PLEASE READ THIS PUBLISHER AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING THE NEWSLETTER PUBLISHING PLATFORM OFFERED BY SUBSTACK INC. (“SUBSTACK,” “WE,” “US”) AT SUBSTACK.COM AND ANY FEATURES, CONTENT, OR APPLICATIONS OFFERED FROM TIME TO TIME BY SUBSTACK IN CONNECTION THEREWITH (COLLECTIVELY, THE “PLATFORM”). This Agreement forms a legally binding contract between you and Substack in relation to your use of the Platform. In order to use the Platform IN ANY WAY, INCLUDING TO DISTRIBUTE YOUR NEWSLETTER AND ANY CONTENT THEREIN (the “PUBLISHER NEWSLETTER”), you must first agree to this Agreement by clicking “accept” where this option is made available to you. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, YOU REPRESENT AND WARRANT YOU HAVE POWER AND AUTHORITY TO BIND SUCH ORGANIZATION OR ENTITY TO THIS AGREEMENT. SUBSTACK RESERVES THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT AT ANY TIME BY PROVIDING NOTICE TO YOU OF SUCH CHANGES ON SUBSTACK.COM, VIA EMAIL, AND/OR BY SOME OTHER MEANS; AFTER Substack’s Provision of SUCH NOTICE, YOU MUST AGREE TO THE NEW TERMS BY CLICKING “ACCEPT” where this option is made available to you. IF YOU DO NOT “ACCEPT” THE NEW TERMS, you do not have the right to use the platform.
Acceptance of Terms
b. Your Publisher Newsletters (or any content therein) may be rejected or removed from the Platform at any time in Substack’s discretion; provided, however, that Substack will notify you of such rejection or removal immediately and, if possible, provide you with five (5) business days to cure the basis for the rejection or removal subject to Substack’s sole discretion.
c. You acknowledge and agree that you, not Substack, are responsible for the distribution of the Publisher Newsletters, and Substack’s activities hereunder are undertaken solely to assist you in facilitating such distribution of the Publisher Newsletters. Substack will notify Publishers as soon as reasonably practicable if Publishers’ access to the Platform is suspended or substantially limited due to a serious technical error.
2. Pricing and Payments
a. You may offer your Publisher Newsletters for free, or for a subscription fee, to be determined in your discretion. If you offer your Publisher Newsletters for a subscription fee, you may not attempt to circumvent your payment obligations to Substack hereunder by soliciting payment from a user outside the Platform. You agree to notify Substack immediately if you receive any such offer or solicitation.
b. You may set the prices for your Publisher Newsletters through the Platform, and you may change the prices at your sole discretion through your Publisher account (provided no price changes shall apply retroactively). All prices will be set in U.S. Dollars.
c. You will use a third party payment processing company (“Third Party Payment Processor”) as determined by Substack to process payment information from subscribers to the Publisher Newsletters (“End Users”) via the Platform. You shall bear and be responsible for any and all applicable federal, state, local, and foreign taxes, duties, tariffs, levies, withholdings, and similar assessments (including without limitation, sales, use, and value added taxes) relating to the subject matter hereunder, excluding taxes based on Substack’s income.
d. Subject to the terms and conditions of this Section 2, within thirty (30) days after the end of each calendar month during the term of this Agreement, you will pay Substack the Revenue Share (defined below) through the Third Party Payment Processor. “Net Revenue” means the amounts charged by you to End Users for the subscriptions to Publisher Newsletters purchased during a calendar month. “Revenue Share” means the percentage of Net Revenue mutually agreed to between you and Substack during registration of your Publisher account (which may be modified from time to time upon the parties’ mutual agreement). For clarity, the Third Party Payment Processor will pay the Revenue Share directly to Substack. ALL REVENUE SHARE PAYMENTS ARE NON-REFUNDABLE. If there is a payment dispute (or any other dispute) between you and an End User, you agree that Substack is under no obligation to become involved and that Substack will not be held liable for any such dispute. Any payments made to you, and any payments you make to Substack, will be made in U.S. Dollars.
3. Support. You shall provide to Substack a current email address to which Substack may direct inquiries from End Users regarding your Publisher Newsletters. Substack retains the right, but does not have the obligation, to immediately halt the provision of Publisher Newsletters, prevent or restrict access to the Platform, or take any other action in case of technical problems, objectionable material, inaccurate listings, inappropriately categorized services, or actions otherwise prohibited by the procedures and guidelines contained on the Platform, or for any other reason in the sole and absolute discretion of Substack, and to correct any inaccurate listing or technical problems on the Platform.
4. Use of the Substack Platform
a. Except for the rights expressly granted in this Agreement, Substack agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any of the Publisher Newsletters, including any intellectual property rights which subsist in the Publisher Newsletters.
b. You agree to use the Platform only for purposes and in a manner that is permitted by (i) this Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding intellectual property and the export of data or software to and from the United States or other relevant countries). You will not use the Platform or services, to market, sell, distribute, or promote any products or services that are not Publisher Newsletters.
d. You agree that you will not engage in any activity with the Platform, including the development or distribution of any Publisher Newsletters, that interferes with, disrupts, damages, or accesses in an unauthorized manner the devices, servers, networks, or other properties or services of Substack or any third party. You will not engage in any activity that is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable.
e. You agree that you are solely responsible for (and that Substack has no responsibility to you or to any third party for) any Publisher Newsletters you distribute through the Platform and for the consequences of your actions (including any loss or damage which Substack may suffer) by doing so.
5. License to Publisher Newsletters and Trademarks. You hereby grant Substack, during the term of this Agreement, a worldwide, nonexclusive, sublicensable, royalty-free, fully paid-up, transferable (in accordance with Section 13(a)) right and license: (a) to market your Publisher Newsletters and to permit others to use, access, and download your Publisher Newsletters through the Platform, and (b) to your tradename(s), trademark(s), and logo(s) in connection with the distribution and marketing of the Publisher Newsletters.
6. Requested Information. You will provide Substack with all requested data or information about you and your Publisher Newsletters (“Information”), including all payment and tax identification information, and you will ensure Information is accurate and up-to-date.
7. Representations and Warranties. By posting, uploading, inputting, providing or submitting any content to the Platform, you represent and warrant that: (a) such content (including anything within the Publisher Newsletters), and Substack’s distribution thereof pursuant to this Agreement, do not and will not infringe, violate, or misappropriate any law, statute, ordinance or regulation or rights of any third party; and (b) the Publisher Newsletters do not contain a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program.
8. Indemnity. You will indemnify and hold Substack, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys’ fees) from any claim or demand made by any third party against Substack due to or arising out of your access to or use of the Platform, your violation of this Agreement, or the infringement by you or any third party using your account of any intellectual property or other right of any person or entity. For avoidance of doubt, the foregoing shall include, without limitation, your obligation to indemnify Substack for any tax, tariff, duty, levy, assessment or withholding that may be charged to, levied against, or otherwise payable by Substack with respect to the subject matter of this Agreement (excluding taxes payable on Substack’s income).
9. De-listing Publisher Newsletters; Termination.
a. This Agreement shall remain in full force and effect while you use the Platform. Subject to the terms of this Section 9, either party may terminate this Agreement at any time, for any reason or for no reason, with fifteen (15) days’ notice to the other party.
b. You may terminate this Agreement with respect to one (1) or more Publisher Newsletters offered on the Platform (i.e., “de-list” one (1) or all of your Publisher Newsletters from the Platform), upon fifteen (15) days’ notice to Substack. However, if you remove any purchased Publisher Newsletters from the Platform and/or stop publishing purchased Published Newsletters on the Platform before the end of every subscription term (“Subscription Term”) that has not terminated as of the de-listing date of the applicable Publisher Newsletters, ANY AND ALL OBLIGATIONS TO THE END USERS, INCLUDING ANY REFUND OBLIGATIONS FOR THE REMAINING PORTION OF THE SUBSCRIPTION TERM, ARE SOLELY YOUR RESPONSIBILITY. SUBSTACK WILL NOT ISSUE ANY REFUNDS TO YOU OR THE END USERS AND IS ENTITLED TO KEEP ANY AND ALL PORTIONS OF ANY REVENUE SHARE YOU HAVE PAID SUBSTACK.
c. Notwithstanding anything else herein to the contrary, Substack may terminate this Agreement, upon notice pursuant to Section 9(a), and/or terminate or suspend in whole or in part your access to or use of the Platform with respect to any or all Publisher Newsletters at any time, for any reason, including without limitation if you breach any of the terms or conditions of this Agreement, if your behavior or any Publisher Newsletters is offensive or unacceptable in any manner. Upon such notice and termination of your account, your right to use the Platform will immediately cease.
d. The following provisions shall survive termination of this Agreement (in whole or in part): the last sentence of Section 1(a), the last sentence of Section 4(c), Section 4(e), Sections 7 and 8, Section 9(b), and Sections 10-13 (inclusive), and any payment obligations incurred prior to the effective date of termination.
10. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, SUBSTACK SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE REVENUE SHARE AMOUNTS PAID AND/OR PAYABLE BY YOU TO SUBSTACK HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
a. This Agreement is not assignable, transferable or sublicensable by you (by operation of law or otherwise) except with Substack’s prior written consent; provided, however, that you may assign this Agreement to a successor to all or substantially all of your assets or business who agrees in writing to be bound by this Agreement, provided you give Substack thirty (30) days prior written notice thereof. You or Substack may transfer, assign or delegate this Agreement and its rights and obligations without consent.
b. The parties agree that they are each independent contractors and nothing in this Agreement will be deemed to establish a joint venture, partnership, agency or employment relationship between the parties. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other. Any notice, report, approval or consent required or permitted hereunder will be in writing. Except as otherwise set forth herein, any waivers or amendments will be effective only if made in writing and executed by both parties. If any provision of this Agreement is 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.
c. This Agreement will be construed under the laws of the State of California, without regard to conflicts of law provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Francisco County, California, using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in, respectively, San Francisco County, California, or the Northern District of California. The prevailing party in any action or proceeding arising out of this Agreement will be entitled to an award of costs and attorneys’ fees.
d. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements and communications relating to the subject matter of this Agreement.