Terms of Service
Last Updated: February 16th 2021
By accessing or using the Services, you expressly (a) acknowledge that you have read and understand these Terms; (b) agree to be bound by these Terms and to be held liable for any noncompliance thereof, and (c) represent and warrant that 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 (references in these terms to “you” include you and any such third party or entity). If you do not agree to be bound by these Terms, you may not access or use the Services.
Please read the following Terms of Service (“Terms”) carefully before accessing or using any of the Service. Each time you access or use the Service, you agree to be bound by these Terms. If you do not agree to be bound by all of these Terms, you may not access or use the Service. In addition, certain areas of the Service may be subject to additional Terms of Service 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 of Service applicable to such areas. In the event that any of the additional Terms of Service governing such area conflict with these Terms, the additional terms will control.
- Eligibility for Our Service; Changes to these Terms
By agreeing to the Terms, you represent and warrant to us: (a) that you are 18 years or older, or that you are 13 years or older and have your parent or guardian’s consent to the Terms, (b) that you have not previously been suspended or removed from the Service, and (c) that your registration and your use of the Service is and will be in compliance with any and all applicable laws and regulations. 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
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, non-sublicensable, limited right for you to access and use the Services. If your use of the Services permits use of downloadable software, we hereby grant to you a non-transferable, non-exclusive, non-assignable, limited right to use such downloadable software as part of the Services. The Services are licensed to you, 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. You acknowledge and agree that such system requirements may be changed from time to time. Your right to access and use our Services is personal to you and is not transferable by you to any other person or entity. Access to our Services may not be available in all locations. You are only entitled to access and use our Services for lawful purposes and pursuant to the terms and conditions of these Terms. 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.
- 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, without limitation, 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, without limitation, 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.
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, without limitation, 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. 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, 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, without limitation, 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 Rights and Related Responsibilities
“User Content” means, without limitation, your multitrack audio and video sessions created through the Services and any videos, audio files, graphics, images, artwork, designs, music, information, personal information, Likeness Materials (as defined herein), data, and other content, digital files, or materials that you upload, transmit, or otherwise make available on or through the Services. 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 your or any third party for the content or accuracy of any User Content.
You represent and warrant that: (a) you own or control all necessary consents, permissions, and rights in and to your User Content and you have the right to grant the licenses, rights, and authorizations in the User Content granted hereunder, including the right to permit Zencastr to access, receive, collect, store, process, transmit, maintain, and possess the User Content as authorized hereunder; (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 14); (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 for the provision of the Services 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 that contain or incorporate any of the foregoing (“Likeness Materials”) in your User Content, you expressly consent to the use of such Likeness Materials as set forth 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 eighteen, 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.
You retain ownership of your User Content and hereby grant to Zencastr and our affiliates 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 (A) use, reproduce, modify, adapt, publish, translate, transmit, distribute (through multiple tiers), create derivative works of (including the right to transcribe, but excluding the right to develop or produce derivative audio or visual works or exploit customary ancillary rights such as merchandise, etc.), and publicly display your User Content, in whole or in part, for the purposes of providing the Services to you, including, as applicable, making the User Content available to other Users or the general public to the extent you use publishing services. You further grant us the non-exclusive, irrevocable, fully paid, worldwide right to use your name, likeness, and photograph on the Service and in our marketing communications to advertise, market and promote the availability of your User Content on the Service, to the extent that you choose to use the Service to make User Content available to the general public.
The licenses granted herein include allowing us to transmit 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 in order for the Service to be provided.
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 (as defined in Section 14) therein, belong to and are retained solely by Zencastr. You acknowledge that Zencastr may compile Aggregate Data based on that data that you and your Authorized Users 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.
- 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. 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 any other person or entity. Zencastr may terminate your account and delete any content contained in it if there is no account activity (such as a log in 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.
You shall pay Zencastr all applicable fees without offset or deduction as described when you purchase access to the Services or as otherwise specified in an applicable invoice (“Fees”). All Fees are non-refundable except 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. 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 and may result in suspension of your access to any portion or all of the Services until delinquent amounts are paid in full. 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) 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 and stop using the Service via an email to email@example.com with cancellation confirmation from a Zencastr representative no later than three (3) business days prior to the conclusion of your current payment term, whether monthly, yearly, or otherwise. If you cancel, 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 will charge your credit card on file with us commencing on the first day of the renewal of the subscription period.
UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL OR DO NOT WANT TO AUTO RENEW, 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.
You will be asked to supply certain your credit card number, or other payment method, and billing address when you sign up for a paid Service. 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 and warrant 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.
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. We may automatically renew your Service and charge you for any renewal term. All paid accounts are due the date the invoice is posted on your account or as otherwise specified in your subscription. Except as specifically set forth in this section, all Services are prepaid for the period selected (monthly, yearly or otherwise).
- 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 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 at least three (3) 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 at least ten (10) 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. Please be certain of your choice to commit to a one (1) 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. If you select the Annual Subscription Plan, you may not change to the Monthly Subscription Plan until the end of the one-year term of your Annual Subscription Plan.
- Term and Termination of Services
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.
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; or (c) 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.
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 5, 8, 9, 12, 14, and 16 through 25, 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 any content, advertising, products or other materials on or available from third-party websites or resources. Such Third-Party Products are 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
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 IP 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 nay of the foregoing. Services Ownership. 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; (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”). 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.
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. 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:
2416 Nantucket Dr, Cottonwood Heights, UT 84121
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 the Services 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 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 OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE 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 LICENSEE OR ANY THIRD PARTY FOR (A) ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICES, INCLUDING ANY 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 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 (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 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.
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, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to: (a) your violation of these Terms, any other agreement you have entered into with Zencastr, and any representation or warranty contained herein or therein; (b) your acts or omissions in connection with the Services, including, but not limited to, your use of and connection to the Services, your use of any Third-Party Products through the Services, 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 without limitation 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 of Service.
- 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. The parties hereto acknowledge that 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
A. 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 WITHOUT LIMITATION 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.
B. 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 without limitation 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.
C. 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 for the 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 sixty (60) days after the Notice is received, you or Zencastr may commence an arbitration proceeding or file a claim in small claims court.
D. Initiation of Arbitration. You may download or copy a form to initiate arbitration at www.adr.org.
E. 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.
F. Fees. Each party will bear its own fees in connection with the arbitration, including without limitation the expense of its own counsel, experts, witnesses, and preparation and presentation of evidence at any arbitration hearing.
G. 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.
H. 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.
I. 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.
J. 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 thirty (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.
K. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Zencastr and these Terms must be filed within one year after such claim arose; otherwise, your claim is permanently barred.
- 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.
- Contact Us
If you have any questions, concerns, or comments about these Terms or the Services, please contact us at:
2416 Nantucket Dr, Cottonwood Heights UT 84121
- 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.