Express Lien, Inc. d/b/a Zlien – Disclaimer and Terms & Conditions
Understanding Express Lien, Inc. d/b/a Zlien
Welcome to Express Lien, Inc. d/b/a Zlien (Company) your electronic project management and lien solution source.
If you have received a letter from Express Lien, Inc. d/b/a Zlien identifying you as an “Enterprise Client” the Enterprise Client Terms & Conditions (of which you received a copy) apply instead of these terms.
The Company prides itself on providing a unique lien management and filing services to the construction industry. However, the Company is not a law firm or attorneys, and cannot provide you legal advice. We do not offer attorney or lawyer services. The services we offer are different from the services offered by an attorney. We only provide self-help services at your specific direction. Although we are a registered legal document assistant in California, county clerks have not evaluated or approved the Company’s knowledge or experience, or the quality of the Company’s services. The Company is not permitted to engage in the practice of law, including providing any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies.
Attorneys can give you competent legal advice to help you determine whether you have a right to lien, whether there are other or more specific ways to enforce your rights for payment, and whether you are selecting the correct document-type to file. The Company is not a law firm, and we cannot provide this advice.
If you do not want to consult an attorney for legal advice, you can perform research on the law yourself and draw your own conclusions, at your own risk. The Company provides legal information (not legal advice) on its blog (http://www.constructionlienblog.com), through the LienPilot and Lien Wizard, at the MechanicLien.com website, and elsewhere as published on the Internet. This legal information is oftentimes a compilation of information from other sources.
In addition to these resources, you can use Google or other search engines to find the lien statutes in your state and read them, or you can search the web for other blogs, journals and legal information sites to learn more about the issue you confront. If you would like to locate an attorney in your area or you would like to get free legal advice, you can do so online through a website at http://www.avvo.com. You may also obtain information regarding free or low-cost representation through a local bar association or legal aid foundation and may contact local law enforcement, a district attorney, or a legal aid foundation if you believe you have been a victim of fraud, the unauthorized practice of law, or any other injury.
The Company is a legal document preparation company. We are licensed as a legal document assistant in Los Angeles County, California, as LDA-352. This license expires in May 2014. Our mailing address is 14525 SW Millikan #7790, Beaverton, Oregon, 97005-2343. Our phone number is 866-720-5436 (LIEN).
Please understand that the lien laws vary state to state and are updated, changed and altered frequently, by legislation, jurisprudence, mandate and other executive action.
Please read these Disclaimers and the Terms & Conditions of your use of the Company, Zlien.Com, Lien Pilot, Lien Wizard, Express Lien, Inc., Zlien, MechanicLien.com, ConstructionLienBlog.com, and any and all of our other services (together these are the “User Terms”). This entire page, beginning at the top, consists of the User Terms of your use of, without limitation, this website, any affiliated websites, written and design materials found through any of our resources, our forms and documents, our databases, our data, our software, html, and other electronic data, our educational, informational and blog resources, and any e-mail, facsimile, verbal, telephonic or other communications.
Use of The Company’s Services
Please be advised that Zlien.com, LienPilot.com, MechanicLien.com, ExpressLien.com, Lien Wizard, Lien Pilot and ConstructionLienBlog.com are all operated under Express Lien, Inc., a Louisiana state corporation. Express Lien, Inc. provides services through these websites, but also through its offices, facsimile transmissions and the personnel you speak to and communicate with about our services. Use of any of our websites, products, forms, data, information, resources, or other services, are governed by the Company’s User Terms, which appear on this page.
By using the services provided by the Company, you understand, acknowledge and agree that under no circumstances will the Company, its directors, its shareholders, its employees, its officers, its writers, or its other agents or contractors (together the Company’s “agents”), be responsible for (1) interpretation of the lien, or any other, laws; (2) any information contained on or omitted from any of its websites, or which is communicated to you from any of the Company’s agents, (3) any person’s or entity’s reliance on, or expectations about, any such information, regardless of the information’s accuracy, (4) any action, omission, or failure to act occasioned by any person or entity based upon information, advice, or customer service provided by the Company, through any source, or any medium. In short – you understand that you use the Company’s services, information and publications AT YOUR OWN RISK.
The Company, its agents, and its writers cannot and do not provide legal assistance, advising or counsel, and as such they shall have no responsibility or liability for (1) any person’s reliance upon information provide by attorneys to the Company’s resources, (2) opinions or assumptions made by legal professionals employed by or consulting with the Company, (3) and any and all understandings, beliefs, reliance, or responses you form or make as a consequence of any information, opinions, or assumptions given to you by agents of the Company.
The Company is not a law firm, and the employees of the Company are not acting as your attorney. The Company does not practice law and does not give legal advice. This site and the Company’s services are not intended to create an attorney-client relationship, and by using the Company, no attorney-client relationship will be created with the Company, its employees, affiliates, members, or with any and all law firms, attorneys and/or other parties who sponsor, advertise and/or are otherwise represented within the Company’s websites or promotions.
The company provides certain forms and documents on its website, available to the public at no cost (“Free Forms”). The use of the Free Forms is AT YOUR OWN RISK. The Company makes no guarantee as to the Free Forms’ content or to the Free Forms’ fitness for any purpose whatsoever. Further, the Company expressly makes no warranties, either express or implied, as to the Free Forms, including fitness for a particular purpose. The Free Forms are provided a a resource for personal use only. Any commercial use of the Free Forms is expressly prohibited. By using the Free Forms, you hereby agree to the following: 1) That the Free Forms are provided solely for personal use as a resource and/or template, 2) As a resource and/or template the Free Forms should not be mailed, filed, recorded, or otherwise used in any other manner related to a construction or other project; 3) The Free Forms may not be used in any commercial manner, including reselling, or otherwise distributing; 4) Because use of the Free Forms in the manner described in “2)” and/or “3)” previously, directly and detrimentally effects the business of the company, that such detrimental effect is difficult to measure – and that the expense and time consumed in a trial or arbitration is unnecessary and unwanted to determine same – you agree to liquidated damages in the amount of $15,000 per use disallowed use as described by “2)” and/or “3)” perviously. You explicitly agree that this amount of liquidated damages is not intended to be, and does not, constitute a penalty; and is agreed by you and the Company to reflect the damage to the Company from any act prohibited by “2)” and “3)” above.
You Agree to the Disclaimer of Warranties
The Company does all it can to ensure that its services are accurately rendered, but error exists in all things, which you understand and acknowledge. The Company is not and shall not be responsible for any errors or omissions that occur in the course of performing services. THIS SITE IS PROVIDED TO THE CUSTOMER “AS IS.” To the fullest extent permissible, the Company disclaims all warranties, whether express or implied, including but not limited to, implied warranties of merchantability, and fitness for a particular purpose.
To be more specific, but without limiting anything to the following, the Company does not warrant (1) that the information provided on Company websites, during phone calls or in communications are error free, fact checked or up to date, (2) that documents ordered by you will be timely filed, served or mailed, in accordance with law, (3) that documents ordered by you will be error free, (4) that documents ordered by you will include any information other than that which is provided by you, (5) that the correct document will be filed, served or mailed, (6) that you will or may have the right to file a notice, lien, or other document offered by the Company, or (7) that you will be able to remedy errors in a timely fashion.
The limitations listed in this Section partially stem from the Company’s inability to access all the information about a project, your customers and the work that you perform. Thus, it is vital that you be proactive and take all efforts to collect as much data about your customers, their contracts with owners, project data and the dates of your service and the completion of the project. No amount of data collected by you, or made known to the Company, will in any way limit the disclaimers of warranties, limitations of liability, or any other clauses contained within these Terms and Conditions.
The Company is merely a document filing service, and makes no warranties or representations regarding your legal right to file a lien. The Company makes no guarantee that the lien will be filed timely in accordance with relevant laws, or that you and/or your company is legally entitled to lien a premises. The Company will place your ordered document in a Walz Group batch for mailing to the proper party and/or recording office within five (5) business days of any placed orders, or if a rush charge is paid by you within one (1) business day of any placed order. Once your ordered document is placed in the Walz Group batch for mailing, the document will be mailed within 2 business days, subject to the terms and conditions of the Walz Group. However, these performance dates are subject to your cooperation with the Company, who may require additional information or documentation to place your order. If additional information and documentation is required, the Company will send for delivery the ordered document to the proper party and/or recording office within the previously stated time periods from the date the additional information or documentation is provided. In all cases, the Company cannot guarantee that the recording office or receiving party will file or receive the document on presentation.
For filings, you agree that the Company is not responsible for any delay in filing as a result of delays and errors of the United States Postal Service, courier, UPS, FedEx, Walz Group, and/or any other similar delivery method, nor is the Company responsible for the recording office’s errors, mistakes, backlog, decision on whether or not to file, and/or any other delays by the recording office whatsoever. For other documents that are not filed, you agree the Company is not responsible for any delay in delivering as a result of any delays and errors of the United States Postal Service, courier, UPS, FedEx and/or any other similar delivery method, nor is the Company responsible for any party’s refusal to accept delivery of any documents.
You Agree to Limitations on Liability
The Company, its agents, and its writers shall not be liable to a customer or any other person or entity for any damage that results from the use of, or the inability to use, the Company’s services, for reliance on the information contained in any of the Company’s websites, for any misrepresentations made by you, communications or other resources, or for any consequential, incidental, indirect, punitive, special or similar damages, even if advised of the possibility of such damages. You agree and acknowledge that your full and sole recovery shall be limited to the cost of the services provided to you by the Company, to the minimal extent possible to rescind the single transaction causing you damage or loss. As the services provided by the Company include the entry of data, typographical or other errors or mistakes may occur. You explicitly understand, acknowledge and agree that in the event any error, omission, mistake, or any other incorrect entering of data by the Company, or its agents, causes you damage or prejudices you in any way, your full and sole recovery shall be limited to the cost of the services provided to you by the Company, to the minimal extent possible to rescind the single transaction causing you damage or loss.
You agree that the Company and its agents or assigns SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ATTORNEY’S FEES, LEGAL COSTS, LOST PROFITS, LOST COLLECTIONS, LOST OR ELAPSED RIGHTS, OR ANY OTHER LOST BENEFIT OR ADVANTAGE THAT IN ANY WAY IS DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH THE COMPANY’S SERVICES, INFORMATION, CONTENT, OR PERFORMANCE, REGARDLESS OF ANY NEGLIGENCE, WHETHER MINOR OR GROSS, on the part of the Company, its agents or assigns.
You have a duty to and agree to defend, indemnify and hold harmless the Company, its agents and assigns, from and against any and all liabilities of every nature, which arise from the Company’s performance of services on your behalf, including but not limited to (a) injury or death of any person; (b) damages to property; (c) defect in title or financing; (d) violation of any laws; (e) failure to pay recordation or other fees or taxes to any governing agency: (f) failure to pay contractors, employees, suppliers, or other parties to which it owes liability for anything related to Company’s services; (g) damages to other parties, contractors, subcontractors, or supplies; or (h) delay, financing, rental, or clouded title damages, all of which is including, without limitation, consequential, incidental and special damages, costs, claims, penalties, fines, forfeitures, causes of action, or suits and the costs and expenses incident thereto, including costs of defense, negotiation, preparation, settlement and reasonable attorneys’ fees, which you, your client or any other party, may incur, suffer, or be responsible for, which is caused by, arise out of, or are related to the performance of the Company’s services, in any manner.
Your obligations to indemnify, defend and hold harmless the Company survives any allegations or judgment which implicates that the Company or another party is partially, collectively, comparatively, or contributory negligent or responsible for any portion of the damages, up to and including the full extent of the your responsibility for liability explained herein.
The Company’s right to indemnification is an additional right and does not limit or exclude other remedies such that Company shall have any and all rights granted by this Agreement or law. Your duty to defend the Company and duty to indemnify and hold harmless the Company are separate and independent obligations, but cumulative, and the duty to defend arises immediately upon the Company being placed in a defensive position under any circumstance caused to any extent by you. Company shall be entitled to select its own legal counsel but you shall remain liable for the full cost of those fees and legal costs, which the Company is entitled to under this Section.
Information Provided to the Company
The Company is not responsible or liable for any misrepresentations made by you or your company. You agree that the Company will prepare the ordered product based only on the information you submit to the Company, and you understand that the accuracy, completeness and/or reliability of this information is not guaranteed, checked, monitored or otherwise reviewed by the Company. At no time does the Company review submitted information for legal sufficiency, and the Company does not draw legal conclusions, provide legal advice or apply the law to the facts of your particular situation. The Company is not a substitute for the advice of an attorney.
Each document template used requires certain information about you, your customer, your project and the debt. Any delay in providing requested information to the Company will delay the processing of your order.
You Agree That The Company is Your Agent
For the purposes of signing and filing your ordered product only, you appoint the Company and its employees and agents as your agent and/or your company’s agent, and specifically indemnify the Company, as provided in these User Terms, in connection to the appointment.
Advertisers, Referrals, and Partnering Persons and Entities
The Company works with others in the lien law arena. Some of these professionals, persons and entities may advertise or partner with the Company to provide services to you. The Company shall not be responsible for (1) any and all information, advising, and opinions of these parties, (2) these parties’ failure to contact or communicate with you, and (3) these parties’ performance of duties on your behalf. You accept the risk of loss, damage or non-performance by any of these persons. While the Company tries its best to work with top-notch parties, it cannot control the actions of these professionals, persons or entities – so please proceed at your own caution.
Escrow.Com, Miller Ross & Goldman, Kaplan Group, Walz Group, and Other Contractors
The Company works with others service providers, contractors, and affiliated third parties who provide valuable services to you. These third parties include, but may not be limited to, Escow.com, Miller Ross & Goldman, The Kaplan Group, and Walz Group. Escrow.Com works under an affiliation agreement with the Company to provide escrow access for clients trying to resolve lien disputes. Miller, Ross & Goldman, and The Kaplan Group work under separate affiliation agreements with the Company to provide collection services for clients trying to collect on a debt. Walz Group work under an affiliation agreement with the Company to provide mailing services. Other contractors may be added to the Company’s services to provide additional services to you.
By using the Company’s services, you are expressly agreeing that the Company shall not be responsible for (1) any and all information, advising, and opinions of these parties, (2) these parties’ failure to contact or communicate with you, and (3) these parties’ performance of duties on your behalf.
Again, you expressly accept the risk of loss, damage or non-performance by any of these persons. While the Company tries its best to work with reputable parties, it cannot control the actions of these professionals, persons or entities – so please proceed at your own caution.
Assignments of Liens
The Company also offers the purchase of and assignment of your lien rights. In some cases, you may determine that your lien rights are enforceable (or marginally so) but that you do not want to (a) expend the cost to pursue enforcement and/or (b) run the risk of non-payment or non-collection. In some of these instances, after proper review by a Company agent, the Company may elect to purchase, buy and assume assumption of your lien rights, lien documents, and security.
In the event that the Company elects to transact with you for the purchase of your lien and/or lien rights, you are obligated to execute the Company’s standard Assignment of Rights Agreement and comply with the terms and conditions thereon. You also agree to (1) provide the Company with any and all documents which it requests, (2) cooperate with the Company’s action to enforce these rights, and (3) refrain from excluding vital information which might have an effect on the claim. Please refer to your Assignment of Rights Agreement for the full extent of the terms of your transfer.
Deadline Calculation and “Lien Pilot” Software, Widget
The Company also offers as part of its “Lien Pilot” a software system whereby users input requested information about their construction project, and the system generates legal education material relevant to the project along with (i) potentially relevant forms; and (ii) potentially relevant deadlines for filing and delivering notices, liens, lawsuits, cancellations and similar instruments.
The Lien Pilot software does not engage in the practice of law. The summary of legal steps, the legal educational materials, and the calculated deadlines are rendered by the Lien Pilot software for managerial and educational purposes only. The results of the Lien Pilot’s software calculations are not to be relied upon in lieu of legal advice. You must independently verify the deadline calculations and legal educational materials provided with your legal counsel.
Further, the legal deadlines and requirements applicable to your project are complex, and change frequently by law, jurisprudence, mandate and otherwise. While the database may be useful for educational and managerial purposes, there are limitations to the ability of a database, unavoidable errors and typographical mistakes, and other problems.
The Lien Pilot is also a BETA program. As defined by Wikipedia, “Beta” is a nickname for software which has passed the alpha testing stage of development and has been released to users for software testing before its official release.”
The database and software is provided “AS IS” and are intended for use only by business executives, receivable managers, credit, legal and other business professionals familiar with the general administration and usage of lien law statutes and laws.
Terms & Conditions of Any Sale
The Company (“Seller”) hereby agrees to sell, and You (“Buyer”) hereby agree to purchase, services of the description and quantity described on the checkout window (“Checkout”) and incorporated herein by this reference (“Services”) on the terms and conditions set forth in this Agreement. Buyer agrees to pay the Purchase Price of the Services as posted on this website. The total amount of the Purchase Price shall be payable in full by Buyer according to the payment due date stated at Checkout. Any portion of the Purchase Price unpaid past thirty (30) days shall be considered overdue. All amounts past due are subject to a late charge of the lesser of one and one-half percent (1 1/2%) per month (being eighteen percent (18%) per annum) or the highest lawful rate. In addition, Seller shall have the right to pursue any remedies available at law or as provided herein and shall be entitled to reimbursement from Buyer for Seller’s costs of collection, including attorney fees, legal fees and costs and disbursements. You understand and agree that your order or purchase will not be processed until payment on the order is made in full.
Orders of Services may be canceled within 48 hours, if the document ordered has not yet been created, processed, or sent to a recorder or any other party. If an order is able to be cancelled, 50% of the Purchase Price will be refunded as Company credit only. If the order was “rushed,” the $95.00 rush fee will not be refunded, but 50% of the order’s underlying charge will be refunded as Company credit only, provided that the document has not yet been created, processed, or sent to any party. Company credit may be used to purchase products and/or services from the Company only. Any monthly charges are refunded on a pro-rata basis for services not used.
In the event your debt is paid by the debtor after ordering the Services from the Company, but before the Services order is processed, the Company will refund 100% of the Purchase Price. The Company retains the right to determine whether the refund will be made in Company credit, or in any other way. For all refund purposes, “processed” can mean, but is not limited to, any of the following: a document has been prepared, zlien has performed research, or zlien has responded to your order via telephone, email, live chat, or any other means.
Conduct on Site
Your use of the site is subject to all applicable laws and regulations, and you are solely responsible for the substance of your communications through the site. By posting information in or otherwise using any communications service, chat room, message board, newsgroup, software library, or other interactive service that may be available to you on or through this site, you agree that you will not upload, share, post, or otherwise distribute or facilitate distribution of any content — including text, communications, software, images, sounds, data, or other information — that:
a. is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), or otherwise violates our rules or policies;
b. victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
c. infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party;
d. constitutes unauthorized or unsolicited advertising, junk or bulk email (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
e. contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party; or
f. impersonates any person or entity, including any of our employees or representatives.
In addition, you may not use your account to breach security of another account or attempt to gain unauthorized access to another network or server. Not all areas of the site may be available to you or other authorized users of the site. You shall not interfere with anyone else’s use and enjoyment of the site or other similar services. Users who violate systems or network security may incur criminal or civil liability.
You agree that we may at any time, and at our sole discretion, terminate your membership, account, or other affiliation with our site without prior notice to you for violating any of the above provisions. In addition, you acknowledge that we will cooperate fully with investigations of violations of systems or network security at other sites, including cooperating with law enforcement authorities in investigating suspected criminal violations.
Intellectual Property Information
Copyright (c) protected. Express Lien, Inc. All Rights Reserved.
For purposes of these User Terms, “content” is defined as any information, data, communications, software, photos, video, graphics, music, sounds, compilations, databases and other material and services that can be viewed by users on our site. This includes message boards, chat, comments, and other original content.
By accepting these User Terms, you acknowledge and agree that all content presented to you on this site is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws, and is the sole property of the Company and/or its Affiliates. You are only permitted to use the content as expressly authorized by us or the specific content provider. Except for a single copy made for personal use only, you may not copy, reproduce, modify, republish, upload, post, transmit, or distribute any documents or information from this site in any form or by any means without prior written permission from us or the specific content provider, and you are solely responsible for obtaining permission before reusing any copyrighted material that is available on this site. Any unauthorized use of the materials appearing on this site may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.
The following are registered trademarks, trademarks or service marks of Express Lien, Inc. or its Affiliates: Express Lien, Lien Smarter…Get Paid, Lien Wizard, Lien Pilot, Lien Smart. Get Paid., zlien, and Construction Lien Blog. All custom graphics, icons, logos and service names are registered trademarks, trademarks or service marks of Express Lien, Inc. or its Affiliates. All other trademarks or service marks are property of their respective owners. Nothing in these User Terms grants you any right to use any trademark, service mark, copyright, logo, and/or the name of Express Lien, Inc. or its Affiliates.
These Terms & Conditions May Change Without Notice!
You also agree that the Company and any of its agents, contractors, or assigns, may change, alter, or amend these User Terms without notice to you! You understand that because of changes in law, procedure, company offerings and ramifications of liability – changes to these User Terms may be necessary. The Company may change anything in these User Terms with or without notice to you; your continual use of the Company’s services is adequate and appropriate consideration for your acceptance of any changed, altered, or amended User Terms. Any change shall be retroactive to the first date of your use of the Company’s services. You should continue to check our website at http://www.zlien.com/terms-of-use/ There you will be able to find the most current and applicable Terms.
Should any part of this Agreement be rendered or declared invalid by a court of competent jurisdiction in the State of Louisiana, such invalidation of such part or portion of this Agreement should not invalidate the remaining portions thereof, and they shall remain in full force and effect.
Disputes with Express Lien and Remedies
Please read this carefully. It affects your rights.
In the event that the Company is unable to resolve your complaint to your satisfaction, you and the Company agree that the dispute may be resolved through either binding arbitration or through a court proceeding – the nature of the proceeding shall be AT THE SOLE DISCRETION OF THE COMPANY. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than a court does, and is subject to very limited review by courts. Any arbitration under these Terms will take place on an individual basis; class arbitrations and class actions are expressly prohibited. In the event that any dispute is submitted to Arbitration, you and the Company shall split the costs of Arbitration, including the costs for the initiation of such Arbitration proceeding. The non-filing party shall furnish its one-half of the filing costs to the filing party or to the AAA, to be credited to the filing party, within ten (10) days after the non-filing party receives official notification of the proceedings from the AAA, or otherwise the filing party may recover liquidated damages of $200.00 per day until the amount is paid. Venue for any Arbitration proceeding hereunder shall be in New Orleans, Louisiana, and the neutral or arbitrator shall be a reputable attorney. In the event that the Company chooses to litigate the dispute in court, you explicitly agree to New Orleans as the venue for the proceeding. In the event that Arbitration is chosen by the Company as the method for resolving the dispute – the agreement is set forth in the section entitled “Arbitration Agreement” following this paragraph. In the even that the Company chooses to litigate the dispute in court, the following section setting forth the “Arbitration Agreement” does not apply.
(a) The Company and you agree to arbitrate all disputes and claims between us before a single arbitrator. The types of disputes and claims we agree to arbitrate are intended to be broadly interpreted. It applies, without limitation, to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory;
- claims that arose before these or any prior Terms (including, but not limited to, claims relating to advertising); and
- claims that may arise after the termination of these Terms.
For the purposes of this Arbitration Agreement, references to the “Company”, “you,” and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or products under these Terms or any prior agreements.
You agree that, by entering into these Terms, you and the Company are each waiving the right to a trial by jury or to participate in a class action. These Terms evidence a transaction or website used in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of these Terms.
(b) A party who intends to seek arbitration must first send, by U.S. certified mail, a written Notice of Dispute (“Notice”) to the other party. A Notice to the Company shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at firstname.lastname@example.org, if by email, or at Express Lien, Inc. d/b/a Zlien, 14525 SW Millikan #7790 Beaverton, Oregon 97005-2343 if by conventional mail. The Notice must (a) describe the nature and basis of the claim or dispute and (b) set forth the specific relief sought (“Demand”). If the Company and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, arbitration proceeding may be commenced by either party.
(c) The arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND THE COMPANY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITIES AND NOT AS PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. The arbitrator shall not award relief in excess of what these Terms provide or award punitive damages or any other damages not measured by actual damages.
(d) All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential, except as needed for an appeal of the arbitration award for improper determinations of matters of law only.
(e) The Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Agreement including, but not limited to, any claim that all or any part of this Agreement is void or voidable. If this specific proviso is found to be unenforceable, it is severable from the rest of the arbitration agreement.
Conducting the Arbitration
You agree that any and all of your owners, principals, employees, and agents agree to the jurisdiction of the Arbitration, when the claims made against them arise out of your use of the Company’s services. The Company agrees to moderate discovery procedures, including production of documentation, inspection of property, interrogatories not to exceed twenty-five, and requests for admissions not to exceed twenty-five. You, your owners, principals, employees, and agents agree to submit responses to any and all informal subpoena requests, which do not require the signature or execution before a court of law. Any and all arbitration proceedings shall be heard within one calendar day, not to exceed eight hours and the arbitrator’s award shall be returnable within no more than ten (10) days from the date of the hearing. Any award of the arbitrator shall be determined a final judgment once confirmed by in the Civil District Court for the Parish of Orleans, State of Louisiana. You and the Company shall have the right to a single appeal to the Court of Appeals with jurisdiction over the arbitration award, to challenge an award for improper determinations of matters of law only. You or the Company shall have no further appellate rights. The ruling of the applicable Court of Appeals shall be the final resolution of all matters between the parties hereto.
Certain clients pay a monthly fee to the Company, and are categorized as monthly clients. Monthly clients are bound to these Terms & Conditions to the same extent as every other customer who uses the Company’s services. Monthly clients also expressly recognize that the Company does not warrant the accuracy of any information extracted from any contract or other document provided to the company and further that the company does not warrant the accuracy or sufficiency of any calculated deadline or any document produced for the monthly client – whether the relevant information for such determination or production was given by the monthly client or determined by the Company. In the event a monthly client suffers any damage as a result of, or in any way related to, the Company’s actions the Company’s liability and the monthly client’s potential recovery are limited as outlined by the rest of these Terms & Conditions.
Zlien is excited to guarantee a 75 percent (75%) reduction in bad debt for clients who sign up for our enterprise service. Now, through zlien, you can feel comfortable knowing that not getting paid is a thing of the past. We are confident in our ability to reduce your bad debt by 75% or more, and are offering a money-back guarantee to prove it. This guarantee is subject to the following terms.
PROMOTIONAL OFFER TERMS AND CONDITIONS
Zlien (hereinafter “us”, “the company”, or “zlien”) guarantees to reduce the qualifying business bad debt of new Enterprise Customers (hereinafter “you”, or “the customer”), by at least 75 percent (75%), provided the qualifications listed by these Terms and Conditions are met; failure to meet this 75% reduction of qualifying debt triggers a “money-back guarantee” (the guarantee”).
This guarantee only applies to qualifying new Enterprise Customers. In order to qualify as a new Enterprise Customer, the customer must have registered with zlien as an Enterprise Client after xx/xx/2012 (hereinafter “registration date”), and must submit no fewer than x (”x”) projects per month for a period of at least twelve (12) consecutive months. This guarantee only applies to new Enterprise Customers who have committed to at least a 12-month term with zlien (the “guarantee period”); any new Enterprise Customer who terminates his/her relationship with zlien, or who ceases to use zlien’s enterprise services prior to the expiration of the guarantee period is not eligible for the money-back guarantee.
If zlien fails to reduce the customer’s qualifying business bad debt by at least 75% by the expiration of the guarantee period, zlien will refund solely the fees charged by zlien for the services rendered to the customer. No refund will be given for costs incurred by zlien in the rendering of services provided, including but not limited to filing fees, postage, or courier services. It is agreed by zlien and the customer that postage will be assessed at five dollars and fifty cents ($5.50) per piece of mail sent; filing fees will be determined by the actual filing fee of the county in which the filing occurred.
For the purposes of the guarantee, qualifying bad debt is defined as debt for which the customer would be entitled to claim a business bad debt deduction under the United States’ tax code if the debt had been previously included as business income, and is calculated as follows:
To calculate the percent of “starting bad debt”, the customer’s amount of qualifying business bad debt incurred during the 12 months immediately prior to registration with zlien’s enterprise services is divided by the customer’s total business revenue for the same time period;
The percent of “ending bad debt” is determined by dividing the customer’s amount of qualifying business bad debt incurred during the guarantee period by the customer’s total business revenue for the same period, subject to the following: 1) the value of any bad debt relating in any way to a project for which the customer has not fully utilized zlien’s enterprise services from the start of furnishing labor or materials (including but not limited to sending all required notices, filing liens or bond claims for every project for which a lien or bond claim may be filed, and collecting on or enforcing the lien or bond claim) may not be used to in the calculation of “ending bad debt”, 2) any debt for which collection or enforcement of a lien or bond claim has not yet concluded at the expiration of the 12-month period, or which has not yet progressed to the enforcement stage, may not be used in calculation of the “ending bad debt”, 3) the value of any lien rights or bond rights that the client has chosen not to exercise, for whatever reason, may not be used to calculate the “ending bad debt”, 4) the value of any claim that is related in any way to a project for which a question is raised regarding the quality or scope of work performed by the customer may not be used to calculate the “ending bad debt”, 5) any debt described by parts 1 through 3 above will be treated as if the full amount of the debt has been recovered, i.e. the amounts will be included in the calculation of total revenue for the “guarantee period” and not for the calculation of “ending bad debt”.
The reduction of bad debt is determined as follows:
1) The percent of “ending bad debt” is divided by the percent of “starting bad debt”, 2) The answer resulting from step one is converted to a percent, 3) the percent from step 2) is subtracted from 100 to give the percent reduction of bad debt.
For example (Numbers chosen for ease of calculation): Company X has total revenue of $1,000,000 for the 12 months prior to registering as an enterprise customer of zlien, and qualifying bad debt of $50,000 for the same time period. Therefore, Company X’s “starting bad debt” is 50,000/1,000,000, or, 5%.
After registering as an enterprise customer with zlien, Company X had revenues of $1,100,000 for the guarantee period, and qualifying bad debt of $12,000. Company X also had $10,000 in lien rights that, for whatever reason, the company chose not to enforce, as well as a $10,000 claim on a project for which the company chose not to send a required notice through zlien. Therefore, Company X’s “ending bad debt” is 12,000 / (1,100,000 + 10,000 + 10,000), or, 1%.
Zlien’s reduction of Company X’s bad debt is determined as follows: 1) 1 / 5 = 0.2, 2) 0.2 = 20%, 3) 100% – 20% = 80%. Therefore, in the above example, zlien reduced Company X’s bad debt by 80%.
Security and Password
You are solely responsible for maintaining the confidentiality of your password and account and for any and all statements made and acts or omissions that occur through the use of your password and account. Therefore, you must take steps to ensure that others do not gain access to your password and account. Our personnel will never ask you for your password. You may not transfer or share your account with anyone, and we reserve the right to immediately terminate your account if you do transfer or share your account.
All notices to a party under these Terms and Conditions shall be in writing and shall be made either via email or conventional mail. Notices to us must be sent to the attention of Customer Service at email@example.com, if by email, or at Express Lien, Inc. d/b/a Zlien, 14525 SW Millikan #7790 Beaverton, Oregon 97005-2343 if by conventional mail. Notices to you may be sent to the address supplied by you as part of your Registration Data. In addition, we may broadcast notices or messages through the site to inform you of changes to the site or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
Terms Governing the Relationship Between zlien and Affiliates
In order to grow the business, Express Lien, Inc. dba zlien (the “Company” or “zlien”) may enter into a relationship with another party whereby that party becomes an affiliate (“Affiliate”) of zlien. Whether or not an Affiliate relationship will be extended to any party rests solely at the discretion of zlien.
In consideration of the business referred to the Company by the Affiliate, the Affiliate will receive a commission, for a set period of time, on products ordered by parties associated with that particular Affiliate.
In order to determine which customers and orders are associated with a particular Affiliate, each Affiliate will be given an “Affiliate Link”, or unique URL to give to the potential customer. The use of the Affiliate Link by the customer to register as a zlien customer and/or place an order allows zlien to identify customers and/or orders originating from an Affiliate. The first order placed with zlien by the Affiliate originated customer must occur via one of two methods in order for zlien to identify that the customer and/or order was Affiliate originated:
1) through the use of the Affiliate Link provided to the Affiliate by zlien
2) through selecting the name of the affiliate from a dropdown menu on the first step of the Order Online Process.
Once the Affiliate originated customer has utilized one of the above methods to place its first order, that customer is permanently associated with the Affiliate in the zlien system, and subsequent orders by that customer will trigger commission payments to the Affiliate pursuant to the “Affiliate Commission Structure”, available upon request. Affiliate commissions will be paid in a manner and at a time solely in the discretion of zlien, provided, however, that all commission payments to Affiliates will be made within 60 days of the date on which the order generating the commission was paid for by the Affiliate originated customer.
The 2 methods listed in the above paragraph are the sole methods by which zlien can identify Affiliate originated customers and/or orders. It is the sole responsibility of the Affiliate to ensure that any customer originated by that Affiliate places its first order via one of two above described methods. zlien will not pay commission on any orders not associated with an Affiliate, even if the customer is an Affiliate originated customer. Affiliate is solely responsible for ensuring that its Affiliate Link is set up properly to qualify for commissions. Once an Affiliate originated customer is associated with an Affiliate, the name/trademark/or other logo of that Affiliate will appear on zlien’s website when the Affiliate originated customer is logged in to zlien’s website.
Affiliate may not use their own Affiliate Link to order products from zlien. Doing so will result in the immediate reversal of any commission for any such order.
Affiliate hereby specifically grants zlien the right to display the Affilate’s name/trademark/or other logo on the zlien website. Affiliate agrees that Affiliate will display on Affiliate’s website only those graphic or textual images (indicating a Link) provided by zlien, or text messages expressly approved in advanced in writing by zlien. Any information with respect to zlien that is going to be displayed on Affiliate’s site must be provided to zlien for review and expressly approved by zlien in writing in advance of any display.
Except as permitted above, Affiliate shall not and is not authorized to:
1) use zlien’s trademark, name or any of our other intellectual property (or any variations or misspellings thereof or other term or terms confusingly similar to any of the foregoing) (“zlien’s IP”);
2) use zlien’s IP in a domain or website name, in any bids for keywords or google adwords (or similar programs at other search engines), or in any search engine advertising (paid or otherwise);
Affiliate’s use of zlien’s IP in any manner, other than as expressly permitted hereunder, in addition to being a breach of this agreement, shall constitute unlawful infringement of our trademarks, copyrights or other intellectual property rights, and may subject Affiliate to claims for damages (including without limitation, treble damages for knowing or willful infringement), and the obligation to pay zlien’s legal fees and costs in connection with any action or proceeding in which zlien seeks to enforce its rights under this agreement or with regard to any of its intellectual property rights.
This agreement remains in effect until cancelled by either party, however, as set forth by the Affiliate Commission Structure, no commissions will be paid for orders placed by an Affiliate originated customer more than two (2) years after that Affiliate originated customer is first associated with the Affiliate in the zlien system.
zlien will make every reasonable effort to track and pay commissions for all sales to Affiliate originated customers associated with Affiliate – as tracked by zlien’s internal system. However, zlien is not responsible for technical problems, acts of third parties, or any other act outside zlien’s reasonable control which may disrupt or diminish this service.
The relationship between zlien and Affiliate established by this agreement and governed by these terms is that of independent contractors. zlien and Affiliate shall each conduct its respective business at its own initiative, responsibility, and expense, and shall have no authority to incur any obligations on behalf of the other, except as otherwise provided herein. Term “Affiliate” shall not be interpreted as a legal partner or affiliate, but simply as an independent contractor for zlien pursuant to this agreement.
zlien shall not be held liability for any indirect, incidental, special or consequential damages or any loss of revenue or profits arising under or with respect to this agreement or program, even if zlien has been advised of the possibility of such damages. Zlien’s aggregate liability arising under or with respect to this agreement shall in no event exceed the total commissions paid or payable by zlien under this agreement.
Affiliate understands that Affiliate commission tracking is difficult, and zlien is not responsible for inaccuracies that might occur beyond its control. Tracking of Affiliate sales depend on several factors out of the control of zlien. It is the goal of zlien to make Affiliate tracking as accurate as possible, however, zlien cannot and does not guarantee 100% tracking accuracy.
To the fullest extent permissible, zlien disclaims all warranties, whether express or implied.
zlien hereby incorporates the “Disclaimer and Terms & Conditions” as set forth on zlien’s website, as applicable, as if the full text was reprinted here in its entirety.
The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Louisiana, without giving effect to the principles of conflict of laws.
If one or more provisions of this Agreement are held to be unenforceable under applicable law, then such provision(s) shall be excluded from this Agreement to the extent held unenforceable, and the remainder of this Agreement shall be interpreted as if such provision(s) were so excluded and shall be enforceable in accordance with its terms.
In the event of any dispute between the Parties that has any relation to this Agreement, the Parties agree to submit the dispute first to non-binding mediation, and then, if an agreement is not reached, to binding arbitration in New Orleans, Louisiana.
All Terms Apply and Entire Agreement
While the User Terms are separated by heading, they are intended to be read as a whole and not in parts. Accordingly, each section of the User Terms applies to and is effective with the other. These User Terms constitute the entire agreement and understanding between you and the Company.
Also see our Intellectual Property Notice at: http://www.zlien.com/terms-of-use/intellectual-property-notice/
Updated April 23, 2013