General Escrow Instructions (Australia)
Payments Australia Pty Ltd (“Payments”), an Australian Company and it the direct provider of escrow services to persons located in Australia. Internet Escrow Services, Inc., (“IES”) a California corporation is a related company of Payments. IES is the direct provider of escrow services to persons located outside Australia. For details of licenses refer to www.escrow.com/escrow-licenses.
The following provisions shall be referred to as the "General Escrow Instructions." The parties hereto employ, authorize and instruct Payments to act as Escrow Holder and Escrow Agent in connection with the Transaction under the terms and conditions on the Transaction Detail Screens, these General Escrow Instructions, Terms of Using the Escrow Platform and any supplemental Escrow Instructions as hereinafter defined and all collectively referred to as the "Transaction Escrow Instructions." Escrow.com and Payments are hereinafter collectively referred to as "Escrow.com" and intermittently referred to as "we" or "us."
A person or entity offering personal property for sale, and desiring to use the Escrow.com site in order to close such a sale, shall hereinafter be referred to as "Seller".
A person or entity desiring to purchase personal property from a Seller, by use of the Escrow.com site for completing the purchase shall be referred to as "Buyer".
A person or entity offering to broker personal property for sale, and desiring to use the Escrow.com site in order to close such a sale, shall hereinafter be referred to as "Broker". A Buyer and Seller may complete a Transaction with or without a Broker. When a Broker is party to this agreement, additional instructions as set forth of Section 9 of these General Instructions shall also apply. To the extent that any Broker may be involved in a Transaction, the Broker shall become a party to the Transaction and have rights under and/or through the escrow Transaction only if the Broker is an identified Broker on the particular Escrow.com Transaction. If either Buyer or Seller has any independent relationship, obligation or duty of any kind with any other broker or a third party broker, such other or third party broker has no rights under and/or through the Transaction or from Escrow.com. It is the sole and independent obligation and duty of the Buyer or Seller who has any independent relationship with any other or third party broker to satisfy any and all obligations to such other or third party broker.
The use of the Escrow.com site (by the Buyer, Seller and Broker) for purposes of effectuating a single escrowed transfer of ownership of personal property shall be referred to as a "Transaction". The completion of the Transaction by Buyer and Seller (and Broker when applicable) is referred to herein as the "Close of Escrow". A Buyer, Seller and Broker may enter into a Transaction for the sale and purchase of many different types of personal property. This Instruction refers to the personal property which is the subject of a Transaction interchangeably as "merchandise" "goods" "item(s)" or "Escrowed Property". Funds deposited into Escrow by the parties shall be referred to as "Escrow Funds".
Buyer and Seller (and Broker when applicable) should each log onto the Escrow.com website daily and regularly to confirm the status of the Transaction, the shipping and tracking and/or the Closing.
The time of day and calendar day for all matters and events referred to in these Instructions will be determined by Pacific Time. All communications of any kind, for any purpose shall be made in the English language. It is the responsibility of Buyer and or Seller (and Broker when applicable) to each know and understand the English language. Any party who requires interpretation to or from the English language for the purpose of making or receiving any communication, relating to these Instructions or the Terms of Using the Escrow Platform, shall be responsible for any of his, her or its own respective costs in that regard.
The term “Business Day” shall refer to the working days Monday through Friday between the hours of 8:00 a.m. and 5:00 p.m. AEST, which are not legal holidays in New South Wales, Australia observed by Escrow.com.
Payments made by check shall be subject to a ten (10) Business Day hold.
Due to processing delays, payments made by credit card, debit card or Pay Pal Account, shall not be on deposit with Escrow.com until the Business Day on which the funds are actually deposited into Escrow.com’s designated account.
1. Instructions and Deposit of Funds into Escrow
Once the Buyer and Seller (and Broker when applicable) have agreed to identical Transaction Detail Screens for a specific underlying Transaction, and both (and Broker when applicable) have agreed to these General Escrow Instructions by selecting the "Agree" button at the bottom of the Transaction Detail Screens, these instructions shall constitute a binding agreement between all parties. No blank spaces shall exist on the Transaction Detail Screens as of the time the Buyer and Seller (and Broker when applicable) select the "Agree" button. After Buyer and Seller (and Broker when applicable) both select the "Agree" button, the Transaction Detail Screens, General Escrow Instructions and Terms of Using the Escrow Platform constitute the Transaction Escrow Instructions to govern the Transaction between the Buyer and Seller (and Broker when applicable) (the "Transaction Escrow Instructions"). Should it become necessary to add a supplemental instruction(s), or to make any addition to, deletion from, or alteration to the Transaction Detail Screens, all parties (Buyer, Seller, Escrow.com and Broker when applicable) must execute (by digital signature or by a method mutually agreed upon by both parties) any supplemental instruction, addition, deletion or alteration thereto (collectively the "Supplemental Escrow Instruction(s)). Escrow.com reserves the right to reject any Supplemental Escrow Instructions and to terminate the Transaction as provided herein. The parties to the Transaction hereby agree to conduct the Transaction electronically. The parties acknowledge that by entering into the Transaction Escrow Instructions, they are able to electronically receive the Transaction Escrow Instructions, download the Transaction Escrow Instructions and print the Transaction Escrow Instructions.
2. Domain Name(s)
In the event the personal property being transferred in this Transaction qualifies as a "Domain Name", Escrow.com is instructed to close only when the transfer of the Domain Name has been confirmed by Escrow.com (at its option) or the Buyer has notified Escrow.com that Buyer has received the transfer and allowed the Inspection Period named in the Transaction Detail Screen to expire or the Buyer has accepted the transfer. Seller shall transfer a Domain Name(s) to Buyer based upon information provided in Buyer's profile. Seller agrees to provide the username and password and/or authorization code, if any, necessary to access the Domain Name to Buyer prior to the release of funds. Should Seller agree to accept payments from a Buyer for a Domain Name, and request that Escrow.com hold the Domain Name while these payments are being made, then Buyer and Seller shall execute a separate agreement to govern the holding of a Domain Name by Escrow.com.
To the extent that a Transaction involves an escrow which shall result in Escrow.com holding the domain name for a designated period of time, the parties shall agree to be bound by the Domain Name Holding Instructions and other such Transaction documents as the parties may submit to Escrow to govern the Transaction. In a Domain Name Holding Transaction the duties of the Buyer and Seller may not be assigned by the Buyer and Seller without prior written consent by the other party and Escrow.com. Instructions, by the Seller to Escrow.com, to have escrowed funds paid or delivered to a third party or entity (who is not party to the Transaction) is not considered to be an assignment.
2A. IPv4 Numbers
The provisions of this paragraph 2A shall amend and supplement the General Escrow Instructions for Transactions involving IPv4 Numbers. “IPv4 Numbers” means the IPv4 address range in the Transaction Detail page. IPv4 Numbers shall be deemed “personal property.” In escrow instructions from both Buyer and Seller at the commencement of the transaction, Buyer and Seller (or Broker, on behalf of Buyer and Seller) shall identify the applicable regional Internet registry(ies) (“RIR”) that will be initiating (the source RIR) and finalizing (the recipient RIR) the transfer of the registration of the IPv4 Numbers. The source RIR of the Seller and the recipient RIR of the Buyer may either be the same RIR or different RIRs. “Ship” or “Shipped” means Seller has either (i) submitted a request to the source RIR to transfer the registration of the IPv4 Numbers to the Buyer and satisfied the source organization transfer policy requirements imposed on Seller by the applicable RIR, which may include payment of a transfer fee to the source RIR and has provided notice of shipment to Escrow.com via login to the transaction website, or (ii) delivered the IPv4 Numbers to Buyer in accordance with an alternative transfer or delivery process set forth in the underlying agreement between Buyer and Seller. Buyer shall be deemed to have received the IPv4 Numbers and the Inspection Period named in the Transaction Detail Screen shall commence the earlier of when (i) the transfer of IPv4 Numbers has been confirmed by Escrow.com by presentation of whois records of the recipient RIR that reflect Buyer as the registrant of the IPv4 Numbers, or (ii) Buyer has confirmed its receipt of the IPv4 Numbers and has provided notice of receipt to Escrow.com via login to the transaction website. Subject to Section 5, Escrow.com shall close the Transaction and release the escrowed funds to Seller (and Broker, where applicable) the earlier of when Buyer has either allowed the Inspection Period named in the Transaction Detail Screen to expire or accepted the IPv4 Numbers. Section 3 (Shipping and Tracking of Item) and Section 6 (Shipping and Tracking of Returned Item) shall not apply to Transactions involving IPv4 Numbers.
3. Shipping and Tracking of Item
Upon receipt of Buyer's funds, and clearance of same, Escrow Holder will notify Seller to ship the merchandise. This notice to Seller shall be accomplished via email which will require the Seller to log on to the Escrow.com website to confirm secured funds, unless all parties lawfully agree to a different method of notification. Upon Seller's verification, Seller agrees to ship the merchandise, insured for full value to Buyer. Buyer and Seller agree to choose a shipping method that utilizes online tracking information. Seller shall ship merchandise to Buyer based upon information provided in Buyer's profile. Seller will be responsible for shipping damage if insurance is not purchased. Seller agrees to complete and submit the shipping information to the Escrow.com website, on the same day on which the merchandise is placed in the possession of the company responsible for shipping. Confirmation of same will be sent via email to all parties, unless all parties lawfully agree to a different method of notification.
The Buyer Inspection Period (as defined in Buyer and Seller's Transaction Escrow Instructions, as agreed to on the Transaction Detail Screens of Escrow.com) shall commence upon the first to occur of either: (1) Buyer's acknowledgment of receipt of merchandise or domain(s); or (2) the Escrow.com website receipt of verification of delivery to the Buyer's profile information via the shipper's or registrar's tracking services. The Buyer Inspection Period shall be calculated in full calendar days, the number of days to be agreed upon by the Seller and Buyer in the Transaction Escrow Instructions.
In the event the Seller has not shipped the goods within ten days of notification by Escrow.com (through its email or posting on the Escrow.com website) of Buyer's deposit of immediately available funds, Buyer may request a return of funds, less the escrow fee, and Escrow.com will do so after notifying both parties.
Unless the parties agree otherwise, Buyer is responsible for any duties, customs fees or other charges resulting from an international Transaction, which shall be included in the purchase price. It is the responsibility of the shipping party to properly declare the merchandise and its value for customs procedures.
4. Buyer's Acceptance, Disbursement of Funds
During the Buyer Inspection Period, Buyer shall either: (1) select the "Accept" button on the Escrow.com website, and follow all further instructions accordingly to complete acceptance of the goods; or (2) select the "Reject" button and follow any further instructions to complete the rejection of the goods. Should the Buyer fail to select either the "Accept" or "Reject" buttons, and/or follow all further instructions, then Buyer shall be deemed to be satisfied with the quality of the goods/domain(s), and to have accepted the goods/domain(s).
Notwithstanding the foregoing, for Transactions involving IPv4 Numbers, Buyer shall not be permitted to reject the IPv4 Numbers if the recipient RIR’s whois records reflect Buyer or its designee as the registrant of such IPv4 Numbers, and Buyer’s selection of the “Reject” button shall have no effect on Escrow.com’s authority to close the transaction or Seller’s (and Broker’s) right to receive the escrow funds as set forth in Section 2A (IPv4 Numbers).
Escrow.com will then begin the process of disbursing the funds as follows:
- If, in the Transaction Escrow Instructions, the Buyer agreed to pay for shipping, and/or any portion of the escrow fee, then those costs shall be collected as Buyer's funds, and remitted with the purchase price. At Close of Escrow, Escrow.com will pay the Seller the purchase price and shipping fee itemized in the transaction, less any payment for expedite fees and disburse the escrow fee to Escrow.com.
- If, in the Transaction Escrow Instructions, the Seller agreed to pay for shipping, and/or any portion of the escrow fee, then at Close of Escrow Escrow.com will pay to Seller the purchase amount, less any disbursement expedite fees, and any portion of the escrow fee. Shipping fees will be deemed paid outside of escrow.
Escrow.com reserves the right to provide the Buyer a written 48-hour notice if an Inspection Period has ended without the Buyer's involvement.
5. Buyer Rejection Process
The buyer is responsible for 100% of the escrow fee in the event the transaction is cancelled or the merchandise is returned. During the Buyer Inspection Period, Buyer may reject for any reason by selecting the "Reject" button on the Escrow.com site and following all other instructions to properly reject the merchandise. Upon such rejection, Escrow.com will send Seller an email stating Buyer's decision to reject and return the goods; and Buyer agrees to promptly ship goods to Seller within ten (10) calendar days of formal rejection and insure, at Buyer's expense, the item(s) to the place designated by the Seller in the Seller's profile. Buyer will be responsible for shipping damage if insurance is not purchased. Buyer is aware that merchandise must be rejected in the manner described in order to obtain a refund of the purchase price.
In the event that Buyer rejects the goods in violation of other terms of acceptance and rejection, applicable to Buyer and Seller in connection with the underlying Transaction (including but not limited to the Transaction Escrow Instructions and Escrow.com guidelines) the Seller shall not be prohibited from pursuing any available right or remedy available under any applicable law against Buyer for breach of the Transaction.
Buyer is aware that regardless of the reason for rejection, Escrowed Property must be returned to the Seller in order for funds to be returned to the Buyer. Shipping costs for returned Escrowed Property must be arranged and completed within ten (10) days of Buyer's rejection. Failure of Buyer to return the Escrowed Property within the specified time period will cause Escrow.com to automatically pay the Seller the purchase price.
In Transactions where the Escrowed Property is a domain name, if a Buyer rejects a domain name (which is not being held by Escrow.com pursuant to a separate holding agreement) within the Inspection Period, return of the domain name from Buyer to Seller must be initiated within ten (10) days of Buyer's rejection. Failure of Buyer to reject or initiate return of the domain name within the specified time periods will cause the Escrow Holder to automatically pay the Seller the purchase price. Seller agrees to cooperate in the return process of the domain. In the event the domain transfer to the Buyer has caused a ICANN imposed registrar lock, the Buyer and Seller agree that the Seller will open an account at the receiving registrar to take possession of the domain or that the funds will be held in escrow until this period expires and the domain can be returned to the Seller’s registrar.
Notwithstanding anything to the contrary herein, for Transactions that involve IPv4 Numbers, Buyer may reject the IPv4 Numbers only where the whois records of the recipient RIR do not reflect Buyer or its designee as the registrant of the IPv4 Numbers (as confirmed by Escrow.com), in which case Buyer’s rejection shall be deemed Buyer’s automatic return of the IPv4 Numbers to Seller. If, in such event, Seller accepts the return of the IPv4 Numbers (as further described in Section 7 with respect to IPv4 Numbers), Escrow.com shall refund the escrowed funds to Buyer, less the escrow fee.
6. Shipping and Tracking of Returned Item
By rejecting the item in the manner described above, Buyer agrees to return the item(s) promptly to Seller at the address designated by Seller in the Seller's profile. Buyer is responsible for all related shipping and insurance costs; and agrees to return the item to the Seller by use of a shipping method that utilizes online tracking information. It is the responsibility of the shipping party to properly declare the merchandise and its value for customs procedures.
Immediately upon shipping the goods back to Seller, Buyer shall complete and submit, through the Escrow.com website, the requested shipping information. Upon receipt of such information, Seller will be notified by an email from Escrow.com which includes the name of the shipping company and the relevant tracking number as supplied by Buyer. If Buyer sends the goods to Seller without following the guidelines set forth in this paragraph, then in addition to any other remedies which Escrow.com or Seller may have, Escrow.com will not return to Buyer any of the escrowed funds unless and until; (1) the Seller confirms that the rejected item has arrived in the same condition in which it was originally sent; or (2) there is a final Dispute Resolution, as set forth in the Dispute Resolution section below. Should no shipping be necessary in order to effectuate the return of the merchandise, then Seller and Buyer shall be free of the shipping and tracking obligations as defined in this section.
The Seller Inspection Period shall commence upon the first to occur of either: (1) Seller's acknowledgment of receipt of merchandise or domain(s); or (2) the Escrow.com website receipt of verification of delivery to the Seller's profile information via the shipper's or registrar's tracking services; or (3) the Seller's failure to accept Buyer's delivery of returned goods; or (4) the Seller's failure to retrieve returned goods upon notification from the shipping company and/or any governmental office of the returned goods' availability for pick up. The Seller shall have five (5) calendar days following the date on which the Seller Inspection Period begins to inspect the "returned" merchandise/domain(s).
7. Seller Acceptance or Rejection of Return, Disbursement of Funds
The Seller shall have five (5) calendar days following the date on which the Seller inspection period begins to: (1) select the "Accept" button on the Escrow.com website, and follow all further instructions to properly accept returned goods; or (2) select the "Reject" button on the Escrow.com website, and follow all further instructions to properly reject returned goods.
During the Seller Inspection Period, should Seller: (1) fail to select either the "Accept" or "Reject" buttons on the Escrow.com website; or (2) fail to follow all instructions in order to effectuate the acceptance or rejection of a returned item, then at the end of the Seller Inspection Period, Seller shall be deemed to be satisfied with the quality of the returned goods, and shall be deemed to have accepted the returned goods.
The Seller may reject the timely return of Escrowed Property only if the property is returned in a condition other than the condition it was in when first sent from Seller to Buyer. Should Seller reject the item during the Seller Inspection Period, the Seller and Buyer shall negotiate for the Negotiation Period, as defined below. Should the Buyer and Seller fail to reach an agreement during the Negotiation Period and provide a joint instruction evidencing same to Escrow.com, either Buyer or Seller may file for arbitration (in accordance with the Dispute Resolution section below) at any time in the fourteen (14) calendar days following the Negotiation Period. If, as of the fifteenth (15th) calendar day following the end of the Negotiation Period, neither Buyer nor Seller has filed for and given notice of the commencement of arbitration in accordance with the Dispute Resolution section of these Instructions, and given acceptable proof of the commencement of arbitration to the non-filing party and Escrow.com, then Seller shall be deemed to have waived any rights Seller may have to a return of all or any portion of the purchase price, the Transaction shall terminate, and Escrow.com shall return Buyer's funds as provided herein.
Upon the first to occur of either: (1) Seller's acceptance of the returned goods; (2) the end of the Seller Inspection Period; or (3) on the 15th calendar day following the Negotiation Period the failure of Buyer or Seller to commence arbitration (in accordance with the Dispute Resolution provisions of these Instructions and notify all parties as provided therein) Escrow.com will begin the process of disbursing the Escrow Funds as follows:
- If, in the Transaction Escrow Instructions, Buyer agreed to pay for shipping, and/or any portion of the escrow fee, Escrow.com will pay Buyer the purchase price, less these costs, and Escrow.com will pay Seller for the Shipping Fee in the amount set forth in the Transaction Escrow Instruction, disburse the escrow fee to Escrow.com, and disburse the balance to Buyer.
- If, in the Transaction Escrow Instructions, the Seller agreed to pay for shipping, and/or any portion of the escrow fee, then Escrow.com shall pay Buyer the amount deposited less Escrow.com's fee.
- If Buyer and Seller agreed that the Item will not be shipped from Seller to Buyer prior to the Close of Escrow, then Escrow.com will not deduct shipping fees from the Buyer's Required Payment.
Once all costs are paid, and funds are disbursed, the escrow shall be deemed cancelled, with no further obligation due by Buyer, Seller, or Escrow.com (or Broker when applicable) under this Agreement or under the Transaction Escrow Instructions. Escrow.com reserves the right to provide the Seller a written 48-hour notice if an Inspection Period has ended without the Seller's involvement.
Notwithstanding anything to the contrary herein, for a Transaction of IPv4 Numbers, Buyer’s rejection of IPv4 Numbers still registered to Seller in the source RIR’s whois records shall constitute automatic return of the IPv4 Numbers to Seller and the beginning of Seller’s Inspection Period. Seller may reject the return of the IPv4 Numbers only if Seller is able to provide to Escrow.com (via login to the transaction website) independently verifiable information that in the sole discretion of Escrow.com (acting reasonably) indicates that the transfer of IPv4 Numbers from Seller to Buyer has been approved, without express reservation or condition, by the applicable RIR(s) and that the applicable RIR(s) will not agree to rescind the approval or otherwise cancel the transfer. Unless Buyer and Seller otherwise agree to a different joint instruction to Escrow.com, upon Escrow.com’s confirmation that the recipient RIR’s whois records reflect Buyer as the registrant, Escrow.com shall close the Transaction and disburse the escrowed funds to Buyer (and Broker) as described under Section 2A (IPv4 Numbers).
Once escrow funds have been deposited, in the event that Seller fails to ship the merchandise within the required ten (10) day period or within any longer time period upon which Buyer and Seller have mutually agreed, Buyer may request a refund of the deposited funds. The request for refund shall be submitted to the support form. Buyer hereby agrees that the entire escrow fee shall be deducted from his/her/its refund regardless of any other previous arrangement for allocation of the escrow fee that may have been made between Buyer and Seller (and Broker when applicable). A Domain Name Holding transaction may not be cancelled by the Seller after the domain has been secured in Escrow.com’s holding account. Buyer and Seller also agree that Seller may request the escrow transaction be cancelled and the Buyer refunded, less escrow fees, at any time. In the event of a cancellation after funds are received, or rejection of merchandise, the Broker will not receive the commission unless otherwise stipulated in the escrow agreement.
9. Transactions Involving a Broker as a Party
The Broker will initiate the Transaction providing the Buyer and Seller email addresses and shall give instructions as to any restrictions on access to Buyer or Seller contact information. In the event the Broker restricts any information, the Buyer and Seller information may remain anonymous until such time as Escrow.com secures the Buyer’s funds. Once the Buyer and Seller agree to the Transaction, including the agreement to the Broker’s commission, the Buyer will be prompted to send payment to Escrow.com via wire transfer. After Escrow.com secures and verifies funds, Escrow.com will instruct the Seller to transfer the merchandise to the Buyer. When the Buyer or Escrow.com has confirmed the Buyer’s receipt of the merchandise, the Inspection Period shall begin. Upon the Buyer’s acceptance or the Inspection Period expiring, Escrow.com will disburse funds to the Seller and the Broker per the Escrow Agreement. In the event of a cancellation after funds are received, or rejection of merchandise, the Broker will not receive the commission unless otherwise stipulated in the escrow agreement.
10. Dispute Resolution
Complaints or disputes with Escrow.com
If you have a complaint about any of Escrow.com's products or services please contact Escrow.com by:
- calling 1300ESCROW (1300 372 769), between Tuesday - Saturday, 8am to 4pm, Australian Eastern Standard Time
- writing to Level 37, 225 George Street Sydney NSW 2000, Australia, or
- sending an email to email@example.com (at any time).
Escrow.com's staff will aim to resolve your complaint as quickly as possible and will acknowledge your complaint promptly. Escrow.com will investigate the complaint and if necessary, decide upon appropriate action.
Escrow.com will respond to you within 45 days, advising you in writing of the outcome of the complaint. If Escrow.com is unable to resolve the complaint within 45 days, it will notify you of this fact in writing, inform you of the reasons for the delay and specify a date by which a decision can be reasonably expected.
You are entitled to refer your matter to the Australian Financial Complaints Authority at any time. You just need to advise us and Escrow.com will facilitate the referral free of charge.
The Australian Financial Complaints Authority can be contacted directly as follows:
Address: GPO Box 3, Melbourne, VIC, 3001
Phone: 1800 931 678
Disputes between Buyer and Seller
In the event of any dispute between Buyer and Seller in respect of a Transaction between Buyer and Seller (including but not limited to Seller's rejection of returned goods, Buyer's or Seller's Acceptance or Rejection of an item and/or Cancellation of the Transaction, Buyer and Seller (and Broker when applicable) will use their best efforts to consult and negotiate in good faith for the Negotiation Period, as defined below, to reach a solution satisfactory to all parties. If the parties reach an agreed upon resolution, Buyer and Seller (and Broker when applicable) will promptly notify Escrow.com in writing by joint instruction of the terms and conditions thereof.
The following shall be referred to herein as the "Dispute Date": (1) the Seller's Rejection of Return of the merchandise/domain(s) on the Escrow.com website; or (2) Escrow.com rejecting merchandise/domain(s) on behalf of the Seller if the Seller is unable to gain access to the Escrow.com website. The fourteen (14) calendar days beginning with the Dispute Date shall be referred to as the "Negotiation Period".
If Buyer and Seller (and Broker when applicable) do not reach an agreed upon resolution and notify Escrow.com of the same in writing by a joint instruction during the Negotiation Period, either Buyer or Seller (or Broker when applicable) shall submit the matter to binding arbitration within fourteen (14) calendar days after the end of the Negotiation Period. This second fourteen-day period shall be referred to herein as the "Arbitration Commencement Period". Notice that such arbitration has been commenced shall be promptly given, via e-mail, by the party commencing arbitration to the other parties and Escrow.com. Before Buyer initiates a submission to arbitration, Buyer must return the Escrowed Property received by Buyer to Seller.
If Escrow.com has not received notice that binding arbitration has been commenced within the Arbitration Commencement Period, Escrow.com may terminate or cancel the Transaction and refund the Escrow Funds to the Buyer, less the escrow fee, in accordance with these Instructions and the Transaction Escrow Instructions. Escrow.com reserves the right (but has no obligation) to commence arbitration, or to interplead the funds with a court of competent jurisdiction at any time. In this case, Buyer and Seller (and Broker when applicable) authorise Escrow.com to use the escrow funds to pay the administrative fees to initiate arbitration or to file a judicial action and process service of the summons and complaint. The party instituting the arbitration proceeding shall notify Escrow.com and the other parties by sending notice of demand for binding arbitration to the non-filing parties. Buyer and Seller (and Broker when applicable) agree to accept service of the notice of demand for binding arbitration via e-mail (via the e-mail addresses previously provided to Escrow.com by Buyer, Seller, and Broker when applicable) and further agree that no further notice is necessary to have their dispute submitted to binding arbitration by either Buyer, Seller, (Broker when applicable) or Escrow.com pursuant to this Section.
Any such binding arbitration shall be submitted by the party commencing the arbitration either to American Arbitration Association ("AAA") or Judicial and Mediation Services, Inc. ("JAMS"), or Net-ARB Inc. (“net-ARB”). It is the obligation of Buyer and Seller (and Broker when applicable) to perform their own due diligence and to review the websites and other sources of information available from AAA, JAMS and/or Net-ARB prior to any selection they may consider as the terms, procedures and prices of the respective arbitrators may vary. The arbitration shall take place within the State of California, County of Orange, unless Buyer, Seller, (and Broker when applicable) and Escrow.com all agree otherwise in writing to a different arbitration provider or venue. In addition to the fact that Buyer and Seller (and Broker when applicable) agree to have any dispute, claim, question, disagreement or breach arising from or relating to Escrow.com's Terms of Using the Escrow Platform, these General Escrow Instructions, the Transaction Escrow Instructions, or the Transaction Detail Screens be determined through binding arbitration, Buyer and Seller (and Broker when applicable) also agree that any issue that may arise regarding the arbitrability of any dispute sent to arbitration under this section shall be determined by the arbitrator alone.
Unless Buyer, Seller, (and Broker when applicable) and Escrow.com all agree otherwise the arbitration shall be conducted before a single arbitrator who is a member of AAA, JAMS, or net-ARB, (the "Arbitration Provider"). The party initiating the arbitration will make a written request to the Arbitration Provider, including a copy of this arbitration provision (the "Arbitration Request"). The Arbitration Request will include a notice with the names of Buyer, Seller, (and Broker when applicable) and Escrow.com, and the last known mailing addresses, telephone numbers, facsimile numbers, email addresses and contact person for each and every party. The Arbitration Request will be delivered concurrently to all parties, including Escrow.com. Although Escrow.com will be provided notice of the Arbitration Request and notice of the final award or decision of the arbitrator, Escrow.com will not be an actual party to the arbitration proceeding to resolve the dispute between Buyer and Seller (and Broker when applicable) unless Escrow.com voluntarily elects to intervene. The Arbitration Request will instruct the Arbitration Provider to select an arbitrator pursuant to the Arbitration Provider’s procedures existing at the time of the Arbitration Request. If the Arbitration Provider does not have an existing procedure for selecting an arbitrator the Arbitration Request will instruct the Arbitration Provider to randomly propose the name of three potential arbitrators and for the Arbitration Provider to submit those three names to all parties concurrently (the "the Arbitration Provider List"). No party may request to the Arbitration Provider that any particular arbitrator be included on the Arbitration Provider List. Any arbitrator specifically requested to be on the Arbitration Provider List is to be excluded. Each party may, within five days after receipt of the proposed names, strike and exclude one name from the list. Thereafter, the Arbitration Provider shall appoint as arbitrator a person whose name has not been struck from the list ("the Arbitration Provider Appointment") and an alternate. If for any reason the Arbitration Provider does not appoint an arbitrator within 15 business days of the submission by any party of its exclusion, either party may petition the Orange County Superior Court, Santa Ana, California for the appointment of an arbitrator. Within 10 calendar days after the appointment of the arbitrator, the arbitrator will schedule a pre-arbitration hearing, which will be conducted by telephone and shall be held within the next ten business days.
The arbitrator shall have the power to enter a default award if a party fails to participate in the arbitration.
Unless Buyer, Seller, (and Broker when applicable) and Escrow.com agree otherwise as set forth herein, the arbitration hearing shall take place in the County of Orange, State of California, at a date, time and location selected by the arbitrator. The actual arbitration hearing must be commenced within 120 days after notice of the identity of the arbitrator is served (by either the Arbitration Provider or the Superior Court as the case may be). The hearing must be concluded within 90 calendar days after it is commenced. A decision shall be rendered within 10 calendar days after the conclusion of the hearing. The arbitrator shall establish any deadlines necessary to accomplish these time requirements.
Each party to the arbitration shall pay a pro-rata share of the arbitrator's expenses and fees, and the other arbitration expenses incurred or approved by the arbitrator, excluding attorney fees, witness fees, and other expenses incurred by a party for his or her own benefit. Because Escrow.com is not a party to a dispute between Buyer and Seller (and Broker when applicable), Escrow.com will not be responsible for any portion of the arbitration expenses and fees. The parties shall estimate their costs and pay their estimated share before commencement of the arbitration. Any extra arbitration costs shall be paid within ten business days after the close of the proceeding and before the award. A party that fails to pay its share shall not be allowed to participate in the arbitration. If a party fails to pay its share, the other parties shall pay pro rata the cost of the party that failed to pay. The arbitrator shall add such payment to the final award in such a fashion as to return the parties to the position they would have been in, to the greatest extent possible, if all had paid their share.
The arbitrator may award the prevailing party his or her expenses and fees of arbitration, including reasonable attorney fees and witness fees, in such proportion as the arbitrator decides.
Except as otherwise set forth in this Agreement, the arbitrator shall have the powers to determine the nature and extent of any discovery to be allowed and also will have all other powers provided in California Code of Civil Procedure sections 1282-1284.3.
Buyer and Seller (and Broker when applicable) understand and agree that failing to respond or otherwise comply with either party's or Escrow.com's notice/demand for binding arbitration pursuant to this section and/or failing to participate in the arbitration process will without notice result in forfeiture of any and all rights that the non-responding Buyer or Seller (or Broker when applicable) may have with regard to the subject matter of the dispute, including but not limited to rights Buyer or Seller (or Broker when applicable) have to the Escrow Funds and or any property associated therewith returned or distributed to them, and can result in a default judgment against such party.
Any award in such arbitration shall be final and binding upon the parties and judgment thereon may be entered in any court of competent jurisdiction. The arbitrator will be instructed to serve a copy of the final award or decision on Escrow.com and Escrow.com will comply with the arbitrator's final award or decision.
In the event of a dispute, Buyer and Seller (and Broker when applicable) are aware that no action on closing the Transaction will be taken on the part of Escrow.com until such time as the dispute is resolved except by either: (i) Escrow.com's receipt of a written notice of a joint instruction providing the terms of an agreed upon resolution; or (ii) an order of the arbitrator or a court of competent jurisdiction in response to Buyer's or Seller's (or Broker’s when applicable) or Escrow.com's action to institute binding arbitration in accordance with these Instructions; or (iii) the order of the arbitrator or a court of competent jurisdiction in response to Escrow.com's action for interpleader or other legal or equitable remedies. Escrow.com shall have no responsibility and/or liability to initiate and/or continue to update either party regarding status of the Transaction Escrow, arbitration or other legal proceeding. If instructed and all fees (the amount as set forth in the Terms of Using the Escrow Platform in effect at the time) are paid in advance, Escrow.com will place funds into an interest bearing account with no further authorization required for same. The disposition of the interest earned shall be decided concurrently with the resolution of the dispute. THE OBLIGATION OF ESCROW.COM, THE ESCROW HOLDER AND THEIR AFFILIATES SHALL BE LIMITED TO THE HOLDING AND DISBURSEMENT OF FUNDS UPON WRITTEN INSTRUCTIONS SIGNED BY ALL PARTIES OR AN AWARD FROM THE ARBITRATOR AND/OR JUDGE.
Escrow.com may, in its sole discretion, institute the binding arbitration procedures set forth above and/or any other legal proceedings (including interpleading the funds with a court of competent jurisdiction) to resolve any dispute arising from a Transaction between Buyer and Seller and/or related to Buyer's and Seller's respective use of the Escrow.com site. Notwithstanding any other provision in these General Escrow Instructions to the contrary, and regardless of whether Escrow.com is identified as a party to any arbitration or other dispute governed by this section, nothing herein shall be construed to limit Escrow.com's legal and/or equitable rights, including but not limited to the filing of an interpleader action in any court of competent jurisdiction.
11. Integrated Affiliate
In the event an entity's site is integrated to the Escrow.com website in whole or in part for the purpose of data transmission, that entity shall be considered an integrated affiliate ("Integrated Affiliate"). In the event that Seller (and Broker when applicable) is an Integrated Affiliate, Seller (and Broker when applicable) shall automatically be deemed to agree to the terms set forth in the Transaction Detail Screens effective when the terms pass from Seller's site (and Broker’s site when applicable) to the Escrow.com site. Seller (and Broker when applicable) shall agree automatically to these General Escrow Instructions, the Terms of Using the Escrow Platform, the Transaction Escrow Instructions and any Supplemental Escrow Instructions effective when Buyer selects the "Agree" button, thereby attaching Buyer's Digital Identification.
12. Time Limits
Should the Escrow.com site or our services be unavailable, or if Buyer and Seller (and Broker when applicable) jointly desire to extend the Buyer Inspection Period or the Seller Inspection Period, then Escrow.com may, but shall not be obligated to, extend such times as set forth in the Transaction Escrow Instructions at Escrow.com’s sole and absolute discretion, and Escrow.com will provide prompt email notification of any extension to all parties. With the exception of Escrow.com extensions, the Buyer Inspection Period and the Seller Inspection Period as set forth in these Instructions and the Transaction Escrow Instructions shall not be modified.
If, for any reason, you are unable to gain access to the Escrow.com site to inform Escrow.com of any acceptance, rejection or return of merchandise, then you must notify Escrow.com within the applicable time limit either by calling Escrow.com 1300ESCROW (1300 372 769) or by emailing us from the support form. This notification will not be considered effective until Escrow.com acknowledges receipt by notifying Buyer and Seller (and Broker when applicable) via email or by updating the Transaction Detail Screen.
13. Timing of Payment
All Escrow Funds due to Buyer and Seller (and Broker when applicable) shall be paid as soon as possible following the Buyer's acceptance, Seller's acceptance, or the resolution of a dispute. In the event that Buyer makes any form of overpayment, we shall reimburse the overpayment upon the Close of Escrow. In the event that Buyer or Seller (and Broker when applicable) is overpaid for any reason, Buyer and Seller (and Broker when applicable) agree to promptly return the funds to Escrow.com. The payee agrees to pay any postage costs and/or wire fees if an alternate payment is requested. Buyer and Seller (and Broker when applicable) shall also hold Escrow.com harmless from any loss that may arise due to currency conversion.
14. Method of Payment
In the event Buyer chooses credit card as the method of payment, Escrow.com is hereby authorized to charge to Buyer's credit card at the time Buyer selects the Form of Payment from the Transaction Detail Screen. Buyer agrees to provide Escrow.com with any documentation required to validate Buyer's identity. Escrow.com reserves the right to refuse a credit card or other form of payment for any reason, and Escrow.com is under no obligation to disclose the reason for the credit card or other form of payment refusal. If a credit card or other form of payment is refused, the Transaction shall be considered cancelled 20 days after Escrow.com's notification to the Buyer of the refusal and Buyer's failure to cure within that period. All escrow fund disbursements shall be made to Seller, or Buyer in the case of a refund (and Broker when applicable), by mailing a trust account check, unless otherwise requested by the payee. Alternatively, the payee may receive a credit back to a credit card or other payment source if authorized to do so by the credit card company or other payment source.
15. Finality of Payment
Upon any payment or other disposition of the Escrow Funds, the Transaction shall be deemed closed and final with no further obligation on the part of Buyer, Seller, (and Broker when applicable) or Escrow.com. If after a Transaction is closed and Escrow.com has distributed proceeds, a Buyer (and Broker when applicable) who has made a payment with a credit card instructs a credit card company to stop payment or make a charge back so that Escrow.com does not receive the payment from the credit card company or the previous credit from the credit card company is reversed or “charged back”, said action by Buyer (and Broker when applicable) is deemed to be a material breach of this agreement. The parties agree that if such a breach does occur after the Transaction closes liquidated damages in the amount of the stopped payment, reversal or charge back plus an additional $5,000 will be imposed (“Liquidated Damages”). The parties agree the Liquidated Damages amount set forth herein is reasonable in light of (1) the anticipated or actual harm caused by the breach; (2) the difficulties of proof of loss; and (3) the inconvenience or non-feasibility of otherwise obtaining an adequate remedy.
16. Escrow Funds
All Escrow Funds shall be deposited in a non-interest trust account. Buyer and Seller (and Broker when applicable) acknowledge that the maintenance of such escrow trust accounts may result in Payments or an Escrow.com affiliate being provided with certain bank services, accommodations or other benefits by the bank. All such services, accommodations and other benefits shall accrue to the Escrow.com affiliates, and the Escrow.com affiliates shall have no obligation to account to Buyer or Seller (or Broker when applicable) or any other party to any escrow created hereunder for the value of such services, accommodations or other benefits.
Unless otherwise requested as specified herein, Escrow Funds do not earn interest for Buyer or Seller (or Broker when applicable). If Buyer or Seller (or Broker when applicable) anticipate an extended period of time before the Close of Escrow, Buyer or Seller (or Broker when applicable) may request in writing by email, and Escrow.com may approve, an instruction to have Escrow.com place the Escrow Funds into an interest bearing account for benefit of the Buyer or Seller (or Broker when applicable), as agreed upon in writing by all parties, (a "Special Account"). Said account shall be established at the bank wherein all trust monies are deposited. If this request is approved by Escrow.com, a one-time nonrefundable advance service charge of $100.00 AUD will be charged to the party to whom the interest is due and payable.
17. Unclaimed Funds
To the extent permitted by law, Buyers or Sellers (or Brokers when applicable) registered with Escrow.com, Escrow Funds held on deposit for longer than twelve (12) months may be charged an annual maintenance fee of fifty dollars ($50 AUD) (the “Maintenance Fee”), beginning with the last day of the twelfth month. Thereafter, the Maintenance Fee shall be charged on the last day of the twenty-fourth month, and finally on the last day of the thirty-sixth month.
18. Communication Between Parties
Unless otherwise agreed upon by all parties, all communication from Escrow.com to Buyer and Seller (and Broker when applicable) may be by email to the last address provided in the user profile. Buyer and Seller agree to use the Escrow.com site to verify the accuracy of all email communications from Escrow.com. In accordance with California Civil Code Section 1633.15, an electronic record shall be deemed to be sent when the information is properly addressed or directed to its intended recipient, and either: (1) enters an information processing system outside the control of the sender; or (2) enters a region of an information processing system that is under the control of the recipient. If a party is unable to use the Escrow.com site after the Transaction is created and the terms agreed on, a party may contact Escrow.com by telephone at 1300ESCROW (1300 372 769) during the hours of 8:00 a.m. to 4:00 p.m., AEST, to make arrangements for alternative methods of signature and acknowledgment. Buyer, Seller, (Broker when applicable), and Escrow.com shall only be required to agree to employ alternative communication methods, which are reasonable accommodations under the circumstances of the Transaction.
19. Our Rights; Disputes and Bankruptcy
If we believe in our sole, good faith opinion that the Transaction violates the terms of these General Escrow Instructions, or the Transaction violates or is likely to violate any applicable law, rule or regulation, then we may terminate the Transaction and seek court-ordered protection of the Escrow Funds in a court of competent jurisdiction by any court-ordered means, including but not limited to, an impound account and/or institution of a receiver.
If any dispute arises between the Buyer and Seller (and Broker when applicable) and such dispute is not resolved within a reasonable time, or if any conflicting demand shall be made upon Escrow.com, Escrow.com shall not be required to take any action until such time as Escrow.com receives written instructions signed by all parties. Escrow.com may take such action including but not limited to the institution of an arbitration proceeding or the filing of a judicial action as Escrow.com, in its sole discretion, elects to do. If Escrow.com is compelled to initiate arbitration and/or judicial proceedings to enforce the terms of these General Escrow Instructions including but not limited to any action to collect unpaid fees and/or enforce judgments in any jurisdiction Escrow.com will be entitled to reimbursement of attorney fees and costs incurred.
Should a Buyer or Seller file for bankruptcy protection while either party has an escrow open with Escrow.com, or while Escrow.com holds title to a domain name or any other property or ongoing service which is the subject of an escrow, Escrow.com reserves the right to cancel such escrow and return the property to the Seller with no further instruction required from the parties.
21. Services Not Included
The Buyer and Seller (and Broker when applicable) understand that the above escrow services DO NOT include any representation of warranty, either expressed or implied by Escrow.com, and that Escrow.com assumes no responsibility for the legality of the transaction, condition of the ownership, sufficiency of instruments conveying ownership, or agreements therefore. Payment of sales tax, utilities, future performances of Buyer and Seller (and Broker when applicable), transfer of any insurance policies or warranties, legality of the transaction or legal effect thereof or any other matters related to merchandise or this escrow NOT specifically included herein shall be considered outside of escrow and neither Escrow.com nor any of the Escrow.com affiliates shall have any further responsibility and/or liability for same.
22. Entire Agreement
In case of conflict between any of the terms of these General Escrow Instructions and our Terms of Using the Escrow Platform, or any of the agreements and any other agreements between any of the parties to a transaction, these General Escrow Instructions shall control. Any agreement between Buyer and Seller (and Broker when applicable) that is not reflected in either the Transaction Escrow Instructions, or these General Escrow Instructions, in no way bind Escrow.com or any of the Escrow.com affiliates. By submission below, Buyer and Seller (and Broker when applicable) agree to be bound by the terms of these General Escrow Instructions.
23. Governing Law; Venue
This Agreement will be construed in accordance with and governed exclusively by the laws of the State of New South Wales, Australia applicable to agreements made among Australian residents and to be performed wholly within such jurisdiction, regardless of such parties' actual domiciles. All parties submit to personal jurisdiction in Australia, and venue in the New South Wales. The aforementioned choice of venue is intended by the parties to be mandatory and not permissive in nature. Each party hereby waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to jurisdiction or venue with respect to any proceeding brought in accordance with these General Escrow Instructions.
24. Severability; Headings
If any provision herein is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way. Headings are for reference purposes only and in no way define, limit, construe or describe the cope or extent of such section.
25. Force Majeure
If performance hereunder is interfered with by any condition beyond a party's reasonable control, the affected party will be excused from such performance to the extent of such condition.
These General Escrow Instructions may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument. The parties may execute these General Escrow Instructions and forward an executed counterpart signature to the other party by electronic signature or fax and the party receiving such executed counterpart by electronic or faxed signature shall be authorized to attach it hereto as a legal and valid signature of such executing party, including electronic or fax signatures. However, if these General Escrow Instructions are executed in counterparts no signatory hereto shall be bound until all parties have duly executed a counterpart of these General Escrow Instructions. The parties hereto are authorized to treat an electronic or a faxed counterpart signature as a duplicate original signature for any and all purposes.
End of General Escrow Instructions (Australia).
Revised December 12, 2018.