Terms of Use for Creators
Last updated: March 2022
BY USING OUR WEBSITE AS A CREATOR YOU AGREE TO THESE TERMS – PLEASE READ THEM CAREFULLY
1. Introduction: These Terms of Use for Creators are additional terms which apply if you use Fetishonly as a Creator (also referred to as "you" and "your" in these Terms of Use for Creators). These Terms of Use for Creators form part of your agreement with us.
2. Interpretation: In these Terms of Use for Creators, defined terms have the same meanings given to them in the Terms of Use for all Users. In addition:
a. "VAT" means United States value added tax and any other tax imposed in addition to or in substitution for it at the rate from time to time imposed and any equivalent or similar governmental, state, federal, provincial, or municipal indirect tax, charge, duty, impost or levy in any other jurisdiction; and
b. "Tax" shall include all forms of tax and statutory, governmental, state, federal, provincial, local government or municipal charges, duties, imposts, contributions, levies, withholdings or liabilities wherever chargeable and whether of the US or any other jurisdiction.
3. Other terms which will apply to your use of Fetishonly: The following terms will also apply to your use of Fetishonly and you agree to them:
a. Our Terms of Use for all Users;
b. Our Privacy Policy – which tells you how we use your personal data and other information we collect about you;
c. Our Acceptable Use Policy – which tells you what you can and can’t do on Fetishonly;
d. Our Complaints Policy – which sets out the procedure for making a complaint about any aspect of Fetishonly, and how we will deal with that complaint;
e. The Standard Contract between Member and Creator – which does not form part of your agreement with us, but which governs and sets out the terms applicable to each Member/Creator Transaction you enter into on Fetishonly; and
f. Our Community Guidelines – which provide additional terms and guidance regarding your interactions with Fetishonly.
4. Other terms which may apply to your use of Fetishonly: The following additional terms may apply to your use of Fetishonly:
a. If you are established or resident in the European Union or the United Kingdom, then the Platform to Business Regulation Terms will also apply to you;
b. If you are also a Member, the Terms of Use for Members will also apply to your use of Fetishonly as a Member; and
5. What are the fees that we charge Creators for the use of Fetishonly? We charge a fee to you of thirty percent (20%) of all Member Payments made to you (exclusive of any VAT element of the Member Payment) (called Our Fee. The remaining seventy per cent (80%) of the Member Payment (exclusive of any VAT element of the Member Payment) is payable to you (called "Creator Earnings"). Our Fee includes the costs of providing, maintaining and operating Fetishonly and storing your Content. Our Fee is deducted from the Member Payment, and Creator Earnings are paid to you in the way described in the Payouts to Creators section below.
6. How to set up your account as a Creator account: To set up your account as a Creator account:
a. You will need on your User account page to upload a valid form of ID and two photos of you in accordance with the requirements set out here.
b. You will need on your User account page to add a bank account or payment details of your bank account or a payment method.
c. You will need on your User account page to select one of the available methods provided by Fetishonly as to how your Creator Earnings will be transferred to you. These methods are called Payout Options.
d. If you are registered for VAT / EIN in the US, you will need to provide us with your valid US EIN number. See the section of these Terms of Use for Creators in relation to US VAT/ EIN.
e. You may also need to submit additional information depending on the country where you live.
f. We may ask you for additional age or identity verification information at any time. We may reject your application to set up a Creator account for any reason, including the reasons stated.
g. Once you have set up your account as a Creator account, then if you want to charge your Members a monthly subscription fee you will need to set your subscription price for your Members within the range allowed by Fetishonly as set out.
h. You will then be able to start adding Content and Users will be able to subscribe to your account to become your Members.
i. If you lose access to your account, you can reset your password, but you will need to know the email address used to set up the account to do so. If you do not recall the email address used to set up the account, we may require you to provide identification documents and photos and any additional evidence we may reasonably require to prove your identity.
7. Personal legal responsibility of Creators: Only individuals can be Creators. Every Creator is bound personally by the Terms of Service. If you have an agent, agency, management company or other third party 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 with any third party, and you will be legally responsible for ensuring that all Content posted and all use of your account complies with the Terms of Service.
8. Member/Creator Transactions: This section describes the terms which apply to Member/Creator Transactions:
a. All Member/Creator Transactions are contracts between Members and Creators on the terms of the Standard Contract between Member and Creator. Although we facilitate Member/Creator Transactions by providing the Fetishonly platform and storing Content, we are not a party to the Standard Contract between Member and Creator or any other contract which may exist between a Member and Creator, and are not responsible for any Member/Creator Transaction.
b. Member Payments are exclusive of VAT, which shall be added at the current rate as applicable to Member Payments.
c. When you receive confirmation from Fetishonly, either in the
‘Statements ’page of your User account or by email (or both), that the Member/Creator Transaction has been confirmed, you must perform your part of such Member/Creator Transaction (for example, by allowing the Member to view the Content on your Creator account and/or providing the customized Content paid for by the Member and/or allowing the Member to use the Member interaction function paid for (as applicable)). You agree that you will indemnify us for any breach by you of this obligation (which means you will be responsible for any loss or damage (including loss of profit) we suffer as a result of you failing to comply with this obligation).
9. Content – general terms: In addition to the terms set out elsewhere in the Terms of Service (in particular in our Acceptable Use Policy), the following terms apply to the Content posted, displayed, uploaded or published by you as a Creator on Fetishonly:
a. Your Content is not confidential, and you authorize your Members to access and view your Content on Fetishonly for their own lawful and personal use, and in accordance with any licenses that you grant to your Members.
b. You warrant (which means that you make a legally enforceable promise to us) that for each item of Content which you post, display, upload or publish on Fetishonly:
i. the Content complies in full with the Terms of Service (and in particular our Acceptable Use Policy);
ii. you hold all rights necessary to license and deal in your Content on Fetishonly, including in each territory where you have Members and in the United States;
iii. you either own your Content (and all intellectual property rights in it) or have a valid license to offer and supply your Content to your Members;
iv. if your Content includes or uses any third-party material, you have secured all rights, licenses, written consents and releases that are necessary for the use of such third-party property in your Content and for the subsequent use and exploitation of that Content on Fetishonly; and
v. the Content is: 1. of satisfactory quality, taking account of any description of the Content, the price, and all other relevant circumstances including any statement or representation which you make about the nature of the Content on your account or in any advertising;
2. reasonably suitable for any purpose which the Member has made known to you is the purpose for which the Member is using the Content; and
3. as described by you.
c. You agree that you will be liable to us and indemnify us if any of the warranties at section 9(b) is untrue. This means you will be responsible for any loss or damage (including loss of profit) we suffer as a result of any of the warranties being untrue.
d. We are not responsible for and do not endorse any aspect of any Content posted by you or any other User of Fetishonly. We do not have any obligation to monitor any Content and have no direct control over what your Content may comprise.
e. You also agree to act as custodian of records for the Content that you upload to Fetishonly.
10. Advertising on Fetishonly:
a. If you post or upload video Content to your Creator account which is designed to promote, directly or indirectly, a third-party goods, services or image in return for payment, other valuable consideration, or self-promotional purposes (including advertising, sponsorship, and product placement) (together "Advertising Content"), then you must comply with the requirements set out in sections 10(b) and (c) of these Terms of Use for Creators.
b. Requirements – Advertising Content: You must ensure that any Advertising Content which you post to your Creator account:
i. does not:
1. prejudice respect for human dignity;
2. include or promote discrimination based on sex, racial or ethnic origin, nationality, religion or belief, disability, age or sexual orientation;
3. encourage behavior prejudicial to health or safety;
4. encourage behavior grossly prejudicial to the protection of the environment;
5. cause physical, mental or moral detriment to any person;
6. directly urge persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;
7. directly encourage persons to persuade others to purchase or rent goods or services;
8. exploit the trust of persons in others; or
9. unreasonably show persons in dangerous situations;
ii. does not advertise cigarettes and other tobacco products, electronic cigarettes and electronic cigarette refill containers, illegal drugs, or any prescription-only medicine;
iii. does not advertise, promote, or facilitate illegal gambling, and
iv. in respect of any Advertising Content for alcoholic drinks, is not aimed at minors and does not encourage immoderate consumption of alcohol.
c. Transparency requirement - Advertising Content: You must declare that any Advertising Content which you post or upload to Fetishonly contains advertising by including the signifier #ad in the caption to the Advertising Content before posting or uploading.
11. Co-authored Content:
a. If you upload Content to your Creator account which shows anyone else other than or in addition to you (even if that person cannot be identified from the Content) ("Co-Authored Content"), you warrant (which means you make a legally enforceable promise to us) that each individual shown in any Co-Authored Content uploaded to your account is i) a Creator on Fetishonly; or ii) a consenting adult, and that you have verified the identity and age of each such individual and will provide supporting documents as we may request in our discretion.
b. You further warrant that you have obtained and keep on record written consent from each individual shown in your Co-Authored Content that such individual:
i. has given his or her express, prior and fully informed consent to his or her appearance in the Co-Authored Content; and
ii. has consented to the Co-Authored Content in which he or she appears being posted on Fetishonly.
c. In addition to the confirmations in sections 11(a) and (b) above, you agree that if you upload Co-Authored Content where the other person or people appearing in the Content maintain a Creator account on Fetishonly, you will tag the Fetishonly account(s) of any person or people appearing in the Co-Authored Content who can be identified from it.
d. If any Co-Authored Content is a work of joint authorship, you are solely responsible for obtaining any required licenses or consents from any other joint authors of the Content which are sufficient to permit such Content to be uploaded to and made available on Fetishonly.
e. You agree that we will only arrange for Creator Earnings to be paid to the account of the Creator to which the Co-Authored Content is uploaded. The Creator who uploaded the Co-Authored Content is solely responsible for dividing and distributing any revenue generated from the Co-Authored Content between the individuals shown in such Co-Authored Content. Any such revenue-sharing agreement shall be an independent, private agreement between you and such individual(s), and we are not responsible for providing or enforcing any such agreements. You understand and agree that you are not entitled to any Creator Earnings earned on any Co-Authored Content in which you appear but which is posted on another Creator’s account. If you post Co-Authored Content on your account, we may require you to provide valid and complete legal information for all individuals which appear in the Co-Authored Content. If you fail to provide any information requested by us upon our request, we may delete the Co-Authored Content, restrict your rights and permissions to post as a Creator, terminate your account, and/or withhold all or any portion of Creator Earnings earned but not yet paid out to you.
f. You agree to release us from and not to make any claims against us arising from Co-Authored Content. You agree that all claims arising from Co-Authored Content shall be made against the Creator(s) who posted Co-Authored Content or the individual(s) who appeared in the Co-Authored Content (as applicable).
12. Payouts to Creators:
a. All Member Payments will be received by a third-party payment provider approved by us.
b. If you have chosen the Stripe Payout Option, Stripe will collect the Member Payment and pay the Creator Earnings to your bank account.
c. Where Stripe is not the Payout Option chosen by you, Our Fee will be deducted from the Member Payment received and your Creator Earnings will be held by us or one of our subsidiary companies on your behalf.
d. Your Fetishonly account will be updated within a reasonable time with your Creator Earnings. Your Creator Earnings will become available for withdrawal by you from your Fetishonly account once such Creator Earnings appear in your Fetishonly account.
e. To make a withdrawal of Creator Earnings from your Fetishonly account, you must have at least the minimum payout amount in your Fetishonly account. Please click on the Banking page on your account to see what the minimum payout amount is for your country of residence and Payout Option.
f. The amount that you see in your ‘current balance ’in your Fetishonly account is your Creator Earnings at the relevant time. All Member Payments and Creator Earnings are transacted in USD only. If you have chosen the "Stripe" Payout Option then the Member Payments and Creator Earnings figures will be reflected in your local currency, at an exchange rate controlled by Stripe. 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 and our subsidiary companies will not be responsible for paying any charges imposed by your bank or your e-wallet company.
g. If a Member successfully seeks a refund or chargeback from their credit card provider in respect of a Member Payment made to you, 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.
h. Except for Payout Options involving payment by direct bank transfer, we do not store any data disclosed by you when you register your Payout Options with a third-party payment provider.
13. Circumstances in which we may withhold Creator Earnings:
a. We may withhold all or any part of the Creator Earnings due to you but not yet paid out:
i. if we think that you have or may have seriously or repeatedly breached any part of the Terms of Service;
ii. 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
iii. if we suspect that all or any part of the Creator Earnings result from unlawful or fraudulent activity, either by you or by the Member who made the Member Payment resulting in the
Creator Earnings,
for as long as is necessary to investigate the actual, threatened or suspected breach by you or the suspected unlawful activity (as applicable). If following our investigation, we conclude that (i) you have seriously or repeatedly breached any part of the Terms of Service; (ii) you have attempted or threatened to breach any part of the Terms of Service in a way which has or could have serious consequences for us or another User (including actual or possible loss caused to us or another User), and/or (iii) the Creator Earnings result from unlawful or fraudulent activity, we may notify you that you have forfeited your Creator Earnings.
b. We may also withhold all or any part of the Creator Earnings due to you but not yet paid out if we receive notice that you have secured, encumbered, pledged, assigned, or otherwise allowed a lien to be placed on Creator Earnings. We undertake no duty to pay Creator Earnings to third-party lienholders and may withhold payment of Creator Earnings until the lien has been removed.
c. 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 Terms of Use for Creators.
d. If we are withholding all or any part of the Creator Earnings due to you and we determine that part of the Creator Earnings withheld by us is unrelated to breaches by you of the Terms of Service or suspected unlawful or fraudulent activity, then we may arrange for you to be paid the part of the Creator Earnings which we determine to be unrelated to breaches by you of the Terms of Service or suspected unlawful or fraudulent activity. However, you agree that if we consider that your breach(es) of the Terms of Service has or may cause us loss, we may withhold all Creator Earnings due to you but not yet paid and we may set off such amounts against any losses suffered by us.
e. If once we have finished our investigation we determine that Creator Earnings are forfeited, we will (unless prohibited by law) use our best efforts to ensure that any Member Payments which resulted in forfeited Creator Earnings are returned to the relevant Members who paid such Member Payments.
14. Promoting Tax compliance and VAT:
a. General:
i. We recommend that all Creators seek professional advice to ensure you are compliant with your local Tax and VAT rules, based on your individual circumstances.
ii. By using Fetishonly as a Creator, you warrant (which means you make a legally enforceable promise) that you have reported and will report in the future the receipt of all payments made to you in connection with your use of Fetishonly to the relevant Tax authority in your jurisdiction, as required by law.
iii. By using Fetishonly as a Creator you warrant (which means you make a legally enforceable promise) that you will at all times comply with all laws and regulations relating to Tax which apply to you. If, at any point whilst you have an
Fetishonly account, any Tax non-compliance occurs in relation to you (including a failure by you to report earnings or the imposition on you of any penalty or interest relating to Tax) or if any litigation, enquiry, or investigation is commenced against you that is in connection with, or which may lead to, any occurrence of Tax non-compliance, you agree that you will:
1. notify us by email to support@fetishonly.com in writing within 7 days of the occurrence of the Tax non-compliance or the commencement of the litigation, enquiry or investigation (as applicable); and
2. promptly provide us by email to support@fetishonly.com with:
a. details of the steps which you are taking to address the occurrence of the Tax non-compliance and to prevent the same from happening again, together with any mitigating factors that you consider relevant; and
b. such other information in relation to the occurrence of the Tax non-compliance as we may reasonably require.
iv. For the avoidance of doubt, you are responsible for your own Tax affairs and we and our subsidiary companies (i) are not responsible for advising you on your Tax affairs and will not be liable in respect of any general information provided on Fetishonly or by support@fetishonly.com in respect of Tax, and (ii) will not be liable for any non-payment of Tax by Creators.
v. We reserve the right to close your Fetishonly account if we are notified of or become aware of any Tax non-compliance by you.
b. US and Non US Creators:
i. US Citizens are required to enter a Social Security number or a Federal Tax ID to receive payments. We also require you to fill out a W-9 form. Non-US Citizens are required to fill out a W-8 form. For assistance with obtaining or filling out your current tax forms, please
email support@fetishonly.com All US Webmasters will receive a 1099 mailed to them at the beginning of the new tax year. Everyone is responsible for their own tax reporting, and agrees to adhere to local laws and regulations regarding doing so. You agree to hold Web Tech Advantage Corp an its affiliates harmless for any liability related to your personal income withholding and reporting.
15. Others:
*Prohibit any activity that is illegal or otherwise violates the Standards
*Require the content provider to obtain and keep on record written consent from all persons depicted in the content specific to the following areas:
• Consent to be depicted in the content
• Consent to allow for the public distribution of the content and to upload the content to the Merchant’s website
• If the content will be made available for downloading by other users, consent to have the content downloaded
*Require the content provider to verify the identity and age of all persons depicted in content to ensure that all persons depicted are adults and to be able to provide supporting documents upon request.