Definitions and Interpretation
In these Terms, unless the context otherwise requires or is specified otherwise:
- Authorized User means: Customer; and any user authorized to use the Services in accordance with these Terms;
- Business Day means any day other than a Saturday, Sunday or public holiday in Auckland, New Zealand;
- Claim means any claims, demands, suits or proceedings;
- Fees means the fees set out in the Online Provisioning Form or as agreed between you and SMX from time to time;
- GST means goods and services tax within the meaning of the Goods and Services Tax Act 1985;
- Intellectual Property Rights means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual property rights, whether registered, in the course of being registered or unregistered and any analogous rights worldwide;
- MX Record means resource record in the domain name system that specifies your mail server responsible for accepting email messages on behalf of your domain;
- Online Provisioning Form means the document or online confirmation or email confirmation which refers to the Terms and sets out the Services to be provided by SMX to the Customer;
- Services means the services requested by the Customer in the Online Provisioning Form and includes the Support Services;
- Services Term means the term of the agreement from the date that you request the Services until the Services are terminated in accordance with these Terms;
- SMX Domain means the domain that a Customer directs their MX Record in order to receive the benefit of the Services;
- Support Service means the email based support services detailed on the SMX website and updated by SMX from time to time;
- Systems means the communication equipment, computer resources and the data stored on the communication equipment and computer resources;
- Terms means these terms and conditions and any variation or amendments to the Terms made by SMX from time to time;
- Virus means any software, code, file, program or other device which is designed to prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device or otherwise adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
- "we", "us" and "our" are a reference to SMX Ltd;
- “you” and “your” are a reference to the Customer.
These Terms will apply to all Customers that use the Services. Where you have entered into a separate Services Agreement with us, then that Services Agreement will override any of these Terms to the extent that these Terms contradict the Services Agreement.
- SMX grants the Customer the non-exclusive, non-transferable right to access and use the Services free of charge for a period of 14 days for the number of Authorized Users specified in the Online Provisioning Form (the Trial Period).
- Subject to clause 2(c)-(d) and the remaining Terms, your access to the Services will automatically continue at the end of the Trial Period. SMX is entitled to invoice you at its current rate for your continued access to the Services in accordance with the Online Provisioning Form.
- If you wish to terminate access to the Services before or at the end of the Trial Period you must: notify SMX in writing before the end of the Trial Period; and ensure that your MX Record is removed from the SMX Domain.
- Where notice of termination has been received before the end of the Trial Period but your MX Record has not been removed from the Services, SMX shall be entitled to invoice you at its then current rates for the Services for the later of: 30 days from the end of the Trial Period; or until the MX Record is removed from the SMX Domain.
- At the end of the Trial Period, SMX will, for the Services Term, grant you a non-exclusive, non-transferable right to access and use the Services for the Services Term, subject to these Terms.
- SMX will use commercially reasonable endeavours to provide the Services in accordance with industry accepted practices.
Your obligations and responsibilities
- You are responsible and liable for any authorized or unauthorized use of any Services acquired by you.
- You will:
- ensure that any Services acquired by you is used by you personally or by Authorized Users for legitimate business purposes;
- procure that any Authorized User comply with the Terms in relation to access and use of the Services;
- ensure that authorised users do not (a) transmit or post on the Services unlawful, immoral, libelous, tortious, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (b) knowingly transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (c) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (d) attempt to gain unauthorized access to the Services or the software used to power the Services;
- ensure that the number of Authorized Users does not exceed the number specified in the Online Provisioning Form and ensure that you advise SMX should you wish to increase the number of Authorized Users;
- permit SMX to audit the number of Authorized Users using the Services. Where such an audit shows that you have more users than the agreed number of Authorized Users (Excess Users) using the Services, you will on demand immediately pay to SMX the underpayment of fees in respect to the excess users from the time they first accessed the services;
- ensure that all information provided by you or on your behalf to SMX is accurate, current and complete; and
- procure that all Authorized Users keep secure and confidential their account ID, login ID, username and password.
- You shall inform SMX as soon as you become aware of any unauthorized or suspicious activity relating to use of the Services, or if you believe the security of your account has been compromised in any way.
- You will ensure that your network and systems comply with the relevant specifications as may be specified by SMX from time to time and be solely responsible for procuring and maintaining a network connection and internet link.
- You shall follow best practises when maintaining your network and computer systems and ensure that your network and computer systems do not contain any Virus before using the Services. Where you become aware of any Virus on your network or computer system you will immediately notify SMX.
SMX acknowledges and agrees that the Customer and the other Authorized Users will own all rights, title and interest in and to all of the MX Record and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the MX Record.
- The payment terms in this clause apply as the default payment terms, unless you have a services agreement stating different terms. The Customer will pay the Fees in accordance with this clause 6 and the Online Provisioning Form.
- SMX will invoice you in accordance with the Online Provisioning Form or at intervals as agreed between you and SMX for the Fees payable in respect of the Services and you will pay each invoice within 14 days of receiving such invoice (Payment Date).
- If you fail to pay any undisputed invoice when due then without prejudice to any other rights and remedies of SMX:
- SMX will send you a notice of your failure to pay such undisputed invoice (Non-payment Notice), and you will then have a further 10 Business Days after the date of the Non-Payment Notice to pay any amount remaining unpaid;
- If SMX have not received payment after 10 Business Days of the Non-payment Notice being sent, SMX may, without liability to you:
- disable access to all or part of the Services; and/or
- cease to provide any of the Services.
- Interest will accrue on any amounts remaining unpaid after the Payment Date at the rate of 5% interest per month until the amount is paid in full.
- All amounts and Fees stated or referred to in these Terms are exclusive of GST (if any).
- You must pay all costs and expenses (including legal and/or debt collection agency costs) we incur in enforcing or attempting to enforce our rights under this clause.
In relation to the Services, SMX excludes to the extent permitted by law, all warranties, terms and conditions (including without limitation, warranties and conditions as to fitness for purpose and merchantability), whether express or implied by statute, common law or otherwise.
Limitation of liability
- SMX shall not have any liability or responsibility for any loss, damage or injury, whether arising in contract, tort, equity or otherwise, which does not flow directly or naturally (i.e. in the ordinary course of things) from a breach of these Terms, including, in each case, consequential loss of business or profits or other loss.
- In no circumstances will SMX be liable (whether in contract, tort or otherwise):
- for any losses (excluding loss of business or profits), other than those which flow directly or naturally from a breach of these Terms;
- for any special, incidental, indirect or consequential loss or damage for any loss of goodwill or loss of profits;
- whether in relation to one or more Claims in any 6 month period, for an amount in excess of that amount paid by you to us during the two months immediately preceding the Claims concerned.
- You will procure that Authorized Users do not bring any Claim under or in relation to these Terms (whether in contract, tort or otherwise) against SMX. You will indemnify SMX against any loss, cost liability or damage SMX has suffered as a result of failing to do this.
- You acknowledge that SMX (or its suppliers) is the sole owner of all rights (including Intellectual Property Rights) in the Services.
- You shall not, nor may you permit any other person to:
- copy, alter, modify, reproduce, reverse assemble, reverse compile or enhance the Services;
- alter, remove or tamper with any trademarks, any patent or copyright notices, or any confidentiality, proprietary or trade secret, legend or notice, or any numbers, or other means of identification used on or in relation to the Services;
- make any of the Services available to any person other than the Authorized Users without our prior written consent; or
- do any act that would or might invalidate or be inconsistent with our Intellectual Property Rights.
- You shall, at our expense, take all such steps as we may reasonably require to assist us to maintain the validity and enforceability of our Intellectual Property Rights.
- You shall notify us of any actual, threatened or suspected infringement of our Intellectual Property Rights and of any claim by any third party that any use of the Services infringes any rights of any other person, as soon as that infringement or claim comes to your notice. You shall, at our expense, do all such things as may reasonably be required by us to assist us in pursuing or defending any proceedings in relation to any such infringement or claim.
- You shall indemnify us against any losses, costs, expenses, demands or liability whether direct, indirect, consequential or otherwise, and whether arising in contract, tort (including in each case negligence), or equity or otherwise, arising out of a claim by a third party alleging infringement of that third party's intellectual property rights if such claim arises from infringement, suspected infringement or alleged infringement due to a breach by you of clause 9(b) of these Terms.
- You acknowledge that information disclosed to you by us in relation to the Services is confidential (Confidential Information).
- You may not use or disclose any Confidential Information other than:
- Authorized Users;
- to your employees to the extent necessary;
- with our express prior written consent; or
- to your professional advisers.
- You agree to implement such security arrangements as may be necessary to ensure that the secrecy of the Confidential Information is preserved.
- You shall indemnify us against any losses, costs (including solicitor and client costs), expenses, demands or liability whether direct, indirect, consequential, or otherwise and whether arising in contract, tort (including in each case negligence), or equity or otherwise incurred as a result of any unauthorized disclosure or use of the Confidential Information by you or anyone acquiring such Confidential Information from you.
- By providing you with an account ID, login ID or username, SMX does not relinquish any rights to the account ID, login ID or username, and your use of them shall not create any rights to them.
- Subject to clause 2 of these Terms, you must give us at least 90 days notice (Notice Period) in writing to terminate any Services being supplied to you. On or before the end of the Notice Period you must have removed your MX Record from the SMX Domain. We are entitled to continue to invoice you up to the expiry of the Notice Period or to the date your MX Record is removed from the SMX Domain, whichever is the later, and you shall pay all amounts so invoiced.
- We are entitled to immediately terminate any Services being supplied to you by giving notice in writing to you (Notice of Termination) where:
- you materially breach these Terms and the breach is incapable of remedy; or
- your failure to remedy a breach of these Terms that is capable of remedy, within 10 Business Days’ of written notice of that breach having been given to you; or
- the commencement of your liquidation or insolvency (except for the purposes of solvent amalgamation or reconstruction) or the appointment of a receiver, statutory manager or trustee of your property or an assignment for the benefit of your creditors or execution being levied against you or you compounding or compromising with your creditors or being unable to pay your debts in the ordinary course of business.
- Where we terminate any Services in accordance with clause 11(b), we shall be entitled (in addition to any other remedies we may have against you) to invoice you for:
- a sum equivalent to an amount of one month of the agreed Fees; or
- where you have committed to a minimum time period for particular Services, you will continue to be charged and pay for all relevant fees until the minimum time period expires.
- On termination, SMX will discontinue delivery of any Services to you and remove all data connected with such Services from its Systems.
- On termination you will immediately, at SMX’s direction, return to SMX or destroy any Confidential Information or documentation in your possession or control relating to the SMX services.
SMX will have no liability to the Customer under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, provided that the Customer is notified of such an event and its expected duration.
- If a dispute or difference arises out of or in connection with these Terms, including any question regarding the existence, validity or termination of any agreement arising out of them (a Dispute), neither party shall commence legal proceedings unless it has first complied with clause 13(b).
- Either party may refer the Dispute to mediation by giving written notice to the other party. If the parties cannot agree on a mediator within five Working Days of receipt of that notice, either party may request that the mediator be selected by the chair of LEADR.
- Nothing in this clause will preclude either party from taking immediate steps to seek urgent equitable relief before a New Zealand court. However, all efforts should first be directed at resolving the Dispute as set out in clause 13(b) above.
- Occasionally we may, in our discretion, make changes to these Terms. When we make changes to the Terms that we consider material, we’ll notify you by email. By continuing to use the Services, you acknowledge and agree to those changes and the new terms will be deemed to have taken effect 30 days after those changes are made.
- These Terms and the Online Provisioning Form constitute the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter. Any changes to any specific clause as agreed by you and SMX will not affect the operation of the other terms and will form part of these Terms.
- These Terms will not be deemed to create a partnership, joint venture or agency relationship of any kind between the parties.
- A provision or a right under these Terms may not be waived except in writing signed by the party granting the waiver.
- The Customer will not, and will procure that other Authorized Users will not, assign, transfer or otherwise deal with these Terms or any of its rights or obligations under there Terms, whether in whole or in part, without the prior written consent of SMX.
- Notices and other communications under these Terms are to be given in writing by email, and must be sent to the correct email, designated in writing by each party for that purpose from time to time. A notice or communication in relation to these Terms will be deemed to be received, in the case of email, on the Business Day on which the email is successfully delivered.
- These Terms and any agreement arising out of them shall be governed by New Zealand law, and the parties submit to the non-exclusive jurisdiction of the courts of New Zealand.
We will contact you at your electronic address unless otherwise requested. Please contact us at our electronic address: firstname.lastname@example.org.