Terms and Conditions of Use of Service
General terms relating to the use of the Platform and the provision of Services)
Version No. 2.2
To download a copy of the Terms and Conditions of Use in PDF, please click here.
TABLE OF CONTENTS
TradeSafe is an online platform that provides secure online escrow and paymaster services. These Terms are the general terms which governs the relationship between TradeSafe and the Parties. These Terms cover the use of the Platform.
By visiting, signing up on or logging in to the TradeSafe Platform, each Party accepts and agrees to these Terms which will become binding and enforceable against all persons that access the www.tradesafe.co.za website or any part thereof in accordance with the electronic communications and transactions (ECT) act 25 of 2002.
The parties to the Transaction hereby agree to conduct the transaction electronically.
These Terms apply to any transaction that was created on the TradeSafe platform. The commercial terms of any Trade between TradeSafe and the Parties will be contained in the Trade and will incorporate these Terms.
For purposes of the Agreement:
2.4. "Agreement" means the agreement between TradeSafe and the Party, comprising these Terms and any Trades the parties enter into;
2.5. "Amended Escrow Instruction(s)": any addition to, deletion from, or alteration to the terms of the Trade as applied by TradeSafe on the combined instruction of all Parties;
2.6. “Arbitration” refers to the process whereby an independent arbitrator is assigned to the transaction to adjudicate the merits of the disputing parties in accordance with AFSA’s rules for expedited arbitrations;
2.7. “API” or Application Programming Interface means a set of functions and procedures that allow other systems or websites creation of applications which access the features or data of an operating system, application, or other service;
2.8. "Business Day" shall refer to the working days Monday through Friday between the hours of 8:00 a.m. and 4:00 p.m. local time;
2.9. “Dispute Date” means the date the Buyer indicated on the Platform that he/she does not accept the goods or services as delivered by the Selling party;
2.10. “ECT Act” means the Electronic Communications and Transactions Act 25 of 2002;
2.13. “Escrow Account” means the audited and secure account where all money from Trades are held. The account is held by TS Escrow (Pty) Ltd t/a TradeSafe with registration no. 2015/129311/07;
2.14. “Fees” means the transaction fees, charges, or purchase consideration that the User will pay to TradeSafe in respect of escrow Services provided by the Platform;
2.15. “Inspection Period” means the number of full calendar days established in a Trade to allow a buyer to inspect the goods delivered or services received;
2.16. “Negotiation Period” means 21 (twenty-one) business days commencing from Dispute Date;
- the Buying Party;
- the Selling Party;
- the Agent or Broker; and
- other beneficiaries that are Party to the transaction and require payment i.e. sub-agents, advisors or consultants, lawyers, delivery companies etc
- all content, goods or services, applications, APIs or apps available through the Platform; and
- any other marketing material of TradeSafe
2.22. “Signature Date” means the date of signature by the party signing last;
- any other relevant specific terms, disclaimers, rules and notices agreed between the Parties, (including any that may be applicable to a specific section or module of the Platform or any specific Services);
2.26. “Trigger Event” means an event defined by a Party in a Trade which will act as a signal for TradeSafe to perform its duties under a Trade. Trigger Events will typically include as a minimum:
- When TradeSafe has received the funds from the Buying Party;
- The Party accepts the goods or services. TradeSafe will then release funds to the Selling Party, Agent or Broker, and/or other approved beneficiaries that require payment;
- When the ‘ECD’ has been reached and there has been no action by the Buyer, despite numerous attempts by TradeSafe to telephonically or physically reach the Buying Party;
- The Buying Party has initiated a dispute; or
- The Parties could not resolve the dispute within the ascribed 21 business days resulting in TradeSafe initiating the Arbitration process.
2.27. "Writing” means any mode of reproducing information or data in physical form and includes hard copy printouts, handwritten documents, fax transmissions, but excludes information or data in electronic form; and
2.28. “User” or “you” means any person who visits, signs up to, or logs into the Platform.
A word defined or assigned a meaning in the Agreement will start with a capital letter. All headings are inserted for reference purposes only and must not affect the interpretation of the Agreement. Whenever “including” or “include”, or “excluding” or “exclude”, together with specific examples or items follow a term, they will not limit its ambit. Terms other than those defined within the Agreement will be given their plain English meaning. References to any enactment will be deemed to include references to the enactment as re-enacted, amended, or extended from time to time. A reference to a person includes a natural and juristic person and a reference to either party includes the party’s successors or permitted assigns. Unless otherwise stated in the Agreement, when any number of days is prescribed in the Agreement the first day will be excluded and the last day included. The rule of construction that an agreement must be interpreted against the party responsible for its drafting or preparation does not apply. GMT +2 will be used to calculate any times.
These Terms commence on acceptance and continue until terminated.
4.1. License to Use the Platform
TradeSafe grants each User a limited, revocable license to use the Platform subject to the Agreement. Any person wishing to use the Platform contrary to the Agreement must obtain TradeSafe’s prior written consent.
TradeSafe may establish general polices and limits concerning the use of the Platform. TradeSafe reserves the right to log off, deactivate, or delete any User account.
5.1. Passwords and Security
Only a registered User can use the Platform. Each User is responsible for keeping their login credentials (username and password) secure and confidential. Each User is solely responsible and liable for activities that occur under their account. The User authorises TradeSafe to act on any instruction given under User’s account, irrespective if it transpires that someone had maliciously taken control of the User’s account, unless the User has notified TradeSafe prior to TradeSafe acting on a fraudulent instruction.
If a User suspects that their login credentials may have been compromised, the User must:
- Contact TradeSafe immediately on 010 020 3101 or email@example.com; and
- Change their password immediately.
Sharing of credentials with any other person may jeopardise the integrity of the TradeSafe account. TradeSafe cannot be held accountable or liable for loss that incurs from shared authorised access.
5.2. Right of Reserve
TradeSafe reserves the right to reject any User or deny the ability of a User to create an account should it feel that the User is perusing the TradeSafe account for illegitimate or unscrupulous purposes.
User accounts registered by bots or other automated methods are not permitted. Each User must provide their full legal name, a valid email address, a valid cell phone number, their Identity number, company registration documents, proof of banking accounts and any other information requested by TradeSafe to complete the registration process.
One person may only use each User’s login - TradeSafe does not permit multiple people to share a login.
5.3. Verification of Banking Account Details
TradeSafe peruses third party verification services provider ThisIsMe.com to verify the bank account details of the Parties. To receive payment from TradeSafe, the seller must have a valid South African bank account and the details of the bank account holder must correspond directly with the details that were entered on the TradeSafe platform. For a business account, the company registration number as entered on the TradeSafe Platform must agree to the company registration number associated with the applicable bank account.
TradeSafe reserves the right to withhold payment until such time it ascertains that the User’s bank account details have been verified.
5.4. Other Information That May Be Requested
Dependent on the nature of the User’s business, TradeSafe may be compelled to request further information or perform additional procedures which may include performing physical verification of the Seller’s/Supplier’s site or premises. This is purely to negate the risk of money laundering and to ensure the TradeSafe Platform is used for legitimate purposes.
6.1. Obligations of User
The terms of the transaction for the provision of goods or services will be provided by the Users, and will be submitted with any Trade. TradeSafe shall remian independent at all times. The company shall not be a party to any transaction. Other than its duties as stipulated under this Agreement, TradeSafe is neither responsible for nor has any obligations or duties to any User under a transaction.
When creating a transaction, Users are required to enter or upload the following information inter alia:
- Comprehensive details of the transaction;
- A description of the requested goods or service;
- All terms and conditions including the agreed inspection period and delivery arrangements;
- Upload any contracts, files, photos or documents (if applicable) that pertain to the transaction between the Users; and
- Payment Trigger Events that pertain to the Trade.
6.2. Contract Acceptance
Parties indicate whether they agree to the transaction and accept the Trade’s terms and conditions by clicking on the “Accept Trade” button on the Platform.
All Parties are required to accept the Trade for the transaction to be a binding agreement between the Parties. The status of the transaction as displayed on the Platform will be highlighted as “Trade Accepted”.
The parties will be notified by Email that the Trade has been accepted and that the Buyer is required to deposit the funds into the Escrow Account.
The Buying party deposits the transaction value into the Escrow Account via EFT payment.
TradeSafe will not be held liable or responsible if the funds are deposited into the incorrect bank account should the Buyer use incorrect bank account details.
TradeSafe has bank accounts with:
- Nedbank; and
- Standard Bank
All payments emanating from the aforesaid banks should result in an instantaneous clearance. TradeSafe endeavours to clear the funds within a maximum of 30 (thirty) minutes from the time it learns that the funds have physically arrived in the Escrow Account. Parties must be aware that any delay in verification may be attributed to a problem experienced at one of the aforesaid banks.
All amounts greater than R5,000,000 (million) are to be deposited with TradeSafe’s bank account at Standard Bank to satisfy South Africa’s payment system Real Time Gross Settlement provisions.
TradeSafe will not rely on any proof of payments as submitted by the Buyer.
All Parties will be notified once TradeSafe has verified the receipt of the funds into the Escrow Account. In addition, TradeSafe will furnish all Parties with a signed company letter stating that the funds in the Escrow Account are earmarked for the Seller upon the satisfaction of the Trade’s contract condition precedents.
8.1. Buyer’s Involvement
During the Buyer Inspection Period, the Buyer shall either:
- Select the “Accept” button on the Platform. This will notify the Parties that the Buyer has accepted the Goods/Services and that TradeSafe has initiated the payment process out of the Escrow Account;
- Select the “Negotiate” button on the Platform. This will allow Parties to renegotiate certain terms should there be an understandable change in contract performance. Should the other Party not agree to the renegotiated terms, then the Trade will revert to a state as if the “Negotiate” button was never pressed;
- Select the “Dispute” button on the Platform. This will notify TradeSafe and the Parties that the Buyer has not accepted the Goods/Services and has initiated a dispute; or
- Select the “Request Extension” button on the Platform. This will allow the Parties to extend the delivery or inspection period.
8.2. Deemed Acceptance
The buyer will be deemed to have accepted the goods or services detailed under a Trade if after the Inspection Period or the ECD the buyer has failed to inform TradeSafe that they have either accepted, negotiated or disputed the goods or services, or requested an extension to the delivery or inspection period. TradeSafe will endeavour to contact the Buyer for an explanation to the inaction. Should TradeSafe fail to contact the Buyer or obtain a reasonable explanation to the inaction, TradeSafe shall deem the Buyer to have accepted the goods or services. This deemed acceptance authorises TradeSafe to release money to the seller.
For brevity, the ECD is calculated as follows:
- The date the Seller indicated that he/she had started delivering the goods or services; plus
- The number of days agreed for delivery; plus
- The number of days agreed for inspection.
For example, if it was agreed that delivery would take 3 (three days) and inspection would take 2 (two) days and the Seller started delivering the product or service on, say, the 1 January 2017. Then the ECD (transaction deadline) would be calculated as the 6 January 2017 at 11:59PM.
The date the Seller started delivering the product or service can be determined by either:
- The Seller indicating on the TradeSafe Platform that he/she has started delivering the product or service; or
- Confirmation from a courier company that the goods have been collected from the Seller; whichever comes earlier.
9.1. Payment to Seller
Once the Trigger Event for the acceptance of the goods or services has occurred, TradeSafe will proceed to release funds to the seller after deducting the appropriate Fees (if any) as established in the Trade.
TradeSafe shall use the Seller’s bank account details that were entered on the Seller’s account profile. TradeSafe shall not be liable or be held responsible should it pay the funds into an incorrect bank account should the Seller provided incorrect banking account details.
9.2. Payment to Agent or other Beneficiaries Who Require Payment
Once the Trigger Event for the acceptance of the goods or services has occurred, TradeSafe will proceed to release funds to the Agent, then other payment beneficiaries after deducting the appropriate Fees (if any) as established in the Trade.
9.3. Summary of Instances Where Parties Will Be Disbursed
TradeSafe will release the funds to the Seller, Agent or other beneficiaries requiring payment once the following criteria has been satisfied:
- The Buyer accepted the goods or services;
- The Buyer renegotiated certain Trade terms pertaining to the goods or services, of which the Seller agreed to the renegotiated Trade terms;
- The Buyer initiated a dispute which was subsequently resolved by all Parties within 21 business days;
- The Buyer initiated a dispute which could NOT be subsequently resolved and the matter was referred to Arbitration or a South African court of law. TradeSafe will only act on the written instruction of the Arbitrator or a South African Court of Law; or
- The Buyer is deemed to have accepted the goods or services after the transaction deadline (“ECD”) and the buyer has failed to inform TradeSafe that they have either accepted, negotiated or disputed the goods or services, or requested an extension to the delivery or inspection period, despite numerous attempts to contact the Buyer.
9.4. Payment Run
TradeSafe performs its daily payment run at 15h30 on every week day. Depending on who the Seller and other beneficiaries bank with, the funds should arrive in their account within 24 hours.
Upon request by either Party, TradeSafe can enable Real Time Clearance (“RTC”) so that the funds reflect immediately in the Selling Parties’ bank accounts.
9.5. Priority of Parties in Respect of Payment
Payment to Parties will be done in the following order:
- The Seller or Supplier;
- The Agent; and then
- Other beneficiaries that require payment i.e. sub-agents, lawyers etc.
10.1. Failure of Seller to Initiate Delivery of Product or Service
If the Seller does not begin delivery of the goods or services within, either 10 Business Days OR any other number of days as agreed by the Parties, from the time the Parties being notified that TradeSafe has received the funds from the Buyer, then the Buyer is entitled to request a refund of the funds.
TradeSafe will refund the Buyer after notifying all parties and deducting the Fees.
Should the Buyer request a renegotiation to the Trade terms of the Trade which is subsequently accepted by the Parties, settlement price may be impacted. This may result in either a part or a full refund to the Buyer, net of Fees.
Should the Buyer reject the goods or services and initiate a dispute, the Parties can agree to revised Trade terms which may impact the settlement price. This may result in either a part or a full refund to the Buyer, net of Fees.
Upon written instruction by either a registered arbitrator or a South African court of law, the Buyer may be entitled to either a part or a full refund, net of Fees.
11.1. Allocation of TradeSafe’s Fees
The Parties indicated in the Trade who will pay TradeSafe’s Fees. TradeSafe’s Fees can be paid by either the Buyer, the Seller, the Agent or split equally between the Buyer and the Seller. If:
- The Buyer is selected to pay the Fees, the Fees will be added to the amount that the Buyer must deposit under the Trade;
- The Seller is selected to pay the Fees, the Fees will be deducted from the amount held in the Escrow Account before releasing it to the Seller;
- The Agent is selected to pay the Fees, the Fees will be deducted from the amount held in the Escrow Account before releasing it to the Agent; or
- The Users agree to share the cost of the Fees. Half of the fees will be added to the amount the buyer must deposit and the other half will be deducted from the money held in Escrow Account before releasing it to the Seller.
11.2. Allocation of Amount owing to Agent or Broker
If applicable, the Parties indicated in the Trade how payment to the Agent or Broker will be allocated. The amount owing to the Agent or Broker can be paid by either the Buyer, the Seller or split equally between the Buyer and the Seller. If:
- The Buyer is selected to pay the Agent’s amount, the amount will be added to the Trade amount that the Buyer must deposit under the Trade;
- The Seller is selected to pay the Agent’s amount, the amount will be deducted from the Trade amount held in the Escrow Account before releasing it to the Seller; or
- The Users agree to share the cost of the Agent’s amount, then half of the Agent’s amount will be added to the amount the Buyer must deposit and the other half will be deducted from the money held in Escrow Account before releasing it to the Seller.
11.3. Allocation of Amount Owing to Other Beneficiaries Requiring Payment
If applicable, the Parties indicated in the Trade how payment to other beneficiaries will be allocated. The amount owing to other beneficiaries can be paid by either the Buyer, the Seller, the Agent or split equally between the Buyer and the Seller. If:
- the Buyer is selected to pay the other beneficiaries’ amount, the amount will be added to the Trade amount that the Buyer must deposit under the Trade;
- the Seller is selected to pay the other beneficiaries’ amount, the amount will be deducted from the Trade amount held in the Escrow Account before releasing it to the Seller; or
- the Users agree to share the cost of the other beneficiaries’ amount, then half of the other beneficiaries’ amount will be added to the amount the Buyer must deposit and the other half will be deducted from the money held in Escrow Account before releasing it to the Seller.
Interest on any monies held in the Escrow Account will accrue to TradeSafe.
If the Buyer or the Seller experiences an unexpected extended period before the finalisation of a Trade, the Buyer or Seller may request in writing an instruction to have TradeSafe place the funds into an interest-bearing account for the benefit of the Buyer or the Seller. TradeSafe reserves the right to either approve or reject such a request.
All Fees exclude any tax (including value added tax and other taxes levied in any jurisdiction), duty (including stamp duty), tariffs, rates, levies and any other governmental charge or expense payable, which will be payable where applicable by User in addition to the Fees.
11.7. Costs to Implement
Unless otherwise stated, the parties will bear their own costs to implement (or perform their obligations under) the Agreement.
11.8. Customs and Other Fees
Unless the Users agree otherwise, the Buyer is responsible for any duties, customs fees or other charges resulting from an international Trade, which will be included in the purchase price. It is the responsibility of the Seller to properly declare the merchandise and its value for customs procedures.
The TradeSafe Platform incorporates an embedded dispute resolution mechanism.
Buyers may initiate a dispute on the TradeSafe platform should the goods or services they receive be materially different to what was set forth in the Trade and supporting paraphernalia.
Any dispute between the Users in relation to a transaction is between the Users. TradeSafe will not get involved beyond its obligations under the Trade. TradeSafe may offer assistance or facilitate the resolution of a dispute between Users if a dispute between Users arises.
The Parties hereby agree to use their best efforts to negotiate in good faith during the dispute to reach a resolution which is satisfactory for all parties.
If a User notifies TradeSafe of a dispute relating to a Trade, TradeSafe will immediately freeze the Trade. TradeSafe will only unfreeze the trade if:
- The Parties indicate on the Platform that the dispute has been settled;
- It receives an order from an arbitrator; or
- It receives an order from an appropriate court of law or similar legal body.
The Parties have 21 business days to resolve the dispute and indicate on the Platform that the dispute was resolved, failure of which TradeSafe will be forced to intervene. TradeSafe shall the provide the Parties the option of either referring the matter to Arbitration, or approaching an appropriate court of law or similar legal body. If all Parties cannot agree on which resolution mechanism to pursue, the Terms shall compel the Parties to elect Arbitration.
If the dispute resolution process fails and Parties refer the matter to Arbitration, TradeSafe will ascribe to the expedited rules of AFSA which provide for an Arbitrator to make a binding decision based on the documents, facts and merits of the dispute.
The decision of the adjudicator will be binding on the parties.
13.2. Arbitrator Selection
Parties may elect TradeSafe to nominate an adjudicator.
If the Parties do not wish to elect TradeSafe to nominate an adjudicator and are all unable to agree on an arbitrator, then the Secretariat of AFSA will itself select and appoint a suitable Arbitrator where appropriate.
13.3. Arbitration Fees
All fees due to the Arbitrator will be paid by the parties to the dispute and TradeSafe will not be liable in any way.
TradeSafe will inform all Parties the prescribed administration fees to be paid and, from time to time as the proceedings progress, such other fees and costs as may be payable.
The aforesaid administration fees must be deposited into the Escrow Account for the Arbitration process to commence.
Should any one party fail to pay its share of any administration fee or cost when requested by either TradeSafe or by the AFSA Secretariat, that party risks the right to participate in the arbitration process so long as that party in in default of payment. The defaulting party may, in the discretion of the arbitrator, be excluded from further proceedings depending upon the circumstances of the case.
13.4. Rules for Arbitration Proceedings
The proceedings shall be adjudicated in accordance with AFSA’s rules for expedited arbitrations.
13.5. Arbitration Award and Payment
The arbitrator shall provide his/her award within 30 (thirty) days after finalisation of the proceedings unless the parties otherwise agree or unless the AFSA Secretariat permits an extension of that time.
The arbitrator’s award will be published to all Parties.
Unless the Parties have in writing instructed the AFSA Secretariat otherwise at any time before the final award is given, there shall be no right of appeal from the award.
TradeSafe will act on the aforesaid award and abide by the instruction of the arbitrator.
TradeSafe shall have no liability in respect to the way the arbitration proceedings were conducted and the associated outcome.
14.1. Returned Goods
If the Trade has been disputed, and it is agreed that the goods are to be returned to the Seller, then the Buyer shall be responsible for returning the goods to the Seller to its original destination. The Buyer agrees to initiate delivery of the goods to the Seller within 10 (Ten) business days from when being informed that the goods are to be returned to the Seller.
The seller is entitled to an inspection period, for rejected goods, of five days or as mutually agreed. This period will start when:
- The Seller acknowledges receipt of merchandise, service or domains; or
- TradeSafe receives a verification of delivery via the shipper's or registrar's tracking services.
If the Seller rejects the goods, the Trade will remain in a dispute status and the funds will be held in escrow until such a time the dispute is resolved. Section 12 of the Agreement namely “Dispute Resolution” will apply and the Parties will have 21 business days to resolve the dispute and indicate on the Platform that the dispute was resolved.
The Seller may only reject the goods if the goods have not been received in the same condition as they were sent. If the Seller fails to reject the goods within 5 (five) business days, it will be deemed to have accepted the goods and the funds will be released to the Buyer.
14.2. Rejection of Domain Names
If the Trade involves a domain name and the buyer rejects a domain name (which is not being held by TradeSafe), then, in addition to the normal terms of rejection, the Seller agrees to cooperate in the return process of the domain. In the event the domain transfer to the Buyer has caused a ICANN imposed registrar lock, the Buyer and Seller agree that the Seller will open an account at the receiving registrar to take possession of the domain or that the funds will be held in escrow until this period expires and the domain can be returned to the Seller’s registrar.
15.1. Duty to Notify
Users agree to notify TradeSafe as soon as possible once any Trigger Event is met, or there is a dispute in respect of any Trade. TradeSafe is not liable for any damages suffered by any User due the failure of a User to notify TradeSafe or the Parties on the TradeSafe Platform.
15.2. Duty to Act
Users agree that they will act promptly and act as soon as possible according to the obligations imposed on them under any Trade.
15.3. Capacity of Users
Each User represents and warrants that the User (and any person who uses TradeSafe):
- is old enough under applicable law to enter into the Agreement;
- is legally capable of concluding any transaction;
- possesses the legal right, full power, and authority to enter into the Agreement;
- is authorised to access and use the account; and
- will submit true, accurate and correct information to TradeSafe and the Platform.
If User is younger than 18 years of age, User warrants that User has the consent of its legal guardian to enter into the Agreement or that User has obtained legal status in another manner.
The Parties may agree to cancel a Trade if all Parties agree in writing.
TradeSafe may cancel any Trade at any time in its absolute discretion. TradeSafe will refund any monies already paid by the Buyer less the Fees due.
A Buyer and Seller may participate in a Trade with or without the role of an agent or broker.
The Terms will apply to the agent once the User creates an account on the Platform.
To the extent that an agent or broker may be involved in a transaction, it is recommended that the agent or broker creates the Trade between Buyer. The User can do so by providing the Buyer’s and Seller’s email addresses on the TradeSafe Platform. If the agent manages or leads other sub-agent/s and the said sub-agent/s are expected to participate in the Trade, the agent will have the opportunity to add the sub-agent/s to the transaction as a payment beneficiary.
Neither agent, broker nor other payment beneficiaries will have the ability to accept or dispute a Trade on the Buyer’s or Seller’s behalf.
17.2. Third Party Terms
If a third party supplies or delivers any goods or services directly to you, third party terms or conditions may apply. Users are solely responsible to ensure they understand and agree to those terms.
Any User, company or their affiliates, who integrates their systems or technology with TradeSafe, be it either via its API or other partnership portals or gateways, be it in whole or in part, shall be deemed to agree to the Terms as set forth in this Agreement.
To the extent permitted by law, Users registered with TradeSafe with a South African address, that have escrow funds held on deposit for longer than 12 months will be charged an annual maintenance fee of R500 (the “Maintenance Fee”), beginning with the last day of the twelfth month. Thereafter, the Maintenance Fee shall be charged on the last day of every subsequent 12 months. TradeSafe will be able to claim ownership of the unclaimed funds given sufficient time as per the Prescription Act 68 of 1969.
TradeSafe will provide the Services to User at the Service Levels
Services include access to priority email support which can be reached at firstname.lastname@example.org. “Email support” means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by TradeSafe to respond within one business day) concerning the use of the Services.
Services include access to priority telephonic support which can be reached at +27 10 020 3101 (010 020 3101).
Use of the Platform is at the sole responsibility and risk of each User. The Platform is provided on an “as is” and “as available” basis. Except for the warranties given in the Agreement, TradeSafe expressly disclaims, to the extent allowed by law, all representations, warranties, or conditions of any kind, whether express or implied, including:
- any implied warranties or conditions of satisfactory quality, no latent defects, merchantability, fitness for a particular purpose, accuracy, system integration, quiet enjoyment, title, and non-infringement; or
- any warranties with respect to third party software.
TradeSafe does not warrant that the Platform will meet the requirements of any User or be uninterrupted, be legally effective or complete, timely, secure or error-free. Each User should keep up-to-date security software on the systems used to access the Platform.
Each User is responsible for its conduct and Trades on the Platform. Each User must ensure that it has the correct permissions to act on the Platform.
22.2. Prohibited conduct
Nothing may be unlawful, harmful, threatening, abusive, harassing, defamatory, libellous, invasive of another's privacy, or harm minors in any way. Users are prohibited from using the Platform for the purposes of money laundering, fraud, deception, the sale or distribution of narcotics or firearms, or any other activity that is considered unlawful or harmful.
Do not harass, stalk, degrade, intimidate, or be hateful toward an individual or group of individuals.
No User may impersonate any person, falsely state, or otherwise misrepresent its affiliation with any person. Nothing may be false, deceptive, misleading or deceitful.
Do not infringe any patent, trademark, trade secret, copyright, or other proprietary rights of any party.
Any chain letter, pyramid scheme, or advertisement that is prohibited by law, is prohibited on the Platform. The advertising and provision of any illegal service or the sale of any goods that are prohibited or restricted by applicable law are prohibited.
Malware is prohibited. Do not negatively affect the ability of any other User to use the Platform. Do not employ misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in Trade s to disguise the origin of content transmitted through the Platform.
No User may impose an unreasonable or disproportionately large load on TradeSafe's infrastructure.
Do not attempt to gain unauthorised access to the Platform or engage in any activity that disrupts or diminishes the quality of, interferes with the performance of, or impairs the functionality of the Platform.
TradeSafe will report any suspicious or illegal activity detected on the Platform to the relevant authorities.
Except as provided to the contrary in the Agreement, all right, title, interest, and ownership (including all rights under all copyright, patent, and other intellectual property laws) in, to or of the Platform are the sole property of or will vest in TradeSafe or a third-party licensor. All moral rights are reserved.
TradeSafe’s logo and sub-logos, marks, and trade names are the trademarks of TradeSafe and no person may use them without permission. Any other trademark or trade name that may appear on the Platform or other marketing material of TradeSafe is the property of its respective owner.
Except as expressly permitted under the Agreement, the Platform may not be:
- modified, distributed, or used to make derivative works;
- rented, leased, loaned, sold or assigned;
- decompiled, reverse engineered, or copied; or
- reproduced, transferred, or distributed.
All violations of proprietary rights or the Agreement will be prosecuted to the full extent permissible under applicable law.
Each User agrees to indemnify, defend, and hold harmless TradeSafe (and its subsidiaries, Affiliates, officers, agents, co-branders or other partners, and employees) from and against any claim, demand, loss, damage, cost, or liability (including reasonable attorneys' fees) arising out of or relating to its use of the Platform.
25.1. Correct Faults
TradeSafe will correct any fault in the Platform where possible and as soon as reasonably practical and this is its entire liability regarding any fault in the Platform. If this clause is held inapplicable or unenforceable, then the following clause will apply.
25.2. Direct Damages Limited
To the extent permitted by applicable law, regardless of the form (whether in contract, tort, or any other legal theory) in which any legal action may be brought, TradeSafe’s maximum liability to a User for direct damages for anything giving rise to any legal action will be an amount equal to the total fees already paid by the User to TradeSafe for the Services related to the claim. The aggregate amounts for all claims will not be greater than the maximum amount.
25.3. Indirect Damages Excluded
To the extent permitted by applicable law, in no event will TradeSafe (or its personnel) be liable for any indirect, incidental, special or consequential damages or losses (whether foreseeable or unforeseeable) of any kind (including loss of profits, loss of goodwill, damages relating to lost or damaged data or software, loss of use, damages relating to downtime or costs of substitute products) arising from the Agreement.
26.1. Discontinue of the Platform
The Agreement will automatically terminate if TradeSafe discontinues the Platform.
If a User:
- commits a breach of the agreement;
- repeatedly infringes the copyrights or other rights of others;
- fails to pay any amount due and fails to remedy the breach within 2 calendar days of having been called on in writing to do so;
- effects or attempts to affect a compromise or composition with its creditors;
- commits a breach of the Agreement; or
- is provisionally or finally liquidated or placed under judicial management;
then the User agrees that TradeSafe may, to the extent permitted by applicable law and without prejudice to its rights in the Agreement or in law, deactivate or delete the User’s account, terminate access to or use of the Platform, claim specific performance of the Agreement, or cancel the Agreement with the User immediately on written notice and claim damages from User (including, any claim for any Fees already due).
26.3. Effects of Termination
On the deactivation or deletion of a User’s account, the Agreement with the User will terminate and access rights will immediately cease to exist. On termination, cancellation or expiry of any Trade, all amounts due to TradeSafe for Services rendered prior to termination will become due and payable even if TradeSafe has not invoiced them. On termination, any amount that owing to a party shall be paid or refunded to that party. User may not withhold the amounts for any reason, unless the arbitrator directs otherwise. The termination, cancellation, or expiry of a Trade will not affect the enforceability of the terms that are intended to operate after expiry or termination.
This dispute clause will only apply to a dispute between Users and TradeSafe, and will not regulate disputes between Users.
27.2. Notifying Each Other
There will be a dispute about or from this Agreement if a party writes to the other about it and asks for it to be resolved under this clause. The parties must refer any dispute to be resolved by:
- Negotiation ((direct talks to try and agree how to end the dispute); failing which
- Mediation (talks in which a neutral third party tries to help the parties agree how to end the dispute); failing which
- Arbitration (a hearing after which a neutral third party makes a binding decision about the dispute).
Each party must make sure that their chosen representatives meet within 10 business days of notification, to negotiate and try to end the dispute by written agreement within 15 more business days.
If negotiation fails, the parties must refer the dispute to mediation under AFSA’s rules.
If mediation fails, the parties must refer the dispute within 15 business days to Arbitration (including any appeal against the arbitrator’s decision) under AFSA’s latest rules for expedited arbitrations. If the parties cannot agree on the arbitrator within 10 business days after the referral, the Secretariat of AFSA will appoint the arbitrator.
The parties may agree in writing to change the periods for negotiation or mediation.
27.7. Urgent Interim Relief
This clause will not stop a party from applying to court for urgent interim relief (temporary help) while the dispute resolution process is being finalised. An example might be an interdict (type of court Trade).
This clause is separate and divisible from the rest of this agreement and remains effective even if this agreement ends or is invalid.
All notices, authorisations, disclosures, acknowledgements, and requests must be sent by hand, prepaid registered post, courier, facsimile, or electronic mail to the addresses and numbers provided on the Platform. By providing contact information, each party consents to its use for administering the relationship by the other party and other third parties that help a party administer the relationship.
Each party chooses its addresses and numbers provided on the Platform as its domicilium citandi et executandi (its domicile for being served summons and execution levied) for all purposes.
28.3. Change of Addresses and Numbers
Each party may change the addresses and numbers provided on the Platform.
28.4. Deemed Delivery
Notice will be deemed delivered on the date shown on the by hand, prepaid registered post, courier, facsimile or electronic mail confirmation of delivery.
28.5. Notice Received
If a notice is actually received by a party, adequate notice will have been given.
No party will be responsible for any breach of the Agreement caused by circumstances beyond its control, including any breakdown or failure of power supply, failure of performances of banks, force majeure, the Internet, any telecommunications systems, or any computer hardware or software.
No User may delegate its duties under the Agreement or assign its rights under the Agreement, in whole or in part, unless agreed in writing.
31.1. Entire Agreement
The Agreement constitutes the entire agreement between the parties in respect of the subject matter of the Agreement.
31.2. Changes to Agreement
The Agreement may be changed at any time by TradeSafe and where this affects the rights and obligations of a User, TradeSafe will notify the User of any changes by placing a notice in a prominent place on the Platform (or by email). If a User does not agree with the change the User should stop using the Platform. If a User continues to use the Platform following notification of a change to the Agreement, the changed terms will apply to the User.
No granting of time or forbearance will be, or be deemed to be, a waiver of the Agreement and no waiver of any breach will operate as a waiver of any continuing or subsequent breach.
If any term is void, unenforceable, or illegal, the term will be severed and the remainder of the Agreement will have full force and effect, provided the severance does not alter the nature of the Agreement.
31.5. Governing Law and Jurisdiction
The Agreement is governed by and must be interpreted under the laws of the Republic of South Africa and User agrees to submit to the exclusive jurisdiction of the South African courts.
31.6. Right to Reference
Each User consents to TradeSafe using its name in any marketing or sales material. The User may request TradeSafe in writing not to peruse its name in any marketing or sales material.