Interpretation
1. In these Terms of Business unless context otherwise requires:
Account – means an account held by CITY GOLD BULLION on your behalf for the purpose of facilitating any transaction, Product or Service, including storing, holding or trading on your behalf.
ACL – means the Australian Consumer Law Schedule of the Competition and Consumer Act.
Authorised Agent – means any person you have properly authorised to give trading or funding instructions to us on your behalf in connection with your account including an Additional Operating Authority.
Available Funds – means cleared funds, including funds which have been made available by means of direct debit.
Business day – means a day in which banks and foreign exchange markets are open for business in Sydney, Australia.
Consumer – is as defined in the ACL and in determining if you are a consumer, the determination is made if you are a consumer under the Contract.
Contract – means the contract evidenced by and created when we issue a Contract Confirmation and/or invoice under clauses 9 and 10 of these Terms.
Product – means precious metals and any other products sold or purchased by us from time to time.
Services – means any services provided by CITY GOLD BULLION, including holding or trading, assaying, refining, storage, insurance and delivery.
Terms - means these Terms of Business.
General
2. These Terms apply to all dealings between the client (collectively referred to as “you” or “your”) and or City Gold Bullion (collectively referred to as “CITY GOLD BULLION”, “we”, “our” and “us”) regardless of the facility/device/ mechanism used to facilitate the dealings.
3. We will not be responsible for any loss or liability incurred by you arising or in any way connected with any dealing or transaction with us, contemplated or actual, except to the extent of liability imposed by the ACL.
4. Any information provided by us including information posted on our website is indicative and for information only. We do not warrant the accuracy of that information and you should not rely on that information.
5. These Terms replace any agreement that currently exists between you and us and the obligations entered into under the prior arrangement will be treated as if they were entered into pursuant to these Terms.
6. You acknowledge that by placing an order with CITY GOLD BULLION or creating an Account you evidence your acceptance of these Terms.
Your Contract with Us
7. Before we can contract with you, you must establish an Account with us. You cannot submit an order until your Account has been established. We will notify you in writing once your Account has been established.
8. You may submit an offer to buy or sell or acquire a Product or Service from us from time to time however we are not bound to accept any offer/order/inquiry received from you.
9. You enter into a contract with us when we send you our Contract Confirmation and/or tax invoice accepting your offer/order, whether placed by phone, email or through our website.
10. The payment terms of our contract will be set out in the Contract Confirmation and/ or tax invoice we send you, at the price contained in that Contract Confirmation, and incorporating these Terms.
11. When we send you our Contract Confirmation and/or tax invoice, you are bound by those contract terms.
12. Product will be made available to you at the time specified in the Contract Confirmation or Invoice based upon availability at the time.
13. Product sold is subject to a weight tolerance of +/- 5% to be applied at the Contract price, at the time of delivery.
Your Commitments
14. You warrant that all information provided by you in your Account application is complete, accurate and correct and is not misleading. We may rely on that information unless and until we receive written notice of any change signed by you. Any such varied information will be covered by this warranty.
15. You warrant that you have full capacity, power and are otherwise properly authorised to enter into obligations and exercise rights pursuant to these Terms. If you are the trustee of a trust or a superannuation fund you further warrant that any transaction is for the benefit of the trust or superannuation fund and that you have the right to be fully indemnified out of trust assets or the superannuation fund for obligations incurred in any transaction.
16. You represent that at all times during your dealings with us you will be in a position to meet all your commitments and obligations arising from these dealings.
17. We do not give personalised advice or make personalised recommendations. You warrant that before transacting with us you have assessed and evaluated the proposed transaction in the light of your personal financial situation, investment objectives and particular needs.
18. The type, nature, extent, service provider or platform of any service, Product or facility available to you may change from time to time. In such circumstances, where we consider it reasonably necessary, CITY GOLD BULLION will provide you with notice of the change.
19. CITY GOLD BULLION is not responsible for the reliability, completeness or accuracy of any third party information it provides or makes available to you.
20. CITY GOLD BULLION is entitled to rely on instructions from any Authorised Agent that you appoint until it has actual notice in writing from you that such appointment has been revoked.
21. CITY GOLD BULLION has the right to correct any trading or administrative errors including but not limited to reversing or cancelling a Contract Confirmation without your consent and without liability or recourse against CITY GOLD BULLION.
22. CITY GOLD BULLION’s operating policy is as follows: CITY GOLD BULLION endeavors to deal fairly and in due turn with all orders to buy and sell Product regardless of your instructions, source or method of delivery. It is the practice of CITY GOLD BULLION to deal with all orders in the sequence in which they are received and otherwise as expeditiously as practicable but no Product will be released or dispatched earlier than receipt of notification by CITY GOLD BULLION from its bank of the purchase monies becoming Available Funds.
23. You agree and warrant that you will notify CITY GOLD BULLION immediately of any errors or omissions in our records with respect to your details or Account, all changes must be received in writing or via email.
24. CITY GOLD BULLION reserves the right to suspend trading, or immediate fulfillment of orders in times of high market volatility or fast moving market conditions.
25. Prices published by CITY GOLD BULLION are indicative only and subject to these Terms, the pricing of your order is fixed (based on a premium over the spot price of the metals) at the time of Contract Confirmation and/or tax invoice.
26. All prices quoted exclude storage, delivery and insurance charges unless expressly included. You acknowledge that you must pay for upon receipt of Invoice and take delivery or arrange for storage of the Product sold to you within 14 days of receipt of advice that the Product is available for collection after which the Product will be stored at your risk and expense.
27. When we agree to arrange delivery, transport, insurance or storage of Product on your behalf, we do so as your agent and to the maximum extent permitted by law, without liability.
28. Title in any Product passes to you when we receive Available Funds. Risk in any Product passes to you when you take possession of the Product. You assume all risk and liability for loss, damage, injury to persons or your property, or property belonging to a third person, arising out of the use, possession of or dealings with any of the Product sold by us, (including changes in your financial situation), unless recoverable from us on the failure of any statutory guarantee under the ACL.
29. Any period or date for delivery of Product or provision of Services stated by us is an estimate only and not a contractual commitment.
30. We will use our reasonable endeavors to meet any estimated dates for delivery of the Product but will not be liable for any loss or damage suffered by you or any third party for failure to meet any estimated date.
31. If we cannot complete the Services by any estimated date, we will complete the Services within a reasonable time.
32. CITY GOLD BULLION, at its sole discretion, may introduce or amend storage fees or storage conditions. CITY GOLD BULLION will endeavor to notify you of such an amendment.
33. These Terms are governed by the laws of South Australia and Queensland and the Courts of South Australia and Queensland have non-exclusive jurisdiction in relation to any disputes to which these Terms apply.
Your Instructions
34. All instructions are subject to the law, and these Terms.
35. It is your responsibility to ensure that all instructions given to CITY GOLD BULLION (whether by you or an Authorised Agent) are in accordance with the law, and these Terms.
36. If we consider it is in our reasonable interest to do so and to the extent permitted by law, we may decline to act on your behalf in relations to any particular dealings, without explanation or advance notice. Additionally we may decline to act on your behalf where we:
a) believe the transaction would result in no change of beneficial ownership;
b) believe the instructions are ambiguous, incomplete or unclear; or
c) suspend your account due to unpaid or overdue accounts.
37. If more than one person constitutes the client, then they are jointly and severally bound by these Terms and we are entitled to act upon the instructions of any one of those persons unless specified otherwise on the account application form.
Payment and Settlement Obligations and Default
38. You must pay CITY GOLD BULLION:
a) The full purchase price for any Product, commission, fees and charges in connection with your Account and our services at the rates and currency notified by us in writing from time to time;
b) Any fees, taxes or other charges levied by a third party on CITY GOLD BULLION in connection with your Contract, order or Account; and
c) Interest on any unpaid amounts at the Reserve Bank of Australia Cash Rate plus 4% per annum from the day the amount falls due until the date the amount is paid.
39. You are required to provide Available Funds to pay for all costs in connection with a purchase of Product, by settlement date or at any earlier time as required by CITY GOLD BULLION.
40. In the event of any default by you in the fulfillment of any of your obligations to us;
a) You will pay us a $AUD default fee; and
b) You will compensate and indemnify us (including our subsidiaries, and their respective directors, employees, contractors and agents) in respect of any and all losses, claims and expenses incurred by us as a result of your default; and
c) Without limiting the generality of (b) above, we may exit all and any positions taken by us in relation to your Contract, including any physical contracts, in which case you will indemnify us in respect of any costs and losses we may incur as a result of exiting any position; and
d) Without limiting the generality of (b) above, if you default in payment of an invoice (which includes termination or cancellation of an order by you) you will pay us the difference between the price invoiced to you for any Product, and the current buyback price (as determined by us) of the Product as at the date your default is processed; and
e) You authorise us to debit your Account (including your credit card account) in respect of any such losses; and
f) We may refuse to accept or fulfil any further orders from you for Product or our Services.
Authorities
41. Clauses 34 to 40 of these Terms will continue in full force and effect after any Account or Contract expires or is terminated.
42. In connection with the establishment of these arrangements and the collection of overdue payments, you authorise us to supply relevant information contained in your application form and other records to a credit reporting agency and to obtain credit reports about you from any credit reporting agency.
43. You authorise us to record any telephone conversation(s) between you and us, with or without an audible tone warning device.
44. You agree to pay our normal commission fees and to reimburse us for any extraneous costs, such as GST, for transactions made on your behalf.
45. You authorise us to appropriate any credits, payments and other receipts from you or from your Account in such manner and order as we think fit against any amounts due or owing by you to us.
Liability
46. Except as these Terms state, or as contained in any express warranty provided in relation to the Product or our Services, the Contract does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Product or our Services or any contractual remedy for their failure.
47. If you are a consumer nothing in these Terms restricts, limits or modifies your rights or remedies against us for failure of a statutory guarantee under the ACL.
48. If you on-supply the Product to a consumer, subject to clause 50:
i) if the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of our liability to you howsoever arising under or in connection with the sale, use of, trading, storage or any other dealing with the Product or our Services by you or any third party;
ii) otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of our liability to you howsoever arising under or in connection with the sale, use of, trading, storage or any other dealing with the Product or our Services by you or any third party
49. If you use up or transform the Product in the course of trade, and when you supply your own goods to a consumer the Product are no longer “goods” as defined in the ACL then we will not be liable to you or the consumer in any way arising under or in connection with the sale, use of, storage or any other dealings with the goods or Product by you or any third party.
50. If clauses 47, 48 or 49 do not apply, then other than as stated in these Terms or any written warranty statement we are not liable to you in any way arising under or in connection with the sale, use of, storage or any other dealings with the Product or Services by you or any third party.
51. You acknowledge that:
a) you have not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by us in relation to the Product or services or their use or application.
b) you have not made known, either expressly or by implication, to us any purpose for which you require the goods or services and you have the sole responsibility of satisfying itself that the Product or services are suitable for your use.
52. You agree to release CITY GOLD BULLION, its subsidiaries, and their respective directors, employees, contractors and agents from any obligation or liability with respect to any loss, whether direct or consequential, that you suffer or incur in connection with your business dealings with CITY GOLD BULLION except to the extent of liability imposed by the ACL.
53. CITY GOLD BULLION shall not be liable for any loss arising in connection with the operation (including delays and errors) breakdowns, disruption to or malfunction of any system, device or service except to the extent of liability imposed by the ACL.
54. Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
Variation
55. We reserve the right to vary these Terms. Any variation of these Terms shall apply to all dealings between you and us from the day on which the variation takes effect.
Notice
56. Any notice, request, demand or other communication may be sent to your postal or electronic address last notified to us and the notice, request, demand or other communication shall be taken to have been received by you if sent by prepaid letter on the Business Day following posting and if sent by facsimile or other electronic means.
Termination
57. Subject to the completion of any outstanding obligations, these arrangements may be terminated by either party giving not less than seven days written notice to the other party.
Assignment
58. You must not assign any Agreement without prior written consent of CITY GOLD BULLION. CITY GOLD BULLION may assign any Agreement without notice to you.
Severance
59. If the whole or any part of a provision of any Agreement is or shall become void, unenforceable or illegal, the remainder of any Agreement shall have full force and effect. The parties agree that in such a case, the provision held void unenforceable or illegal shall be replaced by such provision that in its commercial and legal context is most similar to the provision held void, unenforceable or illegal.
Privacy
60. CITY GOLD BULLION and entities controlled by it are subject to the National Privacy Principles in the Privacy Act 1988 (Cth).
a) Collection of Personal Information
We collect personal information (including your full name, address and contact details) so that we may administer our relationship with you, provide you with Product and services you request, as well as information about CITY GOLD BULLION’s Products and Services. Where it is necessary to do so, we also collect information on individuals such as company directors and officers (where the company is our client), as well as client’s agents and persons dealing with us on a “one off” basis. If you provide us with incomplete or inaccurate information, we may not be able to provide you with the Product or services you are seeking.
b) Disclosure of Personal Information
We may communicate personal information to:
- External Product providers.
- Organisations to whom we outsource certain functions.
61. In all circumstances where contractors and agents may become aware of personal information, confidentiality arrangements apply. Personal information may only be used by our agents and contractors for our purposes. We may be allowed or obliged to disclose information by law.
Storage
62. The customer warrants they are the owner of the goods held on storage.
63. The customer warrants that the goods held on storage are as described in the schedule to these terms of storage-receipt.
64. The customer warrants that the goods held on storage are not the subject of any charge to a third party unless such change is specifically notified in writing to City Gold Bullion.
65. The customer will pay the stated monies payable for storage to City Gold Bullion annually in advance for each financial year.
66. The customer must give seven working days notice to City Gold Bullion for collection of the goods held on storage.
67. If the customer requires a third person to collect on their behalf prior written notification must be given to City Gold Bullion and the third party must provide identification satisfactory to City Gold Bullion.
68. The customer can only collect the goods held on storage during the standard hours of opening of City Gold Bullion.
69. If the customer dies when City Gold Bullion holds the goods on storage, City Gold Bullion will require to sight formal letters of administration or probate of the estate of the customer together with suitable identification of the administrator before the goods held on storage can be released to the administrator of the estate.
70. A relationship of bailor/bailee will be formed upon City Gold Bullion taking possession of the goods held in storage and such relationship will remain until the goods held in storage leave the possession of City Gold Bullion.
71. City Gold Bullion accepts all common law duties as bailee of the goods held in storage. No additional duties can be implied by the parties’ words or actions.
72. As bailee of the goods held on storage, City Gold Bullion will have the goods held on storage insured against loss. Should such loss eventuate City Gold Bullion will pay the monies recovered for the goods held in storage (less any monies outstanding to City Gold Bullion) to the customer. Such payment made will be in full and final satisfaction of all and any liability City Gold Bullion may have to the customer.
73. The customer acknowledges that any monies paid to City Gold Bullion by the insurer of City Gold Bullion for loss of goods held on storage will be limited by the insurance policy terms and that the basis of calculation of loss pursuant to the insurance will be the greater of the ‘London fix’ on the day of loss or the day the proof of loss document is submitted. The customer acknowledges City Gold Bullion will not be responsible for any other claim made by the customer or charges incurred by the customer over and above the monies paid by the insurer if a claim is made.
74. The customer agrees to act and to provide all information with ‘utmost good faith’ as City Gold Bullion may rely upon this information provided for the purposes of the said insurance cover provided. Should there be any failures by the insurer to make any payment pursuant to the policy of insurance because of inaccurate information provided by the customer then any liability of City Gold Bullion to the customer Is specifically excluded.
75. This written agreement sets out all the terms of the bailment agreement between the customer and City Gold Bullion. Any other oral representatives made by the parties will not form part of the agreement between the customer and City Gold Bullion.