Operation Services

Operation Services

Dated/Last Update: July 19, 2020

PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES (AS DEFINED BELOW).

BY CLICKING TO ACCEPT OR AGREE TO THE TERMS WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU AGREE TO BE BOUND BY THESE TERMS, WHICH INCLUDE THE HYBREEDNG PRIVACY POLICY (WWW.zikorah.com/PRIVACY-PRIVACY/) AND ALL OTHER POLICIES, RULES, GUIDELINES, TERMS AND CONDITIONS ESTABLISHED FOR THE SERVICES AS SET FORTH THEREIN, WHICH ARE HEREBY INCORPORATED BY REFERENCE. THESE TERMS ESTABLISH A CONTRACTUAL RELATIONSHIP BETWEEN YOU AND HYBREEDNG, INC. (“HYBREEDNG,” “we,” or “us”). IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES. THESE TERMS EXPRESSLY SUPERSEDE PRIOR AGREEMENTS OR ARRANGEMENTS WITH YOU. HYBREEDNG MAY IMMEDIATELY TERMINATE THESE TERMS OR ANY SERVICES WITH RESPECT TO YOU, OR GENERALLY CEASE OFFERING OR DENY ACCESS TO THE SERVICES OR ANY PORTION THEREOF, AT ANY TIME FOR ANY REASON.

PLEASE NOTE: SECTION 8 OF THESE TERMS OF USE AFFECTS HOW DISPUTES BETWEEN YOU AND HYBREEDNG ARE RESOLVED. IT CONTAINS AN ARBITRATION PROVISION THAT REQUIRES DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS AND PROHIBITS CLASS ACTION CLAIMS. BY ACCEPTING THESE TERMS OF USE, YOU AGREE TO BE BOUND BY THAT ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.

  1. CONTRACTUAL RELATIONSHIP

These Terms of Use (“Terms“) govern the access and use by you (“Employee” or “you”) of the Zikorah Service (as defined below), content, products, and services (collectively, the “Services“) made available by Zikorah. By accepting these Terms, you represent and warrant that you are authorized to agree to these Terms on behalf of Employee and to bind Employee to these Terms.

You are an independent company, and you are authorized to conduct your business in the state(s) or jurisdiction(s) in which you operate. You desire to enter into these Terms for the purpose of accessing and using the Services for purposes of arranging and obtaining Employee services from third party providers who have been approved by Zikorah to use the Services and who are subject to Zikorah’s standard Online Services Agreement for Employee Services Providers (such Employee services are “Employee Services” and such third-party providers are “Zikorah Pros“).

Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you and you must accept such supplemental terms in order to receive the applicable Service(s). Such supplemental terms are in addition to, and shall be deemed a part of, these Terms for the purposes of the applicable Service(s). Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.

Zikorah may amend the Terms related to the Services from time to time. Amendments will be effective upon Zikorah’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service(s). Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.

2. THE SERVICES

The Services include a technology platform that enables users of Zikorah’s SMS text messaging platform, mobile application, or websites provided as part of the Services (the “Zikorah “) to arrange and schedule Employee Services with Zikorah Pros. YOU ACKNOWLEDGE THAT HYBREEDNG DOES NOT PROVIDE EMPLOYEE SERVICES. 

Zikorah requires all Zikorah Pros to obtain and maintain a valid and sufficient Occupational Accident Insurance (“OAI”) policy.

2.1 License.

Subject to your compliance with these Terms, Zikorah grants you a limited, non-exclusive, non-sub licensable, revocable, non-transferrable license to: (i) access and use the Zikorah Serviceon your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely in connection with your use of the Services. Any rights not expressly granted herein are reserved by Zikorah and Zikorah’s licensors.

2.2 Restrictions.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Zikorah; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

2.3 Third Party Services and Content.

The Services may be made available or accessed in connection with third party services and content (including advertising) that Zikorah does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third-party services and content. Zikorah has no control over and does not endorse such third-party services and content and in no event shall Zikorah be responsible or liable for any interactions you may have with or any products or services you may receive from such third party providers.

2.4 Ownership.

The Services and all rights therein are and shall remain Zikorah’s property or the property of Zikorah’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner Zikorah’s company names, logos, product and service names, trademarks or services marks or those of Zikorah’s licensors.

2.5 User Submissions. Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission,” which may include your chat data or shift postings.  Some User Submissions are viewable by other users.  In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions.

For all User Submissions, you hereby grant Zikorah a license to translate, modify (for technical purposes), for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable Zikorah to operate the Services. This is a license only – your ownership in User Submissions is not affected.

If you store a User Submission in your own personal account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant Zikorah the license above, as well as a license to display, perform, and distribute your Personal User Submission for the sole purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.

If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users) (a “Limited User Submission”), then you grant Zikorah the licenses above, as well as a license to display, perform, and distribute your Limited User Submission for the sole purpose of making that Limited User Submission accessible to such other specified users, and providing the Services necessary to do so.  Also, you grant such other specified users a license to access that Limited User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.

If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view (a “Public User Submission”), such as your shift posting, then you hereby grant Zikorah the licenses above, as well as a license to use, copy, modify, translate, distribute, perform, publish, and process your Public User Submission for the purpose of making that Public User Submission accessible to all Zikorah users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in the Public User Submission in connection with the Services and/or otherwise in connection with Zikorah’s business for any purpose, provided that Zikorah will try to notify you if it uses your Public User Submission for any reason other than displaying it on the Services.  Also, you grant all other users of the Services a license to access that Public User Submission and to use and exercise all rights in it, as permitted by the functionality of the Services.  You agree that the licenses you grant are royalty-free, perpetual, sublicensable, irrevocable, and worldwide.  When you delete your account, we will stop displaying your User Submissions to other users (if applicable), but you understand and agree that it may not be possible to completely delete that content from Zikorah’s records, and that your User Submissions may remain viewable elsewhere to the extent it was copied or stored by others. You further understand and agree that Zikorah, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt such User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.

Please note that the foregoing licenses are subject to our Privacy Policy https://zikorah.com/privacy to the extent they relate to User Submissions that are also your personally identifiable information.

2.6 Content on the Services. The materials displayed or available on or through the Services, including but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, and so forth (all the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws.  You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you will not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you (i) without the prior consent of the owner of that Content, or (ii) in a way that violates someone else’s (including Zikorah’s) rights.

Any information or content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such content originated, and you access all such information and content at your own risk, and Zikorah is not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it.  Zikorah cannot control and has no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release Zikorah from all liability for you having acquired or not acquired Content through the Services. 

You are responsible for all Content you contribute, in any manner, to the Services and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.  You may not upload, distribute or otherwise publish any Content that is invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, threatening, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful or otherwise objectionable, including but not limited to any Content that encourages conduct that would constitute a criminal offense or otherwise violates any applicable U.S. or foreign laws.  You agree to comply with the Community Guidelines (https://zikorah.com/community-policies/) in your use of the Services.

2.7 Copyright. We respect others’ intellectual property rights, and we reserve the right to delete or disable any content posted through the Services that is alleged to be infringing, and to terminate the accounts of repeat alleged infringers, in accordance with the Digital Millennium Copyright Act (the “DMCA“). To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here www.zikorah.com/copyright/.

3. YOUR USE OF THE SERVICES

3.1 User Accounts.

In order to use most aspects of the Services, you must register for and maintain an active Services account (“Account“). Account registration requires you to submit to Zikorah certain personal information, such as your name, company name, address, and phone number, as well as valid Payment Method (defined below). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or Zikorah’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Zikorah in writing, you may only possess one Account.

3.2 User Requirements and Conduct.

You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes. You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Zikorah Pro or any other party. You may not solicit any Zikorah Pros for employment or contracting purposes outside of the Employee Services as facilitated through the Zikorah Service without prior written permission from us.  In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.

3.3 Text Messaging.

By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services and that use of SMS is necessary to utilize the Services. We may send you SMS messages, for example, to communicate with you regarding Zikorah, to provide status updates, and to provide alerts regarding your requested Employee services (such as when a job has been filled or when a requested Zikorah Pro is in transit).  When you create an account, we will send you an E-mail or an SMS message to confirm your sign-up. 

If you have any questions regarding privacy, please refer to our privacy policy at https://zikorah.com/privacy-policy.

3.4 Promotional Codes.

Zikorah may, in Zikorah’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a Zikorah Pro’s services, subject to any additional terms that Zikorah establishes on a per promotional code basis (“Promo Codes“). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by Zikorah; (iii) may be disabled by Zikorah at any time for any reason without liability to Zikorah; (iv) may only be used pursuant to the specific terms that Zikorah establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. Zikorah reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that Zikorah determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.

3.5 Network Access and Devices.

You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and The Zikorah Serviceand any updates thereto. Zikorah does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

4. YOUR RELATIONSHIP WITH HYBREEDNG PROS

You acknowledge and agree that your arranging and obtaining of Employee Services from a Zikorah Pro creates a direct business relationship between you and that Zikorah Pro, and your interactions and dealings with such Zikorah Pro are solely between you and such Zikorah Pro. Zikorah Pros are independent contractors and are not employees of Zikorah. Zikorah is not responsible or liable for the actions or inactions of any Zikorah Pro in relation to the Employee Services. You shall have the sole responsibility for any obligations or liabilities to Zikorah Pros or other third parties that arise from your arranging and obtaining Employee Services. You acknowledge and agree that you are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a Zikorah Pros or other third party.

5. PAYMENT

5.1 Charges.

You understand that use of the Services may result in charges to you for the Employee Services you receive from a Zikorah Pro (“Charges“), and you agree to pay all such Charges that you incur. After you have received Employee services obtained through your use of the Service, Zikorah will facilitate your payment of the applicable Charges on behalf of the Zikorah Pro, as such Zikorah Pro’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Zikorah Pro. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by Zikorah. You retain the right to negotiate the Charges with a Zikorah Pro for Employee services received by you from such Zikorah Pro at the time you receive such services. Zikorah will respond accordingly to any request from a Zikorah Pro to modify the Charges for a particular service.

As between you and Zikorah, Zikorah reserves the right to establish, remove and/or revise Charges for any or all Employee Services obtained through the use of the Services at any time in Zikorah’s sole discretion. Zikorah will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Zikorah may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for Employee services from a Zikorah Pro at any time prior to such Zikorah Pro’s arrival, in which case you may be charged a cancellation fee, in accordance with Zikorah’s then current cancellation policy.

5.2 Gratuity.

This payment structure is intended to fully compensate the Zikorah Pro for the services or goods provided. Zikorah does not designate any portion of your payment as a tip or gratuity to the Zikorah Pro. You understand and agree that, while you are free to provide additional payment as a gratuity to any Zikorah Pro who provides you with services obtained through the Service, you are under no obligation to do so. Gratuities are voluntary. After you have received services obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about your Zikorah Pro.

5.3 Service Charge.

In consideration of Zikorah’s provision of the Zikorah Services for your use and benefit hereunder, you agree to pay Zikorah a service charge on a per Employee Services transaction basis calculated as a percentage of the Charges (regardless of any alternately negotiated Charges), as provided or otherwise made available by Zikorah from time to time (“Service Charge”). Zikorah reserves the right to change the Service Charge at any time in its sole discretion, and Zikorah will provide you with notice in the event of such change. Continued use of the Zikorah Services after any such change in the Service Charge calculation shall constitute your consent to such change.

5.4 Payment Method.

You agree to pay all applicable Charges via the payment method specified in your Account, which may be by ACH payment or credit card (“Payment Method”). For ACH and credit card payments, all Charges and Service Fees are due immediately, and Zikorah will automatically debit your payments or charge your credit card using the preferred Payment Method designated in your Account, after which Zikorah will send you a report by email. If your primary Account Payment Method is determined to be expired, invalid or otherwise not able to be charged, you agree that Zikorah may, as the Zikorah Pro’s limited payment collection agent, use a secondary payment method in your Account, if available. In the event that there are unpaid or past due amounts for Charges or Services Fees associated with your Account, you must pay a finance charge of the lesser of 1.5% per month or the maximum amount permitted by law on such outstanding balances, plus all expenses of collection, including reasonable attorneys’ fees.

6. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY.

6.1 DISCLAIMER.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” HYBREEDNG (ON BEHALF OF ITSELF, ITS LICENSORS, AND THE HYBREEDNG PROS) DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, HYBREEDNG (ON BEHALF OF ITSELF, ITS LICENSORS, AND THE HYBREEDNG PROS) MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY EMPLOYEE SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. HYBREEDNG DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF HYBREEDNG PROS OR THE EMPLOYEE SERVICES THEY PROVIDE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY EMPLOYEE SERVICE REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

6.2 NO SERVICE GUARANTEE

HYBREEDNG AND ITS LICENSORS DO NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE SERVICES OR THE HYBREEDNG APP. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES OR THE HYBREEDNG SERVICEMAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE SERVICES OR THE HYBREEDNG SERVICEMAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND HYBREEDNG ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.

6.3 LIMITATION OF LIABILITY.

NEITHER HYBREEDNG, ITS LICENSORS, NOR THE HYBREEDNG PROS SHALL BE LIABLE UNDER OR RELATED TO THESE TERMS FOR ANY OF THE FOLLOWING, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (i) ANY INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES OF ANY TYPE OR KIND; OR (ii) LOSS OR INACCURACY OF DATA, OR LOSS OF BUSINESS, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE. THIS LIMITATION OF LIABILITY INCLUDES ANY OF THE FOREGOING TYPES OF DAMAGES ARISING FROM YOUR ACCESS OR USE OF THE SERVICES OR ANY EMPLOYEE SERVICES PROVIDED BY HYBREEDNG PROS. HYBREEDNG’S SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE EMPLOYEE SERVICES WITH HYBREEDNG PROS, BUT YOU AGREE THAT HYBREEDNG HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY EMPLOYEE SERVICES PROVIDED TO YOU BY HYBREEDNG PROS OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

IN NO EVENT SHALL THE TOTAL LIABILITY OF HYBREEDNG OR ITS LICENSORS TO YOU EXCEED FIVE HUNDRED DOLLARS ($500.00).

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 6 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

6.4 Indemnity.

You agree to indemnify and hold Zikorah and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees and costs), arising out of or in connection with: (i) your use of the Services or Employee Services obtained through your use of the Services; (ii) your breach or violation of any of these Terms; or (iii) your violation of the rights of any third party, including Zikorah Pros.

7. APPLE APP STORE TERMS. 

These Terms applies to your use of all the Services, including the iPhone, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:

7.1 Both you and Zikorah acknowledge that these Terms are between you and Zikorah only, and not with Apple, and that Apple is not responsible for the Application or any content posted to or made available via the Application;

7.2 The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Zikorah Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they apply to the Services;

7.3 You will only use the Application in connection with an Apple device that you own or control;

7.4 You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;

7.5 In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;

7.6 You acknowledge and agree that Zikorah, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;

7.7 You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Zikorah, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;

7.8 You represent and warrant that you are not located in a country subject to a Nigerian Government embargo, or that has been designated by the Nigerian Government as a “terrorist supporting” country, and that you are not listed on any Nigerian Government list of prohibited or restricted parties;

7.9 Both you and Zikorah acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and

7.10 Both you and Zikorah acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

8. DISPUTE RESOLUTION

8.1 Arbitration.

You agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, “Disputes“) will be settled by binding arbitration between you and Zikorah, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Zikorah are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Zikorah otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

 

9. OTHER PROVISIONS

9.1 Notice.

Zikorah may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Zikorah, with such notice deemed given when received by Zikorah, at any time by first class mail, pre-paid post, or electronic mail to Zikorah Inc.,

9.2 General.

You may not assign these Terms without Zikorah’s prior written approval. Zikorah may transfer, assign, or delegate these Terms and its rights and obligations without your consent. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, Zikorah or any Zikorah Pro as a result of these Terms or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Zikorah’s failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Zikorah in writing.