BY ACCEPTING THIS AGREEMENT, THE YOU REPRESENT THAT YOU ARE ACTING WITH AUTHORITY AS AN OWNER, EMPLOYEE, OR AGENT AUTHORIZED TO LEGALLY BIND THE COMPANY ON WHOSE BEHALF THIS AGREEMENT IS ENTERED INTO (WITH THE COMPANY BEING ZEN PLANNER’S CUSTOMER) FOR THE COMPANY TO BECOME A MEMBER AND CUSTOMER OF THE SERVICE AND OBTAIN THE SERVICE FOR USE BY OR FOR THE BENEFIT OF THE COMPANY. THE COMPANY WILL BE BOUND TO THIS AGREEMENT. YOU ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF THE COMPANY 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.
1. Acceptance of Terms. This Agreement sets forth legally binding terms for your use of the Service. 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 modify this Agreement from time to time, and such modification shall be effective upon its posting on our Website. You agree to be bound by any modification to this Agreement when you use the Service after any such modification is posted; it is therefore important that you review this Agreement regularly.
2. General Registration Requirements. If you wish to become a “Member” for access and use of the Service, you must register within the Service. You represent that you are not a minor and are of legal age to form a binding contract, and are not barred from receiving the Services under the laws of the United States or other applicable jurisdiction.
You also agree to: (a) provide true, accurate, current and complete information about yourself and your company (if applicable) as prompted by the registration form available within the Service (the “Registration Data”) and (b) maintain and promptly update your Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we reserve the right to suspend or terminate your account(s) and refuse any and all current or future use of the Service (or any portion thereof).
3. Authorized Access – Member Accounts, Passwords and Security. If you register for the Service or otherwise become a Member, you will be required to choose one or more passwords and provide your email address, and you may be asked for additional information regarding your account(s). You are responsible for maintaining the confidentiality of the password(s) and account(s) information, and are fully responsible for all activities that occur under your password(s) or account(s). You agree to (a) immediately notify us (by e‐mail to email@example.com, or call us at (866) 541-3570 (7:00 a.m. to 7:00 p.m. MST M‐F) of any unauthorized use of your password(s) or account(s) or any other breach of security, and (b) ensure that you log out from your account(s) at the end of each session. Zen Planner is not liable for any loss or damage arising from your failure to comply with this Agreement.
The Service provides you with access to your data with the expectation of self-maintenance and content updates to be provided by you. You agree not to attempt to access data or take any action to obtain services not intended for you or your use. Tampering, hacking, modifying, or otherwise corrupting or breaching security or authentication measures without proper authorization are explicitly prohibited and will result in immediate termination of this Agreement and the Services, in addition to other legal remedies.
4. Integrated Website. If you have access to or use of an Integrated Website provided by Zen Planner, your use of such Integrated Website is subject to additional fees, terms and conditions, applicable to Integrated Websites.
5. 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 your Registration Data, 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.
6. Security Components. You understand that the Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Zen Planner and/or content providers who provide content to Zen Planner. You may not attempt to override or circumvent any such security components and usage rules embedded into the Service.
7. Non‐Commercial Use. The Service may not be used in connection with any commercial purposes, except as specifically approved in writing by Zen Planner or as provided within the Service. The Service is intended for managing your business information and communicating with your members and/or students. Unauthorized framing of or linking to any part of the Service is prohibited. Commercial advertisements, affiliate links, and other forms of solicitation may be removed by Zen Planner from Member profiles and User Content without notice and may result in termination of the Services and this Agreement.
8. Zen Planner and Third Party Content. The Service contains Content of Zen Planner (“Zen Planner Content”), and Content of third party licensors to Zen Planner, which Content is protected by copyright, trademark, patent, trade secret and other laws, which Zen Planner Content includes, without limitation, Zen Planner’s proprietary processes, concepts, and online tools to manage and grow membership-based businesses. By utilizing this Service, you acknowledge and agree that Zen Planner owns and retains all rights, title and interest in the Zen Planner Content. Zen Planner hereby grants to you a limited, revocable, non- transferable, non‐sub‐licensable license during the term of this Agreement to reproduce and display a single copy of the Zen Planner Content and any third party Content located on or available through our Service (excluding any software code therein) solely for use in connection with your internal business purposes when accessing and using the Service. Except for User Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, make available, or sell any Content appearing on or through the Service.
10. Payment of Fees; Interest. The fees for the Service provided are posted on our Website and are subject to change without notice. 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. 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. 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 thirty (30) days delinquent on any payments under this Agreement or any other agreement with Zen Planner.
11. International Use. 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.
13. 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
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 Denver, Colorado, 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, Member or 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.
14. Term and Termination.
(a) This Agreement shall remain in full force and effect until terminated in accordance with this Agreement. You may terminate your membership to the Service in accordance with Section 14(b) below. Zen Planner cannot provide refunds for memberships that are terminated early in the middle of the billing period. Zen Planner reserves the right to terminate your account(s) or your access to the Service immediately, with or without notice to you, and without liability to you, if you have breached any of the conditions of this Agreement, furnished Zen Planner with false or misleading information, or interfered with use of the Service by others. Sections 3, 5, 7, and 10 – 31, along with your payment obligations, will survive the expiration or termination of this Agreement. Upon expiration or termination, your data (including User Content) will no longer be accessible through the Service. Prior to termination, you may export your data, excluding payment account information which is encrypted and protected by Payment Card Industry rules.
(b) If under a monthly renewing subscription agreement, you may terminate your membership to the Service 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 firstname.lastname@example.org. For example, if you would like to cancel your Service on June 30, then you will need to complete the Cancellation Request Form by May 30.
(c) If under an annual subscription contract agreement for the Service, you are bound to twelve (12) monthly payments and cannot terminate your membership to the Service prior to the completion date of the contract. In rare circumstances, in Zen Planner’s sole discretion, Zen Planner may permit early termination upon payment of a cancellation fee (the “Cancellation Fee”). The Cancellation Fee will be calculated as the total value of the discount applied to monthly fees for use of the Service since contract inception through the last day of the month of the requested termination, plus the greater of (i) $600 or (ii) the full price monthly fees (based on the active member count as of the date of the requested cancellation through the original completion date of the annual contract) times 6 months. The Cancellation Fee will be due and payable in one lump sum charged to the billing method stored within the Service. Your annual subscription contract agreement will automatically renew each year unless you contact Zen Planner at least 60 days prior to the completion date of the contract requesting to move to the current pricing structure for monthly renewing subscription agreements or to cancel after your contract end date.
15. 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.
16. 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.
17. 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.
18. 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 your breach of the terms and conditions of this Agreement, or your infringement, or infringement by any other user of your account(s), of any intellectual property or other right of any person or entity. 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.
19. 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 our Website and 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.
20. 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 are free to download your User Content at any time to provide backup, and 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.
21. 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.
23. Choice of Law and Forum. This Agreement and the relationship between you and Zen Planner shall be governed by the laws of the State of Colorado, without regard to its conflict of law provisions. You and Zen Planner agree to submit to the personal and exclusive jurisdiction of the courts located within Denver, Colorado.
24. 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 to be invalid, the parties nevertheless agree that the court 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.
25. Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
26. Database Administration. Administrative rights to the database 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 database. 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 for an equal parts ownership scenario is not clear, changes in database 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 from the requestor or the current database owner prior to transferring administrative rights.
27. 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.
28. 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.
29. 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.
30. 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.
31. Questions. If you have any questions regarding this Agreement, please contact us by email at email@example.com, by phone at (866) 541-3570 (7:00AM ‐ 7:00PM MST M-F).
© COPYRIGHT 2017 Zen Planner LLC. ALL RIGHTS RESERVED.
Updated September 12, 2017.