Effective Date: [1 May 2020]
1.1 This agreement sets out the terms and conditions ( Terms ) of use of your customer account with Mobile Assets Pty Ltd ACN 615 060 252 ( Mobile Assets ), a company based in Sydney, Australia. When this agreement refers to "you" or "your" it means the person who activates, registers, or uses the customer account with Mobile Assets, and when it refers to "we", "us" or "our", it means Mobile Assets.
1.2 Your access to and use of our website, app and any services we provide to you (together, the Services ) is governed by these Terms. By using the Services, you agree to be bound by these Terms.
1.3 We may change all or part of these Terms at any time without prior notice to you. If we do, the new Terms will be posted on our website or made available through the app. Your subsequent or continued use of the Services will constitute your acceptance of any changes. If you object to any changes to these Terms, you must stop using the Services.
1.4 You may only use the Services if, and you represent and warrant that:
(1) you are 18 years or older; and
- (2) you are a resident of one of the following countries (together, the Countries ):
Australia, Singapore, New Zealand, China, India, Jamaica, Hong Kong, Indonesia, Philippines, Vietnam, South Africa, United States of America, United Arab Emirates.
1.5 You must use the Services in accordance with these Terms and all applicable laws, rules and regulations including, without limitation, copyright laws.
1.6 Any information provided on our website and apps is general information only and does not take into account your objectives, financial situation or needs. Before deciding to purchase any gold offered over our Services, we recommend you seek independent advice and ensure you fully understand the risks involved and carefully consider your objectives, financial situation, needs, and investment experience. There are also risks associated with online trading including, but not limited to, hardware and/or software failures, and disruptions to communication systems and internet connectivity.
2 Using the Services
2.1 We grant you a limited, non-exclusive, non-transferable, revocable licence to use the Services to buy, sell and send gold for non-commercial purposes, subject to these Terms. The licence is effective until terminated by you or us. Your rights under these Terms will terminate if you fail to comply with any of these Terms. Upon termination of the licence, you must stop using the Services.
2.2 While we use reasonable endeavours to ensure that the Services are available continuously, we do not make any representations or warranties that your access will be uninterrupted, timely, secure or error-free. Your access to the Services may be suspended without notice in the case of system or network failure, maintenance or repair or any reason beyond our reasonable control.
2.3 Except as expressly provided otherwise in these Terms, we reserve the right to update, change or discontinue any feature of the Services at any time and without prior notice to you. We also reserve the right to withdraw any aspect of the Services.
2.4 You will not use the Services for any unlawful purpose or in a fraudulent, misleading, deceptive, inappropriate or unlawful manner, and we may immediately terminate your access to any of the Services if you do so.
3 Account establishment and ID verification
3.1 In order to use the Services you must register and open an account with SendGold (SendGold Account) on the website or app.
3.2 When you open a SendGold Account, you must either be:
(a) opening the account personally in your own name and on your own personal behalf; or
- (b) opening the account as the representative of a third party entity, in accordance with clause 3.3.
3.3 If you wish to open a SendGold Account (Third Party Account) as the representative (Authorised Representative) on behalf of a company, trust or partnership (Third Party Entity), you acknowledge and agree that:
(a) in all cases you must be duly authorised on behalf of the Third Party Entity duly registered and in good standing under applicable law, to open and operate the SendGold Account in accordance with all relevant terms and conditions, including without limitation these Terms;
(b) at the time of registering the Third Party Account, you must provide us with the corporate details, information and give the undertakings set out in the Third Party Account Form;
(c) in all cases you must from time to time and promptly upon request provide us such information we require in order to comply with all relevant laws and regulations, including without limitation our obligations under anti-money laundering laws (AML).
(d) the bank account you connect to the SendGold Account must be in the name of the Third Party Entity and can only be changed with our prior written approval;
(e) all gold in your SendGold Account is owned by the Third Party Entity and not you personally;
(f) you must notify before or as soon as possible after:
(i) there is any change to any of the information you have provided us, such as a change of name or address;
(ii) you cease for any reason to be an authorised representative of the Third Party Entity, including without limitation where you cease to be a director, trustee or partner of the Third Party Entity, as relevant;
(iii) the Third Party Entity is wound up, deregistered or becomes insolvent;
- (iv) any of the information you have provided becomes materially untrue.
- (g) you warrant that all information you provide us is true at the time it is provided.
3.4 In order to approve your registration and open your SendGold Account, you must provide us with information including your full name, date of birth, residential address and your contact details including your email address and mobile telephone number.
3.5 Based on your initial and ongoing usage of the system, you consent to us or our independent service provider using methods to try to verify your identity, including to enable us to comply with AML. To assist with this, we or our independent service provider may verify you as a Level 2 account holder including by:
(a) requiring certain documents such as a valid driver’s licence, passport or other document or information that assists us to identify you, such as a recent photograph (ID Documents);
- (b) using the ID Documents as part of normal identify verification processes, such as, without limitation, checking the veracity of the ID Documents, facial recognition reconciliation between the recent photograph and the ID Documents, extracting relevant metadata and screening against datasets for sanctions, AML and other regulatory compliance.
4 Password and security
4.1 When you open an SendGold Account you must select a username and password ( Login Details ). Your Login Details will enable you to access your SendGold Account and to provide us with instructions in relation to your account.
4.2 You authorise us to carry out all instructions given to us when your Login Details are used. We will not be liable to you for any loss or claim arising out of our relying on electronic instructions provided to us using your Login Details.
4.3 You are responsible for your Login Details and you must keep them secure and confidential. You must notify us immediately if you suspect that another person has obtained and used your Login Details without your authorisation. Until you notify us and we confirm receipt of that notice, we will not be liable to you for any loss or claim arising out of any unauthorised use of your Login Details.
4.4 If you lose or forget your Login Details, we will request personal identification information from you to retrieve or reset your Login Details.
4.5 You must exercise safe security practices when accessing and conducting transactions on your SendGold Account. This includes signing out of your SendGold Account after use and not allowing your browser to store your password. You must also maintain any security measures we recommend, for example virus scanning, downloading anti-spyware software and any similar measures to maintain the security of your SendGold Account.
5.1 Communications between you and us may be conducted by mail, telephone, online or by any other electronic means that we offer, and instructions that you give to us in any such manner is a valid instruction. You agree that all communications, including by telephone, may be recorded and kept by us as a record of your instructions.
5.2 You are responsible for the accuracy of your instructions. If you discover any errors in your instructions, you must notify us promptly. Once you notify us, we will use reasonable endeavours to correct the transaction. You understand that certain instructions, once sent, may be final and irrevocable so that it may not be possible to retrieve funds or gold sent in error. We will not be liable for any funds or gold sent in error as a result of your incorrect instructions.
6 Buying, selling and sending gold
6.1 When you buy, sell, send or otherwise acquire or hold gold through our Services ( Gold Transactions ), you enter into a legally binding contract with SendGold Vault Pty Ltd ACN 615 062 694 ( SendGold Vault ), our related company. You must ensure that you comply with your obligations to SendGold Vault and we will procure that SendGold Vault will comply with its obligations to you. To avoid doubt, Mobile Assets are not a party to the Gold Transactions or acting as agent for either you or SendGold Vault in relation to your contract with SendGold Vault.
6.2 Fees in respect of the Services and Gold Transactions are described in clause 7.
6.3 You can enter your order to buy gold from SendGold Vault using the Services 24 hours per day, 7 days per week, 365 days per year. When you initiate a buy order, the order is not processed until your funds have reached the Trust Account of SendGold Vaultas defined and described in clause 6.6. SendGold Vault will then exchange your funds for gold at the SBOP and your buy order will be processed as further described in clause 6.7.
6.4 You may buy gold by entering the amount you agree to buy using the Services and by the payment methods as advised in our website or app from time to time. Funds received by SendGold Vault from you via any of the payment methods listed on our website or apps are treated as firm gold purchase orders by you and are processed subject to the provisions contained in this Agreement.
6.5 As further described in clause 10, in addition to other payment methods, you may buy gold and associated services by redeeming valid, stored-value alphanumeric codes that have been made available by our Distributor (SendGold Vouchers).
6.6 As with all payment services, it is up to you to ensure that you transfer the correct amount of money to SendGold Vault. In circumstances where: (a) you transfer a different amount of money to the amount required for the amount of gold you have agreed to buy through the website or app, SendGold Vault will treat this payment as communicating your intention to vary your offer to buy gold so that the firm gold purchase order is for the amount that you have transferred; and (b) where you have not executed a buy order for gold through the website or app, where you transfer money to SendGold Vault it will be treated as your firm gold purchase order for the amount that you have transferred.
6.7 Any money received from you will be deposited into a bank account ( Trust Account ) by SendGold Vault, and will be held by SendGold Vault on trust for you on the following basis:
(1) your money can only be used to:
(a) buy gold for you under a buy order you have placed in the SendGold system;
(b) buy gold for you if you have previously registered with the Services and have sent funds to the Trust Account;
(c) pay our Fees;
(d) meet any other liability that you owe to us or SendGold Vault; or
- (e) pay your share of bank fees and charges payable to the bank from the Trust Account;
(2) your money cannot be used to pay for the liabilities of Mobile Assets or SendGold Vault which are unrelated to your SendGold Account or of any other SendGold customer;
(3) any interest earned on your money will be kept by SendGold Vault and can be used for its own purposes; and
- (4) SendGold Vault and Mobile Assets will not be liable for the insolvency, acts or omissions of the bank with which the Trust Account is held.
However, if you access the Services through a Distributor (as defined in clause 10), the arrangements for buying gold are subject to clause 10.
6.8 You understand that you will only obtain legal title to the gold that you buy once SendGold Vault has bought gold from, and settled on the same purchase with, its gold supplier in respect of your buy order. It is only at that point in time that the Gold Transaction is completed.
6.9 SendGold Vault will buy gold for you when the international gold markets are open which is from Monday at 9am to Saturday at 7am AEST. The market is also closed weekdays between 8am and 9am AEST.
6.10 You understand that you will carry the risk of any change in the price of gold from the time you initiate your buy order until the time you decide to sell and your sell order is processed. This includes the time between placing your buy order and the time that the transaction is completed under clause 6.7. To avoid doubt, gold prices quoted on the website or app are indicative only and the transaction price is the price that applies at the time the order is processed and completed.
6.11 You understand that you will not be able to buy gold from SendGold Vault with a Level 2 Transaction level (as identified on the SendGold app) without validly verifying your identity in accordance with clause 3.5.
6.12 You can choose to sell gold back to SendGold Vault via the website or app. Sell transactions are completed at the time of your instructions using the SendGold app or website.
6.13 You may only receive the proceeds of a Gold Transaction (to sell gold that is processed by SendGold Vault to a bank account held in your name in your country of residence. Your proceeds will be net of any Fees and other charges.
6.14 You understand that you will not be able to sell gold with a value: (a) of less of than AUD30.00 (thirty Australian dollars) at any time (including to avoid doubt where clause 16.5 applies), or (b) with a Level 2 Transaction value (as identified on the SendGold app) without validly verifying your identity in accordance with clause 3.5.
6.15 You can send gold to other registered SendGold customers. Send transactions are completed at the time of your instruction using the SendGold app or website. The amount of gold that you instruct us to send to the recipient at the time of your instructions will be recorded in their SendGold Account.
6.16 If the recipient is not a registered SendGold customer, they will receive an email with instructions on how to register with SendGold. Once the recipient registers with SendGold, their SendGold Account will record the amount of gold that you sent to them. If the recipient does not register within 25 days of the send transaction, the transaction is automatically cancelled and your SendGold Account will reflect the cancellation of the transaction.
6.17 You understand that you will not be able to send gold with a Level 2 Transaction level (as identified on the SendGold app), without validly verifying your identity in accordance with clause 3.5.
6.18 From time to time we may offer promotions where you have the opportunity to be rewarded with gold ( Gold Rewards ). The terms of such promotions will be made available to you, for example on the website or in the relevant application), and you must comply with them.
6.19 An example of a Gold Reward is where from time to time we offer gold rewards where you "refer a friend" who buys gold of a certain value through a hyperlink ( Referral Link ) we provide, though there is no undertaking or guarantee that we will offer any such promotions at all. For any such "refer a friend" promotions, unless stated otherwise in relevant terms they must meet the following criteria and conditions:
(a) the person referred ( Friend ) followed the Referral Link to the SendGold website or to the SendGold App and, at that time, registered with SendGold;
(b) the Friend is a first-time user of SendGold who has never created an SendGold Account before under any name;
(c) the Gold Reward will only apply one time in respect of the Friend, and where the Friend is sent multiple Referral Links, the valid link for the purposes of determining entitlement to the Gold Reward is the first link the Friend clicks on in accordance with paragraph (a);
(d) where it is a condition that the Friend buys gold: (i) SendGold Vault must receive cleared funds which are subsequently exchanged for gold bullion in their SendGold Account; (ii) the Friend must make the transaction within one monthof establishing a SendGold Account; (iii) transactions must not be cancelled, refunded, or be subject to a chargeback;
(e) SendGold reserves the right to reject a Friend referral for any reason;
(f) SendGold reserves the right to limit the number of Friends that can be referred in the terms of the promotion, and if no limit is specified, the maximum number of friends that any SendGold Account holder can refer is 100; and
- (g) SendGold Vault reserves the right to dishonour Gold Rewards for any reason in absolute discretion, including without limitation any referral that does not comply with SendGold policies and procedures or any applicable laws or where we consider that fraud or any form of manipulation of the promotion has occurred.
6.20 Except as otherwise provided in the relevant terms or this Agreement, Gold Rewards will not expire as long as you maintain an active SendGold Account.
6.21 From time to time, we may offer promotions where you have the opportunity to "find free gold" (" Found Gold"), including without limitation by using the Gold Rush augmented reality game service which may be accessible via the Gold Rush by SendGold mobile application (" Gold Rush** App**"). The terms of such Found Gold promotions will be made available to you, for example on the website or in the relevant application (such as the Gold Rush App), and you must comply with them.
6.22 If you validly acquire Found Gold participating in a promotion operated by us, such as the Gold Rush App, the relevant Found Gold will be credited to your SendGold Account. SendGold Vault reserves the right to dishonour Found Gold for any reason in our absolute discretion, including without limitation any referral we consider does not comply with SendGold policies and procedures or any applicable laws or where we consider that fraud or any form of manipulation of the promotion has occurred.
Transaction Volume Restrictions
6.23 You understand that if your Transaction Volume (as defined in clause 6.23 below) must not exceed the Level 1 Transaction level (as identified on the SendGold app) without validly verifying your identity in accordance with clause 3.5.
6.24 Transaction Volume means the aggregate sum of the value in Australian dollars or equivalent amount in your local currency of all sell, send and receive transactions, but excluding all buy transactions ( Transaction Volume ).
6.25 You understand that we may change transaction limits, from time to time, on the amount or value of gold that you may buy, sell or send and on the total value of gold you may hold in your SendGold Account at any point in time, in order to comply with anti-money laundering and other laws (and in any case we may suspend your SendGold Account or any purported transaction in order to comply with the relevant laws, including our anti-money laundering laws and our anti-money laundering policies).
Maximum Account Balance Restrictions
6.26 You understand that the maximum amount of gold in your SendGold Account at any point in time must not exceed the Level 1 Transaction level (as identified on the SendGold app), without validly verifying your identity in accordance with clause 3.5.
7.1 As further described in this clause and on the website and/or app, fees may apply to your use of the Services and on Gold Transactions.
7.2 SendGold Vault earns a margin on buy and sell transactions and this margin is included in the gold price that is quoted to you on our website or app. Prices for buying and selling gold are based on SendGold's cost of gold in international wholesale gold markets plus a margin which may vary over time due to market conditions but under no conditions exceeds 2.00%. The gold prices including the margin is referred to as the SendGold Bid or Offer Price ( SBOP ).
7.3 Transaction fees may also be charged for buy and sell transactions through the Services. The transaction fees are set out in the Fee Schedule located on our website or app, as updated from time to time. When you send gold, there may instead be a reasonable fee for such send transactions deducted in units of G (defined in clause 8.1).
7.4 Depending on the payment method you choose, the payment provider may levy processing charges. The amount of any such payment provider processing charges is disclosed at the time of the relevant Gold Transaction. If you use a SendGold Voucher, a processing fee as set out in the Fee Schedule located on our website or app, as updated from time to time, may apply.
7.5 Unless otherwise stated on our website or app, fees provided under these Terms are inclusive of Australian goods and services tax (GST), which is currently 10%.
7.6 If you access the Services through a Distributor (as defined in clause 10), the fees and other consideration under these Terms are subject to clause 10.
8 G and gold quality
8.1 The gold holdings in your SendGold Account are denominated in units referred to as G. One G is equal to 10 milligrams of pure gold. For example, G 1234.56 means 12,345.6 milligrams of pure gold.
8.2 We ensure that all gold that you buy with us is at least 99.95% pure and is provided by a refiner that is accredited by the London Bullion Markets Association.
9 Accounting and ownership records
9.1 We adhere to standard gold industry accounting practices, which means that we record your account balance based on 100% fine gold content. The fine gold content of a gold bar is its weight multiplied by its purity. For example, the fine gold content of a one-kilogram bar that is 99.99% pure is 999.9 grams.
9.2 All gold recorded in the SendGold system is physically audited by Bureau Veritas, a global inspection and certification service founded in 1828. The audit includes inspection of the vault facilities, verification of all bar counts and sizes, and random verification of bars for correct weights and serial numbers.
9.3 We keep the master copy of ownership records. Duplicates of our records are stored at two or more widely separated data storage sites.
10 Distribution affiliate – Different terms apply to you
10.1 We may authorise a distribution affiliate (Distributor) to provide certain services to you with respect to the Services, including:
(a) referring you to our Services potentially by linking from the platform of the Distributor; and/or
- (b) allowing you to acquire SendGold Vouchers from the Distributor or one of their partners as supplier.
10.2 If you access the Services through the referral of a Distributor:
(a) you will be bound by these Terms and the terms of our Distributor ( Distributor Terms ) and you should contact the Distributor for a copy of the Distributor Terms;
(b) to the extent of any inconsistency between these Terms and the Distributor Terms, these Terms will apply to you except:
(i) the fees and charges of the Distributor Terms will apply to you to access the Services from the referral of the Distributor; and
- (ii) the Distributor Terms will apply to the arrangements for buying gold through the platform of the Distributor.
10.3 If you access the Services from the referral of a Distributor or acquire SendGold Vouchers from the Distributor for the purposes of buying gold, the purchase money that is paid by the Distributor to SendGold Vault to buy gold for you or to be held on trust against the redemption of the SendGold Vouchers:
(1) will not be held on trust for you (as stated in clause 6.7);
(2) will be held on trust for the Distributor; and
- (3) is subject to the claims of the creditors of the Distributor under insolvency laws. This means that if the Distributor goes insolvent, SendGold Vault may have to sell the gold bought with that purchase money and pay the proceeds to the creditors of the insolvent Distributor. In that case, you may have a claim against the Distributor as an unsecured creditor. However, to the maximum extent permitted by law, you will not have any claim or rights of recovery against us.
10.4 If you access the Services through the referral of a Distributor, you should be aware that if you do not register as our customer within 90 days of the first buy order being made by the Distributor on your behalf, the transaction will be cancelled and the amount of the purchase money paid by the Distributor to SendGold Vault will be kept by SendGold Vault.
10.5 Where you use a SendGold Voucher to buy gold, you acknowledge and agree that (notwithstanding any terms in any agreement with or representations by any Distributor):
(1) the Distributor or their partner is the supplier of the SendGold Voucher and not us or SendGold Vault;
(2) the SendGold Voucher may only be used if your account is in good standing;
(3) the SendGold Voucher is only redeemable for gold and associated services and cannot be directly converted to cash or other value;
(4) the SendGold Voucher will expire on its expiry date, and any unused amount on the SendGold Voucher will expire on that date and will not be refunded or credited to your SendGold Account or otherwise;
(5) the SendGold Voucher is not reloadable with value or able to be resold by you or on your behalf;
- (6) all claims with respect to loss of damage to, or whole or partial failure of the SendGold Voucher to be redeemed for gold and associated services must be directed to the supplier and not to us or SendGold Vault, and to the fullest extent permitted by law, we and SendGold Vault (including our respective directors, officers, employees, agents, contractors and related companies) will not be liable to you for any liability, loss or cost su?ered directly or indirectly in connection with the SendGold Voucher.
10.6 If you become our customer and buy gold directly through our platform (rather than through a Distributor’s referral), then this clause 10 will not apply to buy orders placed directly through our platform.
11 Gold storage and bailment
11.1 You authorise SendGold Vault to arrange for the storage of your gold. SendGold Vault will enter into a storage agreement with one or more vault operators (a Vault Operator ).
11.2 Any storage agreement entered into with a Vault Operator provides that allocated gold will be specifically identified, and physically segregated at all times. SendGold Vault will pay the fees to cover the costs of insurance for your gold for as long as you remain our customer. From time to time there may other incidental charges such as storage.
11.3 You hereby authorise SendGold Vault to act as bailee on your behalf and to provide instructions to the Vault Operator in such capacity. This means that SendGold Vault will hold your gold for safekeeping with the Vault Operator, but you (as bailor) will retain legal title to the gold. SendGold Vault will remain bailee of your gold until such time you decide to sell or send your gold. When you send gold and the transaction is completed, SendGold Vault will become bailee on the recipient's behalf.
11.4 Our Vault Operator Brink's Global Services are responsible for the storage, insurance and safekeeping of your gold. Mobile Assets and SendGold Vault have no responsibility or liability relating to the gold storage by the Vault Operator.
12.1 We are committed to complying with our privacy obligations. All personal information we collect from you will be handled by us in compliance with the Privacy Act 1988 (Cth).
13 Intellectual property and confidentiality
13.1 Our Services are protected by intellectual property laws, and embody our valuable confidential information and that of our licensors. We and our licensors own all rights, title and interest in respect of the Services including all intellectual property rights. We reserve all rights other than those granted to you under these Terms. Except as permitted by non-excludable laws, you must not reverse engineer, decompile, disassemble, or extract any element of the Services or otherwise seek to discover any source code, algorithms, methods or techniques embodied in the Services. You must not modify, transfer, distribute, pledge, sublicense, rent, lease, or create derivative works based on the Services, including its user interfaces.
13.2 All information and material that we supply to you, excluding your SendGold Account balance and other information specific to your SendGold Account, constitutes part of our confidential information, except where such information or material is in the public domain through no fault of yours. You must not disclose any such confidential information for any purpose without our prior written consent or except as required by law, court order or any regulatory authority.
14.1 YOUR USE OF THE SENDGOLD APP AND SERVICES ARE AT YOUR OWN RISK. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, MOBILE ASSETS AND SENDGOLD VAULT EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MOBILE ASSETS AND SENDGOLD VAULT MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR -FREE BASIS, AND WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY CONTENT.
14.2 To the fullest extent permitted by law, we (including our directors, officers, employees, agents, contractors and related companies) will not be liable to you for any liability, loss or cost su?ered directly or indirectly whether under contract, negligence or other tort, equity or otherwise arising under or in connection with the Services or these Terms.
14.3 You are responsible for your use of the Services including, without limitation, the use of any information provided through the Services. We are not responsible for any errors that occur due to systems or infrastructure beyond our control, including your mobile device hardware, software (including compatibility) or any mobile or wi-fi network.
14.4 A "non-excludable condition" is a guarantee, condition or warranty which is provided under non-excludable laws, the exclusion of which from a contract would contravene any law or cause any part of these Terms to be void. Despite any other provision of these Terms, nothing in these Terms excludes, restricts or modi?es a non-excludable condition. Our liability to you for a non-excludable condition is limited (at our option) to:
(1) supplying the Services again; or
- (2) the payment of the cost of having the Services supplied again.
14.5 Subject to any non-excludable conditions, we exclude all warranties or conditions in relation to the Services implied by law.
14.6 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER US, NOR OUR RELATED ENTITIES, ASSOCIATES OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT (INCLUDING WITHOUT LIMITATION SENDGOLD VAULT) WILL BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, OR FROM THE USE OF OR INABILITY TO USE THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
14.7 IN NO EVENT WILL THE TOTAL LIABILITY OF MOBILE ASSETS, NOR OUR RELATED ENTITIES, ASSOCIATES OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED ONE DOLLAR ($1.00). THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN MOBILE ASSETS AND YOU.
14.8 You accept that use of the Services does not create any contract of sale between you and us. If you enter into a Gold Transaction, any contract of sale is between you and SendGold Vault. Similarly, any bailment arrangement is between you and SendGold Vault.
14.9 If SendGold Vault breaches any obligation to you, you are responsible for enforcing any rights that you may have against SendGold Vault.
14.10 In no event will we (including our directors, officers, employees, agents, contractors or related companies) be liable to you for any liability, loss or cost suffered directly or indirectly whether under contract, negligence or other tort, equity or otherwise arising under or in connection with any buy or sell transactions or bailment arrangements with SendGold Vault.
14.11 We hold the protections in this clause 14 on trust for the benefit of our directors, officers, employees, agents, contractors and related companies.
15. Conduct, General Prohibitions and Our Enforcement Rights
You agree that you are responsible for your own conduct while using the Services, and for any consequences thereof. By way of example, and not as a limitation, you agree that when using the Services and Content, you will not:
- 1.) violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
- 2.) trespass, or in any manner attempt to gain or gain access to any property or location where you do not have a right or permission to be;
- 3.) impersonate or misrepresent your affiliation with another person or entity;
- 4.) submit fake, falsified, misleading, or inappropriate data submissions, edits, or removals;
- 5.) use any unauthorized third-party software (e.g. bots, mods, hacks, and scripts) to modify or automate operation or attempt to circumvent any restriction in the Service including restrictions on your location. If you do, Mobile Assets has the power to suspend or terminate your access to some or all of the game and apply additional remedies as described in the section entitled "Effects of Termination" below;
- 6.) transmit any viruses, worms, defects, Trojan horses, or any items of a destructive nature;
- 7.) use, display, mirror, or frame the Services or any individual element within the Services, Mobile Assets' name, any Mobile Assets trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page, without Mobile Assets' express prior written consent;
- 8.) access, tamper with, or use non-public areas of the Services, Mobile Assets' computer systems, or the technical delivery systems of Mobile Assets' providers;
- 9.) attempt to probe, scan, or test the vulnerability of any Mobile Assets' system or network or breach any security or authentication measures;
- 10.) avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Mobile Assets or any of Mobile Assets' providers or any other third party (including another user) to protect the Services;
- 11.) attempt to access or search the Services or Content, or download Content from the Services through the use of any technology or means other than those provided by Mobile Assets or other generally available third-party web browsers (including, without limitation, automation software, bots, spiders, crawlers, data-mining tools, or hacks, tools, agents, engines, or devices of any kind);
- 12.) interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- 13.) take any action that imposes, or may impose, an unreasonable or disproportionately large load on the Services or Mobile Assets' infrastructure;
- 14.) use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in a manner not permitted by these Terms, including but not limited to (a) gathering Gold for sale outside the Gold Rush App, or (b) sell, resell, rent, or lease the App or your SendGold Account;
- 15.) violate any applicable law or regulation; or
- 16.) encourage or enable any other individual to do any of the foregoing.
Although we are not obligated to monitor access to or use of the Services, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. If we, at our sole discretion, consider any use of the Service to be objectionable or in violation of these Terms, we reserve the right, but are not obligated, to remove or disable any user's access to the Service. We have the right at our sole discretion to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to assist in the prosecution of users who violate the law.
16. Account suspension, termination or cancellation
16.1 We may immediately suspend, terminate or cancel your SendGold Account and refuse to provide the Services to you if:
(1) we are required to do so by order of a court or regulatory authority, or otherwise required by law;
(2) we suspect your SendGold Account is being used for an unlawful purpose or in a fraudulent, misleading, deceptive, inappropriate or unlawful manner;
(3) we become insolvent or wind up or decide to discontinue the Service for any reason ( Wind Up Event ); or
- (4) you are otherwise in breach of any of these Terms.
16.2 We may, at our discretion, terminate this agreement by giving you at least 14 days' written or electronic notice.
16.3 You may cancel your SendGold Account at any time by selling or sending the balance of your gold in your SendGold Account in accordance with these Terms and by contacting us at firstname.lastname@example.org.
16.4 If any transaction is pending at the time your SendGold Account is suspended, terminated or cancelled, the transaction will be cancelled and/or refunded as appropriate.
16.5 If your SendGold Account or this Agreement is suspended, terminated or cancelled:
(1) you remain liable for any amounts owing to us and we are entitled to set off such amounts against the value of any gold in your SendGold Account;
(2) unless otherwise required by law and subject to clause 6.13(a) and sub-clause (3), we will at your option buy the amount you have in gold at the SBOP or allow you to send the gold to another registered SendGold customer;
(3) unless otherwise required by law, where your SendGold Account is terminated or cancelled because of a Wind Up Event, subject to clause 6.13 we will buy the amount you have in gold at the SBOP;
(4) if because of clause 6.13(a) you are unable to sell the gold and you choose not to send the gold to another registered SendGold customer, at the end of 30 days you will forfeit the gold in your SendGold Account (i.e. where it is less than a value of AUD30.00);
(5) with respect to your agreement with SendGold Vault, you must cease to hold any gold with SendGold Vault within 30 days and that agreement shall automatically terminate on the earlier of the date that we buy back the gold in your SendGold Account, the gold is forfeited or you send the gold to another registered SendGold customer under this clause 16.15. If you fail to take any action within the 30 days, we shall buy back the gold at applicable rates and transfer the proceeds net of any amounts owing; and
- (6) to avoid doubt, at the end of this Agreement for any reason you are not entitled to receive the physical gold remaining in your SendGold Account, but instead it must be either sent, bought or forfeited as described above.
16.6 If a technical problem occurs, we may temporarily suspend access to your SendGold Account until the problem is solved.
17. Additional Terms for App Store Apps
If you accessed or downloaded the SendGold App from the Apple Store, then you agree to use the App only: (a) on a compatible and fully working Apple-branded product or device that runs iOS (Apple's proprietary operating system software); and (b) as permitted by the "Usage Rules" set forth in the Apple Store Terms of Service.
If you accessed or downloaded the SendGold App from any app store or distribution platform (like the Apple App Store or Google Play Store) (each, an " App Provider"), then you acknowledge and agree that:
(a)These Terms are concluded between you and Mobile Assets, and not with App Provider, and that, as between us and the App Provider, Mobile Assets is solely responsible for the SendGold App. App Provider has no obligation to furnish any maintenance and support services with respect to the SendGold App.
(b)In the event of any failure of the SendGold App to conform to any applicable warranty, you may notify App Provider, and App Provider will refund the purchase price for the SendGold App to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure of an App to conform to any warranty will be the sole responsibility of Mobile Assets. App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the SendGold App, including but not limited to: (i) product liability claims; (ii) any claim that the SendGold App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(c)In the event of any third-party claim that the App or your possession and use of the SendGold App infringes that third party's intellectual property rights, Mobile Assets will be solely responsible for the investigation, defence, settlement, and discharge of any such intellectual property infringement claim to the extent required by these Terms.
(d)App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the SendGold App, and that, upon your acceptance of the terms and conditions of these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the SendGold App against you as a third-party beneficiary thereof.
(e)You must also comply with all applicable third-party terms of service when using the SendGold App.
- (f)You agree to comply with all Australian laws and regulations to ensure that neither the SendGold App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. By using the SendGold App, you represent and warrant that: (i) you are not located in a country that is subject to a Government embargo, or that has been designated as a "terrorist supporting" country; and (ii) you are not listed on any list of prohibited or restricted parties.
18. Death or incapacity
If you die or become incapacitated, we will take instructions in respect of your SendGold Account from your legal personal representative ( LPR ), subject to your LPR providing us sufficient proof of their authority to act on your behalf.
19.1 These Terms constitute the entire agreement between you and us and supersede and extinguish all previous agreements, arrangements and understandings, whether written or oral, relating to its subject matter.
19.2 Mobile Assets and you acknowledge and agree that in entering into these Terms, each of us does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in these Terms.
19.3 We may assign the agreement embodied in these Terms without your prior consent. You may not assign this agreement.
19.4 No waiver of any term of this agreement will be deemed a further or continuing waiver of that term or any other term. No failure to assert any right under this agreement will constitute a waiver of that right.
19.5 If any provision of this agreement is deemed invalid by a court of competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions of the agreement, which will remain in full force and effect.
19.6 Any dispute with SendGold Vault should be directed to SendGold Vault. We are in no way responsible in relation to any such dispute.
19.7 The Terms constituting this agreement are governed by the law of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales and the Commonwealth of Australia.