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TERMS OF USE OF EZ TEXTING, INC. ("Ez Texting")

Thank you for visiting our site at www.eztexting.com ("Website").  Use and access of this Website, and the text message services described below (the “Service"), is subject to these terms and conditions of use (the “Terms") as well as our Privacy Policy.

Overview
Ez Texting’s acceptance of your registration for the use of the Service is expressly conditioned upon your assent to these Terms, and your use of this Website, as well as registration for, and use of, the Service represents your implicit acceptance and consent to be bound by these Terms. Please read these Terms carefully.  As noted below, Ez Texting reserves the right to modify and update these Terms, from time to time, by posting any such new or modified Terms to the Website.

Services described in the Website may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries.

The Service
The Service consists of one or more of the following: a web-based interface, access to incoming telephone number or keywords, messaging applications, SMS gateway access, data encryption, data transmission, data access, data storage and, if applicable, synchronization software.  We provide MT outbound messages through different routes and the level of reliability and support for special features varies according to the route.  You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access the Service, and for paying all access charges (e.g. ISP, telecommunications) incurred while using the Service.

Ez Texting only provides that the text-messages you send through the Service are processed correctly and delivered to applicable network. Ez Texting is not responsible for the final delivery of the message, as this is out of our control and is the responsibility of the cell telephone operator.

Ez Texting sends and receives text-messages via major telecommunications companies and Mobile Network Operators, and thus Ez Texting’s influence over the timing of the transmission of your messages is within the technical constraints imposed upon Ez Texting.  While Ez Texting shall use commercially reasonable efforts to deliver your messages to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transportation of your messages across the GSM network.  You should know that Mobile Network Operators assign text-messages with a default life time and any message that cannot be delivered successfully within the life time assigned to it will be discarded by the Mobile Network Operator, without any notice.  Ez Texting is not liable for any loss incurred by the failure of a message to be delivered and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from Ez Texting for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.

Usage Policy
You represent and warrant that the owners of the phone numbers you provide to Ez Texting, to which outbound messages are sent through the Service, have consented or otherwise opted-in to the receipt of such messages.  You will immediately notify Ez Texting in writing in the event that any such phone number has opted-out of receiving messages through the Service.

You agree to abide by all applicable local, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including the content of the messages transmitted through Ez Texting.

As part of the registration process you will select a unique username and password.  You shall provide Ez Texting with accurate, complete, and regularly updated member profile information.  You agree to notify Ez Texting of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. You shall be responsible for maintaining the confidentiality of your password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, at Ez Texting’s sole discretion, and you may be reported to appropriate law-enforcement agencies.

You accept that the Service is provided for professional use only and you agree not to use it, or the Website, to:

You agree that Ez Texting is, under no circumstances, responsible for the contents and/or accuracy of your messages and Ez Texting will only transmit them on a basis of good faith that you use the Services in accordance with these Terms.  Ez Texting will not be liable for any misuse of the Services by you.  Ez Texting is not responsible for the views and opinions contained in any of your messages.

You acknowledge and agree that you will send messages only to individuals who have either given you their expressed permission to be contacted on their cell phones or with whom you already have an established relationship.

Data Protection & Privacy
In order to ensure your compliance with these Terms and to ensure that Ez Texting complies with national and international laws, we may, from time to time, randomly check the messages that you send.  Nonetheless, we are committed to maintaining the privacy of your information, pursuant to our Privacy Policy provided on the Website.  Except as otherwise required for your use of the Service as contemplated herein, Ez Texting does not want you to, and you should not, send any confidential or proprietary information to Ez Texting via the Website or the email addresses referenced on the Website. You agree that any information or materials that you or individuals acting on your behalf provide to Ez Texting (other than information required for your use of the Service as contemplated herein) will not be considered confidential or proprietary.  By providing any such information or materials to Ez Texting (other than information required for your use of the Service as contemplated herein), you grant to Ez Texting an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works and distribute such information and materials, and you further agree that Ez Texting is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to Ez Texting. You further recognize that Ez Texting does not want you to, and you warrant that you shall not, provide any information or materials to Ez Texting that is defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporates the proprietary material of another.

Credits
Credits are paperless vouchers that you purchase and which facilitate the sending of SMS messages. The chosen route as well as the destination of a message causes the amount of credits required to either increase or decrease but, in either case, will always be made known beforehand through the Message Pricing page of our Website. The submission of a seemingly-valid message will cause an associated quantity of credits to be debited from your account and you can obtain the real-time status of your account at any time through the online interface.

Credit Expiration
Credits do not expire.  Notwithstanding the foregoing, the value of credits may change over time (as noted below in the Price Adjustments section), and thus you acknowledge that the number of credits needed to send a text-message may change correspondingly. 

Purchase of Credits; Payments
Your payment for credits shall be deemed completed when Ez Texting receives the full amount.  Thereafter, your account will be credited within 24 hours of Ez Texting verifying receipt of your payment.  If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due, immediately upon demand by Ez Texting.

Price Adjustment
As we are dependant on other entities for the delivery of our messages, our price per credit may require adjustment in order to account for costs that are not in our control.  Accordingly, we may adjust our prices from time to time. 

No Warranty; Limitation of Liability
You acknowledge that text-messages are transmitted unencrypted and that eavesdropping of cell phone communications, including SMS delivery, by third parties is possible. Ez Texting recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method.

Ez Texting shall use commercially reasonable efforts to make access to the Service available through the required access protocols, but makes no warranty or guarantee that you will be able to access the Service at any particular time or any particular location.  NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE WEBSITE AND SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED.  NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, Ez TEXTING DOES NOT WARRANT THAT THE USE OF THE WEBSITE OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR THAT THE WEBSITE OR SERVICE WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS, OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS.  Ez TEXTING MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

Ez TEXTING SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS, DATA OR GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IF YOUR USE OF THE WEBSITE OR THE SERVICE RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE OR DATA, Ez TEXTING IS NOT RESPONSIBLE FOR THOSE COSTS.  Ez TEXTING’S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE SERVICE FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU IN THE MONTHLY PERIOD GIVING RISE TO THE FIRST CLAIM MADE. 

Indemnification
You agree to indemnify, hold harmless, and defend Ez Texting and its affiliates and each of their respective officers, directors, shareholders, employees, agents, representatives, content providers and service providers, against any and all claims, liabilities, damages, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, attorneys' fees and disbursements) arising from or relating to (i) the use of the Service in any manner which violates these Terms or otherwise violates any law, rule, or regulation; and (ii) any claims made by third parties arising from your use of the Service. You agree to cooperate as fully as reasonably required in the defense of any claim and we reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

Modification of Terms
We frequently update, modify and otherwise continually seek to improve the Service and such changes often require an update or revision to these Terms.  Accordingly, we reserve the right to change or discontinue any aspect or feature of the Service, as well as modify, change and/or update these Terms, from time to time, as we deem appropriate.  Any updates to these Terms shall be posted on this Website, form time to time.  You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes and, should you request, we will be happy to keep you informed if/when such changes take place.  If you do not agree with any such changes, your use of the Service may be cancelled in accordance with the procedures for cancellation set forth herein. 

Termination, Cancellation and/or Suspension by Ez Texting
If at anytime you breach these Terms, we may elect to suspend, terminate and/or cancel your use of the Service and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination or cancellation.  We reserve the right to suspend your Service at any stage for any reason we may deem necessary to continue to provide our Service in a way that may be hindered by your status as being our client, your financial status or the content of the messages originating from you.

Upon any such termination, cancellation and/or suspension, you are still responsible for any obligations then accrued.  Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Service (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Service and Ez Texting shall have no obligation to you after any termination or cancellation of these Terms.

Should such a termination take place when you still have credits in your account, you shall receive back, at our discretion, a fair monetary value of such credits, save any expenses that may be incurred by Ez Texting, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties.

Termination by the User
You are free to terminate or cancel your use of the Service at any time, and for any reason, provided, that you notify us, in writing, of any such termination.  Notwithstanding the foregoing, unless due to a breach by Ez Texting that it fails to cure within thirty (30) days of its receipt of your written notice, in no event shall Ez Texting be obligated to refund to you the reasonable value of any unused credits previously purchased by you. 

Links to other Websites
The Website may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by Ez Texting of the contents on such third-party Websites. Ez Texting is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of materials on such third-party sites. If you decide to access linked third-party sites, you do so at you own risk.

Ez Texting cannot ensure that you will be satisfied with any products or services that you purchase from a third-party site that links to or from the Website, since these sites are owned and operated by independent third-parties. Ez Texting does not endorse any of the products/services, nor has Ez Texting taken any steps to confirm the accuracy or reliability of any of the information contained in such third-party sites. Ez Texting does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such sites. Ez Texting strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.

All links to the Website must be approved in writing by Ez Texting, except that Ez Texting consents to links in which: (a) the link is a text-only link containing only the name "Ez Texting, Inc."; (b) the link "points" only to www.Eztexting.com and not to deeper pages; (c) the link, when activated by a user, displays the Website’s homepage in a full-screen and in a fully operable and navigable browser window and not within a "frame" on the linked website; and (d) the appearance, position, and other aspects of the link may neither create the false appearance that an entity or its activities or products are associated with or sponsored by Ez Texting nor be such as to damage or dilute the goodwill associated with the name and trademarks of Ez Texting or its affiliates. Ez Texting reserves the right to revoke this consent to link at any time in its sole discretion, without notice.

Security Rules
You are prohibited from violating or attempting to violate the security of the Website and Service and from using the Website and Service to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the Website or Service, host or network, including, without limitation, via means of submitting a virus to the Website, overloading, "flooding", "spamming", "mailbombing" or "crashing"; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any Ez Texting packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. Ez Texting may investigate violations of these Terms and Conditions and may involve and cooperate with law enforcement authorities in prosecuting users of the Website who are involved in such violations.

Force Majeure
Ez Texting shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of Ez Texting.  In addition, Ez Texting shall be so excused in the event it is unable to acquire from its usual sources and on terms it deems to be reasonable, any material necessary for the performance of Services. 

Miscellaneous
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable.

No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind Ez Texting in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys' fees.

All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

You hereby grant Ez Texting the right to use your name and/or logo within a publicly viewable list of clients or in press releases applicable to Ez Texting or the Service.

These Terms shall be governed by and construed in accordance with the laws of the State of New York, notwithstanding its laws governing conflicts of laws.  The Parties agree that any action or proceeding brought to defend the rights or enforce the obligations of a party hereto shall be brought in the courts of the State of New York. 

The terms and conditions of Service are only those stated herein, which shall constitute the complete agreement between the parties.  No terms and conditions stated in or attached to your communications to Texting are applicable to these Terms in any way and are not to be considered your exceptions to the provisions of these Terms.

Last updated June 2008.