1. About this Agreement
Please read thisAgreement carefully. By clicking on the “Create Account” button during theAccount registration process, completing a transaction using the Platform, browsing zilkko.com, and/or downloading ZILKKO’s mobile application(s), you represent that (1) you have read, understand, and agree to be bound by thisAgreement; (2) you are of legal age to form a binding contract with ZILKKO; and(3) you have the authority to enter into this Agreement as yourself or on behalf of a Principal (as defined in Section 3.1.1) and to bind such Principal to this Agreement. If you do not agree with the terms of this Agreement, please do not use the Platform any further.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. When changes are made, we will make a new copy of the Agreement available on or through this site. Except as stated elsewhere or as required by law, court order, or otherwise (in which case, all amended terms shall be effective immediately and your continued use of the Platform signifies and will be deemed your assent to and acceptance of the revised Agreement), all amended terms shall automatically be effective thirty (30) days after they are initially posted. When ZILKKO amends this Agreement, ZILKKO will make reasonable efforts to provide you with general, not specific, notice of such changes by posting an announcement at on its site, and/or notifying you through electronic mail/delivery. Such announcement shall be maintained for no less than thirty(30) days following the effective date of such amendment. If you do not agree with the amended terms and, accordingly, the Agreement, please do not use thePlatform any further. Nonetheless, we suggest that you regularly check this site to view the then-current Agreement. This Agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, a “writing” does not include an email message and a signature does not include an electronic signature.
2.Grant of License to Use the Platform
ZILKKO grants you, and you accept, a non-exclusive, personal, non-transferable limited license to access and use the Platform, subject to your full compliance with the terms and conditions of this Agreement.
3.Account Creation and Management
3.1 General Account Creation. Certain features and functionalities of the Platform may require you to create an ZILKKO account (the “Account”). In establishing an Account, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see below) and to update such information as necessary to maintain its truth and accuracy.
3.1.1 Registration onBehalf of Principal. In the event you create an Account as an agent acting on behalf of a business, employer or third party because, you represent and warrant that you have the authority to do so (e.g., you are an authorized employee or agent (collectively, the “Agent”) of such business, employer or third party (collectively, the “Principal”). In creating an Account on behalf of a Principal, you (as Agent) agree to provide such Principal’s full legal name and any applicable fictitious business name(s) (including the proper trade names or “doing business as” names). In all such cases where an Agent creates and/or uses an Account for the Principal, the Agent agrees and acknowledges that he/she undertakes all such activities on behalf of the Principal, and that the Principal shall be the party to this Agreement for all purposes, regardless of whether the Agent had the proper authority to create the Account, maintained the Account, and/or transferred the Account to another Agent. Accordingly, only the Principal is entitled to any rights, remedies or benefits under thisAgreement and only the Principal may control or direct the Account and all information related thereto; the Agent does not acquire or retain any personal rights with respect to such Account. The Principal is likewise subject to all of the covenants, restrictions, limitations, representations, warranties, waivers and releases included in this Agreement.
Furthermore, you hereby represent and warrant that you (as the Agent): (i) may be held liable by and to ZILKKO for any misrepresentation made by you in connection with your registration for and use of the Account; (ii) may be held liable by and to thePrincipal; and (iii) may be held liable by law enforcement, governmental authority or court order. You (as Agent) agreement to indemnify, defend, and hold harmless ZILKKO for any breach of the representations, warranties, and covenants contained in this Section 3 in accordance with Section 15 (Indemnification) of this Agreement.
3.2 Account Management.Ultimately, the Principal is responsible for all activities that occur under the Account, including, but not limited to, Account and password management, and neither Principal nor Agent will agree to sell, transfer or assign theAccount or any Account related rights without the express written consent of ZILKKO. You are also responsible for maintaining the privacy and security of your network settings and systems to ensure that all sensitive or confidential information originating from your systems is properly transmitted and handled.
3.3 Stripe ConnectedAccount Agreement. Some payment processing services made available through thePlatform to certain Users are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Service Agreement”). By agreeing to this Agreement, you also agree, to the extent applicable, to be bound by the Stripe Services Agreement (which maybe modified from time to time by Stripe). As a condition of ZILKKO enabling payment processing services through Stripe, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see above) and to update such information as necessary to maintain its truth and accuracy. You also authorize ZILKKO to share such information and other transaction information related to your use of the payment processing services provided by Stripe.
4. ZILKKO Services
Upon creation of anAccount, ZILKKO will provide you access to the ZILKKO Sub-merchant service(please see below).
4.1 ZILKKO Sub-merchant.The ZILKKO Sub-merchant service allows you to Promote and Deliver your PhysicalProducts of any value to a Buyer.
With respect to the ZILKKOSub-merchant service, ZILKKO may require, and you agree to promptly furnish, additional information from you, including, but not limited to, tax identification number, social security number, identity verification, taxpayer information, or other information as the case may be. Failure to promptly provide such additional information to ZILKKO may result in Account suspension and/or termination pursuant to Section 8.
5. Fees, Balance Redemption, Taxes, and Conversion
5.1 Fees. ZILKKO does notassess or collect “listing” or “insertion” fees, but will assess and collect aper transaction fee (the “ZILKKO Fee”) equivalent to or greater than: 20%multiplied by the sum the Retail Price, plus $0.25 USD.The details of the fees with respect to Physical Products are as follows:
5.1.1 Physical Products.With respect to Physical Products, you may upload a listing of a physical goodto the Platform and Promote the Physical Product at a Retail Price. Uponreceiving a Buyer’s offer to purchase the Physical Product and the consummationof the sale of Physical Product to a Buyer, ZILKKO will immediately determineand collect the appropriate ZILKKO Fee. ZILKKO will then pay you an amountequivalent to the Retail Price minus the ZILKKOFee; these amounts will then accumulate as part of your Balance. You are solelyresponsible for the fulfillment and delivery of Physical Products to the Buyerin a timely manner. ZILKKO does not ship, handle or take custody of PhysicalProducts at any point.
5.2 Balance Redemption
5.2.1 ZILKKO Sub-merchantBalance Redemption. For a ZILKKO Sub-merchant Account with a Balance exceeding$50.00 USD, you may choose a Redemption of Balance not more than once per monthperiod for all sales completed up to a week prior to the payment date (the“Sub-merchant Pay Period”). The Sub-merchant Pay Period ends at 11:59:59pm UTCevery end of the month, as determined solely by the date-/timestamp of ZILKKO’ssystem(s). You may access information regarding your next Redemption on yourbalance page. In most cases, a deposit initiated by a Redemption may take up totwo (2) business days to reach your bank account; provided, however, thatRedemption payments may be temporarily delayed or withheld by ZILKKO in certaincases pursuant to Section 7.
5.3 Taxes. The purpose ofthis section is to highlight some of the more important taxation issues thatyou will need to consider if you are using our platform. You agree to be solelyresponsible and liable for the proper administration, imposition, collection,reporting, and remitting of all applicable taxes. We emphasize that thisinformation is not intended and should not be used as legal advice. If you areunsure as to your tax responsibilities, then you should seek advice fromexperts on this subject.
5.3.1 Direct Taxation. Itis your personal responsibility to disclose your earnings to your relevant taxauthority and you must ensure that you are paying the correct amount of tax.This is particularly relevant for users who are operating as a business.
5.3.2 Value Added Tax(VAT). If you are a seller of physical goods and have buyers outside of theUnited States you may be required to charge VAT on the sales you make. If youare not sure if this applies to you please contact your tax advisor or yourlocal tax office. If you are required to charge VAT on your sales then you areresponsible for paying the VAT to the relevant tax authorities in accordancewith the appropriate laws and regulations of that territory.
5.4 Conversion. ZILKKOwill calculate and render a converted exchange rate in United States Dollar(USD), regardless of whether you listed the Retail Price of your Digital Goodor Physical Product in a currency other than USD. All transactions will settlein USD, and, accordingly, your Balance will be denominated and redeemable onlyin USD. ZILKKO cannot and does not guarantee the accuracy of the exchange ratesdisplayed due to the fluctuating nature of market rates. Accordingly, ZILKKOrecommends that you confirm current rates before engaging in any transactionson the Platform.
6. Use of the Platform.
When you use thePlatform, you assent that:
6.1 You will not, orattempt to, make any unlicensed or unauthorized use of, or otherwise infringeviolate or misappropriate, any patent, copyright, trademark, trade secret,right of privacy, right of publicity, or other intellectual property orproprietary right (collectively, “IP Rights”) of any entity or individual,including, without limitation, incorporating any original, variation ormisspellings of any third-party trademarks, service marks, creative assets, orother brand identifiers without proper authorization;
6.2 You will not, orattempt to, Promote or Deliver Physical Products that: (i) violates, or mayviolate, the rules or policies of Card Networks or payment partners; (ii) islisted as Prohibited Products and Activities; (iii)constitutes illegal activity or is illegal; (iv) promotes or encouragesdiscrimination based upon race, sex, religion, nationality, disability, sexualorientation or age; (v) targets, or intends to distribute to, children underthe age of thirteen (13) years old; (vi) or is abusive towards other people;
6.3 You will not, orattempt to, defame or impersonate any entity or person, including, withoutlimitation, copying the “look and feel” of any third-party website or branding,or conveying or implying that you are operating a third-party website orentity;
6.4 You will not, orattempt to, probe, exploit, disable, avoid, deactivate, remove, circumvent,crawl, scan, penetrate, or test the integrity and vulnerability of the Platformin any manner, including any client or server machine, or other security orauthentication measures and safeguards;
6.5 You will not, orattempt to, disassemble, reverse engineer, or decompile any part of thePlatform;
6.6 You will not, orattempt to, embed, insert, include, or disseminate any viruses or otherharmful, or potentially harmful, data or technology into or through thePlatform, including, without limitation, for the purposes of disrupting, damaging,or interfering with the Platform and/or other users of the Platform;
6.7 You will undertakebest efforts to ensure that all communications and/or representations you makein connection with your Physical Product(s) will: (i) be accurate and containall disclosures and disclaimers necessary to prevent such communications and/orrepresentations from being false, deceptive, or misleading; and (ii) otherwisecomply with all applicable laws, regulations, advisories, and policies relatedto consumer protection;
6.8 You will undertakebest efforts to ship a Physical Product sold to a Buyer no later than four (4)calendar days from the date of sale;
6.9 You will not requireor suggest that a Buyer agree to any terms that reduce or limit ZILKKO’s returnand refund policy (see Section 7, below);
6.10 You will promptly:(i) respond to inquiries from ZILKKO; (ii) notify ZILKKO of any regulatory orlegal complaints, or threats of such complaints, that you receive in connectionwith or in relation to a Digital Good or Physical Product; and (iii) inconnection with (ii) directly above, assist, at your sole cost and expense, intaking any appropriate or necessary actions reasonably requested by ZILKKO torespond to and/or resolve such complaints; and
6.11 You will comply withall applicable laws, regulations, court orders, third party rights, applicableindustry requirements (including, but not limited to, any and all applicableprovisions of the Visa International OperatingRegulations, MasterCard Merchant Rules,and PCI compliance standards), andany ZILKKO policy or standard that may be issued from time to time.
6.12 In the event youPromote or Deliver Physical Products that contain personal information of anyother individual, you must have provided any such notice to data subjects thatmay be required under applicable law and, to the extent required underapplicable law, established a legal basis for your use of such personal data.
7. Return and Refund Policy
7.1 ZILKKO, in its soleand absolute discretion, will allow for a refund (partial or full; please seeSection 7.3 below) of the Retail Price of any Digital Good or Physical Productpurchased using the Platform within 60 days from the Buyer’s date of purchasefor any of the following reasons:
7.1.1 If the PhysicalProduct violated Section 6.2;
7.1.2 If the transactionfor the Physical Product is proven to be fraudulent or unauthorized;
7.1.3 In order for ZILKKOto comply with applicable industry or other contractual requirements (i.e.credit card industry, ACH, PayPal, Stripe, Zengin), applicable laws andregulations, and or requests from law enforcement or judiciary bodies; or
7.1.4 For any reason ZILKKOdeems appropriate.
7.2 Upon issuance of arefund pursuant to Section 7.1, the full value of the refund will be debitedagainst your Balance.
7.3 It is the Buyer’ssole responsibility to appropriately handle, remove or destroy any PhysicalProduct that may cause Buyer to: (i) incur additional liability, including, butnot limited to, criminal and/or civil liability; or (ii) experience additionaladverse effects, including, but not limited to, potential privacy, security, ortechnical vulnerabilities.
8. Availability of Services, Suspension and Termination
Subject to the terms andconditions of this Agreement and ZILKKO's policies and procedures, ZILKKO shalluse commercially reasonable efforts to provide the Platform in a manner thatwill not disrupt your business. You acknowledge and agree that fromtime-to-time, the Platform may be inaccessible or inoperable for reasonsincluding, without limitation: (i) equipment malfunctions; (ii) periodicmaintenance procedures or repairs; or (iii) causes beyond the reasonablecontrol of ZILKKO or that are reasonably unforeseeable by ZILKKO, including,without limitation, interruption or failure of telecommunication or digitaltransmission links, hostile network attacks, network congestion or otherfailures. You acknowledge and agree that ZILKKO is not liable for interruptionsto the availability of the Platform and further acknowledge that ZILKKO doesnot guarantee access to the Platform on a continuous and uninterrupted basis.
ZILKKO may decline,remove or halt sales of any Digital Good or Physical Product, suspend orterminate an Account, and/or suspend or terminate the Platform at any time, inits sole discretion, without cause or notice to you or any penalty or liabilityfor doing so.
ZILKKO, in its solediscretion, may suspend or terminate your Account(s), or retain any or allfunds in your Balance, if ZILKKO suspects or has reason to believe and/or if aperson otherwise claims that you have violated the law or breached any term ofthis Agreement. In addition to the foregoing, and all other rights and remediesavailable to ZILKKO at law or in equity and notwithstanding anything in theAgreement to the contrary, in the event you breach any term of this Agreement,or your Account becomes dormant and/or has a negative Balance, ZILKKO will havethe right to immediately suspend or terminate your Account and your rights toaccess, use and/or otherwise participate in the Platform. Upon suchtermination, you agree to immediately cease all use of the Platform. Withoutlimiting the foregoing, ZILKKO shall have the right to immediately terminateyour access and use of the Platform, or any portion thereof, in the event ofany conduct that ZILKKO, in its sole discretion, considers unacceptable.Following suspension or termination of an Account or retaining of fundspursuant to this Section, ZILKKO will review your Account in a mannerdetermined by ZILKKO in its sole discretion. You agree to cooperate with thisreview if asked. If the review concludes that there is a reasonable basis tobelieve misconduct has occurred, you agree that ZILKKO may retain funds in yourZILKKO Account as liquidated damages and/or for the benefit of ZILKKO or thirdparties affected by the misconduct. You acknowledge and agree that suchliquidated damages: (i) are not a penalty, and (ii) are reasonable and notdisproportionate to such presumed damages to ZILKKO.
ZILKKO may temporarilywithhold any portion of the funds in your Account if ZILKKO, in its solediscretion, determines such action is necessary to secure payment for,performance of, and/or assurances regarding any liabilities, obligations, orindebtedness you may have incurred with ZILKKO or any Buyer. If you maintain arefund rate in excess of 15%, you agree that we may retain an amount equal to25% of your current Balance for 90 days on a rolling basis to cover the cost ofrefunds. If you maintain a refund rate significantly above this amount, your Accountmay be subject to additional fees.
9. Marketing Restrictions
9.1 CAN-SPAM Act. If yousend emails, directly or indirectly, in connection with any Physical Product,then you agree, acknowledge, represent and warrant that all such emails, andprocurement of email addresses thereto, shall be in compliance with allapplicable federal, state, and international laws and regulations regarding theuse of electronic messages, including without limitation the Controlling theAssault of Non-Solicited Pornography and Marketing Act and the Children'sOnline Privacy Protection Act.
9.2 Telephone ConsumerProtection Act. If you send, initiate or procure a “call” (as that term isdefined by the Telephone Consumer Protection Act), directly or indirectly, in connectionwith any Digital Good or Physical Product, you agree, acknowledge, representand warrant that you have obtained all necessary consents and authorizationsunder, and will be in full compliance with, applicable laws and regulations,including without limitation regulations issued by the Federal TradeCommission, Federal Communications Commission, and state laws related toanti-spam, text messages and Do-Not-Call Registries.
10. ZILKKO's IP Rights
Except as expresslypermitted by Section 10.1 below, you may not use ZILKKO's name, trademarks,service marks or any other IP Right of ZILKKO in any manner whatsoever tosuggest association or affiliation with or endorsement by ZILKKO without theexpress prior written consent of ZILKKO, which ZILKKO may withhold at its solediscretion.
10.1 Permissible Uses of ZILKKOIP Right. Subject to the following terms and conditions, ZILKKO grants you alimited, revocable license to use ZILKKO's name pursuant to the following usageguidelines (and other expressly permitted guidelines, as may be the case in thefuture) in connection with such use: (i) as a watermark, Internet search enginedescription, keyword, search term or seeding element with any Internet searchengines or keyword-triggered advertising programs; and (ii) in metatags orhidden text, in each case solely for the purpose of driving traffic to thePlatform to Promote your Physical Product. ZILKKO may revoke the foregoinglicense and/or provide restrictions upon your use of ZILKKO's name, includingrequiring the use of such disclaimers as ZILKKO may provide, in connection withyour use of ZILKKO's name, at any time and for any reason in ZILKKO's solediscretion.
10.2 Reservation ofRights. Notwithstanding the limited revocable license in Section 10.1, as betweenthe parties, ZILKKO shall be and remain the sole owner of all right, title andinterest in and to the Platform (including, without limitation, all IP Rightstherein) and any other IP Rights, materials or other properties owned, licensedor controlled by ZILKKO, and you hereby assign to ZILKKO all right, title andinterest you may be deemed to have therein. Accordingly, any use of the IPRight of ZILKKO shall inure to the exclusive benefit of ZILKKO. All rights notspecifically granted to you under this Agreement are expressly reserved by ZILKKO.
11. Confidentiality and Non-disclosure Obligations; Privacy
11.1 In connection withthis Agreement, ZILKKO may disclose to you and/or you may otherwise receive orhave access to sensitive, confidential, and/or proprietary information of ZILKKO(collectively, “Confidential Information”). Except as required to perform yourobligations under and in accordance with the terms of this Agreement, you shallnot disclose or use the Confidential Information, without the express priorwritten consent of ZILKKO. You may not use any Confidential Information for thepurpose of soliciting, or to permit others to solicit, Users to subscribe toany other services or promote the sale of any products that compete, eitherdirectly or indirectly, with ZILKKO or the functionality and services offeredby the Platform. You agree and acknowledge that ZILKKO may be required toprovide to governmental agencies or other third parties information in itspossession regarding you or the business you conduct with ZILKKO or via thePlatform.
11.2 ZILKKO does notinvite and cannot accept any ideas or information you consider to beconfidential and/or proprietary. Except with respect to your personallyidentifiable information (as expressly provided for in the ZILKKO PrivacyPolicy, any suggestions, submissions, comments, ideas, concepts, know-how,techniques material or feedback conveyed, offered or transmitted by you to ZILKKO,or otherwise in connection with the Platform (collectively, the “Submissions”),shall be deemed to be non- confidential and non-proprietary and ZILKKO shallhave no obligation of any kind with respect to such Submissions, unlessotherwise expressly agreed to in a writing executed by you and a dulyauthorized officer of ZILKKO. You hereby grant to ZILKKO and its licensees aworldwide, perpetual, non- exclusive, fully-paid, royalty-free, transferableright and license, with right to sublicense, to reproduce, publicly display,distribute, perform, transmit, edit, modify, create derivatives works of,publish, sell, commercially exploit, use, and disclose the Submissions for anypurpose and in all forms and all media whether now known or to become known inthe future. ZILKKO shall have no obligation to compensate you for any suchSubmissions in any manner. You hereby represent and warrant that: (a) you ownor otherwise have the right to grant the foregoing license to ZILKKO withrespect to your Submissions; and (b) your Submissions and any use thereof by ZILKKOwill not infringe or violate the rights of any person. You are and shall remainsolely responsible for the content of any Submissions you make and acknowledgethat ZILKKO is under no obligation to respond to or use any Submission you mayprovide.
11.3 In the event youPromote or Deliver Physical Products through the Platform, you agree to provideany such disclosures as may required by applicable law pertaining to yourprivacy and/or data protection policy and practices, including, to the extentrequired, disclosures that adequately describe your use of the Platform.
11.4 You agree that whenyou collect personal information about buyers through the Platform, includingin connection with a purchase, you must provide the buyer a chance to removethemselves from your database and a chance to review what information you havecollected about them. In addition, you agree that you will use personalinformation you receive through the Platform only for: ZILKKOtransaction-related purposes that are not unsolicited commercial messages;using services offered through ZILKKO (such as shipping and fraud complaints),or other purposes that a User expressly chooses.
11.5 You acknowledge andagree that when you use the Platform to send emails, we may automatically scanand may manually filter messages to check for spam, viruses, phishing attacksand other malicious activity or illegal or prohibited content, and we do notpermanently store messages sent through these tools. If you send an e-mail toan e-mail address that is not registered in our community, we do notpermanently store that e-mail or use that e-mail address for any marketingpurpose. We do not rent or sell these e-mail addresses.
11.6 If the EU GeneralData Protection Regulation (“GDPR”) applies to you in connection with your useof the Platform, upon your request, ZILKKO will make available a DataProtection Addendum (“DPA”) designed to meet the requirements of Article 28 ofthe GDPR pertaining to data processing. You may request ZILKKO’s DPA byemailing email@example.com. You agree not to collect any personal data throughour Platform that may be governed by the GDPR before executing ZILKKO’s DPA.Notwithstanding the foregoing, if ZILKKO reasonably believes that yourprocessing of personal data through the Platform is subject to the GDPR, ZILKKOmay require you to execute its DPA as condition of your use, or continued use,of the Platform, and you authorize ZILKKO to take such remedial steps as may bewarranted until such time as the DPA is executed
12. Export Control
You acknowledge and agreeto comply with all applicable export laws, including the U.S. ExportAdministration Act, the Arms Export Control Act, the International EconomicEmergency Powers Act, and the Foreign Corrupt Practices Act; and regulationsissued pursuant to these and other U.S. Laws. You hereby represent and warrantthat any Digital Good or Physical Product Promoted or Delivered is approved forexport from the United States without additional authorization or licensingfrom the U.S. government. Should the export authorization status of yourDigital Good or Physical Product change, you must immediately notify ZILKKO inwriting. Information on U.S. export control regulations can be found on thewebsites of the U.S Department of Commerce, U.S. Department of State and the U.S. Department of the Treasury.
13. PCIDSS Applicability and Requirement
ZILKKO, to the extent itis a Service Provider (as that term is defined and/or used by the then-currentPayment Card Industry (PCI) Data Security Standard v3.0), shall be responsiblefor the security of cardholder data, which may include primary account number(PAN), cardholder name, expiration date, and service code, it possesses orotherwise stores, processes, or transmits.
14. Required Permits
It is your sole responsibility to obtain and maintain all applicable consents, licenses andpermits required for the operation of your business.
In the event a thirdparty makes any demand or complaint, or commences any action or files any claimwhatsoever (each, a “Claim”) in connection with your use of the Platform,including without limitation your activities to Promote and/or Deliver PhysicalProducts, you shall defend, indemnify and hold harmless ZILKKO, its relatedparties and affiliates, and its officers, directors, employees,representatives, agents, licensors, attorneys, heirs, successors, and assignees(each, a “ZILKKO Party”; and collectively, the “ZILKKO Parties”), from andagainst any and all damages, liabilities, claims or costs (including the costsof investigation, defense, litigation, and reasonable attorneys’ fees andcosts) (“Losses”) incurred by any ZILKKO Party as a result of such Claim,regardless of whether such Losses are direct, incidental, consequential,punitive or statutory.
Upon receiving notice ofa Claim for which ZILKKO is entitled to indemnification by you, ZILKKO shallprovide you with written notification and the opportunity to assume solecontrol over the defense or settlement of the Claim and reasonable assistanceto settle and/or defend the Claim at your sole expense; provided, however, that(i) any settlement which would impose a non-monetary obligation on and/oradmission or finding of liability or wrongdoing by ZILKKO will require ZILKKO’sprior written consent; (ii) the failure to provide timely notice, control, orassistance shall not relieve you of your indemnification obligations; and (iii)ZILKKO may have its own counsel present at and participating in all proceedingsor negotiations relating to a Claim, at ZILKKO’s own expense, unless you failor refuse to secure legal counsel to defend any Claim in a timely manner, inwhich case you shall pay all expenses related to ZILKKO’s use of such counsel.
In the event that ZILKKOincurs costs, attorneys’ fees or other expenses responding to any complaintother than a Claim, in connection with or in relation to your Physical Products(or your activities to Promote and/or Deliver thereto), including copyrightinfringement complaints under the DMCA (see below), ZILKKO reserves the right,in its sole discretion, to recover such costs and expenses by deducting areasonable, commensurate amount from any monies owed to you by ZILKKO up to amaximum of ten thousand dollars ($10,000) per event. In the event that ZILKKOincurs any Losses relating to your violation of Section 9 (MarketingRestrictions) above, ZILKKO reserves the right, in its sole discretion, firstto recover such Losses by deducting a reasonable, commensurate amount from anymonies owed to you by ZILKKO up to a maximum of twenty thousand dollars($20,000) per event. You understand and agree that the remedies set forth aboveare not exhaustive and that ZILKKO retains all rights to indemnificationdescribed herein. You authorize ZILKKO to make, and release ZILKKO from anyliability in connection with, any such deductions.
16. Limitation of Liability
In no event shall any ZILKKOparty, or its heirs, successors and assigns, be liable for any indirect,incidental, special, punitive, or consequential damages whatsoever arising outof, resulting from, or in connection with this agreement and/or any (a) use ofor inability to use the platform, (b) personal injury, property damage, orlosses of any kind, resulting from your access to and/or use of the platform, (c)unauthorized access to or use of any and all personal information and/orfinancial information stored therein, (d) interruption or cessation oftransmission to or from the platform, and/or I bugs, viruses, trojan horses, orthe like, which may be transmitted to or through the platform, whether or not ZILKKOis advised of the possibility of such damages. Notwithstanding anything hereinto the contrary, the maximum cumulative and aggregate liability of ZILKKO forall costs, losses or damages from claims arising under or related in any way tothis agreement, whether in contract, tort or otherwise, shall not exceed anamount equal to the total amounts due and payable by ZILKKO to you under thisagreement for the month immediately preceding the date upon which such damagesaccrue. The limitation of liability herein is a fundamental element of thebasis of the bargain and reflects a fair allocation of risk. The platform, andany services or information offered through or in association with theplatform, would not be provided without such limitations and you agree that thelimitations of liability and disclaimers specified herein will survive andapply even if found to have failed of their essential purpose. Because somejurisdictions do not allow the exclusion or limitation of certain categories ofdamages, in such jurisdictions, you agree that the liability of ZILKKO shall belimited to the fullest extent permitted by such jurisdiction.
17. No Guarantee of Validity
ZILKKO does not endorse,approve, or certify any information provided on or through the Platform, nordoes it guarantee the accuracy, completeness, efficacy, timeliness, or correctsequencing of such information. Information provided on or through the Platformmay or may not be current as of the date of your access, and ZILKKO has no dutyto update and maintain such information. Additionally, the information providedon or through the Platform may be changed periodically without prior notice.All content provided on or through the Platform is provided “AS IS.” Use ofsuch information is voluntary, and reliance on it should only be undertakenafter an independent review of its accuracy, completeness, efficacy, andtimeliness. If you have a dispute with one or more users, including any usersthat has purchased items from you as a Buyer or any user from whom you havepurchased a Physical Product, you release us (and our officers, directors,agents, subsidiaries, joint ventures and employees) from claims, demands anddamages (actual and consequential) of every kind and nature, known and unknown,arising out of or in any way connected with such disputes.
YOU ARE SOLELYRESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OFTHE PLATFORM. YOU UNDERSTAND THAT ZILKKO DOES NOT MAKE ANY ATTEMPT TO VERIFYTHE STATEMENTS OF USERS OF THE PLATFORM.
ZILKKO MAKES NO WARRANTY,REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM WILL MEET YOUR REQUIREMENTS;(2) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE ORERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILLBE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED.ANY CONTENT DOWNLOADED FROM OR OTHERWISE OBTAINED THROUGH THE PLATFORM ISACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGETO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEMAND ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTSFROM ACCESSING SUCH CONTENT.
19. Legal Disputes
If a dispute arisesbetween you and ZILKKO, our goal is to provide you with a neutral andcost-effective means of resolving the dispute quickly. Accordingly, you and ZILKKOagree that we will resolve any claim or controversy at law or equity thatarises out of this Agreement or our services in accordance with one of thesubsections below or as we and you otherwise agree in writing. Before resortingto these alternatives, we strongly encourage you to first contact us directlyby email at firstname.lastname@example.org to seek a resolution. We will considerreasonable requests to resolve the dispute through alternative disputeresolution procedures, such as mediation or arbitration, as alternatives tolitigation.
This Agreement shall begoverned in all respects by the laws of the State of New York. You agree thatany claim or dispute you may have against ZILKKO must be resolved exclusivelyby a state or federal court located in New York, New York, except as otherwiseagreed by the parties or as described in the Arbitration Option paragraphbelow. You agree to submit to the personal jurisdiction of the courts locatedwithin New York, New York for the purpose of litigating all such claims ordisputes.
For any claim (excludingclaims for injunctive or other equitable relief) where the total amount of theaward sought is less than $10,000, the party requesting relief may elect toresolve the dispute in a cost- effective manner through bindingnon-appearance-based arbitration. In the event a party elects arbitration, theyshall initiate such arbitration through an established alternative disputeresolution (“ADR”) provider mutually agreed upon by the parties. The ADRprovider and the parties must comply with the following rules: (i) thearbitration shall be conducted by telephone, online and/or be solely based onwritten submissions, the specific manner shall be chosen by the partyinitiating the arbitration; (ii) the arbitration shall not involve any personalappearance by the parties or witnesses unless otherwise mutually agreed by theparties; and (iii) any judgment on the award rendered by the arbitrator may beentered in any court of competent jurisdiction
All claims you bringagainst ZILKKO must be resolved in accordance with this Legal Disputes Section.All claims filed or brought contrary to the Legal Disputes Section shall beconsidered improperly filed. Should you file a claim contrary to the LegalDisputes Section, ZILKKO may recover attorneys’ fees and costs up to $1,000,provided that ZILKKO has notified you in writing of the improperly filed claim,and you have failed to promptly withdraw the claim.
20. Digital Millennium Copyright Act Notice
If you believe that yourcopyrighted work has been copied in a way that constitutes copyrightinfringement and is accessible on or through the Platform, please notify ZILKKO’scopyright agent, as set forth in the Digital Millennium Copyright Act of 1998(“DMCA”). For your complaint to be valid under the DMCA, you must provide thefollowing information in writing:
- Aphysical or electronic signature of a person authorized to act on behalf of theowner of an exclusive right that is allegedly infringed;
- Identificationof the copyrighted work claimed to have been infringed, or, if multiplecopyrighted works at a single online site are covered by a single notification,a representative list of such works at that site;
- Identificationof the material that is claimed to be infringing or to be the subject ofinfringing activity and that is to be removed or access to which is to bedisabled, and information reasonably sufficient to permit ZILKKO to locate thematerial;
- Informationreasonably sufficient to permit ZILKKO to contact the complaining party, suchas an address, telephone number, and, if available, an electronic mail addressat which the complaining party must be contacted;
- Astatement that the complaining party has a good faith belief that use of thematerial in the manner complained of is not authorized by the copyright owner,its agent, or the law; and
- Astatement that the information in the notification is accurate, and underpenalty of perjury, that the complaining party is authorized to act on behalfof the owner of an exclusive right that is allegedly infringed.
The above informationmust be submitted to the following address:
Attention: ZILKKO Copyright Agent
524 E 85th St, 1E
New York, NY 10028
Only DMCA notices mailedto the address above or emailed to email@example.com will be accepted. Allother inquiries or requests will be discarded. Upon receiving a complaintrelated to copyright infringement, ZILKKO may remove the content identified asbeing infringing. In addition, ZILKKO may, but is under no obligation to,terminate the Account of the party that appears to be the infringer.
The following Sectionssurvive any termination of this Agreement: 1, 3.1.1, 4, 5.1, 5.3, 6.9, 6.10,7.2, 8, 10, 11, and 14 through 33.
22. No Agency
No agency, partnership,joint venture, employee-employer or franchiser-franchisee relationship isintended or created by this Agreement.
23. Governing Language
This Agreement is inEnglish and all disputes between the parties shall be resolved in English. Youunderstand and acknowledge that any foreign language services provided by ZILKKOare for informational purposes only and it is your obligation to obtainindependent legal advice at your own expense to ensure you understand the termsof this Agreement.
ZILKKO may freely assignor transfer any or all of the rights and obligations described in thisAgreement, or this Agreement in its entirety in connect with a merger,acquisition, or sale of assets or by operation of law or otherwise. You may notassign this Agreement or any of your rights and duties hereunder without the priorwritten consent of ZILKKO. This Agreement shall be binding upon and inure tothe benefit of the parties hereto and their respective successors and assigns.
If any provision of thisAgreement is determined by a court to be unenforceable or invalid, the validityof the remaining parts, terms or provisions shall not be affected by thatdetermination, and such court shall substitute a provision that is legal andenforceable and is as close to the intentions underlying the original provisionas possible.
You may not issue or makeany publicity release (including press releases and advertising or solicitationmaterials) or other public statement: (i) relating to this Agreement; (ii)using ZILKKO's name or referencing the Platform; or (iii) suggesting orimplying any endorsement by ZILKKO of you and/or any Physical Products withoutthe prior written approval of ZILKKO, which ZILKKO may withhold in its solediscretion.
27. Entire Agreement
This Agreementconstitutes the complete and exclusive agreement between the parties relatingto the subject matter hereof. It supersedes all prior proposals, understandingsand all other agreements, oral and written, between the parties relating tothis subject matter.
The waiver or failure by ZILKKOto exercise any right provided for herein will not be deemed a waiver of anyfurther right hereunder. The rights and remedies of ZILKKO set forth in thisAgreement are cumulative and are in addition to any rights or remedies ZILKKOmay otherwise have at law or equity, except with respect to any sole andexclusive remedies expressly provided for herein.
29. Equitable Actions
You acknowledge and agreethat any breach or threatened breach of this Agreement may cause immediate andirreparable harm to ZILKKO which would not be adequately compensated bymonetary damages and that ZILKKO may seek injunctive relief, specificperformance, and/or other equitable relief as a remedy for any such breach oranticipated breach without the necessity of posting a bond or other security.Notwithstanding any other provision of this Agreement, any such relief may besought in the state or federal courts of the State of New York or any othercourt of competent jurisdiction anywhere in the world (at ZILKKO's solediscretion), and, you hereby consent to the jurisdiction of any such court andwaive any objection to venue laid therein. Any such relief shall be in additionto and not in lieu of any appropriate relief in the way of monetary damages.
30. Force Majeure
Neither you nor ZILKKO shall be responsible for delays or failures in performance resulting from actsof God, strikes, lockouts, riots, acts of war and terrorism, embargoes,boycotts, changes in governmental regulations, epidemics, fire, communicationline failures, power failures, earthquakes, other disasters or any other reasonwhere failure to perform is beyond the control of, and not caused by, thenon-performing party.
Any notice, request,approval, authorization, consent, demand or other communication required orpermitted pursuant to this Agreement shall be in writing and shall be deemedgiven on the earliest of: (a) actual receipt, irrespective of the method ofdelivery; (b) the time of transmission from ZILKKO if sent via email, as datestamped by ZILKKO's systems; (c) on the delivery day following dispatch if sentby express mail (or similar next day air courier service); or (d) on the sixth(6th) day after mailing by registered or certified United States mail, returnreceipt requested, postage prepaid and addressed to the last address providedby a party.
Notices to ZILKKO shallbe delivered to:
524 E 85th St., 1E
New York, NY 10028
The section headings arefor convenience only and shall not control or affect the meaning orconstruction of any provision of this Agreement. Any graphics or annotationsprovided in connection with this Agreement are for illustration purposes onlyand do not constitute part of the Agreement and changing a graphic does notqualify as a change to this Agreement. The list of Prohibited Products andActivities is separately maintained, and modifications thereto will not qualifyas a change to this Agreement.