Terms of Service

SERVICES ORDER FORM

"Onboarding Form" means the digital questionnaire and registration form, powered by Typeform, that is completed by Creator prior to engaging the Company's services, and to which this Agreement is hyperlinked. The Onboarding Form contains essential business terms, including but not limited to service fee percentages and billing preferences, which are incorporated by reference into this Agreement. Creator's submission of the completed Onboarding Form, including clicking "agree" and "submit" (or similar affirmative actions), shall constitute execution of this Agreement and shall have the same legal force and effect as a physical signature. References throughout this Agreement to "signing," "execution," "signature," or similar terms shall be deemed to include Creator's submission of the Onboarding Form.

Customer Account(s): The Company will service those accounts authorized in writing by the Client.

Services: Communications Management Software (the “Service(s)”).

Services Fees: A percentage (as specified in the onboarding form) of revenue directly produced by the Company on the Customer Account(s). This percentage will be calculated from either gross revenue (before OnlyFans' commission) or net revenue (after OnlyFans' commission), as indicated in the Onboarding Form. This amount will be billed weekly, though the Company may choose an alternate billing period at its discretion.

Initial Service Term: 1 week

Warranty: If the Customer is not satisfied with the services provided, the Customer may terminate this agreement, providing 24 hours notice in writing. The Customer will be billed for services provided by the Company up to and including the date of termination.

SAAS SERVICES AGREEMENT

This Services Agreement (“Agreement”) is entered into as of the date of the Onboarding Form submission (the “Effective Date”) between WHISPER SOFTWARE, LLC, a company registered at 8 The Green, Suite # 16144, Dover, DE 19901, US (“Whisper” or “Company”), and the Customer (individual or entity) submitting the Onboarding Form (“Customer” or “Client”). The Company and the Client shall individually be referred to as a “Party” and collectively as the “Parties”. This Agreement includes and incorporates the Onboarding Form, above Order Form, as well as the attached Terms and Conditions and contains, among other things, warranty disclaimers, liability limitations and use limitations.  There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.  

By submitting the Onboarding Form, the Customer represents and warrants that they are the individual who controls the account(s) associated with this Agreement, and that they have the authority to enter into this Agreement.

I. SUBJECT OF THE AGREEMENT, DEFINITIONS

1. The Client, either an active member of the platform listed in the 'Customer Account(s):' section ("Platform") or an individual or entity who controls the account in question, enters into this Agreement with the Company for the management and provision of communication services related to the Client's Platform account.

2. Under this Agreement, the Company will provide the Client with assistance as outlined in Article II, and the Client agrees to compensate the Company for these services according to the terms and conditions set forth in this Agreement.

3. Services: "Services" refers to the proprietary software provided by the Company that, using the Customer's name and likeness and at the Customer's discretion, facilitates the generation and dissemination of content, as well as interaction with the Customer's fanbase on specified platform(s) as listed in the 'Customer Account(s)' section. The Services include but are not limited to the facilitation of content sale and communication, with potential future functionality including generative AI that can produce content utilizing the Customer's name and likeness (e.g., video, voice, image, text). The Services allow the Customer to sell uploaded content to and engage with the Customer's fanbase with the Company’s software.

4. Customer Data: "Customer Data" refers to any and all data, including but not limited to Personal Data, content, messages, and other information, that resides on, is uploaded to, or is otherwise accessible through the specified platform(s) as listed in the 'Customer Account(s)' section in relation to the Customer's account and the Company's provision of Services.

5. Personal Data: "Personal Data" refers to any information or set of information that identifies or could be used by or on behalf of the Company to identify an individual or entity. Personal Data does not include information that is anonymized, aggregated, de-identified, or publicly available information that has not been combined with non-public Personal Data.

II. RIGHTS AND OBLIGATIONS OF THE PARTIES

1. Company's Obligations:

a. Provide Services which generate earnings for the client.

2. Company's Rights:

a. Access and process Customer Data and Personal Data as required to fulfill its obligations under this Agreement.

b. Provide software that interacts with the Platform in any way necessary to fulfill its obligations under this Agreement. This includes, but is not limited to, actions such as responding to messages, sending content, creating content, and performing any other operations as directed by the Client. The Client acknowledges and agrees that the software is permitted to take any action on the Platform as necessary to provide the Services under this Agreement.

c. Right to use name and likeness: Customer hereby consents to the use of their name, likeness, identity, trademarks, intellectual property, and trade symbols, for the purposes of fulfilling this Agreement and in connection with the promotion, advertising, distribution, financing, marketing, and production of the Services or derivatives therefrom, and for general organizational promotional purposes.

3. Client's Obligations:

a. Provide all necessary Personal Data, Customer Data, and authorizations to enable the Company to fulfill its obligations under this Agreement. The person signing this Agreement confirms that they are an adult, have full authority to register and control the associated accounts on any third-party Platform used in conjunction with our services, comply with all internal regulations and/or privacy policies of such platforms, and that the person signing has full authority to control the said accounts.

b. Upon request of Company, upload new content and material to the Platform as appropriate for the Company to fulfill its obligations under this Agreement.

c. Pay for the services provided by the Company in a timely manner and in accordance with the terms and conditions of this Agreement.

d. Support the Company in fulfilling its obligations under this Agreement, providing all necessary documents and information in a timely manner.

e. Refrain from changing the account's username and password on any third-party platform used in conjunction with our services without the Company's prior written consent, or without notifying the Company in writing within 24 hours of the change.

f. Customer agrees to not use the Service in any manner which violates applicable law and to use the Product in full compliance with all applicable laws and regulations.

III. PAYMENT OF FEES

1. Customer shall pay Company the Fees as described in the Order Form for the Services and Implementation Services, according to the terms therein. Company may change the Fees, applicable charges, or institute new charges and Fees upon prior notice to Customer at the end of the Initial Service Term or then-current renewal term. Should Customer believe they have been billed incorrectly, they must contact Company within 60 days after the closing date on the first billing statement containing the error or problem for an adjustment or credit. Inquiries should be directed to Company's customer support department.

2. Company may bill through an invoice or other mutually agreed-upon methods. Full payment for invoices issued must be received by Company within five (5) days after the date of the invoice, which may be sent via email. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate suspension or termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company's net income.

3. You, the customer, agree to fully indemnify, defend, and hold us, our subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third-party due to or arising out of your failure to pay the fees or any other amounts due under this agreement in accordance with the terms set forth herein. This includes, but is not limited to, claims arising out of your non-payment or late payment.

IV. TERM AND TERMINATION

1. Subject to earlier termination as provided herein, this Agreement is for the Initial Service Term specified in the Order Form and shall automatically renew for additional periods of the same duration as the Initial Service Term (collectively, the "Term"), unless either party requests termination at least ten (10) days before the end of the then-current term.

2. Either party may terminate this Agreement upon thirty (30) days' notice (or without notice in the case of nonpayment) if the other party materially breaches any terms or conditions of this Agreement. Customer shall pay in full for Services up to and including the last day on which Services are provided. All sections of this Agreement that should naturally survive termination will do so, including, without limitation, accrued rights to payment, limitations of liability, waiver and release, confidentiality obligations, proprietary rights and non-use obligations, non-compete provisions, legality of content and use, and warranty disclaimers. The Company reserves the right to terminate this Agreement at any time for any reason and under any circumstance, provided it gives written notice to the Client.

V. WARRANTY AND DISCLAIMER

1. Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the services. Except as expressly set forth in this section, the services and implementation services are provided “as is” and Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose and non-infringement.  

VI. LIMITATION OF LIABILITY; INDEMNIFICATION; WAIVER AND RELEASE

1. Notwithstanding anything to the contrary, except for bodily injury of a person, Company and its suppliers (including but not limited to all equipment and technology suppliers), officers, affiliates, representatives, contractors and employees shall not be responsible or liable with respect to any subject matter of this agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory: (a) for error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond company’s reasonable control; or (d) for any amounts that, together with amounts associated with all other claims, exceed the fees paid by the Client to the Company for the services under this agreement in the month prior to the act that gave rise to the liability, in each case, whether or not Company has been advised of the possibility of such damages.

2. To the maximum extent permitted by applicable law, Customer, on behalf of itself and its successors and assigns, hereby irrevocably and unconditionally waives and releases Company, its affiliates, and their respective officers, directors, employees, agents, and representatives from any and all claims, liabilities, damages, losses, or expenses arising from or relating to the use of the Services or the subject matter of this Agreement, except for claims arising from (i) Company's gross negligence, or (ii) Company's willful misconduct. This waiver and release shall survive the termination or expiration of this Agreement.

3. Customer acknowledges and agrees that third-party platforms, including but not limited to OnlyFans, where content may be shared or distributed, have their own terms and conditions of use. These platforms may at any time and for any reason terminate Customer accounts without prior notice. We, the company, are not responsible or liable for any loss, damage, or other consequences resulting from such actions by third-party platforms. You agree to hold us harmless and fully indemnify us from any claims, liabilities, damages, losses, or expenses arising out of or in connection with the termination of your account, including but not limited to claims regarding your use or disclosure of use of artificial intelligence, software, or chat services.

4. Customer agrees to hold Company harmless and fully indemnify Company from any claims, liabilities, damages, losses, or expenses (including reasonable legal fees and costs) arising out of or in connection with any actions taken by any third party, including but not limited to claims regarding Customer's use or disclosure of use of artificial intelligence, software, or chat services. Customer shall promptly notify Company of any such claim or action and cooperate fully with Company in the defense thereof.

VII. CONFIDENTIALITY; PROPRIETARY RIGHTS; NON-USE

A. Confidentiality:

1. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party).

2. Proprietary Information of Company includes non-public information regarding features, functionality, and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services ("Customer Data").

3. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, (ii) not to use (except in the performance of the Services, as otherwise permitted herein, or in accordance with the Non-Use clause) or divulge to any third person any such Proprietary Information.

4. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.

B. Proprietary Rights:

1. Company shall own and retain all right, title, and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing, (d) any data that is based on or derived from the Customer Data and provided to Customer as part of the Services.

2. Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom). Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

C. Non-Use Clause:

1. Definition of Proprietary Information: For the purposes of this clause, "Proprietary Information" shall additionally include any and all non-public information, data, or technology disclosed by Whisper or made available to the Customer through the use of Whisper's SaaS product or services, including but not limited to, software code, algorithms, business models, trade secrets, know-how, technical information, product plans, designs, and pricing information.

2. Non-Use Obligations: The Customer agrees that, during the term of this Agreement and for a period of five (5) years following its termination or expiration, it shall not, directly or indirectly:

  a. Use any Proprietary Information to develop, manufacture, market, or sell any product, service, or technology that is similar to, derived from, or competes with any product, service, or technology offered by Whisper;

  b. Disclose any Proprietary Information to any third party, except as required by law or with the prior written consent of Whisper;

  c. Assist, enable, or encourage any third party to develop, manufacture, market, or sell any product, service, or technology that is similar to, derived from, or competes with any product, service, or technology offered by Whisper, using any Proprietary Information;

  d. Reverse engineer, disassemble, or decompile any Proprietary Information, or attempt to derive the source code, underlying ideas, algorithms, or processes from the Proprietary Information.

2. Customer shall indemnify, defend, and hold harmless the Company and its officers, directors, employees, agents, and affiliates from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys' fees) arising out of or in connection with any unauthorized use, disclosure, or dissemination of the Company's Confidential Information, any violation of the non-use, proprietary rights and confidentiality obligations set forth in this Agreement by the Customer, its employees, agents, or representatives, or any intellectual property claims resulting from the Customer's sharing of the Company's Confidential Information.

VIII. CONTENT VERIFICATION, COMPLIANCE, PRODUCER RESPONSIBILITY AND DISCLAIMER OF RECORD-KEEPING RESPONSIBILITY

1. Content Provider and Verification: The Customer of this Agreement, whether an entity or an individual, represents, warrants, and covenants that they have conducted independent verification of the identities of all creators appearing in any and all content associated with any account to which that creator or agency has access on any platform used in conjunction with our services, ensuring that all such creators are over 18 years of age at the time of the creation of content. The Customer also warrants that all such identities have been verified by the respective third-party platform.

2. Compliance with Laws and Regulations: The Customer further represents and warrants that they will not use the Services for any illegal purpose or in any manner inconsistent with applicable laws and regulations. The Customer is solely responsible for ensuring that all content created, requested, or distributed through the Services complies with all applicable laws, regulations, and restrictions.

3. Legality of Accounts on Third-Party Platforms: The Customer represents and warrants that all accounts they represent or control on any third-party platform used in conjunction with our services are created and operated legally, voluntarily, and without coercion.

4. Producer Responsibility: The Customer acknowledges and agrees that to the extent any party could be considered a producer under 18 U.S.C. § 2257 and 28 C.F.R. Part 75, it is solely the creator, the agency representing that creator, or the applicable third-party platform. We, the Company, expressly state that we do not act as a primary or secondary producer in any capacity or interpretation under laws and regulations, including but not limited to Title 18 U.S.C. § 2257.

5. Disclaimer of Record-Keeping Responsibility: The Customer acknowledges and agrees that, due to the nature of the Company's role as a software and service provider, they bear the full responsibility for compliance with all record-keeping requirements applicable to their content under 18 U.S.C. § 2257, 28 C.F.R. Part 75, or any other applicable law. The Customer has exclusive control and discretion over any content with which the Company’s software and services interact. If requested by the Company, the Customer agrees to provide any necessary 2257 records within 24 hours of such request to prove compliance with these requirements.

6. Indemnity: The Customer agrees to indemnify, defend, and hold the Company, its subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or in connection with any breach of these representations, warranties, and covenants, any violation of any law or the rights of a third-party by the Customer, or any failure of the Customer to maintain and provide records as required by law.

7. The Customer acknowledges that they have read and understood this Content Verification, Compliance, Producer Responsibility and Disclaimer of Record-keeping Responsibility Clause, that they agree to its terms, and that they have had an opportunity to consult with legal counsel of their choice.

IX. MISCELLANEOUS

1. Severability: If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

2. Assignment: This Agreement is not assignable, transferable, or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent, provided that the Company continues to fulfill its obligations under this Agreement.

3. Entire Agreement: This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement.

4. Waivers and Modifications: All waivers and modifications must be in writing signed by both parties, except as otherwise provided herein.

5. No Agency or Employment: No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind Company in any respect whatsoever. The Parties hereby confirm that the relationship between them is that of independent contractors. Nothing in this Agreement shall be construed to create an employer-employee partnership, joint venture, or agency relationship between the Parties. The Customer is not an employee, agent, partner, or legal representative of the Company for any purpose, and does not have any authority to assume or create any obligation on behalf of the Company. The Customer acknowledges and agrees that they are solely responsible for all taxes, retirement contributions, insurance premiums, or other similar charges applicable to the Services provided under this Agreement, and that the Company will not withhold any amounts for tax purposes from the Customer’s fees. The Customer has no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.

6. All notices under this Agreement will be in writing and sent via email. Notices will be deemed to have been duly given upon the sender's receipt of a confirmation or return receipt. The parties will provide each other with their respective email addresses for the purposes of this clause.

7. Dispute Resolution: The Client agrees that any and all disputes, claims, or controversies arising out of or relating to this Agreement, its interpretation, performance, or breach, that are not resolved by informal negotiation within 30 days (or any mutually agreed extension of time), shall be submitted to final and binding arbitration before a single arbitrator of the Judicial Arbitration and Mediation Services, Inc. ("JAMS") in New York City, New York, USA. The arbitrator shall be appointed by JAMS and the arbitration shall be conducted in accordance with the rules of JAMS. By agreeing to this arbitration procedure, the Client waives any right it may have to commence or participate in any class action, collective action, private attorney general action, or other representative action in any jurisdiction against the Company relating to any disputes or claims covered by this Agreement. The Client further waives any right to a trial by jury in connection with any dispute or litigation between the parties arising under this Agreement, or in connection with this Agreement, and acknowledges that this jury trial waiver is a material inducement to the Company in entering into this Agreement. In any arbitration arising out of or related to this Agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. The arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits. The prevailing party shall be entitled to recover its legal costs, including attorney's fees, in any legal action or arbitration proceeding arising out of this Agreement.

8. Governing Law: This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions.

9. Force Majeure: Neither of the Parties shall be liable for complete or partial non-fulfillment of their obligations under this Agreement if it is caused by force majeure conditions, including but not limited to earthquakes, floods, fires, natural disasters, war or military operations, prohibitive regulations of the government, and other circumstances implied by the Legislation. The party failing to fulfill its obligations due to force majeure conditions shall notify the other party in writing of such conditions within 5 days after the occurrence of such conditions at the latest. Fulfillment of the obligations of the parties under this Agreement shall be postponed until the force majeure circumstances are resolved.