Terms of Service

Introduction.

The mission of Pubslush is to allow new writing talent to emerge through social networking sharing and community support, and to publish and distribute authors' work outside of the institutionalized traditional publishing house model.


Acceptance of the Terms of Service.

By using or visiting the Pubslush website (the "Service") you (the "User") agree to the terms and conditions set forth herein (the "Terms of Service"), as well as our Privacy Policy, the terms of which are fully incorporated herein by reference. If you do not agree to any of these terms, or to the terms of the Privacy Policy, then please do not use the Service.


Service.

These Terms of Service apply to all Users of the Service, including Users who are also contributors of Content on the Service. "Content" includes any text, scripts, graphics, images or other materials which a User posts to the Service. Except where otherwise noted, Content shall also include any Content in the form of a segment of a User's original Book (a "Submission"). Any User who contributes Content in the form of a Submission shall be referred to herein as an "Author."


Content.

With respect to Content posted on the Service, you hereby agree to the following:

  1. As a User of the Service, you may submit Content to the Service, including Submissions and User comments. All of the Content that you submit shall be your own Content, and you shall be responsible for any consequences arising out of submitting and publishing your Content on the Service.

  2. You warrant, affirm and represent that you own or have secured all necessary rights, licenses, or other consents or permissions necessary to submit and publish the Content that you post to the Service.

  3. With respect to all Content, by submitting Content to Pubslush, you hereby grant to Pubslush, a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and the business of Pubslush, and of its successors and assigns. With respect to User comments, you submit that these licenses are perpetual and irrevocable. You hereby grant all Users of the Service a non-exclusive license to access your Content via the Service, and to use, reproduce, distribute and display such Content as enabled by the Service and permitted by the Terms of Service.

  4. Users understand that publishing User content on the Service is not a substitute for registering it with the U.S. Copyright Office, the Writer's Guild of America, or any other rights organization.


Fundraising.

Authors can use the Service to raise money ("Funds") toward the publication of their Book ("Fundraising Campaign"), as follows:

  1. Authors must initiate a separate Fundraising Campaign for each Book.

  2. Authors can set a timeframe for reaching their Fundraising Goal. The time period must be at least 30 days, and no more than 60 days (the "Fundraising Period").

  3. If an Author wishes to cancel their Fundraising Campaign, they may do so at any time during the Fundraising Period.

  4. Users who pledge Funds are "Supporters".

  5. The Funds raised by an Author will only be distributed to the Author if they are in excess of $500, or a greater amount as designated by the Author (the "Minimum Threshold").

  6. Authors can set a Fundraising Goal that they wish to reach. However, an Author may continue to raise Funds in excess of their Goal until the end of the Fundraising Period. No additional Funds can be raised after the end of the Fundraising Period.

  7. Supporters of a Book will be charged on the final day of the Fundraising Period. In the event that the Minimum Threshold has not been met as of the final day of a Fundraising Campaign, Supporters will simply not be charged.

  8. At the end of the Fundraising Period, if Funds are due to Author, we will contact the Author and request that they provide their account information for payment via ACH Wire Transfer.

  9. Funds raised shall be disbursed to Author via ACH Wire Transfer within fifteen days of the Author providing their account information as set forth in Paragraph 8 above.

  10. Pubslush charges a fee of 4% on all Funds raised. Third party credit card processing fees will also be assessed by www.authorize.net. These amounts will be deducted from the Funds raised before a check is issued to the Author. Because of occasional failures of payments from Supporters, Pubslush cannot guarantee the full receipt of the amount pledged minus fees.

  11. Any pledge of Funds may be subject to verification of the identity of the Supporter and/or Author. Pubslush reserves the right to reject any pledge of Funds, or to elect not to distribute Funds raised, in its sole discretion.

  12. Pubslush reserves the right to reject or suspend any Fundraising Campaign at any time, in its sole discretion.

  13. Pubslush has no obligation to remove any Fundraising Campaign from the Service, even after a Fundraising Campaign is complete.


Contributing.

Supporters may pledge Funds to any Fundraising Campaign during its Fundraising Period, in any amount, according to the following terms:

  1. Supporters may contribute to as many Fundraising Campaigns as they wish, but contributing Funds does not give Supporters any rights in or to the Book, including without limitation any ownership, control, or distribution rights. The Author shall retain its rights in and to the Book.

  2. Supporters must provide their payment information at the time they pledge to a Fundraising Campaign. The payment will be collected at the end of the Fundraising Period only if the Author's Minimum Threshold has been met.

  3. Supporters agree to have sufficient funds or credit available at the end of the Fundraising Period to ensure that their pledge will be collectible.

  4. Pubslush has no obligation to refund any Funds to you, for any reason.

  5. Pubslush makes no representations regarding the deductability of any Funds for tax purposes. Please consult your tax advisor for more information.


Authors' Obligations.

Authors shall have the following obligations with regard to the Funds:

  1. Authors agree that the Funds raised may only be used in connection with the promotion and publication of the Book for which the Fundraising Campaign was initiated.

  2. Authors should not take any action in reliance on having the Funds pledged until such time as they receive a check from Pubslush in the amount of the Funds raised, minus applicable fees and withholdings.

  3. In the event that an Author is unable to publish their Book, it shall be the Author's sole obligation to refund any remaining Funds to Supporters.

  4. Authors may provide "Incentives" (such as prizes or copies of the Book) to Supporters to encourage them to contribute Funds, so long as such Incentives are lawful under all applicable laws, including without limitation state and federal securities laws, and otherwise complies with the terms and conditions set forth herein. It shall be the sole obligation of the Author to fulfill any representations made regarding the provision of Incentives.

  5. Author agrees to indemnify, defend, and hold Pubslush harmless from any liability for an Author's mismanagement of Funds, or an Author's failure to use Funds toward the publication of its Book, or an Author's failure to provide refunds, or an Author's failure to provide Incentives.

  6. Authors shall have full responsibility for applicable taxes for all Funds paid to them under these Terms of Service, and agree to indemnify, defend and hold Publush harmless from any liability for, or assessment of, any claims or penalties with respect to such taxes, including any liability for, or assessment of, withholding taxes imposed on Pubslush by the relevant taxing authorizes with respect to any Funds paid to you.


Safety.

Pubslush will work hard to keep its Service safe, but cannot guarantee its safety. In order to help keep our Service safe, please refrain from the following when using our Service:

  1. Sending or posting unauthorized commercial communications;

  2. Collecting content or information by automated means, such as harvesting bots, robots, spiders or scrapers;

  3. Uploading viruses or other malicious code;

  4. Soliciting another User's log-in information, or accessing another User's account;

  5. Providing false or fraudulent credit card information;

  6. Providing links to other sites; and

  7. Posting content that is unlawful, defamatory, discriminatory, threatening, pornographic, obscene, excessive in length, incites violence or contains descriptions of gratuitous violence. Pubslush may, at any time and in its sole discretion, remove such content and/or terminate a User's account for submitting any such material in violation of the Terms of Service.


Registration and Account Security.

Users may visit the Service and view Content without creating a User ID and Member Profile. However, in order to post Content on the Service, you must register. Pubslush Users are required to provide their real names as well as true and accurate personal information, as requested in the registration form. This is to protect the integrity of the site, the intellectual property rights of the Authors, and the contractual rights of Pubslush. You agree to the following terms regarding registration and account security:

  1. You will not provide any false or inaccurate personal information on Pubslush;

  2. You will not create an account for anyone other than yourself;

  3. You will not create more than one personal profile;

  4. If Pubslush disables your account, you will not create a new account without first obtaining the permission of Pubslush;

  5. You will not use Pubslush if you are under the age of 13;

  6. You will not use Pubslush if you are a convicted sex offender;

  7. You will update your account information as changes to your personal information may occur;

  8. You will not allow others to access your account, nor will you transfer your account;

  9. You are solely responsible for activity that occurs on your account; and

  10. If you select a user name which is inappropriate, or violates the personal or intellectual property rights of another individual or entity, we reserve the right to remove or reclaim your user name.

Intellectual Property Rights of Others.

We presume that you own and control the intellectual property rights to all Content that you post to Pubslush. You agree to the following terms regarding the intellectual property rights of others:

  1. You will not post any Content that infringes or violates someone else's copyrights, trademarks, patents or trade secrets (collectively, "intellectual property rights").

  2. Pubslush reserves the right to remove any Content or information that you post on our Service if we believe that it infringes someone else's intellectual property rights.

  3. If we have removed your content under the belief that it infringed someone else's copyright, and you believed that we have removed the content in error, you will have the opportunity to appeal.

  4. If we find that you have repeatedly infringed the intellectual property rights of others, we will disable your account and you will not be entitled to create a new account.


Copyright Policy.

  1. If you are a copyright owner, or an agent of a copyright owner, and believe that any Content infringes upon your copyrights, you may submit notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our designated Copyright Agent, with the following information in writing (see 17 USC 512(c)(3)):
    • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

    • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;

    • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;

    • Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;

    • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;

    • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    Pubslush's designated Copyright Agent to receive notifications of claimed infringement is Gottlieb Rackman & Reisman, P.C., 270 Madison Ave, New York, NY 10016, Attn: Marc P. Misthal, Email: mmisthal@grr.com, Telephone: (212) 684-3900, Fax: (212) 684-3999. Only DMCA notices should be sent to the Copyright Agent. Any other communications should be directed to the appropriate channels as indicated by clicking on the "Contact Us" link.

  2. Counter-Notice. If you believe that your Content that was removed (or access to which was disabled) is not infringing, or that you were authorized by the copyright owner, its agent, or pursuant to the law, to post the allegedly infringing material in your Content, you may send a counter-notice containing the following information to the Copyright Agent (See 17 USC 512(g)(3)):
    • Your physical or electronic signature;

    • Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;

    • A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or misidentification of the Content.

    • Your name, address, telephone number, and email address, and a statement that you consent to the jurisdiction of the federal court in New York, New York, and a statement that you will accept process from the person, or an agent of the person, who provided notification of the alleged infringement.
    In the event that a counter-notice is received by the Copyright Agent, Pubslush may send a copy of the counter-notice to the original complaining party, along with a notice that it may replace the removed Content or cease disabling it in 10 business days. Unless the original complaining party seeks a court order against Pubslush or the User who provided the Content, Pubslush reserves the right to replace the removed Content, or provide access to the disabled Content, 10 business days or more after receipt of the counter-notice, in its sole discretion.


Amendments.

Pubslush reserve the right to amend the Terms of Service at any time. The amendments may be for legal or administrative reasons, or to correct an inaccurate statement, or for any other reason. By continuing to use the service after such amendments are made, you signify your agreement to abide by the Terms of Service, as amended. Pubslush encourages you to read the Terms of Service from time to time and to make note of any amendments.


Services Provided "As Is".

YOU USE Pubslush AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, Pubslush, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF. WE PROVIDE Pubslush "AS IS" WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE DO NOT GUARANTEE THAT Pubslush WILL BE SAFE OR SECURE. Pubslush IS NEITHER LIABLE NOR RESPONSIBLE FOR THE ACTIONS, CONTENT OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE Pubslush, ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN OR UNKNOWN, ARISING FROM OR IN ANY WAY RELATING TO ANY CLAIM YOU MAY HAVE AGAINST SUCH THIRD PARTIES.


Limitation of Liability.

IN NO EVENT SHALL Pubslush, ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OMISSIONS, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR SERVICES, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.


Indemnity.

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Pubslush, its directors, officers, employees, agents, successors and assigns from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of these Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. This defense and indemnification obligation will survive these Terms of Service and your use of the Service.


Choice of Law.

These Terms of Service and any dispute arising out of or relating to these Terms of Service, except for any dispute relating to intellectual property rights and infringement claims, shall be governed by the laws of the State of New York.


Arbitration.

Any disputes shall be resolved by final and binding arbitration under the rules and auspices of the American Arbitration Association, to be held in New York, New York, in English, with a written decision stating the legal reasoning issued by the arbitrator(s) at either party's request, and with arbitration costs and reasonable documented attorneys' costs of both parties to be borne by the party that loses at arbitration.


Other.

  1. These Terms of Service, including our Privacy Policy, fully incorporated herein, constitute the entire agreement between you, the User, and Pubslush, and supersedes any prior agreements.

  2. If any portion of these Terms of Service is found to be unenforceable, the remaining portions of these Terms of Service shall remain in full force and effect.

  3. Pubslush's failure to enforce any of the terms set forth herein shall not constitute a waiver of those terms.

  4. You will not transfer any of your rights or obligations under these Terms of Service to any other individual or entity.

  5. All of Pubslush's rights and obligations under these Terms of Service are freely assignable by Pubslush in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise.

  6. Where there is a conflict between the law and the Terms of Service, nothing in the Terms of Service shall prevent Pubslush from complying with applicable law.

  7. You agree to comply with all applicable laws when using Pubslush.

  8. Nothing within the Terms of Service shall be interpreted to confer any third party beneficiary rights.


Updated July 6, 2012