Introduction: This Contract between ProFans and Creator ("this agreement") sets out the terms which govern each transaction between a Fan and a Creator on profansonly.com.
When does this agreement apply? Each time a Fan/Creator Transaction is initiated on profansonly.com, this Standard Contract between Fan and Creator will apply to the exclusion of any other terms which the Fan or Creator may propose, and this Standard Contract between Fan and Creator will legally bind the Fan and Creator participating in the Fan/Creator Transaction.
Parties: The only parties to this agreement are the Fan and Creator participating in the Fan/Creator Transaction. Profans is not a party to this agreement and neither grants any rights in respect of, nor participates in, any Fan/Creator Transaction, except for acting as a payment intermediary in accordance with the Creator’s and Fan’s instructions set out in section 5 of this agreement.
Interpretation: In this agreement, defined terms have the following meanings:
"PROFANS" means the website accessed via the URL profansonly.com or via any web browser;
"Content" means any material uploaded to profansonly.com by any User (whether a Creator or a Fan), including any photos, videos, livestream material, data, text (such as comments and hashtags), metadata, images, interactive features, emojis, GIFs, memes, and any other material whatsoever;
"Creator" means a User who has set up their profansonly.com account as a Creator account to post Content on profansonly.com to be viewed by other Users;
"Fan" means a User who follows a Creator and is able to view the Creator's Content;
"Referring User" means a User who participates in the profansonly.com Referral Program;
"Fan/Creator Transaction" means any transaction between a Fan and a Creator on profansonly.com by which access is granted to the Creator's Content in any of the following ways: (i) a Subscription, (ii) payments made by a Fan to view a Creator's pay-per-view Content (pay-per-view media and pay-per-view live stream), and (iii) payments made by a Fan to use the fan interaction function on a Creator's account;
"Fan Payment" means (i) any and all payments made by a Fan in respect of any Fan/Creator Transaction, and (ii) any and all tips;
"Subscription" means a Fan's monthly subscription to a Creator's account;
"VAT" means Kenya 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
"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 Republic of Kenya or any other jurisdiction.
Pricing and payment: By entering into a Fan/Creator Transaction, the Fan agrees to pay the Fan Payment applicable to the relevant Fan/Creator Transaction in accordance with the pricing. published in the Creator's account plus any VAT which is applicable. The Fan and Creator participating in the Fan/Creator Transaction authorize Botsmiths Limited or any of its subsidiaries to act as a payment intermediary and to collect, hold, and process the Fan Payment and any applicable VAT, to deduct the Fees, and to pay out the sums due to Creators and (if applicable) Referring Users, as described in the Terms of Service.
License of Content: Once the Fan has made the Fan Payment for a Fan/Creator Transaction, the Creator grants to the Fan a limited license to access the applicable Content of that Creator to which the Fan/Creator Transaction relates (the "Relevant Content"). This license is non-transferable, non-sublicensable and non-exclusive, and permits the Fan to access and view the Relevant Content on the Fan's personal device and via a normal web browser (and to make a temporary copy of such Content only to the extent that this is an incidental and technical process forming part of the Fan's accessing the Content (i.e. caching)), in accordance with the profansonly.com Terms of service.
Ownership of Content: The Fan participating in the Fan/Creator Transaction acknowledges and agrees that the license of the Relevant Content provided in section 6 of this agreement does not result in the Fan acquiring any rights in or to the Relevant Content, which rights shall be retained by the Creator of the Relevant Content.
Expiry of license: The license granted to a Fan in relation to the Relevant Content will expire automatically without notice in the following circumstances:
if the Fan Payment related to the Fan/Creator Transaction was unsuccessful, or is charged back or reversed for any reason;
in respect of pay-per-view Content, once the Fan has completed viewing the Content;
in respect of Subscriptions, at the end of the subscription period, unless the Subscription is configured to automatically renew.
if the Fan's User account is suspended or terminated for any reason;
if the Fan acts in breach of the Profans Acceptable Use Policy (whether in relation to the Relevant Content or at all);
if the Content is removed by the Creator from the Creator's account;
if the Fan closes their profansonly.com User account.
Cancellation and refunds: In respect of every Fan/Creator Transaction:
The Fan acknowledges that the Fan/Creator Transaction will result in a supply of the relevant Content to the Fan before the end of the period of 14 days from the date when the Fan/Creator Transaction is entered into, and the Fan gives his or her express consent to this and confirms to the Creator that he or she is aware that any statutory right to cancel the Fan/Creator Transaction which the Fan has under the Consumer Rights Act 2010 or any other applicable law will therefore be lost.
This agreement does not affect any statutory right to receive a refund from the Creator which a Fan may have under the Consumer Rights Act 2010 or any other applicable law.
Obligations between Creator and Fan: In respect of every Fan/Creator Transaction:
The Fan and the Creator participating in the Fan/Creator Transaction agree to comply at all times with the profansonly.com Acceptable Use Policy in relation to the Relevant Content, including when accessing, viewing and interacting with it.
The Fan participating in the Fan/Creator Transaction agrees to make the Fan Payment required to access, view or interact with the Relevant Content, and agrees not to initiate a chargeback other than if the Fan disputes the Fan/Creator Transaction in good faith.
The Creator participating in the Fan/Creator Transaction agrees to make the Relevant Content available to the Fan once the Fan has made the Fan Payment applicable to the Relevant Content.
The Creator warrants (makes a legally enforceable promise) that it possesses all necessary rights in and to the Relevant Content sufficient to license it to the Fan in the territory in which the Fan will be accessing the Relevant Content, and has obtained any and all permissions and consents needed to grant the license in section 6 of this agreement.
The Creator is solely responsible for creating and uploading the Relevant Content. The Creator provides no guarantees that it will continue to create and upload Relevant Content on an ongoing basis.
Unless there has been negligence or other breach of duty by the Creator, the accessing by the Fan of the Creator's Content is entirely at the Fan's own risk.
No guarantees: The Fan participating in the Fan/Creator Transaction acknowledges that Creators may add and remove Content at any time from their Creator account, and that Creators have the discretion to decide what sort of Content to make available on their account. In addition, the Fan participating in the Fan/Creator Transaction acknowledges that there may be circumstances where it is not possible for the Fan to access to Relevant Content to be provided under the Fan/Creator Transaction, including:
if the Creator's account is suspended or deleted;
if the Fan's account is suspended or deleted;
if the availability of all or any part of Profansonly site is suspended or inaccessible; or
if the Creator is unable to create or upload Relevant Content in the future.
Terms relating to disputes:
This agreement is governed by kenyan law and Kenyan law will apply to any claim that arises out of or relates to this agreement. The Fan will also be able to rely on mandatory rules of the law of the country where he or she lives.
Where claims can be brought:
If this agreement is with a Fan resident in the Kenya, any claim under this agreement may be brought in the courts of Kenya or the courts of the country where the Fan lives.
If this agreement is with a Fan resident outside of the Republic of Kenya any claim under this agreement must be brought in the courts of Kenya, unless the Fan and Creator otherwise agree.