Welcome to Zilkr! Zilkr is based on a simple idea… communications is 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, API enablement and an optional Developer program as a service. The following terms of use agreement (the “Agreement”) governs Visitor access and use of www.zilkr.io (the “Site”) the online presence of Zilkr Cloud Technologies, LLC d/b/a Zilkr (“Zilkr”, “we”, or “us”).
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU (“YOU”, “YOUR”, or “VISITOR”) AND ZILKR AND GOVERNS YOUR ACCESS TO AND USE OF THE SITE AND YOUR RELATIONSHIP WITH ZILKR AS A VISTOR TO THE SITE.
BY ACCESSING OR USING 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 AGREEEMENT.
I. Eligibility.
By accessing and using the Site, 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 and agree to this Agreement; 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; and f. you have not been previously suspended or removed from the Site, the Developer Section, or the Provider Section.
II. Definitions.
“Affiliate” means any party related to Zilkr by ownership or contractual agreement.
“API” means an application programming interface.
“App” means a software application and/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.
“Developer” means someone who has registered with Zikr and agreed to the Developer Agreement in order to access the Developer Section of the Site.
“Developer Section” means the portion of the Site that allows Developers to develop and list Apps with Zilkr.
“Linked Sites” means links or references to other websites or services.
“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.
“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.
“Share” means to transfer information via the Site or Platform.
“Visitor” means an individual who accesses and/or uses the Site.
“Visitor Content” means any Content Shared by Visitors.
“Visitor Data” means personally identifiable information provided by or collected from a Visitor.
“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.
III. Privacy Policy.
Zilkr respects your privacy and is committed to protecting your personally identifiable information. All use of such information is governed in accordance with our Privacy Policy, which is hereby incorporated into this Agreement by reference. Please read this notice carefully for information related to Zilkr’s collection, use, and disclosure of your personally identifiable information.
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. Provider Section.
In order to access and use the Provider Section, you must register with Zilkr and agree to the Provider Agreement. You hereby agree 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.
VI. Services.
As a Visitor, Zilkr provides you with the ability to access and use the Site to learn about Zilkr, Zilkr’s services, register with Zilkr and agree to the Developer Agreement in order to access the Developer Section of the Site, register with Zilkr and agree to the Provider Agreement in order to access the Provider Section of the Site, and contact and Share your Content with Zilkr via the Site. 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.
VII. Visitor Responsibilities.
You represent, warrant, and covenant that you shall comply with all the terms and conditions of this Agreement.
VIII. 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. take any action that imposes an unreasonable or disproportionately large load on the Site; d. modify, edit, copy, reproduce, create Derivative Works, or reverse engineer, alter, enhance, use, or exploit the Site or any other Zilkr Tech for any purposes other than those specifically permitted by this Agreement; e. 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 allowed by agreement with Zilkr; f. attempt to decipher, decompile, disassemble, or reverse engineer any Zilkr Tech; g. 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; h. interfere or attempt to interfere with the Site, Platform, any other Zilkr Tech, or any Zilkr service; i. 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 you and Zilkr; j. work around any of the technical limitations, use any tool to enable features or functionalities that are otherwise disabled on the Site; k. 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; l. use the Site, the Platform, any Zilkr service, or any other Zilkr Tech in a manner that is not expressly permitted in this Agreement. m. attempt to gain unauthorized access to the Platform or Site; n. use the Site or any Content on the Site in a competitive manner with Zilkr.
IX. 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 service, or any Zilkr Tech, including, but not limited to, any and all technological barriers.
X. Intellectual Property.
“Zilkr Tech”
All Zilkr Tech, including, but not limited to the Site, is owned, controlled, or licensed by Zilkr and is protected by copyright, as a trademark, or by other intellectual property rights. You agree that you shall acquire no rights in any Zilkr Tech unless otherwise noted in this Agreement or in writing by Zilkr. You 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 you other the limited licenses hereinunder.
“Visitor’s License to Access and Use.”
Zilkr hereby grants to you a limited, personal, non- exclusive, non-assignable, non-transferable, fully and freely revocable license to access and use the Site and the Content on the Site for the purpose of informing yourself about Zilkr and Zilkr’s services. Zilkr hereby grants to you a limited, personal, non-exclusive, non-assignable, non-transferable, fully and freely revocable license to access and use the Site and the Content on the Site for the purpose of contacting Zilkr and Sharing your Content with Zilkr. Zilkr hereby grants to you a limited, personal, non- exclusive, non-assignable, non-transferable, fully and freely revocable license to access and use the Site and the Content on the Site for the purpose of registering with Zilkr as a Developer and agreeing to the Developer Agreement in order to access the Developer Section of the Site. Zilkr hereby grants to you a limited, personal, non-exclusive, non-assignable, non-transferable, fully and freely revocable license to access and use the Site and the Content on the Site for the purpose of registering with Zilkr and agreeing to the Provider Agreement in order to access the Provider Section of the Site. You hereby acknowledge and agree that with the exception of these limited licenses you have 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 you, if you breach any of the terms and conditions of this Agreement or as a Developer breach any of the terms and conditions of the Developer Agreement or as a Provider breach any of the terms and conditions of the Provider Agreement and terminates immediately upon
“Your License to Zilkr.”
By sharing your Content with Zilkr via the Site, you thereby grant Zilkr a paid-in- full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Share your Content via the Site to Zilkr as well as a paid-in- full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and 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 your Content 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.
XI. Derivative Work.
To the extent that you create 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 you any right in any such Derivative Work. You hereby irrevocably assign 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: a. 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; b. goodwill associated with the Derivative Work; and c. 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. You further assign 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 XI of this Agreement does not provide Zilkr with full ownership, rights, titles, and interests in and to the Derivative Work, you hereby grant 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, you hereby assign and transfer any and all moral rights in any Derivative Work. You agree 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 you agree 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 your heirs at law, you hereby disclaim any and all such moral rights.
XII. Unsolicited Suggestions.
Zilkr welcomes any and all feedback, suggestions, and recommendations. By submitting any feedback, suggestions, or recommendations to Zilkr via the Site or elsewise, you agree 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 you thereby grant 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. You further agree 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 your rights.
XIII. Linked Sites.
The Site may include Linked Sites. Linked Sites are provided for your convenience and information only. Zilkr does not control the availability and content of Linked Sites. Access to and use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at your own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to the operator of the particular Linked Site.
XIV. Security.
Zilkr maintains the Site and the Content thereon, including, but not limited to any personally identifiable information you Share via the Site, in accordance with commercially reasonable industry standards to preserve the integrity and security thereof. Zilkr has implemented technical and organizational measures designed to secure such information 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 Content. Perfect information security does not exist and you use the Site at your own risk.
XV. Reservation of Rights.
Zilkr reserves all rights not expressly granted in this Agreement unless otherwise noted in writing by Zilkr.
XVI. Changes to the Site.
Zilkr may discontinue or change any content, service, function, or feature of the Site at any time with or without notice.
XVII. Changes to Zilkr Services.
Zilkr may discontinue or change any services provided by Zilkr at any time with or without notice.
XVIII. 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. You are responsible for regularly reviewing this Agreement. Your continued access to or use of the Site constitutes your agreement to all such modifications.
XIX. Warranties.
“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.
“Disclaimer of Warranties.”
UNLESS OTHERWISE PROHIBITED BY LAW, YOU EXPRESSLY AGREE THAT YOU ASSUME ALL RESPONSIBILITY FOR YOUR USE OF THE SITE, ANY AND ALL LINKED SITES, ANY AND ALL ZILKR SERVICES, AND ANY AND ALL ZILKR TECH AND YOU USE THEM AT YOUR OWN RISK. THE SITE, ANY AND ALL 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, ANY AND ALL 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, ANY AND ALL ZILKR SERVICES, AND ANY AND ALL ZILKR TECH 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.
XX. 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, THE SITE, ANY AND ALL ZILKR SERVICES, ANY AND ALL LINKED SITES, ANY AND ALL ZILKR TECH, ANY THIRD PARTY CLAIM, YOUR RELATIONSHIP WITH ANY DEVELOPER, PROVIDER, OR ANY OTHER THIRD PARTY, OR ANY OTHER INTERACTIONS WITH ZILKR, INCLUDING, BUT NOT LIMITED TO, YOUR USE, YOUR INABILITY TO USE, OR THE UNAVAILABILITY OF THIS AGREEMENT, THE SITE, ANY AND ALL ZILKR SERVICES, ANY AND ALL LINKED SITES, AND ANY AND ALL ZILKR TECH, 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.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ANY OF THE DISCLAIMING PARTIES TO THE EXTENT PROHIBITED BY LAW BE RESPONSIBLE 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, ANY THIRD PARTY CLAIM, 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 ANY THIRD PARTY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SITE.
IN ADDITION, UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL ANY OF THE DISCLAIMING PARTIES TO THE EXTENT PROHIBITED BY LAW BE RESPONSIBLE 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 ANY AND ALL: a. DELAYS, DISRUPTIONS, CESSATIONS, OR INTERRUPTIONS IN THE SITE, ANY AND ALL ZILKR SERVICES, AND ANY AND ALL ZILKR TECH b. VIRUSES, BUGS, TROJAN HORSES, WORMS, OR OTHER HARMFUL OR MALICIOUS SOFTWARE, AUTOMATED AGENTS, OR PROGRAMMING ROUTINES OBTAINED BY ACCESSING OR USING THE SITE, ANY AND ALL ZILKR SERVICES, AND ANY AND ALL ZILKR TECH; OR c. GLITCHES, BUGS, ERRORS, OR INACCURACIES, OR OMMISSIONS OF ANY KIND IN THE SITE, ANY AND ALL ZILKR SERVICES, AND ANY AND ALL ZILKR TECH OR ANY CONNECTED ACCOUNT OR IN THE INFORMATION AND GRAPHICS OBTAINED FROM THEM; d. THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES.
WITHOUT LIMITING ANY OF THE FOREGOING, THE DISCLAIMING PARTIES FULL CUMULATIVE LIABILITY TO YOU SHALL BE LIMITED TO DIRECT DAMAGES AND IN ALL EVENTS SHALL NOT EXCEED IN THE AGGREGATE AMOUNT OF ONE U.S. DOLLAR ($1.00).
THE LIMITATION OF LIABILITY IN THIS SECTION XX OF THIS AGREEMENT APPLIES REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS. THE LIMITATIONS APPLY EVEN IF ZILKR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED. IF YOU ARE A CALIFORNIA RESIDENT YOU AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” ZILKR RESERVES THE RIGHT TO MODIFY THIS AGREEMENT AND ITS POLICIES AT ANY TIME CONSISTENT WITH THE PROVISIONS OUTLINED HEREIN.
XXI. Indemnification.
YOU AGREE 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. YOUR BREACH OF THIS AGREEMENT, b. YOUR ACCESS TO OR USE OF THE SITE, ANY AND ALL ZILKR SERVICES, ANY AND ALL LINKED SITES, AND ANY AND ALL ZILKR TECH; c. ANY ACTUAL OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY, OR OBLIGATIONS MADE HEREIN; OR d. YOUR WILLFUL OR NEGLIGENT ACT OR OMISSION.
XXII. 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 you choose to access or use the Site, the Platform, any Zilkr service, or any Zilkr Tech from a location outside the U.S., you do so on your own initiative and you are responsible for compliance with local laws of such location.
XXIII. Law and Venue.
You agree that any action at law or in equity arising out of or relating to this Agreement, the Site, any and all Zilkr services, any and all Zilkr Tech, or Zilkr, and all suits and special proceedings relating to this Agreement, the Site, any and all Zilkr services, any and all Zilkr Tech, 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. You further agree that any action at law or in equity arising out of or relating to this Agreement, the Site, any and all Zilkr services, any and all Zilkr Tech, or Zilkr, and all suits and special proceedings relating to this Agreement, the Site, any and all Zilkr services, any and all Zilkr Tech, 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 you hereby consent and submit 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.
XXIV. 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.
XXV. 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.
XXVI. 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.
XXVII. 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 XXVII 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
XXVIII. Severability.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any of the terms 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.
XXIX. 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; 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, or c. by posting to the Site.
If to Zilkr:
Zilkr Cloud Technologies, LLC
Attn: Legal Notice
PO Box 93173
Austin, TX 78709, USA
Email: legal@zilkr.io
Subject Line: Legal Notice
If to you:
by posting to the Site.
XXX. Equitable Relief.
The parties represent, warrant, and agree that Zilkr would be irreparably harmed by your conduct in violation of this Agreement, 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, you acknowledge and agree that Zilkr shall be entitled to equitable relief to protect its interest therein, including, but not limited to, injunctive relief preventing you from taking or continuing any action or conduct in violation of this Agreement, to be issued by any court of competent jurisdiction upon a showing of any such conduct on your part.
XXXI. 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.
XXXII. Hierarchy of Documents.
This Agreement hereby incorporates Zilkr’s Privacy Policy, Developer Agreement, and Provider Agreement. In the event of a direct conflict between the provisions of this Agreement and the provisions of the Privacy Policy, Developer Agreement, and Provider Agreement, the provisions of the Provider Agreement, Developer Agreement, this Agreement, and Privacy Policy in that order of priority, will control.
XXXIII. 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.
XXXIV. Relationship.
Zilkr is an independent contractor for all purposes. This Agreement creates no agency, partnership, joint venture, trusteeship, or employee-employer relationship between you and ZIlkr unless otherwise noted herein or elsewhere in writing by Zilkr.
XXXV. Construction.
The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof. Any capitalized term in this Agreement shall have the meaning herein defined. Any capitalized term not herein defined, shall have the meaning given to such term in the Provider Agreement, the Developer Agreement, and Privacy Policy in that order of priority. Any capitalized term not defined in any of the afore mentioned documents shall be given the definition common to such term in the common telecommunications parlance of the Austin, TX telecommunications community. Any hyperlinked term in this Agreement shall refer to the hyperlink. Any term in this Agreement written wholly in small capitalized letter shall be deemed a legal citation to relevant statutory law or a name of a third party entity. Additionally, throughout this Agreement when context requires, capitalized terms, singular nouns, and pronouns include the plural and possessive.
XXXVI. Contact Information.
Any comments, complaints requests for further information, or notification required by this Agreement can be directed to legal@zilkr.io
Effective as of June 15, 2016