FastPencil Terms of Service

Updated September 09 2009

Welcome to the FastPencil website.

By logging on to the FastPencil website, registering, or using any of FastPencil’s products or services (collectively the “FastPencil Services”), you agree to the following terms and conditions (the “Terms of Service” or “TOS”), and any privacy policies, usage guidelines or other policies and any amendments thereto, all of which are incorporated herein by reference. The most current version of this TOS is available at http://www.fastpencil.com/company/legal.

REGISTRATION

In consideration of your use of the FastPencil Services, you represent and warrant that you are eighteen (18) years of age, or older or you are the parent or legal guardian of a prospective user who is between the ages of 13 and 18 years old and you have the legal right and capacity to enter into this TOS. By registering you agree to accept the terms and conditions of this TOS.

You further agree to provide and maintain all information required by the FastPencil registration form (the "Registration Data") in true, accurate and complete form. In the event any Registration Data is not true, accurate and complete you agree that FastPencil has the right to suspend or terminate your account and refuse any and all use of the FastPencil Services.

You are solely responsible for maintaining the confidentiality of your account password, and all activities that occur within your account. You agree to immediately notify FastPencil of any security breach, unauthorized use of your password or account and further agree that you will not hold FastPencil liable for any loss or damage arising from your failure to maintain the security of your password.

USER CONDUCT

You understand and agree that all information, data, text, photographs, graphics, messages or other materials ("User Content") are the sole responsibility of the person from which such User Content originated, which means that you, and not FastPencil, are entirely responsible for your conduct and all User Content that you upload, post, email, transmit or otherwise make available via the FastPencil Services.

As computers and other equipment can be subject to occasional malfunction, you agree that you will not hold FastPencil liable for any inadvertent damage to, corruption of or destruction of any User Content. If any User Content is transmitted to FastPencil and is damaged, lost or corrupted in any way, FastPencil shall have no obligation or liability to you.

FastPencil does not control the User Content posted via the FastPencil Services and, as such, does not guarantee the accuracy, integrity or quality of such User Content. FastPencil reserves the right, but has no obligation, to review, delete, modify or move any User Content available via FastPencil services, and notify the proper governmental authorities as provided by law. You understand that by using FastPencil services you may be exposed to User Content that you deem to be offensive, indecent or objectionable, and that you use FastPencil services at your own risk. You agree that you will not engage in any activity that interferes with or disrupts FastPencil services or servers or networks connected to FastPencil services.

THIRD PARTY WEBSITES

FastPencil Services may provide or contain links to third party websites over which FastPencil has no control, and you agree that FastPencil does not endorse and is not liable or responsible for any content, services or other materials available on any third party website.

You hereby grant FastPencil Inc. and its affiliates, including, but not limited to, partner production company Voyage Media ("VM"), the right to read and evaluate your book ("Property") for the purposes of completing the selected service and considering your Property for option/purchase on your behalf. You understand such evaluation is a subjective process, allowing for reasonable disagreement as to the relative merits of the Property. You also understand that the evaluation may or may not be complimentary or positive in its judgment, and that the evaluation fee is non-refundable.

You acknowledge that you are the author of the Property, and are the present and sole owner of all rights, titles, copyrights and interests in and to the Property. You further acknowledge that you have the exclusive, unconditional right and authority to submit and/or convey the Property to the Company upon the terms and conditions set forth herein.

You further acknowledge that because of its position in the entertainment industry, VM and its affiliates are exposed to numerous ideas, formats, stories, suggestions, concepts and the like all the time. You further understand that many stories, ideas and concepts are similar and that different stories, ideas and concepts frequently relate to one or more common underlying themes and may closely resemble other works. You therefore understand and agree that you will not be entitled to any compensation or other consideration because of the use of such similar materials, stories, ideas, and/or concepts that may have come to VM or its affiliates prior to or subsequent to your purchase of this option. You hereby release FastPencil Inc., VM, and its affiliates for any and all claims, liabilities and demands that may be made by you asserting that FastPencil Inc. and/or VM have misused or misappropriated the Property, or any portion thereof. You acknowledge that it is your responsibility to copyright or register the Property with the Writer's Guild of America prior to submitting it to VM for consideration and hereby release FastPencil Inc., VM, and its affiliates from any claims that arise from your failure to do so.

You acknowledge and agree that, outside of the deliverables of said evaluation/adaptation, no other obligations exist or shall exist or be deemed to exist unless and until a formal written agreement has been prepared and entered into by all applicable parties, and then those parties' rights and obligations concerning any purchases or options shall be only such as are expressed in said formal written agreement.

In order for VM to arrange for possible purchase or option of your novel and/or other materials, including but not limited to Producer’s Action Plans, Treatments and Screenplays ("VM Materials"), by Hollywood producers and facilitate the possible adaptation of your book into a movie, TV show or other media, VM shall have the exclusive right for a period of 3 years ("Shopping Term") from the delivery of any evaluation and/or adaptation document, subject to extension, to shop the Property and/or VM Materials to producers, production companies, distributors, studios, networks, internet companies, gaming companies, etc. ("Third Parties") for development, production or utilization in all media including film, scripted or unscripted television, web series, live theatre, video games etc. VM shall have the exclusive right to negotiate, enter into or arrange for options of the Property and/or VM Materials, subject to the approval of the author. In the event that VM is still in a ctive negotiations for a written agreement or memorandum with any such Third Party, the VM Shopping Term shall automatically extend for the duration of such negotiations, but, in any event, no longer than sixty (60) additional days. The VM Shopping Term for Property shall automatically be extended unless FastPencil Inc. or the author specifically elects, in writing, to have Property and/or VM Materials removed from the VM database.

PROHIBITED USES

You agree to not use the FastPencil Services to upload, post, email, transmit or otherwise make available any User Content, or take any action that is unlawful, intentionally or unintentionally violates any applicable local, state, national or international law, infringes on the rights of a third party, is harmful to minors in any manner, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, or collect or store personal data about other users.

You also agree not to interfere with the operation of the site via the use of viruses, programs or technology designed to disrupt or damage hardware or software, remove or attempt to remove any copyright, trademark, service mark or any other proprietary rights notifications contained in any materials you access or copy via the site, misrepresent yourself or represent yourself as another user on the site.

FASTPENCIL’S PRIVACY POLICY

The FastPencil Privacy Policy, located at http://www.fastpencil.com/company/privacy is hereby incorporated by reference and you agree to be bound by its terms.

FASTPENCIL'S RIGHTS

You understand and agree to the FastPencil Services, and understand and agree that User Content contains proprietary and confidential information that is protected by applicable intellectual property (copyrights, trademarks, service marks, patents or other proprietary rights) and other laws and treaties. Except as expressly authorized by FastPencil and the duly authorized third party rights holders, you agree not to violate any laws, rules, regulations or proprietary rights of any third party to the User Content and FastPencil Services.

YOUR RIGHTS

FastPencil claims no ownership or control over any User Content submitted, posted or displayed by you on or through FastPencil Services. You or a third party licensor, as appropriate, retain all patent, trademark and copyright to any Content you submit, post or display on or through FastPencil services and you are responsible for protecting those rights, as appropriate. By submitting, posting or displaying Content on or through FastPencil services which are intended to be available to the members of the public, you grant FastPencil a worldwide, non-exclusive, royalty-free license to reproduce, adapt, modify, publish and distribute such User Content on the FastPencil Services for the purpose of displaying, distributing and promoting FastPencil Services. You represent and warrant that you have all necessary rights and licenses to grant the license herein to any User Content submitted on the FastPencil website.

MODIFICATIONS TO SERVICE

FastPencil reserves the right, without liability to you or any third party, to modify or discontinue, at any time, its site and any associated FastPencil Services, or portion thereof, without notice.

COPYRIGHT

FastPencil respects the intellectual property of others. FastPencil may, in certain circumstances, disable or terminate the accounts of users who may be repeat infringers. If you are a copyright owner or an agent of a copyright owner and believe that any User Content or other content on the FastPencil site unlawfully infringes upon your rights, then please provide our agent with the following information:

  1. A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
  2. A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site is to be covered by a single notification, a representative list of such works at that site.
  3. A description of the material that is claimed to be infringing in a manner that is reasonably sufficient enough to permit us to locate the material.
  4. Information reasonably sufficient to permit us to contact you, such as an address, telephone number, an electronic mail address
  5. A statement by you that you have a good faith belief that the use of the material is not authorized by the copyright owner, its agent or the law.
  6. A statement by you made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or are authorized to act on behalf of the copyright owner.

All of the above must be provided for notification to be effective to FastPencil.

Our Copyright Agent for notice of claims or copyright infringement on its Web site can be contacted as follows:

FastPencil, Inc.
307 Orchard City Drive, Suite 210
Campbell, CA 95008
1-408-540-7572 fax

By email:
support@FastPencil.com

TERMINATION

You may discontinue your use of the FastPencil Services at any time, by providing FastPencil with thirty (30) day advance notice. You agree that FastPencil may at any time and for any reason, including non-payment of fees, terminate your access to FastPencil Services, and suspend or terminate your account. In the event of any such termination, your account will be disabled and you will not be granted further access to the FastPencil Services, including without limitation any User Content, files or other data and content contained in your account. If the termination is for non-payment of fees, FastPencil will allow you access to your User Content, files or other data and content contained in your account upon payment of all amounts owed to FastPencil. These Terms of Service shall survive any termination of your account.

INDEMNITY

You agree to indemnify and hold harmless FastPencil and its subsidiaries, affiliates, Officers, Directors and Employees from any claim or demand, including costs ,expenses and reasonable attorneys' fees, arising from your use of the FastPencil site and services, or pertaining to any User Content you make available through the FastPencil Services, or any violation by you of these Terms Of Service, or your violation of any rights of a third party, including but not limited to claims of disparagement, libel, slander and/or any intellectual property claims.

NO COMMERCIAL REUSE OF FASTPENCIL SERVICES

You agree not to modify, copy, sell, license or otherwise exploit for any commercial purposes, any portion of the FastPencil Services.

LIMITATION OF LIABILITY

IN NO EVENT SHALL FASTPENCIL BE LIABLE TO THE YOU FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND IRRESPECTIVE OF WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF FASTPENCIL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) WHICH RESULT FROM ALL CAUSES, INCLUDING WITHOUT LIMITATION: (I) THE USE OR THE INABILITY TO USE OR ACCESS THE FASTPENCIL SERVICES; (II) THE COST OF PROCUREMENT OF ANY SUBSTITUTE GOODS AND SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR USER CONTENT OR DATA; (IV) ACTIONS BY ANY THIRD PARTY ON THE FASTPENCIL WEBSITE; OR (V) ANY OTHER MATTER RELATING TO THE FASTPENCIL SERVICES.

DISCLAIMER OF WARRANTY

FastPencil disclaims all warranties, express or implied, including, but not limited to implied warranties of merchantability and fitness for a particular purpose. FastPencil does not warrant that its site; information or User Content or services made available through the site, its servers or any e-mail sent from FastPencil are free of viruses or other potentially harmful components.

FastPencil shall not be responsible for anything that may happen beyond its reasonable control (e.g. wars, sabotage, acts of God, etc.) and FastPencil shall not be liable for any damages or costs resulting from such events.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF FASTPENCIL SERVICES IS AT YOUR SOLE RISK, AND ANY CONTENT OBTAINED THROUGH THE FASTPENCIL SERVICES IS AT YOUR OWN DISCRETION AND RISK AND YOU ARE BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR ANY LOSS OF DATA THAT RESULTS THERE FROM. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, FASTPENCIL SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, FASTPENCIL AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE FASTPENCIL SERVICES AND THE FASTPENCIL WEBSITE, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF NONINFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, AND NOT BY WAY OF LIMITATION, FASTPENCIL DISCLAIMS ANY WARRANTY THAT THE (I) FASTPENCIL SERVICES OR THE FASTPENCIL WEBSITE WILL OPERATE ERROR-FREE OR WITHOUT INTERRUPTION, (II) FASTPENCIL SERVICES WILL BE TIMELY, SECURE, OR MEET YOUR REQUIREMENTS, (III) QUALITY OF THE FASTPENCIL PRODUCTS OR SERVICES WILL MEET YOUR EXPECTATIONS.

FASTPENCIL AND PARTNERS DO NOT WARRANT THAT (I) FASTPENCIL SERVICES WILL MEET YOUR REQUIREMENTS, (II), (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF FASTPENCIL SERVICES WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH FASTPENCIL SERVICES WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE FASTPENCIL SERVICES WILL BE CORRECTED.

NO STATEMENTS, EITHER ORAL OR WRITTEN, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

EXCLUSIONS AND LIMITATIONS

NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS, WHICH ARE LAWFUL IN YOUR JURISDICTION, WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

NO THIRD PARTY BENEFICIARIES

You agree there are no third party beneficiaries to these Terms Of Service.

NOTICE

You agree that FastPencil may provide you with commercial and legal notices, including those regarding changes to these Terms of Service, by email, regular mail, or postings on the FastPencil website. You may contact FastPencil at support@FastPencil.com

ENTIRE AGREEMENT

These Terms Of Service constitute the entire agreement between you and FastPencil and governs your use of the FastPencil Services, superseding any prior agreements or earlier version of these Terms Of Service between you and FastPencil.

CHOICE OF LAW AND FORUM

You hereby agree that these Terms Of Service and all matters between the parties shall be governed by the laws of the State of California without regard to its conflict of law provisions and that any and all claims, causes of action or dispute arising therefrom shall be brought exclusively in the State or Federal Courts located in the county of Santa Clara, California, and you hereby agree to submit to the personal jurisdiction of said courts, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any action, suit or proceeding arising out of or relating to these Terms of Service.

WAIVER AND SEVERABILITY OF TERMS

The failure of FastPencil to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect.