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 (account), 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.
1.5 You must use the Services in accordance with these Terms and all applicable laws, rules and regulations including, without limitation, copyright laws.
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 ID verification
3.1 Before we can approve your registration and open your account, you must provide us with information including your full name, date of birth and residential address, and your contact details including your email address and mobile telephone number. Based on your initial and ongoing usage of the system, in order to comply with anti-money laundering laws we may require the following documents ( ID Documents ):
- (1) a valid driver's licence;
- (2) a valid passport;
- (3) a valid Medicare card; and/or
- (4) any other document we determine from time to time.
3.2 We will use your ID Documents to verify your identity and to perform background checks. You consent to us using an independent third party to verify your identity.
4 Password and security
4.1 When you open an account you must select a username and password ( Login Details ). Your Login Details will enable you to access your 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 account. This includes signing out of your 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 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 and sell gold with us, 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, we are not acting as agent for either you or SendGold Vault in relation to your contract with SendGold Vault.
6.2 We earn 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. SendGold Vault's prices for buying and selling gold are based on its cost of gold in international wholesale gold markets plus our margin which, under normal conditions is 1.00%. This margin may vary over time due to market conditions but under no conditions will it exceed 2.00%. SendGold Vault's gold prices including our margin is referred to as the SendGold Bid or Offer Price (SBOP).
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 Vault. SendGold Vault will then exchange your funds for gold at the SBOP and your buy order will be processed.
6.4 You may buy gold by entering the amount you agree to buy in your local currency using the Services and transferring those funds from a personal bank account held in your name at a bank in your country of residence. We may add additional payment types from time to time in accordance with clause 1.3. If you are a registered SendGold customer you can also buy gold by transferring funds directly to the SendGold Vault bank account via Electronic Funds Transfer (EFT) and including your SendGold Customer Account Number in the funds transfer reference field. Funds received by SendGold Vault in this manner are treated as firm gold purchase orders by you and are processed subject to the provisions contained in this agreement. As with all banking services it is up to you to ensure that funds sent by EFT are sent to the correct SendGold Vault bank account as specified on the SendGold website. Since we have no control over EFT transfers sent to the wrong bank account in error we accept no liability whatsoever for transfers that did not contain the correct SendGold Vault bank account details.
6.5 Any money received from you will be deposited into a bank account 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 an EFT to the SendGold Vault bank account;
- (c) pay our fees;
- (d) meet any other liability that you owe to us or SendGold Vault;
- (e) pay your share of bank fees and charges payable to the bank from the Trust Account;
- (f) be repaid to you;
- (2) your money cannot be used to pay for the liabilities of Mobile Assets or SendGold Vault which are unrelated to your 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.
6.6 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 transaction is completed and the gold is yours.
6.7 SendGold Vault buys 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.
6.8 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 by our system. This includes the time between placing your buy order and the time that the transaction is completed under clause 6.
6.9 You understand that you will not be able to buy gold with a value in excess of AUD4,999.99 (four thousand nine hundred and ninety-nine Australian dollars and ninety-nine cents) or equivalent amount in your local currency in a single transaction.
6.10 You can sell gold back to SendGold Vault at any time. Sell transactions are completed at the time of your instructions using the SendGold app or website.
6.11 You may only receive the proceeds of a transaction (minus our transaction fee) to sell gold that is processed by SendGold Vault to a bank account held in your name in your country of residence.
6.12 You understand that you will not be able to sell gold with a value in excess of AUD4,999.99 (four thousand nine hundred and ninety-nine Australian dollars and ninety-nine cents) or equivalent amount in your local currency in a single transaction .
6.13 You understand that you may not be able to sell gold with a value less of than AUD30.00 (thirty Australian dollars) or equivalent amount in your local currency, plus any third party bank fees, in a single transaction.
6.14 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 account.
6.15 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 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 account will reflect the cancellation of the transaction.
6.16 You understand that you will not be able to send gold with a value in excess of AUD4,999.99 (four thousand nine hundred and ninety-nine Australian dollars and ninety-nine cents) or equivalent amount in your local currency in a single transaction.
Transaction Volume Restrictions
6.17 You understand that your Transaction Volume (as defined in clause 6.17 below) must not exceed AUD99,999.99 (ninety-nine thousand nine hundred and ninety-nine Australian dollars and ninety-nine cents) or equivalent amount in your local currency within a 30 day period.
6.18 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 ).
6.19 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 account at any point in time, in order to comply with anti-money laundering laws (and in any case we may suspend your account or any purported transaction in order to comply with anti-money laundering laws and our anti-money laundering policies).
Maximum Account Balance Restrictions
6.20 You understand that the maximum amount of gold in your account at any point in time must not exceed AUD499,999.99 (four hundred and ninety-nine thousand nine hundred and ninety-nine Australian dollars and ninety-nine cents) or equivalent amount in your local currency.
7.1 We charge transaction fees for buy and sell transactions. SendGold Vault charges transaction fees for send transactions in units of G (see clause 8.1 below). The fees are set out in the Fee Schedule located on our website or app. We may change the fees from time to time in accordance with clause 1.3.
7.2 All fees and other consideration provided under these Terms are inclusive of Australian goods and services tax (GST), which is currently 10%.
7.3 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 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 Rather than coming through our platform, you may access the Services through the platform of one of our distribution affiliates ( Distributor ).
10.2 If you access the Services through the platform of a Distributor:
- (1) you will be bound by these Terms and the terms of our Distributor ( Distributor Terms ). You should contact the Distributor for a copy of the Distributor Terms.
10.3 If you access the Services through the platform of a Distributor, to the extent of any inconsistency between these Terms and the Distributor Terms, these Terms will apply to you except:
- (a) the fees and charges of the Distributor Terms will apply to you to access the Services; and
- (b) the Distributor Terms will apply to the arrangements for buying gold through the platform of the Distributor.
10.4 If you access the Services through the platform of a Distributor for the purposes of buying gold, the purchase money that is paid by the Distributor to SendGold Vault to buy gold for you:
- (1) will not be held on trust for you (as stated in clause 6.5);
- (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.
10.5 If you access the Services through the platform 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.
10.6 If you become our customer and buy gold directly through our platform (rather than through our Distributor’s platform), 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 storage and insurance for your gold for as long as you remain our customer.
11.3 You 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 account balance and other information specific to your 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 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 suffered directly or indirectly whether under contract, negligence or other tort, equity or otherwise arising under or in connection with the Services or these Terms.
14.2 You are responsible for your use of the Services including, without limitation, the use of any information provided through the Services.
14.3 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.
14.4 Subject to any non-excludable conditions, we exclude all warranties or conditions in relation to the Services implied by law. We do not give any warranty that the Services will process, transmit, or display information in an accurate, complete, consistent or timely manner.
14.5 In no event will we (including our directors, officers, employees, agents, contractors or related companies) be liable to you for any indirect or consequential loss, loss of pro?ts, loss of data, or loss of employment or business opportunities.
14.6 You accept that use of the Services does not create any contract of sale between you and us. If you enter into a buy or sell transaction, any contract of sale is between you and SendGold Vault. Similarly, any bailment arrangement is between you and SendGold Vault.
14.7 If SendGold Vault breaches any obligation to you, you are responsible for enforcing any rights that you may have against SendGold Vault.
14.8 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.
14.9 We hold the protections in this clause 14 on trust for the benefit of our directors, officers, employees, agents, contractors and related companies.
15 Account suspension, termination or cancellation
15.1 We may immediately suspend, terminate or cancel your 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 account is being used for an unlawful purpose or in a fraudulent, misleading, deceptive, inappropriate or unlawful manner; or
- (3) you are otherwise in breach of any of these Terms.
15.2 We may, at our discretion, terminate this agreement by giving you at least 14 days' written or electronic notice.
15.3 You may cancel your account at any time by selling or sending the balance of your gold in your account in accordance with these Terms and by contacting us at firstname.lastname@example.org.
15.4 If any transaction is pending at the time your account is suspended, terminated or cancelled, the transaction will be cancelled and/or refunded as appropriate.
15.5 If your account is suspended, terminated or cancelled:
- (1) you remain liable for any amounts owing to us; and
- (2) unless otherwise required by law, we will at your option refund the amount you have in gold at the SBOP or allow you to send the gold to another registered SendGold customer.
15.6 If a technical problem occurs, we may temporarily suspend access to your account until the problem is solved.
16 Death or incapacity
16.1 If you die or become incapacitated, we will take instructions in respect of your account from your legal personal representative (LPR), subject to your LPR providing us sufficient proof of their authority to act on your behalf.
17.1 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.
17.2 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.
17.3 We may assign the agreement embodied in these Terms without your prior consent. You may not assign this agreement.
17.4 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.
17.5 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.
17.6 Any dispute with SendGold Vault should be directed to SendGold Vault. We are in no way responsible in relation to any such dispute.
17.7 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.