Terms of Service
Effective Date: November 12, 2020
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Welcome to Zilment’s web site. We appreciate your interest and are excited to provide you with the tools and insight to help you navigate the world of credit card processing.
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When you use Zilment, you enter into a legal agreement, which is shown below.
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Please read these Terms of Service (collectively with Zilment's Privacy Policy at www.zilment.com/privacy-policy the "Terms of Service") fully and carefully before using www.zilment.com (the "Site") and the services, features, content or applications offered by Zilment (together with the Site, the "Services"). These Terms of Service set forth the legally binding terms and conditions for your use of the Site and the Services.
1. Acceptance of Terms of Service.
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A. By accessing and using the Services provided by Zilment Technologies LLC and its affiliates (collectively, "Zilment","we" or "us") in any manner, including but not limited to visiting or browsing the Site, you are agreeing to these Terms of Service and all other operating rules, policies and procedures that may be published from time to time on the Site by us, each of which is incorporated by reference and each of which may be updated from time to time without notice to you.
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B. Certain of the Services may be subject to additional terms and conditions specified by us from time to time; your use of such Services is subject to these additional terms and conditions, which are incorporated into these Terms of Service by this reference.
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C. These Terms of Service apply to all users of the Services, including, without limitation, users who are contributors of content, information and other materials or services, registered or otherwise.
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D. ARBITRATION NOTICE AND CLASS ACTION WAIVER: YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
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D. By registering for the Services and by accepting these Terms, you are expressly consenting to Zilment using your personal and / or provided information for purposes of providing you with payment processing solutions provided by our payment processing partners.
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2. Eligibility
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You represent and warrant that you are at least 18 years of age. If you are under 18 years of age, you may not, under any circumstances or for any reason, use the Services. You also represent and warrant that you are using the Services for purposes of obtaining information related to payment processing for (a) a business that conducts or intends to conduct a bona fide business operation in the U.S., (b) that such business has the proper facilities, equipment, inventory and licenses or permit, if necessary, to conduct the business and (c) that such business is not engaged in any operation prohibited by applicable law, rule or regulation or has the intent to defraud Zilment and / or any of its payment processing partners. We may, in our sole discretion, refuse to offer Services to any person or entity and change its eligibility criteria at any time. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to you and the right to access the Services is revoked where these Terms of Service of use of the Services is prohibited or to the extent offering, sale or provision of the Services conflicts with any applicable law, rule or regulation. Further, the Services are offered only for your use, and not for the use or benefit of any third party.
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3. Registration
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To access many aspects of our Services you will need to register with Zilment. Registration is optional, but if you do not register, you will not be able to access certain aspects of our Services. Any information that you provide to us must be true, accurate, current and complete. You must notify us immediately of any change in your eligibility to use the Services.
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4. Limitations and Restrictions on Use of Our Services
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A. Analysis and Estimates. We may use the information provided by you as well as other information we obtain to analyze, sort and present certain information or features to you. Any analysis and estimates we provide as part of our Services are for illustrative and information purposes only. Our analysis and estimates are based on certain assumptions and use only the data we have. Our analysis and estimates are neither endorsed by, nor commissioned by, any of our payment processing partners. The methodology we use to determine which offers, analysis or other information is presented or highlighted is proprietary and we may elect to consider, ignore, emphasize or de-emphasize certain factors in our sole and absolute discretion.
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B. Payment Processing Quotes. With respect to quotes from our payment processing partners, we do not guarantee that you will meet the approval criteria for any particular offer. It is always your choice whether to apply for a product or service offered by our payment processing partners and we will never submit an application for a product or service to a payment processing partner on your behalf without your consent.
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C. Links to or Connections with Third Party Sites of Applications. Our Services or communications to you may contain third party content or links to third party sites, applications or services (collectively, "Third Party Content"). We do not control, maintain or endorse the Third Party Content, and we are not responsible or liable for any Third Party Content, including any damages, losses, failures or problems caused by, related to or arising from Third Party Content. Your interactions and business dealings with the providers of Third Party Content, including products or services offered by such third parties, are solely between you and the third party. You should review all of the relevant terms and conditions associated with Third Party Content, including any privacy policies and terms of service. We are not responsible to any information that you agree to share with third parties in connection with Third Party Content.
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5. Content
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A. All content and materials, including but not limited to images, text, visual interfaces, information, data and computer code, provided by us through our Services (collectively "Content") and all related intellectual property rights are the property of Zilment and / or its third-party licensors. Our Content is protected by U.S. and International intellectual property laws and treaties. You are permitted to use our Content only on our Services and you many not copy, modify, sell, reproduce, distribute, republish, display, post, create derivative or collective works from or transmit in any form (including in-line linking or mirroring) our Content, in whole or in part, without our express prior written consent. You may not reverse engineer or reverse compile any of our Services or the technology used to operate our Services. Nothing in these Terms of Service grants you, by implication, estoppel or otherwise, any license or right to use our Content except as expressly states in these Terms of Service. We do not guarantee that any Content or User Content (defined below) you access on or through the Services is or will continue to be accurate.
B. Our Services may also display certain intellectual property, such as company, product and service name and logos, that is owned by our payment processing partners (our "Partners' Intellectual Property"). Nothing in these Terms of Service grants you, by implication, estoppel or otherwise, any license or right to copy, modify, sell, reproduce, distribute, republish, display, post, create derivative works from or transmit in any form (including in-line linking or mirroring) any of our Partners' Intellectual Property.
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C. You may not use our Services in any manner that infringes the rights of any third party. If you believe, in good faith, that any of our Content or User Content infringes your copyrights, you may send a notice of infringement ("Notice") under the federal Digital Millennium Copyright Act ("DMCA") by email or regular mail to:
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Attention: Legal Department
Zilment Technologies LLC
160 Birdsall, Suite 1314
Houston, TX, 77079
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Zilment reserves the right to block or otherwise prohibit in our sole discretion any individual or entity who repeatedly posts materials that infringe or are alleged to infringe the intellectual property rights of others.
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6. User Content
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A. All Content added, created, uploaded, submitted, distributed or posted to the Services by users (collectively "User Content"), whether publicly or privately transmitted, is the sole responsibility of the person or entity who originated such User Content. You represent and warrant that (a) you are the creator and owner of all User Content provided by you, or have the necessary licenses, rights, consents and permissions to authorize us and other users to use User Content provided by you and that (b) all User Content provided by you is accurate, complete, current and in compliance with all applicable laws, rules and regulations.
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B. You acknowledge that all Content, including User Content, accessed by you using the Services is at your own risk and you will be solely responsible for any damage or loss to you or any other party resulting therefrom.
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C. By submitting User Content through the Services, you hereby do and shall grant us a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform and otherwise fully exploit the User Content in connection with the Site, the Services and our (and our successors' and assigns') businesses, including without limitation for promoting and redistributing part or all of the Site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of the Services. You also hereby do and shall grant each user of the Site and / or the Services a non-exclusive, perpetual license to access your User Content through the Site and / or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Content, including after your termination of the Services. For clarity, the foregoing license grants to us and our users does not affect your other ownership or license rights in your User Content, including the right to grant additional licenses to your User Content, unless otherwise agreed in writing.
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7. Rules of Conduct
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A. As a condition of use, you promise not to use the Services for any purpose that is prohibited by these Terms of Service. You are responsible for all of your activity in connection with the Services.
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B. You shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service, including without limitation any User Content, that: (1) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty; (2) you know is false, misleading, untruthful or inaccurate; (3) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, vulgar, pornographic, offensive, profane, contains or depicts nudity, contains or depicts sexual activity, or is otherwise inappropriate as determined by us in our sole discretion; (4) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”); (5) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party; or (6) impersonates any person or entity, including any of our employees or representatives
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C. You shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Services (or other accounts, computer systems or networks connected to the Services); (iv) run any form of auto-responder or “spam” on the Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Services; or (vii) otherwise take any action in violation of our guidelines and policies.
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D. You shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. You shall abide by all applicable local, state, national and international laws and regulations.
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E. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.
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8. Warranty Disclaimers
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WE PROVIDE OUR SERVICES, OUR CONTENT, AND ALL CONTENT AND MATERIALS AVAILABLE THROUGH OUR SERVICES “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. ZILMENT, ON BEHALF OF ITSELF AND ITS REPRESENTATIVES, AGENTS, PARTNERS, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EQUITY HOLDERS, EMPLOYEES, PARENT ENTITIES, SUBSIDIARIES, AFFILIATED ENTITIES, REPRESENTATIVES, AGENTS AND LICENSORS (COLLECTIVELY, THE “ZILMENT PARTIES”) DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO OUR SERVICES, OUR CONTENT, OR THE USER CONTENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY, ACCURACY, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM OUR SERVICES, OUR CONTENT, THE USER CONTENT, OR OTHERWISE AVAILABLE THROUGH OUR SERVICES WILL CREATE ANY WARRANTY REGARDING ZILMENT OR ANY OF OUR SERVICES THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU USE OUR SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN OUR CONTENT, THE USER CONTENT, OR OTHER CONTENT AVAILABLE THROUGH OUR SERVICES, AT YOUR OWN DISCRETION AND RISK. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO OUR SERVICES, YOUR DEALINGS WITH ANY OTHER MEMBER OR THIRD PARTY, AND YOUR USE OF OUR CONTENT, THE USER CONTENT, OR OTHER CONTENT AVAILABLE THROUGH OUR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING ANY COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH OUR SERVICES), OR THE LOSS OF DATA THAT MAY RESULT FROM THE USE OF OUR SERVICES OR THE USE OF ANY OF OUR CONTENT, THE USER CONTENT OR OTHER CONTENT AVAILABLE THROUGH OUR SERVICES.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION SHALL AFFECT WARRANTIES WHICH ARE INCAPABLE OF EXCLUSION OR RESTRICTION UNDER APPLICABLE LAW.
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9. Limitations of Liability
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ZILMENT AND ITS REPRESENTATIVES, AGENTS, PARTNERS, AND ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EQUITY HOLDERS, EMPLOYEES, PARENT ENTITIES, SUBSIDIARIES, AFFILIATED ENTITIES, REPRESENTATIVES, AGENTS AND LICENSORS (COLLECTIVELY, THE “ZILMENT PARTIES”) WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (SUCH AS LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING IN ANY WAY TO OUR SERVICES, OUR CONTENT OR THE USER CONTENT.
EXCEPT AS EXPRESSLY REQUIRED BY APPLICABLE LAW (E.G., ANY NON-WAIVABLE RIGHTS OR REMEDIES), IN NO EVENT WILL THE TOTAL LIABILITY OF THE ZILMENT PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF, OR ANY INABILITY TO USE ANY PORTION OF, OUR SERVICES, OR OTHERWISE ARISING OUT OF OR RELATING TO THE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED IN THE AGGREGATE ONE HUNDRED UNITED STATES DOLLARS ($100.00).
IF ANY OF THE FOREGOING LIMITATIONS ARE FOUND TO BE INVALID, THE ZILMENT PARTIES’ TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE WHATSOEVER SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
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10. Indemnification
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You will defend (if requested by any Zilment Party), indemnify, and hold harmless the Zilment Parties from and against any and all claims, losses, expenses, demands, or liabilities, including attorneys’ fees and costs, incurred by the Zilment Parties in connection with any claim by a third party arising out of or in any way related to: (1) your use of our Services, our Content or the User Content; (2) your violation or alleged violation of the Terms of Service or your violation or alleged violation of any applicable law, rules or regulation; (3) your infringement or alleged infringement of any intellectual property or other right of any other person or entity; or (4) any dispute between you and a third party, including any provider of Third Party Content. You must not settle any such claim or matter without the prior written consent of Zilment. The Zilment Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter subject to indemnification by you, and you further agree that you will cooperate fully in the defense of any such claims.
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11. Arbitration Clause & Class Action Waiver
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A. ARBITRATION. YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND ZILMENT (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) WITH REGARD TO YOUR RELATIONSHIP WITH ZILMENT, INCLUDING WITHOUT LIMITATION DISPUTES RELATED TO THESE TERMS OF SERVICE, YOUR USE OF THE SERVICES, AND / OR RIGHTS OF PRIVACY AND / OR PUBLICITY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION OF CONSUMER-RELATED DISPUTES AND YOU AND WE HEREBY EXPRESSLY WAIVE TRIAL BY JURY; PROVIDED, HOWEVER, THAT TO THE EXTENT THAT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE OUR INTELLECTUAL PROPERTY RIGHTS, WE MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF TEXAS. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. As an alternative, you may bring your claim in your local “small claims” court, if permitted by that small claims court’s rules and if within such court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. You may bring claims only on your own behalf. Neither you nor we will participate in a class action or class-wide arbitration for any claims covered by this agreement to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST US INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if we are a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either we or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Services or these Terms of Services must be filed within one (1) year after such claim of action arose or be forever banned.
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B. Notice. A party who intends to seek arbitration must first send a written notice of the dispute to the other by certified mail (“Notice“). Zilment’s address for Notice is: Zilment Technologies LLC, 160 Birdsall, Suite 1314, Houston, TX 77079, Attention: Legal Department. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand“). You and Zilment agree to use good faith efforts to resolve the claim directly, but if you and Zilment do not reach an agreement to do so within 30 days after the Notice is received, you or us may commence an arbitration proceeding.
C. Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section will be null and void. This arbitration agreement will survive the termination of your relationship with Zilment.
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12. Deactivation and Termination
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These Terms of Service are effective until you request to terminate your relationship with Zilment and discontinue all use of our Services. Notwithstanding the foregoing, any section of these Terms of Service, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity, limitations of liability and class action waivers, that by its nature is intended to survive termination of the Terms of Service or your use or access to our Services, Content or User Content will survive such termination.
To terminate your relationship with Zilment please email support@zilment.com requesting termination.
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13. Miscellaneous
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A. Governing Law. The Terms of Service shall be governed and construed in accordance with the laws of the State of Texas, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by and the exclusive jurisdiction and venue of the State and Federal courts of Harris County, Texas.
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B. Modification. We reserve the right, in our sole discretion, to modify or replace any of these Terms of Service, or change, suspend, or discontinue the Services (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Site or by sending you notice through the Services, via e-mail or by another appropriate means of electronic communication. We may also impose limits on certain features and services or restrict your access to parts or all of the Services without notice or liability. While we will timely provide notice of modifications, it is also your responsibility to check these Terms of Service periodically for changes. Your continued use of the Services following notification of any changes to these Terms of Service constitutes acceptance of those changes, which will apply to your continued use of the Services going forward. Your use of the Services is subject to the Terms of Service in effect at the time of such use.
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C. Entire Agreement. These Terms of Service are the entire agreement between you and us with respect to the Services, including use of the Site, and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Services.
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D. No Waiver. Our failure to enforce any part of these Terms of Service shall not constitute a waiver of our right to later enforce that or any other part of these Terms of Service. Waiver of compliance in any particular instance does not mean that we will waive compliance in the future. In order for any waiver of compliance with these Terms of Service to be binding, we must provide you with written notice of such waiver through one of our authorized representatives.
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E. Assignment. These Terms of Service are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without consent.
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F. Severability. If any provision of these Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder
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G. Agency. No agency, partnership, joint venture, or employment relationship is created as a result of these Terms of Service and neither party has any authority of any kind to bind the other in any respect.
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H. Notices. Unless otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Electronic notices should be sent to legal@zilment.com
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I. Interpretation. The titles and annotations contained in these terms are inserted only as a matter of convenience and have no legal or contractual effect.