Publisher Agreement

POPMARKER PUBLISHER AGREEMENT
Latest Revision: December 24, 2015

PLEASE READ VERY CAREFULLY THESE TERMS OF SERVICE BEFORE USING POPMARKER. USING POPMARKER INDICATES THAT YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, PLEASE DO NOT USE POPMARKER.

This Agreement (this "Agreement") is between You (either an individual or an entity You hereby represent that You have the authority to bind to this Agreement) and PopMarker. ("PopMarker"). You agree and undertake to regularly visit PopMarker.com and review this Agreement, as modified by PopMarker from time to time. If You choose not to be bound by this Agreement and/or any changes to this Agreement, then You agree to immediately cease using the Service (defined below). PopMarker reserves the right to investigate freely any activity that may violate this Agreement and any engagement in any activity prohibited by this Agreement.

PopMarker's Service
PopMarker allows You, through providing certain JavaScript and other technology including PopMarker's applications, to integrate part of its service into Your website(s) (individually and collectively, the "Site") for the purpose of adding and editing PopMarker Pins to Publisher Content ("PopMarker Pins") as well as monetizing the Site by using images originated by advertisers and PopMarker Pins by PopMarker (the "Service"). Your access to the Service is subject to the terms and conditions set forth in this Agreement. You acknowledge and agree that PopMarker may index the Site and that PopMarker may "fingerprint" content, including copying and retaining copies of Publisher Content (defined below). You also acknowledge and agree that PopMarker may be added to that Publisher Content via the PopMarker Software. For purposes of this Agreement, "Publisher Content" means, collectively, content, materials, photographs, videos and images owned or licensed by You and/or that otherwise appear on or in connection with the Site.

For the DMCA
PopMarker respects others’ intellectual property and requires same from all our users. We will respond to notices of alleged copyright infringement if they comply with the law and are properly provided to us. Such notices should be reported using our DMCA Process. We reserve the right to delete or disable content alleged to be infringing and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement on the Services is:

Copyright Agent
PopMarker Inc.
29 Continental Place
Glen Cove, NY 11542


Trademark:

These terms do not grant you any right, title, or interest in the Services, Software, or the content in the Services. While we appreciate it when users send us feedback, please be aware that we may use any feedback, comments, or suggestions you send us or post in our forums without any obligation to you. The Software and other technology we use to provide the Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. These Terms do not grant you any rights to use the PopMarker trademarks, logos, domain names, or other brand features.
 
Patents / Revocation of license
The licenses granted for use of the PopMarker website and intellectual property associated therewith are restricted to use with the PopMarker services via websites hosted by PopMarker only.  Such a license is granted to account holders on the PopMarker website only, and only when the account is in good standing.  No additional rights or licenses will be implied from the distribution or licensing of PopMarker software under this License. No patent, copyright, or trademark license is granted for any code that a customer has removed from the PopMarker website or servers; or for infringements caused by: (i) Your and any other third party’s modifications of PopMarker software, or (ii) the combination of its customers with other software; or under Patent Claims infringed by Covered Software in the absence of its Contributions.  A law suit or threat of law suit to PopMarker will immediately cancel all licenses to use PopMarker code and services.  Continued use thereof shall constitute a breach of license and may also constitute patent, trademark, or copyright infringement.


Publisher Acknowledgements
You hereby acknowledge that You are solely liable for the Site, including without limitation: (i) that you have all applicable rights to use and exploit all Publisher Content, (ii) maintenance and operation of the Site, (iii) proper implementation of PopMarker's specifications, and (iv) adherence to the terms and conditions of this Agreement and any of PopMarker's usage guidelines, which are incorporated herein by reference and which may be adopted or revised by PopMarker from time to time. By using the Service with any Publisher Content you hereby represent and warrant that You have the right to do so.
During the term of this agreement, through Your use of the Service, You may access PopMarker Pined content via the Service and use such PopMarker Pined on the Site. You understand that when using the Service, you will be exposed to Content from a variety of sources, and that PopMarker is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such Content. PopMarker and its licensors reserve all rights not expressly granted in and to the Service and the Content.

PopMarker is not responsible for anything related to the Site or Publisher Content, including without limitation, obtaining any necessary rights in or to upload, download and/or use any photographs, images, video or other content on the Site. By using any content with and/or in connection with the Service, You hereby grant PopMarker the right to republish and redistribute such content without limitation.
You acknowledge that You may also receive PopMarker Pins automatically when a published image matches an image of a PopMarker advertiser. PopMarker is not obligated to provide notice to You in the event that any PopMarker Pins is not properly displayed to the Site's viewers.

PopMarker Guidelines
PopMarker may choose in its sole discretion how You use the Service, including without limitation Your use of the Service with respect to Publisher Content, website design, and functionality that You are not permitted to display, host, use, employ, or prominently and directly link to, on any Site where PopMarker Pins and/or PopMarker technology is used. You may not place PopMarker Pins on any content or use any PopMarker code on any Site containing any form of content protected by United States or international intellectual property laws unless You possess all necessary legal rights or licenses to use, display, alter, modify, and display such content and/or such Site.
You may not place any PopMarker Pins on any Publisher Content or use any PopMarker code on any Site and/or image that displays, hosts, uses, or prominently and directly links to any form of content, actual or simulated, that is, or is described, advertised, or suggested to be:

  • Pornographic;
  • Graphically violent, particularly involving cruelty to humans or animals;
  • Child abuse or molestation;
  • Advocating or depicting racist, anti-Semitic, homophobic, or misogynistic acts, or hate crime;
  • Sales of illicit drugs, prescription medication, alcohol, and tobacco related products;
  • Sales of weapons;
  • Sales of counterfeit or bootleg products, "warez" or pirated file downloads;
  • Software for hacking computer systems or networks, or accessing files without necessary passwords;
  • Academic cheating or plagiarism services;
  • Gambling or casino-related content; or
  • Programs compensating users for clicking ads or using websites, or affiliate programs that generate referral fees, but present no original content.
  • You may not place PopMarker Pins on any Publisher Content or use any PopMarker code on any Site that uses, employs, contains, or includes:
  • Excessive, repetitive, or irrelevant keywords or other metadata in its code or in the text of its webpages;
  • Hidden text or hidden links;
  • "Doorway" pages created just for search engines, or other "cookie-cutter" pages without original content;
  • Text, metadata, or functions designed solely to improve a Site's search engine ranking or page-rank;
  • Text or functions designed solely to induce visitors to click on advertisements;
  • Advertising as its only contents; or
  • Anything that is illegal, promotes illegal activity, or infringes on the legal rights of others.
  • You may not place PopMarker Pins on any Publisher Content or use any PopMarker code on any Site that: 
  • Changes user preferences, circumvents user privacy controls, or respawns cookies or other tracking tools;
  • Redirects users to websites that they have not chosen to visit;
  • Includes malware, automatically generates bookmarks or initiates downloads, or contains pop-ups or pop-unders that interfere with Site navigation; or
  • Disrespects other sites' crawling or indexing preferences, or does not follow the direction of other sites' robots.txt files.

 

Prohibited Uses
You shall not, and shall not authorize or encourage any third party to: (i) directly or indirectly generate queries, impressions, or clicks through any automated, deceptive, fraudulent, or other invalid means; (ii) edit or modify any PopMarker pin or ad units that you have not created, or obscure, or minimize any PopMarker Pin in any way; (iii) or engage in any action or practice that reflects poorly on PopMarker or otherwise disparages or devalues PopMarker's reputation or goodwill or that violates this Agreement. You acknowledge that any attempted participation or violation of any of the foregoing is a material breach of this Agreement, and in PopMarker's sole discretion, can result in forfeiture of any amounts that would have been due to You pursuant to this Agreement, and that PopMarker reserves the right to pursue any and all applicable legal and equitable remedies against You, including without limitation an immediate termination of this Agreement, and the pursuit of all available civil and criminal remedies.

Monitor and Inactivation
PopMarker may, but is not required to, monitor Publisher's traffic and/or conduct for fraud. If fraud is suspected or detected, Publisher's account will be made inactive pending further investigation, to the extent that further investigation is necessary. Fraudulent traffic includes but is not limited to, click-through or conversion rates that are much higher than industry averages and where solid justification for such higher click-through or conversion rates is not evident to the reasonable satisfaction of PopMarker; click or lead generation programs generating clicks or leads with no indication by site traffic that it can sustain the clicks or leads reported; fraudulent leads as determined and reported by Advertisers; use of any incentives to procure clicks or leads; leads obtained other than through intended consumer action without prior written approval of PopMarker. Other fraudulent conduct includes, but is not limited to pre-population of forms or mechanisms not approved by PopMarker; use of sites in co-registration campaigns, sequential promotion or registration sites, unless approved by PopMarker; use of phone books or similar such compilations of personal data, to complete lead generation forms; use of fake redirects, automated software, proxy servers and/or other mechanisms, actions and conduct deemed by PopMarker to generate falsified, sham or illegitimate Events. If PopMarker, in its sole and reasonable discretion, determines that Publisher has engaged in fraudulent traffic generation or other fraudulent conduct, Publisher shall forfeit its entire commission for all Programs and its account with PopMarker shall be terminated. In addition, in the event that Publisher has already received payment for fraudulent activities, PopMarker reserves the right to seek credit or remedy from future earnings or to demand re-imbursement from Publisher which Publisher shall make within five (5) business days of such demand.

All forms of "Non-Human generated" & "Human traffic Fraud" is strictly prohibited. PopMarker Will withhold all payment from publishers for all "Non-Human generated" & "Human traffic Fraud" and refund all attributed revenue back to our advertisers. 
 
In the event that "Non-Human generated" & "Human traffic Fraud" constitutes 65% or more of publisher's traffic, PopMarker may with-hold all due payments payble to publisher and request publisher to refund all payments made within previous 6 months. Additionally Publisher may be liable for damages caused to PopMarker due to "Non-Human generated" & "Human traffic Fraud" up to the amount of $250,000 for every 30 days period of activity where the fraudulent traffic constituted more then 65% of publisher's traffic. 


Termination
Either party may discontinue the Service or terminate this Agreement at any time, with or without cause. You may terminate this Agreement only by uninstalling and removing the JavaScript and any other technology provided to You by PopMarker. PopMarker may and reserves the right to terminate this Agreement by turning off its link to the Site and Your "Site ID" for any reason, including without limitation, Your violation of the terms of this Agreement. Upon termination of this Agreement for any reason, Your right to use the Service shall immediately cease. The following Sections of this Agreement shall survive termination of this Agreement: Termination; Confidentiality; No Guarantee and Compliance with Laws; Intellectual Property Rights; Third-Party Links, Sites and Services; Indemnity; Disclaimers; Limitation of Liability; Arbitration; Governing Law; Assignment; Export Control; Entire Agreement/Severability; and No Waiver.

Confidentiality
As used herein, "PopMarker Confidential Information" includes without limitation: (a) all PopMarker software, technology, programming, specifications, materials, guidelines, and documentation relating to PopMarker's products, services and/or business practices; and (b) any referral fee information, click-through rates, or other statistics and/or reports relating to Site performance or this Agreement. PopMarker Confidential Information does not include information that has become publicly known through no breach by You or PopMarker, or information that has been (i) independently developed without access to PopMarker Confidential Information, as evidenced in writing; (ii) rightfully received by You from a third party; or (iii) required to be disclosed by law or by a governmental authority, subject to the conditions herein.
You acknowledge that (i) the disclosure of any PopMarker Confidential Information, or any information which at law or equity ought to remain confidential, will immediately cause PopMarker continuing irreparable injury that would not adequately be compensable in damages at law, and (ii) PopMarker shall be entitled to immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies that may be available. As a result, You hereby consent to PopMarker obtaining of such injunctive relief, including without limitation through a temporary restraining order or preliminary injunction. If You are compelled by law to disclose any PopMarker Confidential Information, You shall provide the PopMarker with prior notice of such compelled disclosure, to the extent legally permitted, and give PopMarker reasonable assistance if it elects to contest the disclosure.

No Guarantee and Compliance with Laws
PopMarker makes no guarantee, representation or warranty regarding if, or in what amounts, PopMarker Pins may from time to time generate revenue though a Site or any portions thereof. Referral Fees will be generated pursuant to Section "Payment" below, or any payment will otherwise to be made to You under this Agreement. You are solely responsible for and will ensure that Your use of the Service complies with all applicable laws. PopMarker assumes no responsibility to determine whether Your use of the Service on the Site or the images displayed therein violates any third party intellectual property rights, applicable laws, or privacy rights.
PopMarker does not guarantee the Service will be operable at all times or during any down time (i) caused by outages to any public Internet backbones, networks or servers, (ii) caused by any failures of Your equipment, systems or local access services, (iii) for previously scheduled maintenance or (iv) relating to events beyond PopMarker's (or its wholly owned subsidiaries') control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where PopMarker (or its wholly owned subsidiaries) or Your servers are located or co-located.
PopMarker Beta Service
PopMarker may provide to You certain "Beta" releases of the Service. To the fullest extent permitted by law, such Beta releases are provided to You by PopMarker "AS IS" and You use them at Your option and risk. For avoidance of doubt, the terms, conditions, and obligations specified herein for the Service shall apply to any Beta releases.
Notwithstanding the foregoing, in the event You are using a Beta version of the Service, as described below, You shall not disclose any information related to such Beta version, including without limitation Your thoughts and impressions of the Beta version, any description of the functionality of the Beta version, or that You have entered into this Agreement for the provision of such Beta version.

Payment
You shall receive a payment equal to the percentage of Referral Fees (defined below) stated in Your "PopMarker Dashboard" that shall be based on the then current Rate Appendix, which PopMarker will provide to You separately and that PopMarker may update from time to time in its sole discretion. "Referral Fees" means the amount of cash fees actually received by PopMarker based on PopMarker's agreement with the applicable advertiser(s), and after deducting fees paid to any relevant independent contractors who contributed to enabling the transaction(s), in each case as determined by PopMarker in its sole discretion.
Unless otherwise agreed to by the parties in writing (including by email), payments to You shall be sent by PopMarker by the end of the following calendar month, if Your earned balance is $100 or more. In the event this Agreement is terminated, PopMarker shall pay Your earned balance to You within ninety (90) days after the end of the calendar month in which this Agreement is terminated. In no event, however, shall PopMarker make payments for any earned balance less than one hundred US dollars ($100).
Notwithstanding the foregoing, PopMarker shall not be liable for any payment based on any breach of this Agreement by You. PopMarker reserves the right to withhold payment or charge back Your account due to any breach of this Agreement by You, pending PopMarker's reasonable investigation of any of the foregoing or any breach of this Agreement by You, or in the event that any advertiser defaults on payment to PopMarker.
To ensure proper payment, You are solely responsible for providing and maintaining accurate contact and payment information associated with Your account. For U.S. taxpayers, this information includes without limitation a valid U.S. tax identification number and a fully- completed Form W-9. For non-U.S. taxpayers, this information includes without limitation either a signed certification that the taxpayer does not have U.S. Activities or a fully-completed Form W-8 or other form, which may require a valid U.S. tax identification number, as required by the U.S. tax authorities. You agree to pay all applicable taxes or charges imposed by any government entity in connection with Your participation in the program contemplated by this Agreement. PopMarker may change its pricing, revenue sharing, or payment structure at any time.
If You dispute any payment made under this Agreement, You must notify PopMarker in writing within fifteen (15) days of any such payment; failure to so notify PopMarker shall result in the waiver by You of any claim relating to any such disputed payment. Payment shall be calculated and any dispute shall be resolved solely based on records maintained by PopMarker.

Publicity
You agree that PopMarker may use Your name, logo, and other trademarks in presentations, marketing materials, customer lists, financial reports, and website listings of customers for the purpose of identifying You as a PopMarker publisher.
Representations and Warranties
You represent and warrant that (a) all of the information You provide to PopMarker in connection with this Agreement is correct and current; (b) You are the owner of the Site or that You are legally authorized to act on behalf of the owner of the Site for the purposes of this Agreement; (c) You have all necessary right, power, and authority to enter into this Agreement and to perform the acts required of You hereunder, including all necessary rights and authority for the use of all Publisher Content as contemplated under this Agreement; and (d) You have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in Your performance of any acts hereunder. You further represent and warrant that the Site and any Publisher Content: (i) complies with all applicable laws, statutes, ordinances, and regulations; (ii) does not breach any duty toward or rights of any person or entity including without limitation rights of intellectual property, publicity, or privacy, or rights or duties under consumer protection, product liability, tort, or contract theories; and (iii) does not violate any "PopMarker Guidelines" set forth above.

Intellectual Property Rights
You expressly represent and PopMarker acknowledges Your representation that You own all right, title, and interest, including without limitation all Intellectual Property Rights (defined below), in or to the Site and all Publisher Content, and that PopMarker shall not acquire any right, title, or interest in or to the Site or any Publisher Content except as expressly set forth in this Agreement. You acknowledge that PopMarker owns all right, title, and interest, including without limitation all Intellectual Property Rights (defined below), in and to the Service and any data obtained through the Service, and that You will not acquire any right, title, or interest, including without limitation all Intellectual Property Rights (defined below), in or to the Service or such data except as expressly set forth in this Agreement. You will not reproduce, duplicate, copy, sell, resell, exploit for any commercial purposes other than those specifically set forth herein, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service or any documentation provided by PopMarker, or create or attempt to create a substitute or similar service or product through use of or access to the Service or proprietary information related thereto. You will not remove, obscure, or alter PopMarker's copyright notice, trademark notice, patent notice, trademarks, logos, or other proprietary rights notices affixed to or contained within the Service or documentation. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights.

Privacy and Security
PopMarker cares about the privacy and security of PopMarker's users. You understand that by using the Service You consent to the collection, use and disclosure of Your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have Your Personally Identifiable Information collected, used, transferred to and processed in the United States. While we work to protect the security of Your account, PopMarker cannot guarantee that unauthorized third parties will not be able to defeat our security measures. You acknowledge that You provide Your information at Your own risk.
Third-party Links, Sites and Services
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by PopMarker. PopMarker does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If You access any third party website, service, or content from the Service, You do so at Your own risk and You agree that PopMarker will have no liability arising from Your use of or access to any third-party website, service, or content.

Indemnity
You agree to indemnify and hold harmless PopMarker and its officers, directors, employees and agents, from and against any claims, suits, proceedings, disputes, demands, liabilities, damages, losses, costs and expenses, including, without limitation, reasonable legal and accounting fees (including costs of defense of claims, suits or proceedings brought by third parties), arising out of or in any way related to (i) Your access to or use of the Service, (ii) the Site, including Publisher Content of any kind, and/or (iii) Your breach of any of this Agreement.
Disclaimers
THE SERVICE, INCLUDING WITHOUT LIMITATION ALL ELEMENTS THEREOF, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, POPMARKER SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
PopMarker takes no responsibility and assumes no liability for any content that You or any other user or third party posts or sends over the Service. You are solely responsible for Publisher Content and the consequences of posting or publishing it, and You agree that we are only acting as a passive conduit for Your AND OTHER USERS' online distribution and publication of Your AND THEIR content. You understand and agree that You may be exposed to content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to Your purpose.

Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE AND CONTENT REMAINS WITH YOU AND THAT YOU USE THE SERVICE AT YOUR OWN RISK. YOU AGREE THAT NEITHER POPMARKER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR FROM THE SERVICE, OR FROM THE USE OF OR INABILITY TO USE THE SERVICE, CONTENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICE OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT POPMARKER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT WILL POPMARKER'S AGGREGATE LIABILITY, OR THAT OF ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR FROM THE SERVICE, OR FROM THE USE OF OR INABILITY TO USE THE SERVICE EXCEED ONE HUNDRED DOLLARS ($100). THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POPMARKER AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE DISCLAIMERS AND LIMITATIONS MAY NOT APPLY TO YOU.
The Service is controlled and operated from its facilities in the United States and PopMarker Regions. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable national, state, local or other laws, statutes, directives, rules, regulations, and all interpretations or orders of any government, administrative or regulatory authority or court, including but not limited to those related to export and import of software, technical information or services. You may not use the Service if You are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.

Arbitration
For any dispute You have with PopMarker, You agree to first contact us at support@popmarker.com to attempt to resolve the dispute with us informally. In the unlikely event that PopMarker has not been able to resolve a dispute it has with You after attempting to do so informally, You and PopMarker each agree to resolve any claim, dispute, or controversy (excluding claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration by the American Arbitration Association ("AAA"), except as provided herein. Unless You and PopMarker agree otherwise, the arbitration will be conducted in San Francisco County. Each party will be responsible for paying any AAA filing, administrative and arbitrator fees in accordance with AAA rules. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property or unauthorized access to the Service. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING, AND, UNLESS POPMARKER AGREEs OTHERWISE IN ITS SOLE DISCRETION, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND POPMARKER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Governing Law
You agree that: (i) the Service shall be deemed solely based in New York; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over PopMarker, either specific or general, in jurisdictions other than New York. This Agreement shall be governed by the internal substantive laws of the State of New York, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and PopMarker each agree to submit to the personal jurisdiction of a state court located in New York for any actions for which either party retains the right to seek injunctive or other equitable relief, as further described in the Arbitration provision above.
Notification Procedures and Changes to this Agreement
PopMarker may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to You via email notice, written or hard copy notice, or through posting of such notice on PopMarker's website, as determined by PopMarker in PopMarker's sole discretion. PopMarker reserves the right to determine the form and means of providing notifications to You, provided that You may opt out of certain means of notification as described in this Agreement and PopMarker's Privacy Policy. PopMarker may, in its sole discretion, modify or update this Agreement from time to time, and so You should review this page periodically. When PopMarker changes the terms of this Agreement in a material manner, PopMarker will update the ‘last modified' date at the bottom of this page. Your continued use of the Service after any such change constitutes Your acceptance of the new terms of this Agreement. If You do not agree to any of this Agreement or to any future terms of this Agreement, do not use or access (or continue to access) the Service. PopMarker is not responsible for any automatic filtering You or Your network provider may apply to email notifications PopMarker sends to the email address You provide to PopMarker.

Assignment
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by PopMarker without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Export Control
Any software or technology obtained from PopMarker through the Service originates in the United States, and is subject to United States export laws and regulations. Such software and technology may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, software and technology obtained from PopMarker may be subject to the import and export laws of other countries. It is Your responsibility to comply with all U.S. and foreign export and import laws and regulations.
Entire Agreement/Severability
This Agreement, together with any amendments and any additional agreements You may enter into with PopMarker in connection with the Service, shall constitute the entire agreement between You and PopMarker concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. If You use the Service in the capacity of a user, as opposed to a publisher, then such use shall governed by the terms and conditions of PopMarker's User Terms of Service. In the event of a conflict between this Agreement and PopMarker's User Terms of Service, then this Agreement shall control. The relationship between You and PopMarker is not one of a legal partnership, joint venture, agency or employment, but is one of independent contractors.


No Waiver
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and PopMarker's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.

Contact
Please contact us at support@popmarker.com with any questions regarding this Agreement.