ZILKR PROVIDER AGREEMENT

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.

II.      Definitions.

  1. “Affiliate” means any party related to Zilkr by ownership or contractual agreement.
  2. “API” means an application programming interface.
  3. “App” means a software application or a software integration to an application created by a Developer to work with the Zilkr Platform.
  4. “Confidential Information” means any confidential or proprietary information, intellectual property, data, or material, whether tangible or intangible regardless of the form or medium in which it is maintained or in whatever form or medium provided, which either party specifically designates as confidential or proprietary at the time of disclosure or that should reasonably be understood to be confidential to the disclosing party by the receiving party 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.
  5. “Content” means any intellectual property, data, or communications that is Shared via the Platform.
  6. “Custom Build” means any Zilkr Tech custom built at the behest of Provider and licensed to Provider in accordance with the terms of this Agreement as may be amended by any supplemental agreement between Zilkr and Provider.
  7. “Custom Integration” means the set of custom integration connectors to those Provider API Servers designated by Provider.
  8. “Custom Integration Kit” means such documentation, specifications, and information developed by Zilkr to allow Provider to develop and implement the Custom Integration.
  9. “Customer” means businesses and users that have an existing direct or indirect relationship with the Provider for various services offered by Provider.
  10. “Customer Data” means a Customer’s name, email address, and phone number.
  11. “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. Derivative Work specifically excludes APIs, Customer Data, and intellectual property provided to Zilkr by Provider for the purposes of this Agreement.
  12. “Designated Agents” means those employees and third party contractors of Provider who have been designated authority by Provider to have access and to use the Platform and Zilkr Services and are bound by terms and conditions regarding the access and use of the Platform and Zilkr Services no less onerous or restrictive and no more permissive than those binding Provider in accordance with this Agreement.
  13. “Developer” means someone who has registered with Zikr and agreed to the Developer Agreement in order to access the Developer Section of the Site.
  14. “Developer Section” means the portion of the Site that allows Developers to develop and list Apps with Zilkr.
  15. “Event” means a unit of Provider generated activity or App generated activity Shared with the Platform.
  16. “Effective Date” means the date that Provider agrees to this Agreement as recorded by the Site.
  17. “Linked Sites” means links or references to other websites or services.
  18. “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.
  19. “Platform” means the API platform and portal site developed and operated by Zilkr.
  20. “Provider” means a company that provides, resells, or manages communication services.
  21. “Provider Account” means Provider’s unique account on the Platform accessible via the Provider Section of the Site.
  22. “Provider API Server” means an internet protocol address or hostname of a Provider system with which a Custom Integration interworks.
  23. “Provider Section” means the portion of the Site that allows Provider to access the Platform.
  24. “Regulation” means all applicable laws, statutes, regulations, ordinances, rules, orders, decrees, or rulings as set forth by any Regulatory Authority.
  25. “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., Provider’s home jurisdiction, the jurisdiction of the place from which Provider accesses the Site, the Platform, or any other Zilkr Tech, or that has international or transnational jurisdiction.
  26. “REST API” means a representational state transfer API.
  27. “SDK” means software development kit.
  28. “Share” means to transfer information via the Platform.
  29. “Transaction” means each Sharing of an Event by the Platform with an App or Provider.
  30. “Transaction Data” means any data collected by the Platform, excluding Customer Data.
  31. “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.
  32. “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, any and all Custom Integrations, any and all Custom Builds, Transactional Data, and any and all Zilkr trademarks, service marks, trade secrets, copyrights, patents, programs, and processes.

III.      Terms of Use  Access to and use of the Site are governed by Zilkr’s Terms of Use.

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:

  1. Custom IntegrationCustom Integration is necessary in order for Zilkr to provide Provider certain general services. Once the Custom Integration process is complete, Zilkr effectively acts as a non-exclusive Provider API for all phone numbers associated with the Provider API Servers integrated with the Platform. Provider may elect to either develop and implement such Custom Integration or have Zilkr develop and implement such Custom Integration on Provider’s behalf. In the event that Provider elects to develop and implement such Custom Integration, Zilkr shall provide Provider with such documentation, specifications, and information developed by Zilkr for such purpose (the “Custom Integration Kit”), which shall be treated as Confidential Information by Provider in accordance with Section XIV of this Agreement, and Provider shall bear responsibility for maintaining and hosting such Custom Integration. In the event that Provider elects to have Zilkr develop and implement such Custom Integration for Provider, Provider must designate such Provider API Servers for which Zilkr shall develop and implement the Custom Integration and must provide Zilkr access to the such Provider API Servers, documentation, specifications, APIs, and other intellectual property as deemed necessary by Zilkr to develop and implement the Custom Integration, which shall be treated as Confidential Information by Zilkr in accordance with Section XIV of this Agreement and used solely for the purposes of this Agreement, and Zilkr shall maintain and host such Custom Integration. If Zilkr deems that the development and implementation of the Custom Integration for Provider is commercially unreasonable after a good faith effort to develop and/or implement the Custom Integration, Zilkr may, in Zilkr’s sole discretion, terminate this Agreement immediately upon notice to Provider.
  2. General ServicesZilkr shall provide Provider with: (i) access to the Provider Section of the Site via Provider’s Provider Account; (ii) access to the Platform via the Provider Section of the Site; (iii) access to a set of public, standardized REST-based APIs that Zilkr has developed, hosts, and Provider may access and use that Zilkr shall continue to develop and evolve, which are available to Provider on the Provider Section of the Site (iv) the ability to choose from the Apps available on the Platform and provide access to these Apps for Provider’s Customers from the Provider Section of the Site; (v) the ability to manage such Apps and their connectors with Provider; (vi) the ability to assign and un-assign Apps to Customers based on the phone numbers of Customers; (vii) a set of SDKs in various languages to allow Provider to utilize Zilkr provided APIs more easily; (viii) Share Content as transactions via the Platform; and (ix) access to documentation for Zilkr APIs. Certain of the preceding services are contingent on the completion of the Custom Integration process as described in Section V(a) of this Agreement.
  3. Service TiersProvider may choose from the following service tiers provided by Zilkr upon the execution of this Agreement:
    1. Starter Tier. The “Starter Tier” allows Provider up to one hundred fifty thousand Transactions per day (150,000/day) and best effort Provider email support via support@zilkr.io.
    2. Enterprise Tier. The “Enterprise Tier” allows Provider up to one million five hundred thousand Transactions per day (1,500,000/day) and best effort Provider email support via support@zilkr.io and phone support during standard business hours during the business week.
    3. Global Tier. The “Global Tier” allows Provider up to nine million Transactions per day (9,000,000/day), Provider support available by a provider-specific email address and phone twenty-four hours a day (24 hrs/day), seven days a week (7 days/week), Amazon Web Services multi regional system and data redundancy, and custom domain URLs for API documentation and App access.
    4. Features Common to all Service Tiers. The following features are common to all service tiers: (A) no limit on the number of Developers that may sign up at the behest of Provider and connect to Provider via the Platform; (B) no limit on the number of Customer phone numbers that Provider desires to provision or make available to provision into the Platform to which Apps may be later assigned; (C) no limit on the number of Apps that Provider may view and make available to Provider’s Customers via Provider’s Provider Account; (D) no limit on the number of Apps that Provider may assign to Provider’s Customer phone numbers; (E) system redundancy across two (2) or more availability zones in an Amazon Web Services region within the United States; and (F) data redundancy across two (2) or more availability zones in an Amazon Web Services region within the United States.
  4. Zilkr Responsibilities. Zilkr shall maintain and manage the Platform in accordance with industry standards, providing Patches and Updates as is commercially reasonable based on Provider requests and Zilkr’s efforts to continually improve the Platform in Zilkr’s sole discretion. Zilkr shall use commercially reasonable efforts to make the Platform available twenty-four hours a day (24 hrs/day), seven days a week (7 days/week), except for: (i) planned downtime, of which Zilkr shall give Customer reasonable notice, or (ii) any unavailability caused by circumstances beyond Zilkr’s reasonable control, including without limitation, acts of god, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor disputes, internet service provider failures or delays, or denial of service attacks. Zilkr shall use its best efforts to maintain the Platform so that all database functions are optimized, the Platform runs at a commercially reasonable speed, and the Platform continues to be able to work with Provider’s system.
  5. Custom Builds Provider may from time to time request that Zilkr develop Custom Builds or provide specific services for Provider that exceed the scope of those services provided by Zilkr under this Section V of this Agreement. Zilkr may accept or decline any such request at its discretion and is not obligated to oblige Provider’s request. Should the parties mutually agree to proceed with a Custom Build the terms thereof will be stated in a separate statement of work (“SOW”) which is hereby incorporated by reference and may supplement and supersede this Agreement as stated therein. Each SOW will include: (i) a reference to this Agreement; (ii) a description of Custom Build or services to be provided to Provider; (iii) the fees due from Provider to Zilkr for the Custom Build or services to be provided; and (iv) any other terms as determined by the parties.

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.

  1. Custom Integration and Maintenance Fees. For the development and implementation of the Custom Integration by Zilkr at the behest of Provider, Provider shall pay Zilkr a fee of EIGHT THOUSAND U.S. DOLLARS ($8000) per designated Provider API Server (the “Integration Fee”). Additionally Provider shall pay Zilkr an annual maintenance fee of twenty percent (20%) of the Integration Fee cost on a monthly basis (the “Maintenance Fee”). Integration Fees are due upon the Effective Date and are non-cancellable and nonrefundable upon such execution.
  2. Pricing Tiers
    1. Starter Tier. Provider shall pay Zilkr a monthly fee of THREE HUNDRED FIFTY U.S. DOLLARS per month ($350/month) for the Starter Tier.
    2. Enterprise Tier. Provider shall pay Zilkr a monthly fee of THREE THOUSAND FIVE HUNDRED U.S. DOLLARS per month ($3,500/month) for the Enterprise Tier.
    3. Global Tier. The monthly fee for the Global Tier shall be listed in a separate addendum (the “Global Tier Addendum”) to be negotiated by the parties, which is fully integrated into this Agreement by reference.
    4. Upgrading Tiers. Zilkr shall provide Provider notice in accordance with this Agreement in the event that Provider exceeds the number of Transactions available based on Provider’s chosen pricing tier. Transactions exceeding those provided in Provider’s pricing tier will be billed at the rate of ONE HALF A U.S. CENT ($.005) per Transaction. Provider may also upgrade Provider’s chosen pricing tier at any time by providing notice to Zilkr.
  3. Invoicing. All Maintenance Fees and all fees due to Zilkr based on Provider’s chosen pricing tier as outlined in Section VII(b) of this Agreement shall be invoiced monthly and are based on monthly periods that begin on the Effective Date. All such invoices shall be due and payable fifteen (15) days after the date of such invoice (i.e. net-fifteen (15)). Except as otherwise specified herein, all invoices are non¬cancelable and all fees paid are non¬refundable after fifteen (15) days from the date of the invoice.
  4. Overdue Charges. Any fees unpaid by Provider to Zilkr fifteen (15) days after the date of the relevant invoice (i.e. net-fifteen (15)) shall be subject to interest set at the lesser of five percent (5%) or the monthly rate ceiling established by the Texas Office of Consumer Credit Commission in accordance with Texas Finance Code § 303 as reported in the Texas Credit Letter and compounded monthly starting the subsequent month.
  5. Suspension of Service. If any invoiced fees owed by Customer to Zilkr under this or any other agreement is overdue, Zilkr may at Zilkr’s sole discretion, without limiting Zilkr’s other rights and remedies, suspend Provider’s access to the Platform and any other services until such amounts are paid in full.
  6. Payment Disputes. In the event that Provider believes there is an error in any fees invoiced by Zilkr, Customer must provide notice to Zilkr in accordance with this Agreement within fifteen (15) days of the date of the invoice. Zilkr shall not exercise such rights under Sections VII(d) or VII(e) if Customer has disputed the applicable invoiced fees reasonably and in good faith and is diligently cooperating with Zilkr to resolve the dispute. The parties hereby agree that any disputes regarding such fees that cannot be settled in good faith between the parties will be submitted to dispute resolution in accordance with this Agreement.
  7. Taxes. Unless otherwise stated, fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value added, sales, use, or withholding taxes, assessable by any federal, state, or local jurisdiction (“Taxes”). Provider is responsible for paying all Taxes associated with all services provided by Zilkr to Customer hereunder. If Zilkr has the legal obligation to pay or collect Taxes for which Provider is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Provider, unless Customer provides Zilkr with a valid tax exemption certificate authorized by the appropriate taxing authority.

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.

  1. Zilkr Tech. All Zilkr Tech, including, but not limited to the Platform, is owned, controlled, or licensed by Zilkr and is protected by patent, copyright, as a trademark, or by other intellectual property rights. Provider agrees that Provider shall acquire no rights in any Zilkr Tech unless otherwise noted in this Agreement or in writing by Zilkr. Provider 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 is licensed and not sold. Nothing in this Agreement is intended to convey any intellectual property right from Zilkr to Provider other the limited licenses hereinunder. Unless specifically stated elsewise in a separately executed SOW, any and all Custom Builds shall be deemed Zilkr Tech, and licensed as such under this Agreement as amended or superseded by the SOW as applicable.
  2. Provider License to Access and Use. Zilkr hereby grants to Provider a limited, non-exclusive, non-transferable, fully and freely revocable license to access and use Provider’s Provider Account, the Provider Section of the Site, and the Platform to avail Provider of Zilkr’s services as provided in Section V of this Agreement or a separate written agreement between the parties and allow Provider’s Customers to access Developer’s Apps via the Platform contingent on Provider’s continuing compliance with this Agreement and being up to date on all fees owed Zilkr under Section VII of this Agreement. Provider may permit Provider’s Designated Agents to access and use Provider’s Provider Account, the Provider Section of the Site, the Platform, and Zilkr services on Provider’s behalf, provided such Designated Agents are bound by written terms and conditions regarding the access and use of Provider’s Provider Account, the Provider Section of the Site, the Platform, and Zilkr services that are no less onerous or restrictive and no more permissive than those binding Provider in accordance with this Agreement, and such access and use is solely in connection with the services provided by Zilkr to Provider in accordance with this Agreement contingent on Provider’s continuing compliance with this Agreement and being up to date on all fees owed Zilkr under Section VII of this Agreement. In the event that Provider elects to develop and implement Custom Integration on Provider’s own behalf, Zilkr grants to Provider a limited, personal, non-exclusive, non-transferable, fully and freely revocable license to access and use the Custom Integration Kit for such purposes. Provider may permit Provider’s Designated Agents to access and use the Custom Integration Kit on Provider’s behalf, provided such Designated Agents are bound by written terms and conditions regarding the access and use of the Custom Integration Kit that are no less onerous or restrictive and no more permissive than those binding Provider in accordance with this Agreement, and such access and use is solely for the purpose of developing and implementing the Custom Integration. Provider hereby acknowledges and agrees that with the exception of these limited licenses, Provider 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. These limited licenses terminate automatically, without notice to Provider, if Provider breaches any of the terms and conditions of this Agreement and terminates immediately upon termination of this Agreement.
  3. Provider’s License to Zilkr. Provider 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 access and use such APIs, Customer Data, and intellectual property provided to Zilkr by Provider 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.
  4. Publicity/Trademark. Provider hereby grants to Zilkr a paid-in-full, royalty free, limited, non-exclusive, freely and fully revocable worldwide license to use Provider’s publicly utilized brand name, logo, and website for Zilkr’s portfolio use and to be listed on the Site as a client of Zilkr. The parties hereby grant each other a paid-in-full, royalty free, limited, non-exclusive license for mutually agreed upon publicity, which may be sublicensed for such purposes. Such agreement shall not be reasonably withheld by either party. These limited licenses are in no way intended to allow either party to use the other party’s trademarks as a trademark for any services, but rather merely for publicity.

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.

  1. 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.
  2. 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 reasonable 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
  3. 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.
  4. Legal Disclosure. Notwithstanding the obligations under Section XIV(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.
  5. Term. Given the sensitive trade secret nature of the Confidential Information, the provisions and obligations under this Section XIV of this Agreement shall be effective for two (2) years after the termination 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.

XXIV.      Limitation of Liability.  UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL ZILKR’s, 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, THE FAILURE OF ZILKR TO FULLY DEVELOP OR IMPLEMENT ANY CUSTOM INTEGRATION, 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 OR PROVIDER TO THE EXTENT PROHIBITED BY LAW, BE LIABLE FOR FAILURE TO PERFORM THE TERMS OF THIS AGREEMENT IF SUCH FAILURE IS DUE TO ANY CAUSE OR CONDITION BEYOND SUCH PARTY’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 SUCH PARTY’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 PROVIDER 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 PROVIDER’S RELATIONSHIP WITH PROVIDER’S CUSTOMERS, PROVIDER’S ACTIONS, CUSTOMER’S ACTIONS, PROVIDER’S SERVICES, APPS, DEVELOPER’S SERVICES, DEVELOPER’S ACTIONS, DEVELOPER’S RELATIONSHIP WITH PROVIDER’S CUSTOMERS, ANY THIRD PARTY, ANY THIRD PARTY’S ACTIONS, ANY THIRD PARTY HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM, PROVIDER, PROVIDER’S PROVIDER ACCOUNT, DEVELOPER, DEVELOPER’S DEVELOPER ACCOUNT, THE APPS, OR THE INFORMATION CONTAINED THEREIN OR THEREON, OR PROVIDER OR ANY DEVELOPER’S FAILURE TO USE OR IMPLEMENT SECURITY CONTROLS THAT ARE APPROPRIATE FOR THE PROTECTION OF THEIR RESPECTIVE PROVIDER ACCOUNT OR DEVELOPER ACCOUNT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 PLATFORM, ZILKR’S SERVICES, ANY ZILKR TECH, OR ANY APPS; (b) VIRUSES, BUGS, TROJAN HORSES, WORMS, OR OTHER HARMFUL OR MALICIOUS SOFTWARE, AUTOMATED AGENTS, OR PROGRAMMING ROUTINES OBTAINED BY ACCESSING OR USING THE SITE, THE PLATFORM, ANY APPS, OR ANY ZILKR TECH; (c) GLITCHES, BUGS, ERRORS, OR INACCURACIES, OR OMMISSIONS OF ANY KIND IN THE SITE, ANY APPS, OR ANY ZILKR TECH; (d) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES; (e) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR PROVIDER ACCOUNT; (f) YOUR NEED TO MODIFY PRACTICES, CONTENT, OR BEHAVIOR, OR YOUR LOSS OF OR INABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THIS AGREEMENT, THE PRIVACY POLICY, OR ANY AGREEMENT WITH ZILKR; (g) THE FAILURE OF ZILKR TO FULLY DEVELOP OR IMPLEMENT ANY CUSTOM INTEGRATION. WITHOUT LIMITING ANY OF THE FOREGOING, ZILKR’S FULL LIABILITY HEREUNDER FOR ANY AND ALL CLAIMS OF DAMAGES, FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTIONS, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, SHALL BE LIMITED IN AMOUNT TO THE amount PAID TO ZILKR BY PROVIDER DURING THE MOST RECENT CALENDAR MONTH OF THIS AGREEMENT OR FIVE HUNDRED U.S. DOLLARS ($500.00), WHICHEVER IS LESS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO PROVIDER TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE PROVIDER IS LOCATED. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF PROVIDER IS LOCATED OR OPERATES IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO PROVIDER, AND PROVIDER MAY HAVE ADDITIONAL RIGHTS. IF PROVIDER IS A CALIFORNIA RESIDENT PROVIDER AGREES 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.”

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.

  1. If to Zilkr:Zilkr Cloud Technologies, LLC
    Attn: Legal Notice
    2051 S Lamar Blvd.
    Austin TX 78704

    Email: legal@zilkr.io
    Subject Line: Legal Notice

  2. If to you:to the email address or mail address provided concurrently with this Agreement by the Agent who executed this Agreement.

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.

  1. Mediation. Provider agrees that in the event that Provider has a controversy, claim, or dispute with Zilkr arising out of or relating to this Agreement, with Zilkr, or regarding any Zilkr Tech, Provider 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.
  2. Arbitration. If such non-binding mediation is unsuccessful in reaching a resolution between the parties and Provider continues to desire to seek legal remedy, Provider agrees that in lieu of any action at law or equity, Provider 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 Provider in accordance with this Section XXXVI 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.
  3. Confidentiality of Dispute Resolution. The parties hereby agree that in the event of any negotiation, mediation, or arbitration between the parties, the parties, the parties’ counsel, and the mediator or arbitrator, shall treat the existence, content, and results of any negotiation, mediation, or arbitration as Confidential Information under Section XIV of this Agreement notwithstanding any possible exception under Section XIV(a) of this Agreement. All proceedings and matters related to the mediation and arbitration under this Section XXXVI of this Agreement shall be subject to the confidentiality requirements of Sections XIV(b)(i-ii) of this Agreement. Notwithstanding the foregoing, the parties may disclose such information to the parties’ respective legal counsel and any mediator or arbitrator involved in the proceedings, provided such counsel, mediator, or arbitrator is bound by confidentiality requirements no less onerous or restrictive and no more permissive than those of this Agreement.
  4. Jury Waiver. If for any reason the arbitration clause in Section XXXVI(b) of this Agreement becomes not applicable, then the parties, to the fullest extent permitted by applicable law, hereby unconditionally and irrevocably waive 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. THE PARTIES ACKNOWLEDGES THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, THAT THE PARTIES HAVE HAD THE OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL OF THEIR 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.

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.

XL.      Hierarchy of Documents.  This Agreement hereby incorporates the Global Tier Addendum, any SOW executed by the parties, and the Terms of Use by reference. In the event of a direct conflict between the provisions of this Agreement and the provisions of the Global Tier Addendum, any SOW, and the Terms of Use, the provisions of the Global Tier Addendum, any SOW by most recent date of execution, this Agreement, and then Terms of Use in that order of priority, will control. This Agreement does not incorporate the Developer Agreement. In the event that Provider is also a Developer, Provider/Developer shall be governed by both the Developer Agreement and this Agreement. In the event of a direct conflict between the provisions of the Developer Agreement and this Agreement, the most relevant agreement to Provider/Developer’s actions will prevail.

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.

XLIII.      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 Developer Agreement or the Terms of Usein 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.

XLIV.      Contact Information.  Any comments, complaints requests for further information, or notification required by this Agreement can be directed to info@zilkr.io