
Cancelling Automatic Renewal. You can manage and cancel your Paid Services at the respective Service’s site. For example, you can manage all of your POPSMASH plans through your POPSMASH account page. To cancel a POPSMASH plan, go to your account page then follow the instructions to cancel the subscription. You must repeat this process for each subscription you wish to cancel.
Fee Changes. We may change our fees at any time, or start charging fees for Services that were previously free. When applicable, we may give you advance notice of the fee changes. If you don’t agree with the fee changes, you must cancel your Paid Service.
Refunds. While you may cancel a Paid Service at any time, refunds are issued in our sole discretion, unless otherwise required by applicable law.
General Representation and Warranty
You represent and warrant that your use of our Services:
- Will be in strict accordance with these Terms;
- Will comply with all applicable laws and regulations (including, without limitation, all applicable laws regarding online conduct and acceptable content, privacy, data protection, the transmission of technical data exported from the United States or the country in which you reside, the use of financial services, notification and consumer protection, unfair competition, and false advertising);
- Will not use the Services for any unlawful purposes, to publish illegal content, or in furtherance of illegal activities;
- Will not infringe or misappropriate the intellectual property rights of any third party;
- Will not overburden POPSMASH’s systems, as determined by us in our sole discretion;
- Will not disclose sensitive personal information of others;
- Will not be used to send spam or bulk unsolicited messages;
- Will not interfere with, disrupt, or attack any service or network; and
- Will not be used to create, distribute, or enable material that is - or that facilitates or operates in conjunction with - malware, spyware, adware, or other malicious programs or code.
Specific Service Terms
POPSMASH Profiles, Accounts, Websites and Services
POPSMASH gives you the tools to run better giveaways, grow your following, connect with collaborators, earn more money and we would love for you to use it. A POPSMASH account also allows you to sign into some of our Services. POPSMASH’s basic service is free and we offer paid plans for advanced features.
Permissions You Give to Us. As part of our agreement, you also give us permissions that we need to provide the Services.
- We do not claim ownership of your content, but you grant us a license to use it. This does not change your rights in your content. We do not claim ownership of your content that you post on or through the Service. When you give us access to content that is covered by intellectual property rights (like posts, photos or videos) on or in connection with our Service, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of your content. You can end this license anytime by deleting your content or account. However, content will continue to appear if you shared it with others and they have not deleted it.
- Permission to use your username, profile picture, and information about your relationships and actions with accounts, ads, and sponsored content. You give us permission to show your username, profile picture, and information about your actions (such as giveaways and giveaways) or relationships (such as follows) next to or in connection with accounts, ads, offers, and other sponsored content that you follow or engage with without any compensation to you. For example, we may show that you liked a sponsored post created by a brand that has paid us to display its ads. As with actions on other content and followers of other accounts, actions on sponsored content and followers of sponsored accounts can be seen only by people who have permission to see that content or follow.
- You agree that we can download and install updates to the Service on your device(s).
License. By connecting to POPSMASH for use of POPSMASH Services, you grant POPSMASH a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt, and publish solely for the purpose of displaying, distributing, and promoting your social profile, brand, business or associated account. This license also allows POPSMASH to make any publicly-posted Content available to third parties selected by POPSMASH so that these third parties can analyze the Content and associated data (for example, giveaway performance metics) through their services. You also give other POPSMASH users permission to share your Content.
Removing Content. If you delete Content, we will use reasonable efforts to remove it from public view (or in the case of a private profile, from view by the authorized visitors) on POPSMASH, but you acknowledge that caching or other references to the Content may not be made immediately unavailable.
Prohibited Uses. By using POPSMASH, you represent and warrant that your Content and conduct do not violate the User Guidelines, Community Guidelines, Terms of Service or any pilicies and agreements for services you use with POPSMASH's Services.
HTTPS. We offer free HTTPS on all POPSMASH pages and Services by default, including those using custom domains, via Let’s Encrypt. By signing up and using a custom domain on POPSMASH, you authorize us to act on the domain name registrant’s behalf (by requesting the necessary certificates, for example) for the sole purpose of providing HTTPS on your website.
Domain Names. We work with third party registrars in order to provide domain name services when available. When you register a domain name on POPSMASH or transfer an existing domain name to POPSMASH, the policies of the respective registry apply. When you register a domain, you're presented with and agree to the relevant domain registration agreement. If you didn't make a note of it, you can look it up at any time.
Your use of your domain name is also subject to the policies of the Internet Corporation for Assigned Names and Numbers (“ICANN”). You can read about your rights and responsibilities as a domain name registrant under ICANN’s Registrar Accreditation Agreement and about domain name registration generally.
Copyright Infringement and DMCA Policy
As we ask others to respect our intellectual property rights, we respect the intellectual property rights of others. If you believe that material located on or associated with a POPSMASH product or service violates your copyright, please notify us via our contact page. We will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. We will terminate a visitor’s access to and use of the page if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of POPSMASH or others. In the case of such termination, we will have no obligation to provide a refund of any amounts previously paid to us.
The Agreement does not transfer from POPSMASH to you any POPSMASH or third party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with POPSMASH. POPSMASH, the POPSMASH logo, and all other trademarks, service marks, graphics, and logos used in connection with POPSMASH or our Services, are trademarks or registered trademarks of POPSMASH or POPSMASH’s licensors. Other trademarks, service marks, graphics, and logos used in connection with our Services may be the trademarks of other third parties. Your use of our Services grants you no right or license to reproduce or otherwise use any POPSMASH or third party trademarks.
Third Party Services
In using the Services, you may enable or use services, products, software, embeds, or applications developed by a third party or yourself (“Third Party Services”) on your website. If you use any Third Party Services, you understand that:
- Third Party Services are not vetted, endorsed, or controlled by POPSMASH.
- Any use of a Third Party Service is at your own risk, and we shall not be responsible or liable to anyone for Third Party Services.
- Your use is solely between you and the respective third party (“Third Party”) and will be governed by the Third Party’s terms and policies. It is your responsibility to review the Third Party’s terms and policies before using a Third Party Service.
- Third Party Services may not work appropriately with your website, and we may not be able to provide support for issues caused by any Third Party Services.
- If you have questions or concerns about how a Third Party Service operates, or need support, please contact the Third Party directly.
In rare cases, we may at our discretion, suspend, disable, or remove Third Party Services from your account or website.
We are constantly updating our Services and that means sometimes we have to change the legal terms under which our Services are offered. These Terms may only be modified by a written amendment signed by an authorized executive of POPSMASH, or by the posting by POPSMASH of a revised version. If you disagree with our changes, then you should stop using our Services. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the Terms (including the binding individual arbitration clause) that were in place when the dispute arose.
We may terminate your access to all or any part of our Services at any time, with or without cause, with or without notice, effective immediately. We have the right (though not the obligation) to, in our sole discretion, (i) reclaim your username or associated items due to prolonged inactivity, (ii) refuse or remove any content that, in our reasonable opinion, violates any POPSMASH policy or is in any way harmful or objectionable, (iii) ask you to make some adjustments, restrict the resources you use, or terminate your Services, if we believe your storage or bandwidth usage is out of hand and/or burdens our systems (which is rare), or (iv) terminate or deny access to and use of any of our Services to any individual or entity for any reason. We will have no obligation to provide a refund of any amounts previously paid.
If you wish to terminate the Agreement or your POPSMASH account, you may simply discontinue using our Services, or, if you are using a paid service, you may cancel at any time, subject to the Fees, Payment, and Renewal section in these Terms.
All provisions of the Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity, and limitations of liability.
Disclaimer of Warranties
Our Services are provided “as is.” POPSMASH and its suppliers and licensors hereby disclaim all warranties of any kind, express or implied, including, without limitation, the warranties of merchantability, fitness for a particular purpose and non-infringement. Neither POPSMASH, nor its suppliers and licensors, makes any warranty that our Services will be error free or that access thereto will be continuous or uninterrupted. You understand that you use our Services at your own discretion and risk.
Jurisdiction and Applicable Law
Except to the extent any applicable law provides otherwise, the Agreement and any access to or use of our Services will be governed by the laws of the state of Massachusetts, U.S.A., excluding its conflict of law provisions. The proper venue for any disputes arising out of or relating to the Agreement and any access to or use of our Services will be the state and federal courts located in Barnstable County, Massachusetts.
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under the Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in Barnstable County, Massachusetts, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce the Agreement shall be entitled to costs and attorneys’ fees.
Limitation of Liability
In no event will POPSMASH, or its suppliers, partners, or licensors, be liable with respect to any subject matter of the Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement for substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed $50 or the fees paid by you to POPSMASH under the Agreement during the twelve (12) month period prior to the cause of action, whichever is greater. POPSMASH shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
You agree to indemnify and hold harmless POPSMASH, its contractors, and its licensors, and their respective directors, officers, employees, and agents from and against any and all losses, liabilities, demands, damages, costs, claims, and expenses, including attorneys’ fees, arising out of or related to your use of our Services, including but not limited to your violation of the Agreement or any agreement with a provider of third-party services used in connection with the Services, Content that you post, and any ecommerce activities conducted through your or another user’s website.
U.S. Economic Sanctions
You expressly represent and warrant that your use of our Services and/or associated services and products is not contrary to applicable U.S. Sanctions. Such use is prohibited, and we reserve the right to terminate accounts or access of those in the event of a breach of this condition.
These Terms were originally written in English (US). We may translate these terms into other languages. In the event of a conflict between a translated version of these Terms and the English version, the English version will control.
The Agreement constitutes the entire agreement between POPSMASH and you concerning the subject matter hereof. If any part of the Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect. A waiver by either party of any term or condition of the Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. You may assign your rights under the Agreement to any party that consents to, and agrees to be bound by, its terms and conditions; POPSMASH may assign its rights under the Agreement without condition. The Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.