Effective as of July 23, 2016
Welcome to Zilkr! Zilkr is based on a simple idea… phone numbers are way more powerful when they come with APIs. The Zilkr API platform (the "Platform") allows a company that provides, resells, or manages communication services ("Provider") to become integration-friendly with those software applications that their customers ("Customers") demand in today’s market, by providing Provider with an API and Developer program as a service.
THIS PROVIDER AGREEMENT (THE AGREEMENT") IS A LEGALLY BINDING CONTRACT BETWEEN PROVIDER AND ZILKR CLOUD TECHNOLOGIES, LLC D/B/A ZILKR ("ZILKR", "WE", "US", OR "OUR") AND GOVERNS PROVIDER’S ACCESS TO AND USE OF THE ZILKR PLATFORM AND PROVIDER’S RELATIONSHIP WITH ZILKR AS A PROVIDER.
BY AGREEING TO THIS AGREEMENT OR ACCESSING OR USING THE PLATFORM, THE INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF PROVIDER ("AGENT") REPRESENTS, WARRANTS, AND COVENANTS THAT AGENT HAS READ AND UNDERSTOOD THIS AGREEMENT AND THAT AGENT AND PROVIDER BOTH AGREE TO BE BOUND BY THE TERMS AND CONDITIONS IN THIS AGREEMENT.
I. Eligibility.By agreeing to this Agreement or accessing or using the Platform or any Zilkr Tech therein, Agent represents and warrants that: (a) Agent has reached the age of majority in the legal jurisdiction from which Agent is accessing this Agreement and the Platform; (b) Agent has the authority and capacity to enter into this Agreement on behalf of Provider; (c) Agent has read and understands this Agreement; (d) Agent is legally entitled to enter into this Agreement on behalf of Provider; (e) it is the intent of Agent to enter into this Agreement on behalf of Provider and Provider and Agent agree to abide by this Agreement; (f) neither Agent nor Provider have been previously suspended or removed from the Site, the Provider Section of the Site, or the Platform; (g) Agent is not listed on any U.S. Government list of prohibited or restricted parties; (h) Agent will not use the Provider Section of the Site, the Platform, any Apps, 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 Agent provides to Zilkr is current, true, accurate, supportable, and complete, and that Provider will continue to keep such information current and correct.
IV. Developer Section. In order to access and use the Developer Section of the Site, you must register with Zilkr and agree to the Developer Agreement. You hereby agree that you will not access or use the Developer Section of the Site without reading and agreeing to the Developer Agreement or allow others access to the Developer Section of the Site unless they are bound by terms no less onerous or restrictive and no more permissive than those found in the Developer Agreement.
V. Services As part of and in accordance with this Agreement, Zilkr may provide Provider with one or more of the following services:
VI. Provider Responsibilities. Provider represents, warrants, and covenants that: (a) Provider shall comply with all the terms and conditions of this Agreement; (b) Provider shall ensure that all of Provider’s Designated Agents are bound by terms and conditions no less onerous or restrictive and no more permissive than those in this Agreement; (c) Provider shall use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and Provider’s Provider Account, and notify Zilkr promptly of any such unauthorized access or use that comes to Provider’s attention; (d) Provider shall use the Platform, only in accordance with all Regulations, this Agreement, and Zilkr policies; (e) Provider shall bear the responsibility for granting any sublicense, access to, and use of the Platform or Provider’s Provider Account to any Designated Agent; (f) Provider shall immediately notify Zilkr of any actual or suspected breach of security or unauthorized use of the Platform or Provider’s Provider Account; (g) any and all Designated Agents given access to Provider’s Provider Account shall be designated by Provider and vested by Provider with the authority to use the Provider Account to connect with the Platform, and legally bind Provider; (h) Provider bears all responsibility for the actions of Provider’s Designated Agents in relation to this Agreement, Provider’s Provider Account, the Site, the Platform, and Zilkr’s services; (i) the information that Provider provides to Zilkr is current, true, accurate, supportable, and complete, and that Provider will continue to keep such information current and correct; and (j) Provider bears responsibility for all actions originating from Provider’s Provider Account.
VII. Payment of Fees Provider shall pay fees in accordance as listed in this Section VII of this Agreement. All fees shall be invoiced monthly and are based on monthly periods that begin on the Effective Date. Invoices will be due and payable fifteen (15) days after the date of such invoice (i.e. net-fifteen (15)). Except as otherwise specified herein or the individual SOW, fee payment obligations are non-cancelable and all fees paid are nonrefundable after thirty (30) days from the date of the invoice.
VIII. Third Parties. Zilkr’s Platform allows Provider to connect with Developers and provide Developers’ Apps to Provider’s Customers. However, any terms and conditions between Provider and Developers and such Developers and Customers are not governed by this Agreement. Provider hereby acknowledges that this Agreement is between Provider and Zilkr, not any third party, including, but not limited to, Developers and Provider’s Customers, and that Zilkr is only responsible for the Platform and Zilkr’s services, not the services provided by any third party, including, but not limited to, Developers. Provider’s use of the Platform and Zilkr’s services may be subject to separate agreements Provider enters into with such third parties. Provider agrees to comply with all applicable agreements with such third parties when using the Platform and Zilkr’s services. Provider hereby represents, warrants, and agrees that Zilkr shall bear no responsibility for the products and services provided by third parties to Provider or Provider’s Customers. Each Developer is responsible for any and all support or claims regarding such Developer’s App.
IX. Prohibited Activities. Provider hereby expressly represents and warrants that Provider shall not: (a) breach this Agreement; (b) induce any other party to breach an agreement with Zilkr; (c) induce any other party to breach an agreement with Zilkr; (d) use or attempt to use the Site, the Platform, any other Zilkr Tech, or any Zilkr service to circumvent or breach or attempt to circumvent or breach any Regulation; (e) submit any information to Zilkr that is not true, complete, or accurate; (f) allow any other person other than Provider’s Designated Agents access or use to Provider’s Provider Account; (g) take any action that imposes an unreasonable or disproportionately large load on the Site or the Platform; (h) modify, edit, copy, reproduce, create Derivative Works, or reverse engineer, alter, enhance, use, or exploit the Site, the Platform, or any other Zilkr Tech for any purposes other than those specifically permitted by this Agreement; (i) use any bot, spider, scraper, data miner, or automated agent to gain access to or use any information on the Site, the Platform, any other Zilkr Tech, or any Zilkr service, except as otherwise authorized by agreement between Provider and Zilkr; (j) attempt to decipher, decompile, disassemble, or reverse engineer the Platform or any Zilkr Tech; (k) 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 Site, the Platform, any other Zilkr Tech, or any Zilkr service; (l) interfere or attempt to interfere with the Site, the Platform, any other Zilkr Tech, or any Zilkr service; (m) 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 Provider and Zilkr; (n) work around any of the technical limitation of the Site, the Platform, any other Zilkr Tech, or any Zilkr service or use any tool to enable features or functionalities that are otherwise disabled on the Site, the Platform, any other Zilkr Tech, or any Zilkr service; (o) perform or attempt to perform any actions that would interfere with the normal operation of the Site, the Platform, any other Zilkr Tech, or any Zilkr service; (p) transfer, assign, delegate, sell, resell, lease, license, sublicense, or otherwise make available Provider’s Provider Account in any manner not expressly permitted by this Agreement; (q) remove, alter, or obscure any Zilkr proprietary or copyright notices; or (r) use Provider’s Provider Account, the Site, the Platform, any Zilkr service, or any Zilkr Tech in a manner that is not expressly permitted in this Agreement.
X. Customer Service Issues Provider is solely responsible for any and all Customer service issues and interactions with Customers.
XI. 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 the first (1st) of the month subsequent to either party’s provision of thirty (30) days’ notice of such intent to terminate this Agreement in accordance with this Agreement.
XII. 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.
XIII. Intellectual Property.
XIV. "Confidential Information" Zilkr’s Confidential Information specifically includes, but is not limited to, the source code for the Platform and the Custom Integration Kit. Provider’s Confidential Information specifically includes, but is not limited to, Customer Data and Provider’s documentation, specifications, and APIs disclosed to Zilkr for the development and implementation of those Custom Integrations for Provider in accordance with Section V(a) of this Agreement. Both parties hereby represent, warrant, and acknowledge that the exchange of such Confidential Information is necessary for the purposes of this Agreement.
XV. Derivative Work. To the extent that Provider 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 Provider any right in any such Derivative Work. Provider 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. Provider 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 XV of this Agreement does not provide Zilkr with full ownership, rights, titles, and interests in and to the Derivative Work, Provider hereby grants 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, Provider hereby assigns and transfers any and all moral rights in any Derivative Work. Provider 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 Provider 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 Provider’s heirs at law, Provider hereby disclaims any and all such moral rights.
XVI. 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, Provider 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 Provider thereby grants to 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. Provider 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 Provider’s rights.
XVII. Non-Solicitation of Employees and Contractors. Provider 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, Provider 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.
XVIII. 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 Provider accesses and uses the Site, the Provider Section, Provider’s Provider Account, and the Platform at Provider’s own risk.
XIX. Reservation of Rights. The parties reserve all rights not expressly granted in this Agreement unless otherwise noted in writing by Zilkr.
XX. Changes to Developer Relationships. Zilkr may discontinue or change any Developer relationship at any time with or without notice.
XXI. Changes to Apps. Zilkr is not responsible for the discontinuation of a service or feature of any App by any Developer, including, but not limited to, the discontinuation of any App by any Developer.
XXII. Change of this Agreement. Zilkr may modify, alter, or otherwise update this Agreement at any time provided Zilkr provides Provider at least thirty (30) days’ notice. Such modifications shall be effective immediately upon posting or notification. Provider is responsible for regularly reviewing this Agreement. Provider’s continued access to or use of the Platform or Zilkr services constitutes Provider’s agreement to all such modifications.
XXIII. Warranties. Each party represents and warrants that: (a) it has the right to enter into and fully perform the mutual covenants contemplated herein, consistent with this Agreement; (b) there is no outstanding contract, commitment, or agreement to which it is a party that conflicts with this Agreement; (c) 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; (d) it shall comply with all applicable laws and regulations; and (e) the individual signing on behalf of such party has the authority to bind such party to the terms and conditions of this Agreement. ALL SERVICES CONTEMPLATED BY THIS AGREEMENT 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.
XXV. Indemnification. PROVIDER 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) PROVIDER’S BREACH OF THIS AGREEMENT, (B) PROVIDER’S ACCESS TO OR USE OF THE SITE, THE PLATFORM, AND ANY AND ALL ZILKR TECH; (C) ANY ACTUAL OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, OR OBLIGATIONS MADE BY PROVIDER HEREIN; (C) PROVIDER’S WILLFUL OR NEGLIGENT ACT OR OMISSION; (D) ANY THIRD PARTY’S ACCESS OR USE OF THE PLATFORM, ZILKR SERVICE, OR ZILKR TECH VIA PROVIDER’S PROVIDER ACCOUNT; AND (E) NEGLIGENCE OR WILLFUL MISCONDUCT OF PROVIDER’S AGENT OR DESIGNATED AGENTS.
XXVI. 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 Provider chooses to access or use the Site, the Platform, any Zilkr service, or any Zilkr Tech from a location outside the U.S., Provider does so on Provider’s own initiative and Provider is responsible for compliance with local laws of such location.
XXVII. 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 Provider specifically hereby agrees that such time, scope, and geographic areas and other provisions are reasonable under these circumstances. Provider 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.
XXVIII. 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.
XXIX. Attorney Fees. If any action at law or in equity is brought to enforce or interpret the provisions of this Agreement, the prevailing party in such action shall be awarded its reasonable attorneys’ fees and costs incurred.
XXX. 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.
XXXI. 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.
XXXII. 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 XXXII of this Agreement may not be waived except as set forth in this Agreement. The failure of either party 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.
XXXIII. 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.
XXXIV. 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.
XXXV. Notification of Legal Action. Either party shall immediately notify the other party of any current, impending, or potential legal actions against it by any third party for matters relating to this Agreement.
XXXVI. Dispute Resolution.
XXXVII. Equitable Relief. The parties represent, warrant, and agree that Zilkr would be irreparably harmed by Provider’s conduct in violation of the terms of Sections IX, XIII, XIV, XV, XVI, 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, Provider acknowledges and agrees that Zilkr shall be entitled to equitable relief to protect its interest therein, including, but not limited to, injunctive relief preventing Provider 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 Provider. 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 XXXVII of this Agreement.
XXXVIII. Liquidated Damages. The parties agree and acknowledge that the terms of Sections IX(g-m), XIII, XIV, XV, XVI, and XVII 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, Provider 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 Provider violates any of these Sections of this Agreement. In the event of such election, Provider 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.
XXXIX. Assignment. Provider’s rights, licenses, and obligations under this Agreement may not be transferred or assigned by Provider, 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.
XLI. 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.
XLII. 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 Provider and Zilkr.
XLIV. Contact Information. Any comments, complaints requests for further information, or notification required by this Agreement can be directed to firstname.lastname@example.org