Effective as of June 15, 2016
So you’d like to develop an Integration or App using the Zilkr API? Well, welcome to the Developer Section of the Site! We at Zilkr look forward to having you join the Zilkr family of Developers. However, before we allow you access to the Developer Section and all of the Zilkr Tech therein, we first need you to register with Zilkr and read and agree to the following:
THIS DEVELOPER AGREEMENT (THE "AGREEMENT") IS A LEGALLY BINDING CONTRACT BETWEEN YOU ("YOU" OR "YOUR") AND ZILKR CLOUD TECHNOLOGIES, LLC D/B/A ZILKR ("ZILKR", "WE", "US", OR "OUR") AND GOVERNS YOUR ACCESS TO AND USE OF THE DEVELOPER SECTION OF THE SITE AND YOUR RELATIONSHIP WITH ZILKR AS A DEVELOPER. IN ORDER TO BECOME A DEVELOPER YOU MUST REGISTER WITH ZILKR AND AGREE TO THIS AGREEMENT.
BY AGREEING TO THIS AGREEMENT OR ACCESSING OR USING THE DEVELOPER SECTION OF THE SITE, YOU REPRESENT, WARRANT, AND COVENANT THAT YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND THAT YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT.
- Eligibility.By agreeing to this Agreement or accessing or using the Developer Section of the Site or any Zilkr Tech therein, you represent and warrant that: (a) you have reached the age of majority in the legal jurisdiction from which you are accessing the Site or have the permission of your legal guardian to access the Site; (b) you have the authority and capacity to enter into this Agreement; (c) you have read and understand this Agreement; (d) you are legally entitled to enter into this Agreement; (e) it is your intent to enter into this Agreement and you agree to abide by this Agreement; (f) you have not been previously suspended or removed from the Site or the Developer Section of the Site; (g) you are not listed on any U.S. Government list of prohibited or restricted parties; (h) you will not use the Developer Section of the Site, the Platform, your App, or any Zilkr Tech to circumvent any Regulation or fund any organization which has been listed as a terrorist organization by the U.S. Government; and (k) the information that you provide to Zilkr will be current, true, accurate, supportable, and complete, and that you will keep such information current and correct.
- "Affiliate" means any party related to Zilkr by ownership or contractual agreement.
- "API" means an application programming interface.
- "App" means a software application or a software integration to an application created by a Developer to work with the Zilkr Platform.
- "Content" means any intellectual property, data, or communications.
- "Customer" means businesses and users that have an existing direct or indirect relationship with a Provider for various services offered by such Provider.
- "Customer Data" means a Customer’s name, email address, and phone number.
- "Derivative Work" means any work that is based upon any Zilkr Tech, including, but not limited to, an enhancement, modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting work may be recast, transformed, or adapted.
- "Designated Agents" means those employees and third party contractors of Developer who have been designated authority by Developer to have access and to use the Platform and are bound by terms and conditions regarding the access and use of the Platform no less onerous or restrictive and no more permissive than those binding Developer in accordance with this Agreement.
- "Developer" means a Visitor who has registered with Zilkr agreed to this Agreement in order to access the Developer Section of the Site.
- "Developer Account" means Developer’s unique account on the Platform accessible via the Developer Section of the Site.
- "Developer Section" means the portion of the Site that allows Developers to develop and list Apps on the Platform.
- "Event" means a unit of Provider generated activity or App generated activity Shared with the Platform.
- "Effective Date" means the date that Developer agrees to this Agreement as recorded by the Site.
- "Linked Sites" means links or references to other websites or services.
- "Patch" means any software which corrects or removes a reproducible anomaly or "bug." Patches do not constitute an Update, but may be included in Updates.
- "Platform" means the API platform and portal site developed and operated by Zilkr.
- "Provider" means a company that provides, resells, or manages communication services which has registered with Zilkr and agreed to the Provider Agreement in order to access the Provider Section of the site.
- "Provider Section" means the portion of the Site that allows Provider to access the Platform.
- "Publish" means to make an App available to Providers via the Platform.
- "Regulation" means all applicable laws, statutes, regulations, ordinances, rules, orders, decrees, or rulings as set forth by any Regulatory Authority.
- "Regulatory Authority" means any proper federal, state, province, territorial, canton, parish, local, or other legal, governmental, judicial, administrative, or regulatory authority in the U.S., your home jurisdiction, the jurisdiction of the place from which you access the Site, the Platform, or any other Zilkr Tech, or that has international or transnational jurisdiction.
- "REST API" means a representational state transfer API.
- "SDK" means software development kit.
- "Share" means to transfer information via the Site or Platform.
- "Transaction" means each Sharing of an Event by the Platform with and App or Provider.
- "Transaction Data" means any data collected by the Platform, excluding Customer Data.
- "Update" means a superseding release of the previous release of the Platform which is intended to add to, improve, or further enhance the Platform and which involves extensive changes to the previous release of the Platform. An Update may include Patches for earlier Updates or releases of the Platform.
- "User" means a Customer who uses Developer’s App.
- "Visitor" means an individual who accesses and/or uses the Site.
- "Zilkr Tech" means any and all intellectual property owned, licensed, or in the legal possession of Zilkr, including, but not limited to, the Site, Zilkr APIs, the Platform, any and all Updates, and any and all Patches, Transactional Data, and any and all Zilkr trademarks, service marks, trade secrets, copyrights, patents, programs, and processes.
- Provider Section. In order to access and use the Provider Section, one must register with Zilkr and agree to the Provider Agreement. You hereby agrees that you will not access or use the Provider Section of the Site without reading and agreeing to the Provider Agreement or allow others access to the Provider Section unless they are bound by terms no less onerous or restrictive and no more permissive than those found in the Provider Agreement.
- Developer Section Services.
- Integration Services.The Developer Section provides Developer access to the APIs that Developer can use to integrate their App with the Platform and interconnect with Provider networks, as well as such Zilkr Tech developed by Zilkr and others to assist Developer with such integration, including, but not limited to, SDKs, documentation, specifications, and other information. You bear all responsibility for developing and implementing the integration with the Platform and your App.
- App Services.You may develop an App that interfaces with the Platform, link such App to your Developer Account, and Publish the App in order to make such App distributable via the platform. When an App is Published, Providers may choose to make you App accessible to Customers. However, Zilkr makes no guarantee that any individual Provider will make your App available to any Customer. Zilkr’s Platform allows Developer to connect with Providers, make available Developer’s App(s) to Customers, connect with Users, provide Developer’s App(s) to Users, and interconnect with Users. However, the terms and conditions between Developer and such Providers and Developer and Customers are not governed by this Agreement.
- Provider Neutrality. The Zilkr API provides an API and Event definition that remains the same regardless of the Provider’s or Customer’s underlying systems.
- App Assignment. Once an App is Published, Developer should expect assignment of the App to a Customer belonging to any Provider at any given time. This assignment is taken by a Provider via the Provider Section of the Site. Such a dynamic assignment enables Provider’s App to be distributed across an ever-increasing number of Customers and Providers without a Developer needing to be previously aware of the Customer or Provider.
- Sharing via the Platform. Your Developer Account also allows you to Share various Content with Zilkr, Providers, Customers, and Users. By choosing to Share your Content, you represent and warrant that you are solely responsible for your Content and the ramifications and results of your choice to Share your Content. When using the Platform you represent and warrant that other parties, including, but not limited to, other Developers, Providers, Customers, and Users, may Share Content with you. You hereby represent, warrant, and covenant that Zilkr bears no responsibility for any Content Shared with you by any party other than Zilkr.
- Support. Zilkr shall supply best effort ongoing support for Developer via firstname.lastname@example.org
- Fees. Currently all services provided by Zilkr to Developer are gratis. However, Zilkr reserves the right to change this at any time with reasonable notice to Developer.
- Suspension/Termination. Zilkr reserves the right to suspend or terminate your Developer Account and/or suspend, limit, or delist your App or limit access to your App for any or no reason, in Zilkr’s sole discretion at any time without notice.
- Developer Responsibilities. You represent, warrant, and covenant that: (a) you shall comply with all the terms and conditions of this Agreement; (b) you shall ensure that all of your Designated Agents are bound by terms and conditions no less onerous or restrictive and no more permissive than those in this Agreement; (c) you shall use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and your Developer Account, and notify Zilkr promptly of any such unauthorized access or use that comes to your attention; (d) you shall use the Platform, only in accordance with all Regulations, this Agreement, and Zilkr policies; (e) you shall bear the responsibility for granting any sublicense, access to, and use of the Platform or your Developer Account to your Designated Agents; (f) you shall immediately notify Zilkr of any actual or suspected breach of security or unauthorized use of the Platform or your Developer Account; (g) any and all Designated Agents given access to your Developer Account shall be designated by you and vested by you with the authority to use your Developer Account to connect with the Platform, and legally bind you; (h) you bear all responsibility for the actions of your Designated Agents in relation to this Agreement, your Developer Account, the Site, the Platform, and Zilkr’s services; (i) you shall bear responsibility for all actions originating from your Developer Account; and (j) the information that you provide to Zilkr is current, true, accurate, supportable, and complete, and that you will continue to keep such information current and correct.
- Third Parties.
- No Third Party Responsibility. Developer hereby acknowledges that this Agreement is between Developer and Zilkr, not any third party, including, but not limited to, Providers and Users, and that Zilkr is only responsible for the Platform and Zilkr’s services, not the services provided by or to any third party. Developer’s use of the Platform and Zilkr’s services may be subject to separate agreements Developer enters with such third parties. Developer agrees to comply with all applicable agreements with such third parties when using the Platform and Zilkr’s services. Developer hereby represents, warrants, and agrees that Zilkr shall bear no responsibility for such third parties. Each Provider is responsible for any and all claims regarding such Provider’s network. Each Developer is responsible for any and all claims regarding such Developer’s App. Each Customer or User is responsible for such Customer or Users actions and use of Customer or User’s Provider network and any and all Apps.
- User Service Issues. Developer is solely responsible for any and all User service issues and interactions with Users.
- Disputes. While Zilkr reserves the right, but has no obligation, to monitor or moderate disputes between you and other parties on-Site or on-Platform, you are solely responsible for your interactions with any other parties on-Site or on-Platform and the ramifications of such interactions.
- Offsite Interaction with Third Parties. You are solely responsible for your App, your Content, and all the consequences of Sharing your Content with third parties via the Platform or your Developer Account. As such, you hereby represent, warrant, and covenant that you are solely responsible for any interaction with any parties that takes place off-Site or off-Platform.
- Prohibited Activities. You hereby expressly represent and warrant that you shall not: (a) breach this Agreement; (b) induce any other party to breach an agreement with Zilkr; (c) use or attempt to use the Platform or any Zilkr service to circumvent or breach or attempt to circumvent or breach any Regulation; (d) submit any information to Zilkr that is not true, complete, or accurate; (e) allow any other person other than your Designated Agents to access or use your Developer Account; (f) take any action that imposes an unreasonable or disproportionately large load on the Platform or Site; (g) modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, use, or exploit the Platform or any other Zilkr Tech for any purposes other than those specifically permitted by this Agreement; (h) use any bot, spider, scraper, data miner, or automated agent to gain access to or use any information on the Platform or the Site, except as allowed by agreement with Zilkr; (i) attempt to decipher, decompile, disassemble, or reverse engineer any Zilkr Tech; (j) facilitate any viruses, bugs, trojan horses, worms, or other software, automated agents, or programming routines that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any information on the platform; (k) interfere or attempt to interfere with the Site, Platform, or any Zilkr services; (l) copy, reproduce, republish, upload, post, transmit, resell, or distribute in any way material from the Site, the Platform, or any other Zilkr Tech unless otherwise authorized by agreement between Developer and Zilkr; (m) work around any of the technical limitations, use any tool to enable features or functionalities that are otherwise disabled; (n) perform or attempt to perform any actions that would interfere with the normal operation of the Platform or any Zilkr services; (o) transfer, assign, delegate, sell, resell, lease, license, sublicense, or otherwise make available your Developer Account in any manner not expressly permitted by this Agreement; (p) interfere in any way with the use of the Platform of Developer Section by another Developer; (q) attempt to gain unauthorized access to the Platform or Site; (r) remove, alter, or obscure any Zilkr proprietary or copyright notices; or (s) use your Developer Account, the Site, the Platform, any Zilkr services, or any Zilkr Tech in a manner that is not expressly permitted in this Agreement.
- Term/Termination. This agreement shall be effective between the parties beginning on the Effective Date and shall be terminable by will of either party effective upon notice of such intent to terminate this Agreement in accordance with this Agreement.
- Prevention of Unauthorized Use. Zilkr reserves the right to exercise whatever lawful means Zilkr deems necessary in Zilkr’s sole discretion to prevent unauthorized use of the Platform, the Site, any Zilkr services, or any Zilkr Tech, including, but not limited to, any and all technological barriers.
- Intellectual Property.
- Zilkr Tech. All Zilkr Tech, including, but not limited to the Platform, is owned, controlled, or licensed by Zilkr and is protected by copyright, as a trademark, or by other intellectual property rights. Developer agrees that Developer shall acquire no rights in any Zilkr Tech unless otherwise noted in this Agreement or in writing by Zilkr. Developer may not copy, reproduce, frame, republish, download, upload, post, transmit, distribute, hyperlink, or exploit the Platform, the Site, or any other Zilkr Tech for commercial or other use in any way beyond what is permitted by this Agreement without the prior written consent of Zilkr. All access and use of the Platform, the Site, Zilkr services, and Zilkr Tech are licensed and not sold. Nothing in this Agreement is intended to convey any intellectual property right from Zilkr to Developer other the limited licenses hereinunder.
- Developer License to Access and Use. Zilkr hereby grants to Developer a limited, personal, non-exclusive, non-transferable, fully and freely revocable license to access and use Developer’s Developer Account, the Developer Section of the Site, and the Platform to avail Developer of Zilkr’s services as provided in Section V of this Agreement or a separate written agreement between the parties and allows Providers, Customers, and Users to access Developer’s App’s via the Platform subject to Developer’s continuing compliance with this Agreement. Developer may permit Developer’s Designated Agents to access and use Developer’s Account, the Developer Section of the Site, the Platform, and Zilkr services on Developer’s behalf, provided such Designated Agents are bound by written terms and conditions regarding the access and use of the Developer’s Account, the Developer Section of the Site, the Platform, and Zilkr services that are no less onerous or restrictive and no more permissive than those binding Developer in accordance with this Agreement, and such access and use is solely in connection with the services provided by Zilkr to Developer in accordance with this Agreement subject to Developer’s and Developer’s Designated Agent’s continuing compliance with this Agreement. Developer hereby acknowledges and agrees that with the exception of this limited license Developer has no right to use, modify, edit, copy, reproduce, create Derivative Works, or reverse engineer, alter, enhance, or in any way exploit any Zilkr Tech in any manner unless otherwise noted in writing by Zilkr. This limited license terminates automatically, without notice to Developer, if Developer breaches any of the terms and conditions of this Agreement and terminates immediately upon termination of this Agreement.
- Developer’s License to Zilkr. Developer hereby grants to Zilkr a paid-in-full, royalty free, limited, non-exclusive, freely and fully transferable, freely and fully assignable, freely and fully revocable worldwide license to invoke any App APIs defined by Developer via the Developer Section of the Site, and access and display such APIs and intellectual property provided to Zilkr by Developer for the purposes of this Agreement. This license may be sublicensed to such employees and third party contractors through multiple tiers of sublicenses of Zilkr provided such employees and third party contractors of Zilkr are bound by terms no less onerous or restrictive and no more permissive than those found in this Agreement.
- Publicity/Trademark. Zilkr hereby grants to Developer a paid-in-full, royalty free, limited, non-exclusive, freely and fully revocable license to use Zilkr’s publicly utilized brand name, logo, and website for Developer’s portfolio use and to be listed by Developer on Developer’s App or website as a Developer of Zilkr, which may be sublicensed for such purposes. Developer hereby grants to Zilkr a paid-in-full, royalty free, limited, non-exclusive, freely and fully revocable worldwide license to use Developer’s publicly utilized brand name, logo, and website for Zilkr’s portfolio use and to be listed on the Site as a Developer of Zilkr, which may be sublicensed for such purposes. Each party to this Agreement hereby grants the other party a paid-in-full, royalty free, limited, non-exclusive license to such party’s brand name, logo, and website for publicity related to Developer’s status as a Developer other than that stated hereinbefore, which may be sublicensed for such purposes, provided such party utilizing the brand name, logo, or website of the other party for publicity provides such party at least ten (10) days prior notice of such publicity to agree to such publicity. Such agreement shall not be reasonably be withheld by either party.
- "Confidential Information" means any confidential or proprietary information, intellectual property, or data regardless of the form in which it is maintained, which either party specifically designates as confidential or proprietary in writing at the time of disclosure, as well as any notes, analyses, compilations, forecasts, studies, memoranda, or other documents prepared by the receiving party that contains or otherwise reflects such confidential or proprietary information. Zilkr’s Confidential Information specifically includes, but is not limited to, the source code for the Platform, the Platform’s architecture, redundancy, and data storage schemes and mechanisms, any algorithms and methods of processing Events by the Platform, and any algorithms and methods of processing Transactions between Developer Apps and Providers. Both parties hereby represent, warrant, and acknowledge that the exchange of such Confidential Information is necessary for the purposes of this Agreement.
- Exceptions. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is legally in the receiving party’s possession at the time of disclosure by the disclosing party, without legal obligation to the disclosing party or a third party related to the disclosing party to maintain the confidentiality of such information; (ii) is lawfully provided to the receiving party by a third party unrelated to the disclosing party, who was lawfully in possession of that information other than by a violation of a duty to the disclosing party or the disclosing party’s intellectual property rights; (iii) is independently developed by such party without use of, reference to, or benefit of the Confidential Information, as shown by evidence recorded contemporaneously with such independent development; or (iv) is explicitly approved for release in writing by the disclosing party. Confidential Information shall not be deemed to be generally known or available to the public merely because a portion thereof is generally known or available to the public or because features, components, or combinations thereof are now or become generally known or available to the public.
- Nondisclosure Obligations. In consideration of receiving the Confidential Information, which is necessary for the receiving party to perform the duties, obligations, covenants, and other mutual considerations in this Agreement, the receiving party: (i) shall hold any and all Confidential Information in strictest confidence; (ii) shall not disclose Confidential Information to any employee, professional consultant, contractor, or affiliate of the receiving party unless such person needs access in order to facilitate the purposes of this Agreement and is bound by confidentiality requirements no less restrictive than those of this Agreement; (iii) shall not use the Confidential Information for any purpose, function, or objective other than the purposes of this Agreement; (iv) shall not disclose Confidential Information to any third party without the disclosing party’s explicit prior written consent; (v) shall not use any Confidential Information for the benefit of the receiving party or the benefit of any party other than the disclosing party, directly or indirectly, or in any way other than as instructed by the disclosing party; (vi) shall not use the Confidential Information to the detriment of the disclosing party in a competitive atmosphere; (vii) shall promptly notify the disclosing party if the receiving party believes that any Confidential Information has been disclosed as a result of any third party’s improper action, inaction, or breach of a nondisclosure agreement between the disclosing party and such third party; and (viii) shall promptly notify the disclosing party of any misuse or misappropriation of Confidential Information that comes to the receiving party’s attention. Without limiting the generality of the foregoing, the receiving party will protect Confidential Information with the same degree of care it uses to protect receiving party’s own trade secrets or highly confidential information of similar nature and importance, but with no less than exceptional care. Furthermore, the parties have agreed and hereby agree that the confidentiality of any Confidential Information shall not be limited by the timing, place, and circumstances of disclosure or the intent or lack thereof regarding such disclosure. Notwithstanding the foregoing, the receiving party may disclose the terms of this Agreement to the receiving party’s attorney and accountant for any necessary professional advice provided such parties are bound by confidentiality requirements no less restrictive and no more permissive than those of this Agreement
- Rights, Titles, Interest, and License. Nothing in this Agreement shall be construed to convey to the receiving party any right, title, interest, or intellectual property right in any Confidential Information, or any license to use, re-use, change, reproduce, adapt, translate, modify, revise, condense, expand, collect, compile, edit, copy, reverse engineer, alter, enhance, abridge, transmit, distribute, publicly display, publicly perform, make, have made, offer for sale, license, and lease, sell, license, lease, otherwise dispose of, import, export, sell, exploit, create derivative works or further develop any Confidential Information, except a limited, non-exclusive, non-transferable, non-assignable, non-sublicensable, freely and fully revocable license to use, re-use, change, reproduce, adapt, translate, modify, revise, condense, expand, collect, compile, edit, copy, reverse engineer, alter, enhance, abridge, and create derivative works of the Confidential Information solely for the purposes of this Agreement in accordance with this Agreement during the term of this Agreement. This limited license terminates immediately and automatically if this Agreement is materially breached or terminated. The disclosing party shall retain all rights, titles, interests, and intellectual property rights in and to all Confidential Information disclosed to the receiving party.
- Legal Disclosure. Notwithstanding the obligations under Section XII(b) of this Agreement, the receiving party may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. The receiving party shall give the disclosing party prompt notice of any such legal or governmental demand.
- Term. Given the sensitive trade secret nature of the Confidential Information, the provisions and obligations under this Section XII of this Agreement shall be effective for two (2) years after the termination of this Agreement.
- Derivative Work. To the extent that Developer creates any Derivative Work absent an explicit written agreement with Zilkr, such Derivative Work shall be owned by Zilkr and all right, title, and interest in and to each such Derivative Work shall automatically vest in Zilkr. Such right, title, and interests shall be deemed paid-in-full and royalty free, and Zilkr shall have no obligation to grant to Developer any right in any such Derivative Work. Developer hereby irrevocably assigns to Zilkr any and all joint or individual ownership, rights, titles, and interests in and to any and all such Derivative Work, including, but not limited to all: (i) copyrights, patents, inventions, rights in mask works, trademarks, trade secrets, and other intellectual property rights, and all other rights that may hereafter be vested relating to the Derivative Work, arising under U.S. or any other law, together with all national, foreign, state, provincial, and common law registrations, applications for registration, and renewals and extensions thereof; (ii) goodwill associated with the Derivative Work; and (iii) benefits, privileges, causes of action, and remedies relating to any of the foregoing, whether before or hereafter accrued, including, but not limited to, the exclusive rights to apply for such registrations, renewals, or extensions, to sue for all past infringements or violations of any the foregoing, and to settle and retain proceeds from any such actions. Developer further assigns to Zilkr, during the full copyright or patent terms and any extensions or renewals of that term, all copyrights and patents in and to Derivative Work. In the event that the assignment in this Section XIII of this Agreement does not provide Zilkr with full ownership, rights, titles, and interests in and to the Derivative Work, Developer hereby grants to Zilkr an unlimited, exclusive, freely and fully transferable, freely and fully assignable, irrevocable, paid-in-full, royalty-free, perpetual, worldwide license to use, re-use, change, reproduce, adapt, translate, modify, revise, condense, expand, collect, compile, edit, copy, reverse engineer, alter, enhance, abridge, transmit, distribute, publicly display, publicly perform, make, have made, offer for sale, license, or lease, sell, license, lease, otherwise dispose of, import, export, create derivative works of, or exploit in any and every way the Derivative Work as Zilkr sees fit for any and every purpose, without restriction or limitation of any kind, with the right to sublicense each and every such right through multiple tiers of sublicensees. Furthermore, Developer hereby assigns and transfers any and all moral rights in any Derivative Work. Developer agrees where such rights may not be assigned as a matter of law to cooperate fully with Zilkr during the lifetime of such rights and agree not to take any interest or action with regard to such rights that is contrary to the will and goals of Zilkr and Developer agrees not to exercise any such moral rights without the explicit prior written consent of Zilkr. Where any such moral rights may not be assigned as a matter of law, but may pass on to Developer’s heirs at law, Developer hereby disclaims any and all such moral rights.
- Unsolicited Suggestions. Zilkr welcomes any and all feedback, suggestions, and recommendations. By submitting any feedback, suggestions, or recommendations to Zilkr via the Site, the Platform, or elsewise, Developer agrees that Zilkr may, but shall have no obligation to, use, re-use, change, reproduce, adapt, translate, modify, revise, condense, expand, collect, compile, edit, copy, reverse engineer, alter, enhance, abridge, transmit, distribute, publicly display, publicly perform, make, have made, offer for sale, license, or lease, sell, license, lease, otherwise dispose of, import, export, create derivative works of, or exploit in any and every way exploit such feedback, suggestions, or recommendations in any manner, as Zilkr sees fit for any and every purpose, without restriction or limitation of any kind, and Developer thereby grants Zilkr an unlimited freely and fully transferable, freely and fully assignable, irrevocable, paid-in-full, royalty-free, perpetual, worldwide license to do so, with the right to sublicense each and every such right through multiple tiers of sublicensees. Developer further agrees not to permit or prosecute any action or lawsuit on the ground that Zilkr’s use or alleged use of such feedback, suggestion, or recommendation infringes any of Developer’s rights.
- Digital Millennium Copyright Act Policy. Zilkr takes intellectual property rights very seriously and demands the same from all Developers. Zilkr will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act [17 U.S.C. 512] (the "DMCA"). The DMCA provides a process for a copyright owner to give notification to Zilkr concerning alleged copyright infringement ("Notice of Infringement"). When a valid Notice of Infringement is received, Zilkr shall respond under this process by taking down the offending Content. In accordance with the DMCA, upon taking down the Content, Zilkr shall take reasonable steps to contact the party who originated the removed Content on the Site so that a counter-notification ("Counter Notice") may be filed. On receiving a valid Counter Notice, Zilkr will generally restore the Content in question, unless Zilkr receives notice from the original provider of the Notice of Infringement that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity. THESE NOTICES OF INFRINGEMENT AND COUNTER NOTICES ARE REAL-WORLD LEGAL NOTICES PROVIDED OUTSIDE THE AGREEMENT. ZILKR MAY PROVIDE COPIES OF SUCH NOTICES TO THE PARTICIPANTS IN THE DISPUTE OR THIRD PARTIES, AT ZILKR’S DISCRETION AND AS REQUIRED BY APPLICABLE REGULATION OR BY REGULATORY AUTHORITY; THE AGREEMENT DOES NOT PROTECT INFORMATION PROVIDED IN THESE NOTICES.
- Notice of Infringement. If you are a copyright owner and have a good faith belief that any Content posted or Shared on the Site or via the Platform infringes your copyright(s), you may send Zilkr’s "Designated Copyright Agent", as identified hereinafter, written Notice of Infringement pursuant to the DMCA. This Notice of Infringement must contain the information specified below in the following format: (i) identify in sufficient detail the copyrighted work claimed to have been infringed; if multiple copyrighted works are covered by a single Notice of Infringement, provide a representative list of such works; (ii) identify in sufficient detail the material that is claimed to be infringing and information reasonably sufficient to permit Zilkr to locate the material (e.g., provide the uniform resource locator, "URL", of the material claimed to be infringing); (iii) provide information reasonably sufficient to permit Zilkr to contact you (e.g., a street address, telephone number, and email address if available); (iv) provide a statement that you have a good faith belief that the use of the copyrighted material in the manner described in the Notice of Infringement is not authorized by the copyright owner, its agent, or the law; (v) provide a statement, made under penalty of perjury, that the information provided in the Notice of Infringement is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and (vi) provide the physical or electronic signature of the copyright owner or someone authorized to act on the owner's behalf. Zilkr’s response to a proper Notice of Infringement will be to remove or disable access to the Content claimed to be infringing and notify the alleged infringer of your claim so he or she can submit a Counter Notice to Zilkr.
- Counter Notice. If your Content was removed or access was blocked and you have a good faith belief that it is not infringing on any copyrighted material, you may send Zilkr a written Counter Notice pursuant to Section 512 of the DMCA. The Counter Notice must contain the information specified below in the following format: (i) identify in sufficient detail the Content that Zilkr has removed or to which Zilkr has disabled access and the location of the material (e.g., the URL) before it was removed/disabled; (ii) provide your name, address, telephone number, and email address; (iii) a statement that you consent to the jurisdiction of the federal district court in which your address is located, and a statement that you will accept service of process from the person who provided notification of the alleged infringing activity; (iv) provide a statement, made under penalty of perjury, that you have a good faith belief that the material was removed/disabled as a mistake or misidentification of the material; and (v) provide your physical or electronic signature. If the Designated Copyright Agent receives your valid Counter Notice, Zilkr may restore your removed Content or cease disabling it within ten to fourteen (10-14) business days, unless Zilkr receives notice from the alleged copyright owner (who filed the initial Notice of Infringement) that said party has filed a court action seeking to stop your alleged infringement.
- General Notice Requirement. A Notice of Infringement or Counter Notice must be submitted to Zilkr’s Designated Copyright Agent by mail or email as set forth below:
- If by mail:
Zilkr Cloud Technologies, LLC
Attn: Notice of Infringement
2051 S Lamar Blvd.
Austin TX 78704
- If by email:
Subject Line: Notice of Infringement
- Failure to comply. Be advised that failure to comply with all of the above requirements may invalidate your Notice of Infringement or Counter Notice under the DMCA.
- Trademark Notice. You agree that in the event that Zilkr receives a written demand alleging that any of your Content infringes upon, dilutes, tarnishes, or otherwise violates a party’s trademark rights, Zilkr may in its sole discretion, remove or disable access to such Content until Zilkr receives either: (a) written confirmation from the party sending such demand that the demand is withdrawn or has been resolved or (b) you submit sufficient evidence to satisfactorily rebut the allegations contained in such demand, the adequacy of such evidence to be determined by Zilkr in Zilkr’s sole discretion and which Zilkr may reject for any reason without penalty or liability to you. In order for Zilkr to accept such rebuttal, you expressly acknowledge and agree that such rebuttal shall include the information set forth in Section XV hereinabove, except that the such information shall relate to the disputed trademark at issue rather than disputed copyrighted material and an express, irrevocable, and binding obligation pursuant to which you shall indemnify, defend, and hold harmless Zilkr from damages, costs, or expenses that Zilkr may incur, in any manner whatsoever, arising out of or in connection with the disputed Content and Zilkr’s restoration thereof. The procedures of the DMCA apply only to copyrighted works and expressly exclude any other forms of intellectual property rights, including any rights in trademarks; the process hereinabove is intended only to provide a convenient mechanism for addressing trademark disputes and does not, and shall not, be construed, as imposing any obligation on Zilkr under the DMCA with regards to response times or the like. Zilkr is under no obligation to restore access to any removed Content even if you provide the aforementioned rebuttal.
- Non-Solicitation of Employees and Contractors. Developer agrees and acknowledges that employee-client relationships are directly related to Zilkr’s goodwill and vital business interests and Zilkr’s employee and contractor relationships are directly related to Zilkr’s goodwill and vital business interests. Therefore, during the term of this Agreement and for two (2) years after the termination thereof, tolled during any violation of the this Section XVII of this Agreement, Developer shall not, directly or indirectly, whether through a third party or otherwise, recruit, solicit, invite, induce, or encourage any person or entity employed by or engaged as an independent contractor by Zilkr to accept an employment, independent contractor, or other business relationship with any person or entity other than Zilkr without Zilkr’s explicit prior written consent.
- Linked Sites. The Site, including, but not limited to the Developer Section, may include Linked Sites. Linked Sites are provided for convenience and information only. Zilkr does not control the availability and content of Linked Sites. Access and use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at Developer’ own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to that particular Linked Site.
- Security. Zilkr maintains the Platform in accordance with commercially reasonable industry standards to preserve the integrity and security of all information on the Platform from accidental loss and from unauthorized access, use, alteration, or disclosure. Zilkr cannot, however, ensure or warrant that third parties will never be able to defeat those measures or gain access to such information. Perfect information security does not exist and Developer accesses and uses the Site, the Developer Section, Developer’s Developer Account, and the Platform at Developer’s own risk.
- Reservation of Rights. Zilkr reserves all rights not expressly granted in this Agreement unless otherwise noted in writing by Zilkr.
- Changes to Site. Zilkr may discontinue or change any content, service, function, or feature of the Site, including, but not limited to, the Developer Section, at any time with or without notice.
- Changes to the Platform. Zilkr may discontinue or change any content, service, function, or feature of the Platform at any time with or without notice.
- Changes to Zilkr Services. Zilkr may discontinue or change any Zilkr service at any time with or without notice.
- Changes to Provider Relationships. Zilkr may discontinue or change any Provider relationship at any time with or without notice.
- Change of this Agreement. Zilkr may modify, alter, or otherwise update this Agreement at any time. Such modifications shall be effective immediately upon posting or notification. Developer is responsible for regularly reviewing this Agreement. Developer’s continued access to or use of the Platform or Zilkr services constitutes Developer’s agreement to all such modifications.
- Mutual Warranty. Each party represents and warrants that: (i) it has the right to enter into and fully perform the mutual covenants contemplated herein, consistent with this Agreement; (ii) there is no outstanding contract, commitment, or agreement to which it is a party that conflicts with this Agreement; (iii) it is not subject to any injunctions or settlement agreement with private or public parties that may limit its ability to comply with the terms of this Agreement; and (iv) it shall comply with all applicable laws and Regulations.
- Developer’s Warranty. Developer warrants that: (i) Developer is under no contractual commitments inconsistent with Developer’s obligation under this Agreement, such as non-compete agreements and proprietary protections; (ii) the integration of Developer’s App with the Platform shall be performed consistent with generally prevailing professional or industry standards; and (iii) Developer shall not use the Site, the Platform, any Zilkr service, or any Zilkr Tech to infringe any existing intellectual property right, violate any contractual right, violate the right of privacy, or constitute an invasion or infringement of any personal property right of any third party
- Disclaimer of Warranties. UNLESS OTHERWISE PROHIBITED BY LAW, YOU EXPRESSLY AGREE THAT YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE SITE, THE PLATFORM, ZILKR SERVICES, AND ANY AND ALL ZILKR TECH AND YOU USE THEM AT YOUR OWN RISK. THE SITE, THE PLATFORM, ZILKR SERVICES, AND ANY AND ALL ZILKR TECH ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE", "WITH ALL FAULTS" BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS, IMPLIED OR STATUTORY. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, ZILKR DISCLAIMS ALL REPRESENTATIONS, GUARANTEES, CONDITIONS, AND WARRANTIES WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS WITH REGARDS TO THE SITE, THE PLATFORM, ZILKR SERVICES, AND ANY AND ALL ZILKR TECH. WITHOUT LIMITING THE FOREGOING, ZILKR DOES NOT WARRANT THAT ANY DATA, CONTENT, FUNCTIONS, OR OTHER INFORMATION OFFERED ON OR THROUGH THE SITE, THE PLATFORM, OR ANY AND ALL ZILKR TECH, OR ANY THIRD PARTY SERVICE WILL MEET YOUR REQUIREMENTS, BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, OR BE ACCURATE, RELIABLE, CORRECT, UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, BUGS, TROJAN HORSES, HARMFUL OR MALICIOUS SOFTWARE, AUTOMATED AGENTS, OR PROGRAMMING ROUTINES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
- Limitation of Liability. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL ZILKR, OR ZILKR’S AFFILATES, OFFICERS, MANAGERS, MEMBERS, AGENTS, JOINT VENTURERS, EMPLOYEES, CONTRACTORS, AND SUPPLIERS (THE "DISCLAIMING PARTIES"), TO THE EXTENT PROHIBITED BY LAW, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOSS OF BUSINESS, PROFITS, REVENUES, MONEY, DATA, GOODWILL, OR REPUTATION, LOSS OF ANTICIPATED BUSINESS, PROFITS, REVENUES, OR GOODWILL, OR OTHER INTANGIBLE LOSSESS, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS, DAMAGE, OR INJURY OF ANY NATURE WHATSOEVER, ARISING OUT OF, IN CONNECTION WITH, RELATING TO, OR RESULTING FROM THIS AGREEMENT, ANY ZILKR TECH, DEVELOPER, DEVELOPER’S DESIGNATED AGENTS, DEVELOPER’S RELATIONSHIP WITH ANY PROVIDER, DEVELOPER’S RELATIONSHIP WITH ANY CUSTOMER, DEVELOPER’S RELATIONSHIP WITH ANY USER, DEVELOPER’S RELATIONSHIP WITH ANY OTHER DEVELOPER, DEVELOPER’S RELATIONSHIP WITH ANY OTHER THIRD PARTY, OR THE SERVICES CONTEMPLATED BY THIS AGREEMENT, HOWEVER ARISING, EVEN IF ZILKR OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES, WILL ANY OF THE DISCLAIMING PARTIES TO THE EXTENT PROHIBITED BY LAW BE LIABLE FOR FAILURE TO PROVIDE ANY SERVICES UNDER THIS AGREEMENT IF SUCH FAILURE IS DUE TO ANY CAUSE OR CONDITION BEYOND ZILKR’S REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT IN EITHER ITS SOVEREIGN OR CONTRACTUAL CAPACITY, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, SHORTAGES OF LABOR OR MATERIALS, FREIGHT EMBARGOES, UNUSUALLY SEVERE WEATHER, BREAKDOWNS, OPERATIONAL FAILURES, ELECTRICAL POWER FAILURES, COMMUNICATION FAILURES, UNAVOIDABLE DELAYS, THE ERRORS OR FAILURES OF THIRD PARTY SYSTEMS, OR OTHER SIMILAR CAUSES BEYOND ZILKR’S CONTROL.
IN ADDITION, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ANY OF THE DISCLAIMING PARTIES TO THE EXTENT PROHIBITED BY LAW BE LIABLE TO DEVELOPER FOR ANY THIRD PARTY CLAIM FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOSS OF BUSINESS, PROFITS, REVENUES, MONEY, DATA, GOODWILL, OR REPUTATION, LOSS OF ANTICIPATED BUSINESS, PROFITS, REVENUES, OR GOODWILL, OR OTHER INTANGIBLE LOSSESS, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS, DAMAGE, OR INJURY OF ANY NATURE WHATSOEVER, ARISING OUT OF, IN CONNECTION WITH, RELATING, OR RESULTING FROM DEVLOPER’S RELATIONSHIP WITH ANY PROVIDER, DEVELOPER’S RELATIONSHIP WITH ANY CUSTOMER, DEVELOPER’S RELATIONSHIP WITH ANY USER, DEVELOPER’S RELATIONSHIP WITH ANY OTHER DEVELOPER, DEVELOPER’S RELATIONSHIP WITH ANY OTHER THIRD PARTY, DEVELOPERS ACTIONS, DEVELOPER’S DESIGNATED AGENTS, PROVIDER’S ACTIONS, CUSTOMER’S ACTIONS, USER ACTIONS, ANY OTHER DEVELOPER’S ACTIONS, ANY OTHER THIRD PARTY’S ACTIONS, DEVELOPER’S APP, DEVELOPER’S INTEGRATION OF DEVELOPER’S APP WITH THE PLATFORM, DEVELOPER’S SERVICES, ANY OTHER DEVELOPER’S APP, ANY OTHER DEVELOPER’S INTEGRATION OF DEVELOPER’S APP WITH THE PLATFORM, ANY OTHER DEVELOPER’S SERVICES, ANY THIRD PARTY’S ACTIONS, ANY THIRD PARTY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM, DEVELOPER, DEVELOPER’S ACTION, DEVELOPER’S DEVELOPER ACCOUNT, PROVIDER, CUSTOMER, USER, OR THE INFORMATION CONTAINED THEREIN OR THEREON, OR DEVELOPER’S FAILURE TO USE OR IMPLEMENT SECURITY CONTROLS THAT ARE APPROPRIATE FOR THE PROTECTION OF DEVELOPER’S DEVELOPER ACCOUNT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification. DEVELOPER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS THE DISCLAIMING PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, COSTS, LOSSES, EXPENSES, TAX ASSESSMENTS, PENALTIES, INTEREST, AND DAMAGES, INCLUDING REASONABLE ATTORNEYS’ FEES AND EXPENSES, WHICH MAY HEREAFTER ARISE, DUE TO ANY AND ALL CLAIMS, SUITS, ACTIONS, AUDITS, INVESTIGATIONS, INQUIRIES, OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO: (a) DEVELOPER’S BREACH OF THIS AGREEMENT, (b) DEVELOPER’S ACCESS TO OR USE OF THE SITE, THE PLATFORM, ANY ZILKR SERVICE, AND ANY AND ALL ZILKR TECH; (C) ANY ACTUAL OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, OR OBLIGATIONS MADE BY DEVELOPER HEREIN; (C) DEVELOPER’S WILLFUL OR NEGLIGENT ACT OR OMISSION; (D) ANY THIRD PARTY’S ACCESS OR USE OF THE SITE, THE PLATFORM, ZILKR SERVICE, OR ZILKR TECH VIA DEVELOPER’S DEVELOPER ACCOUNT; AND (E) NEGLIGENCE OR WILLFUL MISCONDUCT OF DEVELOPER’S DESIGNATED AGENTS.
- Negligence. Developer is responsible for developing and implementing Developer’s App, integrating Developer’s APP(s) and API(s) with the Platform, and using the Developer Section and Platform in a safe and skillful manner under this Agreement and will be liable for Developer’s own negligence and the negligent acts of Developer’s Designated Agent(s). Zilkr does not have any right of control Developer and will not be charged with the responsibility of preventing risk to Developer or Developer’s staff or subcontractors. All development, implementation, and integration of the App with the Platform must be done at Developer’s risk.
- International Use. Zilkr makes no representation that the Site, the Platform, any Zilkr service, or any Zilkr Tech is appropriate or available for use in locations outside the U.S. If Developer chooses to access or use the Site, the Platform, any Zilkr service, or any Zilkr Tech from a location outside the U.S., Developer does so on Developer’s own initiative and Developer is responsible for compliance with local laws of such location.
- Maximum Restrictions of Time, Scope, and Geographic Area Intended. The parties hereby acknowledge and agree and acknowledge that the time, scope, and geographic area and other provisions of this Agreement have been specifically negotiated by the parties, and Developer specifically hereby agrees that such time, scope, and geographic areas and other provisions are reasonable under these circumstances. Developer further agrees that if, despite the express agreement of the parties to this Agreement, a court should hold any portion of this Agreement unenforceable for any reason, the maximum restrictions of time, scope, and geographic area reasonable under the circumstances, as determined by the court, will be substituted for the restrictions held unenforceable.
- Law and Venue. The parties agree that it is their intention and covenant that this Agreement, performance under this Agreement, any action at law or in equity arising out of or relating to this Agreement or Zilkr, and all suits and special proceedings relating to this Agreement or Zilkr, shall be construed in accordance with and under and pursuant to the laws of the State of Texas, without giving effect to any principles of conflicts of law. The parties further agree that it is their intention and covenant that any action at law or in equity arising out of or relating to this Agreement or Zilkr will be filed only in the Austin Division of the Western District of Texas or the state courts in and for Austin, Travis County, Texas, and each party hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action and expressly submit to extraterritorial service of process.
- Attorney Fees. In the event that Zilkr must initiate proceedings in connection with or for the enforcement of this Agreement, Zilkr shall be entitled to recover its cost of suit, including reasonable attorneys’ fees, both at trial and appellate level.
- Survivorship of Benefits. This Agreement shall be binding on and inure to the benefit of the respective parties and their executors, administrators, heirs, personal representatives, successors, and assigns.
- Benefit of Parties. This Agreement and the releases, warranties, indemnifications, and benefits herein runs to the benefit of all Zilkr’s parents, subsidiaries, affiliates, and their respective: (a) predecessors, successors, and assigns and (b) past and present attorneys, directors, members, managers, officers, representatives, shareholders, agents, employees, partners, and their respective heirs and legal and personal representatives.
- Waiver of Modification of Agreement. A waiver or modification of this Agreement or of any covenant, condition, or limitation in this Agreement shall not be valid unless in writing and executed by the party to be charged, and evidence of any waiver or modification shall not be offered into or received in evidence in any proceeding, mediation, arbitration, or litigation between the parties arising out of or affecting this Agreement or the right or obligations of any party under this Agreement, unless such purported waiver or modification is in writing, executed by the party to be charged. The parties further agree that the provisions of this Section XXXVI of this Agreement may not be waived except as set forth in this Agreement. The failure of Zilkr to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision, nor will it constitute condonation of any predicate breach of this Agreement
- Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that any provision of this Agreement is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
- Notices. All notices, requests, demands, consents, permissions, and other communications hereunder shall be in writing and shall be deemed received: (a) if by email, when transmitted to the email address to the following, and confirmation of delivery or receipt is received; or (b) if by overnight courier service or registered or certified mail or personal delivery, when received; provided that if the date of receipt hereunder is not a business day in the place of receipt, the notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt to the following.
- If to Zilkr:
Zilkr Cloud Technologies, LLC
Attn: Legal Notice
2051 S Lamar Blvd.
Austin TX 78704
Subject Line: Legal Notice
- If to Developer:
to the email address or mail address provided concurrently with this Agreement by the Agent who executed this Agreement.
- Notification of Legal Action. Developer shall immediately notify Zilkr of any current, impending, or potential legal actions against it by any third party for matters relating to this Agreement.
- Dispute Resolution.
- Mediation. Developer agrees that in the event that Developer has a controversy, claim, or dispute with Zilkr arising out of or relating to this Agreement, with Zilkr, or regarding any Zilkr Tech, Developer shall first submit such controversy, claim, or dispute to non-binding mediation in Austin, Travis County, Texas with a mediator who is mutually agreed upon by the parties. Any costs and fees associated with the mediation, excepting attorney fees, shall be shared equally by the parties. Each party shall bear responsibility for that party’s own attorney fees.
- Arbitration. If such non-binding mediation is unsuccessful in reaching a resolution between the parties and Developer continues to desire to seek legal remedy, Developer agrees that in lieu of any action at law or equity, Developer shall submit such controversy, claim, or dispute to binding arbitration in Austin, Travis County, Texas by a single arbitrator mutually agreed upon by the parties and, absent such agreement on an arbitrator, an arbitrator shall be appointed by the American Arbitration Association ("AAA"). Such arbitration shall be conducted in accordance with the then prevailing commercial arbitration rules of the AAA. Both parties hereby agree to abide by all decisions and awards rendered in an arbitration between the parties whether initiated by Developer in accordance with this Section XL of this Agreement or by Zilkr. Any decisions and awards rendered by an arbitrator in an arbitration between the parties shall be final and conclusive and may be entered in any court having jurisdiction thereof as a basis of judgment and of the issuance of execution for its collection. In any such arbitration, the arbitrator shall not have the right to award punitive damages or speculative damages to either party and shall not have the power to amend this Agreement and the arbitrator shall be required to follow applicable law.
- Confidentiality of Dispute Resolution. Developer hereby agrees that in the event of any negotiation, mediation, or arbitration between the parties, Developer, Developer’s counsel, and the mediator or arbitrator, shall treat the existence, content, and results of any negotiation, mediation, or arbitration as Confidential Information under Section XII of this Agreement notwithstanding any possible exception under Section XII(a) of this Agreement.. All proceedings and matters related to the mediation and arbitration under this Section XXL of this Agreement shall be subject to the confidentiality requirements of Sections XII(b)(i-ii) of this Agreement. Notwithstanding the foregoing, Developer may disclose such information to Developer’s legal counsel and any mediator or arbitrator involved in the proceedings, provided such counsel, mediator, or arbitrator is bound by confidentiality requirements no less restrictive than those of this Agreement.
- Jury Waiver. If for any reason the arbitration clause in Section XL(b) of this Agreement becomes not applicable, then Developer, to the fullest extent permitted by applicable law, hereby unconditionally and irrevocably waives all right to trial by jury as to any issue relating hereto in any action, proceeding, or counterclaim arising out of or relating to this Agreement or any other matter involving the parties hereto. DEVELOPER ACKNOWLEDGES THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, THAT DEVELOPER HAS HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF DEVELOPER’S CHOOSING, AND THAT THIS JURY WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
- Equitable Relief. The parties represent, warrant, and agree that Zilkr would be irreparably harmed by Developer’s conduct in violation of the terms of Sections VI, VII, VIII, XI, XII, XIII, XIV, or XVII, that the true extent of such harm would likely be impossible to ascertain or quantify, and monetary damages will not be an adequate remedy for any such conduct. As such, Developer acknowledges and agrees that Zilkr shall be entitled to equitable relief to protect its interest therein, including, but not limited to, injunctive relief preventing Developer from taking or continuing any action or conduct in violation of these Sections, to be issued by any court of competent jurisdiction upon a showing of any such conduct on the part of Developer. Notwithstanding any other provisions of this Agreement, such action by Zilkr shall not require any conditions precedent, including, but not limited to, first submitting such to the dispute resolution methods listed in Section XL of this Agreement.
- Liquidated Damages. The parties agree and acknowledge that the terms of Sections VI, VIII, XI, XII, and XIII of this Agreement are directly related to Zilkr’s goodwill and vital business interests and that breach of any of these Sections of this Agreement would cause Zilkr significant and irreparable injury, the degree of which may be difficult, if not impossible, to ascertain or quantify. Accordingly, in addition to any other remedy, Developer hereby represents, warrants, and covenants that Zilkr shall be entitled to elect liquidated damages in the amount of ONE MILLION U.S. DOLLARS ($1,000,000) in the event that Developer violates any of these Sections of this Agreement. In the event of such election, Developer represents, warrants, and covenants that these liquidated damages are a fair and accurate estimate of Zilkr’s actual damages resulting from such a breach and shall not be construed as penalty or punitive damages
- Assignment. Your rights, licenses, and obligations under this Agreement may not be transferred or assigned by you, but may be assigned by Zilkr without restriction. Any assignment attempted to be made in violation of the terms of this Agreement shall be null and void ab initio.
- Survival. Any obligations which expressly or by their nature are to continue after termination, cancellation, or expiration of this Agreement shall survive and remain in effect after such happening.
- Relationship of the Parties. Both parties to this Agreement are independent contractors for all purposes. This Agreement creates no agency, partnership, joint venture, trusteeship, or employee-employer relationship between Developer and Zilkr. In Developer’s capacity as an independent contractor, Developer agrees and represents, and Zilkr agrees, as follows: (a) Neither party has the authority to bind the other party or incur any obligation on the other party’s behalf, or represent, cause, or allow to be represented, encourage, aid, or abet any other third party in the making of representations that such third party possesses any such authority in any capacity other than as specified in this Agreement; (b) Developer is an independent contractor and shall not be deemed an employee of Zilkr; and (c) all development of any Developer App(s), implementation of any Developer App(s), and integration of any Developer App(s) with the Platform shall be performed by Developer under the sole supervision, management, direction, and control of Developer in accordance with the specifications in this Agreement.
- Contact Information. Any comments, complaints requests for further information, or notification required by this Agreement can be directed to email@example.com