Definitions

“Agent” or “Escrow Agent” – means Savage Rowley Attorneys
“Agreement” – means this agreement and its terms
“Addendum” – means any addition, deletion, or alteration of one or more of the terms of this agreement
“Arbitration” – means the process whereby an independent arbitrator is assigned to adjudicate disputes between the parties
“Bank Charges” – shall mean any reasonable charges levied by the banking institution of the Escrow agent
“Business day” – refers to a working day between and including Monday to Friday from 08h00 to 16h00 and shall exclude public holidays
“Completion date” – shall mean the date by which the buyer can expect delivery of the goods or services from the seller
“ECT Act” – means the Electronic communications and Transactions Act 25 of 2002
“Effective Date” – shall mean the date that the Escrow Agent has received and acknowledged the intention of the parties to contract in terms of this agreement in writing
“Escrow Account” – shall be the Escrow agent’s Trust Account held by Savage Rowley Attorneys and governed by the Legal Practice Act
“Fees” – means the fees agreed to in terms of this agreement of the Escrow Agent.
“Inspection period” – shall mean the time allowed for the purchaser to inspect the goods delivered or services rendered by the seller
“Parties” – means all parties to this agreement including all persons acting in capacity as agent for the buyer seller or escrow agent.
“Trade” – shall mean the transaction between the parties to provide or deliver goods or services for payment by the Escrow Agent

1. 
   Interpretation

 

1. Clause headings in this agreement are for reference purposes only and must not used in the interpretation thereof, unless the context indicates otherwise;

1. A person shall include a natural person, company, partnership, close corporation or other legal entity and the singular shall include the plural and vice versa;

 

1. When a particular number of days is provided for the performance delivery or payment, the reckoning of such time shall exclude the first day and include the last;

1. Any schedule, addendum or annexure to this agreement shall be deemed to be incorporated herein and shall form part of this agreement;

 

1. References to any legislation, regulation, by law or enactment shall include references to that legislation, regulation, by law or enactment as amended, extended or re-enacted;

1. The rule of construction that an agreement must be interpreted against the party who drafted it does not apply.

 

1. Creation of Transaction or Trade
   
   

2.1  When creating a transaction both the buyer and seller must provide the following :
2.1.1      Comprehensive details and descriptions of the goods or services to be provided;
2.1.2      The agreed inspection period
2.1.3      The delivery date or completion date;
2.1.4      Any registration documents, certificates, photographs or other documents required by either party that pertain to the transaction;
2.1.5      In the case of services, any progress or milestone dates and the inspection period of each progress or milestone dates;
2.1.6      In the case of goods, delivery date, delivery method, and courier company to be used (if applicable)
2.1.7      Bank account details into which payment must be made on completion of the trade

1. 
   Acceptance of agreement

 

1. Parties indicate whether they agree to the transaction by ticking/selecting the “I agree to the term and conditions” box indicating to the escrow agent that they accept the terms and conditions hereof.

1. Once the escrow agent has received the agreed to indication from both parties of their acceptance, the escrow agent shall notify each party of the acceptance by email indicating the effective date and reference number, failing which the date of the sending of the said email shall become the effective date.

 

1. Deposited Funds

 

1. On the effective date the buyer is required to deposit the agreed funds into the Escrow Agent’s Trust account.

 

1. Payment must be made into the following account :

Name : Savage Rowley Trust Account
Bank : First National Bank
Branch : Randburg 250 655
Type : Current
Account : 6272 4387 578

1. The escrow agent will not be held liable for payments made into the incorrect bank account.

 

1. No cash deposits will be accepted.

1. The escrow agent will verify and confirm receipt of the funds to all parties;

 

1. Proof of payment is not acceptable proof of funds and only confirmed and verified payments by the escrow agent should be accepted.  

       

1. Buyer’s Acceptance and inspection
   
   

1. During the inspection period the seller is to provide the buyer the necessary access to facilitate such inspection.

 

1. The buyer and the seller, after performing the inspection shall confirm in writing to the escrow agent that the goods or services are acceptable or if terms are to be re-negotiated, or declined.

1. Should the buyer fail to inspect the goods or services during the inspection period without providing the escrow agent with reasons as to why the buyer was unable to inspect the goods or services, the escrow agent shall deem that the goods or services are acceptable, and shall proceed to release the deposited funds to the seller.

 

1. Should the seller fail to facilitate the inspection of the goods or services to the buyer during the inspection period, without providing the escrow agent with reasons as to why the seller was unable to facilitate the buyer’s inspection, the escrow agent shall deem that the goods or services are not acceptable and shall withhold the deposited funds of buyer until such inspection can take place.

1. 
   Payment of Funds

 

1. Upon confirmation in writing from both parties that the goods and services have been delivered or performed and are accepted, the escrow agent shall proceed to make payment less the fees to the seller’s nominated bank account.

1. In the event of an unresolved dispute between the buyer and seller the escrow agent will withhold payment of funds until such time as the dispute is resolved.

 

1. In the event of a dispute that has been referred to an arbitrator or a South African Court of Law, the escrow agent will only make payment on the instruction of the Arbitrator or Court unless both agree to a settlement in writing signed by both parties.

1. Should the buyer fail to inform the escrow agent that the goods have been delivered and accepted, negotiated or extended, the escrow agent will provide written notice to the buyer to respond within 3 business days failing which it will be deemed that the buyer has accepted the goods and services and will facilitate payment to the seller.

 

1. In the event of a dispute between the parties that has been subsequently resolved, both parties must notify the escrow agent of the resolution of the dispute in writing.

1. 
   Refund payments

 

1. In the event of the seller failing refusing or neglecting to initiate delivery of the goods or services the buyer shall be entitled to a refund, less the net fees.

1. Should the parties renegotiate the terms or pricing which renegotiation affects the payment price, the buyer will be entitled to a partial or full refund less the net fees.

 

1. Should the goods or services be rejected by the buyer, the parties are entitled to enter into new trade terms which may affect pricing and if required the buyer shall be entitled to a partial or full refund less the net fees.

 

1. Refunds will be paid out if under instructions from an Arbitrator or court of law, or if the parties have agreed thereto in writing.

1. 
   Fees

 

1. Fees can be paid by either party or both equally.

1. Parties are to elect before the effective date to the escrow agent who shall be liable for the fees.

 

1. Should the buyer elect to pay the fees, the fees will be added to the purchase price to be deposited into the escrow agent’s account.

1. Should the seller elect to pay the fees, the fees will be deducted from the purchase price before payment is made to the seller.

 

1. Should both parties elect to pay the fees equally, then half of the fees will be added to the purchase price to be deposited into the escrow agent’s account and the other shall be deducted from the purchase price.

1. Any interest accrued on monies held will accrue to the Legal Practice Council in terms of the Legal Practice Act or party that made payment less net fees.

 

1. All fees exclude taxes applicable to the transaction.

1. Costs, each party shall be liable for their own costs incurred pursuant to the completion of the transaction.

 

1. Unless agreed otherwise, all customs and duties will be for the buyer’s account in the case of an international transaction.

8.10 A list of fees and charges are listed below as Annexure A of this agreement.

 

1. Dispute Resolution
   
   

1. Any dispute arising between the buyer and seller under this agreement shall be between them and the escrow agent is not a party to such dispute.

 

1. The parties hereby undertake and agree to use their best efforts to negotiate in good faith to reach a resolution to any dispute between them.

1. Upon notification to the escrow agent that a dispute has arisen between the parties, the escrow agent shall freeze the transaction and withhold all funds until such time as the dispute is resolved between the parties.

 

1. In the event of a failure of the parties to resolve a dispute, the parties agree to mediation failing which appoint an independent arbitrator and agree that any decision by such Arbitrator shall be final and binding on the parties.

1. During a dispute period the escrow agent shall not release any funds to any party unless the parties have either settled the dispute or the escrow agent has received an order from an Arbitrator or Court of law.

 

1. Arbitration & Mediation
   
   

1. In the event of the parties appointing an Arbitrator or mediator the parties agree that such Arbitrator or mediator’s decision will be final and binding on the parties based on the documents, facts and merits of the dispute.

 

1. The parties agree that an independent Arbitrator or mediator will be appointed.

1. The parties agree that the costs and fees for the Arbitrator or mediator shall be shared equally between the parties and that the escrow agent shall not be liable in any way.

 

1. Arbitration or mediation fees that are required before or during arbitration or mediation will be paid by the parties into the escrow agent’s account.

1. Should any party fail to make payment of its share of the fees or costs of the Arbitrator when requested to do so, that party risks the right to participate in the Arbitration proceedings so long they are in default of payment, and may at the discretion of the Arbitrator be excluded from further proceedings.

 

1. The rules that proceedings are to be adjudicated in accordance with the expedited rules of AFSA.

1. The Arbitrator shall provide his award within 30 days after finalisation of proceedings unless the parties agree otherwise or the AFSA secretariat permits an extension.

 

1. The award shall be communicated and published to all parties.

1. Unless the parties have instructed the Arbitrator otherwise before a final award is given, there shall be no right of appeal from the award given by the arbitrator.

 

1. The escrow agent shall not be held liable in any way for the manner proceedings were conducted.

 

1. Returned Goods
   
   

1. If there has been a dispute and it is agreed that the goods be returned to the seller, then the buyer shall be responsible for the return of the goods to the seller at its original destination. The buyer agrees to return the goods to the seller immediately, alternatively within 10 business days from the date of being informed to return the goods.

 

1. The seller is entitled to an inspection period of 5 days or a mutually agreed period for goods that have been rejected by the buyer.

1. If the seller rejects the goods returned by the buyer, then a dispute will have arisen and must be dealt with in terms of clause 9.

 

1. The seller can reject goods returned by the buyer if the goods returned are not in the same condition as they were when sent.

1. If the seller fails to reject the returned goods within 5 business days it shall be deemed that the goods were accepted and the funds will be released back to the buyer.

 

1. Duties of the parties
   
   

1. The parties agree that they will notify the escrow agent immediately of any event that occurs during the transaction including but not limited to delivery, disputes, re-negotiations, acceptance, rejections, refunds or extensions.

 

1. The parties hereby warrant that they are duly authorised to conclude this agreement if acting on behalf of a juristic person and that they are over the age of 18 years if concluding this agreement in their personal capacity.

1. 
   Cancellation

 

1. The parties may cancel this agreement if agreed to in writing by both parties.

1. If the parties cancel the agreement the escrow agent shall upon receipt of such cancellation refund the buyer less the fees due.

 

1. Unclaimed Funds
   
   

1. All funds held by the escrow agent and not claimed for a period longer than 12 months will be subject to an annual maintenance charge of R500.00

 

1. The escrow agent shall be entitled to claim ownership of unclaimed funds after sufficient time has lapsed in terms of the Prescription Act 68 of 1969 and the Legal Practice Act.

1. 
   Disputes between the parties and the escrow agent

 

1. This clause only applies to disputes between the escrow agent and the parties.

1. Should a dispute arise between the escrow agent and either of the parties, such dispute must be communicated in writing to the escrow agent.

 

1. In the event of the dispute arising and the escrow agent being duly notified of the dispute, the parties agree that the first attempt at resolving the disputed must by way of negotiation, thereafter Mediation or Arbitration.

1. Negotiation must be concluded within 10 business days by the parties and reduced to writing if resolved.

 

1. In the event that negotiation has failed, the parties must then attempt mediation or arbitration.

1. This clause does not preclude any party from obtaining interim relief from a competent court.

 

1. Notices and chosen Domicilium
   
   

1. All notices, authorisations, disclosures, acknowledgments and requests must be done in writing and be sent by electronic mail, by hand, by courier, or by registered post to the chosen addresses of the parties below.

 

1. By accepting the terms and conditions on the online application form the buyer elects the information inserted thereon as his chosen domicilium citandi et executandi for service of all notices persuant from this agreement

 

1. By accepting the terms and conditions on the online application form the seller elects the information inserted thereon as his chosen domicilium citandi et executandi for service of all notices pursuant from this agreement

 

1. All notices will be deemed to be delivered on the date shown by hand, registered postal slip, courier waybill, or electronic mail as confirmation of delivery.

1. 
   General

 

1. This agreement constitutes the entire agreement between the parties in respect of the subject matter of this agreement.

1. If any term or clause in this agreement is found to be void, invalid, illegal or unenforceable such term or clause will be severed and the remainder of the agreement will still be of full force and effect unless such severance alters the nature of the agreement.

 

1. This agreement is governed by and must be interpreted under the laws of the Republic of South Africa and the parties hereby agree to the exclusive jurisdiction of the South African Courts.