MakePop Platform Terms of Service

These Platform Terms of Service (the "Platform Terms") govern access to and use of the MakePop Platform provided by MakePop, LLC, a Utah limited liability company ("MakePop"). They apply to any customer ("Client") whose Service Order, order form, or other written agreement with MakePop includes a Platform Subscription, and are incorporated into that agreement by reference in the version identified on that Service Order.

Where Client and MakePop have entered into a Master Services Agreement or other services agreement (a "Services Agreement"), these Platform Terms govern the MakePop Platform and the Services Agreement governs the services relationship. Section 12 states how the documents fit together.

The version number and effective date of these Platform Terms are published with them. Every prior version remains published so that the version pinned on a Service Order can always be read.

1. The MakePop Platform

1.1 What the Platform Is. The "MakePop Platform" means MakePop's proprietary marketing platform and all software, infrastructure, and know-how comprising it, including without limitation: standardized commerce website themes, sections, and templates; tracking, tagging, analytics, and session-recording infrastructure, pipelines, dashboards, and data models; AI agents, workflows, prompts, and configurations, including MakePop's brand-intelligence and knowledge systems (the "AI Brain"); content and asset infrastructure; campaign, lifecycle, and creative tooling; integrations and connectors to third-party platforms; monitoring, alerting, and reporting systems; client-facing dashboards and agent-accessible interfaces; and all related software, documentation, and know-how, together with all improvements, modifications, and derivative works of any of the foregoing, whenever made.

1.2 Platform Customizations. "Platform Customizations" means any configuration, extension, modification, or adaptation of the MakePop Platform made by MakePop in connection with Client's engagement, including without limitation integrations and connectors, theme and section modifications, tracking and analytics configurations and data models, and AI agent and workflow configurations, prompts, and templates, whether or not made at Client's request or informed by Client's requirements. Platform Customizations are part of the MakePop Platform, are owned exclusively by MakePop, and are licensed to Client solely under Section 3.

1.3 What the Platform Is Not. These Platform Terms do not govern services, deliverables, or stand-alone software development work. Where a Services Agreement is in place, that agreement governs the performance of services, the ownership and acceptance of deliverables, and any work designated in a Service Order as bespoke development. Development work not expressly so designated is a Platform Customization.

1.4 Changes to the Platform. MakePop operates the MakePop Platform as a product and may add, modify, deprecate, or remove features, integrations, and infrastructure in the ordinary course. MakePop will not make a change that materially degrades the core functionality Client subscribed to without reasonable prior notice.

2. Platform Subscription

2.1 Subscription Required. Access to the MakePop Platform requires an active platform, hosting, or subscription arrangement described on a Service Order (a "Platform Subscription"). The fees, and any minimum term, are stated on that Service Order.

2.2 Term, Renewal, and Cancellation. Unless the applicable Service Order states otherwise, a Platform Subscription runs month to month and renews automatically for successive one-month terms until either party terminates it on 30 days' prior written notice. Termination takes effect at the end of the then-current monthly term. Fees for the term in which notice is given are not prorated or refunded, and any minimum project term or early-termination requirement stated on the Service Order continues to apply.

2.3 Fees and Billing. Platform Subscription fees are billed monthly in advance and are due on receipt unless the Service Order states otherwise. Past due amounts accrue interest at the lower of 10% per annum or the highest rate allowed by law. Client is responsible for all costs of collecting amounts due, including attorneys' or collectors' fees. Billing disputes must be raised in writing before the applicable invoice due date or are deemed waived. All taxes and similar charges relating to the Platform Subscription are payable by Client in addition to the fees.

2.4 Effect of Termination. On expiration or termination of a Platform Subscription, the licenses granted in Section 3 terminate automatically, except the Deployed Theme license described in Section 3.4, and MakePop may disable Client's access to the MakePop Platform. Sections 3.4, 4.5, 5, 9, 10, 12, and 13, and any accrued payment obligations, survive.

3. License and Restrictions

3.1 License Grant. Subject to Client's timely payment of all Platform Subscription fees and other amounts due, MakePop grants Client a non-exclusive, non-transferable, non-sublicensable license to access and use the MakePop Platform, including Platform Customizations, solely for Client's internal business purposes, for so long as, and only for so long as, the applicable Platform Subscription remains in effect.

3.2 Restrictions. Client shall not, and shall not permit any third party to: copy, distribute, resell, sublicense, rent, or provide access to the MakePop Platform to any third party; reverse engineer, decompile, or attempt to derive the source code or underlying models of the MakePop Platform; create derivative works of the MakePop Platform; remove or obscure any proprietary notice; use the MakePop Platform to build or train a competing product or service; probe, scan, or test the vulnerability of the MakePop Platform, or circumvent any access control or usage limit; or use the MakePop Platform in violation of applicable law or of any third-party platform's terms. Client is responsible for the acts and omissions of anyone it permits to use its access.

3.3 Ownership. As between the parties, MakePop owns and retains all right, title, and interest in and to the MakePop Platform and all Platform Customizations, including all intellectual property rights therein. Client receives only the license expressly granted in this Section 3. Nothing in these Platform Terms transfers ownership of any part of the MakePop Platform to Client, and MakePop may reuse the MakePop Platform and any Platform Customizations for other clients and other business purposes.

3.4 Deployed Theme. If Client's website is deployed on MakePop's standardized theme, then upon expiration or termination of the Platform Subscription, and subject to payment of all amounts due, Client retains a non-exclusive, royalty-free, perpetual license to continue using that theme as then deployed on Client's own store, including the Platform Customizations embodied in it (the "Deployed Theme"), solely to operate Client's own website. All other rights in the theme remain with MakePop, and the Deployed Theme license does not include continued access to the MakePop Platform, to hosting or infrastructure operated by MakePop, or to any updates, support, or maintenance.

4. Client Data and Instrumentation

4.1 Ownership of Client Data. As between the parties, Client owns all right, title, and interest in and to Client Data. "Client Data" means data and content provided by Client to MakePop, together with data collected from or about Client's own store, website, customers, and end users through the MakePop Platform, including behavioral, session, transaction, and customer data.

4.2 License to Operate the Platform. Client grants MakePop a non-exclusive license to access, collect, host, use, process, transmit, and create derivative works of Client Data as reasonably necessary to provide and operate the MakePop Platform and to comply with law.

4.3 Instrumentation. Client authorizes MakePop to deploy tracking, tagging, analytics, session-recording, and monitoring instrumentation on Client's website and on Client's own accounts with third-party platforms for the purposes described in Section 4.2. Client may withdraw this authorization at any time, and acknowledges that doing so will materially limit or disable the measurement, reporting, and optimization functions of the MakePop Platform.

4.4 Client Responsibilities. Client is responsible for its website's privacy policy, terms of service, cookie and consent practices, and end-user notices and disclosures, and shall ensure that they permit the instrumentation and data collection described in this Section 4 in each jurisdiction where Client operates. Client is responsible for maintaining consumer privacy when it collects sensitive data.

4.5 Data Export. Upon Client's written request made within 60 days after termination of the Platform Subscription, and subject to payment of all amounts due, MakePop will make Client Data then in MakePop's possession or control (including analytics history) available to Client in a commercially reasonable format. Thereafter MakePop may delete Client Data, subject to Section 5 and to copies retained in routine backups or as required by law.

4.6 Deletion Requests. MakePop will comply with Client's documented, legally required requests to delete personal data of Client's end users held by MakePop, subject to Section 5.

5. Aggregated Data

Notwithstanding anything to the contrary in these Platform Terms, in any Services Agreement, or in any nondisclosure agreement between the parties, MakePop may create, use, and retain, during and after the term of any Platform Subscription, data, statistics, benchmarks, experiment results, models, and learnings that are derived from Client Data or from the operation of the MakePop Platform and that are aggregated or de-identified such that they do not identify Client or any individual ("Aggregated Data"), for any lawful business purpose, including improving and training MakePop's systems, services, and the MakePop Platform and providing services to other clients. Aggregated Data is MakePop's property and is not Client Data or Client Confidential Information.

6. AI Operation of the Platform

6.1 Use of AI. Client acknowledges and agrees that the MakePop Platform operates substantially through artificial-intelligence systems, including third-party foundation models and AI services, under human direction and review. Client authorizes MakePop to submit Client materials, Client Data, and Client's confidential information to such third-party AI providers as reasonably necessary to operate the MakePop Platform, provided such providers are bound by confidentiality and data-use obligations consistent in all material respects with these Platform Terms.

6.2 AI Output. MakePop does not represent or warrant that AI-generated output produced by or through the MakePop Platform is accurate, complete, free of error, or non-infringing, and Client is responsible for reviewing such output before public use. Client acknowledges that AI-generated content may not be protectable by copyright and may resemble content generated for other parties. Nothing goes live in Client's own accounts without Client's approval, and Client's approval of a change constitutes Client's representation that any marketing or product claim it contains is truthful, substantiated, and compliant with applicable law (including FTC and FDA requirements) as applied to Client's products.

7. Client Platform Accounts and Third-Party Services

The MakePop Platform connects to third-party platforms in which Client holds its own accounts, including without limitation advertising platforms, ecommerce platforms, and email and SMS marketing platforms ("Client Platform Accounts"). Client Platform Accounts are governed solely by the applicable platform provider's terms, which are between Client and that provider. MakePop has no liability for any suspension, restriction, or termination of a Client Platform Account, for policy or algorithm changes, for changes to features or delivery, for outages, or for any other act or omission of a platform provider. All media spend and advertising costs are Client's sole responsibility, are payable on Client's own accounts, and are not fees under these Platform Terms. Client may revoke MakePop's access to a Client Platform Account at any time, and acknowledges that doing so will limit or disable the corresponding functions of the MakePop Platform.

8. Suspension

MakePop may suspend Client's access to the MakePop Platform, in whole or in part, if payment is more than 45 days late, if Client breaches Section 3.2, or if continued access presents a material security, legal, or operational risk. Where practicable MakePop will give notice before suspending and will restore access promptly once the cause is resolved. Suspension does not relieve Client of its payment obligations, and a suspension for non-payment or breach is not a termination by MakePop for purposes of any refund.

9. Disclaimer of Warranties

THE MAKEPOP PLATFORM, INCLUDING ALL PLATFORM CUSTOMIZATIONS, IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. MAKEPOP DOES NOT WARRANT THAT THE MAKEPOP PLATFORM WILL BE UNINTERRUPTED, SECURE, OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT ANY DATA, MEASUREMENT, ATTRIBUTION, OR REPORTING IT PRODUCES IS COMPLETE OR ACCURATE. MAKEPOP DOES NOT GUARANTEE ANY MARKETING OR BUSINESS OUTCOME, INCLUDING WITHOUT LIMITATION RETURN ON AD SPEND, SEARCH RANKINGS, TRAFFIC, ENGAGEMENT, CONVERSION RATES, OR REVENUE.

10. Limitation of Liability

MAKEPOP SHALL HAVE NO LIABILITY UNDER OR IN ANY WAY RELATED TO THESE PLATFORM TERMS FOR ANY LOSS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES. MAKEPOP'S TOTAL AGGREGATE LIABILITY UNDER OR IN ANY WAY RELATED TO THESE PLATFORM TERMS SHALL NOT EXCEED THE PLATFORM SUBSCRIPTION FEES ACTUALLY PAID BY CLIENT TO MAKEPOP IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL MAKEPOP BE LIABLE FOR MEDIA SPEND OR OTHER AMOUNTS PAID OR PAYABLE TO THIRD-PARTY PLATFORMS. THIS SECTION DOES NOT INCREASE ANY LIABILITY CAP STATED IN A SERVICES AGREEMENT; WHERE BOTH APPLY, THE LOWER APPLICABLE CAP CONTROLS.

11. Changes to These Platform Terms

MakePop may modify these Platform Terms from time to time. MakePop will give Client at least 30 days' prior notice of a modification, by email to the billing or notice address on Client's Service Order or by notice within the MakePop Platform, and will publish the new version with its version number and effective date. The modification takes effect on the stated effective date, and Client's continued use of the MakePop Platform on or after that date constitutes acceptance of the modified Platform Terms. If Client does not accept a modification, Client may terminate its Platform Subscription under Section 2.2 by giving notice before the effective date, and the version in effect immediately before the modification governs until termination takes effect. MakePop publishes and keeps published every version of these Platform Terms.

12. Order of Precedence

Where a Service Order, a Services Agreement, and these Platform Terms address the same subject and conflict, the Service Order controls over both, including any deviation stated in a "Special Terms" section of the Service Order. As between a Services Agreement and these Platform Terms, these Platform Terms control on matters specific to the MakePop Platform, and the Services Agreement controls on all other matters, including the performance of services, deliverables and their ownership, confidentiality, indemnification, and the services relationship generally. Where no Services Agreement is in place, these Platform Terms, together with the applicable Service Order, are the entire agreement between the parties with respect to the MakePop Platform.

13. General

13.1 Governing Law and Disputes. These Platform Terms are governed by the substantive law of the State of Utah. Any controversy or claim arising out of or relating to these Platform Terms, or the breach thereof, including any question regarding their existence, validity, or termination, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, before a single arbitrator, and judgment on the award may be entered in any court having jurisdiction. Both parties are entitled to all forms of discovery permitted under Utah law. The seat of arbitration shall be Salt Lake City, Utah or the defendant's jurisdiction, which must be within the United States of America. The prevailing party is entitled to the costs of arbitration and reasonable attorneys' fees as determined by the arbitrator. Proceedings shall be conducted in English. Where a Services Agreement contains a governing-law or dispute-resolution clause, that clause controls.

13.2 Notices. Notices to MakePop under these Platform Terms may be sent to legal@makepop.ai or to MakePop, LLC, 8661 S Sandy Parkway, Sandy, UT 84070. Notices to Client may be sent to the billing or notice address stated on Client's Service Order.

13.3 Assignment. Client may not assign these Platform Terms or any Platform Subscription without MakePop's prior written consent, except to a successor in interest to all or substantially all of its business. MakePop may assign these Platform Terms to an affiliate or to a successor in interest to all or substantially all of its business.

13.4 Severability and Waiver. If any provision of these Platform Terms is held unenforceable, the remaining provisions remain in full force and the unenforceable provision is modified to the minimum extent necessary to make it enforceable. A failure to enforce a provision is not a waiver of it.

13.5 Relationship. The parties are independent contractors. Nothing in these Platform Terms creates a partnership, joint venture, agency, or employment relationship.