Terms of Service

Last updated 20 May 2021

Terms of use

20 May 2021

By clicking the “I Accept” button displayed as part of the ordering process, you agree to the following terms and conditions (the “agreement”) governing your use of EZITXT's online service, including offline components (collectively, the “Service”). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you must select the “I Decline” button and may not use the service.

Welcome

As part of the Service, EZITXT will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the EZITXT website incorporated by reference herein, including but not limited to EZITXT’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.

1. Unsolicited Electronic Messages Act 2007

It is YOUR responsibility to ensure you provide recipients of your messages with a FREE opt out process. This can be provided by Ezitxt through the use of a ZERO RATED shortcode where you will be changed for any responses messages. Alternatively you can provide an 0800 number in your message.
Please see the link to the Act below – Section 11.
http://www.legislation.govt.nz/act/public/2007/0007/22.0/DLM405134.html

2. License Grant & Restrictions

EZITXT hereby grants you a non-exclusive, non-transferable right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by EZITXT.

You may not access the Service if you are a direct competitor of EZITXT, except with EZITXT’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.

You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libellous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

3. Your Responsibilities

You must provide us with information and subscription data that is sufficient in order for us to comply with our obligations under these terms and you warrant to us that such information is true, accurate, current and complete.  If you fail to comply with this Clause  EZITXT has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof), including any transition rights. You acknowledge and agree that a Mobile Network Provider may place a bar on a customer’s mobile device that prevents that customer from using Services. When these circumstances apply, you will still be charged for undelivered SMS messages.  You acknowledge and agree that the scope of the Services may be amended by EZITXT from time to time in order to comply with applicable laws and policies and that you will comply with all reasonable requests of EZITXT with respect to the manner in which you use the Services at all times. However, you acknowledge that, despite this term, EZITXT has no obligation to monitor such compliance.

You are responsible for all activity occurring under your User accounts and shall abide by all applicable local and national laws and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify EZITXT immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to EZITXT immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another EZITXT user or provide false identity information to gain access to or use the Service.

4. Account Information and Data

EZITXT does not own any data, information or material that you submit to the Service in the course of using the Service (“Customer Data”). You, not EZITXT, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and EZITXT shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), EZITXT will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. EZITXT reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and EZITXT shall have no obligation to maintain or forward any Customer Data.

5. Intellectual Property Ownership

EZITXT alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the EZITXT Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the EZITXT Technology or the Intellectual Property Rights owned by EZITXT. The EZITXT name, the EZITXT logo, and the product names associated with the Service are trademarks of EZITXT or third parties, and no right or license is granted to use them.

6. Charges and Payment of Fees

You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. All payment obligations are non-cancellable and all amounts paid are non-refundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide EZITXT with valid credit card or approved purchase order information as a condition to signing up for the Service. EZITXT reserves the right to modify its fees and charges and to introduce new charges at any time. All pricing terms are confidential, and you agree not to disclose them to any third party. All credits purchased have a shelf life of 12 months from date of purchase.

7. Billing and Renewal

EZITXT charges and collects in advance for use of the Service. EZITXT will automatically renew and bill your credit card each month unless you have instructed EZITXT to terminate your account. EZITXT’s fees are exclusive of GST.

You agree to provide EZITXT with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, EZITXT reserves the right to terminate your access to the Service in addition to any other legal remedies.

If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.

8. Non-Payment and Suspension

In addition to any other rights granted to EZITXT herein, EZITXT reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). If you or EZITXT initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that EZITXT may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.

EZITXT reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that EZITXT has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.

9. Termination

This Agreement commences on the Effective Date. Initial Term will be as you elect during the online subscription process. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at EZITXT’s then current fees. Either party may terminate this Agreement, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least five (5) business days prior to the date of the invoice for the following term.

10. Termination for Cause

Any breach of your payment obligations or unauthorized use of the EZITXT Technology or Service will be deemed a material breach of this Agreement. EZITXT, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, EZITXT may terminate a free account at any time in its sole discretion. You agree and acknowledge that EZITXT has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.

11. Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. EZITXT represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online EZITXT help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.

12. Indemnification

You shall indemnify and hold EZITXT, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that EZITXT (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defence and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release EZITXT of all liability and such settlement does not affect EZITXT’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

EZITXT shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; provided that you (a) promptly give written notice of the claim to EZITXT; (b) give EZITXT sole control of the defence and settlement of the claim (provided that EZITXT may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to EZITXT all available information and assistance; and (d) have not compromised or settled such claim. EZITXT shall have no indemnification obligation, and you shall indemnify EZITXT pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).

13. Disclaimer of Warranties

EZITXT AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. EZITXT AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY EZITXT AND ITS LICENSORS.

14. Internet Delays

EZITXT’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. EZITXT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

15. Limitation of Liability

SUBJECT TO ANY INDEMNIFICATION OBLIGATIONS UNDER CLAUSE 12 OF THIS AGREEMENT WHICH SHALL REMAIN UNLIMITED, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

16. Modification to Terms

EZITXT reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

17. Assignment; Change in Control

This Agreement may not be assigned by you without the prior written approval of EZITXT but may be assigned without your consent by EZITXT to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of EZITXT directly or indirectly owning or controlling 50% or more of you shall entitle EZITXT to terminate this Agreement for cause immediately upon written notice.

18. Dispute Resolution

If a Party considers that a dispute has arisen in connection with the Agreement or with the Services provided under the Agreement (Dispute), the disputing Party may give written notice to the other Party that a dispute has arisen (Dispute Notice). If the Parties cannot resolve the Dispute within 10 Working Days of the Dispute Notice, then a Party may refer the Dispute to mediation by written notice to the other Party. Promptly following the notice of referral to mediation, the Parties shall attempt to agree the appointment of a mediator approved by the Resolution Institute and attempt to resolve the Dispute by mediation applying the then current Resolution Institute mediation terms or rules (as the case may be), subject to any variation agreed by the Parties. If the Parties are unable to agree on a mediator within 5 Working Days of the notice of referral to mediation, a mediator may be appointed by the Resolution Institute. The mediation will be discontinued if either Party gives an Arbitration Notice pursuant to clause 8.3 of these Terms of Use. If the Parties have been unable to resolve the Dispute within 40 Working Days, or such further time as the Parties agree, of the date of the Dispute Notice, then either Party may refer the Dispute to arbitration by notice in writing to the other Party (Arbitration Notice). The arbitration will be determined by a sole arbitrator (being a New Zealand resident) as soon as possible in New Zealand. If the Parties cannot agree on an arbitrator within five Working Days of the giving of the Arbitration Notice, the arbitrator will be appointed by the president of the New Zealand Law Society or his/her nominee. The arbitration will be conducted in accordance with the Arbitration Act 1996 (excluding clauses 4 and 5 of the Second Schedule to that Act).   The award in the arbitration will be final and binding.  Neither Party may resort to court proceedings (except where that Party seeks urgent interlocutory relief) unless a Dispute Notice has been given in relation to the relevant Dispute and it has taken all reasonable steps to comply with this Clause 18. 

19. MISCELLANEOUS

Marketing: For the purpose of marketing and promoting the Services and or the Mobile Network Provider’s networks, EZITXT may, use your company name, logos and any other marketing material commonly used by you.

Waiver: No exercise or failure to exercise or delay in exercising any right or remedy by a Party will constitute a waiver by that Party of that or any other right or remedy available to it. 

Partial invalidity: If any provision of this Agreement or its application to either Party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of the Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law. 

Relationships: Nothing in this Agreement creates or evidences any partnership, joint venture, agency or employer/employee relationship between the Parties. 

Notices:  Any notice or other communication in connection with the Agreement will be: (a) in writing; (b) and left at the address or sent by prepaid post or email to the relevant address of the relevant Party specified in your Schedule or any replacement address updated on EZITXT’s website. Notices or other communications are deemed received: if delivered by hand, on delivery; if delivered by post: (i) on the third Working Day following posting if sent and received within New Zealand; and (ii) on the tenth Working Day following posting to or from an overseas destination; and if delivered by email, on receipt of the email. 

Governing law: The Agreement will be governed by and construed in accordance with the laws of New Zealand, and the Parties agree to submit to the non exclusive jurisdiction of the courts of New Zealand. 

Third Party Beneficiaries: The Parties acknowledge and agree that the provisions of the Agreement that relate to Mobile Network Providers are for the benefit of, and enforceable by, those Mobile Network Providers under the Contract and Commercial Law Act 2017. To the extent permitted by the it shall not be necessary for the Parties to obtain the consent or Agreement of any Mobile Network Providers in order to amend the Agreement. 

20. DEFINITIONS

Affiliate: means, in respect of an entity, a person that directly or indirectly controls, is controlled by or is under common control with, that entity. 

Content: means data or other information and includes all text, pictures, graphics, audio, video, images, other data, functionality, computer software and code provided for the use of the Customer.

EZITXT: means Comtxt Media Limited, trading as EZITXT and for the purposes of this Agreement includes any Affiliates of Comtxt Media Limited.

Service or Services : means the EZITXT Services as agreed upon by the Parties from time to time.

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to admin@EZITXT.com.