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Publishizer Terms of Use of Service

  • Acceptance
  • Use of Services – Restrictions
  • Registration
  • Use of Services – General
  • Use of Services - Fees
  • Rights Granted to User Submissions
  • Content and User Submissions
  • Termination of Account or Access
  • Digital Millennium Copyright Act
  • Warranty Disclaimer
  • Limitation of Liability
  • Indemnity
  • Ability to Accept Terms
  • Assignment
  • General
  • Ownership and Intellectual Property Notice
  • Consent to Use of Data
  • Dispute Resolution and Arbitration
  • Notice to California Residents
  • Compliance Notice
  • Acknowledgement

Publishizer, Inc. (“Publishizer”) operates an online platform where authors of original written works ("Authors") run book fundraising campaigns by offering book preorders to users; and where users can purchase a preorder (such users are “Readers”). Publishizer is not a publisher or a book agent, but a service helping Authors find supporting Readers and connect with publishing industry professionals who may want to commercially publish their book (“Publishers”). 

Publishizer offers the Service through  www.publishizer.com, other websites owned by Publishizer, email, social media, applications, related websites, and other media (collectively, the “Site”).  The “Service” means the functions, features, tools, applications, products, software, data feeds, Content, User Submissions, and services of the Site.  “Content” means the campaigns and other submissions by Authors, Readers, Publishers, and others users (collectively, “Users”), including, but not limited to, text, graphics, photographs, images, artwork, video, audio clips, comments, data, text, software, scripts, projects, other material and information, and associated trademarks and copyrightable works, including additions, revisions, and derivative works thereof.  “User Submissions” means Content which Users post, edit, contribute, create, submit, distribute on and through the Service.

1. Acceptance

By contributing Content or User Submissions to, using, or visiting the Service, you confirm your agreement to these Terms of Use of the Service ("Terms"), and Publishizer’s Privacy Policy, which is incorporated herein by reference.

Access to the Service and all Publishizer files and functions is given to you on the condition that you accept and agree to these Terms and all related AGREEMENTS OR provisions listed above.  If you do not agree with the current Terms, or any of the related or incorporated policies and agreements, do not use the Service.  

Publishizer retains the right to revise, suspend, discontinue or otherwise change the Terms or the Service at any time without notification to you, and you agree to be bound by such changes.  We may attempt to notify you of any changes, but are not obligated to do so and as a result you should periodically review the current Terms on our website or application.    

2.  Use of Services – Restrictions

Users are granted a limited, non-exclusive, license to use and access the Services and Content for non-commercial purposes, as set out in these Terms under the following restrictions:

  1. You may not copy, publish or distribute in any medium any part of the Service or the Content without Publishizer’s prior written authorization (including but not limited to execution of a Content License Agreement), unless Publishizer makes available a means for copying, publication, distribution or sharing through functionality offered by Publishizer. 
  2. You may not use or launch any tools or systems, including without limitation, “scrapers,” “harvesters,” or “screen scrapers,” that access, extract copies, publish, distribute or use any element of the Service or Content in whole or part.  
  3. You may not alter or modify any part of the Service or Content, except you may edit, delete or otherwise manage your User Submission using the tools, processes and features provided by the Service for that purpose.  
  4. Any functions, features, tools, applications, products, software, data feeds are licensed to you to use in connection with the Service and are not sold to you.
  5. Your use of the Service may cause you to incur fees charged for data usage by Your mobile network carrier, or cause You to incur other third party terms and fees, and such fees and/or third party terms are your sole responsibility. 
  6. You agree that Publishizer may automatically download and install updates to the Publishizer website, application, or any feature (such as any media upload tool) from time to time.  Updates may take the form of bug fixes, enhanced functions, new features or modules, or new versions. You agree to receive such updates (and permit Publishizer to deliver these to you) as part of your use of the Service and Content.
  7. You may not interfere in any Service, website, another User’s User Submission, or application security provision or, in any other similar way, use the Service or other system resources, networks and services accessible through or connected to the Service, in a corrupt or menacing manner. You agree to use the website(s), application(s), Service and Content entirely within their lawful and intended limits.  You agree not to use or launch any automated tools or systems, including without limitation, "robots," "spiders," or "offline readers," that accesses the Service or Content in a manner that sends more request messages to the Publishizer servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser.  You agree not to access, tamper with, or use non-public areas of the Service, any associated computer system or infrastructure, or any technical delivery system associated with the Service.  But Publishizer reserves the right to grant the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials.  Such Operators must agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments, email) for any commercial solicitation purposes, and may not solicit, for commercial purposes, any users of the Service with respect to their User Submission.  Publishizer reserves the right to revoke these exceptions either generally or in specific cases.
  8. In your use of the Service, you will comply with all applicable laws.

3.  Registration

You may view Content on the Site without registering, but as a condition of using certain aspects of the Service, such as submission of a User Submission or interacting with Content and Authors, you may be required to register. Conditions and terms of registration, including requirements for User Submissions, will be set out in the registration process. 

When registering, you agree to select a screen name ("User ID") and password. You agree to provide accurate, complete, and updated registration information. You agree not to use as a User ID, domain name, or project name any name or term that (i) is the name of another person, with the intent to impersonate that person; (ii) is subject to any rights of another person, without appropriate authorization; or (iii) is offensive, vulgar, or obscene. The Company reserves the right in its sole discretion to refuse registration of or cancel a User ID, domain name, and project name. You are solely responsible for activity that occurs on your account and shall be responsible for maintaining the confidentiality of your password for the Site. You agree to never use another User account without the other User’s express permission, and to immediately notify the Company in writing of any unauthorized use of your account or other known account-related security breach.

4.  Use of Services - General

Users agree to the following terms, as applicable:

a.    Author. Authors who offer Users the opportunity to preorder are offering to enter into a binding contract for delivery of the Author’s book. By backing your campaign on Publishizer by preordering your book, a Reader has accepted your offer and the contract between the Reader and you, as the Author, is formed. Publishizer is not a party to that contract between the Reader and Author. You as an Author agree:

•    That any campaign you wish to submit is conditioned on and subject to the conditions and procedures of the Service, including review and approval by Publishizer, which approval may be denied in Publishizer’s sole discretion. 

•    That Publishizer does not guarantee any confidentiality with respect to any User Submission you submit; you are solely responsible for your User Submission and the consequences of submitting your User Submission on the Service. 

•    That you own or have the necessary ownership, licenses, rights, consents, and permissions to publish your book and your User Submission(s).

•    To make a good faith attempt to fulfill all preorders of your book by the Estimated Publishing Date. 

•    That you may be identified publicly by your name or User ID in association with your User Submission.

•    That information about Users you receive, including User ID, preorder amount, name and email address, will only be used by you to fulfill your obligations under these Terms.

•    To pay to Publishizer of the Fee due on for posting a campaign to the Service. 

•    To fully refund Reader’s preorders, if you elect to cancel a preorder. 

•    Not take any action in reliance on having posted a campaign on the Site or having any of the money preorder until you have the ability to withdraw preorder funds. There may be a delay between the end of a successful fundraising campaign and access to the funds.

 

b.    Reader. If you are a Reader preordering on Publishizer, you agree:

•    That you are solely responsible for asking questions and investigating the campaign to the extent you feel is necessary before making a preorder. All preorders are made voluntarily and at the sole discretion and risk of the Reader. Preorders are made immediately, and not contingently based on the campaign reaching any specific goal. 

•    To provide payment information at the time you make a preorder, which payment will be collected at or after the campaign deadline. 

•    That Publishizer and its payments partners may authorize or reserve a charge on your payment card or other payment method for any amount up to the full preorder at any time between the preorder and collection of the funds.

•    To have sufficient funds or credit available at the campaign deadline to ensure that the preorder will be collectible.

•    To the sharing of your User ID, preorder amount, name and email address with the Author of any book you preorder.

 

c.    Publisher. If you are a Publisher, you agree:

•    That you are, at the time of registration, actively involved in the business of sourcing written material for print and electronic publication.

•    To create and manage your notification requests to receive notice of book proposals in your area of interest.

•    To communicate with Authors only as provided for in these Terms and for the purpose of exploring publication of their User Submission. 

 

d.    All Users agree to be bound by these Terms, including the following:

•    Publishizer is not a book agent or publisher, does not receive publication rights from Authors, does not receive royalties on preorders or sales, and is not a party to the preorder contract between and Author and a Reader.

•    Publishizer does not offer refunds. An Author is not required to grant a Reader’s request for a refund unless the Author is unable or unwilling to fulfill preorders of his or her book.

•    Because of occasional failures of payments from Readers, Publishizer cannot guarantee the receipt by Authors of the full amount of preorders at the conclusion of a campaign (minus fees).

•    Publishizer and its payments partners will remove their fees before transmitting proceeds of a campaign to an Author. Fees may vary depending on region and other factors.

•    Publishizer reserves the right to cancel a preorder at any time and for any reason.

•    Publishizer reserves the right to reject, cancel, interrupt, remove, or suspend a campaign at any time and for any reason. Publishizer is not liable for any damages as a result of any of those actions. Publishizer’s policy is not to comment on the reasons for any of those actions.

•    There may be a delay between the end of a fundraising campaign and access to preorder funds.

•    Publishizer is not liable for any damages or loss incurred related to books or any other use of the Service. 

•    Publishizer is under no obligation to become involved in disputes between any Users, or between Users and any third party arising in connection with the use of the Service. This includes, but is not limited to, delivery of goods and services, and any other terms, conditions, warranties, or representations associated with campaigns on the Site. Publishizer does not oversee the performance or punctuality of projects and does not endorse any User Submissions. You release Publishizer, its officers, employees, agents, and successors in rights from claims, damages, and demands of every kind, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and the Service.

 

5. Use of Services – Fees

Joining Publishizer is free. However, we do charge Authors a service fee equal to a percentage of the total dollar amount of preorders for a campaign (the “Fee”). The current Fee is 30% of all preorders. The Fee is subject to change, and any change will be effective after we provide you with notice by posting the change on the Site. Authors are responsible for paying the Fees and any taxes associated with their use of the Service. Funds for preorders by Readers are collected by PayPal, Inc. and Publishizer is not responsible for the performance of PayPal, Inc.  Users agree to comply with PayPal’s Crowdfunding and Acceptable Use Policies.

Publishizer is a service provider and a book agent to Users, not a publisher and has no role in an Author’s book publication. Publishizer may request to collect an agent commission of 15% on paid advances offered by publishers, as well as receive royalties on future book sales in addition to the Fee on preorders.

 

6.  Rights Granted to User Submissions

By contributing User Submissions through the Service, you agree to the following:

•    Publishizer is not acting as your book agent, or agreeing to publish your book.  

•    You grant to Publishizer a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable right to (and to allow others acting on its behalf to) (i) use, edit, modify, prepare derivative works of, reproduce, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute, and otherwise fully exploit your User Submissions and your trademarks, service marks, slogans, logos, and similar proprietary rights (collectively, the "Trademarks") in connection with (a) the Service, (b) Publishizer’s (and its successors' and assigns’) businesses, (c) promoting, marketing, and redistributing part or all of the Site (and derivative works thereof) or the Service in any media formats and through any media channels (including, without limitation, third-party websites); (ii) take whatever other action is required to perform and market the Service; (iii) allow Users to stream, transmit, playback, download, display, feature, distribute, collect, and otherwise use your User Submissions and Trademarks in connection with the Service; and (iv) use and publish, and permit others to use and publish, your User Submissions Trademarks, names, likenesses, and personal and biographical materials of you and the members of your group, in connection with the provision or marketing of the Service. 

•    You grant to each User a non-exclusive license to access your User Submissions through the Service, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such solely for personal, non-commercial use.

•    You further agree that your User Submissions will not contain third-party copyrighted material, or material that is subject to other third-party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Publishizer all of the license rights granted herein.

•    You will pay all royalties and other amounts owed to any person or entity based on your Submitting User Submissions to the Service or Publishizer’s publishing or hosting of the User Submissions.

•    The use or other exploitation of User Submissions as contemplated by this Agreement will not infringe or violate the rights of any third party, including without limitation any privacy rights, publicity rights, copyrights, contract rights, or any other intellectual property or proprietary rights.

•    Publishizer has the right to delete, edit, modify, reformat, excerpt, or translate any of your User Submissions.

•    Publishizer is not liable for any errors or omissions in any Content.

•    Publishizer cannot guarantee the identity of any other Users with whom you may interact while using the Service.

•    All Content you access through the Service is at your own risk and you will be solely responsible for any resulting damage or loss to any party.

 

7. Content and User Submissions 

The Service includes Content from a many sources and you agree that Publishizer is not responsible for the accuracy, usefulness, safety, or intellectual property or privacy rights of or relating to such Content.  Publishizer does not endorse any Content submitted to the Service, or any opinion, recommendation, or advice expressed therein, and Publishizer expressly disclaims any and all liability in connection with Content.  You agree that using the Service may expose you to Content that is inaccurate, offensive, indecent, invasive or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Publishizer with respect thereto, and, to the extent permitted by applicable law, agree to indemnify and hold harmless Publishizer, its owners, operators, affiliates, licensors, and licensees to the fullest extent allowed by law regarding all matters related to your use of the Service.  Publishizer does not allow copyright infringing activities and infringement of intellectual property rights on the Service; Publishizer will remove Content if properly notified that such Content infringes on another's intellectual property rights. Publishizer reserves the right to remove Content without prior notice. Publishizer and its licensors reserve all rights not expressly granted in and to the Service and the Content.

You acknowledge and agree with regard to your User Submissions that:  

  • They will not contain third party copyrighted material, or material that is subject to other third party proprietary or privacy rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant Publishizer all of the license rights granted herein;
  • They will not contain any Content that you know is false, misleading, or inaccurate;
  • They will not contain any Content that is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, tortious, obscene, offensive, profane, or invasive of another's privacy;
  • They will not constitute unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters;
  • They will not contain software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit, or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password, or other information of the Company or any third party;
  • They will not breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence; and
  • They will not misrepresent or impersonates any person or entity, including any employee or representative of the Company.

 

8. Termination of Account or Access

Publishizer will terminate your account and/or access to the Service if you are determined to be a serious or repeat infringer of these Terms. Publishizer reserves the right to decide whether Content violates these Terms for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, privacy rights violations, or excessive length. Publishizer may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user’s account for submitting such material in violation of these Terms.

 

9. Digital Millennium Copyright Act

If you are a copyright owner or an agent thereof and believe that any Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

  • 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 website location are covered by a single notification, a representative list of such works at that website;
  • 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 you, such as an address, telephone number, and, if available, an electronic mail;
  • A statement that you have 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; and
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Publishizer's designated Copyright Agent to receive notifications of claimed infringement is Publishizer, Inc., email: copyright@Publishizer.com, address: 444 Castro Street, Suite 1200, Mountain View, CA 94041.  You acknowledge that if you fail to comply with all of these requirements, your DMCA notice may not be valid.

Counter-Notice. If you believe that your User Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Submission, you may send a counter-notice containing the following information to the Copyright Agent:

  • Your physical or electronic signature;
  • Identification of the User Submission that has been removed or to which access has been disabled and the location at which the User Submission appeared before it was removed or disabled;
  • A statement that you have a good faith belief that the User Submission was removed or disabled as a result of mistake or a misidentification of the User Submission; and
  • Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Santa Clara, California, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Publishizer may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Publishizer's sole discretion.

 

10. Warranty Disclaimer

THE SERVICE AND CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  YOU AGREE THAT YOUR USE OF THE SERVICE AND/OR CONTENT SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, PUBLISHIZER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE CONTENT, SERVICE AND YOUR USE THEREOF. PUBLISHIZER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE OR CONTENT OR THAT OF ANY LINKED SITES, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE OR CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE OR CONTENT, (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 THE SERVICE OR CONTENT, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE OR CONTENT BY ANY THIRD PARTY, (V) THAT THE SERVICE WILL MEET YOUR BUSINESS OR PROFESSIONAL NEEDS, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY SERVICE OR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE.  PUBLISHIZER DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT, PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND PUBLISHIZER WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY INTERACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.  To the extent any disclaimer or limitation of liability in these Terms does not apply, all applicable express, implied, and statutory warranties will be limited in duration to a period of thirty (30) days after the date on which you first registered as a member of Publishizer, and no warranties shall apply after such period.  

 

11. Limitation of Liability

IN NO EVENT SHALL PUBLISHIZER, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE OR CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE OR CONTENT, (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 THE SERVICE, (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE OR CONTENT BY ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY SERVICE OR 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 SERVICE, 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.  

YOU SPECIFICALLY ACKNOWLEDGE THAT PUBLISHIZER SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, INVASIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by Publishizer, Inc. from its facilities in the United States of America.  Publishizer makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

 

12. Indemnity

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless Publishizer, its affiliate and parent corporation(s), officers, directors, employees and agents, 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 or Content; (ii) your violation of any term of these Terms including all incorporated provisions; (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 survives these Terms and your use of the Service.

 

13. Ability to Accept Terms

You affirm that you are either 18 years of age or older, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and to abide by and comply with these Terms. If you are a legal entity, you affirm that you are an authorized representative of the entity.   In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13.  If you are under 13 years of age, then please do not use the Service.

 

14. Assignment

These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, by operation of law or otherwise, without our prior written consent, but may be transferred or assigned by Publishizer without restriction or notice.

 

15. General

You agree that (i) the Service shall be deemed solely based in California, and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over Publishizer, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles.  If a lawsuit or court proceeding is permitted under these Terms, then, unless another location is expressly specified in these Terms, you and Publishizer agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located Santa Clara County, California for the purpose of litigating any dispute.  These Terms, together with incorporated documents (including the Community Guidelines and Privacy Policy) and any other legal notices published by Publishizer on the Service, shall constitute the entire agreement between you and Publishizer concerning the Service and Content.  If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of this these Terms shall be deemed a further or continuing waiver of such term or any other term, and Publishizer's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Publishizer reserves the right to amend these Terms at any time and without notice, and it is your responsibility to review these Terms for any changes. Your use of the Service following any amendment of these Terms will signify your assent to and acceptance of its revised terms. 

YOU AND PUBLISHIZER AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICES OR CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED AND WAIVED.

 

16. Ownership and Intellectual Property Notice

The Publishizer Site and Service are owned and operated by Publishizer, Inc. All of the Publishizer Site, Service and Content, including the system of organization and presentation of Content, are the property of or legally licensed by Publishizer, and are protected by legal and subordinate acts relating to intellectual property including but not limited to copyright, trademark, moral rights and/or other similar laws. The Content and the Service, and the trademarks, service marks and logos on the Service, are owned by or licensed to Publishizer, subject to copyright and other intellectual property rights under the law.

 

17. Consent to Use Data

We may collect and use technical data and related information, including but not limited to technical information about your device, system, and application software, and peripherals, for software updates, product support and other services related to the Service, and we may anonymously track and report your activity in using the Service, including for analytics purposes.  Please refer to our Privacy Policy for more information.  

 

18. Dispute Resolution and Arbitration

In the interest of resolving any disputes between you and Publishizer quickly and affordably, you and we agree that every dispute arising in connection with these Terms will be resolved by binding arbitration.  Arbitration is a more informal process than a lawsuit in court, and uses a neutral arbitrator rather than a judge or jury.  Arbitration may allow for more limited discovery than a lawsuit in court, and decisions may be subject to very limited review by courts.  Arbitrators can award the same monetary damages and other relief that a court can award. Our agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

a. Exceptions. Despite the provisions of the foregoing paragraph, we both agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either of us to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.

b. Arbitrator. Any arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Publishizer.

c.  Notice and Procedures. A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if we do not have a physical address on file for you, by electronic mail (“Notice”).  Publishizer’s address is:  Publishizer, Inc., 444 Castro Street, Suite 1200, Mountain View, CA 94041.  The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or by us must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If our dispute is finally resolved through arbitration in your favor, Publishizer will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Publishizer in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

d. Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Publishizer for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

e.  No Class Action. YOU AND PUBLISHIZER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

f.  Modification. If Publishizer makes any future change to this arbitration provision (other than a change of address for Notice), you may reject the change by sending us written notice within 30 days of the change to our address for Notice, in which case your account will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments you reject will survive.

g.  Enforceability. If Section 18(e) is found to be unenforceable or if the entirety of this Section 18 is found to be unenforceable, then the entirety of this Section 18 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 11 will govern any action arising out of or related to these Terms.

 

19. Notice to California Residents

If you are a California resident, under California Civil Code § 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

 

20.  Compliance Notice 

Pursuant to 18 U.S.C. § 2257, Publishizer provides notice that all photos, images, graphics, videos, and other visual media displayed on the Service are exempt from 18 U.S.C. § 2257 and 28 C.F.R. 75 because they do not consist of depictions of conduct as specifically listed in 18 U.S.C. § 2256(2)(A)-(E), but are only, at most, depictions of non-sexually explicit nudity or simulated sexual conduct, or are otherwise exempt because they were created prior to July 3, 1995.  Publishizer is not the primary producer of the visual content contained in the Service.  

 

21. Acknowledgement

IN ACCEPTING THESE TERMS, EACH USER ACKNOWLEDGES THAT HE/SHE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND HAD AN OPPORTUNITY TO SEEK INDEPENDENT LEGAL ADVICE PRIOR TO AGREEING TO IT. 

Disclaimer: The original, legally binding version of this document is written in English.  If it is translated into other languages by non-English-speaking users, there are any discrepancies between the English version and a translated version.  If so, the English version supersedes the translated version.

 

Questions

If you have questions, pleasecontact us .

Updated: December 2015

© 2015 Publishizer, Inc.  All rights reserved.