Terms of Service

Adults only. Our policies, Community Guidelines and certain third-party terms also apply.

Eligibility

By agreeing to the Terms, you represent and warrant to us that: (a) you are 18 years or older, (b) you have not previously been suspended or removed from the Services, (c) your use of the Services will comply with applicable law and (d) if agreeing to these Terms on behalf of an entity, you have the legal authority to bind the entity and the entity agrees to these Terms (references to “you” include you and the entity).

Other Applicable Terms

Our Policies

These policies and terms also form part of the Agreement between us (collectively, “Our Policies”):

• our Privacy Policy explains how we use personal information and your rights and choices;
• our Copyright Policy; and
• our Community Guidelines and
• any other policies or operating rules posted by us on the Services.

Community Guidelines: You must comply with our Community Guidelines at all times while using the Services, including in chats. By interacting with any other Zencastr user through the Services, you acknowledge that you have reviewed and accepted the Community Guidelines.

Marketing communications: If you opt-in to receive promotional or marketing communications from us, you may unsubscribe at any time following the instructions in any email or by texting STOP to any SMS from us. We do not share or sell or your contact information or allow any other business to use it for their own purposes. For more, see the Privacy Policy.

Updates to Our Policies: We may update any of Our Policies in the same way we update the Terms. By accessing, using, and providing information to or through the Services, you acknowledge that you have reviewed and consent to the Privacy Policy.

Outside Materials and Terms

The Services may link to, embed, integrate or connect third party services (“Outside Materials”). Outside Materials may be subject to additional legal terms (“Outside Terms”) made available by their third-party provider.

• For example, by accessing or downloading a Zencastr application from the Apple App Store, you are agreeing to Apple’s Licensed Application End User License Agreement (“Apple Terms”). These Terms govern if there is a conflict with the Apple Terms.

These Terms do not apply to Outside Materials. We are also not a party to Outside Terms. By using the Services, you acknowledge and agree that we are not responsible for, and disclaim all liability for, the performance and reliability of Outside Materials and any act or omission of any provider of Outside Materials. We do not warrant, endorse or otherwise guarantee Outside Materials will integrate, interoperate or remain available through the Services.

Zencastr lets you create, record, enhance, publish and monetize content. You’re responsible for all hardware. We have the right to suspend or terminate your access.

Among other things, the Services allow you to create, record, and enhance audio and video content, access AI-powered content creation and generation tools, and participate in AI-powered chats and sessions—including sessions you or others can create at any time through Zencastr.

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.

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 AI infrastructure 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).

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.

Modifications to Services

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.

Termination & suspension

In addition to our other rights and remedies otherwise set forth in these Terms, we may suspend or terminate your account or access to the Services at any time for any of the following reasons: (a) if you breach these Terms or Our Policies; (b) if you use the Services in a way that causes legal liability to us or disrupts others’ use of the Services or (c) we are required to do so in order to comply with a legal requirement or court order. Suspension and termination will not void your right to redeem credit validly earned prior to the suspension or termination.

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.

You always own your User Content, whether uploaded raw, recorded on Zencastr or enhanced by our Services. You also grant us a license to use your User Content for purposes like discovering monetization opportunities, tailoring your Producer, enhancing our Services and dissemination for use beyond Zencastr. Eligible User Content earns credit redeemable for cash payment, at the rates shown in your Zencastr wallet.

“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.

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.

Licenses to Zencastr

You hereby grant Zencastr and its affiliates, designees, and service providers, and each of their and our respective licensees, successors, and assigns a worldwide, non-exclusive, royalty-free, transferable, and sublicensable 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, perform, monetize, analyze, 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 later developed, including without limitation for the training, operation, improvement, and fine-tuning of artificial intelligence or machine learning models, including those that power Zencastr.

You hereby waive and agree not to enforce any “moral rights” or equivalent rights (including rights of attribution or integrity) to the maximum extent permitted by law.

Credit: In exchange, and subject to your compliance with these Terms and Our Policies, Zencastr will issue you cash-redeemable credit for your User Content based on the current content rate card in your Zencastr wallet, as in effect at the time you provide the User Content, and as finally determined by Zencastr in its sole and absolute discretion. Zencastr’s rate card changes frequently, and applicable content rates will vary by content type, content language, length, quality and a variety of other factors.

• To view your current rate card click Earn > Wallet in the Services, or use any other method described by the Services.
• Unredeemed credit expires twelve (12) months after accrual.
• Payments are fully administrated by Zencastr’s supported payment processors (such as Stripe). To receive payment for credit, you may need to establish an account or otherwise provide information to Zencastr’s payment processor. You are solely responsible for ensuring that you maintain and are eligible to receive payments through the supported payment processor methods, in accordance with the processor’s rules, restrictions and guidelines. Payment processor functionality is Outside Materials governed by the processor’s Outside Terms.

No guarantee of credit or payment: Zencastr does not guarantee that your User Content will ultimately be eligible for credit or that you will be able to redeem credit for cash value.

• Zencastr will finally determine credit eligibility, and you accept that you have no right to contest or appeal Zencastr’s determinations, whether through the Services, in any other context or forum or otherwise.
• Zencastr is not responsible or liable for failure to support any disbursement method, for your payment information or for ensuring that you are able to or actually receive payments for credit.

Licenses to other users

All users grant licenses in the User Content they publish. Data generated by use of Zencastr improve our Services for everyone, including our AI models.

License to Other Users: With respect to any User Content you publish or otherwise make available to others, you 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.

Anonymized and aggregate content and metadata

Zencastr may remove, aggregate, de-identify, or anonymize your User Content and related metadata in connection with the above uses, and you acknowledge that outputs or derivatives generated from your User Content may not be reversible or traceable to the original.

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; (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 right; (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 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.

Review and Removal of User Content

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 these Terms, Our Policies 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. 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, Our Policies or applicable law, and in order to help detect infringement and abuse, such as spam, malware, and illegal content.

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.

These Terms are in addition to any commercial transactions, agreements, releases or other documents (collectively with these Terms, 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.”

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, (d) any comments, feedback, notes, messages, ideas, suggestions or other communications you send us through our direct communication channels or feedback mechanisms and (e) all intellectual property 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 any information, data, or other content derived from Zencastr’s monitoring of your access to or use of the Services other than 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 right, title, or interest in or to the Zencastr IP.

Our Services are provided ‘as is.’ We do not make, and cannot make, any representations about the content or features of our Services.

Warranties

Except as stated elsewhere in these Terms, all of the Services, products and content are provided “as is” without warranty of any kind. To the fullest extent permitted by law, we disclaim without limitation all warranties, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise, including the warranties of merchantability, title, non-infringement of third parties’ intellectual property rights, or fitness for a particular purpose.

Use of the Services and the transmission of messages through the Services is done at your own discretion and risk. No advice or information, whether oral or written, obtained by you from us or through the Services will create any warranty that is not expressly stated in these Terms.

These limitations apply only to the extent they are not prohibited by applicable law. To the extent permissible, any implied warranties that cannot be excluded are limited to ninety (90) days, or such longer period as applicable law requires.

Limitations of Liability

Except for the indemnity obligations stated below, to the fullest extent allowed by applicable law, under no circumstances and under no legal theory will either of us be liable to the other with respect to the subject matter of this Agreement for:

• Any indirect, special, incidental, or consequential damages of any kind, or
• Any aggregate amount in excess of the greater of (1) $100 or (2) the amounts paid or payable by you to us for paid Services in the three-month period preceding the applicable claim.

For clarity, this means we will not be liable for: unauthorized access to or loss of Customer Data, Your Content or any other data, loss of information, the cost of procuring alternative goods or services, internet failures, or our failure to provide technical or other support services. These limits apply to all claims, obligations and liabilities relating to this Agreement, even if we, our affiliates, licensors or suppliers are aware of the possibility that you may incur these damages, and even if these limited remedies fail of their essential purpose.

Indemnification

To the fullest extent allowed by applicable law, you agree to indemnify and hold harmless Zencastr, Inc., its affiliates, officers, agents, employees, and partners from and against any and all third-party claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or relating to (i) your use of the Services (including any actions taken using your access to the Services) or (ii) your violation of this Agreement or of law. In the event of such a claim, suit, or action, we will notify you using the contact information we have for your account, provided that failure to deliver such notice will not eliminate or reduce your indemnification obligations under this Agreement. This obligation will survive any suspension, termination or cessation of your use of the Services.

In the event of a dispute, you and Zencastr agree to try to resolve it informally first. If we can’t resolve it in 60 days, we agree to arbitrate the claim, instead of going to court. You may opt-out of arbitration within 30 days of accepting this Agreement.

You agree to resolve disputes with Zencastr through binding arbitration, except as described in this Dispute Resolution section (the “Arbitration Clause”). The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action. Similar disputes may, however, be grouped as a Mass Filing in arbitration.

You may opt-out of arbitration under ‘Opt-Out’ below within thirty (30) days of first accepting these Terms.

Scope of arbitration

Covered Disputes. You and Zencastr agree that any dispute or claim between you and Zencastr arising out of or relating to this Agreement or the Services (a “Dispute”) will be resolved by binding arbitration, rather than in court. A Dispute includes any claim or dispute relating to the Services, access and use of the Services, your Account, or any aspects of your relationship or transactions with Zencastr. A Dispute also includes any claims or disputes that arose from or involve facts that occurred before the effectiveness of this Agreement and claims that may arise after its termination. For clarity, nothing in this Arbitration Clause prevents either party from settling any Dispute(s) on a class-wide, batch-wide or other multiparty basis.

Small Claims Exception. This Arbitration Clause does not require arbitration of Disputes capable of resolution in small claims court actions, if the requirements of the court are met and the claims are and remain only on an individual basis.

18-Month Filing Deadline. To the extent permitted by applicable law, and notwithstanding any other statute of limitations, any claim or cause of action under this Arbitration Clause (with the exception of disputes under Exceptions to Arbitration for claims pertaining to intellectual property rights including trademarks, trade dress, domain names, trade secrets, copyrights and patents), must be filed within eighteen (18) months after such claim or cause of action arose. Otherwise, that claim or cause of action will be permanently barred. The statute of limitations and any arbitration cost deadlines remain tolled during the required informal process under ‘Informal Dispute Resolution First’ above.

Jury Trial Waiver. You and Zencastr agree to waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and Zencastr are instead electing that all Disputes will be resolved by arbitration under this Arbitration Clause, except as specified under ‘Small Claims Exception’ above. Court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.

Class Action Waiver. You and Zencastr agree that, except as specified under ‘Batch Process’ below, each of us may bring claims against the other only on an individual basis and not on a class, collective, representative, or mass action basis.

The parties agree to waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis.

Subject to this Arbitration Clause, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief to the party’s individual claim.

Notwithstanding anything to the contrary in this Arbitration Clause, if a court decides, in a final nonappealable decision, that the limitations of this Class Action Waiver section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Zencastr agree that that particular claim or request for relief (and only that particular claim or request for relief) will be severed from the arbitration and will be pursued in the courts specified in the ‘Governing Law; Forum’ section.

Opt-Out. You may reject this Arbitration Clause and opt out of arbitration by sending an email to optout@zencastr.com within thirty (30) calendar days of first accepting these Terms. If you have an Account, your opt-out notice must be sent from the email address associated with your Account. No one may opt-out another person. Your notice to opt-out must include your first and last name, address, the email address associated with your Account (if you have an Account), and a clear statement that you decline this Arbitration Clause.

Resolution process

Informal Dispute Resolution First. Like you, we want to resolve Disputes without resorting to arbitration. If you have a Dispute with us, before initiating arbitration, you agree to send an individualized request (“Pre-Arbitration Demand”) to dispute@zencastr.com so that we can work together to resolve the Dispute. Only Disputes subject to the Small Claims Exception are exempt from this requirement.

• A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all.
• The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your Dispute.

Likewise, if Zencastr has a Dispute with you, Zencastr will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your Account.

If the Dispute is not resolved within sixty (60) calendar days of when either you or Zencastr submitted a Pre-Arbitration Demand, an arbitration can be brought.

This ‘Informal Dispute Resolution First’ section is a condition precedent to commencing arbitration. The arbitrator will dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.

Arbitration Procedure. If, after completing the ‘Informal Dispute Resolution First’ process, either you or Zencastr wish to initiate arbitration, the initiating party must serve the other party with a demand for arbitration. Any demand for arbitration by you will be sent to the Zencastr address in ‘Informal Dispute Resolution First’. Zencastr will send any arbitration demand to the email address associated with your Account or to your counsel, if any. You and Zencastr agree that the Federal Arbitration Act (“FAA”) governs this Arbitration Clause. If the FAA cannot apply, then the state laws governing arbitration procedures where you reside apply.

The arbitration will be administered by National Arbitration and Mediation (“NAM”) under its Comprehensive Dispute Resolution Rules and Procedures, and where applicable, its Mass Filing Supplemental Dispute Resolution Rules and Procedures, in each case as available at https://www.namadr.com/resources/rules-fees-forms. This Arbitration Clause will govern to the extent it conflicts with the arbitration provider’s rules.

If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5. To the extent there is a dispute over which arbitration provider has jurisdiction, a NAM arbitrator will be appointed to resolve that dispute.

Arbitration hearings will take place through videoconferencing, unless you and Zencastr agree upon another location in writing. A single arbitrator will be appointed.

Arbitration Costs & Remedies.

Except as provided for in a Mass Filing under ‘Batch Process’ below, your responsibility to pay any filing, administrative, and arbitrator costs will be solely as set forth in the applicable arbitration provider’s rules. The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction over the dispute. An arbitration award will have no preclusive effect in another arbitration or court proceeding involving Zencastr and a different individual. The arbitrator will have the exclusive authority to resolve all threshold arbitrability issues, including whether this Arbitration Clause is applicable, unconscionable, or enforceable, as well as any defenses to arbitration. However, a court has exclusive authority to rule on the waiver under ‘Class Action Waiver’, including any claim that the section is unenforceable, illegal, void or voidable, or that it has been breached.

Batch Process. To increase the efficiency of arbitrations, you and Zencastr agree that if 25 or more arbitration demands relating to the same event or factual scenario, raising the same or similar legal issues and seeking similar relief are filed within a 180-day period (“Mass Filing”): (i) to administer the Mass Filing in batches of 25 demands per batch (or less, if fewer than 25 remain) (“Batches”), with only one Batch filed, processed, and adjudicated at a time; (ii) to designate one arbitrator for each Batch; (iii) to accept applicable fees, including any related fee reduction determined by NAM in its discretion; (iv) that no other demands for arbitration that are part of the Mass Filing may be filed, processed, or adjudicated until the prior Batch is filed, processed, and adjudicated; (v) that fees associated with a demand for arbitration included in a Mass Filing, including fees owed by Zencastr and the claimants, will only be due after your demand for arbitration is included in a Batch that is properly designated for filing, processing, and adjudication; and (vi) that the Batch process will continue until each demand (including your demand) is adjudicated or otherwise resolved.

• Any statutes of limitation, including the requirement to file within eighteen (18) months at ‘18-Month Filing Deadline’, will remain tolled while any arbitration demands are held in abeyance. While the Batches are adjudicated, no other demand for arbitration that is part of the Mass Filing may be processed, administered, or adjudicated, and no filing or other administrative costs for such a demand for arbitration will be due from either party to the arbitration provider.
• The parties will work in good faith with the arbitrator to complete each Batch within 120 calendar days of its initial pre-hearing conference. The parties agree that the Batch process is designed to achieve an overall faster, more efficient, and less costly mechanism for resolving Mass Filings. If, contrary to this provision, a party prematurely files an arbitration demand, the parties agree that the arbitration provider must hold those demands in abeyance.

Any party may request that the arbitration provider appoint a sole standing administrative arbitrator (“Administrative Arbitrator”) to determine threshold questions such as (1) whether the Batch process is applicable or enforceable, (2) whether particular demand(s) are part of a Mass Filing, and (3) whether demands within a Mass Filing were filed in accordance with this Arbitration Clause, including the ‘Informal Dispute Resolution First’ section above. Zencastr will pay the Administrative Arbitrator’s costs.

This Batch Process provision will in no way be interpreted as increasing the number of claims necessary to trigger the applicability of NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures, or authorizing class arbitration of any kind. Unless Zencastr otherwise consents in writing, Zencastr does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this ‘Batch Process’ section.

Settlement. At least ten (10) calendar days before the date set for the arbitration hearing, you or Zencastr may serve a written offer of judgment upon the other party to allow judgment on specified terms. If the offer is accepted, the offer with proof of acceptance will be submitted to the arbitration provider, who will enter judgment accordingly. If the offer is not accepted before the earlier of (i) the arbitration hearing or (ii) thirty (30) calendar days after it is made, it will be deemed withdrawn, and cannot serve as evidence in the arbitration. If an offer made by one party is not accepted by the other party, and the other party fails to obtain a more favorable award, the other party will not recover their post-offer costs and will pay the offering party’s costs from the time of the offer. The parties agree that any disputes with respect to settlement offer(s) or offer(s) of judgment in a Mass Filing are to be resolved by a single arbitrator to the extent such offers contain the same material terms. For arbitrations involving represented parties, the represented parties’ attorneys agree to communicate individual offer(s) of judgment to each and every arbitration claimant or respondent to whom such offers are extended.

Severability. Except as provided under ‘Class Action Waiver’ above, if any provision of this Arbitration Clause is found to be illegal or unenforceable, then that provision will be severed. The remaining provisions will still apply and will be interpreted to achieve the closest possible intent to the original intent of this section, inclusive of the severed provision.

Governing Law; Forum. These Terms are governed by and construed in accordance with the laws of the State of California, without resort to its conflict of law provisions. Subject to the ‘Dispute Resolution’ section, you and we agree to only bring Disputes and any other legal proceeding in the state and federal courts located in Los Angeles County, California. You and we consent to the jurisdiction of those courts. You and we agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.

Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to us for which monetary damages would be an inadequate remedy and we will be entitled to equitable relief in addition to any remedies we may have under this Agreement or at law without a bond, other security or proof of damages.

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

Modifications of Services. We may change or discontinue any aspect, service or feature of the Services at any time, in our sole discretion.

Relationship. You and Zencastr agree there are no third-party beneficiaries intended under the Agreement. You acknowledge and agree that you are not an employee, agent, partner, or joint venturer of Zencastr, Inc.

Interpretation. If it turns out that a particular term of the Agreement is not enforceable for any reason, this will not affect any other terms. Any words following the terms ‘including,’ ‘include,’ ‘in particular,’ ‘for example’, ‘such as’ or any similar expression are illustrative, non-exhaustive and do not limit the sense of the words, phrase or description preceding those terms. The word ‘or’ as used in these Terms is not exclusive. The failure of either party to exercise, in any way, any right under these Terms does not waive any further rights the Terms provide.

Entire Agreement. This Agreement, including the Privacy Policy, the Community Guidelines, and any other policies or documents referenced herein, is the complete and exclusive statement of the mutual understanding between the parties as to its subject matter, and it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to it.

Force Majeure. In no event will we be liable to you, or be deemed to have breached this Agreement, for any failure or delay in performing our obligations under the Agreement, to the extent such failure or delay is caused by any circumstances beyond our 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.