ElmMac.Co.Za | Services Agreement Policy

 

PLEASE READ THIS POLICY CAREFULLY

This services Policy (the “Policy”) is made between you, as a User (as defined below), and the ElmMac.Co.Za entity listed below (“ElmMac.Co.Za” or “we”), which supplements the ElmMac.Co.Za Transaction Services Policy regarding your use of the ElmMac.Co.Za Services (as defined below) provided to registered members of the www.ElmMac.Co.Za online site (“ElmMac.Co.Za Site”). If you are registered or resident outside the  South Africa, you are contracting with ElmMac.Co.Za  South Africa E-Commerce Pty Ltd. If you are registered or resident in the  South Africa, you are contracting with ElmMac.Co.Za  South Africa E-Commerce Pty Ltd and its affiliate(s) which provides technical support in connection with the transaction services utilizing its strengths in network technologies, etc.

 

  1. Acceptance of Terms

 

1.1   You acknowledge that you have read this Policy prior to your use of ElmMac.Co.Za   Services.  Each time you use ElmMac.Co.Za   Services you confirm that you agree to be bound by the terms and conditions of this Policy and any subsequent amendments or modifications as may be made from time to time.

 

1.2  As some or part of the ElmMac.Co.Za   Services may be supported and provided by affiliates of ElmMac.Co.Za, ElmMac.Co.Za may delegate some of the ElmMac.Co.Za   Services to its affiliates.

 

1.3  We may amend this Policy any time by posting an updated version at www.ElmMac.Co.Za  (the “ElmMac.Co.Za Site”).   The updated version of this Policy shall take effect immediately upon posting.   By continuing to use the ElmMac.Co.Za   Services, you agree to that the amended terms will apply to you.

 

  1. ElmMac.Co.Za Services

 

2.1   The “ElmMac.Co.Za   Services” are services provided by ElmMac.Co.Za and our affiliates to facilitate payments in connection with the online transactions concluded on and through the ElmMac.Co.Za Sites.  These transactions (“Online Transactions”) are subject to the ElmMac.Co.Za Transaction Services Policy .  Unless otherwise defined in this Policy, the capitalized terms shall have the same meanings as used in the ElmMac.Co.Za Transaction Services Policy.

 

2.2   The ElmMac.Co.Za   Services are only available to the registered members of the ElmMac.Co.Za Sites (“Users”).  A User who purchases or acquires any product or service in an Online Transaction is referred to also as a “Buyer”, and a User who sells or provides any product or service in an Online Transaction is also referred to as a “Seller”. If your subscription to any membership services of the ElmMac.Co.Za Sites expires or is terminated for any reason, you are not eligible to use the ElmMac.Co.Za   Services to conclude online transactions on ElmMac.Co.Za Sites.  In addition, ElmMac.Co.Za is not obliged to provide the ElmMac.Co.Za   Services where the bank account designated by a Seller in an Online Transaction to receive the transaction price has not been verified and confirmed by ElmMac.Co.Za and our affiliates.

  

2.3   ElmMac.Co.Za shall have the right to refuse to provide the ElmMac.Co.Za   Services for any Online Transaction if (a) the Online Transaction does not satisfy the terms and conditions in the ElmMac.Co.Za Transaction Services Policy or the other applicable terms, rules and policies concerning ElmMac.Co.Za’s transaction services under the ElmMac.Co.Za Transaction Services Policy  in accordance with ElmMac.Co.Za’s instructions or (b) if ElmMac.Co.Za has reason to believe that the Online Transaction may violate any laws, rules or regulations or may otherwise subject ElmMac.Co.Za or any of our affiliates to liability.

 

2.4   You agree that ElmMac.Co.Za shall have the sole and absolute discretion to remit funds subject to the terms of this Policy.

  

  1. ElmMac.Co.Za Services for Online Transactions

 

3.1   Buyer of an Online Transaction shall pay the full transaction price listed for the Online Transaction to the Seller through the ElmMac.Co.Za Website or Alipay website  unless another option is made available directly by ElmMac.Co.Za on the ElmMac.Co.Za Site.  When using ElmMac.Co.Za to submit payment for an ElmMac.Co.Za Online Transaction, payments are processed through accounts owned by ElmMac.Co.Za or one of its affiliates and/or a registered third party service provider acting on ElmMac.Co.Za’s behalf. The funds are received for the Seller in accordance with the ElmMac.Co.Za Transaction Services Policy. The Seller agrees that the Buyer’s full payment of the transaction price listed for the Online Transaction to ElmMac.Co.Za constitutes final payment to the Seller and Buyer’s payment obligation for the Online Transaction is fully satisfied upon receipt of funds by ElmMac.Co.Za’s account. The payment must be made in US Dollar or any other currencies as supported by ElmMac.Co.Za from time to time.  

 

3.2   Upon receipt of the Buyer’s payment, ElmMac.Co.Za shall promptly notify ElmMac.Co.Za Sites of the details of the payment.  ElmMac.Co.Za shall also monitor and keep safe custody of the received funds and shall not release the funds unless an event set forth in clause 3.3 below occurs.    

 

3.3   ElmMac.Co.Za shall retain the funds received in connection with an Online Transaction unless, as agreed between Seller and ElmMac.Co.Za, any of the following events occurs:

 

(a)  in case of the successful completion of the Online Transaction upon Buyer’s confirmation, all the funds will be remitted to Seller;

 

(b)  in case of absence of the Buyer‘s confirmation of receipt of the goods within the time limit prescribed by Seller and as agreed by ElmMac.Co.Za, all the funds will be remitted to Seller;

 

(c)  in case of the cancellation of the Online Transaction, all the funds will be refunded to Buyer;

 

(d)  in case of any settlement Policy reached by Buyer and Seller, the funds will be disposed in accordance with such settlement Policy;

 

(e)  in case that a dispute in relation to Transaction Services has been submitted to ElmMac.Co.Za Sites for ElmMac.Co.Za’s determination and ElmMac.Co.Za’s determination has become final and binding according to clause 10 of the ElmMac.Co.Za Transaction Services Policy , the funds will be disposed in accordance with ElmMac.Co.Za’s determination; or

 

(f)  if ElmMac.Co.Za or our affiliates receives any order, ruling, award or judgment from a competent court, arbitration tribunal or authority which directs us to release the funds, the funds will be disposed in accordance with such order, ruling, award or judgment.

 

ElmMac.Co.Za is not holding any funds on behalf of Buyer, or in any escrow or trust relationship. Seller has requested that the settlement of funds to Seller be delayed as provided in this clause 3.3.

 

3.4   You acknowledge that ElmMac.Co.Za may also provide buyer protection plan for certain Online Transactions.  In case of Seller who has been offered to subscribe the buyer protection plan, upon entering into a separate Policy with ElmMac.Co.Za, Seller may be required to provide deposits using the methods as designated by ElmMac.Co.Za on the ElmMac.Co.Za Sites to secure Seller’s due performance of obligations under the relevant buyer protection plan.  Seller agrees to permit and hereby authorize ElmMac.Co.Za, which in turn instructs ElmMac.Co.Za to deduct, withhold and dispose any deposits provided in accordance with the terms under the relevant buyer protection plan. Buyer acknowledges and agrees that the protection afforded to you under a buyer protection plan applies to those Online Transactions where the Seller subscribed to such plan and the purchase falls within the buyer protection plan’s scope.  Services described under clause 3.3 of this Policy will not be applicable to you if Seller subscribed to the buyer protection plan and such plan already covers your purchase.

 

3.5 When releasing any funds, ElmMac.Co.Za shall have the right to deduct any financial charges or service fees due and payable to ElmMac.Co.Za (if any) in such amount as instructed by ElmMac.Co.Za pursuant to the Policy between Seller and ElmMac.Co.Za.

 

3.6 In the event that the Buyer makes payment in a currency that is different from the currency stated in the transaction price of the Online Transaction, any refund made by ElmMac.Co.Za to the Buyer pursuant to this Policy shall be made in the currency used by the Buyer in the Online Transaction, at the exchange rate utilized by ElmMac.Co.Za to convert from the currency stated in the transaction price as at the date of refund (or such other applicable date), less any applicable charges or fees set out in Clause 3.5 of this Policy.  Due to currency fluctuations, such amount refunded may be less than the amount paid by the Buyer in the Online Transaction, and ElmMac.Co.Za shall not be liable to any party for any difference in the amount refunded attributable to currency conversion costs or exchange rate movements.

 

3.7   Unclaimed funds will be held by ElmMac.Co.Za for a period of five years as instructed by ElmMac.Co.Za, at which time, the Seller will be deemed to have waived any claim in respect of such funds or, if required by applicable escheat laws, we will remit the funds (less any fees, if any and to the extent permitted under applicable laws) to the relevant competent authority.  You hereby agree that upon expiry of such period or upon remittance of such funds to the relevant competent authority in accordance to the applicable escheat laws, ElmMac.Co.Za will be relieved of any further obligation to pay those unclaimed funds to you.

 

3.8   You acknowledge and agree that ElmMac.Co.Za may receive interest for the funds held on behalf of you pursuant to ElmMac.Co.Za   Services rendered to you in accordance with applicable laws and you will not receive interest or other profits in relation to the ElmMac.Co.Za   Services.

 

  1. Users’ Responsibilities

 

4.1   All Online Transactions are concluded by and between Users only. You shall complete Online Transactions in accordance with the ElmMac.Co.Za Transaction Services Policy and ElmMac.Co.Za Sites’ terms, rules and policies.  You agree that you will not hold ElmMac.Co.Za and our affiliates or agents liable for any Online Transaction or any products or services supplied under any Online Transaction.

 

4.2   You agree to give all notices, provide all necessary information, materials and approval, and render all reasonable assistance and cooperation necessary for ElmMac.Co.Za’s provision of the ElmMac.Co.Za   Services.  If your failure to do so results in any delay in the provision of any ElmMac.Co.Za   Services or cancellation of any Online Transaction, ElmMac.Co.Za and our affiliates shall not be liable for any loss or damages arising from such delay.

 

4.3   You represent and warrant that:

 

(a)  you will use the ElmMac.Co.Za   Services in good faith and in compliance with all applicable laws and regulations;

 

(b)  the information and material you provide in connection with the use of the ElmMac.Co.Za   Services is true, lawful and accurate, and is not false, misleading or deceptive;

 

(c)  you will not use the ElmMac.Co.Za   Services to defraud ElmMac.Co.Za, our affiliates or other members or users or engage in other unlawful activities (including without limitation dealing in products or services prohibited by law);

 

(d)  in case that you are a Seller of products, you have the legitimate right and authorization to sell, distribute or export the products using the Transaction Services and such products do not infringe any third party’s rights;

 

(e)  in case that you are a Seller of products, you have good title to the products ordered under the Online Transaction, and the products meet the agreed descriptions and requirements; and

 

(f) in case that you are a Seller of services, you will provide the services ordered with reasonable care and skills.

 

4.4   If in ElmMac.Co.Za’s opinion, any User is not acting in good faith, abusing the ElmMac.Co.Za   Services, or in breach of this Policy, ElmMac.Co.Za shall have the right to cancel the Online Transaction.

 

4.5   You as the User shall be solely responsible for payment of any taxes, duties or other governmental levies or any financial charges that may be imposed on any products or services purchased or supplied through the ElmMac.Co.Za   Services or otherwise arising from the Online Transaction.

 

4.6   You agree to indemnify ElmMac.Co.Za and our affiliates and our employees, directors, officers, agents and representatives and to hold them harmless, from any and all losses, damages, actions, claims and liabilities (including legal costs on a full indemnity basis) which may arise, directly or indirectly, from your use of the ElmMac.Co.Za   Services or from User’s breach of this Policy.  ElmMac.Co.Za reserves the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by User, in which event User shall cooperate with ElmMac.Co.Za in asserting any available defenses.

 

  1. Personal Data Privacy

 

5.1   You agree that we may collect, hold, use and transfer your personal data in accordance with the Privacy Policy  of the ElmMac.Co.Za Sites.

 

  1. Suspension of Systems

 

6.1   If you are unable to use the ElmMac.Co.Za   Services directly or indirectly due to any of the following reasons, you agree you will not hold ElmMac.Co.Za its affiliates or agents liable for any default, delay or failure in performing its obligations under this Policy:

 

(a)  system suspension which has been announced by ElmMac.Co.Za in advance;

 

(b)  any Force Majeure Event (as defined under Clause 8).

  

  1. Disclaimer and Limitation of Liability

 

7.1    ElmMac.Co.Za will only be liable for the obligations expressly set forth in this Policy.

 

7.2   You agree that all risks arising from the Online Transaction will be borne by you and your counterparty.

 

7.3   Users’ information is provided by Users themselves. ElmMac.Co.Za makes no representation or warranty with respect to the accuracy, truthfulness and completeness of the Users’ information. You will be solely responsible for all consequences resulting from your own judgment and decision to use or otherwise rely on such information.

 

7.4   ElmMac.Co.Za makes no warranty regarding the ElmMac.Co.Za   Services or any products or services supplied by the sellers under any Online Transaction, including but not limited to:

 

(a)  the ElmMac.Co.Za   Services will meet your requirements;

 

(b)  the ElmMac.Co.Za   Services will be uninterrupted, timely or error free; OR

 

(c)  any products, information or material obtained by you in connection with the ElmMac.Co.Za   Services will meet your requirements.

 

7.5   Any proposal or material that you may obtain from ElmMac.Co.Za or our staff or through the use of the ElmMac.Co.Za   Services, whether in writing or oral, shall not constitute ElmMac.Co.Za’s warranty regarding the ElmMac.Co.Za   Services.

 

7.6   EXCEPT AS EXPRESSLY PROVIDED IN THIS POLICY AND TO THE FULL EXTENT PERMITTED BY LAW THE SERVICES ARE PROVIDED ON THE “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASES.   ANY AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS, WHETHER EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED AND EXCLUDED.

 

7.7   TO THE FULL EXTENT PERMITTED BY LAW, ELMMAC.CO.ZA AND OUR AFFILIATES SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF DATA OR LOSS OF OTHER ECONOMIC INTERESTS, WHETHER IN CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THE  ELMMAC.CO.ZA   SERVICES.

 

7.8   THE AGGREGATE LIABILITY OF ELMMAC.CO.ZA AND OUR AFFILIATES ARISING FROM THE ELMMAC.CO.ZA   SERVICES IN CONNECTION WITH ANY ONLINE TRANSACTION SHALL NOT EXCEED THE TOTAL REMUNERATIONS THAT ELMMAC.CO.ZA MAY DERIVE FROM SUCH TRANSACTION.

 

7.9   By using the ElmMac.Co.Za   Services, you acknowledge and agree that ElmMac.Co.Za is not a bank and the ElmMac.Co.Za   Services should in no way be construed as the provision of banking services.  ElmMac.Co.Za is not acting as a trustee, fiduciary or escrow with respect to User’s funds and it does not have control of, nor liability for, the products or services that are paid for with the ElmMac.Co.Za   Services.  ElmMac.Co.Za does not guarantee the identity of any User or ensure that a Buyer or a Seller will complete a transaction on ElmMac.Co.Za Sites.

 

7.10 Some states do not allow the exclusion of implied warranties or the limitation or exclusion of liability for incidental or consequential damages, so the foregoing exclusions or limitations may not apply to you.  You may also have other rights that vary from state to state.

 

7.11  If you have a dispute with other parties, you release us (and our affiliates and officers, directors, agents, and employees thereof) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.  If you are a California resident, you agree to waive California Civil Code Section 1542, which states, in part: “A general release does not extend to claims which a creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if not known by him or her must have materially affected his or her settlement with the debtor.”

 

 

 

  1. Force Majeure

 

No party, its affiliates or agents shall be held liable for any default, delay or failure in performing its obligations under this Policy resulting directly or indirectly from acts of nature, forces or causes beyond such party’s, its affiliates or agents’ reasonable control, including without limitation, (i) a fire, flood, elements of nature or other acts of God, (ii) an outbreak or escalation of hostilities, war, riots or civil disorders, or an act of terrorism; (iii) Internet failures, computer, telecommunications, electrical power failures or any other equipment failures; (iv) a labor dispute (whether or not employees’ demands are reasonable or within the party’s power to satisfy), (v) acts or omissions of a government authority prohibiting or impeding the affected party (or its affiliates or agents) from performing its obligations under this Policy, including orders of domestic or foreign courts or tribunals, governmental restrictions, sanctions, restrictions on foreign exchange controls, etc. or (vi) the nonperformance by a third party for any similar cause beyond the reasonable control of the Party (collectively, a “Force Majeure Event”).  If a Force Majeure Event occurs, the non-performing party will be excused from any further performance of the obligations affected by the event only for as long as the Force Majeure Event continues and the party continues to use commercially reasonable efforts to resume performance.

 

 

 

  1. Jurisdiction

 

9.1   This Policy shall be interpreted, construed and enforced in all respects in accordance with the laws of the Republic of  South Africa. Except as otherwise stipulated under applicable law, you irrevocably consent to the exclusive jurisdiction of the courts of the Republic of  South Africa, in connection with any action to enforce the provisions of this Policy, to recover damages or other relief for breach or default under this Policy, or otherwise arising under or by reason of this Policy.

 

9.2   If any dispute or claim arises from or in connection with this Policy, an Online Transaction or your use of the ElmMac.Co.Za   Services (“Dispute”), the relevant parties shall resolve the Dispute through amicable negotiations.  If any Dispute arises between Buyer and Seller in connection with an Online Transaction, you agree that such Dispute shall be resolved in accordance with the procedures set forth in clause 10 of the ElmMac.Co.Za Transaction Services Policy only. If you initiate any legal proceedings against ElmMac.Co.Za or our affiliates in breach of clause 10 of the ElmMac.Co.Za Transaction Services Policy, you shall indemnify and hold ElmMac.Co.Za and our affiliates, agents, employees, directors, officers and agents harmless and indemnified against any claim, losses, damages that may be suffered by us.

 

9.3 In any event, you may not make any claim against ElmMac.Co.Za or our affiliates under this Policy after one year from the date of occurrence of the matter giving rise to the claim.

 

9.4  Notwithstanding the foregoing provisions, either party may seek injunctive or other equitable relief against the other party in any court of competent jurisdiction prior to or during the arbitration.

 

 

 

  1. General Provisions

 

10.1 If any provision of this Policy is held to be invalid or unenforceable, such provision shall be deleted and the remaining provisions shall be enforced.

 

10.2 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.

 

10.3 No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Policy.

 

10.4   Any failure by ElmMac.Co.Za to exercise any of our rights under this Policy shall not constitute a waiver of such right or a waiver with respect to subsequent or similar breach.  A waiver shall be effective only if made in writing.

 

10.5 ElmMac.Co.Za shall have the right to assign this Policy (including all of our rights, titles, benefits, interests, and obligations and duties in this Policy) to any of our affiliates and to any successor in interest.  ElmMac.Co.Za may delegate certain of ElmMac.Co.Za rights and responsibilities under this Policy to independent contractors or other third parties.  User may not assign, in whole or part, this Policy to any person or entity.

 

10.6 If there is any conflict between the English version and another language version of this Policy, the English version shall prevail.