Terms of Service for Creator

TERMS OF USE FOR CREATORS
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 KimlyTips 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:
    1. "Person with Majority Control" means any individual who meets one or both of the following conditions in relation to a corporate entity:
      1. the individual holds, directly or indirectly, more than 50% of the shares in the corporate entity;
      2. the individual holds, directly or indirectly, more than 50% of the voting rights in the corporate entity;
    2. "VAT" means United Kingdom 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
    3. "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 KH or any other jurisdiction.
  3. Other terms which will apply to your use of KimlyTips: The following terms will also apply to your use of KimlyTips and you agree to them:
    1. Our Terms of Use for all Users;
    2. Our Privacy Policy – which tells you how we use your personal data and other information we collect about you;
    3. Our Acceptable Use Policy – which tells you what you can and can’t do on KimlyTips;
    4. Our Complaints Policy – which sets out the procedure for making a complaint about any aspect of KimlyTips, and how we will deal with that complaint; and
    5. The Standard Contract between Fan and Creator – which does not form part of your agreement with us, but sets out the agreement between you and your Fans for each transaction between you and them.
  4. Other terms which may apply to your use of KimlyTips: The following additional terms may apply to your use of KimlyTips:
    1. 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;
    2. If you are also a Fan, the Terms of Use for Fans will also apply to your use of KimlyTips as a Fan; and
    3. If you participate in the KimlyTips Referral Program, the Referral Program Terms will apply to your use of the KimlyTips Referral Program.
  5. What are the fees that we charge Creators for the use of KimlyTips? We charge a fee to you of twenty per cent (20%) of all Fan Payments made to you (exclusive of any VAT element of the Fan Payment) (called Our Fee). The remaining eighty per cent (80%) of the Fan Payment (exclusive of any VAT element of the Fan Payment) is payable to you (called "Creator Earnings"). Our Fee includes our costs of providing, maintaining and operating KimlyTips 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 section below.
  6. How to set up your account as a Creator account: To set up your account as a Creator account:
    1. 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.
    2. You will need on your User account page to add bank account details of your own bank account or the bank account of a corporate entity in which you are a Person with Majority Control.
    3. You will need on your User account page to select one of the available methods provided by KimlyTips as to how your Creator Earnings will be transferred to you. These methods are called Payout Options.
    4. If you are registered for VAT in the KH, you will need to provide us with your valid KH VAT number. See the Promoting Tax compliance and VAT section of these Terms of Use for Creators in relation to KH VAT.
    5. You may also need to submit additional information depending on the country where you live.
    6. 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.
    7. Once you have set up your account as a Creator account, then if you want to charge your Fans a monthly subscription fee you will need to set your subscription price for your Fans within the range allowed by KimlyTips.
    8. You will then be able to start adding Content and Users will be able to subscribe to your account to become your Fans.
    9. 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. 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.
  8. 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.
  9. Subscriptions and purchases by Fans: This section describes the terms which apply to transactions and interactions between Fans and Creators:
    1. All transactions and interactions facilitated by KimlyTips are contracts between Fans and Creators on the terms of the Standard Contract between Fan and Creator. Although we facilitate transactions and interactions between Fans and Creators by providing the KimlyTips platform, storing Content, and acting as a payment intermediary, we are not a party to the Standard Contract between Fan and Creator or any other contract which may exist between a Fan and Creator, and are not responsible for any transactions or interactions between Fans and Creators.
    2. Fan Payments are exclusive of VAT, which shall be added at the current rate as applicable to Fan Payments.
    3. When a Fan has made the required payment for access to your Content, for the provision of customised Content or for use of the fan interaction function on your account, you must allow the Fan to view the Content paid for and/or provide the customised Content and/or allow the Fan to use the fan 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).
  10. 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 KimlyTips:
    1. Your Content is not confidential, and you authorize your Fans to access and view your Content on KimlyTips for their own lawful and personal use, and in accordance with any licenses that you grant to your Fans.
    2. 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 KimlyTips:
      1. the Content complies in full with the Terms of Service (and in particular our Acceptable Use Policy);
      1. you hold all rights necessary to license and deal in your Content on KimlyTips, including in each territory where you have Fans and in the United Kingdom;
      2. 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 Fans;
      3. 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 KimlyTips; and
      4. 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 Fan has made known to you is the purpose for which the Fan is using the Content; and
        3. as described by you.
    1. You agree that you will be liable to us and indemnify us if any of the warranties at section 10(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.
    2. We are not responsible for and do not endorse any aspect of any Content posted by you or any other User of KimlyTips. We do not have any obligation to monitor any Content and have no direct control over what your Content may comprise.
    3. You also agree to act as custodian of records for the Content that you upload to KimlyTips.
  1. Co-authored Content:
    1. 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) that each individual shown in any Co-Authored Content uploaded to your account:
      1. is a Creator on KimlyTips;
      1. has given his or her express, prior and fully informed consent to his or her appearance in the Co-Authored Content; and
      2. has consented to the Co-Authored Content in which he or she appears being posted on KimlyTips.
    1. In addition to the confirmations in section 11(a) above, you agree that if you upload Co-Authored Content where the other person or people appearing in the Content can be identified from the Content, you will tag the KimlyTips account(s) of any person or people appearing in the Co-Authored Content who can be identified from it.
    2. You must not upload any Content containing any image, photo, video or audio of anyone else other than or addition to you unless such person is also a Creator on KimlyTips.
    3. 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 KimlyTips.
    4. You agree that we will only pay out Creator Earnings 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 Creators shown in such Co-Authored Content. Any such revenue-sharing agreement shall be an independent, private agreement between Creators, 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.
    5. 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 appeared in the Co-Authored Content (as applicable).
  1. Payouts to Creators:
    1. All Fan Payments will be received by a third-party payment provider approved by us.
    2. If you have chosen the Stripe Payout Option, we will ensure that Stripe, acting as our payment provider, will collect the Fan Payment and:
      1. pay Our Fee on the Fan Payment to an account held in our name; and
      1. pay the Creator Earnings to your bank account or the bank account of a corporate entity in which you are a Person with Majority Control (see section 8 above).
    1. Where Stripe is not the Payout Option chosen by you, we will receive the Fan Payment in full from the relevant payment provider. We will deduct Our Fee from the Fan Payment and then will hold the Creator Earnings on your behalf in our capacity as your agent.
    2. Your KimlyTips account will be updated within a reasonable time with your Creator Earnings. Your Creator Earnings will become available for withdrawal by you from your KimlyTips account once such Creator Earnings appear in your KimlyTips account.
    3. To make a withdrawal of Creator Earnings from your KimlyTips account, you must have at least the minimum payout amount in your KimlyTips 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.
    4. The amount that you see in your ‘current balance’ in your KimlyTips account is your Creator Earnings at the relevant time. All Fan Payments and Creator Earnings are transacted in USD only. If you have chosen the “Stripe” Payout Option then the Fan 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 are not responsible for paying any charges imposed by your bank or your e-wallet company.
    5. If a Fan 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.
    6. Except for Payout Options involving payment by direct bank transfer from us, we do not store any data disclosed by you when you register your Payout Options with a third-party payment provider.
  1. Circumstances in which we may withhold Creator Earnings:
    1. We may withhold all or any part of the Creator Earnings due to you but not yet paid out:
      1. if we think that you have or may have seriously or repeatedly breached any part of the Terms of Service;
      1. 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
      2. if we suspect that all or any part of the Creator Earnings result from unlawful activity, either by you or by the Fan who made the Fan 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 activity, we may notify you that you have forfeited your Creator Earnings.
    1. 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.
    2. 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 activity, then we may pay to you the part of the Creator Earnings which we determine to be unrelated to breaches by you of the Terms of Service or suspected unlawful 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.
    3. If once we have finished our investigation, we determine that Creator Earnings are forfeited, we will use our best efforts to return any Fan Payments which resulted in forfeited Creator Earnings to the relevant Fans who paid such Fan Payments.
  1. Promoting Tax compliance and VAT:
    1. General:
      1. 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.
      2. By using KimlyTips 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 KimlyTips to the relevant Tax authority in your jurisdiction, as required by law.
      3. By using KimlyTips 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 KimlyTips 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 mail@KimlyTips.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 mail@KimlyTips.com with:
          1. 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
          2. such other information in relation to the occurrence of the Tax non-compliance as we may reasonably require.
      4. For the avoidance of doubt, you are responsible for your own Tax affairs and KimlyTips is not responsible or liable for any non-payment of Tax by Creators.
      5. We reserve the right to close your KimlyTips account if we are notified of or become aware of any Tax non-compliance by you.
    2. KH VAT and KH established Creators:
      1. For the purposes of KH VAT only, Creators are treated as providing their services to KimlyTips, rather than to Fans directly.
      2. If you are a Creator registered for KH VAT:
        1. You will be treated, for VAT purposes, as charging KimlyTips your Creator Earnings (80% of all and any Fan Payments), together with KH VAT at the prevailing rate in force at the time of the Fan Payment;
        2. KimlyTips also agrees that, subject to the terms set out in this section of these Terms of Use for Creators, you can add KH VAT at the prevailing rate in force at the time of the referral payment to the amount of any referral payments payable to you under the Referral Program Terms ("Referral Payments").
        3. You agree to use the KimlyTips VAT invoice generator tool which can be found at: https://KimlyTips.com/my/banking/vat/create-document to generate monthly VAT invoices, addressed to Fenix International Limited, in respect of your Creator Earnings (and Referral Payments, if any) for the relevant period together with the VAT on such Creator Earnings (and Referral Payments, if any);
        4. The VAT element added to your Creator Earnings (and Referral Payments, if any) (the "VAT Amount") will be paid to you by us by way of a separate payment outside of your regular Creator Earnings, provided that you must have submitted to us copies of the following before payment of the VAT Amount will be made by us:
          1. your VAT registration number by completing this form https://KimlyTips.com/my/banking/vat;
          2. a valid VAT invoice generated and submitted using the KimlyTips VAT invoice generator tool and uploaded using https://KimlyTips.com/my/banking/vat/add-documents; and
          3. a VAT return made to HM Revenue & Customs, including a value of taxable supplies equal to or greater than the aggregate value of your Creator Earnings (and Referral Payments, if any) for the relevant period. You can find the monthly earning details at https://KimlyTips.com/my/stats/earnings;
      3. You shall pay the VAT Amount which is paid to you by us directly to HM Revenue & Customs;
      4. If you need any further information or assistance on what is needed in order to receive the VAT Amount you can email mail@KimlyTips.com.
      5. You agree that you will keep copies of all VAT invoices and VAT returns in connection with your earnings from KimlyTips and you will provide us with copies of such documents within 14 days of our written request that you do so. For the avoidance of doubt, it is your obligation to comply with all provisions of VAT legislation and make, give, obtain, maintain and keep accurate, complete and up-to-date records, invoices, accounts and other documents required for the purposes of the VAT legislation.
      6. If you are a Creator in the KH who is not required to register for KH VAT, then you should monitor the level of taxable sales that you make in the KH (including any Referral Payments) to ensure you have not exceeded the VAT registration threshold in the KH. It is your obligation, as a taxable person, to monitor whether you have exceeded the VAT registration threshold.
      7. We do not monitor earnings that Creators receive from other income sources. However, we will monitor the annual earnings of KH Creators on our platform, and if you are not already VAT registered and your earnings exceed the VAT registration threshold, you will receive a notification from us asking you to register for VAT. If you receive such a VAT registration notification, you agree to register for VAT as soon as possible and to send your VAT registration number to us at mail@KimlyTips.com, within 6 weeks of such notification. Failure to do so may result in your KimlyTips account being closed.
Last updated: March 2021