Terms of serviceZencastr Terms of Service Last Updated: [August 21, 2022] IMPORTANT: PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE “TERMS”) CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT USE THE SERVICES (AS DEFINED BELOW) OR ANY OF THE PRODUCTS, SERVICES, CONTENT, FEATURES OR FUNCTIONALITY AVAILABLE THROUGH THE SERVICES.  BY ACCESSING OR USING THE SERVICES OR ANY OF THE AVAILABLE PRODUCTS, SERVICES, CONTENT, FEATURES OR FUNCTIONALITY, YOU REPRESENT AND WARRANT THAT (A) YOU HAVE READ AND UNDE

Zencastr
Terms of Service

Last Updated: [August 21, 2022]

IMPORTANT: PLEASE READ THE FOLLOWING TERMS OF SERVICE (THE “TERMS”) CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT USE THE SERVICES (AS DEFINED BELOW) OR ANY OF THE PRODUCTS, SERVICES, CONTENT, FEATURES OR FUNCTIONALITY AVAILABLE THROUGH THE SERVICES.  BY ACCESSING OR USING THE SERVICES OR ANY OF THE AVAILABLE PRODUCTS, SERVICES, CONTENT, FEATURES OR FUNCTIONALITY, YOU REPRESENT AND WARRANT THAT (A) YOU HAVE READ AND UNDERSTAND THESE TERMS, (B) YOU AGREE TO BE BOUND BY THESE TERMS AND TO BE HELD LIABLE FOR ANY NONCOMPLIANCE THEREOF, AND (C)  YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS AND, IF ENTERING INTO THESE TERMS FOR AN ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND THAT SUCH ENTITY AGREES TO THESE TERMS (REFERENCES IN THESE TERMS TO “YOU” INCLUDE YOU AND ANY SUCH THIRD PARTY OR ENTITY). PLEASE PRINT AND KEEP A PAPER COPY AND/OR RETAIN AN ELECTRONIC COPY OF THESE TERMS FOR YOUR RECORDS.

Welcome, and thank you for your interest in Zencastr, Inc. (“Zencastr,” “we,” “us,” “our,”), our website, and the content, products, services, online applications and tools that we make available on or through our website (collectively, “Services”). These Terms, including our Community Guidelines (found at https://zencastr.com/community-guidelines), our Privacy Policy (found at https://zencastr.com/privacy-policy), and any other terms or documents incorporated into any of the foregoing by reference (collectively, the “Services Agreements”), form a binding agreement between you and Zencastr that governs your access to and use of our Services, whether you are a guest or a registered user. Each time you access or use the Services, you agree to be bound by these Terms, including all Services Agreements. If you do not agree to be bound by all of these Terms, including Services Agreements, you may not access or use the Services. In addition, certain areas of the Services may be subject to additional terms and conditions that we make available for your review. By using such areas, or any part thereof, you are expressly indicating that you have read and agree to be bound by the additional terms and conditions applicable to such areas. In the event that any of the additional terms and conditions governing such area conflict with these Terms, the additional terms and conditions will control.

THESE TERMS INCLUDE AN AGREEMENT TO MANDATORY ARBITRATION, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO THE SERVICES, THESE TERMS, OUR COMMUNITY GUIDELINES, OR OUR PRIVACY POLICY TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. THE DISPUTE RESOLUTION PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. MORE INFORMATION ABOUT THE ARBITRATION AND CLASS ACTION WAIVER CAN BE FOUND IN SECTION 27 (DISPUTE RESOLUTION AND ARBITRATION) BELOW. THESE TERMS ALSO INCLUDE A JURY TRIAL WAIVER.

Eligibility for Our Service

By agreeing to the Terms, you represent and warrant to us that: (a) you are 18 years or older, or that you are 13 years or older and have your parent or guardian’s consent to these Terms, (b) you have not previously been suspended or removed from the Services, and (c) your registration and your use of the Services is and will be in compliance with any and all applicable laws and regulations.

Changes to these Terms

We have the right, in our sole discretion, to modify these Terms from time to time. Such modified terms become effective on posting. Unless otherwise required by law, you will be notified of modifications through the Services, and we may send you an email notice of the revised terms, but such notice is for your convenience only and is not required for the effectiveness of the changes. If any change is unacceptable to you, your only remedy is to stop using the Services. You are responsible for reviewing and becoming familiar with any such modifications. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified Terms.

Your Access and Use of Our Services

Among other things, the Services allow you to record and enhance multitrack audio and video on multiple devices for podcasts and other uses. Subject to these Terms, we will provide, or make available to you, the Services, and we hereby grant to you a revocable, non-exclusive, non-transferable (except as otherwise set forth herein), non-sublicensable, limited right for you to access and use the Services solely for lawful purposes. If your use of the Services permits use of downloadable software, we hereby grant to you a non-transferable and non-assignable (except as otherwise set forth herein), non-exclusive, limited right to use such downloadable software as part of the Services. The Services are provided to you via a subscription, not sold. Certain aspects of the Services may require access to or use of your personal device(s) and systems, such as your device’s camera, microphone and audio, and you consent to Zencastr’s access to and use of such personal device(s) and systems by using the Services. You acknowledge that we may use third parties in order to provide some or all of the Services, including third-party hosting providers and transcription services providers.

You are responsible for obtaining access to the Services, including maintaining all necessary internet access, equipment, software, and other services and items needed for use of the Services. Zencastr may modify such system requirements from time to time. Access to our Services may not be available in all locations. You agree to comply with all applicable laws and regulations regarding your access to and use of the Services, including all applicable video and audio recording laws. By using the Services, you consent to us storing, accessing, and using the recordings of your sessions as described in these Terms. You will receive a notification (visual or otherwise) when recording is enabled. If you do not consent to being recorded, your only option is to cease using those recording Services.

If you select a username or similar identifier for your account, we may change it if we believe it is appropriate or necessary (for example, if it infringes someone's intellectual property or impersonates another user).

Service Restrictions

You agree not to use the Services: (a) in any way that violates any applicable federal, state, local, or international law or regulation (including any laws regarding anti-spam, export control, privacy, anti-terrorism, and consent to audio or video recordings); (b) for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise; (c) to send, knowingly receive, upload, download, use, or re-use any material that does not comply with these Terms; (d) to transmit, or procure the sending of, any “junk mail,” “chain letter,” “spam,” or any other similar solicitation; (e) to impersonate or attempt to impersonate Zencastr, a Zencastr employee, another user, or any other person or entity (including by using email addresses associated with any of the foregoing); (f) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services, or which, as determined by us, may harm Zencastr or users of the Services, or expose them to liability; (g) to cause or encourage any inaccurate measurements of genuine user engagement with the Services, including by paying people or providing them with incentives to increase a podcast’s play counts or subscribers, or otherwise manipulate metrics in any manner; (h) to listen to content on the Services other than for personal, non-commercial use; or (i) to sell any advertising, sponsorships, or promotions placed on, around, or within the Services or User Content (as defined below), except as expressly permitted (and subject to the terms) herein.

Additionally, you agree not to use the Services in any way that: (i) is fraudulent or deceptive; (ii) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any third party (including the rights of publicity or other proprietary rights); (iii) uses technology or other means not authorized by Zencastr; (iv) introduces or attempts to introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful or any other computer code, files, or programs that may harm, interrupt, destroy, or limit the functionality of any computer software, hardware or telecommunications equipment; (v) gains or attempts to gain unauthorized access to Zencastr systems or user accounts or to, interfere with, damage, or disrupt any parts of the Services, the server on which the Services is stored, or any server, computer, or database connected to the Services, including attempts to overburden Zencastr’s servers or networks; (vi) encourages or constitutes conduct that could give rise to a criminal offense or civil liability; (vii) attacks the Services via a denial-of-service attack or a distributed denial-of-service attack; (viii) fails to comply with applicable third-party terms (e.g., wireless carrier terms of service); (ix) uses any manual process, or any robot, spider, or other automatic device, process, or means to access the Services for any purpose, including monitoring or copying any of the material on the Services; (x) is for the purpose of building or benchmarking a competitive product or service, or copying any features, functionality, or content of the Services; or (xi) otherwise attempts to interfere with the proper working of the Services. Without limiting any of our other remedies, Zencastr reserves the right to bring legal action against you if you engage in use that violates these Terms.

Except as expressly permitted by these Terms, you shall not: (A) copy the Services; (B) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services; (C) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any part thereof; (D) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services, including any copy thereof; (E) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time; or (F) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services.

Service Modification

Zencastr retains the absolute right to modify, discontinue, delete, or restrict any aspect or feature of the Services, including the Services in their entirety, without notice and without any liability or obligation to you. Your access and use of our Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment, periodic updating, maintenance or repair of our Services or other actions that we, in our sole discretion, may elect to take. We reserve the right, periodically and at any time, to modify or discontinue, temporarily or permanently, functions and features of the Services, with or without notice, all without liability to you, except where prohibited by law, for any interruption, modification, or discontinuation of the Services or any function or feature thereof. You understand, agree, and accept that we have no obligation to maintain, support, upgrade, or update the Services, or to provide all or any specific content through the Services. This section will be enforced to the extent permissible by applicable law.

User Content

User Content.

User Content” means, without limitation, your multitrack audio and video sessions created through the Services and any videos, audio files, graphics, images, artwork, designs, advertising, copy, reads, marketing collateral, music, information, personal information, Likeness Materials (as defined herein), metadata, data, and other content, digital files, or materials that you upload, transmit, or otherwise make available on or through the Services.

Your Responsibilities Regarding User Content

You are solely responsible for your User Content, the consequences of submitting and publishing your User Content via the Services, and for the legality, reliability, accuracy, and appropriateness of your User Content. We are not responsible for or liable to you or any third party for the content or accuracy of any User Content, for the User Content of any other user of the Services, or for your or other users’ actions or conduct (whether online or offline) or content (including unlawful or objectionable content). We also are not responsible for services and features offered by other people or companies, even if you access them through the Services. If you choose to upload User Content to the Services, you must not submit to the Services any User Content that does not comply with these Terms or any other Services Agreement or the law.

Warranties Regarding User Content; Likeness Materials

You represent, warrant and covenant that: (a) you own or control all necessary consents, permissions, and rights in and to your User Content (including any music included in your User Content) and you have the right to grant the licenses, rights, and authorizations in the User Content granted hereunder, including all rights granted to Zencastr in Section 6(E) (License to Zencastr to User Content), below; (b) all of your User Content does and will comply with these Terms; (c) the User Content, Zencastr’s use thereof pursuant to these Terms, and Zencastr’s exercise of the license rights set forth in these Terms, do not and will not: (i) infringe, violate, or misappropriate any third-party right, including any privacy right, right of publicity, or other IP Rights (as defined in Section 20); (ii) violate any applicable law; or (iii) require Zencastr to obtain a license from or to pay any fees or royalties to any third party (including any guild or society) for the provision of the Services, the performance of Zencastr’s other obligations under the Services Agreements, or for the exercise of any rights granted herein. To the extent that you choose to include the name, story, image, likeness, voice, and other personal characteristics, biographical, or professional information of yourself or anyone else, and any other content or materials in any form or medium now known or hereafter developed that contain or incorporate any of the foregoing (“Likeness Materials”) in your User Content, you expressly consent to Zencastr’s use of such Likeness Materials as contemplated herein, and you represent and warrant that you have obtained the written consent, release, or permission of every identifiable individual who appears in User Content to use such individual’s Likeness Materials in any manner contemplated by these Terms, or, if any such identifiable individual is under the age of 18, you represent and warrant that you have obtained such written consent, release, or permission from such individual’s parent or guardian. You agree to provide to us a copy of any such consents, releases, or permissions upon our request.

Ownership of User Content

As between you and Zencastr, you retain all ownership of your User Content. You reserve all rights not expressly granted in these Terms.

License to Zencastr to User Content

You hereby grant to Zencastr and our affiliates, designees and service providers, and each of their and our respective licensees, successors, and assigns a non-exclusive, royalty-free, transferable, sublicensable, worldwide right and license to host, use, reproduce, modify, adapt, run, publish, make available, transcribe, translate, digitally transcode, transmit, distribute (through multiple tiers), create derivative works of, publicly display, monetize (including displaying ads on or within such User Content) and promote your User Content, in whole or in part, through any form or medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created, in connection with the provision, promotion, and distribution of the Services and in connection with Zencastr’s business, in whole or in part, including for the purpose of promoting and redistributing part or all of the Services and including the right to make and store on Zencastr’s servers and devices such copies of User Content as are reasonably necessary to enable Zencastr to transmit and communicate to the public User Content. Where applicable and to the extent permitted under applicable law, you also agree to waive, and not to enforce, any "moral rights" or equivalent rights, such as your right to be identified as the author of any User Content, and your right to object to derogatory treatment of such User Content. The licenses granted herein include allowing us to transmit, distribute and provide access to User Content to third-party service providers for use in the operation, processing and administration of the Services, and the rights granted to us are extended to these third parties to the degree necessary for the provision of the Services.

License to Other Users

You also grant every other user of the Services a worldwide, non-exclusive, royalty-free license to access your User Content through the Services, and to use that User Content, including to reproduce, distribute, prepare derivative works, display, and perform it, only as enabled by a feature of the Services. For clarity, this license does not grant any rights or permissions for a Zencastr user to make use of your User Content independent of the Services.

Removing User Content; Content Review

The licenses granted by you in these Terms continue for a commercially reasonable period of time after you remove or delete your User Content from the Services, except that Zencastr may retain, but not display, distribute, or perform, server copies of your User Content that have been removed or deleted.

You may remove your User Content from the Services at any time, provided that rights granted by you to User Content under any Agreements (as defined below) before removal will continue in accordance with their terms.  We may remove, return or decline to post User Content at any time in our discretion, with or without notice to you, including if we reasonably believe that any User Content is in breach of any Services Agreement or may cause harm to Zencastr, our users, or third parties. You must remove your User Content if you no longer have the rights required by these Terms.

You are responsible for making, maintaining, and protecting backups of User Content. Zencastr will not be liable for any removal of, failure to store, or for loss or corruption of, User Content.

We may monitor your access and use of our Services in accordance with our Privacy Policy and Community Guidelines. We may, but are not obligated to, review User Content (including by using artificial intelligence technology and other automated means) submitted to the Services to determine whether it violates these Terms, any other Services Agreement or applicable law, and in order to help detect infringement and abuse, such as spam, malware, and illegal content.

Aggregate Data

We may collect and compile data and information related to your use of the Services to be used by Zencastr in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregate Data”). As between Zencastr and you, all right, title, and interest in Aggregate Data, and all IP Rights therein, belong to and are retained solely by Zencastr. You acknowledge that Zencastr may compile Aggregate Data based on that data that you input into the Services. You agree that Zencastr may (a) make Aggregate Data publicly available in compliance with applicable law, and (b) use Aggregate Data to the extent and in the manner permitted under applicable law; provided that such Aggregate Data do not identify you or your Confidential Information.

Brand Accounts

If you establish a Zencastr account on behalf of a company, organization, entity, or brand (a "Brand," and such account a "Brand Account"), the terms "you" and "your," as used throughout these Terms, apply to both you and the Brand. If you create a Brand Account, you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and to bind the Brand to these Terms. A Brand may not take any action that implies an endorsement or commercial relationship between the Brand and a user, artist, songwriter, or any other person, unless the Brand has independently obtained the rights to imply such an endorsement. In addition, Brands must be transparent to other Zencastr users about disclosing any endorsements or consideration and must comply with all applicable laws, regulations, and codes of practice when engaging in the foregoing practices.

Advertising; Monetization

Some content licensed by, provided to, created by, or otherwise made available by Zencastr may incorporate advertising or other promotional messages. You also grant to us (and our third-party business partners) the right to provide advertising and other information to you. You agree we may use your personal data to show you ads more relevant to you. The content that you access via the Services, including its selection and placement, may be influenced by commercial considerations, including our agreements with third parties.

If you are monetizing your User Content on Zencastr, all of your monetized User Content must follow all Zencastr monetization policies and advertiser-friendly content guidelines, including those at https://zencastr.com/content-guidelines, as well as any advertising editorial policies of third-party distribution partners. If you elect to monetize, Zencastr may, but shall have no obligation to, check your User Content (or parts thereof) to see whether it complies with these Terms.

The Services may display opportunities for certain Brand advertising campaign offers through the Services (each an “Ad Campaign Offer”). Zencastr may issue, or not issue, Ad Campaign Offers to in its sole discretion. If you enter into an Agreement (as defined below) for an Ad Campaign Offer with a Brand, you agree that you shall not remove the User Content subject to the Ad Campaign Offer during the pendency of the corresponding campaign, in accordance with the Agreement.

Brands shall be responsible for providing all advertising materials in connection with Ad Campaign Offers, including without limitation artwork, audio content, audiovisual materials, advertising, and copy. Zencastr may reject any such materials in its sole discretion.  The Brand will be charged by Zencastr in accordance with the payment terms displayed to you at the time you accept such Ad Campaign Offer. Your acceptance of an Ad Campaign Offer constitutes your acceptance of such payment terms. You agree that any funds that you pay to Zencastr with respect to an Ad Campaign Offer are nonrefundable and belong to Zencastr.

Transactions with Other Users

These Terms are in addition to any commercial transactions, agreements, releases or other documents (the “Agreements”) that you may enter into with other users in connection with the Services, which Agreements include, without limitation, Ad Campaign Offers (other than the payment terms of an Ad Campaign Offer). You are responsible for complying with the terms of the Agreements you enter into.  Zencastr has no control over a party’s compliance with its Agreements. Among other things, Zencastr cannot control (a) the provisions of the Agreements, (b) the accuracy or legality of the Agreements or (c) any party’s performance of its obligations under the Agreements. Accordingly, Zencastr shall not be held responsible for any liability arising out of the Agreements or any actions that you may take in reliance thereon, and you acknowledge that Zencastr is not a party to any Agreement or transaction between users of the Services and cannot be held responsible for any issues arising therefrom.

WE MAKE NO WARRANTY REGARDING ANY AGREEMENTS OR TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THE SERVICES, AND YOU UNDERSTAND AND AGREE THAT SUCH AGREEMENTS AND TRANSACTIONS ARE ENTERED INTO AND CONDUCTED ENTIRELY AT YOUR OWN RISK. ANY WARRANTY THAT IS PROVIDED IN CONNECTION WITH ANY PRODUCTS, SERVICES, MATERIALS, OR INFORMATION AVAILABLE ON OR THROUGH THE SERVICE FROM A THIRD PARTY IS PROVIDED SOLELY BY SUCH THIRD PARTY, AND NOT BY US OR ANY OTHER OF OUR AFFILIATES. TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE ZENCASTR FROM ANY CLAIMS OR DAMAGES OF ANY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, RELATING TO ANY DISPUTE RELATING TO THE AGREEMENTS OR ANY TRANSACTION OR ATTEMPTED TRANSACTION WITH ANOTHER USER OF THE SERVICES. YOU AGREE AND UNDERSTAND AND INTEND THAT THIS ASSUMPTION OF RISK AND RELEASE IS BINDING UPON YOU AND YOUR HEIRS, EXECUTORS, AGENTS, ADMINISTRATORS AND ASSIGNS.   Because the releases in these Terms specifically cover known and unknown claims, you expressly waive your rights under California Civil Code § 1542, and similar laws of other states, which provides: "a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."

Privacy Policy

Zencastr complies with its privacy policies available at https://zencastr.com/privacy-policy (“Privacy Policy”) in providing the Services. The Privacy Policy is subject to change as described therein. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and accepted Zencastr’s then-current Privacy Policy, and you consent to all actions taken by us with respect to your information in compliance with the then-current version of the Zencastr Privacy Policy.

Community Guidelines

Zencastr requires all users to comply with our community guidelines located at https://zencastr.com/community-guidelines (“Community Guidelines”) at all times while using the Services. By interacting with any other Zencastr user through the Services, you acknowledge that you have reviewed and accepted the Community Guidelines, and you consent to all actions taken by us in response to your violation of the Community Guidelines as set forth therein.

Accounts and Registration

You may be required to register for an account in order to access certain features of the Services. When you register for an account, you will create a username, password, or other login credentials, and you may be required to provide us with some information about yourself (such as your email address or other contact information). You shall: (a) keep your information accurate and up to date; (b) keep passwords and access credentials associated with the Services confidential; and (c) promptly notify us of any unauthorized access to or use of passwords or access credentials. YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES AND CONDUCT, WHETHER BY YOU OR ANYONE ELSE, THAT ARE CONDUCTED THROUGH YOUR ACCOUNT. We are not liable for any loss or damage arising from your failure to protect your username or password. You shall not sell or transfer your login credentials to, or share your login credentials with, any other person or entity. Zencastr may terminate your account and delete any associated User Content if there is no account activity (such as a login event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.

Fees

You shall pay Zencastr all applicable fees without offset or deduction as described when you purchase access to or otherwise conduct transactions via the Services or as otherwise specified in an applicable invoice (“Fees”). All Fees are non-refundable except as expressly set forth herein or in the event of material uncured breach by Zencastr and then, in such event, only for the pro rata portion of Fees for the period of time impacted by such breach as we reasonably determine. There are no refunds or credits for periods where you did not use the Services, used it only partially, or deactivated your account or terminated these Terms during an ongoing payment interval. This includes accounts that are renewed. Late payments may incur interest. If you fail to make any payment when due, without limiting Zencastr’s other rights and remedies, Zencastr may suspend or cancel your Services, and you shall reimburse Zencastr for all reasonable costs incurred by Zencastr in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. If you fail to pay all amounts due within 90 days, Zencastr may, in its sole discretion, either (i) permanently deactivate your account or (ii) reduce your subscription level to a free account. Please note that in either case, you may not be able to retrieve your User Content.

The Fees exclude all taxes and charges, unless stated otherwise. You are responsible for any taxes and for all other charges incidental to using the Services (for example, data charges and currency exchange settlements).

The Fees may change. We’ll notify you at least 30 days in advance, either through the Service or to the email address you have most recently provided to us, if we change the price of the Service. If there's a specific length and price for your current payment term already in effect, that price will remain in force for that time. If you don’t agree to our change of price, you must cancel your subscription pursuant to these Terms. If you cancel in compliance with these Terms, your Service ends at the end of your current payment term. If you fail to cancel in accordance with these Terms, we will automatically renew the Service at the then-current price and for the same subscription period and you authorize us to charge your credit card on file with us for renewal of the subscription period.

WITHOUT LIMITING THE FOREGOING, UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW PURSUANT TO THE TERMS ABOVE, YOU UNDERSTAND YOUR SUBSCRIPTION WILL AUTOMATICALLY CONTINUE AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO COLLECT THE THEN-APPLICABLE SUBSCRIPTION FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.

Payment

You may be asked to supply your credit card number, or other payment method, and billing address when you sign up for a paid Service or enter into an Agreement (including with respect to an Ad Campaign Offer). You can access and modify your billing account information through the Services, and you may change your payment method at any time. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION THROUGH THE SERVICES. You further represent, warrant and covenant that (a) the credit card or other payment information that you provide is accurate and complete; (b) charges incurred by you will be honored by your credit card company or other payment institution; and (c) you will pay all charges incurred by you at the posted prices, including shipping and handling charges and all taxes applicable to your order, if any, regardless of the tax amount quoted at the time of your order. We may use third-party payment processors, or other third-party service providers, in order to process your payment and fulfill your order. By submitting your payment information to the Services, you grant Zencastr the right to provide such information to such third parties for the purpose of facilitating the completion of your order or other transaction initiated by you or on your behalf. Payment is subject to validation and authorization by both the card company or payment processor and by Zencastr in order to maintain security and prevent fraud.

Without limiting the foregoing, we may bill: (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription Services. We may charge you up to the amount you’ve approved, and we’ll notify you in advance of the difference for recurring subscription Services. Please note that we may require you to pay outstanding late fees prior before you may pay subscription fees for further Services.

Trials and Free Services

Zencastr may offer the Services on a trial or limited basis for free. If you are currently using the Services on a trial or limited basis, you may cancel at any time before the end of your trial or limited Service period. Certain limited-use versions of our Services may be used for free, for an unlimited period of time. IF YOU ARE PARTICIPATING IN ANY TRIAL FOR THE USE OF ONE OF OUR PAID SUBSCRIPTIONS, YOU MUST CANCEL SUCH SERVICES BY THE END OF THE TRIAL PERIOD IN ORDER TO AVOID INCURRING CHARGES. IF YOU DO NOT CANCEL, (A) YOUR SERVICES WILL AUTOMATICALLY CONVERT TO THE PAID VERSION OF THE SERVICE SUBSCRIPTION THAT YOU HAVE SELECTED; (B) YOU AUTHORIZE US TO CHARGE YOUR CREDIT CARD OR OTHER PAYMENT METHOD FOR THE SERVICES AT THE END OF THE TRIAL PERIOD; AND (C) NO CREDITS OR REFUNDS WILL BE AVAILABLE EXCEPT AS OTHERWISE SPECIFIED HEREIN. You may, however, cancel your subscription prior to the expiration of the trial period and before the next billing cycle in accordance with these Terms.

Subscription Periods

You may elect one of the following subscription plans and billing options:

A monthly subscription plan (“Monthly Subscription Plan”). The subscription period for the Monthly Subscription Plan will be one month and will automatically renew unless you cancel your Monthly Subscription Plan in accordance with these Terms by emailing support@zencastr.com at least three business days prior to the renewal date. You will be billed monthly for the Monthly Subscription Plan on or about the same day each month until such time that you cancel your Monthly Subscription Plan.

An annual subscription plan (“Annual Subscription Plan”). The subscription period for the Annual Subscription Plan will be one year and will automatically renew each year on the anniversary of your Annual Subscription Plan unless you cancel your Annual Subscription Plan in accordance with these Terms by emailing support@zencastr.com at least ten days prior to your renewal date. You will be billed annually for the Annual Subscription Plan on or about the same day each year until such time that you cancel your Annual Subscription Plan. For the avoidance of doubt, please note, you will not be permitted to cancel or downgrade the Zencastr Service that you have selected until the anniversary of your Annual Subscription Plan. There will be no refunds for Annual Subscription Plan payments except as expressly set forth herein. Please be certain of your choice to commit to a one-year period before you select the Annual Subscription Plan. If you are not certain of your choice, we recommend choosing the Monthly Subscription Plan. If you select the Monthly Subscription Plan, you can switch to the Annual Subscription Plan at any time.

Term and Termination of Services

Termination By You

Paying customers may terminate these Terms, effective on written notice to Zencastr, if Zencastr materially breaches these Terms, and such breach (i) is incapable of cure; or (ii) remains uncured 30 days after Zencastr’s receipt of written notice of such breach. Customers that solely use Zencastr’s free Service may terminate these Terms by ceasing to use the Service.

Termination by Zencastr

For paying customers, we may terminate your subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. Further, we may terminate your subscription for any reason, at any time, by providing at least 90 days’ written notice to you and a pro rata refund for any period of time you did not use in that billing cycle. We reserve the right to terminate or suspend a non-paying customer account at any time and for any reason.

In addition to our other rights and remedies otherwise set forth in these Terms, we may suspend or terminate your subscription at any time, without refund or penalty, for any of the following reasons: (a) if you have materially breached these Terms and failed to cure that breach within 30 days of our notice to you of such breach; (b) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services; (c) we are required to do so in order to comply with a legal requirement or court order; or (d) if you cease your business operations or become subject to insolvency proceedings, and the proceedings are not dismissed within 90 days. We may also suspend providing the Services to any customer, paying or non-paying, if we are investigating suspected misconduct by that customer. Zencastr has no obligation to retain User Content upon termination of the Terms.

We will notify you with the reason for termination or suspension unless we reasonably believe that to do so: (a) would violate the law or the direction of a legal enforcement authority, or would otherwise risk legal liability for Zencastr or our affiliates; (b) would compromise an investigation or the integrity or operation of the Services; or (c) would cause harm to any user, other third party, Zencastr or our affiliates.

Effect of Termination

Upon termination of these Terms, you shall immediately discontinue use of the Services. No expiration or termination of these Terms will affect your obligation to pay all Fees that may have become due before such expiration or termination, nor shall termination or expiration of these Terms entitle you to any refund unless otherwise expressly set forth herein. The rights and obligations of the parties set forth in Sections 2, 4, 5, 7, 13, 14, 17(C), and 19 through 32, any right or obligation of the parties in the Agreement which, by its nature, should survive termination or expiration of the Agreement, will survive any termination or expiration of the Agreement.

Third Party Services and Content

The Services may permit you to access products, content, services, information, websites, or other materials that are owned by third parties (“Third-Party Products”). We are not responsible, or liable to you or any third party, for the Third-Party Products or any content or accuracy of any materials provided by any third parties, and we do not endorse any such content, advertising, products or other materials on or available from third-party websites or resources. Such Third-Party Products may be subject to their own terms and conditions, and if you decide to access any Third-Party Products through the Services, you do so entirely at your own risk and subject to those applicable terms and conditions. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install, access, or use such Third-Party Products.

Intellectual Property Rights; Feedback

Ownership of Services and Marks

For purposes of these Terms, “IP Rights” means copyrights, trade secrets, know-how, trademarks and services marks (together with all goodwill associated therewith), domain names, patents, inventions, design rights, trade dress, and any other intellectual property rights that may exist anywhere in the world, including, in each case, whether unregistered, registered or comprising an application for registration, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing, and “Marks” means Zencastr’s names, trademarks, service marks, trade names, and the “look and feel” of our website, including all goodwill associated with any of the foregoing.

IP Rights

Zencastr solely and exclusively owns all right, title and interest in and to the Services and Marks, including (a) the interfaces, website files (including images, php and html files), graphics, designs, software code, compilation of content, and other elements comprising the Services, including any content Zencastr makes available in the Services (for example, images, designs, videos, or sounds Zencastr provides that you can add to content you create or share); (b) all documentation for the Services; (c) all updates, new releases, improvements, and modifications to, and derivative works of, the foregoing, and (d) all IP Rights in and to the foregoing (collectively, the “Zencastr IP”). During and after the term of these Terms, you shall not take any action that jeopardizes the Zencastr IP. For the avoidance of doubt, Zencastr IP includes Aggregate Data and any information, data, or other content derived from Zencastr’s monitoring of your access to or use of the Services, but does not include User Content. Zencastr reserves all rights not expressly granted in these Terms. Except for the limited rights and licenses expressly granted hereunder, nothing in these Terms grants by implication, waiver, estoppel, or otherwise, to you or any third party any IP Rights or other right, title, or interest in or to the Zencastr IP.

Feedback

If you share any comments, bug reports, feedback, modifications, questions, suggestions, or the like related to the Services or new features or functionalities (“Feedback”), Zencastr shall have the right to use such Feedback at its discretion, including the incorporation of any such Feedback into the Services or Zencastr’s other products or services, without payment to you. You hereby grant to Zencastr a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up, transferable, sublicensable license to incorporate, publish, reproduce, distribute, modify, adapt, prepare derivative works of, publicly display, publicly perform, exploit, and use your Feedback for any purpose. All Feedback is and will be treated as non-confidential.

Copyright Policy

Reporting Claims of Copyright Infringement

We take claims of copyright infringement seriously. The Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act (17 U.S.C. § 512) (“DMCA”) provides recourse for copyright owners who believe that material appearing on the internet infringes their rights under United States copyright law. If you believe that your work, or the work of a third party for whom you are authorized to act, is featured on the Services or has been otherwise copied and made available on the Services in a manner that constitutes copyright infringement, please notify us immediately. You may request removal of those materials (or access to them) from the Services by submitting written notification to our copyright agent designated below. In accordance with the DMCA, the written notice (“DMCA Notice”) must include substantially the following:

  • Your physical or electronic signature.
  • Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on the Services, a representative list of such works.
  • Identification of the material you believe to be infringing in a sufficiently precise manner to allow us to locate that material.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the written notice is accurate.
  • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. Our designated copyright agent to receive DMCA Notices is:

Zencastr, Inc.

Michael Cammock

2261 Market Street #4399 San Francisco CA, 94114

877.234.8955

support@zencastr.com

If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective and shall not be considered sufficient notice to confer actual knowledge upon Zencastr of the facts or circumstances of such allegedly infringing material or acts. We have the right to disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their IP Rights or their right to privacy.

Counter Notification Procedures

If you believe that material you posted on the Services was removed or access to it was disabled by mistake or misidentification, you may file a counter notification with us (a “Counter Notice”) by submitting written notification to our copyright agent designated above. Pursuant to the DMCA, the Counter Notice must include substantially the following:

  • Your physical or electronic signature.
  • An identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
  • Adequate information by which we can contact you (including your name, postal address, telephone number, and, if available, email address).
  • A statement under penalty of perjury by you that you have a good faith belief that the material identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.
  • A statement that you will consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or if you reside outside the United States for any judicial district in which the Services may be found) and that you will accept service from the person (or an agent of that person) who provided us with the complaint at issue.

The DMCA allows us to restore the removed content if the party filing the original DMCA Notice does not file a court action against you within ten business days of receiving the copy of your Counter Notice.

If you knowingly materially misrepresent that material or activity on the Services is infringing your copyright, or was removed or disabled by mistake or misidentification, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA. It is our policy in appropriate circumstances to disable or terminate the accounts of users who are repeat infringers.

Disclaimer of Warranties

You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE, OUR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY SERVICES LINKED TO IT.

YOUR USE OF THE SERVICES, ITS CONTENT, AND ANY ITEMS OR OTHER SERVICES OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT, AND ANY ITEMS OR OTHER SERVICES OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, ZENCASTR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES, OR RESULTS OF USE THEREOF, WILL MEET YOUR ANY OTHER PERSON’S OR ENTITY’S REQUIREMENTS; ACHIEVE ANY INTENDED RESULTS; BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, BROWSERS, OR SERVICES; OPERATE WITHOUT INTERRUPTION; MEET ANY PERFORMANCE, RELIABILITY, OR INDUSTRY STANDARDS OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE; OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. NEITHER ZENCASTR NOR ANY PERSON ASSOCIATED WITH ZENCASTR MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER ZENCASTR NOR ANYONE ASSOCIATED WITH ZENCASTR REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR ASSOCIATED EQUIPMENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. YOU HEREBY IRREVOCABLY WAIVE ANY AND ALL CLAIMS BASED ON OR RELATED TO THE FOREGOING.

Limitations of Liability

TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL ZENCASTR, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CONTRACTORS, SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES, INCLUDING ANY PROPERTY DAMAGE, BODILY INJURY, HARM, LOSS OF LIFE, OR IMPAIRMENT TO HEALTH OR WELLBEING THAT MAY ARISE OUT OF OR RESULT FROM THE USE OF, OR FAILURE TO USE, THE SERVICES; (B) LOST REVENUES OR PROFITS; (C) DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, REPUTATION, OR GOODWILL; (D) LOSS OR CORRUPTION OF DATA OR USER CONTENT; (E) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; (F) FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; (G) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (H) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (I) BREACHES IN SYSTEM SECURITY; (X) ANY ERRORS OR OMISSIONS IN THE SERVICES; (J) YOUR RELIANCE ON ANY SERVICES OR CONTENT; OR (K) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT ZENCASTR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL ZENCASTR AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF, UNDER, OR IN CONNECTION WITH THE SERVICES, THESE TERMS OR THEIR SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE GREATER OF $100 OR THE TOTAL AMOUNTS PAID TO ZENCASTR UNDER THESE TERMS IN THE THREE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (OR FOR SUCH PERIOD, IN THE CASE OF ANNUAL SUBSCRIPTIONS). THE LIMITATIONS SET FORTH IN THIS LIMITATION OF LIABILITY SECTION SHALL APPLY EVEN IF LICENSEE’S REMEDIES UNDER THESE TERMS FAIL THEIR ESSENTIAL PURPOSE.

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF ZENCASTR SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.

Indemnity

You agree to defend, indemnify, and hold harmless Zencastr, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, demands, suits, investigations, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to: (a) your breach or violation of these Terms or any other agreement you have entered into with Zencastr or any Agreements with users or other third parties (including your breach of any representation or warranty contained herein or therein); (b) your acts or omissions in connection with the Services, including your access, use of and connection to the Services, your use of any Third-Party Products through the Services, your performance or non-performance under any Agreement or in connection with any Ad Campaign Offer, and any activity related to access or use of your account by you or any other person; (c) your User Content; (d) your violation of any third-party right, including any IP Rights and any publicity, confidentiality, property, or privacy rights; (e) any disputes or issues between you and any third party; (f) your representations made to Zencastr, its affiliates or third parties; or (g) your violation of applicable law. Zencastr reserves the right, in its discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Zencastr in asserting any available defenses, and you will reimburse Zencastr for all costs incurred in its assumption of the defense. Your indemnification, defense, and hold harmless obligations will survive the termination of your use of the Services and/or these Terms.

Export; Government Rights

The United States and certain foreign countries may regulate the export and re-export of technology originating in the United States. Exporting and re-exporting may include the electronic transfer or dissemination of content and software to foreign countries, certain foreign nationals, and certain specially designated nationals. You agree to abide by all applicable provisions of export and import laws, including the Export Administration Act and the Arms Export Control Act. Further, each of the software components that constitute the Services and the related documentation is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if you are an agency of the U.S. Government or any contractor therefor, you receive only those rights with respect to the Services as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government customers and their contractors.

Cumulative Remedies

Except as expressly provided otherwise in these Terms, (a) in addition to any remedies provided in these Terms, the parties hereto shall have all remedies provided at law or in equity, (b) the rights and remedies provided in these Terms or otherwise under law shall be cumulative, and (c) the exercise of any particular right or remedy shall not preclude the exercise of any other rights or remedies in addition to, or as an alternative of, such right or remedy. Violations of certain provisions of these Terms may result in irreparable harm to Zencastr for which remedies other than injunctive relief may be inadequate. We shall be entitled to seek injunctive or other equitable relief to restrain such unauthorized acts in addition to other appropriate remedies. You agree that Zencastr shall not be required to post any bond or other surety as a precondition to such relief being granted.

Dispute Resolution and Arbitration

Binding Arbitration. YOU AND ZENCASTR BOTH AGREE THAT ANY AND ALL DISPUTES OR CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICE OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES, INCLUDING ANY QUESTION REGARDING THE EXISTENCE, VALIDITY, OR TERMINATION OF THESE TERMS AS WELL AS ANY ISSUE REGARDING THE INTERPRETATION OF THIS SECTION 21, WILL BE RESOLVED BY BINDING ARBITRATION BEFORE A SOLE ARBITRATOR (RATHER THAN IN COURT), EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY AND ZENCASTR MAY PURSUE A COLLECTION ACTION AGAINST YOU IN COURT. THIS ALSO INCLUDES ANY CLAIMS THAT AROSE BEFORE YOU ACCEPTED THESE TERMS, REGARDLESS OF WHETHER PRIOR VERSIONS OF THESE TERMS REQUIRED ARBITRATION. THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET SEQ.) AND FEDERAL ARBITRATION LAW APPLY TO THIS ARBITRATION AGREEMENT.

Neutral Arbitrator. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the requirements of these Terms as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.

Notice. If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to Zencastr, by certified mail, a written notice of your claim that (i) describes the nature and basis of the claim or dispute; (ii) sets forth the specific relief sought; and (iii) includes a physical address and email address where you may be reached (“Notice”). The Notice must be addressed to Zencastr, Inc. at the address set forth below. You may download or copy a form Notice at www.adr.org. If Zencastr and you do not reach an agreement to resolve the claim within 60 days after the Notice is received, you or Zencastr may commence an arbitration proceeding or file a claim in small claims court.

Initiation of Arbitration. You may download or copy a form to initiate arbitration at www.adr.org.

Commercial Arbitration Rules. The arbitration will be governed by the AAA’s then-current Commercial Arbitration Rules, as modified by the terms of these Terms, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between these Terms and the AAA Consumer Arbitration Rules, these Terms will apply.

Fees. Each party will bear its own fees in connection with the arbitration, including the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.

Hearings. If your claim is for US $25,000 or less, you and Zencastr agree that you may choose whether the arbitration will be conducted solely on the basis of documents or through a telephonic hearing. You may also request an in-person hearing, which the arbitrator may grant at his or her discretion. If the arbitrator grants an in-person hearing, such hearing will be conducted either at a mutually agreed location or a location determined by the AAA or the arbitrator. In such an in-person hearing, the parties, or any of their witnesses, have the right to participate remotely by way of videoconference or some similar means. If your claim exceeds US $25,000, the right to a hearing will be determined by the arbitrator. All in-person hearings will be held in Salt Lake County, Utah or a mutually agreed upon location.

No Class Action. You and Zencastr agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated, or mass action. Neither you nor Zencastr may join or consolidate claims by or against a third party or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 21 shall be null and void.

Confidentiality. Any arbitration will be confidential. Neither you, Zencastr, the AAA, nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by applicable law or for purposes of enforcing or challenging of the arbitration award.

Opt-Out. You may opt out of this dispute resolution procedure by providing written notice to Zencastr at the address set forth below no later than 30 calendar days from the date of your subscription to the Service (or date of first use, in the case of free services). Opting out of this dispute resolution procedure will not otherwise affect the coverage or applicability of these Terms or your ability to purchase or use the Service.

Governing Law and Jurisdiction

These Terms are governed by and construed in accordance with the internal laws of the State of Delaware, United States, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware.

Force Majeure Events

Zencastr shall not be liable for any delay or failure to perform its obligations under these Terms to the extent prevented from doing so by a Force Majeure Event, provided that Zencastr promptly exercises commercially reasonable efforts to overcome or cure the Force Majeure Event to the extent within its power to effect such cure and gives prompt notice to you upon discovery of such Force Majeure Event. “Force Majeure Event” means any circumstances beyond a party’s reasonable control, including, for example, an act of God; act of government; flood; fire; earthquake; civil unrest; act of terror; pandemic; disease epidemic; public health emergency; strike or other labor problem; internet connectivity issues; internet service provider failure or delay; denial of service attack; and interruption, outage, or other problems with any software, hardware, system, network, facility, or third party services.

Relationship of the Parties

The relationship of the parties is solely of independent contractors. These Terms shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal association between you and Zencastr. Neither party shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.

Miscellaneous

These Terms, including the Privacy Policy, the Community Guidelines, and any other Services Agreements or documents referenced herein, constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Any notices to us must be sent to Zencastr using the contact information listed below and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, by email (with confirmation of receipt by Zencastr), or by recognized overnight courier service, and are deemed given upon receipt by us. Notwithstanding the foregoing, you hereby consent to receiving electronic communications from us. These electronic communications may include notices about applicable fees and charges, transactional information, and other information concerning or related to the Services. You agree that any notices, agreements, disclosures, or other communications that Zencastr sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction. Any failure to act by us with respect to a breach of these Terms by you or others does not constitute a waiver and will not limit Zencastr’s rights with respect to such breach or any subsequent breaches. No modification, amendment, or waiver of any provision of these Terms will be effective against Zencastr unless in writing and signed by an authorized representative of Zencastr. These Terms are personal to you and may not be assigned or transferred for any reason whatsoever without Zencastr’s prior written consent and any action or conduct in violation of the foregoing will be void and without effect. Zencastr expressly reserves the right to assign these Terms and to delegate any of its obligations hereunder. Any headings contained in these Terms are used only as a matter of convenience and reference, and are in no way intended to define, limit, expand or describe the scope of these Terms. For purposes of these Terms, (a) the singular includes the plural and vice versa; (b) reference to any document, law, or standard means such document, law, or standard as amended from time to time; (c) “include” or “including” means including without limiting the generality of any description preceding such term; (d) the term “or” is not exclusive; (e) the phrase “these Terms” and the terms “hereof,” “herein,” “hereby,” “hereunder” and derivatives or similar words refer to this entire Agreement; and (f) all references to payment are in U.S. dollars. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms.

Because the releases in these Terms specifically cover known and unknown claims, you expressly waive your rights under California Civil Code § 1542, and similar laws of other states, which provides: "a general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."

Contact Us

If you have any questions, concerns, or comments about these Terms or the Services, please contact us at:

Zencastr, Inc.

2261 Market Street #4399 San Francisco CA, 94114

844-234-8955

support@zencastr.com

Notice to California Residents

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.

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