ELMMAC | Trade Assurance Services Rules

Important Notice: Please review these Rules carefully, particularly those terms and disclaimers which may adversely impact the scope of Trade Assurance Services available to you, including but not limited to those under Article 16 of these Rules. You must review and understand them before committing to any contractual agreements subject to Trade Assurance Services. Application of these Rules shall be subject to the relevant transaction setting in Trade Assurance transaction system.

Trade Assurance Services are only provided to qualifying registered users who had duly agreed to all terms of the ElmMac.Co.Za Free Membership Agreement. Use of the Trade Assurance Services shall mean that such user has agreed to and abided by the relevant service agreements and all other relevant rules on ElmMac.Co.Za. 

Chapter 1 – Purpose and Definition

Article 1    Purpose

The purpose of establishing these Rules is to protect the legitimate interests of users of the ElmMac.Co.Za International Platform (URL:  http://www.ElmMac.Co.Za) and to promote the healthy development of the Trade Assurance Services. These Rules shall only apply to EveryOne using ElmMac Platforms & Related Sites.

Article 2     Definition

All capitalized terms which are not defined hereunder shall have the same meaning ascribed to it in the ELMMAC Trade Assurance Purchase Contract entered into between the Buyer and the Seller:

“Actual Shipment Date”

means the date according to the records of the ElmMac.Co.Za transaction system, except where the Seller may otherwise prove the actual Shipment Date by providing any original conclusive information (in which case such information shall prevail).

“Advance Payment”

means the refund by ElmMac.Co.Za or its affiliate(s) on behalf of an eligible Seller to the Buyer in accordance with relevant provisions of these Rules, including where a refund is made by ElmMac.Co.Za after the Buyer has applied for Credit Card Chargeback or after ElmMac.Co.Za has considered the condition of the transaction pursuant to the Trade Assurance Purchase Contract.

“ElmMac.Co.Za”

means ElmMac.Co.Za PTY, the operator of the ElmMac.Co.Za International Platform (www.ElmMac.Co.Za) and together with its affiliates supporting the Trade Assurance Service to be provided by Sellers on the ElmMac.Co.Za International Platform.

“ElmMac.Co.Za International Platform”

means the English language B2B e-commerce website under the “ElmMac.Co.Za” brand name that is maintained at www.ElmMac.Co.Za.

“ElmMac”

means ElmMac, Inc., a related company of ElmMac.Co.Za.

“ElmMac Account”

 

means the Seller’s account registered with ElmMac for the purposes of processing any refund to the Buyer pursuant to the Trade Assurance Purchase Contract or the Sample Order Purchase Contract (as applicable).

“Buy Now Product”

means any products on the ElmMac.Co.Za International Platform which is available for immediate purchase.

“Buyer”

means a user of the ElmMac.Co.Za International Platform who is registered or resident in the Republic of South Africa & Rest of the World  and has purchased products and requested Seller to provide Trade Assurance Services.

“Claim Period”

means no later than 30 days (inclusive of the 30th day) after the Confirmed Receipt Date of the products.

“Confirmed Receipt Date”

means either: (i) the day when the Buyer clicks “confirm” on the order system to confirm the receipt of the products; or (ii) if the Buyer did not click “confirm” in the order system, then it should be no later than 15 days after the Actual Shipment Date by express delivery.

“Contract Sum”

means the contractual value of the trade assurance order as set out in the Trade Assurance Purchase Contract or a Sample Order Purchase Contract (as applicable).

“Credit Card Chargeback”

means the application submitted by a credit card holder to the bank for the refusal of a payment with regards to a certain transaction within a period of time (120 days in general, or up to 540 days for certain payment service providers) after payment has been made pursuant to a Trade Assurance Purchase Contract or a Sample Order Purchase Contract (as applicable).

“Day”

means a calendar day in the Republic of South Africa & Rest of the World .

“Dispute Determination”

means the dispute determination service provided by the ElmMac.Co.Za International Platform in determining liability upon receipt of a valid complaint based on existing evidence.

“Information”

has the meaning as set out in Article 7.1.1.

“Party”

means the Buyer or the Seller, as the case may be, and “Parties” shall mean the Buyer and the Seller collectively.

“Product Inspection Company”

means the product inspection company designated for Trade Assurance Services which provides inspection services according to the product quality standards stipulated in the Trade Assurance Purchase Contract.

“Rules for Enforcement Action against Non-Compliance of Transactions on ElmMac.Co.Za”

means the rules for enforcement action against sellers’ non-compliance pursuant to dispute determination on the ElmMac.Co.Za International Platform, found at 

“Sample Order Purchase Contract”

means the sale and purchase contract entered into by and between a Buyer and a Seller using an execution method approved by the ElmMac.Co.Za International Platform in connection with the sale and purchase of certain sample products.

 

“Seller”

means a user, registered or resident in the Republic of South Africa & Rest of the World , who sells products on the ElmMac.Co.Za International Platform and agrees to provide Trade Assurance Services to Buyer.

“Shipment Date”

means the date for pickup of the express delivery of the products.

“Supplier Services”

means internet and technology support services on ElmMac.Co.Za relating to the publication of company and product information which sellers of the Republic of South Africa & Rest of the World  can purchase for.

“Trade Assurance Purchase Contract”

means a sales and purchase contract entered into by and between a Buyer and a Seller using an execution method approved by the ElmMac.Co.Za International Platform which stipulates the type, quantity, price of certain products and the rights and obligations in connection with the sale and purchase of such products and Trade Assurance Services.

“Trade Assurance Services” or “Trade Assurance”

means an undertaking and obligation of the Seller as further set out in Article 3 below to provide assurance to Buyer as stipulated in the Trade Assurance Purchase Contract.

“Transaction Fee”

means 3% of the full contractual amount (including shipping fee
(if any) but excluding tax) pursuant to the Trade Assurance Purchase Contract or Sample Order Purchase Agreement (as applicable).

“Working Day”

means any day that is not an official holiday in the Republic of South Africa & Rest of the World , such as Saturday, Sunday and etc.

Chapter 2 – Trade Assurance Services

Article 3       Trade Assurance Service and Refund

3.1       Under the Trade Assurance Services, the Seller undertakes to fully refund either (i) the Contract Sum received by the Seller; (ii) an amount as mutually agreed upon by the Buyer and Seller in accordance with the system records of the Complaints Platform; or (iii) any other amount as determined by ElmMac.Co.Za in the event where one of the following breaches occurs:

3.1.1    the Seller has failed to ship any products on or before the Shipment Date or did not ship the products pursuant to the Trade Assurance Purchase Contract or the Sample Order Purchase Contract (as applicable)at all;

3.1.2    the Seller has failed to deliver products which are in compliance with the product description and specifications as set out in the Trade Assurance Purchase Contract or the Sample Order Purchase Contract (as applicable);

3.1.3    the Seller has failed to provide valid documentation in support of change of ownership of the products to the Buyer or corresponding invoice or certification in support of the delivery; or

3.1.4    the Seller has committed any other material breach of the Trade Assurance Purchase Contract or the Sample Order Purchase Contract (as applicable),

which has resulted in a material damage to the value of the products or that the commercial objective which is known or should be known to both the Seller and the Buyer has become unachievable.

3.2       For the avoidance of doubt, any partial refund made shall be conditional upon the Buyer’s acceptance of the Seller’s act of breach of the Trade Assurance Purchase Contract.

3.3       In the event where the Buyer submits a complaint to ElmMac.Co.Za and uses the Dispute Determination service provided by the ElmMac.Co.Za International Platform during the Claim Period, the Seller agrees that after ElmMac.Co.Za receives a valid compliant, ElmMac.Co.Za shall have the right to determine at its sole discretion the liability in connection with the dispute based upon the relevant evidence; and if ElmMac.Co.Za determines that the Seller has committed a breach of the these rules or the Trade Assurance Purchase Contract:

3.3.1    the Seller authorizes ElmMac.Co.Za and/or its affiliates or any authorized third party to, on behalf of the Seller, refund to the Buyer (i) the full amount under the Trade Assurance Purchase Contract (including inspection fee, if any); (ii) the amount as agreed between the Buyer or the Seller; or (iii) the amount as determined by ElmMac.Co.Za to protect the legitimate interests of the Buyer;

3.3.2    the Seller authorizes and agrees that ElmMac.Co.Za and/or its affiliates or any authorized third party may use any funds in its ElmMac Account for Advance Payment for refund purposes, and if the funds in the ElmMac Account is insufficient to cover the refund amount to the Buyer, the Seller agrees to repay the discrepancy to ElmMac.Co.Za and/or its affiliates in accordance with these Rules; and

3.3.3    the Seller accepts and agrees that it shall repay ElmMac.Co.Za or its affiliates of any Advance Payment made within 15 days from the date of Advance Payment, otherwise liquidated damages equivalent to 0.5% of the overdue repayment shall be charged per day, and the Seller shall also be liable for all relevant costs incurred by ElmMac.Co.Za and its affiliate(s) arising from any enforcement actions pursuant to such overdue sum (including but not limited to attorney’s fees, travelling expenses and notarial fees). For the avoidance of doubt, if the Advance Payment is paid by an affiliate of ElmMac.Co.Za, it shall not discharge the Seller from its repayment obligations to ElmMac.Co.Za.

3.4       If the Seller has already refunded to the Buyer directly, the Seller shall promptly notify ElmMac.Co.Za to avoid any double counting of refund, otherwise any loss arising therefrom shall be solely borne by the Seller.

3.5       Upon any Advance Payment made by ElmMac.Co.Za, the Seller shall refrain from delivering or replenishing any products to the Buyer, any subsequent delivery or replenishment of product or refund made by the Buyer after ElmMac.Co.Za has made any Advance Payment will not discharge the Seller from its repayment obligations to ElmMac.Co.Za.

3.6       The Seller accepts and acknowledges that it is subject to penalties, suspension or cease of qualification to provide Trade Assurance Services pursuant to Articles 9.5, 11, 15.2 and 20 in the event of a breach of these Rules or the Trade Assurance Purchase Contract.

3.7       The Seller shall be solely responsible for providing the Trade Assurance Services and neither ElmMac.Co.Za or its affiliates nor any third party shall have any obligation to provide such services to the Buyer.

Article 4     Sample Orders

4.1       The Seller shall deliver sample products to the Buyer in accordance with the Sample Order Purchase Contract and perform any obligations therein.

4.2       In the event where the Seller commits any breach, including but not limited to the Seller’s failure to ship any sample products on or before the Shipment Date or did not ship the sample products pursuant to the Sample Order Purchase Contract at all or the Seller commits any other material breaches, the Seller agrees to either (i) refund the full amount under the Sample Order Purchase Contract; (ii) refund the amount as agreed between the Buyer and the Seller; or (iii) refund the amount as determined by ElmMac.Co.Za.

4.3       For the avoidance of doubt, any partial refund made shall be conditional upon the Buyer’s acceptance of the Seller’s act of breach of the Sample Order Purchase Contract.

4.4       In the event where the Buyer submits a complaint to ElmMac.Co.Za and uses the Dispute Determination service provided by the ElmMac.Co.Za International Platform, the Seller agrees that after ElmMac.Co.Za receives a valid compliant, ElmMac.Co.Za shall have the right to determine at its sole discretion the liability in connection with the dispute based upon the relevant evidence; and if ElmMac.Co.Za determines that the Seller has committed a breach of the Sample Order Purchase Contract, ElmMac.Co.Za will be entitled to, on its own or entrust a related partner, refund to the Buyer for and on behalf of the Seller, the total amount under the Sample Order Purchase Contract (including inspection fee, if any); (ii) the amount as agreed between the Buyer or the Seller; or (iii) the amount as determined by ElmMac.Co.Za.

4.5       The Seller undertakes to fully refund the total amount under the Sample Order Purchase Contract received by the Seller or an amount as mutually agreed upon by the Buyer and Seller (in accordance with the system records of the Complaints Platform), or any other amount as determined by ElmMac.Co.Za in the event where one of the following breaches occurs:

4.5.1    the Seller has failed to ship any sample products on or before the Shipment Date or did not ship the sample products pursuant to the Sample Order Purchase Contract at all;

4.5.2    the Seller has failed to deliver sample products which are in compliance with the product description and specifications as set out in the Sample Order Purchase Contract; or

4.5.3    the Seller has committed any other material breach of the Sample Order Purchase Contract,

4.6       ElmMac.Co.Za shall not accept any dispute arising from the sample product’s quality issue, save for where the Buyer is able to produce evidence proving the Seller is involved in any fraudulent act or material breach in connection with the Sample Order Purchase Contract.

Article 5     Release of funds

5.1       Any contractual amount paid by the Buyer to the ElmMac Account shall be held in escrow until it can be released in any of the following events: 

5.1.1    the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) has been fully performed completely and the Buyer has confirmed receipt of the products or on the Confirmed Receipt Date (whichever is earlier);

5.1.2    both the Buyer and the Seller have agreed to close the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) (where the Trade Assurance Purchase Contract is cancelled or terminated); or

5.1.3    any other circumstances which, in the opinion of ElmMac.Co.Za, shall entitle the funds to be released.

5.2       In the event where the Seller has committed a breach pursuant to Article 19.2 with regards to one transaction, ElmMac.Co.Za and/or its affiliates may hold any funds in its ElmMac Account in escrow until any Advance Payment has been paid to ElmMac.Co.Za and/or its affiliates in full or until any dispute under any other Trade Assurance purchase contract or sample order purchase contract (as applicable) has been fully settled and any amount to be refunded (if any) has been refunded in full.

5.3       The Seller may withdraw any funds upon release in accordance with Articles 5.1 and 5.2 above.

Chapter 3 – Admission of Sellers

Article 6     Admission criteria of sellers for Trade Assurance

6.1       The Seller shall meet the following criteria and qualification to be eligible for providing Trade Assurance Services:

6.1.1    it has registered and maintained itself as a registered US Gold Supplier of ElmMac.Co.Za, and agrees to be bound by any agreement, rules or policy in relation to ElmMac.Co.Za;

6.1.2    it is an entity with full power and authority to accept these Rules and to perform the obligations hereunder. Any sale of products as stipulated in the Trade Assurance Purchase Order or the Sample Order Purchase Contract (as applicable) shall be in compliance with all applicable laws, regulations, rules or policies, and shall not infringe or purport to infringe upon the lawful rights and interests of others;

6.1.3    it has obtained or made (as the case may be) all consents, license, approvals or authorizations of, filings with, notices to or other acts carried out by or in respect of, any agency or governmental authority which are required to be obtained or made (as the case may be) by it in connection with the sale of products as stipulated in the Trade Assurance Purchase Order or the Sample Order Purchase Contract (as applicable); and ElmMac.Co.Za shall have the right to seek any damages from the Service Provider in the event of a breach of the aforementioned;

6.1.4    it and its affiliate companies (if any) has no dishonest or fraudulent record or pending litigation;

6.1.5    it has submitted the following materials to ElmMac.Co.Za:

            (a) a copy of the Business License stamped with the company seal;

            (b)       a copy of the tax registration certificate (including but not limited to Form W-9);

            (c) a copy of the ID document of its legal representative or operator; and

            (d)       any other materials as required by ElmMac.Co.Za from time to time;

6.1.6    it has successfully registered for an ElmMac Account and provided all necessary materials required by ElmMac; and

6.1.7    any other information, qualification, materials or criteria as required by ElmMac.Co.Za from time to time.

6.2       ElmMac.Co.Za has the sole discretion to approve or reject any admission request by the Seller and its decision shall be final.

6.3       Upon approval of the Seller’s admission, ElmMac.Co.Za may display a Trade Assurance service icon, transaction behaviour and any other icons or tag which may indicate other forms of information or data on dedicated places on the ElmMac.Co.Za International Platform.

Article 7     Representations, warranties and undertakings of the Seller

7.1       The Seller represents, warrants and undertakes to ElmMac.Co.Za that:

7.1.1    any materials, data, evidence and information, including but not limited to personal data, contact information, transaction data and information in relation to license, approvals,  authorizations or proof in the event of a dispute (collectively, “Information”) submitted to ElmMac.Co.Za are true, accurate, complete, up-to-date, lawful and valid;

7.1.2    any criteria set out in Article 6 above shall continue to be valid and effective;

7.1.3    any product details or information pursuant to the Trade Assurance Purchase Contract published or displayed shall be in compliance with all laws, regulations, rules and policies in its form and substance, and shall be true, accurate, complete and be free from any content that is obscene, immoral, fraudulent, defamatory (including commercially defamatory), false, misleading, misused, over-committed (including any superlative descriptions such as “best” or “the only”), threatening, harassing or of a malicious or phishing nature;

7.1.4    any product sold under the Trade Assurance Purchase Contract complies and corresponds with the quality, quantity, function and certification as specified on the Trade Assurance Purchase Contract or packaging and do not impose any unreasonable defects or malfunctions which may threaten personal safety or cause property damage; and

7.1.5    any product sold under the Trade Assurance Purchase Contract complies with the requirements or rules of any applicable laws and regulations and do not fall under any restricted goods category (save for where the Seller possesses the necessary exemption or licenses or authorizations to sell or purchase such restricted products).

Article 8     Additional obligations of the Seller

8.1       The Seller acknowledges and agrees that:

8.1.1    it shall always act and conduct its business based on the principle of good faith on the ElmMac.Co.Za International Platform and in its provision of Trade Assurance Services;

8.1.2    it shall irrevocably authorize ElmMac.Co.Za and/or its affiliates to collect, store, consolidate and/or edit or use any of its Information;

8.1.3    it shall irrevocably authorize ElmMac.Co.Za and/or its affiliates to access or collect its Information from any third party which legally stores or processes such Information for verification, risks assessment and risks protection;

8.1.4    it shall irrevocably authorize ElmMac.Co.Za and/or its affiliates to provide any of its Information or other necessary documents, proof or details in connection with any Dispute Determination to any court, administrative agency, or other governmental body or applicable stock exchange pursuant to such relevant authority’s order or requirement;

8.1.5    it shall irrevocably authorize ElmMac.Co.Za and/or its affiliates to share or provide any data or information to ElmMac for the purposes of opening an ElmMac Account;

8.1.6    it shall inform ElmMac.Co.Za as soon as possible (and in any event no later than 30 days) upon any change or ineffectiveness of any Information and/or documents which have been submitted to ElmMac.Co.Za, and shall update and/or delete any non-compliant information as required by ElmMac.Co.Za;

8.1.7    provided the Seller meets all of the admission criteria in Article 6, it shall only use its ElmMac Account eligible for Trade Assurance Services to enter into any agreement (including these Rules and any Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable)) or provide any Trade Assurance Services;

8.1.8    it shall communicate with and require the Buyer to make any necessary payment at such time and by such means as stipulated in the Trade Assurance Purchase Order or the Sample Order Purchase Contract (as applicable);

8.1.9    ElmMac.Co.Za may suspend any Trade Assurance service icon display, terminate any Trade Assurance Purchase Order or the Sample Order Purchase Contract (as applicable), withdraw the Seller’s eligibility of providing Trade Assurance Service and/or take such other actions as it deems appropriate, based on any data, proof or material facts which ElmMac.Co.Za may have;

8.1.10  in the event where the Buyer complains about the Seller’s Trade Assurance Service, the Seller shall proactively cooperate and provide relevant evidence within the designated time period;

8.1.11  it shall indemnify and hold harmless ElmMac.Co.Za and/or its affiliates from all claims and losses, damages, costs, expenses (including but not limited to legal expenses) as may be incurred by ElmMac.Co.Za and/or its affiliates which may arise from the Seller’s breach of any personal data privacy legislation and rules and any other breaches of these Rules. This indemnification obligation shall survive and remain valid notwithstanding any suspension or termination of account and/or Trade Assurance service icon of the Seller on ElmMac.Co.Za International Platform;

8.1.12  it shall not assign, transfer or partially assign or transfer any rights or obligations to any third party, otherwise ElmMac.Co.Za can terminate these Rules; and

8.1.13  it shall not offer any bribe or any form of rebate to ElmMac.Co.Za or its affiliates’ employees, including but not limited to commission, stock, entertainment, payment in kind, investment or commercial opportunities or cash or cash equivalents, otherwise the Seller shall be liable to liquidated damages equivalent to the higher of (i) the actual amount improperly offered to ElmMac.Co.Za or its affiliates’ employees or (ii) US$73,000, and ElmMac.Co.Za may terminate these Rules with immediate effect.

Chapter 4 – Transaction Fee

Article 9     Transaction Fee

9.1       A transaction fee will be charged against the Seller for each order pursuant to the Trade Assurance Purchase Contract or the Sample Order Purchase Contract (as applicable).

9.2       In the event where the Seller is required to make any refund to the Buyer, the Transaction Fee with respect to such refund amount shall be refunded to the Seller by ElmMac.Co.Za pro rata after the refund has been processed by the Seller.

9.3       ElmMac.Co.Za reserves the right to charge the Seller and/or the Buyer any additional fees in respect of Trade Assurance Services. Any such adjustment and/or decision of ElmMac.Co.Za will be published online and shall take effect on the designated date or, if there is no such designated date, 15 days after the adjusted fees are published on the ElmMac.Co.Za International Platform.

9.4       ElmMac.Co.Za may from time to time adjust the relevant rules for Transaction Fee according to industry changes and operational demands, and determine the content and scope of such rules at its sole discretion. Any such adjustment and/or decision of ElmMac.Co.Za will be published online and shall take effect on the designated date or, if there is no such designated date, the date as published on the ElmMac.Co.Za International Platform.

Article 10   Top-up of ElmMac Account

10.1     The Seller shall ensure that there is an adequate funds in its ElmMac Account at all times.

10.2     In the event where the Seller is under an obligation to refund to the Buyer regardless of mutual consent between the Parties or pursuant to a Dispute Determination adjudication by ElmMac.Co.Za, the Seller shall ensure its ElmMac Account to have sufficient funds for the refund and shall top-up such account immediately if the funds are insufficient to cover the refund.

Article 11   The Suspension and Termination of Trade Assurance Service

11.1     The Trade Assurance service icon display for Trade Assurance will be temporarily suspended upon the occurrence of any of the following:

11.1.1  if Supplier Services and Trade Assurance Services have been activated for the Seller for the first time and lasted for more than 180 days, but no Trade Assurance Purchase Contract has taken effect (refer to Article 12.3 for the definition of take effect) for a consecutive period of 180 days, then the Trade Assurance service icon display will be temporarily suspended; or

11.1.2  the Seller shall have the right to apply for the reactivation of the Trade Assurance service icon during any suspension period. The Trade Assurance service icon shall be automatically reactivated if an effective Trade Assurance Purchase Contract is entered into within 15 days of such application. The Trade Assurance service icon shall continue to be suspended if no effective Trade Assurance Purchase Contract is entered into during the 15-day period and the Seller shall not be allowed to apply for another reactivation of the Trade Assurance service icon for a period of 30 days from the 16th day following the Seller’s initial application for reactivation.

11.2     The qualification or right to provide Trade Assurance Service shall be terminated upon the occurrence of any of the following:

11.2.1  the Seller has unreasonably refused to enter into a Trade Assurance Purchase Order with a Buyer on two or more occasions;

11.2.2  the repayment from the Seller of the amount refunded by ElmMac.Co.Za on its behalf has been overdue for more than one month;

11.2.3  the Seller no longer satisfies relevant prerequisite conditions for Trade Assurance Services;

11.2.4  the Contract Sum (as set out in the Trade Assurance Purchase Contract) has not been paid to the ElmMac Account because of any reasons attributed to the Seller (including but not limited to wrongful instructions by Seller to Buyer); or

11.2.5  the Seller has violated agreements related to the Trade Assurance Services and/or these Rules, and ElmMac.Co.Za has decided to terminate the Seller’s qualification to Trade Assurance Services.

Chapter 5 – Operational Work Flow of Trade Assurance Services

Article 12   Operational Work Flow

12.1     A Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) shall only be drafted upon the Seller’s satisfaction of the following conditions:

12.1.1  the Seller has satisfied the prerequisite requirements for Trade Assurance Services;

12.1.2  any deposit stipulated in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) is greater than zero (save for any order for Buy Now products where no deposit is applicable);

12.1.3  no payment payable to ElmMac.Co.Za and/or its affiliates are overdue; and

12.1.4  there are no other risk factors that may affect the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable).

For the avoidance of doubt, ElmMac.Co.Za shall have the sole right and discretion to determine whether or not the Seller has fulfilled all of the conditions as specified above. 

12.2     First Stage: Subject to Article 12.1 above, either the Seller or the Buyer may draft, amend and submit a Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) based on the terms and conditions agreed between the Parties.

12.3     Second Stage: 

12.3.1  If the Buyer drafts the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable), the Seller shall confirm such Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) in the order system (except in circumstances where the transaction setting in Trade Assurance transaction system does not require confirmation by Seller, including but not limited to wholesale transactions where shipping fee is included when order is placed by Buyer).

12.3.2  If the Seller drafts the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable), the Buyer shall remit the deposit (if any) in full to the beneficiary bank account designated in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) in the method approved by ElmMac.Co.Za or stipulated in the contract after the submission of the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) and before shipment, and the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) shall have been confirmed and taken effect upon the ElmMac.Co.Za transaction system confirming receipt of the remittance.

12.3.3  If the Buyer fails to remit the deposit in full in time, the Seller shall have the right to terminate the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable). The Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) shall only take effect after the Buyer has remitted the deposit in full in time. 

12.3.4  If the Buyer selects credit card as the method of payment, the Buyer shall be entitled to request for chargeback. In such event, the Seller shall cooperate and bear the burden of proof. In the event where the Seller does not provide any evidence or fails to prove its case, the Seller shall be liable for the relevant losses. Whether the Seller is able to successfully prove its case will usually be based on the relevant credit card issuer’s determination.

12.3.5  The ElmMac Account designated in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) shall be used for the collection of transaction payments thereunder only. The Buyer and the Seller shall keep and maintain such account number in a proper manner, and shall not change its use without authorization or disclose such account details improperly. Any disputes or losses caused by the use of such account or request for chargeback or other reasons shall be settled or borne by and between the Buyer and the Seller, and the Buyer and the Seller undertake to make all efforts to protect ElmMac.Co.Za and/or its affiliates from any adverse effects or losses.

12.4     Third Stage:  Upon conclusion and taking of effect of the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable), the Seller shall ship the products in accordance with the terms agreed in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable). 

12.5     Fourth Stage: Upon receipt of products from the Seller, the Buyer shall confirm receipt of the products and to the extent where a review function is available, may give a review of the Seller within 15 days after the Confirmed Receipt Date.

12.5.1  Under certain transaction setting, the Buyer may extend the Shipment Date for no more than 90 days (inclusive of the 90th day), such as in wholesale transaction, with the Seller’s permission.

12.5.2  If permitted by the ElmMac.Co.Za transaction system, the Buyer and Seller may extend the expected date of arrival of the products.

Article 13   Application for Dispute Determination

13.1     After the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) has taken effect, a Party that has submitted a complaint to ElmMac.Co.Za under the terms of the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) may use the Dispute Determination services (see Agreement on Use of Complaint Center) provided by the ElmMac.Co.Za International Platform. 

13.2     The request should be submitted via the complainant’s valid account on ElmMac.Co.Za International Platform in accordance with the website’s guidance and instruction after the Party has logged in to the ElmMac.Co.Za International Platform. A valid account generally refers to the Buyer or the Seller’s email address inserted into the Trade Assurance Purchase Contract at the time of drafting, or the regular and effective account used by the Buyer or the Seller on the ElmMac.Co.Za International Platform when the Buyer or the Seller confirmed the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable).

Chapter 6 – Rules for Dispute Determination in Connection with Trade Assurance Services

Article 14   Complaints and Handling

14.1 Complaints

14.1.1  If a dispute arises after the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) has taken effect, the Buyer may raise a complaint through the “orders” section in the My ElmMac portal (the “System”). The complaining Party is referred to as complainant and the other Party as respondent.

14.1.2  The complainant must fill in the reasons and grounds for raising the dispute and provides sufficient supporting documents within the time limit displayed on the System.

14.1.3  The complainant and the respondent should use their best endeavors to resolve the dispute amicably. After the complainant submits dispute complaint, the Parties have 3 days to negotiate without the involvement of ElmMac.Co.Za dispute customer service representative. If no agreement is reached by the Parties within the 3-day period, from the 4th day onwards, the Buyer may request ElmMac.Co.Za customer service representative to resolve the dispute, or may continue to negotiate with the Seller.

14.1.4  If no agreement is reached by the Parties within 30 days from the date of the complaint, and the Buyer has not requested ElmMac.Co.Za customer service representative to resolve the dispute but has not withdrawn its complaint, on the 31th day from the date of complaint,

(a)        the system will determine whether supporting evidence will be required to be provided by the Buyer and/or the Seller; and

(b)        if ElmMac.Co.Za determines that supporting evidence is required from the Buyer and/or the Seller, then the rules pursuant to supporting evidence as set out in Articles 14.6.2 and 14.6.3 shall apply.

14.1.5  During the 30-day negotiation period as stipulated in Section 14.1.4 above, if for any continuous 7-day period whereby (a) the Buyer has not responded to the Seller at all, the system will close the complaint case; or (b) the Seller has not responded to the Buyer at all, the system will escalate the complaint to a customer service representative of ElmMac.Co.Za automatically for Dispute Determination. For the avoidance of doubt, the negotiation period may be extended or shortened based on each complaint case as ElmMac.Co.Za sees fit.

14.1.6  Prior to the ElmMac.Co.Za customer service representative’s involvement, the Buyer and the Seller shall be responsible for any risk and the outcome of their negotiation.

14.1.7  If during the course of Dispute Determination, the Parties reached a settlement, a written settlement agreement or other agreement in writing shall be provided to ElmMac.Co.Za which will then cease the Dispute Determination.

14.1.8  Notwithstanding the above, the results of implementation and enforcement of the settlement by the Parties are beyond the scope of Trade Assurance Service, if either Party is not satisfied with such settlement or enforcement results, the Parties shall resolve the matter on their own through consultation.

14.2     Complaint Withdrawal

14.2.1  The complainant may withdraw the complaint at any time before ElmMac.Co.Za makes any determination on the complaint.

14.2.2  The respondent shall not lure, engage in any fraudulent act to make, or coerce the complainant to withdraw the complaint.

14.3 Claim Period

The Buyer can only raise a complaint for Dispute Determination during the applicable Claim Period in order to activate the Dispute Determination process, failing which, ElmMac.Co.Za shall have no obligation to accept the complaint.

14.4     Notice 

After ElmMac.Co.Za receives the request for Dispute Determination, ElmMac.Co.Za will notify the respondent about the complaint by mail, telephone, or any other methods as it deems appropriate. 

14.5     Counter-notice

14.5.1  After being notified by ElmMac.Co.Za, the respondent should submit a counter-notice for the complaint within 3 Working Days from the date of notification and provide sufficient supporting evidence.

14.5.2  If the respondent fails to submit a counter-notice in time or fails to provide sufficient evidence to support its counter-notice, ElmMac.Co.Za will determine the dispute based on the existing supporting evidence available.

14.6 Supporting Evidence

14.6.1  The data and information recorded in the systems of ElmMac.Co.Za, ElmMac.Co.Za and/or its affiliate and the ElmMac.Co.Za International Platform shall serve as the primary evidence and basis for determination of any dispute. Other information and record shall only serve as supplemental information for Dispute Determination.

14.6.2  If supporting evidence is required from the Buyer and/or the Seller, each Party shall be given a 3-day period to submit their supporting evidence to the system. If the Buyer fails to submit any supporting evidence within 3 days from being prompted, the system will close the complaint case; and if the Seller fails to submit any supporting evidence within 3 days from being prompted, the system will escalate the complaint to a customer service representative of ElmMac.Co.Za automatically for Dispute Determination.

14.6.3  Upon submission of evidence by the Buyer and/or the Seller, the case system will escalate the complaint to a customer service representative of ElmMac.Co.Za automatically for Dispute Determination. For the avoidance of doubt, the time period for submission of supporting evidence may be extended or shortened based on each complaint case as ElmMac.Co.Za sees fit.

14.6.4  Both the Buyer and the Seller shall ensure that the supporting evidence provided is true, complete, valid and lawful. ElmMac.Co.Za does not guarantee that the supporting evidence submitted by either Party is true, complete and accurate and shall not be responsible if such information is untrue or misleading. 

Article 15   Dispute Determination

15.1     The Buyer or the Seller’s use of ElmMac.Co.Za’s Dispute Determination service shall be taken as indication from the relevant Party that ElmMac.Co.Za has the right to make an independent decision (often referred to as “adjudication”, “dispute settlement decisions” or “mediation decision”) on any disputes related to the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) in the capacity of an ordinary and non-professional person. Both the Buyer and the Seller understand and agree that ElmMac.Co.Za will not be liable for any imperfect, defective, improper or faulty decisions regarding compensation, settlement of claims, payment or disposal.

15.2     After the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) has taken effect, if the Seller commits any of the following breaches of the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable), ElmMac.Co.Za shall consider the Seller to have breached the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) and shall require the Seller to refund the amount of Contract Sum (as set out in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable)) already received or an amount mutually agreed upon by the Buyer and Seller (in accordance with the system records of the Complaints Platform), or any other amount as determined by ElmMac.Co.Za. Any partial refund (if applicable) shall be conditional upon the Buyer’s acceptance of the Seller’s act of breach of contract. The Seller may be subject to penalty terms imposed by ElmMac.Co.Za in the event of the following:

15.2.1  Seller refuses to deliver products in bad faith, including but not limited to situations where the Seller expressly stated that it is not going to ship the products pursuant to a Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) without any valid reason;

15.2.2  Seller fails to deliver the products within the period of time as specified in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) and the Buyer does not agree to a new Shipment Date (unless due to reasons attributable to Buyer);

15.2.3  False delivery where the Seller claims to have delivered the products but fails to provide a valid evidence of shipment or has provided false evidence of shipment;

15.2.4  Inconformity of delivered products with the Trade Assurance Purchase Contract, including where the products delivered by the Seller do not conform to quality provisions stipulated in the Trade Assurance Purchase Contract, or contain damaged packages or shortages in quantity in breach of the Trade Assurance Purchase Contract, thereby resulting in a material damage to the value of delivered products, or the commercial objective known or should be known to both the Buyer and the Seller becoming unachievable. In the event where both the Buyer and the Seller failed to reach any agreement regarding the inconformity of delivered products pursuant to the Trade Assurance Purchase Contract, the Party trying to establish a claim shall provide effective, complete and accurate evidence, including photos and videos, to support its claim. If any of such evidence is determined by ElmMac.Co.Za to be insufficient, the Parties shall submit an inspection report issued by a designated Product Inspection Company; or

15.2.5  Defective Shipping documents and other material breaches, where the Seller fails to deliver documents of title to the products as agreed, fails to provide shipping documents (including delivery documents or proof) or other documents as agreed, or has committed other serious breaches, thereby resulting in severe loss to the products’ value, or failure to achieve the major business objectives known or should have been known by both the Buyer and the Seller.

15.3     The Buyer shall provide sufficient evidence to prove that the Seller has committed the any of the breaches set out in Articles 15.2.1 to 15.2.5. Such evidence includes evidence provided by the Buyer itself or any evidence provided by any third party. Both the Buyer and the Seller agree that ElmMac.Co.Za shall have the right to unilaterally determine the reasonableness, completeness, effectiveness or sufficiency of the evidence. If any Party disagrees with the evidence provided, such Party shall provide evidence to the contrary to ElmMac.Co.Za for use in its determination.

15.4     After the Buyer submits a request for ElmMac.Co.Za to resolve a dispute over product quality, the Buyer shall provide effective, complete and accurate evidence, including photos and videos if a product’s problem can be proven through photos and videos. If ElmMac.Co.Za determines that the Buyer shall provide more evidence to supplement its claim, the Buyer shall at the request of ElmMac.Co.Za instruct one of the designated Product Inspection Companies to inspect the products and pay the relevant inspection fees. ElmMac.Co.Za shall make a decision on the dispute based on the product inspection report issued by the Product Inspection Company. Any inspection fees shall be borne by the Party in breach according to Dispute Determination outcome. If the Buyer and the Seller did not expressly agree on the quality of the products, the Product Inspection Company shall have the right to issue the quality inspection report based on the relevant industry standards. ElmMac.Co.Za may reject any product inspection reports issued by other product inspection companies. If the products cannot be inspected due to reasons or faults attributable to a particular Party, such Party shall be liable for any damages, costs or liability arising therefrom.

15.5     If ElmMac.Co.Za decides to refund the any amount already paid by the Buyer (including but not limited to Contract Sum, shipping fee and inspection fee) on behalf of the Seller, ElmMac.Co.Za shall, under normal conditions, remit the funds to be refunded to Buyer’s original payment bank account within 15 days after Buyer provides the correct bank account information. ElmMac.Co.Za shall notify the Buyer if due to any reasons, the refund cannot be made to the Buyer within such 15-day period. All relevant bank fees associated with any refund shall be borne by the Party/ies as agreed between the Buyer and the Seller or as determined by ElmMac.Co.Za upon Dispute Determination.

15.6     The Buyer and the Seller shall agree in writing on all terms not explicitly set out in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable), including but not limited to any arrangements relating to return of products under the Trade Assurance Purchase Contract.

15.7     In the absence of an agreed product return arrangement in writing, and (a) if the Buyer has already received the products at the time of dispute, and (b) provided that Dispute Determination has decided that the Seller shall refund the amount of Contract Sum (as set out in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable)) received by the Seller to the Buyer, the Buyer shall coordinate with the Seller timely on the product return. The Seller shall bear all fees incurred for the product return, and make adequate arrangement for the return. The Seller shall be responsible for any risk in connection with transiting the returned products. If the Buyer does not comply with the requirements above, no refund will be allowed. The Trade Assurance Purchase Contract will be terminated upon Buyer’s receipt of the refunded amount.

Article 16   Disclaimer

The Buyer acknowledges and agrees that it will not be entitled to receive any refund from the Seller in the event of any of the followings:

16.1     the products underlying the transaction of the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) do not comply with the relevant laws, regulations, policies, rules and the ElmMac.Co.Za International Platform Rules;

16.2     the contractual terms agreed between the Buyer and the Seller (including without limitations, terms related to Shipment Date, product quality and payment amount) are unclear, ambiguous or unenforceable contractual terms with reference to the terms in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable);

16.3     the Buyer did not pay the full amount of the Contract Sum (as set out in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable)) in accordance with the timing, currency and payment methods approved by ElmMac.Co.Za and as agreed in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) to the designated ElmMac Account;

16.4     the Buyer’s payment account is fake or untraceable or cannot be authenticated;

16.5     the Buyer provided false information or the information provided cannot be verified;

16.6     after a request for Dispute Determination is submitted and before ElmMac.Co.Za lays down a decision, the Seller had delivered the products pursuant to the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) or had made the refund to the Buyer;

16.7     ElmMac.Co.Za has reason to believe that the Buyer and the Seller had conspired in bad faith;

16.8     the Buyer can no longer operate its account on the ElmMac.Co.Za International Platform for whatever reason;

16.9     the Buyer fails to provide, in accordance with ElmMac.Co.Za’s request, effective, complete and accurate supporting evidence for its claim;

16.10   the Buyer has expressly confirmed acceptance of Seller’s late shipment before or during a complaint for products overdue;

16.11   the Buyer and Seller have reached a settlement plan during the complaint, and no complaint has since then been re-submitted during the applicable Claim Period;

16.12   the Buyer did not retain the necessary evidence as required to prove its case causing ElmMac.Co.Za unable to carry out Dispute Determination;

16.13   the Buyer failed to timely coordinate with the Seller on the return of product; or

16.14   any other faults attributable to the Buyer in the sole opinion of ElmMac.Co.Za.

Article 17 Termination of Trade Assurance Purchase Contract

ElmMac.Co.Za has the right to immediately terminate the Trade Assurance Purchase Contract and take any relevant enforcement actions against the Party in breach in the event of any of the followings:

17.1     ElmMac.Co.Za has accepted and made a Dispute Determination decision and decided to terminate the Trade Assurance Purchase Contract;

17.2     ElmMac.Co.Za has reason to believe that the Buyer and Seller had conspired in bad faith;

17.3     the Buyer, Seller or the performance of the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) is or is alleged to be in breach of any applicable laws, regulations, policies, rules or orders of any competent authority/ies;

17.4     either Party’s account on the ElmMac.Co.Za International Platform is terminated for any reason, or the Trade Assurance Purchase Contract cannot be performed due to any penalties imposed;

17.5     ether Party or the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) itself is in breach of any service rules or website policies of the ElmMac.Co.Za International Platform or the ElmMac.Co.Za International Platform Rules;

17.6     the Seller failed to ship the products within a reasonable time period but no complaint has been submitted by Buyer;

17.7     the Seller failed to repay ElmMac.Co.Za and/or its affiliates of any Advance Payment made to the Buyer for and on behalf of the Seller and there is insufficient amount in the Seller’s ElmMac Account to cover any payment obligation; or

17.8     any other breaches by either Party pursuant to these Rules as determined by ElmMac.Co.Za.

Article 18   Credit Card Chargeback, Payment Advance and Collection

18.1     After the Buyer submits to the bank an application for Credit Card Chargeback, and ElmMac.Co.Za notifies the Seller of such Credit Card Chargeback, the Seller shall prepare for the submission of evidence to defend itself against such Credit Card Chargeback according to the time limit as notified.

18.2     The Seller shall undertake the obligation of defense and burden of proof in respect of such Credit Card Chargeback and all the consequences arising therefrom. If such defense fails due to reasons attributable to the Seller, including but not limited to failure to provide evidence or waiver of provision of evidence, the Seller shall compensate ElmMac.Co.Za or its affiliate(s) for the amount charged back. ElmMac.Co.Za will notify the Seller of the result of the defense and the amount charged back (in the event of a failed defense), and the Seller shall pay such amount to the designated account as notified by ElmMac.Co.Za.

18.3     The Seller agrees that ElmMac.Co.Za may solely determine on whether to process a refund directly or on how to handle the amount pursuant to a Credit Card Chargeback based on the requirements of any payment gateway or any defence materials or counter evidence provided by the Seller. ElmMac.Co.Za has made any Advance Payment pursuant to its decision, ElmMac.Co.Za or its affiliate(s) shall be entitled to claim against the Seller for the sum of any Advance Payment.

18.4     Upon any Advance Payment made by ElmMac.Co.Za or its affiliates, ElmMac.Co.Za shall inform the Seller in writing or any other means, including but not limited to email, fax or telephone, with regards to the reason of refund, amount of Advance Payment and repayment date.

18.5     If the Seller loses in the investigation of the Credit Card Chargeback or waives defense and subsequently fails to perform its repayment obligations within the specified time, ElmMac.Co.Za or its affiliate(s) shall be entitled to claim against the Seller for the sum of any Advance Payment. 

18.6     If, when the credit card holder submits the application for Credit Card Chargeback, the relevant Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) submitted to ElmMac.Co.Za for Dispute Determination has not been completed, ElmMac.Co.Za will suspend the Dispute Determination process. If the application for Credit Card Chargeback is established, ElmMac.Co.Za shall have the right to terminate the Dispute Determination process and/or cease the relevant transaction.

18.7     If the Seller wins in the defense, ElmMac.Co.Za shall have the right to resume the Dispute Determination process based on the determination result. If, when the credit card holder submits the application for Credit Card Chargeback, the relevant dispute has already been resolved through the Dispute Determination process by ElmMac.Co.Za or that negotiations between the Seller and the Buyer have already been completed, but ElmMac.Co.Za or its affiliate(s) has not yet processed any Advance Payment, then ElmMac.Co.Za or its affiliate(s) may choose to suspend the processing of any Advance Payment until the determination of the Credit Card Chargeback process, and follow the result as determined by the bank or other third party.

18.8     The Seller shall proactively defend itself against any application for Credit Card Chargeback and provide relevant evidence in accordance with the requirements and time limit as determined by ElmMac.Co.Za, regardless of whether any decision has been made by ElmMac.Co.Za under the Dispute Determination process.

18.9     In the event where the Seller loses in the investigation of the Credit Card Chargeback, ElmMac.Co.Za or its affiliate(s) may, under the following circumstances, waive any claim against the Seller, in part or in whole:

18.9.1  the credit card holder applies for Credit Card Chargeback on the ground that the use of such credit card is not authorized by the credit card holder (including but not limited to stolen card or fraud situations), in which case the disclaimer clauses in the Fraud Chargeback Protection policy shall apply;

18.9.2  prior to the credit card holder’s application for Credit Card Chargeback (save for the circumstances as described in Article 18.9.1), ElmMac.Co.Za has already accepted the credit card holder’s application for Dispute Determination and determined that the Seller shall have no liability; and the credit card holder subsequently applies for Credit Card Chargeback with the same or similar reason and there is no circumstance arisen under which ElmMac.Co.Za has the right to reevaluate the Dispute Determination decision (including but not limited to submission of new evidence by the credit card holder or the Seller is found to have provided false evidence);

18.9.3  the Buyer and the Seller have reached a settlement agreement in respect of a dispute relating to the Credit Card Chargeback and the Seller has performed its obligations under such agreement, and that the transaction between the Buyer and the Seller is true and the Seller commits no default or other fault; then the Buyer subsequently applies to the bank for Credit Card Chargeback with the same or similar reason; or

18.9.4  any other circumstances under which ElmMac.Co.Za or its affiliate(s) has waived any claim, including but not limited to system failure.

18.10   In the event where ElmMac.Co.Za or its affiliate(s) may have the right to waive any claim against the Seller in part or in whole, the Seller is still obliged to provide the evidence for defense against Credit Card Chargeback as required by ElmMac.Co.Za. If the Seller fails to cooperate, or delays in the provision of evidence, or cannot provide valid evidence within a specified time, thereby causing the success of a Credit Card Chargeback application, then ElmMac.Co.Za or its affiliate(s) shall still have the right to claim the sum of the Advance Payment from the Seller.

Chapter 7 – Trade Assurance Services Penalty Rules

Article 19   Prohibited Acts

Upon the occurrence of any of the following, the Party in breach shall be subject to penalties in accordance with these Rules:

19.1     after receiving Buyer’s intention to enter into a Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable), the Seller refuses to draft or confirm (as applicable) the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable) without any valid reason;

19.2     after ElmMac.Co.Za or its affiliate(s) pays the refunded payment to Buyer for and on behalf of the Seller, the Seller fails to reimburse the sum to ElmMac.Co.Za or its affiliate(s) in full within 15 days;

19.3     giving negative comments or raising complaints against the other Party in bad faith, or using such means to blackmail the other Party;

19.4     the Buyer did not pay the remaining balance of the amount of the Contract Sum (as set out in the Trade Assurance Purchase Contract or the Sample Order Purchase Contract (as applicable)) to the Seller in accordance with the terms of the Trade Assurance Purchase Contract without any valid reason;

19.5     providing false documents, information or supporting documents;

19.6     the Buyer and Seller maliciously conspire, or engage in other material dishonest conduct;

19.7     the amount of the Contract Sum (as set out in the Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable)) has not been paid to the designated bank account because of reasons attributable to the Seller, including but not limited to false or wrongful instructions given by the Seller to the Buyer; or

19.8     the Buyer and the Seller committed other breaches under the Trade Assurance Purchase Contract or the Sample Order Purchase Contract (as applicable) or pursuant to these Rules at the sole opinion of ElmMac.Co.Za.

Article 20   Penalties for Breach

20.1     ElmMac.Co.Za will take the relevant enforcement action against the Party in breach of the Rules based on the extent of breach. If the Party in breach has more than one membership accounts on the ElmMac.Co.Za International Platform, ElmMac.Co.Za shall have the right to take the same enforcement action against all such membership accounts.

20.2     If the Seller breaches any provision in Article 19.1 of these Rules, ElmMac.Co.Za shall have the right to take the following enforcement actions against the Seller:

Number of Breaches (within a year)

Enforcement Actions

Once

Warning

Twice or less

Terminate the Seller’s Trade Assurance Services and prohibit the Seller from reapplying for such services for ninety (90) days from the date of such termination

20.2.1  Every act of breach will remain on record for three hundred and sixty-five days (365) days.  

20.2.2  Seller will not be able to reapply for Trade Assurance Services within ninety (90) days after withdrawal from such services on a voluntary basis.

20.2.3  Every act of breach will be recorded as at the time when ElmMac.Co.Za makes a determination on the dispute.

20.2.4  For the avoidance of doubt, if the same Buyer repeatedly raises multiple complaints against the same Seller for the same breach relating to a Trade Assurance Purchase Contract or Sample Order Purchase Contract (as applicable), all such complaints will be counted as one complaint.

20.3     If the Seller breaches Section 19.2 of these Rules, the Seller will be subject to:

20.3.1  penalty imposed by these Rules and the Rules for Enforcement Action against Non-Compliance of Transactions on ElmMac.Co.Za

20.3.2  three (3) points will be deducted from the Seller’s account on ElmMac.Co.Za International Platform;

20.3.3  disqualification from Trade Assurance Services if the Seller fails to reimburse the refunded amount to ElmMac.Co.Za or its affiliate(s) in full within 30 days; and

20.3.4  any other penalties subject to the sole and final determination by ElmMac.Co.Za.

20.4     If the Seller breaches Sections 19.5, 19.6, 19.7 or 19.8 of these Rules, the Seller will be disqualified from Trade Assurance Services, subject to the sole and final determination by ElmMac.Co.Za.

20.5     If the Seller’s qualification of Trade Assurance Services was terminated due to any penalty, then the Seller will not be able to reapply for such services for ninety (90) days from the date of such termination.

20.6     If the Buyer breaches any of Articles 19.3, 19.4, 19.5 19.6 or 19.8, the Buyer’s account at the ElmMac.Co.Za International Platform will be terminated, subject to the sole and final determination by ElmMac.Co.Za.

20.7     If the Trade Assurance Amount is cancelled and there are other Trade Assurance Purchase Contracts or Sample Order Purchase Contracts (as applicable) which are in operation, then:

20.7.1  If the Buyer has already paid the deposit and ElmMac.Co.Za has determined that such payment cannot be refunded directly, then both the Buyer and the Seller should continue to carry out the obligations under the Trade Assurance Purchase Contract; or

20.7.2  If the Seller has already delivered the products, then both the Buyer and the Seller shall continue to carry out the obligations under Trade Assurance Purchase Contract.

Article 21 Term and termination

21.1     These Rules take effect from the date when the Seller accessed the ElmMac.Co.Za International Platform, clicked “agree” to these Rules and has its admission approved by ElmMac.Co.Za pursuant to Article 6.

21.2     ElmMac.Co.Za may terminate these Rules upon the Seller’s breach of these Rules or any other relevant agreements entered into with ElmMac.Co.Za.

21.3     Termination or expiration of these Rules for any reason shall be without prejudice to any rights that shall have accrued to the benefit of ElmMac.Co.Za, the Buyer or the Seller prior to such termination or expiration.

Chapter 8 – Miscellaneous

Article 22   Miscellaneous

22.1     ElmMac.Co.Za shall have the right to amend, revise and publish on the ElmMac.Co.Za International Platform these Rules from time to time based on the actual performance of the Trade Assurance Services and the amended and revised Rules will take effect on the designated date or, if there is no such designated date, the date it is published on the ElmMac.Co.Za International Platform. 

22.2     ElmMac.Co.Za and/or its affiliates may improve or upgrade its functions and services from time to time, but ElmMac.Co.Za and/or its affiliates makes no guarantee or undertaking of any commercial or sales effect of such improvement or upgrade under any circumstances, including but not limited to unique visitor rate, sales performance of products, operational performance or investment gains.

22.3     The functions of app or mobile optimized website of the ElmMac.Co.Za International Platform may be different from accessing from normal world wide web on computer, ElmMac.Co.Za and/or its affiliates may improve or upgrade the functions and services of its app or mobile optimized website from time to time and may improve, adjust, suspend or cancel any or all of the functions thereof.

22.4     ElmMac.Co.Za shall not be liable for or required to pay compensation of any nature whatsoever for any loss arising from the unavailability, inconvenience or failures of the services or systems due to the following reasons: (i) system shut-down for maintenance; (ii) inability to transmit data due to failures in communications terminals or telecommunications equipment; (iii) systems failure and inability to perform its functions) due to force majeure events including but not limited to typhoons, earthquakes, tsunamis, floods, power failure, war, political unrest, labour strikes or terrorist attack; or (iv) suspension or delay of services or systems failure due to reasons beyond the reasonable control of ElmMac.Co.Za such as hacker or cyber attacks, technical adjustments or failure of the telecommunications department, website upgrades or third party problems.

22.5     If any Party has any disagreement to these Rules, such Party should stop using the Trade Assurance Services and immediately notify the other Party, ElmMac.Co.Za, and ElmMac.Co.Za. By executing and performing the Trade Assurance Purchase Contract, the Sample Order Purchase Contract and/or using any Trade Assurance Services (as applicable), such Party will be deemed to have accepted and agreed to be bound by these Rules.

22.6     If for any reason a court of competent jurisdiction finds any provision of these Rules to be unenforceable, that provision of these Rules will be enforced to the maximum extent permissible, and the remainder of these Rules will continue in full force and effect.

22.7     These Rules are governed and construed in accordance with the laws of South African. Any dispute, controversy or claim arising out of or in connection with these Rules, including any question regarding its existence, validity or termination, shall be first settled through friendly consultations. In the event that no settlement is reached within thirty (30) days from the date of notification by either party to the other that it intends to submit a dispute, controversy or claim to arbitration, then such dispute, controversy or claim shall be settled by arbitration in accordance with the SAIAC Administered Arbitration Rules in effect at the time of applying for arbitration and as may be amended by the rest of this Article. The arbitration institute shall be the South African International Arbitration Centre (“SAIAC”) and the place of arbitration shall be in South African at SAIAC. The language of the arbitration shall be English.  The tribunal shall consist of three arbitrators. Each of the Parties shall select an arbitrator. The third and presiding arbitrator shall be selected by SAIAC. The arbitral award shall be final and binding upon the Parties.

22.8     In the event of any discrepancy of these Rules between its English version and versions of any other language(s), the English version shall prevail.