ZenBusiness INC (“ZenBusiness”) provides software as a service through a website portal or mobile application (as may be offered from time to time) (either a “Site,” the mobile application the “App”) for you, the user, the opportunity to form a business with a particular state of the United States of America (“State”) obtain registered agent services, ensure your business’ good standing status with a State, protect your business’ privacy, file certain documents with a State and obtain additional services that may be offered from time to time. All products and services described in this Section, as well as any other products and services offered by ZenBusiness at any time shall be defined herein as “Service” or “Services.” In order to use the Service, you must read and accept all of the terms and conditions in, and linked to, this Terms of Service agreement (this “Agreement”). This Agreement may be modified by ZenBusiness from time to time at our sole discretion, and you may be notified as set forth below. We strongly recommend that, as you read this Agreement, you also access and read the linked information. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
Disclaimer: ZenBusiness INC is not an attorney, a law firm, or a substitute for an attorney or a law firm and does not engage in the practice of law. ZenBusiness INC cannot and does not provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies. We provide information and software and you are responsible for appropriately using this material.
1. ZENBUSINESS SERVICE
ZenBusiness allows you to form a business with a State, obtain registered agent services for the business, ensure your business’ good standing with a State, protect your business’ privacy, file certain documents with a State and obtain additional services that may be offered from time to time. ZenBusiness is not a law firm nor does it offer legal advice. ZenBusiness does not create an attorney-client relationship. This Service must be used within the applicable laws of the State relating to the formation of businesses. This Service is intended only for use in the United States.
2. REGISTRATION AND ACCOUNT
Account Creation. In order to use certain features of the Services, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site, subject to early termination fees, as applicable. ZenBusiness may suspend or terminate your Account in accordance with the Term and Termination Section.
Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify ZenBusiness of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. ZenBusiness cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
3. MINIMUM AGE
You must be 18 years of age or older to use or register for Services.
4. ACCESS TO THE SITE AND THE SERVICES
License. Subject to this Agreement, ZenBusiness grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site and App solely for your own personal, noncompetitive use.
Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Site or App, whether in whole or in part, or any content displayed on the Site or App; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or App; (c) you shall not access the Site or App in order to build a similar or competitive website, product, or service, to discover information that could be used to compete against ZenBusiness (such as the terms of its relationships with its business partners); and (d) except as expressly stated herein, no part of the Site or App may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site or App shall be subject to this Agreement. All copyright and other proprietary notices on the Site or App (or on any content displayed on the Site or App) must be retained on all copies thereof.
Modification. ZenBusiness reserves the right, at any time, to modify, suspend, or discontinue the Services (in whole or in part) with or without notice to you, except where ZenBusiness is providing monthly or yearly services, in which case ZenBusiness will endeavor to give you notice prior to the next renewal term. You agree that ZenBusiness will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
No Support or Maintenance. You acknowledge and agree that ZenBusiness will have no obligation to provide you with any support or maintenance in connection with the Services.
Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site or App and its content are owned by ZenBusiness or ZenBusiness’ suppliers. Neither this Agreement (nor your access to the Services) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth herein. ZenBusiness and its suppliers reserve all rights not granted in this Agreement. There are no implied licenses granted under this Agreement.
6. SERVICE FEES AND BILLING METHODS
ZenBusiness charges you for service fees and filing fees. ZenBusiness may collect these fees directly using a third-party payment service. ZenBusiness may place a $100.00 hold on your payment method until the full-service fees and filing fees are determined. ZenBusiness will charge you the fees from your applicable State associated with forming a business and filing documents with a State and for such other Services as you select while using the Site.
One-Time Payments. ZenBusiness offers services that are subject to a one-time fee. These services include filing for an EIN on your business’ behalf, requesting priority handling of your business’ formation with the State, and other services that may be offered by ZenBusiness from time to time. The one-time service payments are not subject to the automatic renewal or recurring payment schedule referenced in this section and are payable at the time of your request.
Notice of Automatic Billing. I understand that Zenbusiness may send a reminder email to the email address of record for my account before my Installment Billing Dates. I acknowledge and agree that this notice is provided as a courtesy only, and Zenbusiness is not obligated or required to provide such notice. I acknowledge and agree that (i) my failure to read, (ii) my inability to receive, and/or (iii) the failure of Zenbusinss to send the email does not create any liability on the part of Zenbusiness or any third-party service provider.
Abandoned or Incomplete Orders. I understand that, other than as required by applicable law, I shall have no right to cancel, request a cash refund or obtain store credit for any undelivered order after 120 days have elapsed from the purchase date unless Zenbusiness is at fault. All itemization of fees are displayed for convenience only. Both parties acknowledge that Zenbusiness used out of pocket time and money for undertaking the work and both parties fully intended to complete the order. Abandoned orders will result in liquidated damages equal to the amount paid to Zenbusiness for reimbursement of our commitment to service this order.
Recurring Payments. ZenBusiness also offers paid services for an initial period of 12 months. The paid services are billed to you using a recurring payment system that recurs and is billed on either a monthly or yearly basis.
You authorize ZenBusiness to charge the card originally used for purchase on either the monthly or yearly anniversary of your engagement of the services as appropriate. If you have purchased the Worry Free Compliance service, you will also be billed for State compliance event filing fees at the time of any compliance event (e.g. Annual Report). If a payment fails or is expired, you will be notified by ZenBusiness and access to the Services will be suspended until payment is received. You may elect to discontinue some or all of your paid services at any time by contacting firstname.lastname@example.org. Should you elect to discontinue any of the paid services prior to the expiration of the initial 12-month term you may be required to pay a $25 cancellation fee and any other expenses which have been paid or incurred by ZenBusiness, including state or third-party vendor fees.
Automatic Renewal. Your subscription will be automatically renewed each month or year on the corresponding date you began using the Services and the payment method on file with ZenBusiness will be charged each month or year unless you notify ZenBusiness and terminate the services in accordance with this section. BY ACCEPTING THESE TERMS OF SERVICE YOU UNDERSTAND AND AGREE THAT UNLESS AND UNTIL YOU CANCEL YOUR SUBSCRIPTION TO THE SERVICES (1) YOUR SUBSCRIPTION TO THE SERVICES WILL AUTOMATICALLY RENEW AT THE END OF EACH SUBSCRIPTION PERIOD AND CONTINUE FOR ANOTHER SUBSCRIPTION PERIOD; (2) YOU WILL AUTOMATICALLY BE BILLED AT THE START OF EACH NEW SUBSCRIPTION PLAN PERIOD; AND (3) THAT PERIODIC CHANGES FOR EACH NEW SUBSCRIPTION PERIOD WILL BE AUTOMATICALLY BILLED TO YOUR DESIGNATED BILLING PAYMENT METHOD. YOU MAY TERMINATE ENROLLMENT IN AUTOMATIC RENEWAL BY EMAILING SUPPORT@ZENBUSINESS.COM.
Cancellation Policy. If you do not pay on the billing Date, as described in the Billing section, you can correct your credit card information and pay the outstanding amounts before the one-month anniversary of your Billing Date. If you have not made any payments on your Subscription by the one-month anniversary of your Billing Date, Zenbusiness may suspend your service and terminate your Subscription. If payment cannot be charged to your credit card or your charge is returned for any reason, including through a chargeback, Zenbusiness may, at its sole and absolute discretion, suspend or terminate your access and account, which will terminate these Terms and our obligations under them. If a charge made to your credit card is declined, Zenbusiness may make up to five attempts to bill that card over a thirty-day period. If you wish to reactivate your account after a termination, there will be no setup or reactivation fees. However, if your account was terminated for nonpayment, it will be reactivated only after Zenbusiness receives the full amount past due.
Registered Agent Services. If you purchased Registered Agent Services from ZenBusiness, please refer to the Registered Agent Terms.
Worry Free Compliance. ZenBusiness will perform due diligence to ensure that your business is in good standing at the time of Worry Free Compliance purchase. By purchasing the Worry Free Compliance, you authorize ZenBusiness to charge your credit card on file for the State fees required to process your compliance documents. ZenBusiness is NOT responsible for disenfranchisement or lack of good standing of your entity if you did not opt into, and purchase, the Worry Free Compliance, if your entity was in bad standing PRIOR to engagement of ZenBusiness’ services, if you cease using ZenBusiness as your registered agent without notifying ZenBusiness of the change, or if ZenBusiness was unable to process the required State fees due to an unsuccessful payment attempt on your designated billing payment method. ZenBusiness requires 14 business days to perform due diligence before processing any upcoming compliance reports. All compliances and warranties offered under the Worry Free Compliance shall not be effective until 14 days after your selection and payment for the Worry Free Compliance. Once confirmed, ZenBusiness will monitor your compliance events (e.g. State annual report), notify you of compliance event(s), and ensure the timely filing of any applicable documents or fees with the State for an initial period of 12 months. Should your entity, as a result of the negligence of ZenBusiness, fall into bad standing with the State of formation after ZenBusiness forms your company or confirms that your entity is in good standing, ZenBusiness will pay any fees associated with bringing your business back into good standing with the State, including penalties with interest, reinstatement filing fees, but excluding taxes associated with the business.
Compliance Filing Service. By purchasing our Worry Free Compliance service, the following provisions apply to you:
Eligibility. To qualify for our state-filing service, your entity must remain in good standing with the state. Failure to respond will result in a delinquency with the Secretary of State, and you may be subject to state penalties and/or having your entity’s status revoked or suspended.
Responsibility to Provide Information. In order for ZenBusiness to process your compliance filing with the State agency, you must first complete ZenBusiness’ Annual Report (or the equivalent depending on the state) questionnaire and pay the state’s required filing fees at least 15 business days before your filing due date. Failure to complete the ZenBusiness questionnaire may result in delinquency with the State agencies, late filing fees, or additional penalties not covered by the Worry Free Compliance.
Filing Fees or Other Fees. While ZenBusiness may, from time to time, collect requisite filing fees, penalty fees, or reinstatement fees from you to advance to the proper state or local government, ultimately, you are responsible for ensuring that all such fees have been paid and received by the state, including state fees, including penalties and reinstatement fees, if applicable, or local governmental entity.
Compliance Alerts. We will attempt to contact you at the email address on record up to five times to remind you of an upcoming filing. For Registered Agent subscribers, we may also forward any notices we receive as your registered agent, including annual report reminders, delinquency notices, or other compliance-related correspondence from Secretaries of State. You are responsible for informing Zenbusiness of changes to your contact information.
Exclusions. Local, industry-specific, licensing, and tax requirements are not included as part of this state filing service, unless specified otherwise in your package.
7. USER CONTENT
User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site or the App (e.g., content in the user’s profile, documents, including, but not limited to governmental filings and completed forms, certificates, and records, forms, messages, information submitted or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (below). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by ZenBusiness. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. ZenBusiness is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
License. You hereby grant (and you represent and warrant that you have the right to grant) to ZenBusiness an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, subject to the Privacy and Confidentiality provisions, solely for the purposes of including your User Content in the Services. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
You agree not to use the Site or App to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any applicable law, regulation, or obligations or restrictions imposed by any third party.
In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site or App any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site or App unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site or App to harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site or App, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site or App (or to other computer systems or networks connected to or used together with the Site or App), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site or App; or (vi) use software or automated agents or scripts to produce multiple accounts on the Site or App, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site or App (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site or App for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with the Term and Termination Section, and/or reporting you to law enforcement authorities.
Feedback. If you provide ZenBusiness with any feedback or suggestions regarding the Services (“Feedback”), you hereby assign to ZenBusiness all rights in such Feedback and agree that ZenBusiness shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. ZenBusiness will treat any Feedback you provide to ZenBusiness as non-confidential and non-proprietary. You agree that you will not submit to ZenBusiness any information or ideas that you consider to be confidential or proprietary.
8. CONSENT TO USE CERTAIN DATA
Location Data. If you opt-in to location data, ZenBusiness and its partners, licensees and third-party developers may provide certain services through ZenBusiness Software that rely upon location information. To provide these services, where available, ZenBusiness and its partners, licensees and third-party developers may transmit, collect, maintain, process and use your location data, including the real-time geographic location of your computer, and location search queries. The location data and queries collected by ZenBusiness are collected in a form that does not personally identify you and may be used by ZenBusiness and its partners, licensees and third-party developers to provide and improve location-based products and services. By using any location-based services provided by or through ZenBusiness Software, you agree and consent to ZenBusiness’ and its business partners’’ licensees’ and third-party developers’ transmission, collection, maintenance, processing and use of your location data and queries to provide and improve such products and services.
9. THIRD PARTY LINKS
Third-Party Links. The Site contains third-party data and/or sources such as data from governmental records or links that direct you to our business partners, such as, just for example, providers of small business accounting services, small business banking services, small business insurance services, small business lending services, or domain name or website services (collectively, “Third-Party Data & Sources”). Such Third-Party Data & Sources are not under the control of ZenBusiness, and ZenBusiness is not responsible for any Third-Party Data & Sources. ZenBusiness provides access to these Third-Party Data & Sources only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third- Party Data & Sources. While ZenBusiness asks that its third-party business partners comply with all applicable laws, ZenBusiness is not responsible for its Third-Party Sources to do so. You use all Third-Party Data & Sources at your own risk and should apply a suitable level of caution and discretion in doing so.
ZENBUSINESS DOES NOT CONTROL NOR Compliance THE ACCURACY OF THE DATA IT GATHERS FROM THE STATES. AT TIMES, TIME DELAYS DUE TO THE STATE UPDATING ITS SYSTEM MAY AFFECT ACCURACY OF INFORMATION DISPLAYED BY ZENBUSINESS. ZENBUSINESS DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM INACCURACIES OR TIME DELAYS CAUSED BY THE STATES.
When you click on any of the Third-Party Data & Sources, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Data & Sources.
Release. You hereby release and forever discharge ZenBusiness (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Services (including any interactions with, or act or omission of, other Site or App users or any Third-Party Data & Sources). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
10. SERVICE PROVIDERS
ZenBusiness does not endorse and is not responsible or liable for any User Content, data, advertising, products, goods or services available or unavailable from, or through, any third-party registered agent services, third party filers or governmental agencies (collectively (collectively “Service Providers”). You agree that should you use or rely on such User Content, data, advertisement, products, goods or services, available or unavailable from, or through any Service Provider, ZenBusiness is not responsible or liable, indirectly or directly, for any damage or loss caused or alleged to be caused by or in connection with such use or reliance. Your dealings with, or representation by any Service Provider, and any other terms, conditions, representations or warranties associated with such dealings, are between you and such Service Provider exclusively and do not involve ZenBusiness. You should make whatever investigation or other resources that you deem necessary or appropriate before hiring or engaging Service Providers.
You agree that ZenBusiness is not responsible for the accessibility or unavailability of any Service Provider or for your interactions and dealings with them, waive the right to bring or assert any claim against ZenBusiness relating to any interactions or dealings with any Service Provider, and release ZenBusiness from any and all liability for or relating to any interactions or dealings with Service Providers.
11. DISCLOSURE OF INFORMATION
As ZenBusiness continues to develop its business, it might sell or buy other companies or assets or be acquired or have substantially all of its assets acquired by a third party. In such transactions, customer information generally is one of the transferred business assets. You hereby consent to the transfer of your information as one of the transferred assets and to be used for any purpose allowed under this Agreement (subject to privacy and confidentiality provisions).
12. TERM AND TERMINATION
Subject to this Section, these Terms will remain in full force and effect while you use the Services. We may suspend or terminate your rights to use the Site or App (including your Account) at any time for any reason at our sole discretion, including for any use of the Services in violation of these Terms. We will attempt to notify you of termination where we have advance notice so that you can download your User Content. Upon termination of your rights under these Terms, your Account and right to access and use the Services will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. ZenBusiness will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content.
13. MODIFICATION OF TERMS AND CONDITIONS
These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current email address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective (i) immediately upon the next time you login to the Site or App, (ii) upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you (if applicable) or (iii) thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Services. Continued use of our Services following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
The Service may be subject to limitations, delays and other problems inherent in the use of the Internet and electronic communications. The Service also may be subject to governmental shutdowns, delays and other problems associated with State governmental agencies. ZenBusiness is not responsible for any delays, failures or other damage resulting from such problems.
The Site or App may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from ZenBusiness, or any products utilizing such data, in violation of the United States export laws or regulations.
16. WARRANTY DISCLAIMER
You understand and agree that THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND THAT ZENBUSINESS ASSUMES NO RESPONSIBILITY OR LIABILITY FOR THE TIMELINESS, DELETION OF CONTENT OR FAILURE BY THE SERVICE. ZENBUSINESS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ANY WARRANTY THAT (A) THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (D) ANY CONTENT OR INFORMATION YOU PROVIDE OR ZENBUSINESS COLLECTS WILL NOT BE DISCLOSED OR (E) ANY ERRORS IN ANY SERVICE WILL BE CORRECTED. YOU AGREE THAT USE OF THE SERVICE AND THE WEBSITE IS AT YOUR OWN RISK. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE. In some jurisdictions, disclaimers of implied warranties are not permitted. In such jurisdictions, some of the foregoing disclaimers may not apply to you as they relate to implied warranties.
17. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ZENBUSINESS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COMPENSATORY, CONSEQUENTIAL OR EXEMPLARY DAMAGES (COLLECTIVELY, “DAMAGES”), RESULTING FROM: (A) THE USE OR INABILITY TO USE THE SERVICE; (B) THE COST OF ANY GOODS AND/OR SERVICES PURCHASED OR OBTAINED AS A RESULT OF THE USE OF THE SERVICE; (C) DISCLOSURE OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR INFORMATION OR CONTENT; (D) CONTENT YOU SUBMIT, RECEIVE, ACCESS, TRANSMIT OR OTHERWISE CONVEY THROUGH THE SERVICE; (E) STATEMENTS OR CONDUCT OF ANY SERVICE PROVIDERS OR OTHER THIRD PARTY THROUGH THE SERVICE; (F) ANY OTHER MATTER RELATING TO THE SERVICE; (G) ANY BREACH OF THIS AGREEMENT BY ZENBUSINESS OR THE FAILURE OF ZENBUSINESS TO PROVIDE THE SERVICE UNDER THIS AGREEMENT OR (H) ANY OTHER DEALINGS OR INTERACTIONS YOU HAVE WITH ANY SERVICE PROVIDERS (OR ANY OF THEIR REPRESENTATIVES OR AGENTS). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE LESSER AMOUNT OF $500 OR THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. In some jurisdictions, limitations of liability are not permitted. In such jurisdictions, some of the foregoing limitations may not apply to you.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT ZENBUSINESS CONTRACTS WITH A THIRD PARTY TO PROCESS YOUR PAYMENT OF FEES TO ZENBUSINESS THROUGH THE USE OF A CREDIT CARD (A “CREDIT CARD PROCESSOR”). YOU UNDERSTAND AND AGREE THAT NEITHER A CREDIT CARD PROCESSOR NOR ANY OTHER PARTY INVOLVED IN THE CREDIT CARD PROCESSING PROCESS FOR ZenBusiness INCLUDING, BUT NOT LIMITED TO, THE COMPANY ISSUING THE CREDIT CARD TO YOU AND THE MERCHANT BANK (COLLECTIVELY, THE “RELEASED PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES (AS DEFINED HEREIN AND SUBJECT TO THE LIMITATIONS SET FORTH IN THIS SECTION SUFFERED BY YOU AS A RESULT OF THE FAILURE OF ZENBUSINESS TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY ZENBUSINESS. YOU HEREBY RELEASE EACH OF THE RELEASED PARTIES FROM ANY AND ALL DAMAGES YOU MAY SUFFER AS A RESULT OF THE FAILURE OF ZENBUSINESS TO PROVIDE SERVICES TO YOU UNDER THIS AGREEMENT OR ANY BREACH OF THIS AGREEMENT BY ZENBUSINESS. YOU AGREE TO INDEMNIFY AND HOLD HARMLESS EACH OF THE RELEASED PARTIES FOR ANY AND ALL DAMAGES IT MAY SUFFER AS A RESULT OF YOUR BREACH OF THIS SECTION. YOU HEREBY UNDERSTAND AND AGREE THAT ZENBUSINESS SHALL BE SOLELY LIABLE FOR THE PAYMENT OF ANY DAMAGES TO YOU UNDER THIS AGREEMENT.
You agree to indemnify, defend and hold harmless ZenBusiness, its officers, managers, owners, employees, agents, designees, users, successors, assigns, service providers and suppliers from and against all losses, liabilities, expenses, damages, claims, demands and costs, including reasonable attorneys’ fees and court costs due to or arising from: (a) any violation of this Agreement by you; (b) the inaccurate or untruthful Content or other information provided by you to ZenBusiness or that you submit, transmit or otherwise make available through the Service; or (c) any intentional or willful violation of any rights of another or harm you may have caused to another. ZenBusiness will have sole control of the defense of any such damage or claim.
19. DISPUTE RESOLUTION
Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with ZenBusiness and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by ZenBusiness that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and ZenBusiness, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to ZenBusiness should be sent to: 5511 Parkcrest Dr., Suite 207, Austin, TX 78731, Attention: Dispute Resolution. After the Notice is received, you and ZenBusiness may attempt to resolve the claim or dispute informally. If you and ZenBusiness do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that ZenBusiness made to you prior to the initiation of arbitration, ZenBusiness will pay you the greater of the award or $1,000.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
Time Limits. If you or ZenBusiness pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and ZenBusiness, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and ZenBusiness.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and ZenBusiness in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with ZenBusiness.
Small Claims Court. Notwithstanding the foregoing, either you or ZenBusiness may bring an individual action in small claims court.
Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Travis County, Texas, for such purpose.
You agree that ZenBusiness may communicate any notices to you under this Agreement, through electronic mail, regular mail or posting the notices on the Website. All notices to ZenBusiness will be provided by either sending: (i) an email to email@example.com or (ii) a letter, first class certified mail, to ZenBusiness INC., 5511 Parkcrest Dr., Suite 207, Austin, TX 78731. Such notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.
The communications between you and ZenBusiness use electronic means, whether you use the Site or App or send us emails, or whether ZenBusiness posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from ZenBusiness in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that ZenBusiness provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
21. ENTIRE AGREEMENT
This Agreement governs your use of the Service and constitutes the entire agreement between you and ZenBusiness. It supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and ZenBusiness regarding the subject matter contained in this Agreement. Additional terms and conditions may exist between you and third parties, including but not limited to, Service Providers and others. You represent and warrant that those third-party agreements do not interfere with your obligations and duties to ZenBusiness under this Agreement.
22. GOVERNING LAW; VENUE
This Agreement and the relationship between you and ZenBusiness will be governed by the laws of the State of Texas, notwithstanding the choice of law provisions of the venue where any action is brought, where the violation occurred, where you may be located or any other jurisdiction. Subject to the Arbitration provision above, you agree and consent to the exclusive jurisdiction of the state or federal courts located in Travis County, Texas and waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court, except that ZenBusiness may elect, in its sole discretion, to litigate the action in the county or state where any breach by you occurred or where you can be found. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out or related to your use of the Service or this Agreement shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
23. PROVISIONS REMAINING IN EFFECT
In the event your use of the Services is terminated or lapses or you are no longer a user of ZenBusiness, certain provisions of this Agreement will continue to remain in effect, including, but not limited to, Section 4, 7-12, and 15-22.
This Agreement may not be re-sold or assigned by you. If you assign, or try to assign, this Agreement, such assignment or attempted assignment will be void and unenforceable. It will not be considered a waiver of ZenBusiness’ rights if ZenBusiness fails to enforce any of the terms or conditions of this Agreement against you. In the event a court finds a provision in this Agreement to not be valid, you and ZenBusiness agree that such court should incorporate a similar provision that would be considered valid, with all other provisions remaining valid in the Agreement. No joint venture, partnership, employment or agency relationship exists between you and ZenBusiness as a result of this Agreement or use of the Service. You acknowledge and agree that each of the Released Parties shall be an intended third-party beneficiary of this Agreement.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.