eMessageX.com

1. Introduction.
Systems Relationship Marketing Interactive, trading as eMessageX.com is a private company, specialising in email marketing and providing many services some of which include email distribution and interactivity on this platform for various customers. eMessageX.com’s technology, services, facilities and any other related documentation eMessageX.com may provide to you, may be used to send permission-based electronic mail, subject to the Terms and Conditions of eMessageX.com.

2. Customer content and messages:
Customer supplied content and messages will be subject to eMessageX.com’s technical standards. Each customer grants to eMessageX.com all necessary proprietary rights licenses for eMessageX.com to provide the services for that customer. The customer will not provide content, messages or customer lists that:
2.1.) violate the eMessageX.com Commercial Email Guidelines;
2.2.) infringe or violate any intellectual property rights, publicity/privacy rights, law or regulation, or are defamatory, harmful to minors, obscene or child pornographic;
2.3.) contain any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or
2.4.) are materially false, misleading or inaccurate.
eMessageX.com may take remedial action if content or messages violates the terms set out above; however, eMessageX.com is under no obligation to review content, messages or customer lists for accuracy or potential liability. The customer shall indemnify and hold eMessageX.com harmless from any and all losses, costs, damages, liabilities or expenses (including without limitation reasonable attorney’s fees) incurred or arising from any claim by a third party arising out of messages or content.

3. Ownership
3.1.) The customer retains all right, title and interest in and to the messages, content and customer lists. eMessageX.com will only use customer content messages or customer lists to perform the contracted services. The customer acknowledges that the names, email addresses and contact information of persons on the customer lists may also appear on other lists available independently.
3.2.) eMesageX.com and its suppliers retain all right, title and interest in and to all software, materials and eMessageX.com proprietary information used by eMessageX.com or provided to the customer in connection with the services. eMessageX.com and its suppliers reserve any rights or licenses not expressly granted to the customer.

4. Binding Agreement:
eMessageX.com’s services are provided to companies that have agreed to the Terms and Conditions of eMessageX.com. Any use of the services is subject to restrictions listed in the policy.

5. Confidential Information:
5.1.) Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations and (c) not to use such Confidential Information for any purpose except as expressly permitted. Notwithstanding the foregoing, the receiving party shall not be in violationwith regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that the receiving party provides the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2.) Exceptions. The restrictions on use and disclosure of Confidential Information set forth above shall not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records; (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.

6. Limitation of Liability:
Neither eMessageX.com or its suppliers are liable for lost profits or special, incidental or consequential damages arising out of or in connection with the services used (however arising, including negligence), even if such party has been advised of the possibility of such damages, and notwithstanding the failure of essential purpose of any limited remedy.

7. Remedies:
Neither party will be liable to the other for the following loss or damage however caused and even if foreseeable by such party:
7.1.) pure economic loss, which shall include loss of profits, business, revenue, goodwill, or anticipated savings; or
7.2.) indirect or consequential damages or loss (whether in contract or delict, including negligence).
eMessageX.coms’ entire liability for actual, direct damages resulting from its performance or non-performance, regardless of the form of action, whether in contract, delict (including without limitation, negligence) will be limited as detailed in Limitation of Liability.

8. Disclaimer of warranty:
8.1.) eMessageX.com will use commercially reasonable efforts to perform the services. eMessageX.com’s sole obligation and a customer’s exclusive remedy for any service failure or breach by eMessgeX.com of any warranties or other obligations shall be that eMessageX.com will use commercially reasonable efforts to cure such breach or, if eMessageX.com will grant the customer compensation relating to the charges raised for services only.
8.2.) Except as expressly set forth, the services and all other data and materials provided in connection with the services provided by eMessageX.com and its suppliers are provided “as is”. eMessageX.com and its suppliers make no other warranties or conditions, express or implied, by operation of law or otherwise, including, without limitation, any implied warranties of non-infringement, merchantability or fitness for a particular purpose or any implied warranties arising out of course of performance, course of dealing or usage of trade.

9. Indemnification:
You shall indemnify eMessageX.com and its owners, directors, employees, agents and affiliates and hold them harmless from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments and expenses, as well as any and all third party claims and causes of action, including, without limitation, system shut downs, retaliatory attacks, or loss of data.

10. Force Majeure:
Neither party shall be liable for any default or delay in the performance of its obligations hereunder:
10.1.) if, and to the extent such default or delay is caused, directly or indirectly, by any event but not limited to earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions, or revolutions, strikes, lockouts, or labour difficulties, or any other cause, including safety hazards; and
a. provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by the party affected thereby (individually, each being a “force majeure” event).
b. Any party so delayed in its performance will immediately notify the other in writing (e.g. electronic mail) within one day of the inception of such delay and describe at a reasonable level of detail the circumstances causing such delay.
10.2.) if any force majeure event substantially prevents, hinders, or delays performance by eMessageX.com of the services for more than 90 consecutive days, then the customer shall be entitled to cancel any agreement on written notice to eMessageX.com.

11. Dispute Resolution:
Any dispute, question or difference arising at any time between the parties out of or in regard to:
11.1.) the rights and duties of either of the parties hereto; or
11.2.) the interpretation of; or
11.3.) termination of; or
11.4.) any matter arising out of the termination of; or
11.5.) the rectification of the agreement between the parties;
shall be submitted to the Chief Executive Officer (or his nominee) (“CEO”) of each of the parties to be resolved in terms of section 12.
The parties will attempt in good faith to resolve any dispute or claim arising out of or relating to the services promptly through negotiation between the CEOs, or the delegated representatives of the CEOs of parties.
The CEOs of the respective parties shall meet as soon as reasonably practicable after a dispute is referred to them and if the CEOs fail to resolve the dispute within 14 (fourteen) days (or such further period as the parties may agree upon in writing) of a dispute having been referred to them, the dispute will be referred to arbitration as set out below.

12. Arbitration:
Any dispute arising from or in connection with the services shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa by an arbitrator/s appointed by the Foundation.

13. Rights Of Parties On Termination:
In addition to the rights contained elsewhere in, on receipt by either party or lawful notice of termination of the contract for any reason, the customer shall have the right:
13.1.) to take possession all Customer Data and Software owned by or proprietary to the customer or in respect of which the customer has any right to use pursuant to the provisions of the agreement between the two parties.
13.2.) Each party shall, on termination of the Agreement, retain all rights, which it may have accrued against the other party prior to termination, and will be entitled to enforce those rights after termination.

Commercial Email Guidelines
1. The customer will ensure each and every email address has been collected on an “opt-in” basis. “Opt-in” means that an individual has made an affirmative action (e.g., clicking a “yes” box on a webpage where “no” was the default) or statement consenting or requesting to receive emails from the customer of the nature the customer will send through eMessageX.com’s service.
2. The customer will ensure the subject lines of any email sent through eMessageX.com’s service accurately represent the content of such email, and are in no way misleading as to their nature.
3. The customer will allow recipients to remove themselves from a mailing list in each and every email sent through eMessageX.com’s service.
4. eMessageX.com reserves the right, in its sole discretion, to refuse to undertake an activity that in its judgement, violates these practices (Refer to “Customer Content and Messages”)
5. eMessageX.com reserves the right to terminate, upon written notice, in its sole discretion, the contract if the customer does not comply with these provisions.