These Creator Terms of Use (“Creator Terms of Use”) constitute a legally binding agreement between TopFan, Inc (“Company”, “we”, “us”, or “our”) and each User who publishes or otherwise makes Content (defined herein) available on or through the Platform (each, a “Creator”). These Creator Terms of Use form a part of, and are hereby incorporated into, the Standard Terms and Conditions (the “Standard Terms”) that govern each Creator’s access to and use of the Platform. Capitalized terms used but not defined herein have the meanings given them in the Standard Terms.
1. CREATOR ACCOUNT; CREATOR DATA
Creators must register an account and create a profile (a “Account”) with us prior to Creator’s use of the Platform as a creator. You agree to create only one (1) unique Creator Account and that you shall be the sole authorized User of your Creator Account. As part of the registration process, Creators will be asked to submit certain information such as their name, email address, profile name and photo/image, date of birth, and to create a Creator Account login password (collectively, “Creator Data”). You agree and represent that all Creator Data you provide to Company will be and remain at all times true, accurate, current and complete. Company may from time to time modify or add to Creator Data information fields required to create a Creator Account, and you agree to promptly complete any such additional or modified information fields when and as requested by Company. You must make sure that your Creator Account profile name complies with the Terms of Service, including these Creator Terms of Use.
Company will have the right to use your Creator Data in connection with servicing and operating the Platform and in other manners as set forth in more detail in our Privacy Policy. You agree (i) to restrict access by any other person or entity to your password or other login information, (ii) to not knowingly use the name or email of any other person without authorization, (iii) to not use an email or profile name that is profane, offensive or otherwise inappropriate, (iv) to not allow any third-party to use your login information, Creator Data or Creator Account, (v) to not re-create any new or additional Creator Account in the event your original Creator Account is suspended or terminated in accordance with the terms hereof, and (vi) to not create an Creator Account using a “bot” or any other form of automated fake profile creation. You agree that you will be liable for all activities that occur under your Creator Account, even if such activities were not committed by you. Company is not responsible for any loss or damage as a result of someone else using Creator Account, Creator Data or password with or without your knowledge.
Please be advised that agencies cannot be Creators. Every Creator is the owner of their own account and must have access to their account at all times. If you have an agent or agency which assists you with the operation of your Creator account (or operates it on your behalf), this does not affect your personal legal responsibility. Our relationship is with you, and not your agent or agency, and you will be legally responsible for ensuring that all Content posted and all use of your account complies with the Terms of Service.
You agree to notify Company of any breach of security by promptly sending Company an e-mail to [email protected].
2. CONTENT; content license
Content Defined
As used herein and throughout the Standard Terms, “Content” shall mean all still images, photography, recorded or live-stream motion videos, text, data, copyrights, trademarks, logos, designs, insignia, images, photos, musical compositions, sound recordings, screenshots, videos, chats, posts, identifying marks, graphics, and other original works of authorship and/or intellectual property that Creator submits or uploads on or through the Platform by a Creator for a User to access, view, listen to, or otherwise interact with, via the Platform.
Creators acknowledge and agree that any Content uploaded to the Platform will automatically become publicly available to all Users of the Platform via the distribution functionalities described in, and in accordance with, the Standard Terms, subject to the ability to designate all or certain Content uploaded by you as Premium Content (defined herein).
Creator Content License
You, in your capacity as a Creator, hereby represent and warrant to Company that: (i) all Content that you publish or otherwise make available on or through the Platform is your original work of authorship for which you are the sole and exclusive owner, or that you have obtained all licenses, consents, releases, and other permissions from the applicable third-party owner(s) thereof as may be necessary to grant Company the Content License in and to such Content hereunder, and (ii) the use of such Content by Company or sublicensee of Company does not, and will not, violate any applicable laws or the rights of any third-party, including, without limitation, any right of publicity, right of privacy, copyright, patent, trademark, or other intellectual property right or proprietary right.
Each Creator retains all right, title and interest in and to any Content (including all copyrights and other intellectual property rights related thereto or contained therein) that it publishes or otherwise makes available on or through the Platform; provided, that each such Creator hereby grants to Company and its affiliates, successors, licensees, and assigns, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, fully paid, transferrable, assignable, sublicensable right and license to use, copy, reproduce, display, distribute, publish, modify, adapt, make derivative works of, make collective works with, translate, and otherwise exploit (i) such Content (including all copyrights and other intellectual property rights related thereto or contained therein) and (ii) such Creator’s name, image, voice, likeness, profile information, and biographical material (as applicable), and any other right of publicity/privacy held by such Creator in connection with such Content, in any and all media now known or hereafter discovered, in connection with the Platform (including, without limitation, the operation thereof and the provision of any tools, products, services, functionalities and/or features now or in the future offered in connection therewith), the advertising, marketing, promotion, publicity, and merchandizing of the Platform and any products and services related thereto, and to identify such Creator as the source of the applicable Content (collectively, the “Content License”), subject to Section 3 (Creator Monetization Terms) below.
By uploading any Content to the Platform, each Creator waives any rights to prior inspection or approval of any marketing or promotional materials for the Platform that relate to such Content. Each Creator also waives any and all rights of privacy, publicity, or any other rights of a similar nature in connection with its Content, or any portion thereof, in connection with the use thereof as contemplated herein. To the extent any moral rights are not transferable or assignable, each Creator hereby waives and agrees never to assert any and all moral rights, or to support, maintain or permit any action based on any moral rights that it may have in or with respect to the use of any Content published or otherwise made available on or through the Platform and hosted on the Platform in accordance with the Standard Terms.
Finally, each Creator acknowledges and agrees that when a Creator elects to delete their Creator Account, such Creator’s Account will be “blocked” by Company and no longer accessible or viewable by Users, and any Content that has previously been uploaded or otherwise made available to Users on the Platform by such Creator will be deleted and such Content will no longer be searchable or accessible via the Platform.
3. CREATOR MONETIZATION TERMS
Creator Earnings
As a Creator on the Platform, you may receive monetary contributions funded by end users (“Fan Payments”) in exchange for access to your subscription-based content (“Premium Content”). All Fan Payments will be received by a third-party payment provider approved by us. We will receive the Fan Payment in full from the relevant payment provider. We will deduct our fee of eighteen percent (18%) of all gross Fan Payments and the remaining eighty-two percent (82%), less credit card processing fees, of the Fan Payment is payable to you ("Creator Earnings"). Our fee includes our costs of providing, maintaining and operating the Platform and storing your Content. Our fee is deducted from the Fan Payment, and Creator Earnings are paid to you in the way described in the Payouts to Creators subsection below.
Payouts to Creators
Your Creator Account will be updated within a reasonable time with your Creator Earnings. Your Creator Earnings will become available for withdrawal by you from your Creator Account once such Creator Earnings appear in your Creator Account. To make a withdrawal of Creator Earnings from your Creator Account, you must have at least the minimum payout amount in your Creator Account.
All Fan Payments and Creator Earnings are transacted in USD only. Your bank may charge you currency conversion or transfer fees to receive the money. Additionally, your e-wallet company may charge you a fee for accessing the money. We do not have control over currency exchange rates or charges imposed by your bank or your e-wallet company, and we are not responsible for paying any charges imposed by your bank or your e-wallet company. If a User successfully seeks a refund or chargeback from their credit card provider in respect of a Fan Payment, we may investigate and may decide to deduct from your account an amount equal to the Creator Earnings earned by you on the charged-back or refunded amount.
Creators who use corporate entities
If you set up a corporate entity to receive your Creator Earnings, you must provide evidence to us on request that you are the Person with Majority Control of that corporate entity. We will only pay your Creator Earnings into a bank account not held in your name where the bank account is held in the name of the corporate entity and you are the Person with Majority Control of that corporate entity. You agree that if you use a corporate entity to receive Creator Earnings you will comply with all laws (including tax laws) which are applicable to corporate entities in the place where the corporate entity is established. For purposes of these Creator Terms of Use, “Person with Majority Control” means any individual who meets one or both of the following conditions in relation to a corporate entity: (i) the individual holds, directly or indirectly, more than 50% of the shares in the corporate entity; or (ii) the individual holds, directly or indirectly, more than 50% of the voting rights in the corporate entity.
Circumstances in which we may withhold Creator Earnings
We may withhold all or any part of the Creator Earnings due to you but not yet paid out if, in our discretion, we think that you have or may have seriously or repeatedly breached any part of the Terms of Service, including but not limited to: (i) if you attempt or threaten to breach any part of the Terms of Service in a way which we think has or could have serious consequences for us or another User (including actual or possible loss caused to us or another User); or (ii) if we suspect that all or any part of the Creator Earnings result from unlawful activity, either by you or by the User who made the Fan Payment resulting in the Creator Earnings. We reserve the right to withhold all or any part of the Creator Earnings due to you but not yet paid out for as long as necessary to investigate the actual, threatened, or suspected breach, and reserve the right to notify you that you have forfeited your Creator Earnings pending the results of our investigation. We shall not have any responsibility to you if we withhold or forfeit any of your Creator Earnings where we have a right to do so under these Creator Terms of Use.
4. NOTIFICATIONS/CONTACT
By providing us with your email address and using the Platform, you hereby affirmatively consent to the use of your email address for notifications from us regarding important Platform announcements and other administrative communications related to your use of the Platform, various services and functionalities offered thereon, and certain marketing and other advertising communications from us and from our third-party advertising partners, as more fully set forth in our Privacy Policy. You will be able to opt out of receipt of certain notifications by following the instructions described in our Privacy Policy; however, if you do not wish to receive certain service and other administrative notifications related to the Platform, your only way to opt out of such messages is to stop using and delete the Platform, and terminate your Creator Account.
5. limitations on platform use
In addition to Section 4 (Limitations on Platform Use) of the Standard Terms, we also don’t allow Creators to conduct any of the following activities:
- Upload any Content that is violates any applicable local, state, national, or international law.
- Upload Content to the Platform, or otherwise interact with other Users to communicate or distribute information, that is defamatory, profane, infringing, obscene, pornographic, unlawful (e.g., drug use or other criminal activity), offensive and/or harmful, including, but not limited to, content that advocates, endorses, condones or promotes racism, bigotry, hatred or physical harm of any kind against any individual or group of individuals.
- Solicit or induce, or attempt to solicit or induce, other User(s) on the Platform to take any actions that could be harmful to such Users or any other person or property, or that otherwise would violate any applicable laws.
- Upload Content to the Platform for which you are not the owner, or for which you have not obtained all rights, clearances, licenses and other consents required to do so and to grant Company the Content License in and to such Content set forth herein.
- Upload Content or other material or software that features any person that has not given you express permission to include such person in such Content and who has not granted you all rights necessary or required for you to grant Company the Content License in and to such Content, including, without limitation, such person’s name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by such person in connection with such Content.
- Upload Content or other material that violates the intellectual property rights (or rights of privacy or publicity) of any third-party or for which you have not obtained the necessary rights or permissions to use accordingly.
- mply or state that any statements you make are endorsed by Company or any other User, without the prior written consent of Company or such User.
- Upload Content that provides materials or access to materials that exploit people under the age of eighteen (18) in an abusive, violent or sexual manner.
If Users who follow your Creator Page include people under the age of 18, then please remind them that they need permission to join the Platform, and those under the age of 13 cannot use the Platform. We are not required to allow any particular person or group of persons to be a User. As a Creator you are also responsible for keeping User data safe. You can see what is required in our Privacy Policy. Each Fan Account that is tied to your Creator Page cannot be sold or transferred for use by another Creator.
6. unlawful activity; suspension or termination of platform access
In addition to our reservation of rights set forth in Section 6 of the Standard Terms, we also reserve the right, in our sole discretion, to seek and obtain any other remedies available to us pursuant to any applicable laws and regulations or at equity as a result of your breach of these Creator Terms of Use or any other act or omission by you that gives rise to a claim by Company, and our decision (due to technical or other reasons at our sole discretion) to disable (or not disable) your Creator Account, suspend or terminate (or not suspend or terminate) your use of, or access to, the Platform, shall be without prejudice to, and shall not be deemed a waiver of, the foregoing.
If we believe that your use of, or any Content published or otherwise made available by you through the Platform violates these Creator Terms of Use, we may contact you directly and request that you promptly cure your breach of these Creator Terms of Use or any other act or omission by you that gives rise to a claim by Company.
We further reserve the right, in our sole discretion and without notice or liability to you, to disable your Account, suspend or terminate your use of, or access to, the Platform (either in whole or in part), or remove, block, hide or otherwise delete any Content that you upload to the Platform, at any time for any reason with any conditions, including, but not limited to, if we believe that you have violated or acted inconsistently with the Terms of Service or any applicable law or that you have engaged in conduct that we determine to be inappropriate or unacceptable in our sole discretion, including, without limitation, any violation of the restrictions set forth in Section 6 hereof. We may also disable your Account, suspend or terminate your access to the Platform, or remove, block, hide or otherwise delete any Content you upload to the Platform, if you file any claim against Company or file any claim that involves the Platform.
We also reserve the right, in our sole discretion, to seek and obtain any other remedies available to us pursuant to any applicable laws and regulations or at equity as a result of your breach of the Terms of Service or any other act or omission by you that gives rise to a claim by Company, and our disabling of your Account, our suspension or termination of your use of, or access to, the Platform, or our removal, blocking, hiding, or deletion of any of your Content, shall be without prejudice to, and shall not be deemed a waiver of, the foregoing. If we terminate, limit, or suspend your right to use the Platform, you are prohibited, without Company’s prior written consent, from registering and creating a new Account under your name, a fake or borrowed name, or the name of any third-party, even if you may be acting on behalf of the third-party. In the event your right to use the Platform terminated, limited, or suspended, the Terms of Service will remain in effect and enforceable against you.
You may terminate the Terms of Service at any time by deleting your Account and ceasing all use of the Platform. Please note that, deleting the Platform from your computer or mobile device will not delete your Account, and any Content that you have previously uploaded will remain on the Platform. If you wish to delete your Account, please login to your Account on the Site or click the Account profile icon in the App, and once inside your Account profile, select "Delete Account". Please note that if you delete your Account, all Content will automatically be deleted. Additionally, if you wish to delete any particular item of Content that you have uploaded to the Platform, you can do so using the Content deletion functionalities within the Platform; provided, deleting your Content will not delete your Account or terminate the Terms of Service.
Notwithstanding the foregoing, whether you voluntarily terminate your Creator Account or your right to use the Platform is terminated, limited, or suspended, all sections of the Terms of Service which by their nature should survive the expiration or termination shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of the Terms of Service.
7. Creator REPRESENTATIONS AND WARRANTIES
You, in your Capacity as a Creator, represent and warrant that: (i) (1) all Creator Data and (2) other information that you submit onto the Platform, is true, accurate, current and complete, and will be submitted solely by you; (ii) you are the sole owner of all right, title and interest in, or have obtained all necessary rights and licenses from the applicable third-party owner of, any Content or other information you submit or upload onto the Platform to grant Company the rights set forth herein, free and clear of further payment or attribution requirements; and (iii) that such Content and other information, when used for the purposes in which it is submitted onto the Platform, does not infringe upon the rights of any third-party, including, without limitation, contract rights, intellectual property rights, propriety rights and rights of publicity/privacy. You acknowledge and agree that you shall be solely responsible for all Creator Data, Content and other information that you post, upload, link to, publish, exchange, or display onto the Platform and that Company reserves the right to reject, refuse to post, edit, modify, remove all or a portion of any such Creator Data, Content or other information from the Platform that Company determines, in its sole discretion, does not comply with the Standard Terms, or for any other reason, without notice or liability to you.
You represent and warrant that any Content, Creator Data, and other information that you upload to the Platform: (i) will not be fraudulent; (ii) will not violate any law, statute, ordinance, or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (iii) will not be defamatory, libelous, unlawfully threatening, or unlawfully harassing; (iv) will not be obscene or contain child pornography or be harmful to minors; (v) will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (vi) will not create liability for Company or cause Company to lose (in whole or in part) the services of its Internet service providers (ISPs) or other partners or suppliers; (vii) will not feature any person that has not given you express permission to include such person in such Content and who has not granted you all rights necessary or required for you to grant Company the Content License in and to such Content, including, without limitation, such person’s name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by such person in connection with such Content; and (viii) will not feature any person under the age of eighteen (18) (or any greater age required to be deemed to have reached the age of majority under the applicable law of the state or jurisdiction of such person’s primary residence) without first obtaining express written permission from such person’s parent or legal guardian, and which written permission shall grant you all rights necessary or required for you to grant Company the Content License in and to such Content, including, without limitation, such person’s name, image, voice, likeness, biographical material, and any other right of publicity/privacy held by such person in connection with such Content.
8. indemnification
You hereby agree to indemnify, defend and hold harmless, the Company Parties defined in Section 12 (Limitation of Liability) of the Standard Terms, from and against any and all losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim, action, or proceeding brought by a third-party based on: (i) your use of, or inability to use, the Platform; and (ii) any breach of any representation, warranty, covenant or obligation of yours under these Creator Terms of Use; (iii) any Creator Data or Content posted by you onto the Platform; or (iv) your violation of any third-party right, including, but not limited to, any intellectual property right. Company shall promptly notify you of any such claim, and you shall assume control of the defense of such claim upon Company’s request. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of Company.
9. DIGITAL MILLENNIUM COPYRIGHT ACT
Pursuant to Section 7 (Digital Millennium Copyright Act) of the Standard Terms, Company reserves the right to remove any Content that allegedly infringes another party’s copyright. Company will terminate, in appropriate circumstances, Creators who are repeat infringers of another party’s copyright. For more information on the DMCA practices implemented by Company please see Section 7 (Digital Millennium Copyright Act) of the Standard Terms.