Zen Planner Integrated Website Agreement

This Zen Planner Integrated Website Agreement (“Agreement”) is effective as of the date of purchase of the services to be provided by Zen Planner, LLC (“Zen Planner” or “Company”) to the customer that is the purchaser of the services (“Customer”) (collectively the “Parties”).

This Agreement is entered into in connection with Customer’s use of the Zen Planner Suite of gym membership management solutions, and Customer must agree to Zen Planner’s Terms of Use and Privacy Policy prior to or contemporaneously with entering into this Agreement.

BY ACCEPTING THIS AGREEMENT, YOU REPRESENT THAT YOU ARE ACTING WITH AUTHORITY AS AN OWNER OR AUTHORIZED REPRESENTATIVE WITH AUTHORITY TO LEGALLY BIND THE ENTITY ON WHOSE BEHALF THIS AGREEMENT IS ENTERED INTO (WITH THE ENTITY BEING ZENPLANNER’S “CUSTOMER” AND ALSO REFERRED TO HEREIN AS “YOU” AND “YOUR”) FOR THE ENTITY TO BECOME A CUSTOMER OF THE SERVICE AND OBTAIN THE SERVICE FOR USE BY OR FOR THE BENEFIT OF THE ENTITY. THE CUSTOMER WILL BE BOUND TO THIS AGREEMENT. YOU ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF THE ENTITY BY (1) CLICKING ACCEPT OR OTHERWISE SIGNING (ELECTRONICALLY OR OTHERWISE) OR (2) ACTUALLY ACCESSING OR USING THE SERVICES.

PLEASE READ VERY CAREFULLY THE FOLLOWING TERMS AND CONDITIONS FOR USE OF THE SERVICE.

Acceptance of Terms; Modifications.This Agreement sets forth legally binding terms for your use of the Service (defined in Section 2 below). By using the Service, you agree to be bound by this Agreement. If you do not accept the conditions of this Agreement, you should leave the Service and discontinue use of the Service immediately. We may, from time to time, update, amend and supplement this Agreement. Such modification shall be effective upon its posting on our website (www.zenplanner.com) (the “Website”). It is therefore important that you review this Agreement regularly. If Company makes any change to this Agreement that you believe materially adversely affects You, you may promptly notify Company in writing detailing your concern. We agree to work in good faith to resolve the issue. If after sixty (60) days we are unable to reach agreement regarding the modification, then at Company’s option, you will either be permitted to continue use of the Services under the previous terms, or we will permit you to terminate this Agreement without penalty; provided that you shall pay all amounts due for use of the Services through the termination date. This is your only remedy and Company’s only obligation for modification to this Agreement. In addition, upon Customer’s request, Company may (in Company’s discretion) add or delete some portion of the Services, without requiring a separately signed agreement, provided that such changes do not increase or decrease the total fees under this Agreement by more than ten percent (10%).

Company reserves the right to modify this Agreement to correct errors and omissions, or substitute Services with reasonably equivalent Services (provided that the change will have no effect on the total fees under the Agreement).

Services and Template; User Content.

1. Template and Customer. Zen Planner agrees to provide Customer with a website template using a preset design and style (the “Template” and the “Service”). Zen Planner grants Customer a limited, non-exclusive, non-transferable license to use the Template during the term of this Agreement for the sole purpose of marketing and providing information via website regarding Customer’s business. Customer shall not change or modify their Template in any manner except changes for which the Template is designed. Customer may access data on the Zen Planner servers and in Zen Planner’s proprietary databases (the “Zen Planner Databases” or the “Database”) contained in their account only. With the exception of read-only access to log files, neither Customer, nor any users, shall have the authority to access, read, or write data to any other location or account on the Zen Planner servers. Customer may not use the Template for any other purpose.

2. Ownership. U.S. copyright laws and international copyright treaties protect the Templates and Zen Planner Databases. The Database is Confidential Information as hereinafter set forth are proprietary to Zen Planner, and title shall remain in Zen Planner. All applicable common law and statutory rights to the aforesaid including, but not limited to, rights in confidential and trade secret material, source code, object code, menus, structure and sequence, screen shots, trademarks, service marks, patents, and copyrights, shall be and will remain the property of Zen Planner and its licensors. Customer shall have no right, title, or interest in such proprietary rights except as set forth herein.

3. Passwords. Customer will be provided with a password to access the Template database which may be used by Customer or any person authorized by Customer with a need to know. Zen Planner shall not be responsible for any damage or loss of Customer resulting from un-authorized access to or use of the Template or Database.

4. Unsolicited Email. Customer shall not send unsolicited bulk email via Zen Planner’s servers in any manner that is in violation of applicable laws, and the website of Customer shall not reference or be linked to any such unsolicited email.

5. Template Modification. Any unauthorized modification of the Template shall be a material breach of this Agreement.

6. Restrictions. Except as specified in this Agreement, Customer is prohibited from:

- Distributing, transferring possession, integrating into other programs or software, copying, lending, renting, leasing, transmitting or otherwise making copies of or use of the Template or the Database to any third party;
- Modifying, adapting, or creating derivative works of the Template or the Database.
- Disabling any password or other protective device incorporated into the Template.
- Attempting in any way to obliterate or destroy the copyright notices, trademarks, service marks of Zen Planner in or on the Template, or any watermarks.
- Using the Template or Database in any way past the expiration of the Term.

7. No Refunds or Exchanges. Customer shall not be refunded or granted an exchange of Template, once the Template is configured.

8. Prevent Reverse Engineering. Customer shall prevent any reverse engineering, decompilation and disassembly of the Template and Database by Customer, including by advising authorized users and employees of Customer of the all restrictions in this Agreement, by immediately reporting a violation of the same to Zen Planner, and by halting any reverse engineering, decompilation and disassembly of the Template or Database of which Customer has actual knowledge and control.

9. Hosting. Zen Planner shall provide Customer with website hosting services for use of the Template consistent with the quality standard in the industry.

10. User Content.You acknowledge and agree that Zen Planner may access, use, preserve and disclose your account(s) information, including, but not limited to, any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other information or materials (collectively “Content”) you have posted or made available through the Service (together with any other information or data you provide to Zen Planner, collectively referred to as the “User Content”) if required to do so by law or if in Zen Planner’s reasonable determination, Zen Planner believes that such access, use, preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any User Content violates the rights of third parties; (d) respond to your requests for customer service; (e) protect the rights, property or personal safety of Zen Planner, its members and the public; or (f) otherwise provide you with access to and use of the Service.

By submitting User Content of any kind, you agree that you have the right to submit such User Content and that such User Content does not infringe or violate any privacy or other rights of any party. You further agree that you will not upload any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or the Service and that you will be solely responsible for all User Content that you submit to or post within the Service, including the consequences of posting or publishing such User Content. It is strictly prohibited to upload User Content of any kind that contains expressions of hate, abuse, offensive images or conduct, obscenity, pornography, or any material that could give rise to any civil or criminal liability under applicable law or regulations or that otherwise may be in conflict with this Agreement.

Without limiting the foregoing, you acknowledge and agree that all User Content is subject to our Privacy Policy described below. You further agree not to use the Services to collect, manage, or process Sensitive Information, except with permission and to the limited extent required for the provision of services to your customers. “Sensitive Information” includes: credit or debit card numbers, personal financial account information, Social Security numbers, passport numbers, driver’s license numbers or similar personal identifiers, racial or ethnic origin, physical or mental health condition or information, or other employment, financial or health information. You further agree that prior to collecting, managing or processing any information regarding children under the age of 16 (or such other age required by applicable law), you must obtain the consent of the holder of parental responsibility over the child. You represent that you will comply with Children’s Online Privacy Protection Act to the extent applicable, and agree that it is solely your responsibility to ensure that your website and any data collect is compliant. You represent and warrant that for Sensitive Information that you disclose to Zen Planner, or that is included in the User Content, you will comply with all laws, regulations, rules, Federal Trade Commission guidelines, and other publicly known industry best practices regarding the collection, disclosure, and use of any Sensitive Information, which may require you to provide customers and consumers with privacy notices and choices (for example, opt-outs regarding certain data sharing); and, that you will obtain all required consents from customers and consumers, and that you will also disclose to us any required consents related to Zen Planner’s use of that Sensitive Information under this Agreement.

Due to the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable Content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

11. Term. (a) The term of this Agreement begins on the date of acceptance (which may be via electronic signature) and shall continue in effect either on a month to month basis, or for an initial twelve (12) month term, as set forth or designated in the invoice or order form submitted to or by Customer in connection with this Agreement. This Agreement shall automatically renew for additional successive terms of equal length to the immediately preceding term, unless either Party provides notice to the other of non-renewal at least 30 days prior to the end of the then existing term. This Agreement shall automatically terminate with respect to any website that is the subject of a buyout, with such termination effective upon full payment by you and delivery of the website by Zen Planner. The following provisions shall survive any termination or expiration of this Agreement: 2(b), 2(f -h), 2(j), 3, 5(i), 6 (b – e), 7, 9 – 17, and 19 – 26. Upon expiration or termination, your data (including User Content) will no longer be accessible through the Service.

(b) If under a monthly renewing subscription agreement, you may terminate this Agreement at any time by providing 30 days advanced notice via the Cancellation Request Form. The Cancellation Request Form can be obtained by contacting our Support Team at help@zenplanner.com. For example, if you would like to cancel on June 30, then you will need to complete the Cancellation Request Form by May 30. You agree to pay all fees due through the effective date of termination.

(c) If under an annual renewing subscription agreement, you are bound to twelve (12) monthly payments and cannot terminate prior to the completion date of the contract. In the event of any early termination, you agree to pay a cancellation fee (the “Cancellation Fee”) equal to the full price monthly fees times the number of months remaining in the then-current term. The Cancellation Fee will be due and payable in one lump sum charged to the billing method stored within the Service. All cancellation requests should be submitted using the appropriate Cancellation Request Form. The Cancellation Request Form can be obtained by contacting our Support Team at help@zenplanner.com.

Service Terms and Obligations

1. Availability of Services. Subject to the terms and conditions of this Agreement, Zen Planner shall use reasonable commercial efforts to provide the Services on a system providing storage, connectivity, and data access (the “System”). The Services and the System may, from time to time be inaccessible or inoperable for various reasons, including (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs which Zen Planner may undertake; or (iii) causes beyond the control of Zen Planner or which are not reasonably foreseeable by Zen Planner, including interruption or failure of telecommunication or digital transmission links, Acts of God, hostile network attacks or network congestion or other failures or events outside of Zen Planner’s control (collectively “Downtime”). Zen Planner shall provide notice of any scheduled Downtime and will use reasonable commercial efforts to perform necessary periodic maintenance at reasonable times giving consideration to the needs of all Parties. In the event of any Downtime, Customer shall not be entitled to a reduction of any payments due and payable to Zen Planner for such period.

2. Customer Obligations. Customer agrees to comply with all laws and regulations applicable to Customer’s use of the Services. Customer agrees to provide Zen Planner with all information, materials, and access to Customer’s systems as may be reasonably necessary for Zen Planner to perform the Services under this Agreement. Zen Planner shall not be responsible for any failure in the Services to the extent attributable to Customer’s failure to provide requested information, materials or access to Customer’s systems. Customer agrees to comply with all provisions of the Zen Planner Terms of Use and Privacy Policy, agreed to contemporaneously herewith, and which are hereby expressly incorporated by reference.

3. Privacy Policy; Data Protection. Zen Planner respects your privacy and permits you to control certain aspects of the treatment of your personal information. Our complete privacy policy is posted at http://www.zenplanner.com/privacy-policy and is incorporated herein by reference. Additionally, because you are responsible for any data that is collected on a web site or other platform that is operated by you and how such data is used, you agree that you will maintain a privacy policy that complies with applicable law and accurately reflects the data collection and use practices on your site. If you are subject to the European Data Directive, you also represent and warrant that your privacy policy will incorporate the material portions of our privacy policy, if required, and that you will comply with such law in all respects. To the extent that Zen Planner processes any personal data as part of User Content that is subject to the General Data Protection Regulation (the “GDPR”), on your behalf, in the provision of the Services hereunder, you acknowledge in all cases that Zen Planner acts as the data processor of such data and you are the data controller of such data under applicable data protection regulations in the European Union and European Economic Area. You will obtain and maintain any required consents necessary to permit the processing of data under this Agreement. You must also include within your privacy policy that cookies are used to collect information. If you need further information regarding this, please contact us at help@zenplanner.com. If you are subject to the GDPR, you understand that if you give an integration provider access to your Zen Planner account, you serve as the data controller of such information and the integration provider serves as the data processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our sub-processors.

4. Service Options and Fees. The fees for Services are posted on our Website and are subject to change without notice by posting on our Website. The fees on the Website shall govern and control in the event of a conflict with this Agreement. You agree to pay Zen Planner in advance the applicable fees for the Service provided by Zen Planner under this Agreement.

5. Self-Managed Services. For Customers contracted for Self-Managed Services on a month to month or annual subscription basis, Customer shall pay Zen Planner a one-time $499.00 setup fee due the first month of the term, plus monthly fees of $79.00 per month for the Services. Any updates or additional services requested from Zen Planner will be billed at an hourly rate of $75.00 per hour (with a $75.00 minimum). Customers contracted for self-managed services on an annual subscription basis will receive a 10% discount on the $79.00 monthly fees, provided that Customer is obligated to a noncancelable twelve (12) month term.

6. Zen Planner Starter Package. For Customers contracted for Zen Planner Starter Package on a month to month basis, Customer shall pay Zen Planner a one-time $499.00 setup fee due the first month of the term, plus monthly fees of $149.00 per month for the Services. For Customers contracted for Zen Planner Starter Package on an annual subscription basis, Zen Planner agrees to waive the $499.00 setup fee, provided that Customer is obligated to a non-cancelable twelve (12) month term.

b.1. Zen Planner Starter Package Buyout. The total cost for the Zen Planner Starter Package Website is $2,400. If the client is paying monthly for their Zen Planner Starter Package, no more than $149 per month is deducted from the amount owed for each month paid. Client will pay a pro-rated cost based on the amount they have already paid in.

7. Zen Planner Business Package. For Customers contracted for Zen Planner Business Package on a month to month basis, Customer shall pay Zen Planner a one-time $999.00 setup fee due the first month of the term, plus monthly fees of $248.00 per month for the Services. For Customers contracted for Zen Planner Business Package on an annual subscription basis, Zen Planner agrees to waive the $999.00 setup fee, provided that Customer is obligated to a non-cancelable twelve (12) month term.

c.1. Zen Planner Business Package Buyout. The total cost for the Zen Planner Business Package Website is $5,400. If the client is paying monthly for their Zen Planner Starter Package, no more than $149 per month is deducted from the amount owed for each month paid. Client will pay a pro-rated cost based on the amount they have already paid in.

8. Zen Planner Professional Package. For Customers contracted for Zen Planner Professional Package on a month to month basis, Customer shall pay Zen Planner a one-time $1899.00 setup fee due the first month of the term, plus monthly fees of $498.00 per month for the Services. For Customers contracted for Zen Planner Professional Package on an annual subscription basis, Zen Planner agrees to waive the $1899.00 setup fee, provided that Customer is obligated to a non-cancelable twelve (12) month term.

d.1. Zen Planner Professional Package Buyout. The total cost for the Zen Planner Professional Package Website is $5,400. If the client is paying monthly for their Zen Planner Starter Package, no more than $149 per month is deducted from the amount owed for each month paid. Client will pay a pro-rated cost based on the amount they have already paid in.

9. Package Transitions. In the case where Customers wish to upgrade from Starter to Professional or Business OR Customers wish to downgrade from Professional or Business to Starter, the setup fee associated with that upgrade/downgrade will be waived for one transition. Any further transitions will be subject to that package’s setup fee.

10. Search Engine Marketing. For Customers contracted for Search Engine Marketing (“SEM”) services, Customer shall pay Zen Planner monthly fees of $99.00 per month for the SEM services, which payments shall begin the date that the website is live. Customers contracted for SEM services agree to continue such SEM services for a minimum of ninety (90) days from the date the website is live. Customers receiving SEM services will have access to a Zen Planner SEM/PPC specialist that will setup local directory listings within a third-party SEM and manage those listings. The specialist will also setup and manage paid advertising through Google Adwords Express for client campaigns, provided that any Google Adwords fees shall be paid directly by Customer through the Customer’s merchant account. Customer agrees to spend a minimum of $25.00 per month on paid advertising (such as pay per click) through Google, provided that for maximum effectiveness, Zen Planner may recommend additional paid advertising through Google based on Customer location, keyword competition, and other relevant factors. Zen Planner is not responsible for the Customer overwriting SEM work to the Customer’s site (e.g., Customer/webmaster uploading over work already provided/optimized). The Customer will be charged an additional fee for re-constructing content, based on the hourly rate of $75.00 per hour. Customer acknowledges that Zen Planner has no control over the policies of search engines with respect to the type of sites and/or content that they accept now or in the future, and that the Customer’s website may be excluded from any directory or search engine at any time at the sole discretion of the search engine or directory.

11. Delivery of Website after Buy Out. Upon buy out of website, Zen Planner will deliver applicable website files in a single zipped format. This will include the database, WordPress theme, WordPress core files, and plugins that are not exclusively owned by Zen Planner, and which are the subject of third party licenses, which may have ongoing license terms applicable to Customer’s use of the delivered materials. Client is responsible for installation and transfer of website to new host. Theme and Plugin licenses that were purchased by Zen Planner are not included and will not be provided to the client. Following buy out of a website and delivery of the applicable website files, Zen Planner shall have no further obligations (including, without limitation, hosting, service or support obligations) under this Agreement with respect to such website.

12. Expanded License upon Buy Out. Upon buy out of a website, and subject to Zen Planner’s receipt of full payment for such buy out, Zen Planner grants you a perpetual, fully-paid up license to use, modify, create derivative works of, distribute, and publicly display the applicable website solely for your internal business purposes of marketing and providing information via the website regarding Customer’s business, subject to the terms and restrictions of any 3^rd party licenses applicable to 3^rd party material which may be included in the website delivered.

13. Due Date; Auto Debit Authorization. You agree to pay Zen Planner in advance the applicable fees for the Service provided by Zen Planner under this Agreement. Unless other arrangements are pre-approved in writing by Zen Planner, we will bill your account for all fees for the Service due each month, and you hereby authorize Zen Planner to charge your account for all such fees. Invoices may be sent via email. If for any reason we fail to furnish you with an invoice, you are still obligated to pay in a timely manner. You will provide accurate and complete billing information including legal name, address, telephone number, and billing account (either ACH or payment card) information. If such information is false or fraudulent, we reserve the right to terminate the Service and this Agreement, in addition to seeking any other legal remedies. Zen Planner is not responsible for any charges or expenses (e.g., for overdrawn accounts, exceeding credit card limits, rejected payments, etc.) resulting from charges billed by Zen Planner. You agree to reimburse Zen Planner for any penalties, fees, overages or charges incurred by Zen Planner as a result of a rejected charge or payment. Payments made to Zen Planner under this Agreement are non-refundable. Any charge disputed by you must be disputed in writing within fifteen days after the billing date, or such charge shall be deemed valid. All fees will be paid in U.S. dollars and are due as set forth on our Website or within our Service. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and you will be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Zen Planner’s income (and customer shall indemnify, defend and hold Zen Planner harmless from any liability arising from Customer’s tax responsibilities). Interest charges of one and a half percent (1.50%) per month (or the highest rate permissible under applicable law, if less) will accrue daily on all amounts not received by Zen Planner when due. In addition, Zen Planner shall be entitled to block your access to the Services (with or without terminating this Agreement or affecting your obligation to make payments under this Agreement) if you are more than fifteen (15) days delinquent on any payments under this Agreement or any other agreement with Zen Planner.

Warranty; Limitation of Liability; Indemnity

Customer Warranty. Customer represents and warrants to Zen Planner that Customer use of the system shall not contain any content, materials, data, or reference that actually or potentially violates any applicable law or regulation, including but not limited to copyright and trademark laws and regulations, or infringes on any personal right, including but not limited to the right of privacy, or violates and spam or virus laws; and further, any elements of text, graphics, photos, designs, trademarks, or other artwork provided to Zen Planner by Customer for inclusion on the website or in connection with any services provided hereunder are owned by the Customer, or that the Customer has received permission and valid license(s) from the rightful owner(s) to use each of the elements, and to allow use by Zen Planner as contemplated by this Agreement.

Disclaimer of Warranties. YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. ZEN PLANNER AND ITS SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (COLLECTIVELY, THE “ZEN PLANNER PARTIES”) EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, WITH RESPECT TO THE SERVICE AND ANY THIRD PARTY WEBSITES OR SOFTWARE WITH WHICH THEY ARE LINKED.

The Zen Planner Parties are not responsible for any health problems that may result from training programs, exercises, drills (alone or with a partner), products, or events you learn about on the Service, or any action or inaction on your part as a result of information you have obtained from the Service. If you engage in any exercise or martial arts program you receive through the Service, you agree that you do so voluntarily at your own risk, and agree to release and discharge the Zen Planner Parties from any and all claims or causes of action, known or unknown, arising out of your use of the exercise program or the Service.

THE ZEN PLANNER PARTIES MAKE NO, AND EXPRESSLY DISCLAIM ANY, REPRESENTATIONS OR WARRANTIES (I) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; (II) THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR‐FREE, OR FREE OF ANY HARMFUL COMPONENTS (INCLUDING VIRUSES); (III) REGARDING ANY RESULTS YOU MAY OBTAIN FROM THE USE OF THE SERVICE; AND (IV) THAT THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. THE ZEN PLANNER PARTIES DO NOT PROVIDE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS, OR OTHER DATA. ANY MATERIAL DOWNLOADED, UPLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE OR THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR UPLOAD OF ANY SUCH MATERIAL. ZEN PLANNER IS NOT RESPONSIBLE OR LIABLE FOR ANY LOSSES OF YOU OR OTHERS RELATING TO THE TRANSMISSION OF USER CONTENT OR SENSTIVE INFORMATON BY YOU.

1. LIMITATION ON LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, IN NO EVENT WILL THE ZEN PLANNER PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM OR IN CONNECTION WITH THE USE OF THE SERVICE, OR ANY WEBSITES OR SOFTWARE WITH WHICH THEY ARE LINKED, EVEN IF ANY OF THE ZEN PLANNER PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE AGGREGATE LIABILITY OF THE ZEN PLANNER PARTIES TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO ZEN PLANNER PARTIES FOR THE SERVICES DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO THE CLAIM.

2. Exclusions and Limitations.Some jurisdictions do not allow or limit the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, in certain jurisdictions, some of the above limitations of liability and exclusions may not apply to you; you agree that the limitations of liability and exclusions herein shall apply to the fullest extent allowed by applicable law; and in the event the limitations and exclusion provisions are found to be inapplicable or unenforceable, all other provisions of this Agreement remain in full force and effect.

3. Indemnity.You agree to indemnify, defend, and hold harmless the Zen Planner Parties from any and all third party claims, losses, liability, damages, and/or costs (including reasonable attorney fees and costs) arising from (a) your breach of the terms and conditions of this Agreement, or (b) your infringement, or infringement by any other user of your account(s), of any intellectual property or other right of any person or entity, or (c) any act or omission by you in connection with collecting, using or disclosing User Content or Sensitive Information, or your failure to obtain necessary consents and permissions from consumers in compliance with your obligations under this Agreement. Zen Planner will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost.

4. Default. In the event of default by Customer, Zen Planner shall have the option, without further notice to Customer or further demand for performance, to:

5. Website Posting. Post on Customer’s website that the account has been deactivated due to a breach of agreement including, but not limited to, non-payment.

6. Removal. Remove Customer’s website from the server.

7. Individual Obligation. Make demand and/or institute suit against Customer to collect each monthly or other obligation or other sum as it becomes due or enforce any other obligations under this Agreement; and/or

8. Acceleration. At the option of Zen Planner, with or without terminating this Agreement, accelerate all future payments due under this Agreement and Customer shall be liable for the balance of the payments until the expiration of the then existing term of this Agreement which shall then become immediately due; and/or

9. Injunction. In addition to any remedies at law or in equity, Zen Planner shall have a right to injunctive relief to enjoin any violation of the terms of this agreement; and/or

10. Terminate. Terminate this Agreement and make claim or sue Customer for damages for breach of the past and/or future obligations of Customer under this Agreement. The enumeration of the foregoing remedies does not exclude any other remedy set forth herein or expressed or implied in law. All remedies are cumulative and shall be in addition to every other remedy now or hereafter existing by contract or at law or in equity.

11. Additional Terms. We may also require you to follow additional rules, guidelines or other conditions (“Additional Terms”) in order to participate in certain promotions or activities available through our Service, to obtain certain premium Content through Zen Planner and our Services, or for other reasons. These Additional Terms will be posted on the relevant portions of our Website and Service or on the portions of our Website and Service that describe the specific promotions, Content, or activities. These Additional Terms are part of this Agreement, and you agree to comply with them when you participate in those promotions, purchase items from our online stores, or otherwise engage in activities governed by such Additional Terms. In the event of a conflict between the Additional Terms and the terms and conditions of this Agreement, the terms and conditions of this Agreement shall govern and control.

12. Modification and Discontinuation. We reserve the right at any time to modify, edit, delete, suspend or discontinue, temporarily or permanently, the Service (or any portion thereof) with or without notice. You agree that we will not be liable to you or to any third party for any such modification, editing, deletion, suspension or discontinuance of the Service. You agree that you are solely responsible for backing up your User Content and other data that may be stored or input in connection with the Service.

13. Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between you and Zen Planner as a result of this Agreement or use of the Service.

14. Confidential Information. From time to time one party (the “Receiving Party”) may receive from the other party (the “Disclosing Party”) proprietary and confidential information (“Confidential Information”), including, without limitation, the terms and conditions of this Agreement, financial information, pricing, business plans, usernames, passwords, Zen Planner Technology, and any information that is marked as “confidential” or should be reasonably understood to be confidential or proprietary to the Disclosing Party. The Receiving Party agrees that the Receiving Party will not disclose the Confidential Information to any third party, nor use the Confidential Information for any purpose not permitted under this Agreement. The Receiving Party agrees to use at least the same degree of care that it uses to protect the confidentiality of its own information, but in any event, no less than a reasonable degree of care. The nondisclosure obligations set forth in this paragraph shall not apply to information that the Receiving Party can document (i) is generally available to the public (other than through breach of this Agreement), or (ii) was already lawfully in the Receiving Party’s possession at the time of receipt of the information from the Disclosing Party, or (iii) was obtained by the Receiving Party from a third party without a breach by the third party of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information. “Zen Planner Technology,” for purposes of this Agreement, means the proprietary technology of Zen Planner, including hardware designs, algorithms, software, software tools, user interface designs, architecture, class libraries, objects, documentation, know-how, trade secrets, and any related intellectual property rights, and also including any derivatives, improvements, enhancements or extensions of any of the foregoing conceived, reduced to practice, or developed by or on behalf of Zen Planner (including, without limitation, any Feedback), whether during the term of this Agreement or otherwise.

Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”), provided that the Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with (a) prompt written notice if such requirement so that Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

As between Zen Planner and Customer: (i) Zen Planner shall own all Zen Planner Confidential Information and, except as expressly provided herein, Customer shall not have any right, title, or interest therein; and (ii) Customer shall own all Customer Confidential Information and, except as expressly provided herein, Zen Planner shall not have any right, title, or interest therein.

15. Choice of Law and Forum; Dispute Resolution.This Agreement and the relationship between you and Zen Planner shall be governed by the laws of the State of Alabama, without regard to its conflict of law provisions. Any claim or dispute arising out of this Agreement, unless otherwise excluded below, shall be determined exclusively by binding arbitration to take place in Jefferson County in the State of Alabama. Such arbitration shall be conducted in accordance with the American Arbitration Association rules and before an American Arbitration Association certified Arbitrator. The arbitrator shall be mutually agreed upon by the parties. In the event that a single arbitrator cannot be agreed upon, you shall select an arbitrator, and Zen Planner shall select an arbitrator, and these two arbitrators will select a third arbitrator. In the event that the two arbitrators selected cannot agree on a third arbitrator, the third arbitrator will be selected by a judge presiding over the circuit court in Jefferson County, Alabama. All arbitrators shall be attorneys and shall swear an oath of neutrality. The parties shall each be responsible for initial payment of fifty-percent (50%) of any arbitration fees but the losing party to the arbitration shall be responsible to reimburse the prevailing party’s costs, expenses and arbitration fees, including, without limitation, reasonable attorneys’ fees.

The Federal Arbitration Act (“FAA”), not state law, controls and applies to the arbitration of any non-excluded dispute between the parties, and shall govern all aspects of the arbitration. The outcome of any arbitration, including the award of any damages, shall be confidential. The arbitrator will not have authority to award any punitive or exemplary damages, or any penalties, relating to any dispute arbitrated or litigated. The scope of the depositions, requests for production and the extent of the parties’ obligations to respond will be governed by the Federal Rules of Civil Procedure.

Notwithstanding the foregoing, the following claims and disputes (“Excluded Disputes”) are not subject to binding arbitration: (1) any non-equitable claims or disputes in which Zen Planner is seeking to collect past-due amounts under the Agreement with an amount in controversy less than $75,000 and (2) any claim for a temporary restraining order, injunction, specific performance and/or any other equitable relief. The parties specifically agree that non-equitable claims or disputes described in subpart (1) above shall be resolved exclusively in the court of appropriate jurisdiction in Jefferson County, Alabama and shall be governed by the rules of procedure and evidence for civil cases for the State of Alabama without reference to the choice of law principles of any other state. The parties specifically waive the right to bring such non-equitable claims or suits in any other jurisdiction and/or venue. The parties also agree that the damages awarded, if any, in any litigation conducted pursuant to this Agreement shall be determined in accordance with the state law of Alabama.

The Customer further acknowledges that a breach or threatened breach of the Agreement by the Customer or its representatives may cause irreparable harm to Zen Planner for which monetary damages would not be an adequate remedy. As such, Customer agrees that in the event of a breach or a threatened breach by Customer or its representatives, Zen Planner shall, in addition to any and all other rights and remedies available at law (which are not waived by the exercise of any rights hereunder), be entitled to seek a restraining order, injunction, specific performance and/or any other equitable relief available from a court of competent jurisdiction, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.

The prevailing party in any Excluded Dispute shall be entitled to be reimbursed for its costs and expenses, including, without limitation, reasonable attorneys’ fees.

16. Waiver and Severability of Terms.The failure of Zen Planner to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction or in arbitration to be invalid, the parties nevertheless agree that the court or arbitrators should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

17. Statute of Limitations.You agree that regardless of any statute or law to the contrary, any claim or cause of action against Zen Planner arising out of or related to use of the Service or this Agreement must be brought by you in accordance with the dispute resolution provisions of this Agreement within one (1) year after such claim or cause of action arose or be forever barred.

18. Website Administration.Administrative rights to the website shall be granted to the person designated by the Zen Planner customer (e.g., the business entity entering into this Agreement). Such rights can be delegated to or revoked from another administrator at the request of the business owner or at the time of set-up of the website. In the case of any conflict related to administrative rights, the business owner shall have all authority to add or remove administrative rights to any user. In the case where the business is owned in equal parts by two or more owners, authority shall be assigned to the managing director or other assigned decision maker according to the then current corporate papers. If the decision-making authority is not clear in Zen Planner’s discretion, changes in ownership will only be made with written authorization from a majority of participating business owners or other method in writing as established in the corporate papers. Zen Planner may, at Zen Planner’s sole discretion, request documentation establishing to Zen Planner’s satisfaction the website owner prior to transferring administrative rights. You agree that Zen Planner shall have no liability to you, and you hereby release Zen Planner from, any liability related to the transfer of administrative rights in accordance with this section.

19. Assignment.You shall not assign this Agreement or any rights or obligations hereunder without the prior written consent of Zen Planner. In the event of a change in control, sale of the business, merger, acquisition or other purchase or sale of Customer’s business (“Transfer”), Zen Planner may require evidence of such Transfer in the nature of a purchase agreement, legal proof of sale documentation, a written release, or other acceptable documentation from the former owner requesting assignment of this Agreement and transfer of rights prior to consenting to any such Transfer.

20. Credits. Zen Planner will not provide cash refunds. No credits will be provided for requests for cancellations or termination of annual or monthly subscription contracts.

21. Overburdening Resources.You may not overburden the Service. You may not place excessive burdens on Zen Planner’s, or the providers of Third Party Services’, CPUs, servers or other resources or interfere with the services we provide to other customers. Excessive burden includes, but is not limited to, excessive bandwidth or data transfer.

22. Laws & Harmful Content.You may not use the Services to violate any local, state or federal law or regulation. In particular, and without limitation, you may not violate laws prohibiting: copyright, patent, trademark or trade secret infringement, misuse or misappropriation; distribution of child pornography, child erotica, non-consensual sex acts; illegal gambling; defamation, harassment or libel; false advertising; slander or transmission of malicious code or to gain access to other networks. Further, you may not use the Services in connection with any content that we reasonably believe: promotes, incites or threatens violence; contains harassing content or hate speech; is defamatory or violates a person’s privacy; infringes on another person’s copyright, trade or service mark, patent or other property right; constitutes illegal arms trafficking; or, is likely to result in retaliation against Zen Planner’s system, network or employees, including behavior that results in a server being the target of a denial of service attack.

23. Zen Planner Use of User Content. Zen Planner acknowledges that the User Content belongs to you, and that Zen Planner will access, copy or use the User Content only for authorized purposes. You represent and warrant that you have all rights and authority to the User Content to grant the rights and approvals in this Agreement, and that you approve and grant to Zen Planner the non-exclusive, non-terminable, royalty-free license to access, copy, use, modify, create derivative works of, and distribute the User Content in connection with the following activities to which you consent: (i) to perform the Services under this Agreement, (ii) to diagnose, monitor and optimize the performance of the Services, (iii) to compile and aggregate statistical data provided that (a) Zen Planner agrees to maintain as confidential and not disclose to any third party any User Content identifying an individual consumer (except as otherwise permitted as necessary to provide the Services), and (b) Zen Planner will use the User Content solely to create analyses in aggregated or derivative form in a manner that does not permit identification of you, your employees, or individual consumers, and (iv) for any other access or use to which you expressly consent. Any aggregate non-identifiable data compiled or collected by Zen Planner shall be “Derivative Data” owned by Zen Planner under this Agreement, and not subject to the foregoing limitations. “Derivative Data” shall also include all modifications, compilations, derivative works and results from processing (including analyses, usage statistics and patterns, datasets, databases, reports, recommendations and visual representations) created or developed from User Content or on the basis of Customer’s use of the Services.

24. Copyright Policy.Zen Planner has in place certain legally mandated procedures pursuant to the Digital Millennium Copyright Act (“DMCA”) regarding allegations of copyright infringement occurring in the Service. Zen Planner reserves the right in its sole discretion to immediately suspend and/or terminate access to the Service by any user who is alleged to have infringed on the intellectual property rights of Zen Planner or of a third party, or otherwise violated any intellectual property laws or regulations. Zen Planner’s policy is to investigate any allegations of copyright infringement brought to its attention. If you have evidence, know, or have a good faith belief that your rights or the rights of a third party have been violated and you want Zen Planner to delete, edit, or disable the material in question, you must provide Zen Planner with all of the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) identification of the material that is claimed to be infringed or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Zen Planner to locate the material; (d) information reasonably sufficient to permit Zen Planner to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to Zen Planner’s agent for copyright issues relating to the Service at the following:

Zen Planner, LLC
9325 Dorchester Street
Highlands Ranch, CO 80129
Attn: Office of Privacy
help@zenplanner.com
Or call: 866-541-3570

If you believe that any User Content that you submitted through the Service and was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use such User Content, you may send a counter-notice containing the following information to Zen Planner’s agent for copyright issues: (a) your physical or electronic signature; (b) identification of the User Content that has been removed or to which access has been disabled and the location at which the User Content appeared before it was removed or disabled; (c) a statement that you have a good faith belief that the User Content was removed or disabled as a result of mistake or misidentification; and (d) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the appropriate federal court in Birmingham, Alabama, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by Zen Planner’s agent for copyright issues, we may send a copy of the counter-notice to the original complaining party informing that person that we may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Zen Planner’s sole discretion.

25. FTC Safeguards Rule. The Federal Trade Commission (“FTC”) Standards for Safeguarding Customer Information (16 CFR Part 314)(the “Safeguards Rule”) applies to parties considered to be financial institutions within the FTC’s jurisdiction under the Gramm-Leach-Bliley (“GLB”) Act. The Safeguards Rule, effective May 23, 2003, requires those parties to secure records and information from and about customers.

This section applies to the extent you are subject to the Safeguards Rule, you share with us your “customer Information” (as defined in the Safeguards Rule), and in circumstances in which we are a “Service-Provider” (as defined in the Safeguards Rule).

Zen Planner will implement and maintain safeguards appropriate to protect the security, confidentiality, and integrity of your Customer Information (as defined in the Safeguards Rule). It is your responsibility to: (i) disclose to us any relevant risks you identify regarding your Customer Information; and (ii) identify the employee(s) who coordinate your information security program.

You are solely responsible for your compliance obligations under the Safeguards Rule. Zen Planner’s provision of products and services to you does not constitute and shall not be deemed to be a guarantee that your business is in compliance with any statute or regulation. Zen Planner’s review or approval of any of your systems, applications, processes, forms, or procedures does not constitute and shall not constitute the assumption by Zen Planner of any responsibility or liability for compliance by you with any statute or regulation.

You agree that you and third parties acting on your behalf have no right or authority to access or audit Zen Planner’s systems, applications, processes, procedures or practices, except to the extent specifically authorized by Zen Planner.

If you believe Zen Planner’s efforts to safeguard Customer Information affects you in a materially adverse manner and you promptly notify Zen Planner in writing, stating the basis of your belief, Zen Planner will work with you in good faith to resolve the issue. If after sixty (60) days we are unable to resolve the issue, then, at Zen Planner’s option, we will either permit you to discontinue the affected Services without liability, or you will submit to binding arbitration as described below. You shall pay all amounts incurred and remain otherwise fully obligated for any Services up through the effective date of such discontinuance or arbitration decision. THIS IS YOUR SOLE AND EXCLUSIVE REMEDY AND ZEN PLANNER’S ONLY OBLIGATOIN UNDER THIS SECTION.

26. Consumer Communications. The federal government and many states and local jurisdictions have enacted regulations limiting commercial telephone, text, email and fax communications, including laws regarding opt-in and opt-out required for commercial communications. Customer represents and warrants that all email addresses used in connection with the Services have been and will be properly obtained and Customer shall follow all provisions of the CAN-SPAM Act (USA), the Telephone Consumer Protection Act (USA), or all Canadian Radio-television and Telecommunications Commission (CRTC) regulations (Canada) and any other applicable laws regarding consumer communications in any applicable jurisdiction. To the extent that Zen Planner may perform Services which involve contacting consumers on your behalf, You agree it is your responsible to obtain all necessary consents and provide Zen Planner with all consumer preference information (such as an opt-out) required to ensure that Zen Planner does not contact consumers in violation of such regulations.

27. Back-up / Retrieval of User Content.Consult with your own legal, tax, accounting or other advisor for guidance on document and data retention policies applicable to you records. Zen Planner does not provide you with guidance on document and data retention policies applicable to your records or the User Content. Zen Planner does not provide you with advice regarding the sufficiency of your document and data retention policies. You are solely responsible for maintaining any back-up of User Content or other documents or data you may provide to Zen Planner in connection with the Services.

As long as you have paid all fees owed to Zen Planner, during the term of this Agreement, if you delete User Content during the term of your subscription, upon written request, Zen Planner will use reasonable commercial efforts to restore, or we will provide you with copies of, the requested User Content then in our possession or control, subject to payment of the data restoration fee which will be set forth in the fees section of the Zen Planner website.

Upon any termination or expiration of this Agreement, upon request, Zen Planner agrees to provide Customer with an export of User Content then in Zen Planner’s possession in accordance with Zen Planner’s data release policy and subject to payment of the then-current customer exit data export fee.

28. Questions.If you have any questions regarding this Agreement, please contact us by email at help@zenplanner.com, by phone at (866) 541-3570 (7:00AM ‐ 7:00PM MST M-F).

29. Entire Agreement.This Agreement, together with any other terms or policies referenced herein (including without limitation the Privacy Policy and Additional Terms), constitutes the entire agreement between you and Zen Planner regarding the subject matter hereof and governs your use of the Service, superseding any prior agreements between you and Zen Planner with respect to the Service. In the event of a conflict between these Terms of Use and any Additional Terms, the provisions of these Terms of Use shall govern and control.

Updated January 1, 2019.