Version: 1.1 released on 22 June 2015
TABLE OF CONTENTS
- 1. GENERAL
- 2. DEFINITIONS
- 3. OVERVIEW
- 4. LANGUAGE
- 5. INSTRUCTIONS AND DEPOSIT OF FUNDS INTO ESCROW
- 6. DOMAIN NAME(S)
- 7. PAYMENT, SHIPPING AND TRACKING OF ITEM
- 8. BUYER'S ACCEPTANCE, DISBURSEMENT OF FUNDS
- 9. BUYER REJECTION PROCESS
- 10. SHIPPING AND TRACKING OF RETURNED ITEM
- 11. SELLER ACCEPTANCE OR REJECTION OF RETURN, DISBURSEMENT OF FUNDS
- 12. CANCELLATION
- 13. CONSUMER PROTECTION ACT
- 14. INDEMNITY
- 15. WARRANTY LIMITATION
- 16. TRANSACTIONS INVOLVING A BROKER AS A PARTY
- 17. DISPUTE RESOLUTION
- 18. APPLICABLE LAW
- 19. INTEGRATED AFFILIATE
- 20. TIME LIMITS
- 21. TIMING OF PAYMENT
- 22. METHOD OF PAYMENT
- 23. FINALITY OF PAYMENT
- 24. ESCROW FUNDS
- 25. UNCLAIMED FUNDS
- Paragraph headings in these terms of service are for convenience only and shall not be taken into account in the interpretation hereof.
- Unless inconsistent with the context, an expression which denotes:
- Any one gender includes the other gender;
- A natural person includes an artificial person and vice versa;
- The singular includes the plural and vice versa.
- Any document or information referred to in these terms and conditions and capable of being accessed by way of an internet address, including that of www.e-escrow.co.za shall be deemed to be incorporated in these terms and conditions in accordance with the provisions of the Electronic Communications and Transactions Act No. 25 of 2002.
- If any provision in a definition is a substantive provision conferring rights and imposing obligations on any party, notwithstanding that it appears only in this interpretation clause, effect shall be given to it as if it were a substantive provision of these terms and conditions.
- References to days, months or years shall be construed as Gregorian calendar days, months or years.
- When any number of days is prescribed in these terms and conditions, the days shall be reckoned exclusive of the first and inclusive of the last, unless the first or last day falls on a Saturday, Sunday or public holiday in which case the last day shall be the next succeeding day which is not a Saturday, Sunday or public holiday.
- The headings in this Agreement are for reference purposes only and shall not affect interpretation.
- "Seller": A person or entity offering certain property for sale, and desiring to use the e-escrow.co.za site in order to close such a sale, shall hereinafter.
- "Buyer": A person or entity desiring to purchase certain property from a Seller, by use of the e-escrow.co.za site for completing the purchase.
- "Broker" or “Agent”: A person or entity offering to broker a transaction between parties, and desiring to use the e-escrow.co.za site in order to close such a sale.
- "Parties": Collectively refers to the Seller and Buyer (and Broker when applicable) and E-Escrow, all legal persons that from party to the transaction.
- "Business Day": shall refer to the working days Monday through Friday between the hours of 8:00 a.m. and 4:00 p.m. central african time.
- "Close of Escrow": The completion of the Transaction by Buyer and Seller (and Broker/Agent when applicable).
- "Dispute Date":
- the Buyer’s rejection of the service rendered by the seller or agent on the e-escrow.co.za website; or
- the Seller's rejection of returned merchandise/domain(s) on the e-escrow.co.za website; or
- e-escrow.co.za rejecting merchandise/domain(s) on behalf of either party if the Seller is unable to gain access to the e-escrow.co.za website.
- “Deposit Manager”: Refers to AlphaCube Capital (Pty) Ltd (company registration number 2005/036145/07) a category 2 investment brokerage firm registered with the financial services board (FSB number 34717).
- “Deposit Funds”: The client’s funds on deposit with the Investment Manager and administered by the e-escrow.co.za software.
- "Escrow Funds": Deposit Funds earmarked and reserved for the completion of a specific E-Escrow transaction.
- "EES": Electronic Escrow Solutions (Pty) Ltd.
- "Merchandise" "Goods" "Item(s)" "Service(s)" or "Escrowed Property": work delivered or property of the Buyer or Seller which is the subject of a Transaction.
- "Negotiation Period": The 14 (fourteen) calendar days beginning with the Dispute Date.
- "Transaction Framework": The variables of the transaction as defined and agreed to by the Parties.
- "Transaction": The complete transaction including these terms, any user defined terms and conditions agreed to by the parties as well as the terms stipulated by the Transaction Framework.
- “User Defined Terms and Conditions”: The rules and stipulations of the transaction in layman’s terms defined by the parties.
- "Transaction Summary Screen": Lists all details that make up the Transaction Framework including User Defined Terms and Conditions as specified by the Parties.
- "Transaction Dashboard": A list of all E-Escrow Transactions on the E-Escrow system in which the user is a Participant available in the User Administration System.
- "User Administration System": An area of the E-Escrow system accessible only to authenticated users that contains user specific private and privileged information.
- "Amended Escrow Instruction(s)": any addition to, deletion from, or alteration to the Transaction Terms as applied by the E-Escrow.co.za administrator upon combined instruction of the Parties.
- "E-Escrow Instructions": the entire Transaction as a complete escrow instruction.
- e-escrow.co.za and EES are hereinafter collectively referred to as "e-escrow.co.za " and intermittently referred to as "we" or "us."
- "Website": refers to E-Escrow.co.za.
- "Authorise": Authorise shall mean a Party agrees to the complete Transaction. Authorisation shall be irrevocably indicated by clicking the “I agree” button once for each transaction.
- These terms and conditions are binding and enforceable against all persons that access the www.e-escrow.co.za web site or any part thereof by virtue of section 11 of the electronic communications and transactions (ECT) act 25 of 2002.
- If and to the extent that these terms and conditions are not acceptable, you should refrain from:
- Accessing or utilising the whole or any part of the contents of the Website;
- Conducting any further transaction in relation to the Website.
- If you proceed with accessing the whole or any part of the Website, or if you enter into any transaction in relation to the Website, regardless of the contents of these Terms and Conditions, it will be deemed that you have accepted the Terms and Conditions and you will be bound thereto.
- A copy of the ECT Act may be downloaded from:
- Buyer and Seller (and Broker when applicable) should each log onto the e-escrow.co.za website daily and regularly to confirm the status of the Transaction and/or the Closing.
- All communications of any kind, for any purpose shall be made in the English language. It is the responsibility of the Parties to each know and understand the English language.
5. RIGHTS AND RESPONSIBILITIES OF ACCESS
- The E-Escrow User Administration System is accessible via secure log in only.
- Unauthorised access whether coincidental, forced or accidental is strictly prohibited and will be prosecuted to the fullest extent of the South African law.
- Users of the website are responsible to keep their login credentials (username and password) confidential. In the event that a user suspects that their login credentials may have been compromised the user must:
- Contact E-Escrow.co.za immediately on +2711 486 0692.
- Change their password immediately.
- By sharing user credentials with other persons the user is transferring responsibility to maintain the integrity of their account to themselves. E-Escrow cannot be held accountable or liable for loss that incurs from shared authorised access.
6. INSTRUCTIONS AND DEPOSIT OF FUNDS INTO ESCROW
- Once the Buyer, Seller (and Broker when applicable) have Authorised a Transaction and both Buyer and Seller (and Broker when applicable) have agreed to the Transaction by selecting the "I agree" button this Transaction shall be enforced as a E-Escrow Instruction and shall constitute a binding agreement between the Parties.
- No blank spaces shall exist on the Transaction as of the time the Buyer and Seller (and Broker when applicable) Authorise the Transaction.
- After Buyer and Seller (and Broker when applicable) have Authorised the Transaction, instruction is issued to E-Escrow to appropriate the E-Escrow Instruction on behalf of the Buyer and Seller (and Broker when applicable).
- Should it become necessary to add a supplemental instruction(s), or to make any addition to, deletion from, or alteration to the Transaction Framework, all parties (Buyer, Seller (and Broker when applicable)) must confirm such change by means of secure email or by a method mutually agreed upon by both parties.
- e-escrow.co.za reserves the right to reject any Supplemental Escrow Instructions and to terminate the Transaction as provided herein.
- e-escrow.co.za may accept instructions that are created, generated, sent, communicated, received or stored by electronic means and by attaching their Digital Identification.
- The parties to the Transaction hereby agree to conduct the Transaction electronically.
- The parties acknowledge that by entering into the Transaction Escrow Instructions, they are able to electronically receive the E-Escrow Instructions, download the E-Escrow Instructions and print the E-Escrow Instructions.
7. DOMAIN NAME(S)
- In the event the property being transferred in this Transaction qualifies as a "Domain Name", e-escrow.co.za is instructed to close only when the transfer of the Domain Name has been confirmed by e-escrow.co.za (at its option) or the Buyer has notified e-escrow.co.za that Buyer has received the transfer and allowed the Inspection Period named in the Transaction Detail Screen to expire or the Buyer has accepted the transfer.
- Seller shall transfer a Domain Name(s) to Buyer based upon information provided in Buyer's profile.
- Seller agrees to provide the username and password and/or authorization code, if any, necessary to access the Domain Name to Buyer prior to the release of funds. Should Seller agree to accept payments from a Buyer for a Domain Name, and request that e-escrow.co.za hold the Domain Name while these payments are being made, then Buyer and Seller shall execute a separate agreement to govern the holding of a Domain Name by e-escrow.co.za.
- To the extent that a Transaction involves an escrow which shall result in e-escrow.co.za holding the domain name for a designated period of time, the parties shall agree to be bound by the Domain Name Holding Instructions and other such Transaction documents as the parties may submit to Escrow to govern the Transaction.
8. PAYMENT, SHIPPING AND TRACKING OF ITEM
- Payments made by cheque shall be subject to a 10 (Ten) Business Day hold.
- Due to processing delays, payments made by credit card, debit card shall not be on deposit with e-escrow.co.za until the Business Day on which the funds are actually deposited into e-escrow.co.za's designated account.
- Upon receipt of Buyer's funds, and clearance of same, Escrow Holder will notify Seller to ship the merchandise.
- This notice to Seller shall be accomplished via email which will require the Seller to log on to the e-escrow.co.za website to confirm secured funds, unless all parties lawfully agree to a different method of notification.
- Upon Seller's verification, Seller agrees to ship the merchandise, insured for full value to Buyer.
- Buyer and Seller agree to choose a shipping method that utilizes online tracking information. Seller shall ship merchandise to Buyer based upon information provided in Buyer's profile.
- Seller will be responsible for shipping damage if insurance is not purchased. Seller agrees to complete and submit the shipping information to the e-escrow.co.za website, on the same day on which the merchandise is placed in the possession of the company responsible for shipping. Confirmation of same will be sent via email to all parties, unless all parties lawfully agree to a different method of notification.
- The Buyer Inspection Period (as defined and agreed in Transaction Framework) shall commence upon the first to occur of either:
- Buyer's acknowledgement of receipt of merchandise or domain(s); or
- the e-escrow.co.za website receipt of verification of delivery to the Buyer's profile information via the shipper's or registrar's tracking services. The Buyer Inspection Period shall be calculated in full calendar days, the number of days to be agreed upon by the Seller and Buyer in the E-Escrow Instructions.
- In the event the Seller has not shipped the goods within ten days of notification by e-escrow.co.za (through its email or posting on the e-escrow.co.za website) of Buyer's deposit of immediately available funds, Buyer may request a return of funds, less the sum of one tenth of the escrow fee plus expenses, and e-escrow.co.za will do so after notifying both parties.
- Unless the parties agree otherwise, Buyer is responsible for any duties, customs fees or other charges resulting from an international Transaction, which shall be included in the purchase price. It is the responsibility of the shipping party to properly declare the merchandise and its value for customs procedures.
9. BUYER'S ACCEPTANCE, DISBURSEMENT OF FUNDS
- During the Buyer Inspection Period, Buyer shall either:
- select the "Accept" button on the e-escrow.co.za website, and follow all further instructions accordingly to complete acceptance of the goods; or
- select the "Reject" button and follow any further instructions to complete the rejection of the goods. Should the Buyer fail to select either the "Accept" or "Reject" buttons, and/or follow all further instructions, then Buyer shall be deemed to be satisfied with the quality of the goods/domain(s), and to have accepted the goods/domain(s).
- e-escrow.co.za will then begin the process of disbursing the funds as follows:
- If, in the E-Escrow Instructions, the Buyer agreed to pay for shipping, and/or any portion of the escrow fee, then those costs shall be collected as Buyer's funds, and remitted with the purchase price. At Close of Escrow, e-escrow.co.za will pay the Seller the purchase price and shipping fee itemised in the transaction, less any payment for expedite fees and disburse the escrow fee to E-Escrow.co.za.
- If, in the E-Escrow Instructions, the Seller agreed to pay for shipping, and/or any portion of the escrow fee, then at Close of Escrow e-escrow.co.za will pay to Seller the purchase amount, less any disbursement expedite fees, and any portion of the escrow fee. Shipping fees will be deemed paid outside of escrow.
- e-escrow.co.za reserves the right to provide the Buyer a written 48-hour notice if an Inspection Period has ended without the Buyer's involvement.
10. BUYER REJECTION PROCESS
- The buyer is responsible for 100% of the escrow fee in the event the transaction is cancelled or the merchandise is returned. During the Buyer Inspection Period, Buyer may reject for any reason by selecting the "Reject" button on the e-escrow.co.za site and following all other instructions to properly reject the merchandise.
- Upon such rejection, e-escrow.co.za will send Seller an email stating Buyer's decision to reject and return the goods; and Buyer agrees to promptly ship goods to Seller within 10 (Ten) calendar days of formal rejection and insure, at Buyer's expense, the item(s) to the place designated by the Seller in the Seller's profile.
- Buyer will be responsible for shipping damage if insurance is not purchased. Buyer is aware that merchandise must be rejected in the manner described in order to obtain a refund of the purchase price.
- In the event that Buyer rejects the goods in violation of other terms of acceptance and rejection, applicable to Buyer and Seller in connection with the underlying Transaction (including but not limited to the E-Escrow Instructions and e-escrow.co.za guidelines) the Seller shall not be prohibited from pursuing any available right or remedy available under the applicable law against Buyer for breach of the Transaction.
- Buyer is aware that regardless of the reason for rejection, Escrowed Property must be returned to the Seller in order for funds to be returned to the Buyer. Shipping costs for returned Escrowed Property must be arranged and completed within 10 (Ten) days of Buyer's rejection. Failure of Buyer to return the Escrowed Property within the specified time period will cause e-escrow.co.za to automatically pay the Seller the purchase price.
- In Transactions where the Escrowed Property is a domain name, if a Buyer rejects a domain name (which is not being held by e-escrow.co.za pursuant to a separate holding agreement) within the Inspection Period, return of the domain name from Buyer to Seller must be initiated within 10 (Ten) days of Buyer's rejection.
- Failure of Buyer to reject or initiate return of the domain name within the specified time periods will cause the Escrow Holder to automatically pay the Seller the purchase price.
- Seller agrees to cooperate in the return process of the domain. In the event the domain transfer to the Buyer has caused a ICANN imposed registrar lock, the Buyer and Seller agree that the Seller will open an account at the receiving registrar to take possession of the domain or that the funds will be held in escrow until this period expires and the domain can be returned to the Seller's registrar.
11. SHIPPING AND TRACKING OF RETURNED ITEM
- By rejecting the item in the manner described above, Buyer agrees to return the item(s) promptly to Seller at the address designated by Seller in the Seller's profile.
- Buyer is responsible for all related shipping and insurance costs; and agrees to return the item to the Seller by use of a shipping method that utilises online tracking information. It is the responsibility of the shipping party to properly declare the merchandise and its value for customs procedures.
- Immediately upon shipping the goods back to Seller, Buyer shall complete and submit, through the e-escrow.co.za website, the requested shipping information.
- Upon receipt of such information, Seller will be notified by an email from e-escrow.co.za which includes the name of the shipping company and the relevant tracking number as supplied by Buyer.
- If Buyer sends the goods to Seller without following the guidelines set forth in this paragraph, then in addition to any other remedies which e-escrow.co.za or Seller may have, e-escrow.co.za will not return to Buyer any of the escrowed funds unless and until:
- the Seller confirms that the rejected item has arrived in the same condition in which it was originally sent; or
- there is a final Dispute Resolution, as set forth in the Dispute Resolution section below. Should no shipping be necessary in order to effectuate the return of the merchandise, then Seller and Buyer shall be free of the shipping and tracking obligations as defined in this section.
- The Seller Inspection Period shall commence upon the first to occur of either:
- Seller's acknowledgement of receipt of merchandise or domain(s);
- thee-escrow.co.za website receipt of verification of delivery to the Seller's profile information via the shipper's or registrar's tracking services;
- the Seller's failure to accept Buyer's delivery of returned goods;
- the Seller's failure to retrieve returned goods upon notification from the shipping company and/or any governmental office of the returned goods' availability for pick up.
- The Seller shall have 5 (Five) calendar days following the date on which the Seller Inspection Period begins to inspect the "returned" merchandise/domain(s).
12. SELLER ACCEPTANCE OR REJECTION OF RETURN, DISBURSEMENT OF FUNDS
- The Seller shall have 5 (Five) calendar days following the date on which the Seller inspection period begins to:
- select the "Accept" button on the escrow.co.za website, and follow all further instructions to E-properly accept returned goods; or
- select the "Reject" button on the e-escrow.co.za website, and follow all further instructions to properly reject returned goods.
- During the Seller Inspection Period, should Seller:
- fail to select either the "Accept" or "Reject" buttons on the e-escrow.co.za website; or
- fail to follow all instructions in order to effectuate the acceptance or rejection of a returned item, then at the end of the Seller Inspection Period, Seller shall be deemed to be satisfied with the quality of the returned goods, and shall be deemed to have accepted the returned goods.
- The Seller may reject the timely return of Escrowed Property only if the property is returned in a condition other than the condition it was in when first sent from Seller to Buyer.
- Should Seller reject the item during the Seller Inspection Period, the Seller and Buyer shall negotiate for the Negotiation Period.
- Should the Buyer and Seller fail to reach an agreement during the Negotiation Period and provide a joint instruction evidencing same to e-escrow.co.za, either Buyer or Seller may file for arbitration (in accordance with the Dispute Resolution section below) at any time in the 14 (Fourteen) calendar days following the Negotiation Period.
- If, as of the 15th (Fifteenth) calendar day following the end of the Negotiation Period, neither Buyer nor Seller has filed for and given notice of the commencement of arbitration in accordance with the Dispute Resolution section of these Instructions, and given acceptable proof of the commencement of arbitration to the non-filing party and e-escrow.co.za, then Seller shall be deemed to have waived any rights Seller may have to a return of all or any portion of the purchase price, the Transaction shall terminate, and e-escrow.co.za shall return Buyer's funds as provided herein.
- Upon the first to occur of either:
- Seller's acceptance of the returned goods;
- the end of the Seller Inspection Period; or
- on the 15th calendar day following the Negotiation Period the failure of Buyer or Seller to commence arbitration (in accordance with the Dispute Resolution provisions of these Instructions and notify all parties as provided therein)
- e-escrow.co.za will begin the process of disbursing the Escrow Funds as follows:
- If, in the Transaction Escrow Instructions, Buyer agreed to pay for shipping, and/or any portion of the escrow fee, e-escrow.co.za will pay Buyer the purchase price, less these costs, and e-escrow.co.za will pay Seller for the Shipping Fee in the amount set forth in the Transaction Escrow Instruction, disburse the escrow fee to Escrow.co.za, and disburse the balance to Buyer.
- If, in the Transaction Escrow Instructions, the Seller agreed to pay for shipping, and/or any portion of the escrow fee, then e- escrow.co.za shall pay Buyer the amount deposited less e-escrow.co.za's fee.
- If Buyer and Seller agreed that the Item will not be shipped from Seller to Buyer prior to the Close of Escrow, then e- escrow.co.za will not deduct shipping fees from the Buyer's Required Payment.
- Once all costs are paid, and funds are disbursed, the escrow shall be deemed cancelled, with no further obligation due by Buyer, Seller, or e-escrow.co.za (or Broker when applicable) under this Agreement or under the Transaction Escrow Instructions.
- e-escrow.co.za reserves the right to provide the Seller a written 48-hour notice if an Inspection Period has ended without the Seller's involvement.
- Once escrow funds have been deposited, in the event that Seller fails to ship the merchandise within the required 10 (Ten) day period or within any longer time period upon which Buyer and Seller have mutually agreed, Buyer may request a refund of the deposited funds.
- The request for refund shall be submitted to the E-Escrow administrator via email.
- Buyer hereby agrees that one tenth of the escrow fee plus expenses shall be deducted from his/her/its refund regardless of any other previous arrangement for allocation of the escrow fee that may have been made between Buyer and Seller (and Broker when applicable).
- A Domain Name Holding transaction may not be cancelled by the Seller after the domain has been secured in e-escrow.co.za's holding account.
- Buyer and Seller also agree that Seller may request the escrow transaction be cancelled and the Buyer refunded, less escrow fees, at any time.
- In the event of a cancellation after funds are received, or rejection of merchandise, the Broker will not receive the commission unless otherwise stipulated in the escrow agreement.
14. CONSUMER PROTECTION ACT
- "CPA" means the Consumer Protection Act 68 of 2008 and any regulations or guidelines published in terms of the CPA.
- If any provisions of this agreement is contrary to or conflicting with the provisions of the CPA, such provision in this agreement shall be null and void to the extent that it is inconsistent with the provisions of the CPA.
- The remainder of this agreement shall remain enforceable.
The Buyer and Seller (and Broker when applicable) hereby indemnifies and holds the e-escrow.co.za harmless from and against:
- Any and all claims, actions, liabilities, damages, costs and expenses asserted against, imposed upon or incurred by the Buyer and Seller (and Broker when applicable) as a result of or arising out of any Harm alleged or proven by any Buyer and Seller (and Broker when applicable) or other person contemplated in section 4(1) of the CPA, to the extent such Harm was attributed to the gross negligence, negligence or intentional conduct of the Buyer and Seller (and Broker when applicable);
- Any and all actions, liabilities, damages, costs and expenses asserted against, imposed upon or incurred by e-escrow.co.za as a result of or arising out of any claim made against the e-escrow.co.za by the Buyer and Seller (and Broker when applicable) arising from the Buyer or Seller having supplied or returned Goods to the Buyer or Seller in breach of the warranties in Section 55 and 56 of the CPA, unless caused due to the gross negligent or intentional conduct on the part of e-escrow.co.za; and
- A failure by the Buyer and Seller (and Broker when applicable) to provide adequate instructions or warnings with the supply of Goods regarding any hazard arising from or associated with the use of Goods in accordance with the specifications of the Buyer or Seller (and Broker when applicable).
15. WARRANTY LIMITATION
Other than to the extent provided for in this Agreement and the CPA e-escrow.co.za:
- Makes no representations whatsoever and gives no guarantees against latent or patent defects in the Goods. All conditions and warranties whatsoever in respect of the Goods, whether flowing from statute, the common law or otherwise, are excluded; and
- Shall not incur any liability or whatever nature for any injury, loss or damage to any person or property arising from the use of the Goods.
16. TRANSACTIONS INVOLVING A BROKER AS A PARTY
- A Buyer and Seller may complete a Transaction with or without a Broker.
- To the extent that any Broker may be involved in a Transaction, the Broker shall become a party to the Transaction and have rights under and/or through the escrow Transaction only if the Broker is an identified Broker on the particular e-escrow.co.za Transaction.
- If either Buyer or Seller has any independent relationship, obligation or duty of any kind with any other broker or a third party broker, such other or third party broker has no rights under and/or through the Transaction or from e-escrow.co.za.
- It is the sole and independent obligation and duty of the Buyer or Seller who has any independent relationship with any other or third party broker to satisfy any and all obligations to such other or third party broker.
- The Broker will initiate the Transaction providing the Buyer and Seller email addresses and shall give instructions as to any restrictions on access to Buyer or Seller contact information.
- In the event the Broker restricts any information, the Buyer and Seller information may remain anonymous until such time as e-escrow.co.za secures the Buyer's funds.
- Once the Buyer and Seller agree to the Transaction, including the agreement to the Broker's commission, the Buyer will be prompted to send payment to e-escrow.co.za via wire transfer.
- After e-escrow.co.za secures and verifies funds, e-escrow.co.za will instruct the Seller to transfer the merchandise to the Buyer.
- When the Buyer or e-escrow.co.za has confirmed the Buyer's receipt of the merchandise, the Inspection Period shall begin.
- Upon the Buyer's acceptance or the Inspection Period expiring, e-escrow.co.za will disburse funds to the Seller and the Broker per the Escrow Agreement.
- In the event of a cancellation after funds are received, or rejection of merchandise, the Broker will not receive the commission unless otherwise stipulated in the escrow agreement.
17. DISPUTE RESOLUTION
- Any dispute arising shall be determined in terms of the provisions of this paragraph unless the parties to the dispute agree otherwise in writing.
- If a dispute arises between the Buyer, Seller, Broker (when applicable) and e-escrow.co.za, shall be entitled to require by written notice to the other parties, that the dispute be submitted to determination in terms of this paragraph.
- If the parties reach an agreed upon resolution, Buyer and Seller (and Broker when applicable) will promptly notify e-escrow.co.za in writing by joint instruction of the terms and conditions thereof.
- If Buyer and Seller (and Broker when applicable) do not reach an agreed upon resolution and notify e-escrow.co.za of the same in writing by a joint instruction during the Negotiation Period either Buyer or Seller (or Broker when applicable) shall submit the matter to binding arbitration within 14 (Fourteen) calendar days after the end of the Negotiation Period. This second fourteen-day period shall be referred to herein as the "Arbitration Commencement Period".
- Notice that such arbitration has been commenced shall be promptly given, via e-mail, by the party commencing arbitration to the other parties and Escrow.co.za. Before Buyer initiates a submission to arbitration, Buyer must return the Escrowed Property received by Buyer to Seller.
- If e-escrow.co.za has not received notice that binding arbitration has been commenced within the Arbitration Commencement Period, e-escrow.co.za may terminate or cancel the Transaction and refund the Escrow Funds to the Buyer, less the escrow fee, in accordance with these Instructions and the Transaction Escrow Instructions. e-escrow.co.za reserves the right (but has no obligation) to commence arbitration, or to interplead the funds with a court of competent jurisdiction at any time.
- Although e-escrow.co.za will be provided notice of the Arbitration Request and notice of the final award or decision of the arbitrator, e-escrow.co.za will not be an actual party to the arbitration proceeding to resolve the dispute between Buyer and Seller (and Broker when applicable) unless e-escrow.co.za voluntarily elects to intervene.
- The expert shall be a practicing attorney or advocate not less than ten years standing, appointed by the President for the time being of the North Gauteng Attorneys Association, or its successors (the "EXPERT").
- The EXPERT shall act as an expert and not as an arbitrator.
- The person or entity responsible for appointing the EXPERT shall endeavour to do so within 14 (Fourteen) days of receipt of a written request thereto from any of the parties to the dispute.
- The EXPERT shall be entitled:
- to specify the procedures that shall apply;
- to investigate or cause to be investigated any matter, fact or thing which he considers necessary or desirable in connection with the dispute and for that purpose shall have the widest powers of investigating all books and records of the parties;
- to interview and question under oath any of the parties at the instance of any of the parties to the dispute;
- to decide the dispute according to legal principles;
- to make such award, including an award for specific performance, issue an interdict, award damages or impose a penalty or otherwise as he in his discretion may deem fit and appropriate;
- to determine which party shall be liable for his charges;
- to require security for his charges prior to proceeding with the determination of the dispute, and to determine the manner in which and the party by whom such security shall be posted, after considering written representations from all parties to the dispute.
- The determination shall be held as soon as possible after it is demanded with a view to it being completed within 30 (Thirty) days after such demand.
- Any determination made by the EXPERT:
- shall be final and binding;
- will be carried into effect; and
- may be made an Order of any Court to whose jurisdiction the parties are subject.
- The determination shall be held in Johannesburg in accordance with such formalities and/or procedures as may be determined by the EXPERT, and may be held in an informal and summary manner.
- This paragraph constitutes an irrevocable consent by the parties to this agreement to any proceedings in terms hereof.
- This paragraph is severable from the rest of this agreement and shall remain in effect even if this agreement is terminated for whatsoever reason.
- This paragraph shall not prevent any party from seeking urgent interim relief in a Court of Law which has jurisdiction over the dispute.
- Each party to the arbitration shall pay a pro-rata share of the arbitrator's expenses and fees, and the other arbitration expenses incurred or approved by the arbitrator, excluding attorney fees, witness fees, and other expenses incurred by a party for his or her own benefit.
- Because e-escrow.co.za is not a party to a dispute between Buyer and Seller (and Broker when applicable), e-escrow.co.za will not be responsible for any portion of the arbitration expenses and fees.
- The parties shall estimate their costs and pay their estimated share before commencement of the arbitration. Any extra arbitration costs shall be paid within ten business days after the close of the proceeding and before the award.
- A party that fails to pay its share shall not be allowed to participate in the arbitration. If a party fails to pay its share, the other parties shall pay pro rata the cost of the party that failed to pay.
- The arbitrator shall add such payment to the final award in such a fashion as to return the parties to the position they would have been in, to the greatest extent possible, if all had paid their share.
- The arbitrator may award the prevailing party his or her expenses and fees of arbitration, including reasonable attorney fees and witness fees, in such proportion as the arbitrator decides.
- Buyer and Seller (and Broker when applicable) understand and agree that failing to respond or otherwise comply with either parties or e-escrow.co.za's notice/demand for binding arbitration pursuant to this section and/or failing to participate in the arbitration process will without notice result in forfeiture of any and all rights that the non-responding Buyer or Seller (or Broker when applicable) may have with regard to the subject matter of the dispute, including but not limited to rights Buyer or Seller (or Broker when applicable) have to the Escrow Funds and or any property associated therewith returned or distributed to them, and can result in a default judgment against such party.
- In the event of a dispute, Buyer and Seller (and Broker when applicable) are aware that no action on closing the Transaction will be taken on the part of e-escrow.co.za until such time as the dispute is resolved except by either:
- escrow.co.za's receipt of a written notice of a joint instruction providing the terms of an agreed upon resolution;
- an order of the arbitrator or a court of competent jurisdiction in response to Buyer's or Seller's (or Broker's when applicable) or escrow.co.za's action to institute binding arbitration in accordance with these Instructions;
- the order of the arbitrator or a court of competent jurisdiction in response to escrow.co.za's action for interpleader or other legal or equitable remedies.
- e-escrow.co.za shall have no responsibility and/or liability to initiate and/or continue to update either party regarding status of the Transaction Escrow, arbitration or other legal proceeding.
- The disposition of the interest earned shall be decided concurrently with the resolution of the dispute.
- The obligation of escrow.co.za, the escrow holder and their affiliates shall be limited to the holding and disbursement of funds upon written instructions signed by all parties or an award from the arbitrator and/or judge.
- e-escrow.co.za may, in its sole discretion, institute the binding arbitration procedures set forth above and/or any other legal proceedings (including interpleading the funds with a court of competent jurisdiction) to resolve any dispute arising from a Transaction between Buyer and Seller and/or related to Buyer's and Seller's respective use of the e-escrow.co.za site.
- Notwithstanding any other provision in these General Escrow Instructions to the contrary, and regardless of whether e-escrow.co.za is identified as a party to any arbitration or other dispute governed by this section, nothing herein shall be construed to limit e-escrow.co.za's legal and/or equitable rights, including but not limited to the filing of an interpleader action in any court of competent jurisdiction.
18. APPLICABLE LAW
Any dispute arising out of this Agreement, its interpretation or implementation shall be determined by a South African Court in accordance with South African law.
19. INTEGRATED AFFILIATE
- In the event an entity's site is integrated to the e-escrow.co.za website in whole or in part for the purpose of data transmission, that entity shall be considered an integrated affiliate ("Integrated Affiliate").
- In the event that Seller (and Broker when applicable) is an Integrated Affiliate, Seller (and Broker when applicable) shall automatically be deemed to agree to the terms set forth in the Transaction Detail Screens effective when the terms pass from Seller's site (and Broker's site when applicable) to the e-escrow.co.za site.
20. TIME LIMITS
- Should the e-escrow.co.za site or our services be unavailable, or if Buyer and Seller (and Broker when applicable) jointly desire to extend the Buyer Inspection Period or the Seller Inspection Period, then e-escrow.co.za may, but shall not be obligated to, extend such times as set forth in the Transaction Escrow Instructions at e-escrow.co.za's sole and absolute discretion, and e-escrow.co.za will provide prompt email notification of any extension to all parties.
- With the exception of e-escrow.co.za extensions, the Buyer Inspection Period and the Seller Inspection Period as set forth in these Instructions and the Transaction Escrow Instructions shall not be modified.
- If, for any reason, you are unable to gain access to the e-escrow.co.za site to inform e-escrow.co.za of any acceptance, rejection or return of merchandise, then you must notify e-escrow.co.za within the applicable time limit either by calling e-escrow.co.za or by emailing us from the support form.
- This notification will not be considered effective until e-escrow.co.za acknowledges receipt by notifying Buyer and Seller (and Broker when applicable) via email or by updating the Transaction Detail Screen.
21. TIMING OF PAYMENT
- All Escrow Funds due to Buyer and Seller (and Broker when applicable) shall be paid as soon as possible following the Buyer's acceptance, Seller's acceptance, or the resolution of a dispute.
- In the event that Buyer makes any form of overpayment, we shall reimburse the overpayment upon the Close of Escrow.
- In the event that Buyer or Seller (and Broker when applicable) is overpaid for any reason, Buyer and Seller (and Broker when applicable) agree to promptly return the funds to Escrow.com.
- The payee agrees to pay any postage costs and/or wire fees if an alternate payment is requested. Buyer and Seller (and Broker when applicable) shall also hold e-escrow.co.za harmless from any loss that may arise due to currency conversion.
22. METHOD OF PAYMENT
- In the event Buyer chooses credit card as the method of payment, e-escrow.co.za is hereby authorized to charge to Buyer's credit card at the time Buyer selects the Form of Payment from the Pay Now Screen.
- E-Escrow reserves the right to recover any credit card merchant charges from the Buyer.
- The Buyer agrees that Credit Card merchant charges are not refundable.
- E-Escrow uses ThisIsMe.com to verify the identity of the Parties. In order to receive a payment from E-Escrow.co.za into a specified bank account the Buyer and Seller (and Agent where applicable) agree to register with and submit all required documentation to ThisIsMe.com.
- E-Escrow.co.za reserves the right to withhold payment until such time as ThisIsMe.com is able to provide comprehensive and conclusive verification of bank account ownership and personal identity.
- The Buyer and Seller (and Agent if applicable) agree to complete a ThisIsMe.com identity verification and prove ownership of specified bank accounts.
- Costs born by E-Escrow.co.za to verify the identity of a user will be for the account of E-Escrow.co.za.
- If a credit card or other form of payment is refused, the Transaction shall be considered cancelled 20 days after e-escrow.co.za notification to the Buyer of the refusal and Buyer's failure to cure within that period.
- All escrow fund disbursements shall be made to Seller, or Buyer in the case of a refund (and Broker when applicable), into the respective user’s E-Escrow wallet.
- The User is able to withdraw funds from their E-Escrow wallet into a bank account that have been created on the system and have been verified by ThisIsMe.com to belong to the user.
- E-Escrow reserves the right to withhold any payout request from a user if the user has not sufficiently satisfied the requirements for ThisIsMe.com to validate their ownership of the specified bank account.
23. FINALITY OF PAYMENT
- Upon any payment or other disposition of the Escrow Funds, the Transaction shall be deemed closed and final with no further obligation on the part of Buyer, Seller, (and Broker when applicable) or e-escrow.co.za.
- If after a Transaction is closed and e-escrow.co.za has distributed proceeds, a Buyer (and Broker when applicable) who has made a payment with a credit card instructs a credit card company to stop payment or make a charge back so that e-escrow.co.za does not receive the payment from the credit card company or the previous credit from the credit card company is reversed or "charged back", said action by Buyer (and Broker when applicable) is deemed to be a material breach of this agreement. E-Escrow.co.za reserves the right to prosecute such action to the fullest extent of the law.
24. ESCROW FUNDS
- All Escrow Funds shall be deposited in a non-interest bearing trust account of the Deposit Manager, with any acceptable institution and insured by the (insert insurance company).
- Buyer and Seller (and Broker when applicable) acknowledge that the maintenance of such escrow trust accounts may result in EES or an e-escrow.co.za affiliate being provided with certain bank services, accommodations or other benefits by the bank.
- All such services, accommodations and other benefits shall accrue to the e-escrow.co.za affiliates, and the e-escrow.co.za affiliates shall have no obligation to account to Buyer or Seller (or Broker when applicable) or any other party to any escrow created hereunder for the value of such services, accommodations or other benefits.
- Unless otherwise requested as specified herein, Escrow Funds do not earn interest for Buyer or Seller (or Broker when applicable).
- If Buyer or Seller (or Broker when applicable) anticipate an extended period of time before the Close of Escrow, Buyer or Seller (or Broker when applicable) may request in writing by email, and e-escrow.co.za may approve, an instruction to have e-escrow.co.za place the Escrow Funds into an interest bearing account for benefit of the Buyer or Seller (or Broker when applicable), as agreed upon in writing by all parties. Said account shall be established at the bank wherein all Deposit Manager trust monies are deposited.
- If this request is approved by e-escrow.co.za, a one-time non-refundable advance service charge of R10,000.00 will be charged to the party to whom the interest is due and payable.
- The Deposit Manager will split interest earned 50/50 between EES and the beneficiary.
25. UNCLAIMED FUNDS
- In terms of Section 93 of the Administration of Estate Act 66 of 1965 (hereinafter referred to as "the Act"), all Escrow funds unclaimed by the rightful owner for a period of 5 (five) years or more, and after the expiration of 3 (three) months from the date of publication in the government gazette, will be deposited to the Guardians Fund to the credit of the rightful owners.
- In terms of Section 92 of the Act, all deposits unclaimed by the person entitled thereto for a period of 30 (thirty) years from the date upon which such persons became entitled to claim said deposits, shall forfeit to the state.