Contributor Terms and Conditions
As of April 20th, 2022
These Contributor Terms and Conditions (the “Terms and Conditions”) constitute a legally binding agreement by and between Popflick LLC, a Georgia limited liability company ("Popflick"), and you ("Contributor"), concerning Licensed Materials (as such term is defined below). Popflick and Contributor are referred to hereinafter individually as a “Party” and collectively as the “Parties.”
The following terms shall have the corresponding meaning set forth herein unless specifically indicated otherwise herein:
“Content” shall mean a motion picture or similar digital video file submitted to Popflick by Contributor.
“Intellectual Property Rights” shall mean all rights of authorship, all copyrights (including rights in applications or registrations), all rights of attribution and integrity and other moral rights, all rights of inventorship, all rights in patents and patent applications, all trademark rights (including rights in applications or registrations), all rights in trade secret and proprietary information, and all other intellectual property rights of any type.
“License” shall have the meaning set forth in Section III.A.
“Licensed Materials” shall mean the Trailer and the Content collectively.
“Popflick Service” shall mean collectively the service maintained by Popflick for: i) the viewing of video by consumers and related features and functionality offered to consumers; and ii) related features and functionality offered to Contributors.
“Subscriber” shall mean a third party that subscribes to the Popflick Service.
“Territory” shall have the meaning set forth in Section III.B.
“Trailer” shall mean a digital video file with a viewing time that does not exceed 90 seconds and that serves as promotional material for Content.
II. Submission and Approval
A. Contributor may from time to time submit to Popflick one or more Trailers created by Contributor. To the extent that Contributor submits such Trailers, Contributor hereby acknowledges and agrees that Popflick may review such Trailers and may determine that the Trailer indicates potential suitability of the Trailer and the related Content for the Popflick Service. In the event that Popflick communicates such potential suitability based on review of the Trailer, Contributor hereby agrees to submit the related Content to Popflick for review of such Content for possible inclusion in the Popflick Service, and in such case Popflick may review such Content and may determine that the Licensed Materials are suitable for inclusion in the Popflick Service.
B. The Parties hereby agree that these Terms and Conditions shall not be construed as creating an obligation: i) on the part of the Contributor to provide one or more Trailers and/or one or more files of Content; or ii) on the part of Popflick to review such Trailers and/or Content. The Parties further agree that to the extent Popflick reviews such Trailers and/or Content, it may accept or reject such Trailers and/or such Content in its sole discretion, for any reason or for no reason.
III. Grant of Rights
A. In the event that the Licensed Material is accepted by Popflick for inclusion in the Popflick Service, Contributor hereby grants to Popflick non-exclusive rights to publish the Licensed Material for viewing, commenting, and related usage of the Licensed Material by third parties and for related marketing and other promotional activities by Popflick (collectively the “License”). The License shall be effective as of the date of Popflick’s approval of such material, and shall thereafter remain in effect until terminated by a Party pursuant to these Terms and Conditions.
B. As a part of the submission process specified in Section II.A, Contributor may request that Licensed Materials be available for distribution only in specified countries or other jurisdictions. If such request is made by Contributor and accepted by Popflick, the License shall be limited to the countries or other jurisdictions so specified (the “Territory”). Popflick hereby represents and warrants that to the extent the License is limited to the Territory, Popflick shall implement and maintain commercially reasonable measures to prevent viewing or other usage or distribution of the Licensed Material outside of the Territory. Contributor acknowledge and agrees that such measures are subject to circumvention by third parties and that such measures cannot and do not provide complete assurance that third parties outside of the Territory do not access such Licensed Materials.
IV. Representations and Warranties
Contributor hereby represents and warrants that:
A. Contributor has full legal right, power and capacity to accept these Terms and Conditions and to submit Licensed Material to Popflick. In connection with the foregoing and not in limitation thereof, Contributor hereby represents and warrants that it has obtained formal written acknowledgement of ownership or assignment of rights from all individuals and entities involved in all aspects of the conceptualization, development, and production of the Licensed Material, including Intellectual Property rights necessary for the licensing of the Licensed Material by Contributor to third parties and for the viewing and related usage of the Licensed Material by unrelated third parties.
B. Neither the acceptance by Contributor of these Terms and Conditions, the submission of Licensed Material by Contributor, the publishing of such Licensed Material by the Popflick Service, or the viewing or other usage of such Licensed Material by third parties will violate any legal restrictions or obligations to which Contributor is subject, whether by contract, operation of law, or otherwise.
C. All information submitted by Contributor to Popflick is true, complete and accurate.
D. The Licensed Material does not and will not infringe upon the Intellectual Property Rights, privacy rights, or other legal rights of any third party, and Contributor has not received notice of any suit, claim or demand that the Licensed Material infringe the Intellectual Property Rights, privacy rights, or other legal right of any third party. In the event that Contributor receives any such notice in the future, Contributor will promptly notify Popflick of such suit, claim or demand.
E. The Licensed Material does not contain any false, misleading, or libelous material, including false or misleading information regarding mass tragedies, vaccination safety, election security, and/or election integrity.
A. Popflick agrees to pay a fee to Contributor based on the following subscriber share method. Fifty percent (50%) of all subscription revenue earned by Popflick is retained by Popflick for the development of site features, the maintenance of Popflick’s technical infrastructure, marketing costs, and administrative costs. For each Subscriber, the remaining fifty percent (50%), minus Subscriber credit card processing fees, of the quarterly subscription revenue earned by Popflick from such Subscriber will be allocated and distributed on a quarterly basis to Contributor and to various other contributors of materials viewed or otherwise accessed by such Subscriber.
B. The foregoing allocation to Contributor and other contributors of content shall be based on the downloads and views in such quarter by Subscribers of the Content submitted by Contributor relative to the total number of downloads and view by Subscribers of Content submitted either by Contributor or other contributors of content in total; provided, however, that Popflick in its sole discretion may modify such allocations from time to time to include consideration of additional factors, including: i) qualitative considerations of its choosing; and ii) quantitative considerations such as the time duration of content provided by contributors and the time duration of viewing time by Subscribers.
C. In the event that a third party viewer of the Content elects to support Contributor by means of the artist support feature included in the Popflick Service, Popflick hereby agrees to make payment to Contributor of such amounts received by Popflick and designated for support of Contributor, less ten percent (10%) of the amount received by Popflick to be withheld by Popflick as compensation for its administrative and support services.
D. If Contributor is a US resident and/or a US citizen, Contributor must submit a properly completed and executed IRS Form W-9. If Contributor is not a US resident or US citizen; i) Contributor must submit a properly completed and executed IRS Form W-8BEN; and ii) payments to Contributor may be subject to US withholding tax based on the country of residence of Contributor.
E. Payment to the Contributor of the amounts set forth in Sections V.A and V.C will be made by the fifteenth (15th) day of the month following the three months prior in which Popflick receives such funds, or on the next following business day if such day is not a business day in the State of Georgia or in the country of residence of Contributor. All payments will be made in US dollars and by a mutually agreeable payment method.
VI. Withdrawal of Content
Contributor may request removal of some or all of the Licensed Materials, in either event at its sole discretion and with or without cause, provided that such request may be made only on or after thirty (30) days after publication of the Licensed materials in the Popflick Service. Such requests shall be in writing, and Popflick agrees to remove such Content from public distribution no later than fifteen (15) days of such request. Popflick may remove some or all of the Licensed Materials at any time at its sole discretion and with or without cause.
VII. Limitation of Liability
A. Popflick is not liable for any loss suffered by the Contributor as a result of a Subscriber or any other person making use of the Licensed Materials contrary to the terms of service in effect between Popflick and such person, if any.
B. POPFLICK SHALL NOT BE LIABLE TO CONTRIBUTOR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL OR LOST PROFIT. POPFLICK’S LIABILITY TO CONTRIBUTOR, REGARDLESS OF THE LEGAL THEORY OF ANY CLAIM, SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY POPFLICK TO CONTRIBUTOR UNDER SECTION V.
VIII. Release of Liability; Indemnification
A. Contributor hereby releases Popflick from any liability or any other responsibility relating to any claims, demands or suits related to the Licensed Materials or the Contributor.
B. Contributor hereby agrees to defend, indemnify and hold harmless Popflick and its directors, officers, employees, agents, assigns, and successors-in-interest from and against any and all liability, damages, losses, claims, demands, actions, causes of action, costs (including attorneys’ fees and expenses) arising out of or relating to: (i) breach or alleged breach by Contributor of its representations, warranties or obligations hereunder; and (ii) infringement or alleged infringement by the Licensed Materials of the Intellectual Property Rights or other rights of any third party.
IX. Binding Nature; Assignment
These Terms and Conditions constitute a binding agreement between Popflick and Contributor, and shall bind the parties and their permitted heirs, executors, administrators, successors and assignees. These Terms and Conditions are personal to Contributor and may not be assigned or transferred by Contributor, whether by consent of Contributor or by operation of law. Popflick may assign these Terms and Conditions in its sole discretion, including in connection with the sale or other transfer of all or substantially all of its assets or equity interests, whether by sale, merger or otherwise.
X. Governing Law; Jurisdiction
These Terms and Conditions shall be interpreted, enforced and governed by the laws of the State of Georgia, USA, without regard to the choice of law rules of any country, state, province or other jurisdiction. The parties hereby expressly waive the applicability of the UN Convention for the International Sale of Goods. Unless Popflick elects arbitration pursuant to Section XI, all disputes relating to or regarding these Terms and Conditions or termination thereof shall be submitted to the exclusive jurisdiction of the state courts and federal courts sitting in Fulton County, Georgia, USA, and Contributor irrevocably consents to such personal jurisdiction and waives all objections thereto.
In the event of a dispute relating to or regarding these Terms and Conditions or termination thereof, Popflick may, at its sole discretion and option, cause the dispute to be resolved by means of binding arbitration before a single arbitrator pursuant to arbitration in Atlanta, Georgia, USA and pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Should Popflick elect arbitration hereunder, the decision of the arbitrator shall be final and binding.
Popflick reserves the right to amend these Terms and Conditions from time to time and at any time at its sole discretion; such amendments such be effective upon the earlier of: i) Popflick providing notice to Contributor; and ii) the publication by Popflick of the amended Terms and Conditions within the Popflick Service.
A. Construction. The headings contained in these Terms and Conditions are for reference purposes only and shall not in any way affect the meaning or interpretation hereof. All references to sections shall refer to sections of these Terms and Conditions unless otherwise indicated. Unless otherwise expressly provided, whenever the words “include”, “includes”, or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.
B. Relationship of the Parties. The Parties are independent contractors, and these Terms and Conditions do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Neither Party nor its officers, directors, employees, contractors or agents shall have the authority to create any obligation on behalf of the other Party.
C. Severability. If any term or provision of these Terms and Conditions, or any portion thereof, or the application thereof to any person(s) or circumstances shall, to any extent, be held by a court of competent jurisdiction to be invalid or unenforceable, then the remainder of these Terms and Conditions, or the application of such term or provision to persons or circumstances other than those as to which it is so judicially held to be invalid or unenforceable, shall not be affected thereby, and each term and provision of these Terms and Conditions shall be valid and be enforceable to the fullest extent permitted by law.
D. No Waiver. The failure of Popflick to seek redress for violation of or to insist upon the strict performance of any covenant or condition of these Terms and Conditions shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an original violation.
E. Entire Agreement. These Terms and Conditions constitute the entire agreement between Popflick and Contributor regarding the subject matter hereof, and supersede all previous or contemporaneous agreements, understandings, discussions or representations regarding the subject matter hereof, whether oral, electronic, or in writing.