Zenbu User Agreement For Services
Last Updated: September 2022
1. Applicability.
(a) These terms and conditions for services (these "Terms") govern the provision of the services described herein by Zenbu, LLC (“Zenbu” or "Company") to you ("Customer"). By placing an order on the Zenbu mobile Application or on the https://www.zenbu.app browser or web interface (collectively, the “Platform”) you agree to these Terms.
(b) An order confirmation displayed and emailed to you after your order is successfully placed (the "Order Confirmation") and these Terms (collectively, this "Agreement"), along with Zenbu’s Terms of Use and Privacy Policy (and any other documents incorporated therein) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Confirmation, these Terms govern.
2. The Platform.
The Platform is available to individuals interested in finding, applying, placing, or learning about labor opportunities in the entertainment industry (“User(s)”). Users may use the Platform to post an individual profile, post a Listing with relevant details of a specific job, communicate with other Users, and enter professional relationships (including facilitating payment). Users are not necessarily limited to individuals who use the Platform to obtain performance, extra, artistic, modeling, or other similar types of work through Listings placed by other Users; they may also include individuals who use the Platform to obtain labor opportunities in ‘behind-the-camera’ positions. All use of the Platform is governed by our Terms of Use and Privacy Policy.
3. Services.
(a) Customer may purchase the following types of services (the "Services") in accordance with these Terms, which the Company agrees to provide:
(i) Listings: Customer may post a description of a job for which it seeks Users (a “Listing”) as described herein and on the Platform. Listings will remain live and viewable on the Platform until either you have agreed to an intention to work with Users (an “Engagement”), for as long as indicated as it will remain available on the Platform and in the Order Confirmation, or until it is terminated by either you or the Company. Customer must pay a fee to the Company to create and post a Listing (a “Listing Fee”).
(ii) Jobs: Customers may hire and pay Users via the Platform. Customers must pre-deposit the amount which Customer intends to pay Users (as described in the Listing) when a Listing is placed (a “Deposit”).Upon the performance of the User’s duties (as described in the Listing or any other agreements or communications between Customer and User to the Customer’s reasonable satisfaction (a “Job”), the Deposit will be transferred to the User, minus a fee (as displayed on the platform and in the Order Confirmation) that is transmitted to the Company or its appropriate business partners (a “Placement Fee”). Company has the sole discretion to set the amount of the Placement Fee, and Company may change or modify the Placement Fee without prior notice to Users. Disputes as to whether User performed according to the Customer’s “reasonable satisfaction” will be resolved according to the Company’s sole discretion, or according to any other party or process the Company designates in writing. In the event that a Listing does not result in an Engagement or a successfully completed Job, the full amount of the Deposit will be returned to the Customer (exclusive of any paid Listing Fees).
(b) For the sake of clarity, Customer shall be under no obligation to interview or hire any User introduced by Company or that responded to a Listing. Customer shall determine, in its sole discretion, whether or not to proceed with any candidate introduced by Company or that responded to a Listing.
4. Payments
(a) When you provide payment information, you represent and warrant that the information is accurate, that you are authorized to use the payment method provided, and that you will notify us of changes to the payment information. We reserve the right to utilize third party credit card updating services to obtain current expiration dates on credit cards. You agree to not submit stolen or unauthorized debit or credit cards through the Platform.
(b) We use 3rd party payment platform, Stripe (and the Stripe API) to process credit card and debit card transactions for Listing Fees and Placement Fees. By purchasing and paying for our Services, you consent to payments facilitated by Stripe and agree to be bound by Stripe’s Terms of Service.
(c) You expressly understand and agree that Zenbu is not be liable for any payments and monetary transactions that occur through your use of the Service. You agree that Zenbu is not liable for any issues regarding financial and monetary transactions between You and any other party, including Stripe. You further expressly agree that Zenbu is not liable for the calculation and/or payment of any union fees or dues, assessments, or deductions, nor is Zenbu liable for determining any applicable tax deductions, credits, or set-offs.
(d) You are responsible for all transactions (one-time, recurring, and refunds) processed through the Platform and/or Stripe. We are not liable for loss or damage from errant or invalid transactions that are processed or fail to be processed by Stripe. This includes transactions that were not processed due to a network communication error, or any other reason. If you process a transaction, it is your responsibility to verify that the transaction was successfully processed.
(e) You understand that Zenbu uses the Stripe API to run the Platform and that the Stripe API is subject to change at any time and such changes may adversely affect the Platform or the Services. You understand and agree to not hold us liable for any adverse effects that actions (whether intentional or unintentional) on the part of Stripe may cause to you, your Zenbu account, or your business.
5. Refund Policy
(a) Engagements – We offer a full refund for the full deposit amount or any charged Placement Fee(s)(excluding the relevant Zenbu Fee) for any Engagement that is cancelled for any reason more than fourteen (14) calendar days prior to the date that Job is expected to be performed. A request for any refund made fourteen (14) calendar days or less before the beginning of a Job, during the Job, or after the Job’s completion will be considered by the Company on a case-by-case basis. The approval of a refund request will be made according to the Company’s sole discretion. The Company will respond to any Engagement refund request with a notice of its decision within thirty (30) calendar days unless there is a valid reason (as determined in the Company’s sole discretion) for extending, in which case the Company will notify the refund requester of its decision to extend and its reason for doing so before the end of the original thirty day window.
(b) Listings - We do not offer refunds for Listings under any circumstances, including (but not limited to) a Listing that: ends in a failed Engagement; receives less than the expected number of expected satisfactory inquiries or receives no inquiries at all; is withdrawn or cancelled by the Customer for any reason or no reason at all; or is terminated by the Company for any reason or no reason at all. We make absolutely no guarantee to any outcome from submitting a Listing.
(c) Other Services – Unless otherwise stated on the Platform or a relevant Order Confirmation, we will consider refund requests for any other services offered by us via the Platform on a case-by-case basis. Any determination as to whether a refund request for other services will be granted (in full or in part) will be determined by us in our sole discretion. In addition, for any refund that is made (in part or in full), the Platform will retain the total Zenbu Fee of 14% for services rendered.
6. Customer's Obligations and Limitations.
(a) Customer shall:
(i) only use the Services, the Platform, and information about User gained through the Platform to the extent necessary to hire User for a specific Job, as described in a Listing;
(ii) only post Listings relevant to an actual, bona fide, existing work opportunity that Customer has the actual intention of filling and can reasonably result in a completed Job should User enter into an Engagement with Customer;
(iii) ensure only one Listing is posted per possible placement, and shall not post more than one Listing or duplicate Listing(s) for a particular placement or opportunity;
(iv) be responsible for (i) all postings and content it provides through the Services or otherwise submits to the Platform, including but not limited to a placement descriptions, creatives, trademarks, images, URLs and pixels, whether or not submitted via a Listing(s); and (ii) all content and property to which Listings or other communications sent or submitted by Customer may direct viewers, as well as redirects;
(v) remove any Listings for a filled position(whether through the Platform or another method) within two (2) business days;
(vi) cooperate with Company in all matters relating to the Services;
(vii) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement;
(viii) rely solely on its own investigations in its decisions to hire Talent as Company does not verify Users’ work history (including without limitation alleged associations with studios), nor does it conduct background checks on Users;
(ix) provide Customer materials or information as Company may reasonably request (and is reasonably necessary to carry out the Services in a timely manner)and ensure that such Customer materials or information are complete and accurate in all material respects;
(x) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to a Job before the date on which the Job is to start; and
(xi) ensure that any and all information submitted is accurate and truthful.
(b) Customer will not, either itself nor enable or authorize any third party to:
(i) create Listings without a reasonable and legitimate intent to hire for a bona fide job opportunity or the specific position listed;
(ii) create Listings that intentionally misrepresent the opportunity, hiring company, or Customer;
(iii) fail to clearly disclose in any Listing that a position is for an independent contractor or is part-time, piecework, commission-based, or has otherwise nontraditional working conditions or compensation may constitute intentional misrepresentation;
(iv) create Listings for “business opportunities” that require payments or recruitment of others or that resemble franchises, multi-level marketing, club memberships, distributorships, or are entirely or almost entirely commission-based;
(v) provide identifiable candidate resume, application data, or data learned through the Platform to any other party;
(vi) “spam” or otherwise contact other Users for purposes other than related to the specific employment opportunity described in the posting;
(vii) harass, stalk, defame, or violate the privacy or other rights of any User, nor contact any User after they have asked not to be contacted;
(viii) create Listings in the United States without possessing valid Federal or State Employer Identification Numbers, if applicable, or create Listings in any other location in a manner that would not allow compliance with applicable tax and employment laws;
(ix) create Listings for jobs that require applicants to pay for employment or otherwise bear costs related to employment in violation of applicable law;
(x) solicit User or applicants by intentional misrepresentation;
(xi) impersonate any person or entity or otherwise misrepresent any affiliation with a person or entity;
(xii) create Listings, advertise employment positions, or otherwise engage in recruitment or hiring practices that would be a violation of the law in Customer’s state or country, the state or country where the job is to be performed, or the applicable laws of the jurisdiction that governs any agreement between Customer and any hired Users;
(xiii) engage in solicitations, communications or transactions that violate any applicable laws or regulations related to the prohibition of employment discrimination, or that violate applicable laws governing legal eligibility to work;
(xiv) engage in illegal or fraudulent conduct in relation to any Job or through the use of the Platform, nor to encourage any User or any other User to engage in illegal or fraudulent conduct in relation to any Job or through the use of the Platform;
(xv) except as expressly authorized by the Company in writing, use any automated means or form of scraping or data extraction to access, modify, download, query or otherwise collect information from the Platform;
(xvi) except as expressly authorized by the Company in writing, copy, modify or create derivative works of the Platform or any related technology; or
(xvii) create Listings that contain malware, spyware or any other malicious code or otherwise interfere with the operation of the Platform or the provision of the Services or any device or system or breach or circumvent any security measure of the Company or a third party.
(xviii) resell or transfer access to your account to any other party, nor resell or transfer control of any Listing to another party. Notwithstanding, Customer may hire User and fill positions on behalf of another party so long as it does not do so fraudulently or deceptively and Customer maintains access or control to its account or to any submitted Listings;
(xix) copy, duplicate, replicate, scrape or otherwise reproduce jobs from a hiring company’s website and upload them to the Platform as Listings without the hiring company’s prior knowledge and authorization. Where a hiring company informs the Company that Customer has done so without its prior knowledge and authorization, the Company reserves the right to remove such Listing(s) immediately and without prior notice to Customer;
7. Non-Circumvention; Non-Solicitation
(a) Customer will not, directly or indirectly, except in collaboration with or with the prior express written consent of Company:
(i) enter into any transaction with any party or parties introduced to Customer by the Company or through the platform (an "Introduced Party") similar to, in competition with, or which otherwise could have the effect of preventing the Company from receiving the full benefit of, the transaction(s) contemplated by this Agreement;
(ii) solicit the Introduced Party to enter into any such transaction; or
(iii) induce, solicit, procure, or otherwise encourage its agents, employees, affiliates, representatives, or any third party, or respond to any solicitation from any of the same, to enter into any such transaction.
(b) Customer agrees that, without obtaining the prior written consent of the Company, neither Customer nor any of its agents, employees, affiliates, or representatives (each, a "Restricted Person") will not directly or indirectly, for itself or on behalf of another person or entity, solicit for employment or with Customer or any other Restricted Party, or employ or engage as an independent contractor, any Introduced Party for any position that is the same or substantially similar as one described in a Customer’s Listing;
(c) Notwithstanding any other provision herein, the restrictions described in this Section 7 apply to any position, placement, or opportunity that are the same or substantially similar to any described in a Listing submitted by Customer, and will last for the duration of that Listing for so long as it is active and for one (1) year after that Listing’s expiration or termination. If Customer submits a new Listing that is the same or substantially similar to a Listing that previously expired or terminated, the restriction will last for the duration of that later Listing for so long as it is active, and for one (1) year after the later Listing’s expiration or termination.
8. Personal Data and Information.
(a) Except as provided in these Terms or as otherwise agreed in writing by the parties, Customer will only use personal information (as defined in our Privacy Policy) for the purposes of filling a placement for a specific Job(including assessing User or an applicant for a particular placement), communicating and coordinating with User to fulfill a particular Job, or to help in the use or provision of the Platform as it is intended (such as leaving work ratings, review, or other assessment of User to assist other users of the Platform in filling their own placement(s) or Job(s)).
(b) In no case shall Customer use or share another User’s personal information in a way that would be in violation of our Privacy Policy if such activity were carried out by the Company. Customer may never sell or share any personal information relating to any User that is gained through the Platform or through communications with a user who they are first introduced through the Platform without that User’s express consent, except with any “Service Provider” as the term is defined in Cal. Civ. Code § 1798.140(v) and only as is reasonably necessary for the purposes of contacting, assessing, or hiring User for a bona fide Job or for other purposes for which the Platform is designed to facilitate. Customer agrees to delete any personal information obtained through the Platform or relating to User that it hires for a Job either within six (6) months of: (a) obtaining that information, (b) the termination of an Engagement with the User to whom that personal information relates or pertains, or (c) the Job’s successful completion involving the User to whom that personal information relates or pertains.
9. Customer's Acts or Omissions.
If Company's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants, or employees, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
10. Taxes.
Company may collect taxes from any deposit only as is required by law in a relevant jurisdiction. Such taxes collected by the Company will be in addition to any Listing Fee or Placement Fee. In any other case, Customer will be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder.
11. Disclaimer of Warranties.
COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; (D) WARRANTY OF ACCURACY OF INFORMATION REGARDING USERS’ CLAIMED WORK EXPERIENCE AND PRIOR EMPLOYMENT, SKILLS, EDUCATION, BACKGROUND, AND/OR BUSINESS RELATIONSHIPS AND ASSOCIATIONS; OR (E) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
12. Limitation of Liability.
(a) IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THE APPLICABLE ORDER CONFIRMATION.
13. Termination; Survival.
Unless otherwise stated herein, these Terms will terminate to the extant that apply to any Listing or Job the earlier of (1) the termination of the Listing by Customer or by the Company for any reason; (2) the Listing’s expiration, as articulated in a relevant Purchase Order; (3) the termination of an Engagement; (4) the completion of a Job by User that responded to the particular Listing. Notwithstanding, provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement.
14. Waiver.
No waiver by Company of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Company. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15. Force Majeure.
Subject to the refund policy described in Section 8, no party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; (i) in the case of the Company, a technical failure beyond its control that results in a lapse of provision of the Platform or the Services; or (j) other similar events beyond the control of the Impacted Party. The Impacted Party shall give notice within five (5) business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
16. Assignment.
Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void without such express prior written consent. No assign mentor delegation relieves Customer of any of its obligations under this Agreement.
17. Relationship of the Parties.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Users and Customers acknowledge that they are not employees or agents of Company, and that their use of the Platform does not in any way create an employer-employee relationship with Company.
18. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties set forth in the Order Confirmation, or to such other email or other address that may be designated by the Customer by updating the contact information in its Platform account. All Notices shall be delivered by email or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
19. Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to affect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
20. Amendment and Modification.
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.