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Terms of Service


Revised: January 9, 2024

ACCEPTANCE OF TERMS

Hitup, Inc. (“Popcall”) provides technology-enabled services, including the offering branded as Popcall, the website at https://popcall.com/, and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services”). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (“TOS”). Your use of the Services as a Creator (as defined below) is governed by the Creator Terms of Service posted at this URL and/or otherwise on the Services (the “Creator Terms”). Popcall may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Popcall. To the extent that Popcall develops a Mobile App (as defined below) through which the Services, components of the Services, or other offerings similar to the Services, are offered to you, your use of such Mobile App will be subject to and governed by the terms and conditions of such Mobile App.

PLEASE REVIEW THIS TOS CAREFULLY. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES. IF YOU ACCESS THE SERVICES ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS, AND YOU AGREE THAT “YOU” AND “YOUR” WILL REFER TO THAT ENTITY.

THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 17 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER (x) THE AGE OF 13 OR, (y) IF YOU ACCESS THE SERVICES IN A JURISDICTION WHOSE LEGAL AGE TO FORM A BINDING CONTRACT IS GREATER THAN 13, AT LEAST SUCH GREATER AGE, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER OR SUCH GREATER APPLICABLE AGE. IF YOU ARE OLD ENOUGH TO ACCESS THE SERVICES IN YOUR JURISDICTION, BUT NOT OLD ENOUGH TO HAVE AUTHORITY TO CONSENT TO THIS TOS, YOUR PARENT OR GUARDIAN MUST AGREE TO OUR TERMS ON YOUR BEHALF. IF YOU ARE A PARENT OR LEGAL GUARDIAN AND YOU ALLOW YOUR TEENAGER TO USE THE SERVICES, THEN THESE TERMS SHALL ALSO APPLY TO YOU AND YOU ARE RESPONSIBLE FOR YOUR TEENAGER’S ACTIVITY ON THE SERVICES.

Use of the services

IF YOU ARE EXPERIENCING A MEDICAL EMERGENCY OR ARE EXPERIENCING SUICIDAL OR SELF-HARM-RELATED THOUGHTS, CALL YOUR DOCTOR OR DIAL “911” IMMEDIATELY. POPCALL WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY USER THREATENING OR EXPERIENCING A MEDICAL EMERGENCY, SUICIDE OR SELF-HARM ON THE SERVICES. USE OF THE SERVICES IS AT YOUR SOLE RISK.

  1. YOU ACKNOWLEDGE AND AGREE THAT WHEN YOU VIEW CONTENT PROVIDED ON THE SERVICES, YOU ARE DOING SO AT YOUR OWN RISK. THE SERVICES DO NOT INCLUDE THE PROVISION OF MEDICAL CARE, FINANCIAL ADVICE, LEGAL ADVICE OR ANY OTHER ADVICE ON WHICH YOU SHOULD RELY. HITUP DOES NOT ENGAGE IN THE PRACTICE OF ANY LICENSED PROFESSION, INCLUDING WITHOUT LIMITATION, MEDICINE, THERAPY, LAW, FINANCIAL ADVISORY, ELECTRICAL WORK, PLUMBING, OR AUTOMOBILE REPAIR, AND HITUP DOES NOT INTERFERE WITH ANY SUCH LICENSED PRACTICE, AS AND IF APPLICABLE, BY ANY CREATORS OFFERING THEIR SERVICES VIA THE SERVICES. FURTHERMORE, THE CONTENT ON THE SERVICES IS NOT CONSIDERED MEDICAL, THERAPEUTIC, FINANCIAL OR LEGAL ADVICE, OR ANY OTHER ADVICE ASSOCIATED WITH A LICENSED PROFESSION, AND IS NOT A SUBSTITUTE FOR YOUR OWN SUCH ADVICE OR MEDICAL DIAGNOSIS OR TREATMENT. YOU AGREE TO CONSULT YOUR HEALTHCARE PROVIDER BEFORE INITIATING ANY PHYSICAL EXERCISES OR WELLNESS PRACTICES AND FOLLOW YOUR PROVIDER’S ADVICE ACCORDINGLY. YOU ALSO ACKNOWLEDGE AND AGREE TO ACCEPT THE INHERENT RISKS AND DANGERS IN PARTICIPATING IN ANY ACTIVITY WHICH MAY BE PROMOTED OR DESCRIBED OR DISCUSSED ON THE SERVICES, FOR EXAMPLE AND IN EACH CASE WITHOUT LIMITATION, NEW OR STRENUOUS HEALTH, WELLNESS, AND PHYSICAL EXERCISES, ANIMAL TRAINING, OR CONSTRUCTION OR HOME REPAIR. FINALLY, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PROHIBITED FROM USING THE SERVICES WHILE OPERATING A VEHICLE OR HEAVY MACHINERY, OR OTHERWISE USING THE SERVICES IN AN IRRESPONSIBLE MANNER AND POPCALL SHALL NOT BE RESPONSIBLE FOR ANY SUCH USE.
  2. Creators who deliver, purport to deliver or offer to deliver services through the Services are independent service providers and are solely responsible for providing you with any such services. No professional-client relationships shall be formed on the Services and you understand and agree that communications on the Services are not confidential and shall not be the subject of any associated privileges. Popcall provides the Services, among other things, as a means to connect users with Creators and Popcall shall not be liable for any professional advice, diagnosis or treatment you obtain from a Creator via the Services or otherwise. Furthermore, you are solely responsible for your interactions with Creators and any other parties you interact with through the Services and Popcall has no obligation to intercede in any such disputes.
  3. Popcall does not endorse or recommend: (i) any Creator; (ii) any financial packages or products; (iii) any specific medical tests, providers, products, procedures, medications, devices, opinions, or diagnoses; (iv) any legal or financial decisions or advice; or (v) any other information or advice that may be provided to you by a Creator or any other user or third party provider either via the Services or otherwise. Furthermore, Popcall shall not be liable to you or to anyone else for any decision made or action taken by anyone (including, without limitation, you) in reliance on any information on the Services or in reliance on any information communicated to you by Popcall or any other user of the Services or third party provider.
  4. Where the Services contain links to third party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Popcall, these links are provided for your information only and should not be interpreted as an endorsement by Popcall of such linked websites or information you may obtain from them. Popcall assumes no responsibility for any such third party sites, information, materials, products or services. If you access any third party website, service or content from Popcall, you do so at your own risk and you agree that Popcall has no liability arising from your use of or access to any third party website, service, or content. You acknowledge that Popcall has no obligation to pre-screen, monitor, review, or edit any content posted by you or other users on the Services and that the views expressed by other users of the Services do not represent Popcall’s views or values.
  5. Popcall does not make any representation, warranty, or guaranty that any Creator is in any way licensed to provide legal or financial advice, medical care or any other licensed professional services. You are solely responsible for independently verifying the experience and qualifications of any Creator.

Rights

Grant. The Services and any Downloadable Content (as defined below) are licensed, not sold. Subject to and conditioned on your compliance with this TOS, Popcall hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for your personal, non-commercial use to interact with other users of the Services who have created a profile to accept communication (each, a “Creator”) through audio and/or video calls facilitated by the Services (“Calls”) and to download Downloadable Content in accordance with this TOS and applicable law. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Popcall. Notwithstanding the foregoing license restrictions, you may sublicense your rights in the Services or any Downloadable Content only to the extent necessary for you to use the Services or any Downloadable Content as permitted under this TOS (for example, sharing with friends on a social media platform or sending to third party recipients for personal, non-commercial and non-promotional purposes as set forth above).

Mobile Apps. Popcall may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by the terms of service of such Mobile App.

Trademarks. You may not use the Popcall or Popcall names, brands, trademarks, service marks or logos that Popcall makes available on the Services (“Marks”). Popcall claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Popcall. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Popcall’s benefit.

pRIVACY pOLICY

In addition to this TOS, the Popcall Privacy Policy at https://popcall.com/legal/privacy-policy (“Privacy Policy”) applies to how Popcall may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Popcall may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Popcall may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.

Proprietary RIGHTS

You grant Popcall and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable (including through multiple tiers of licensees), transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services (“Content”). This license includes the right of Popcall to use, reproduce, publish and otherwise distribute your name, photograph, video presence, recorded Calls, personal story and/or likeness (collectively, “Likenesses”) in advertising and in Popcall promotional materials, in any and all formats, platforms or other media or social media now existing or hereafter created, and you hereby waive all claims for remuneration for such use and you release and forever discharge Popcall from any and all claims and demands arising out of or in connection with the use of Likenesses.

You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.

The Services provided to you hereunder or available to you through the Services, including any material downloaded from the Services, are licensed, not sold, and Popcall retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Popcall, Popcall and its licensors own all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Popcall reserves all rights not expressly granted to you in this TOS.

You may not share your account with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Popcall immediately of any unauthorized use of your account or any other similar breach of security.

User CONDUCT and restrictions

You agree that you are solely responsible for the Content and for compliance with all laws pertaining to the Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Content and to provide appropriate notices of third party rights. Under no circumstances will Popcall be liable in any way for any (i) content that is transmitted or viewed while using the Services, (ii) errors or omissions in any content transmitted or viewed while using the Services, or (iii) any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any such content.

You acknowledge and agree that the Creator has sole discretion to determine their interactions with you during the course of a Call and may end a call with you at any time without liability to you.

As and if enabled from time to time by Popcall and/or Creator, as applicable, you and a Creator may agree to access a recording of a Call between you and such Creator which may be downloaded by you through the Services (“Downloadable Content”). If you do agree to access a downloadable recording of a Call, you hereby understand and agree that Popcall and Creator may utilize the Downloadable Content for marketing purposes. You are responsible for compliance with all recording laws. By using the Services, you give Popcall consent to record and store recordings of all Calls made through the Services. You may not make a recording of any component or feature of the Services, including any Call, except through the Services and in accordance with this TOS. Any recording by any device of any component or feature of the Services, including any Call, other than through the Services (a “Non-Permitted Recording”) is a violation of this TOS, and Popcall may, with or without notice to you, immediately suspend or terminate your access and use of the Services and require you to (i) promptly delete and/or destroy any such Non-Permitted Recording(s) in your control or possession, (ii) remove all copies from any social media platform, (iii) instruct any third party recipient of a Non-Permitted Recording to do the same and (iv) take any other action we reasonably request, including identifying each such third party recipient.

In your use of the Services, you will not:

use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS;

reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;

interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;

provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device;

access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;

violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;

remove or obscure any proprietary notice that appears within the Services, including within any Downloadable Content you download from the Services;

edit, change, modify, cover or remove the Popcall or Popcall watermark from any Call recording downloaded from the Services or assist or encourage any third party to do so;

impersonate any person or entity, including Popcall personnel, or falsely state or otherwise misrepresent your affiliation with Popcall, or any other entity or person;

forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or

use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.

You will not: upload, post, email, store, transmit, or otherwise make available any content that, in Popcall’s sole discretion:

is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, lewd, pornographic, libelous, invasive of another’s privacy, hateful, or otherwise objectionable, which includes, without limitation:

Any illegal activities, including advertising, transmitting or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography. Popcall will cooperate fully with any criminal investigation into a user’s violation of the Child Protection Act concerning child pornography. According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years;

Pornography or nudity, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts;

any material which may intimidate or harass another, or may promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

any material that is otherwise racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability or sexuality;

Activities that may be harmful to others, Popcall’s operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, Ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices; and

Content that is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;

contains the promotion or solicitation of contributions on behalf of your candidacy for public office, the candidacy of another person seeking public office, any political party or political committee, or any other person or organization promoting or soliciting contributions on behalf of any candidate for public office or political party;

may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);

infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;

consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;

contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;

contains infringing, libelous, or otherwise unlawful or tortious material; or

consists of information that you know or have reason to know is false or inaccurate.

You will not use the Services for any of the following:

      1. Dealings, engagement or sale of goods or services linked directly or indirectly with individuals or entities named to a restricted person or party list of the United States of America, United Kingdom, European Union or United Nations, including the sanctions lists maintained by the U.S. Office of Foreign Assets Control or the Denied Persons List or Entity List maintained by the U.S. Department of Commerce;
      2. Directly or indirectly to export, reexport, sell, or supply accounting, trust and corporate formation or management consulting services to any person located in the Russian Federation;
      3. Promote or engage in any “get rich quick” schemes, including investment opportunities or other services that promise high rewards to mislead consumers;
      4. Promote or receive any adult services including prostitution, escorts, pay-per-view, sexual massages or adult live chat features;
      5. If you are located in Mexico, provide, receive or promote telemedicine services;
      6. Otherwise provide or receive telemedicine or telehealth services without Popcall’s prior written consent;
      7. If you are located in Thailand, engage in the provision or receipt of psychic services or fortune telling;
      8. Engage in the provision or receipt of investment and brokerage services without Popcall’s prior written consent; or
      9. Participate in or promote the consumption of banned substances in your jurisdiction.

Popcall’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Popcall, and does not create a private right of action for any other party, including any Creator.

Fees and payment processors

Fees. Any fees that Popcall may charge you for or in connection with the Services, including Call fees, subscription fees, tips or any other charges due and payable in connection with the Services (“Payments”) and service charges, payment processing fees or any other fees due and payable in connection with transactions made through the Services (“Transaction Fees”, together with the Payments, “Fees”), are due immediately and are non-refundable. This no refund policy shall apply at all times regardless of the termination of your usage, any disruption to the Services, or any other reason whatsoever. Popcall may provide a refund in its sole and absolute discretion, and the provision of a refund in any particular circumstance shall not imply the availability or entitlement to a refund in any same or similar circumstance. You acknowledge and agree that Popcall may automatically deduct Transaction Fees from Payments, in the amounts determined by Popcall and/or communicated to you from time to time by Popcall.

Payment Processing. You acknowledge and agree that Popcall uses or may use third party payment processors, such as Stripe, in connection with Fees. By using the Services, you also agree to be bound by Stripe’s Services Agreement. You expressly understand and agree that Popcall shall not be liable for any payments or monetary transactions that occur through your use of the Services and that all payments and monetary transactions are handled by Stripe. Furthermore, by providing your payment information, (i) you hereby authorize Popcall to place various pre-authorization holds in connection with your use of the Services, including while you are waiting to be connected to a Creator and in various time intervals during a Call (for example, every 20 minutes), and, (ii) after the fulfillment of the applicable request, including being connected to a Creator, you hereby authorize the payment provider to immediately charge you for all amounts due and payable with no additional notice to or consent from you. Popcall will release such hold if you are not connected to such Creator. You must provide accurate and valid payment information to Stripe or any third party payment provider and immediately notify such provider of any change in your billing or payment information.

Taxes. If your purchase obligates Popcall to collect sales tax, use tax or any other relevant tax from you, Popcall will collect any such tax in addition to your purchase. If you have not remitted the applicable tax amount to Popcall, you will be responsible for the payment of any such tax and any related penalties or interest therefor to the appropriate tax authority and you will indemnify Popcall for any liability or expense Popcall may incur in connection with the payment of any such tax on your purchases. At Popcall’s request, you will provide reasonable assistance and documentation relating to the payment of taxes on your purchases from Popcall.

feedback

If you elect to provide or make available to Popcall any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Popcall shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.

DEALINGS WITH ADvertisers and Other Third Parties

The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that such terms and policies are solely between you and the advertiser or other third party. You agree that Popcall does not endorse and is not responsible or liable for any issues related to Third Party Services.

From time to time, an entity may be identified on a Creator’s profile page or be associated with the Creator elsewhere on the Services as a charitable organization or a recipient of funds that are being raised (“Charity”). For example, the Creator’s profile page may indicate that all or a portion of the Creator’s revenue from the Services will be given to the Charity. Those arrangements are strictly between the Creator and the Charity. Popcall is not a sponsor of, does not endorse, and is not affiliated with the Charity and is not a commercial co-venturer with respect to such arrangements (unless otherwise expressly stated in writing by Popcall). Unless expressly stated, Popcall does not control and makes no warranties about the Charity or any donation to the Charity.

DATA CHARGES AND MOBILE PHONES

By providing your telephone number to Popcall, you consent for two factor authentication codes and system notifications to be provided to you via text message regarding the current status of your Call or the status of the Creator you tried calling or expressed interest in calling.

You are responsible for any mobile charges that you may incur from using the Services, including text-messaging (such as SMS, MMS or future such protocols or technologies) and data charges. By providing us with your mobile phone number, you agree to receive SMS messages from Popcall related to the Services, including about promotions, your account and your relationship with Popcall. These SMS messages may be made to your mobile phone number even if your mobile phone number is registered on any state or federal Do Not Call list, or international equivalent.

LAW ENFORCEMENT REQUESTS

Popcall may share information regarding you and your use of the Services if a government authority requests information or if Popcall, in its sole discretion, believes that disclosure is required or appropriate in order to comply with any laws, regulations or legal process, or to prevent or report a criminal act. Popcall may also share information with law enforcement, government officials or other third parties if Popcall thinks doing so is necessary to protect the rights, property or safety of Popcall, Popcall’s employees, any users of the Services, any Creator or the public.

INDEMNIFICATION

You shall indemnify and hold Popcall and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Popcall Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to the extent resulting from or arising out of any third party claim, demand, or action due to (a) Content you provide to Popcall; (b) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services, except as expressly permitted in this TOS.

DISCLAIMER OF WARRANTIES

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HITUP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

HITUP PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE; (iv) THAT THE QUALITY OF THE SERVICES PROVIDED BY CREATORS WILL MEET ANY STANDARD OF CARE OR WILL BE TO YOUR SATISFACTION; OR (v) EACH CREATOR POSSESSES THE SKILLS, DEGREES, QUALIFICATIONS, LICENSURE, CERTIFICATIONS, CREDENTIALS, COMPETENCE OR BACKGROUND NECESSARY TO PROVIDE PROFESSIONAL ADVICE OR OTHER SERVICES TO YOU. YOU ARE SOLELY RESPONSIBLE FOR INDEPENDENTLY VERIFYING THE EXPERIENCE AND QUALIFICATIONS OF ANY PROVIDER.

ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION. FURTHERMORE, HITUP IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, SAFETY, LEGALITY OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO ANY CONTENT YOU ARE EXPOSED TO ON OR THROUGH THE SERVICES. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OBJECTIONABLE OR HARASSING, AND YOU AGREE TO WAIVE, AND YOU HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST ANY HITUP PARTY WITH RESPECT THERETO.

ANY CONTENT OR INFORMATION, INCLUDING CONTENT, PROVIDED VIA THE SERVICES OR HITUP DOES NOT CONTAIN OR CONSTITUTE AND SHOULD NOT BE INTERPRETED AS THERAPY OR AS MEDICAL ADVICE, MEDICAL OPINIONS OR MEDICAL SERVICES OR ANY OTHER ADVICE WHATSOEVER. THERE IS NO DOCTOR-PATIENT RELATIONSHIP OR THERAPIST-PATIENT RELATIONSHIP BETWEEN HITUP AND ANY PATIENT. THE SERVICES ARE NOT A SUBSTITUTE FOR THE ADVICE OF A MEDICAL PROFESSIONAL OR A THERAPIST AND THE INFORMATION MADE AVAILABLE BY HITUP OR ON OR THROUGH THE SERVICES SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS OR TO DIAGNOSE OR TREAT A MEDICAL, MENTAL OR HEALTH CONDITION. HITUP DOES NOT DIAGNOSE OR IDENTIFY ILLNESSES OR CONDITIONS AND NO STATEMENT FROM HITUP OR THROUGH THE SERVICES SHOULD BE CONSTRUED AS A DIAGNOSIS OR AS A CONFIRMATION THAT A PATIENT DOES OR DOES NOT HAVE ANY PARTICULAR CONDITION.

THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS TOS (UNLESS SUCH LAW PROVIDES OTHERWISE).

LIMITATION OF LIABILITY

HITUP PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF HITUP PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL HITUP PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO HITUP FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.

THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Suspension and TERMINATION; specific enforcement

Either party may terminate this TOS at any time.

If you violate this TOS, Popcall may, with or without notice to you, immediately suspend or terminate your access and use of the Services and require you to (i) promptly delete and/or destroy any Downloadable Content in your control or possession, (ii) remove all copies from any social media platform, (iii) instruct any third party recipient of Downloadable Content to do the same and (iv) take any other action we reasonably request, including identifying each such third party recipient.

Popcall reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Popcall shall not be liable to you or any third party for any such modification or discontinuance;

Upon termination of this TOS for any reason: (i) Popcall, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that Popcall shall not be liable to you or any third party for any termination of your account or access to the Services. 

You acknowledge and agree that irreparable damage would occur in the event that you violate the provisions of this TOS, including Section 6(c). You therefore agree that Popcall shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this TOS, including Section 6(c), and to enforce specifically the terms and provisions hereof. This remedy shall be in addition to any other remedy to which Popcall may be entitled by this TOS, law or equity.

Governing Law

This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Delaware, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.

binding arbitration and class action waiver

ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

Any unresolved dispute or controversy arising from or relating to this TOS shall be finally resolved by binding arbitration through the platform provided by New Era ADR, Inc. (https://neweraadr.com/) (the “New Era Platform”) in accordance with its rules and procedures for “Virtual Standard Arbitrations” by a professional neutral(s) with substantial experience in resolving commercial disputes (the “Neutral”). The Neutral shall be chosen in accordance with the rules and procedures of the New Era Platform. The parties will bear costs as provided for under this TOS or, if silent, in accordance with the rules and procedures of the New Era Platform. The prevailing party may be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees and all other expenses) incurred in connection therewith, at the Neutral’s discretion. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

Notwithstanding anything to the contrary, you and Popcall may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 17.

If Popcall implements any material change to this Section 17, such change shall not apply to any claim for which you provided written notice to Popcall before the implementation of the change.

Legal Compliance

You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where licensed material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

U.S. Government Entities

This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to such items, and any access to or use of the Services by the United States Government constitutes: (x) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (y) acceptance of the rights and obligations herein.

Procedure for Making Claims of Copyright Infringement

If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Popcall’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Popcall’s Agent for Notice of Copyright Claims. Popcall’s Agent for Notice of Copyright Claims can be reached as follows:

Agent for Notice of Copyright Claims
1734 W Roscoe Street, #1

Chicago, IL 60657, USA

Phone Number: 872-246-0977
Email: [email protected]

California Users & Residents

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

GENERAL PROVISIONS

This TOS constitutes the entire agreement between you and Popcall concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Popcall with respect to such subject matter. In the event of any conflict between or among this TOS and any end user license agreement, privacy policy or usage guidelines to which this TOS refers, the terms and conditions of this TOS shall take precedence and govern. This TOS may not be amended by you except in a writing executed by you and an authorized representative of Popcall. Except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS. For the purposes of this TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOS without the prior written consent of Popcall. The failure of Popcall to exercise or enforce any right or provision of this TOS shall not constitute a waiver of such right or provision. If any provision of this TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOS. Any prevention of or delay in performance by Popcall hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.

CREATOR Terms of Service


Revised: May 1, 2023

ACCEPTANCE OF TERMS

Hitup, Inc. (“Popcall”) provides technology-enabled services, including the offering branded as Popcall, the website at https://popcall.com/ , and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services”). Your use of the Services as a user of the Services who has created a profile to accept Calls (as hereinafter defined) (such user, “you” and a “Creator”), is subject to and governed by the terms and conditions in this Terms of Service (“Creator TOS”). Your use of the Services other than as a Creator is governed by the Standard Terms of Service posted at this URL and/or otherwise on the Services (the “Standard Terms”). Popcall may, at its discretion, update this Creator TOS at any time. You can access and review the most current version of this Creator TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Popcall. To the extent that Popcall develops a Mobile App (as defined below) through which the Services, components of the Services, or other offerings similar to the Services, are offered to you, your use of such Mobile App will be subject to and governed by the terms and conditions of such Mobile App.

PLEASE REVIEW THIS CREATOR TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS CREATOR TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS CREATOR TOS, YOU MAY NOT ACCESS OR USE THE SERVICES. IF YOU ACCESS THE SERVICES ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS, AND YOU AGREE THAT “YOU” AND “YOUR” WILL REFER TO THAT ENTITY.

THIS CREATOR TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS CREATOR TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS CREATOR TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 21 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this Creator TOS; (c) are not a person barred from using the Services under the laws of any applicable jurisdiction; and (d) are not using a false identity or providing false information except as set forth below in Section 7(g). THE SERVICES ARE NOT INTENDED FOR USERS UNDER (x) THE AGE OF 13 OR, (y) IF YOU ACCESS THE SERVICES IN A JURISDICTION WHOSE LEGAL AGE TO FORM A BINDING CONTRACT IS GREATER THAN 13, AT LEAST SUCH GREATER AGE, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 13 YEARS OF AGE OR OLDER OR SUCH GREATER APPLICABLE AGE. IF YOU ARE OLD ENOUGH TO ACCESS THE SERVICES IN YOUR JURISDICTION, BUT NOT OLD ENOUGH TO HAVE AUTHORITY TO CONSENT TO THIS CREATOR TOS, YOUR PARENT OR GUARDIAN MUST AGREE TO OUR TERMS ON YOUR BEHALF. IF YOU ARE A PARENT OR LEGAL GUARDIAN AND YOU ALLOW YOUR TEENAGER TO USE THE SERVICES, THEN THESE TERMS SHALL ALSO APPLY TO YOU AND YOU ARE RESPONSIBLE FOR YOUR TEENAGER’S ACTIVITY ON THE SERVICES.

If you are a member of or are subject to the rules or regulations of any association, group, authority or organization which regulates an activity in which you engage, either professionally or at an amateur level, including but not limited to the National College Athletic Association, you represent and warrant that you have reviewed the applicable rules and regulations to verify and confirm that your participation in the Services does not or will not violate the rules and regulations thereof or affect your current or future standing or eligibility with respect to any such association, group, authority or organization.

User Connections

From time to time, a user of the Services (“User”) may request one or more live video calls (each, a “Call”) from you through the Services. You may indicate that you are available for a Call by choosing to be “callable” through the applicable function on the Services (as defined below), after which Users will be able to “call” you to establish a Call. You may decline a request or otherwise refuse, in your discretion, to establish a Call for any reason or for no reason. If you accept a request, you thereby permit Popcall to establish a live video call between you and a User or Users.

Popcall retains the right, in its sole discretion, to cancel any request from a User. No payment will be made to you for any declined, cancelled, or unfulfilled Call request.

Subject to this Creator TOS, including Section 7 and any other Creator guidelines that Popcall may make available from time to time, you will have sole discretion over your own interaction with a User, except that you agree not to falsely identify yourself, falsely indicate that the Services are not functioning, disparage Popcall or the Services or otherwise violate this Creator TOS. Your response to the User’s request is your responsibility and at your discretion, subject to this Creator TOS.

use of the service

You agree not to provide any professional advice to the extent you are not qualified to offer such advice, including medical care, legal counsel, financial guidance, or any other professionally licensed service (any such advice, “Professional Advice”). YOU EXPLICITLY AGREE THAT YOU WILL NOT OFFER OR PURPORT TO OFFER ANY MEDICAL DIAGNOSIS OF A USER UNDER ANY CIRCUMSTANCES WHATSOEVER, REGARDLESS OF YOUR PROFESSIONAL QUALIFICATION TO DO SO. If you offer any advice, including Professional Advice, on which a User relies, you agree that you are solely responsible for such advice, including Professional Advice, and that Popcall shall have no liability therefor. You agree that Popcall shall not be liable to any User for any decision made or action taken in reliance on any information you provide through the Services.

You agree not to indicate in any way that Popcall has endorsed or recommended your advice, including Professional Advice, in any form or fashion or that you are not subject to this Creator TOS.

POPCALL WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY USER THREATENING OR EXPERIENCING A MEDICAL EMERGENCY, SUICIDE OR SELF-HARM ON THE SERVICES. USE OF THE SERVICES IS AT YOUR SOLE RISK. FINALLY, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE PROHIBITED FROM USING THE SERVICES WHILE OPERATING A VEHICLE OR HEAVY MACHINERY, OR OTHERWISE USING THE SERVICES IN AN IRRESPONSIBLE MANNER AND POPCALL SHALL NOT BE RESPONSIBLE FOR ANY SUCH USE.Rights

Grant. The Services and any Downloadable Content (as defined below) are licensed, not sold. Subject to and conditioned on your compliance with this Creator TOS, Popcall hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for your personal, non-commercial use (except as otherwise permitted by this Creator TOS) to interact with other users of the Services through audio and/or video calls facilitated by the Services (“Calls”) and to download Downloadable Content in accordance with this Creator TOS and applicable law. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Popcall. Notwithstanding the foregoing license restrictions, you may sublicense your rights in the Services or any Downloadable Content only to the extent necessary for you to use the Services or any Downloadable Content as permitted under this Creator TOS (for example, sharing on a social media platform).

Mobile Apps. Popcall may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by the terms of service of such Mobile App.

Trademarks. You may not use the Popcall or Popcall names, brands, trademarks, service marks or logos that Popcall makes available on the Services (“Marks”). Popcall claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Popcall. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Popcall’s benefit.

pRIVACY pOLICY

In addition to this Creator TOS, the Popcall Privacy Policy at https://popcall.com/legal/privacy-policy (“Privacy Policy”) applies to how Popcall may process information provided as part of the Services. You acknowledge and agree that by accessing or using the Services, Popcall may receive certain information about you, including personal data, as set forth in the Privacy Policy, and Popcall may collect, use, disclose, store, share, and process such personal data in accordance with such Privacy Policy.

Proprietary RIGHTS

You grant Popcall and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable (including through multiple tiers of licensees), transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services (“Creator Content”). This license includes the right of Popcall to use, reproduce, publish and otherwise distribute your name, photograph, video presence, recorded Calls, personal story and/or likeness (collectively, “Likenesses”) in advertising and in Popcall promotional materials, in any and all formats, platforms or other media or social media now existing or hereafter created, and you hereby waive all claims for remuneration for such use and you release and forever discharge Popcall from any and all claims and demands arising out of or in connection with the use of Likenesses.

You have the option to enable Users with whom you participate in Calls to use, reproduce, distribute and publicly display the Downloadable Content (as hereinafter defined). You can enable this option during your onboarding process or later by notifying Popcall in writing or by enabling such option in your account on the Services to the extent such functionality is available to you on the Services. If you do enable the foregoing option, you hereby grant to the User with whom you participated in the creation of a Call a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable (including through multiple tiers of licensees), transferable license to use, reproduce, distribute and publicly display the Call, in each case, solely in accordance with the Standard Terms, in any and all media, whether now known or hereafter invented or devised (including social media channels and third-party websites and platforms).

You acknowledge and agree that Popcall cannot restrict the use of Call recordings or other offerings by the Users with whom you created them or by any third party with whom they have already been shared and Popcall has no obligation to remove those uses (including from social media channels or third-party websites or platforms). If Popcall does seek to remove a Call recording or other offering from a social media channel or third-party website or platform, Popcall may notify you of its intent to do so, but are under no obligation to do so.

You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.

The Services provided to you hereunder or available to you through the Services, including any material downloaded from the Services, are licensed, not sold, and Popcall retains and reserves all rights not expressly granted in this Creator TOS. You acknowledge and agree that, as between you and Popcall, Popcall and its licensors own all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Popcall reserves all rights not expressly granted to you in this Creator TOS.

You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Popcall immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Popcall reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.

User CONDUCT and restrictions

You agree that you are solely responsible for the Creator Content and for compliance with all laws pertaining to the Creator Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Creator Content and to provide appropriate notices of third party rights. Under no circumstances will Popcall be liable in any way for any (i) content that is transmitted or viewed while using the Services, (ii) errors or omissions in any content transmitted or viewed while using the Services, or (iii) any loss or damage of any kind incurred as a result of the use of, access to or denial of access to any such content.

You acknowledge and agree that the User has sole discretion to determine their interactions with you during the course of a Call and may end a call with you at any time without liability to you. Any refund will be solely at the discretion of Popcall. If Popcall determines that a User is entitled to a refund as a result of your use of the Services and/or breach of this Creator TOS or any other Popcall terms by which you are bound, then Popcall reserves the right, in its sole discretion, to deduct the amount of such refund from your earnings.

As and if enabled from time to time by Popcall and/or you, as applicable, you and a User may agree to access a recording of a Call between you and such User which may be downloaded by you through the Services (“Downloadable Content”). You are responsible for compliance with all recording laws. By using the Services, you give Popcall consent to record and store recordings of all Calls made through the Services. You may not make a recording of any component or feature of the Services, including any Call, except through the Services and in accordance with this Creator TOS. Any recording by any device of any component or feature of the Services, including any Call, other than through the Services (a “Non-Permitted Recording”) is a violation of this Creator TOS, and Popcall may, with or without notice to you, immediately suspend or terminate your access and use of the Services and require you to (i) promptly delete and/or destroy any such Non-Permitted Recording(s) in your control or possession, (ii) remove all copies from any social media platform, (iii) instruct any third party recipient of a Non-Permitted Recording to do the same and (iv) take any other action Popcall reasonably requests, including identifying each such third party recipient.

In your use of the Services, you will not:

use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this Creator TOS;

reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;

interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;

provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet “links” to the Services or “frame” or “mirror” the Services on any other server, or wireless or Internet-based device;

access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;

violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;

remove or obscure any proprietary notice that appears within the Services, including within any Downloadable Content you download from the Services;

edit, change, modify, cover or remove the Popcall or Popcall watermark from any Call recording downloaded from the Services or assist or encourage any third party to do so;

impersonate any person or entity, including Popcall personnel, or falsely state or otherwise misrepresent your affiliation with Popcall, or any other entity or person;

forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;

take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or

use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.

You will not: upload, post, email, store, transmit, or otherwise make available any content that, in Popcall’s sole discretion:

is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, lewd, pornographic, libelous, invasive of another’s privacy, hateful, or otherwise objectionable, which includes, without limitation:

Any illegal activities, including advertising, transmitting or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography. Popcall will cooperate fully with any criminal investigation into a user’s violation of the Child Protection Act concerning child pornography. According to the Child Protection Act, child pornography includes photographs, films, video or any other type of visual presentation that shows a person who is or is depicted as being under the age of eighteen years and is engaged in or is depicted as engaged in explicit sexual activity, or any written material or visual representation that advocates or counsels sexual activity with a person under the age of eighteen years;

Pornography or nudity, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual sex acts;

any material which may intimidate or harass another, or may promote violence or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;

any material that is otherwise racist or discriminatory, including discrimination on the basis of someone’s race, religion, age, gender, disability or sexuality;

Activities that may be harmful to others, Popcall’s operations or reputation, including offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, Ponzi and pyramid schemes, phishing, or pharming), or engaging in other deceptive practices; and

Content that is excessively violent, incites violence, threatens violence or contains harassing content or hate speech;

contains the promotion or solicitation of contributions on behalf of your candidacy for public office, the candidacy of another person seeking public office, any political party or political committee, or any other person or organization promoting or soliciting contributions on behalf of any candidate for public office or political party;

may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);

infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;

consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;

contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;

contains infringing, libelous, or otherwise unlawful or tortious material; or

consists of information that you know or have reason to know is false or inaccurate.

You will not use the Services for any of the following:

      1. Dealings, engagement or sale of goods or services linked directly or indirectly with individuals or entities named to a restricted person or party list of the United States of America, United Kingdom, European Union or United Nations, including the sanctions lists maintained by the U.S. Office of Foreign Assets Control or the Denied Persons List or Entity List maintained by the U.S. Department of Commerce;
      2. Directly or indirectly to export, reexport, sell, or supply accounting, trust and corporate formation or management consulting services to any person located in the Russian Federation;
      3. Promote or engage in any “get rich quick” schemes, including investment opportunities or other services that promise high rewards to mislead consumers;
      4. Promote or receive any adult services including prostitution, escorts, pay-per-view, sexual massages or adult live chat features;
      5. If you are located in Mexico, provide, receive or promote telemedicine services;
      6. Otherwise provide or receive telemedicine or telehealth services without Popcall’s prior written consent;
      7. If you are located in Thailand, engage in the provision or receipt of psychic services or fortune telling;
      8. Engage in the provision or receipt of investment and brokerage services without Popcall’s prior written consent; or

Participate in or promote the consumption of banned substances in your jurisdiction.

Popcall’s failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this Creator TOS by Popcall, and does not create a private right of action for any other party, including any Creator.

A management company, manager, agency, agent, publicist, or other individual or organization (each, an “Organization”) may register a Creator (“Affiliated Creator”). By registering, the Organization represents and warrants for itself and each Affiliated Creator that: (i) Organization is the authorized representative of the Affiliated Creator (and, if the Affiliated Creator is below the age of 18, is registering with any consent required of the Affiliated Creator’s parent or legal guardian as set forth in this Creator TOS and agrees to this Creator TOS); (ii) have the right, authority, and capacity to agree to and abide by this Creator TOS on behalf of yourself and the Affiliated Creator; (iii) are not a person barred from using the Services under the laws of any applicable jurisdiction; and (iv) Organization is responsible for complying with all applicable laws and regulations relating to Affiliated Creator’s participation in the Services under this Creator TOS and will fully indemnify Popcall for any failure to do so.

No liability for user conduct

Although Popcall has put in place measures to prevent Users from violating the terms of the Standard Terms, including Section 6 thereof, you acknowledge and agree that Popcall does not control the conduct of Users, including the conduct of any User during a Call, and you agree that Popcall shall have no liability to you for any such conduct, regardless of the nature of the User conduct and regardless of such conduct’s violation of the Standard Terms.

Fees and payment processors

Call Fee: You set your own price-per-minute for each Call, which must be at least the minimum allowable charge per minute as determined by Popcall and posted on the Services from time to time (the “Call Fee”).

Earnings. Unless otherwise provided on the Services or in writing by Popcall, Popcall will pay you 80% of the Call Fee actually received by Popcall for each Call, net of any sales tax, payment processing fees and any payment to or deduction by any application platform through which Popcall offers the Services (“Offsets”). To the extent that you earn fees of at least $600 in any given calendar year, Popcall will only process a payment to you at such time that Popcall has received all applicable tax forms from you as reasonably requested by Popcall, including but not limited to Forms W-9, W-BEN or W-BEN-E, as applicable.

Payment Processing. You acknowledge and agree that Popcall uses or may use third party payment processors, such as Stripe, in connection with Call Fees. Popcall will not be responsible for any damages, delays, losses, costs, expenses, or liabilities arising out of or in connection with your inability to receive payments as a result of your failure to provide your bank account or PayPal information. Unless otherwise agreed by Popcall in writing, you acknowledge and agree that you are solely responsible for any other fees, costs, and expenses, including with respect to your bank account and foreign exchange fees. Notwithstanding anything to the contrary contained in this Creator TOS, if Popcall, in its sole discretion, believes that any fraud, money laundering, or other violation of law or regulation is taking place on or in connection with the Services, you acknowledge and agree that Popcall may withhold, delay, or seek repayment of any payments Popcall believes, in its sole discretion, are related to the violation. For any payment by bank transfer, Popcall initiates the Automated Clearing House (“ACH”) payment process by providing information to the National Automated Clearing House Association. You are responsible for the accuracy and completeness of all information you provide with respect to your bank account, PayPal, or Zelle account, should you request payment from Popcall to your account on one of those platforms, and you are responsible for updating any such information with Popcall as required. By accepting this Creator TOS, you consent to Popcall’s disclosure of your personal information as necessary to allow you to receive payments, as necessary to resolve a problem related to a payment, to comply with government agency or court orders, to verify your identity for purposes of compliance with applicable laws, to comply with inquiries in connection with fraud prevention or any investigation and as otherwise permitted by the terms of Popcall’s Privacy Policy. In the event Popcall engages a third party service provider to originate the ACH payment process, you hereby expressly authorize Popcall to do so.

Fees and Payment Representations and Warranties. You represent and warrant that: (i) Calls are not, and are not intended to be, covered by any guild, union, collective bargaining, management, agency or similar agreement and there will be no residual or any other type of payment due from Popcall to you, to any third-party, guild, union, management, or agent, or pursuant to any collective bargaining agreement, in connection with any Call, payment from Popcall to you, or the Services; (ii) Popcall is not responsible for, and will not make any deduction to payments made to you for any fees, commissions, costs, expenses or payments of any kind to or with respect to any third party, including any manager, agent, attorney, representative or service provider, in connection with any revenue earned by or payments made to you in connection with the Services; and (iii) Popcall is not responsible for any contributions, payments, taxes or deductions for Social Security, retirement benefits, unemployment insurance, annuities, pension or welfare fund payments required by the law of any jurisdiction or any labor union, or any withholding taxes (other than any sales tax collected by Popcall in relation to a purchase).

Charities and Fundraising. If you identify any entity on your profile page or elsewhere through the Services as a charitable organization or a recipient of any funds that you are raising (each, a “Charity”), you: (i) represent and warrant that you will comply with all applicable laws and regulations relating to that identification or the Charity, including making disclosures, registering, or entering into any agreement, such as a commercial co-venturer agreement; (ii) acknowledge and agree that Popcall has the right in its sole discretion to reject your identification or the Charity; (iii) represent and warrant that the Charity is and will remain in good standing at all times the identification is used, that within 48 hours of your receipt of Popcall’s request, you will provide Popcall with written evidence of the Charity’s good standing and charitable status in all applicable jurisdictions, and that you will promptly remove the identification if the Charity ceases to be in good standing; (iv) represent and warrant that you will be responsible for making any payment to the Charity (unless Popcall expressly agrees in writing in advance to do so on your behalf and in satisfaction of Popcall’s payment obligations to you under this Creator TOS); and (v) represent and warrant that you have all rights necessary to authorize use of the Charity’s name and logo in connection with (and through) the Services, in the identification, and in any social and other media. You further acknowledge and agree that Popcall may add a statement to your profile page disclaiming a connection between Popcall and the Charity, as Popcall determines in its sole discretion.

feedback

If you elect to provide or make available to Popcall any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Popcall shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.

DEALINGS WITH ADvertisers and Other Third Parties

The Services may include or provide access to third party products, services, content, or offerings, including advertising for such (“Third Party Services”). You acknowledge that different terms of use and privacy policies may apply to your use of such Third Party Services and that such terms and policies are solely between you and the advertiser or other third party. You agree that Popcall does not endorse and is not responsible or liable for any issues related to Third Party Services.

From time to time, an entity may be identified on a Creator’s profile page or be associated with the Creator elsewhere on the Services as a Charity. For example, the Creator’s profile page may indicate that all or a portion of the Creator’s revenue from the Services will be given to the Charity. Those arrangements are strictly between the Creator and the Charity. Popcall is not a sponsor of, does not endorse, and is not affiliated with the Charity and is not a commercial co-venturer with respect to such arrangements (unless otherwise expressly stated in writing by Popcall). Unless expressly stated, Popcall does not control and makes no warranties about the Charity or any donation to the Charity.

Promotional materials

At no cost to Popcall, you will provide to Popcall all requested information and promotional materials which Popcall requires (“Promotional Materials”) at the beginning of the Creator on-boarding process through the Services.

DATA CHARGES AND MOBILE PHONES

By providing your telephone number to Popcall, you consent for two factor authentication codes and system notifications to be provided to you via text message regarding the current status of your Call.

You are responsible for any mobile charges that you may incur from using the Services, including text-messaging (such as SMS, MMS or future such protocols or technologies) and data charges. By providing Popcall with your mobile phone number, you agree to receive SMS messages from Popcall related to the Services, including about promotions, your account and your relationship with Popcall. These SMS messages may be made to your mobile phone number even if your mobile phone number is registered on any state or federal Do Not Call list, or international equivalent. If you change or deactivate the mobile phone number that you used to create an account, you must update your account information by emailing [email protected] to prevent Popcall from sending messages intended for you to someone else.

LAW ENFORCEMENT REQUESTS

Popcall may share information regarding you and your use of the Services if a government authority requests information or if Popcall, in its sole discretion, believes that disclosure is required or appropriate in order to comply with any laws, regulations or legal process, or to prevent or report a criminal act. Popcall may also share information with law enforcement, government officials or other third parties if Popcall thinks doing so is necessary to protect the rights, property or safety of Popcall, Popcall’s employees, any users of the Services, any Creator or the public.

INDEMNIFICATION

You shall indemnify and hold Popcall and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, Popcall Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys’ fees, to the extent resulting from or arising out of any third party claim, demand, or action due to (a) Creator Content you provide to Popcall; (b) your violation of this Creator TOS, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services, except as expressly permitted in this Creator TOS.

Business relationship

You and Popcall agree and declare that the relationship between the parties, including this Creator TOS, is solely an independent contractor relationship. It is the parties’ express intent that their relationship be interpreted and held to be that of independent contractor for all purposes. You acknowledge and agree that you are not a joint venturer, franchisee, partner, agent, or employee of Popcall, and will not represent yourself as such. As an independent contractor using Popcall’s platform to provide services to Users, you are solely and exclusively responsible for determining the manner, method, details, and means of your performance as a Creator and you acknowledge and agree that Popcall does not control those elements of your performance. You also retain the option to accept, decline, or ignore any User request. Popcall has no right to, and will not, control the manner or determine the method of accomplishing your performance. You represent and warrant that you are customarily engaged in an independently established trade, occupation, or business.

You represent and warrant that as between Popcall and you (whether a Creator User, parent or legal guardian of a Creator User, an Organization, Affiliated Creator or otherwise), you assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for Social Security, retirement or other benefits, healthcare insurance, unemployment insurance, annuities, pension and welfare fund payments required by law, regulation, or any labor union, and all withholding and income taxes, and make any reports required as a result of participation in the Services under this Creator TOS.

You will use your own equipment to perform your obligations under this Creator TOS.

You are solely responsible for making any disclosure required by any applicable law, regulation, court order or any agreement you may have with any third parties to any person or entity regarding your performance under this Creator TOS.

Your relationship with Popcall is non-exclusive, meaning that you may provide similar services to third parties, including Popcall’s competitors, and you may engage in other business or employment activities. Similarly, Popcall can and does engage third parties to provide services similar to those that you may provide under this Creator TOS.

DISCLAIMER OF WARRANTIES

YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HITUP PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

HITUP PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE; (iv) THAT THE QUALITY OF THE SERVICES PROVIDED BY CREATORS WILL MEET ANY STANDARD OF CARE OR WILL BE TO YOUR SATISFACTION; OR (v) EACH CREATOR POSSESSES THE SKILLS, DEGREES, QUALIFICATIONS, LICENSURE, CERTIFICATIONS, CREDENTIALS, COMPETENCE OR BACKGROUND NECESSARY TO PROVIDE PROFESSIONAL ADVICE OR OTHER SERVICES TO YOU. YOU ARE SOLELY RESPONSIBLE FOR INDEPENDENTLY VERIFYING THE EXPERIENCE AND QUALIFICATIONS OF ANY PROVIDER.

ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION. FURTHERMORE, HITUP IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, SAFETY, LEGALITY OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO ANY CONTENT YOU ARE EXPOSED TO ON OR THROUGH THE SERVICES. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT THAT IS INACCURATE, OFFENSIVE, INDECENT, OBJECTIONABLE OR HARASSING, AND YOU AGREE TO WAIVE, AND YOU HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST ANY HITUP PARTY WITH RESPECT THERETO.

ANY CONTENT OR INFORMATION, INCLUDING CONTENT, PROVIDED VIA THE SERVICES OR HITUP DOES NOT CONTAIN OR CONSTITUTE AND SHOULD NOT BE INTERPRETED AS THERAPY OR AS MEDICAL ADVICE, MEDICAL OPINIONS OR MEDICAL SERVICES OR ANY OTHER ADVICE WHATSOEVER. THERE IS NO DOCTOR-PATIENT RELATIONSHIP OR THERAPIST-PATIENT RELATIONSHIP BETWEEN HITUP AND ANY PATIENT. THE SERVICES ARE NOT A SUBSTITUTE FOR THE ADVICE OF A MEDICAL PROFESSIONAL OR A THERAPIST AND THE INFORMATION MADE AVAILABLE BY HITUP OR ON OR THROUGH THE SERVICES SHOULD NOT BE RELIED UPON WHEN MAKING MEDICAL DECISIONS OR TO DIAGNOSE OR TREAT A MEDICAL, MENTAL OR HEALTH CONDITION. HITUP DOES NOT DIAGNOSE OR IDENTIFY ILLNESSES OR CONDITIONS AND NO STATEMENT FROM HITUP OR THROUGH THE SERVICES SHOULD BE CONSTRUED AS A DIAGNOSIS OR AS A CONFIRMATION THAT A PATIENT DOES OR DOES NOT HAVE ANY PARTICULAR CONDITION.

THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS CREATOR TOS (UNLESS SUCH LAW PROVIDES OTHERWISE).

LIMITATION OF LIABILITY

HITUP PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF HITUP PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL HITUP PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS CREATOR TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED THE AMOUNT PAID BY YOU TO HITUP FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.

THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Suspension and TERMINATION; specific enforcement

Either party may terminate this Creator TOS at any time.

If you violate this Creator TOS, Popcall may, with or without notice to you, immediately suspend or terminate your access and use of the Services and require you to (i) promptly delete and/or destroy any Downloadable Content in your control or possession, (ii) remove all copies from any social media platform, (iii) instruct any third party recipient of Downloadable Content to do the same and (iv) take any other action Popcall reasonably requests, including identifying each such third party recipient.

Popcall reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Popcall shall not be liable to you or any third party for any such modification or discontinuance;

Upon termination of this Creator TOS for any reason: (i) Popcall, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this Creator TOS shall survive such expiration or termination. Further, you agree that Popcall shall not be liable to you or any third party for any termination of your account or access to the Services. 

You acknowledge and agree that irreparable damage would occur in the event that you violate the provisions of this Creator TOS, including Section 7(c). You therefore agree that Popcall shall be entitled to an injunction or injunctions to prevent or cure breaches of the provisions of this Creator TOS, including Section 7(c), and to enforce specifically the terms and provisions hereof. This remedy shall be in addition to any other remedy to which Popcall may be entitled by this Creator TOS, law or equity.

Governing Law

This Creator TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Delaware, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Creator TOS, regardless of the states in which the parties do business or are incorporated.

binding arbitration and class action waiver

ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

Any unresolved dispute or controversy arising from or relating to this TOS shall be finally resolved by binding arbitration through the platform provided by New Era ADR, Inc. (https://neweraadr.com/) (the “New Era Platform”) in accordance with its rules and procedures for “Virtual Standard Arbitrations” by a professional neutral(s) with substantial experience in resolving commercial disputes (the “Neutral”). The Neutral shall be chosen in accordance with the rules and procedures of the New Era Platform. The parties will bear costs as provided for under this TOS or, if silent, in accordance with the rules and procedures of the New Era Platform. The prevailing party may be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees and all other expenses) incurred in connection therewith, at the Neutral’s discretion.  The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.

WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.

Notwithstanding anything to the contrary, you and Popcall may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 21.

If Popcall implements any material change to this Section 21, such change shall not apply to any claim for which you provided written notice to Popcall before the implementation of the change.

Legal Compliance

You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where licensed material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.

U.S. Government Entities

This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this Creator TOS with respect to such items, and any access to or use of the Services by the United States Government constitutes: (x) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (y) acceptance of the rights and obligations herein.

Procedure for Making Claims of Copyright Infringement

If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Popcall’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Popcall’s Agent for Notice of Copyright Claims. Popcall’s Agent for Notice of Copyright Claims can be reached as follows:

Agent for Notice of Copyright Claims
1734 W Roscoe Street, #1

Chicago, IL 60657, USA

Phone Number: 872-246-0977
Email: [email protected]

California Users & Residents

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

GENERAL PROVISIONS

This Creator TOS constitutes the entire agreement between you and Popcall concerning your access to and use of the Services. It supersedes all prior and contemporaneous oral or written negotiations and agreements between you and Popcall with respect to such subject matter. In the event of any conflict between or among this Creator TOS and any end user license agreement, privacy policy or usage guidelines to which this Creator TOS refers, the terms and conditions of this Creator TOS shall take precedence and govern. This Creator TOS may not be amended by you except in a writing executed by you and an authorized representative of Popcall. Except as otherwise expressly provided in this Creator TOS, there shall be no third-party beneficiaries to this Creator TOS. For the purposes of this Creator TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this Creator TOS without the prior written consent of Popcall. The failure of Popcall to exercise or enforce any right or provision of this Creator TOS shall not constitute a waiver of such right or provision. If any provision of this Creator TOS is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Creator TOS. Any prevention of or delay in performance by Popcall hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.