TERMS OF SALE AND USE OF PERTH MINT GOLD TOKEN
Please read these Terms (as defined below) of the Perth Mint Gold Token (PMGT, as defined below) set out herein carefully. Note that this document contains provisions which affect Your legal rights.
It is mandatory for You to accept these terms in order to acquire and use PMGT. If You do not agree to these Terms, do not acquire PMGT from the Company or any other person authorized to transfer or sell PMGT to You.
By accessing and using the information contained on the Website of the Company or by acquiring or accepting a transfer of PMGT, You acknowledge that You have read these Terms and that You agree to be bound by them. If You do not agree to all of the terms and conditions as stated herein, You are not considered an authorised holder of PMGT or user of the Platform (as defined below) and You should not acquire or use any PMGT or use the Website or the Platform. The Company reserves the right to change, modify, add or remove any of these terms at any time for any reason. We suggest that You review these terms periodically for any changes. Such changes shall be effective immediately upon posting on the Website. The Company is under no obligation to notify You of any changes made to any of these terms at any time. You acknowledge that by accessing our Website or the Platform after we have posted changes to these terms, You are agreeing to such modified terms.
This document or any other document that it refers to, or that may be produced or signed or issued by the Company, is not intended to and does not constitute a prospectus or a product disclosure statement of any sort and does not constitute an offer or solicitation to sell or purchase any shares, securities, interests in managed investment scheme, derivative, or other units of any financial products in the company or affiliate. None of the information contained in this document are intended to form the basis for any investment decision.
The issuing, transfer or acquisition of PMGT shall not be construed a financial service. The acquisition of PMGT does not entitle the holder to any form of ordinary shares in the Company or affiliate, and the holder of any PMGT issued by the Company is not entitled to any form of dividend, whether guaranteed or not or other revenue right. Holders of PMGT are only entitled to the use of the Platform and certain services within the Platform in accordance with the terms set out herein.
No regulatory authority has authorised or approved this document and the Company has not taken any action in respect of obtaining such authorisation or approval under the laws and regulations of any jurisdiction.
To the extent permitted by law, the Company excludes all express or implied warranties (not including any consumer guarantee under Australian Consumer Law) and will not be liable for certain damages outlined in these Terms. Subject to specific clauses below, in no event will the aggregate liability of the Company arising out of or relating to these Terms or the use of PMGT exceed the amount You pay to the Company for PMGT.
TERMS OF THE PERTH MINT GOLD TOKEN (PMGT).
1.1 The following terms shall, for the purpose of these Terms, have the following meaning:
“AML/KYC checks” shall have the meaning set out in clause 12.1;
“Applicable Law(s)” means all laws, statutes, regulations, codes, ordinances, guidelines, notices, orders, permits, approvals of Australia;
“Asset-backed Token” means a token, certificate or other instrument backed by one or more precious metals, precious stones, or precious products that entities the holder to the precious metal, precious stone or precious product but excludes (a) securities or derivatives contracts (b) commodity contracts and (c) managed investment scheme contracts.
“Certificate” means a digital certificate, known as a “GoldPass Certificate” issued by The Perth Mint confirming the Gold held in a Perth Mint Account;
“Company” means Infinigold Operating Pty Ltd ACN 622 224 024, a subsidiary of Infinigold Pty Ltd ACN 619 726 608, a company limited by shares incorporated in Australia;
“Company Group” shall have the meaning set out in clause 11.2;
“Company Representatives” shall have the meaning set out in clause 11.2;
“Cryptocurrency(ies)” means a digital currency, also referred to as a token, in which encryption techniques are used to regulate the generation of units of the currency and to verify the transfer of the currency and which operates independently of the central bank of a country. Such digital currency is not legal tender issued by any central bank;
“Disruption Event” means (i) any event or occurrence that causes a disruption in the functionality of the Ethereum blockchain on which transactions related to PMGT are recorded, and such disruption has a material adverse effect on the processing time for blockchain transactions, or (ii) if there is any delay in contracts, production, marketing, other events beyond the control of the Company;
“Ethereum Address” means an address on the Ethereum blockchain that is to be linked to the GoldPass Account;
“Gold” means gold stored at The Perth Mint on behalf of the holder of a GoldPass Certificate;
“GoldPass Account” shall have the meaning set out in clause 5.1;
"GoldPass App" mean The Perth Mint's mobile gold investment app allowing users to buy, store and sell physical gold via digital certificates. More information can be accessed via The Perth Mint's website: https://www.perthmint.com/goldpass/.
“Indemnified Parties” shall have the meaning set out in clause 15.1;
"InfiniGold Custodians" means InfiniGold Custodians Pty Ltd ACN 622 220 517;
"KYC Partner" shall have the meaning set out in clause 12.1;
“Legal Person” shall have the meaning set out in clause 12.1.5;
“Personal Data” shall have the meaning set out in clause 11.1;
“Personal Information" means all information which is defined to be "personal information" under the Privacy Act 1988 (Cth), including information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not;
“Perth Mint Gold Token” or “PMGT” means the tokens to be issued by the Company to the Token Holders for the purpose as set out in clause 3;
“PMGT Partners” means companies that have been engaged by the Company, providing services that are related to the Services (but that are not part of the Company Group), including the operator of GoldPass, The Perth Mint, and exchanges that are offering a market place to buy and sell PMGT.
“Platform” means the system(s), applications, smart contracts and interfaces developed, owned, operated and deployed by for the Company for providing the Services;
“Redemption of PMGT” or “Redeeming of PMGT” shall have the meaning set out in clause 7;
“Risks” shall have the meaning set out in clause 9.1;
“Services” shall have the meaning set out in clause 3.1;
“Terms” means these Terms for the use of PMGT and rights and obligations associated with the PMGT, as well as the issuing by the Company of PMGT which are being offered on exchanges where end users may buy them;
“The Perth Mint” means Gold Corporation ABN 98 838 298 431, trading as “The Perth Mint”, a statutory authority of the government of Western Australia;
"Token" means the Perth Mint Gold Token;
“Token Holder” or "You" means and shall refer to any person or entity (whether incorporated or not) who acquires PMGT from the Company under these Terms, or through any exchanges recognised or permitted by the Company to trade PMGT, or any other person who had received or acquired the PMGT in the manner permitted under clause 7.1;
“Token Issue” or “Issuing of Tokens” means the issuing of the PMGT as contemplated in clause 2.1;
“Whitepaper” shall have the meaning set out in clause 2.2; and
“Website” means the website at https://www.pmgt.io.
1.2 In these Terms, unless the context requires otherwise:
(a) references to clauses and Annexures are to be construed as references to the clauses of, and annexures to these terms respectively;
(b) words importing the singular include the plural and vice versa, words importing a gender include every gender;
(c) references to a person shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons or any state or any agency thereof;
(d) headings are for convenience of reference only and shall not affect the interpretation of these Terms;
(e) other grammatical forms of defined words or expressions have corresponding meanings;
(f) references to "writing" or "written" include any communication sent by letter, facsimile transmission or email or any other form of communication capable of being read by the recipient;
(g) a reference to a document includes the document as modified from time to time and any document replacing it;
(h) general words shall not be given a restrictive meaning by reason of their being preceded or followed by words indicating a particular class or examples of acts, matters or things;
(i) wherever "include", "for example" or any form of those words or similar expressions is used, it must be construed as if it were followed by "(without being limited to)";
(j) if a period of time is specified and dates from a given day or the day of an act or event, it will be calculated exclusive of that day;
(k) references to times of the day are to local time in Sydney, Australia time unless otherwise stated and references to a day are to a period of 24 hours running from midnight to midnight;
(l) money amounts in the Terms, the Website and the App are stated in Australian currency unless otherwise specified;
(m) except where expressly provided to the contrary, references to statutory provisions shall be construed as references to those provisions as respectively amended, consolidated, extended or re-enacted from time to time and shall include the corresponding provisions of any earlier legislation (whether repealed or not) and any orders, regulations, instruments or other subordinate legislation made from time to time under the statute concerned; and
(n) For the purposes of these Terms, the meaning of “acquire” may include but is not limited to purchase or receipt by way of a gratuitous transfer or transfer in exchange for an adequate consideration.
2. SCOPE OF THE TERMS
2.1. These Terms shall govern the:
(a) Issuing of Tokens effected through the exchange of Certificates for PMGT; and
(b) The rights and obligations of a Token Holder, regardless of how the Token Holder had acquired the PMGT.
2.2. Additional information regarding PMGT, the Services, and the Company is available at https://pmgt.io/static/assets/pmgt_whitepaper.pdf (the “Whitepaper”). All descriptions in the Whitepaper are based on assumptions regarding the Company’s business and environment, as held by the Company on the date the Whitepaper was last updated and amended, as well as the Company’s intentions, views and positions as of such date. The Company’s assumptions, intentions, view and positions may change in view of future events. In the Whitepaper, certain descriptions of the Company are forward-looking statements and risks, uncertainties and future events or plans discussed in the Whitepaper may not occur as the Company expected, or at all. You agree not to rely on any forward-looking statements in the Whitepaper.
3. SALE OF AND SERVICES RELATING TO PMGT
3.1. PMGT will confer on the Token Holder certain rights in respect of the Certificate to which the PMGT relates, as set out under these Terms. These Terms, together with the GoldPass® Terms and Conditions, set out Your rights as a Token Holder.
3.2. Through the Platform, the Company will issue a PMGT in exchange for a Certificate, arrange for the custody of the Certificate for the Token Holder, allow the transfer of PMGT to other persons, allow the Certificate to be exchanged for PMGT (collectively, the “Services”).
3.3. A Token Holder shall only have the rights set out in these Terms, and for the avoidance of doubt, shall not have any other rights in relation to the Company. PMGT also does not represent or confer any ownership right or governance right or stake, share or security or equivalent right, or any right to receive any dividend, share in revenue or any form of voting right or participation right in the Company or with respect to the Platform. A Token Holder who has received PMGT through the Token Issue may sell or transfer his PMGT to any other person under clause 7.1 (but subject always to clause 22) who shall then be subject to these Terms.
3.4. A PMGT is a token that may be exchanged for a Certificate under these Terms, but is not and shall not be construed as any other form of digital currency, shares or security, derivatives, commodity, interests in a managed investment scheme, or any kind of financial instrument or product under Applicable Laws.
3.5. PMGT are not intended to be marketed, offered for sale, purchased, sold, or traded in any jurisdiction where they are prohibited by applicable laws or require further registration with any applicable governmental authorities.
3.6. The Company agrees to use reasonable endeavours to deliver the Services in accordance with Annexure 1.
4. CANCELLATION OF ISSUANCE OR REFUNDS
4.1. Your request for the Issuing of Tokens through the exchange of Your Certificates from the Company is final, and there are no refunds or cancellations except as provided in these Terms, including clause 7 (which provides for the redemption of Certificates by exchanging PMGT for the Certificates) or as may be required by the Applicable Laws. The Company reserves the right to refuse or cancel requests for the Issuing of Tokens at any time in its sole discretion.
5. PROCEDURES FOR ISSUING OF TOKENS
5.1. Unless the Company otherwise permits, You must first be a holder of a Certificate or Certificates in order to be eligible to acquire PMGT directly from the Company (although You may acquire PMGT indirectly by purchasing them under clause 7.1(b), (c) or (d)). If so eligible, You may acquire PMGT through the Platform in accordance with the following procedures:
(a) If You have not already done so, apply for a GoldPass Account with the Perth Mint (see www.perthmint.com/goldpass/) and complete the Identity verification process.
(b) create an Ethereum Address;
(c) link Your Ethereum Address to Your GoldPass Account by following the instructions under https://pmgt.io/faq/#link-ethereum-address, which will include steps You need to take for authentication and verification of Your control of the Ethereum Address;
(d) authorise the transfer of Your Certificate(s) to email@example.com in exchange for PMGT.
5.2. Upon receipt of the Certificate(s), the Company will transfer an equivalent number of PMGT to Your Account.
6.1. Certificates transferred to the Company under clause 5 will be held in custody by InfiniGold Custodians who will hold the Certificate as a bare trustee for You as an owner of PMGT pursuant to a Custody Deed between InfiniGold Custodians and InfiniGold (Custody Deed).
6.2. Your rights in the Certificate and the Gold are subject to the terms of the Custody Deed which can be provided to You at any time upon Your request.
6.3. Each PMGT entitles You to beneficial ownership of a corresponding Certificate held by InfiniGold Custodians on Your behalf, as custodian and bare trustee. Each Certificate is held separately by InfiniGold Custodians and will not be pooled, combined or comingled with any other assets of InfiniGold Custodians. The rights and value attributable to each PMGT are independent from, and are not impacted by, the rights or value attributable to other PMGT.
7. USE AND REDEMPTION OF PMGT
7.1. You may only become a Token Holder by acquiring PMGT from:
(a) the Company under clause 5;
(b) another Token Holder who had acquired his PMGT under clause 5 through the sale or transfer of PMGT from that Token Holder to You;
(c) a Token Holder who had acquired his PMGT under limb (b) of this clause 7.1;
(d) or any subsequent Token Holder who had acquired his PMGT from a Token Holder referred to in limb (c) of this clause 7.1; or
(e) a PMGT Partner, whether through a purchase or any other transaction permitted by the Company.
As a Token Holder, You may sell or transfer Your PMGT to a third party, but any such sale or transfer is subject to clause 22. Such sale or transfer may be initiated by You on the Ethereum blockchain but You are responsible for any expenses for such sale or transfer, including gas cost and fees paid to intermediaries. Any transfer of PMGT made by You under this clause 7.1 is subject to the restrictions set out in clause 22.
7.2. As a Token Holder, You may, at any time, present Your PMGT in exchange for the equivalent amount of the Certificates (“Redemption of PMGT”) in any of the jurisdictions where the exchange of PMGT for Certificates is permitted and which are listed on the Website. If You had not acquired Your PMGT under clause 5.1, You are to first comply with the procedures set out in clause 5.1(a) and (b). Before presenting PMGT, You are to ensure that You have access to the GoldPass Account and are in possession of the private key to the Ethereum Address linked to that GoldPass Account (as set out in clause 5.1(c)). You agree that the only way You can Redeem PMGT is to comply with the procedures and requirements set out in these Terms. You also agree to be subject to any AML/KYC checks as may be required under Applicable Laws or as set out under clause 11 before any Certificate is transferred to You.
7.3. Once the Company has verified Your ownership of and title to PMGT presented under clause 7.2, the Company will transfer the equivalent value of Certificate(s) to the GoldPass Account referred to in clause 7.2, in exchange for such PMGT. Upon such transfer, the Company will then destroy the PMGT.
8. RIGHTS ATTACHING TO CERTIFICATES
8.1. If You have exchanged PMGT for a Certificate under clause 7, You will be entitled to, amongst other things, request delivery of Gold from The Perth Mint, in accordance with these Terms and the terms and conditions applicable to the Certificate.
8.2. All of the obligations of The Perth Mint, including its obligations to You under the terms and conditions applicable to a Certificate, are guaranteed by the government of Western Australia under section 22 of the Gold Corporation Act 1987 (WA).
9. ACKNOWLEDGMENT AND ASSUMPTION OF RISKS
9.1. Acknowledgement of risks: You acknowledge and agree that there are risks associated with acquiring PMGT, holding PMGT, and using PMGT for providing or receiving Services in the Platform, details of which are set out in Annexure 2 (“Risks”). By purchasing PMGT, You expressly acknowledge and assume the Risks.
9.2. Not an offering of a financial product: You acknowledge and agree that the issuing of PMGT is not a sale or offer of an investment, security, share or equity interest, debt or loan, interest in a managed investment scheme nor a derivative instrument of any of the foregoing. These Terms and all other documents referred to herein do not constitute a prospectus, product disclosure statement or offering document and are not an offer to sell nor the solicitation of an offer to buy an investment, share, equity interest or debt, interest in a managed investment scheme nor a derivative interest of any of the foregoing.
9.3. No other rights created: Your holding or possession of PMGT does not provide You with rights of any type to the Company or its revenues or assets, including but not limited to any voting, distribution, redemption, liquidation, proprietary or other financial or legal, or intellectual property rights that extend beyond the Terms.
10.1. You are responsible for implementing reasonable measures for securing the wallet, vault or other storage mechanism You use to receive and hold PMGT, including any requisite private key(s) or other credentials necessary to access such storage mechanism(s). You understand and accept that in the event that Your private key(s) or other access credentials utilised in connection to the Ethereum Address that You use to hold Your PMGT are lost, You may lose access to Your PMGT. The Company is not and shall not be responsible for any such losses. You understand and agree that all purchases, the Issuing of Tokens, or transfers of PMGT are non-refundable and non-reversable.
11. PERSONAL DATA
11.1. To acquire, purchase or redeem PMGT, You may be required to provide the following information:
11.1.1. Your full name;
11.1.2. A copy of Your passport, identity card or other identification document issued by a government of the jurisdiction in which You are citizen or resident;
11.1.3. Your postal and electronic mail addresses;
11.1.4. Your telephone number;
11.1.5. Other Personal Information that the Company may acquire from time to time for purpose of Services.
(Collectively, “Personal Data”), unless You have provided consent to any other person who are holding such Personal Data, including any PMGT Partners, to disclose the Personal Data to the Company to comply with Applicable Laws.
11.2. You agree that Your Personal Data may be collected, used and disclosed by the Company, its related corporations (the “Company Group”), and their respective business partners and agents (collectively, the “Company Representatives”) for purposes reasonably required by the Company Group and/or Company Representatives.
11.4. If You have any enquiries, comments or suggestions about the Company’s collection or use of Your Personal Data or this statement, please contact the Company’s Data Protection Officer by email at firstname.lastname@example.org.
11.5. If You would like to receive information about the Personal Data we have in relation to You, to update such Personal Data or to withdraw any consent You have provided to us previously, please contact the Company’s Data Protection Officer at the email address above.
12. KNOW YOUR CUSTOMER AND ANTI-MONEY LAUNDERING PROCESSES
12.1. In order to adhere to the Applicable Laws and to implement good faith efforts to avoid money laundering, the Company may implement “Know Your Customer” and “Anti-Money Laundering” checks (“AML/KYC checks”) for Token Holders if deemed necessary or as required by the Applicable Law. The Company may choose for such AML/KYC checks to be performed by a PMGT Partner (“KYC Partner”) in which case You are required to permit the KYC Partner to disclose the results of such AML/KYC checks to the Company.
Under this process, You agree to comply with the following:
12.1.1. You are required to setup a GoldPass Account, provide Your Personal Information, identifying documentation, and a self-certification that You are not excluded from the Issuing of Tokens based on the terms outlined by the Company in these Terms.
12.1.2. You consent to disclose to the KYC Partner and the Company any such information and documents in order to comply with the Applicable Laws.
12.1.3. You are required to disclose and confirm that You are the owner of the funds You intend to transfer and if not, You are required to disclose and confirm the identifying information of the owner of the funds.
12.1.4. If You are acting as an agent, attorney, trustee or nominee for another person in connection with the purchase or acquisition of PMGT, You are required to disclose the information of the person You are acting on behalf of with that person’s Personal Information.
12.1.5. If You are acting as an agent, attorney, trustee or nominee for an entity or a legal arrangement (“Legal Person”), in connection with the purchase or acquisition of PMGT, You are required to provide the following information:
a) The name of the legal person;
b) The legal form of the legal person;
c) Proof of the legal person’s existence;
d) The place under which the legal person is incorporated, registered or otherwise constituted;
e) The instrument under which the legal person is constituted;
f) If the legal person is incorporated or registered in Australia, its ACN number or relevant identifier;
g) If the legal person is incorporated or registered outside Australia, its foreign incorporation or registration number;
h) If the legal person is an entity, the identity of each individual having a senior management position in the legal person;
i) The address of the legal person’s registered office and its principal place of business; and
j) The identities and Personal Information of each beneficial owner of the legal person.
12.1.6. You acknowledge and agree that the Company may refuse to redeem Your PMGT for Certificates in the event that requests for certain additional information are not complied with, or if the Company suspects that You are redeeming PMGT with the objective of money laundering, terrorist financing or any other illegal activity.
12.1.7. You acknowledge and agree that the Company reserves the right to refuse to issue You PMGT, if the Company suspects that You are acquiring PMGT with the objective of money laundering, terrorist financing or any other illegal activity.
12.1.8. During the Issuing of Tokens, You will only send funds to the designated address from the GoldPass Account registered during the “Know Your Customer” process. You will not be able to send funds from unregistered GoldPass Accounts.
12.1.9. After the Token Issue, the Company will allocate the appropriate number of PMGT to the Ethereum Address that was approved during the “Address Verification” process and that is linked to Your GoldPass Account that contributed to the designated Token Issue.
12.1.10. You acknowledge and agree that Your Personal Information which You have provided under this clause 12 or through a PMGT Partner and the transaction details from the issuing of PMGT or Your purchase of PMGT shall be kept in accordance with the Applicable Laws.
13. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
13.1. The Company represents and warrants to You, as follows:
13.1.1. Company standing: The Company is qualified to do business, validly existing and in good standing under the Applicable Law.
13.1.2. Authorisation and capacity: The Company has the capacity and authority to execute this document, to perform the Services under this document and this document shall constitute a valid and legal obligation binding and enforceable against the Company in accordance with its terms, except where the enforceability is limited by the Applicable Law.
13.1.3. Compliance with Laws: These Terms, and the performance of the obligations of the Company as set out in these Terms, do not require prior approval from any governmental authority in Australia.
14. REPRESENTATIONS AND WARRANTIES OF THE TOKEN HOLDER
14.1. By purchasing PMGT, You represent and warrant that:
14.1.1. You have sufficient understanding of and experience with cryptographic tokens, token storage mechanisms (such as token wallets), and blockchain technology to understand these Terms and to understand the Risks and implications of purchasing PMGT;
14.1.2. You have read and understood these Terms (including all Annexures);
14.1.3. You have obtained sufficient information about PMGT to make an informed decision to purchase, sell, transfer, receive or hold PMGT;
14.1.4. You understand that PMGT confer only the right to use the Services on the Platform and confer no other rights of any form with respect to the Platform or the Company, including, but not limited to, any voting, distribution, redemption, liquidation, or other financial or legal rights;
14.1.5. You are not purchasing PMGT for any uses or purposes other than to use the Services on the Platform, including, but not limited to, any investment, speculation or other financial purposes;
14.1.6. You have all requisite powers and authority to execute and deliver the Terms to perform Your obligations under these Terms, if You are an individual, You are at least 18 years old and of sufficient legal capacity and meet any other threshold requirements in Your jurisdiction for the purchase of PMGT and entering into contracts with the Company or a PMGT Partner;
14.1.7. If You are purchasing or otherwise using PMGT on behalf of any entity, You are authorised to accept these Terms on such entity’s behalf and that such entity will be responsible for breach of these Terms by You or any other employee or agent of such entity;
14.1.8. Your purchase or acquisition of PMGT complies with the applicable laws and regulations in Your jurisdiction, including, any foreign exchange or regulatory restrictions applicable to such purchase or acquisition and any governmental or other consents that may need to be obtained;
14.1.9. You will comply with any applicable tax obligations in Your jurisdiction arising from Your purchase or acquisition of PMGT;
14.1.10. You are not a resident of, domiciled in, physically present, located in or registered under the laws of any jurisdiction that is the subject of sanctions, or any jurisdiction that has banned, prohibited restricted or unauthorized in any form the transfer of or transactions in cryptocurrencies under its laws;
14.1.11. You are in compliance with all anti-money laundering and anti-terrorism financing requirements. Any and all funds, including cryptocurrency, used to purchase or acquire PMGT are not derived from or related to any unlawful activities including money laundering and terrorist financing and You hereby agree that You will not use PMGT to finance, engage in, or support any unlawful activities as defined by any Governmental Authority;
14.1.12. All information and documents produced by the Token Holder to the Company pursuant to the Issuing of Tokens is true, accurate and complete.
15.1. To the fullest extent permitted by the Applicable Law, You agree to indemnify, defend and hold harmless Company and the Company’s past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (the “Indemnified Parties”) from and against all claims, demands, actions, damages, losses, costs, taxes, penalties and expenses (including attorneys’ fees) that arise from or relate to: (i) Your purchase or acquisition or use of PMGT, (ii) Your responsibilities or obligations under these Terms, (iii) Your violation of these Terms, or (iv) Your violation of any rights of any other person or entity.
15.2. The Company reserves the right to exercise sole control over the defense, at Your expense, of any claim subject to indemnification under clause 15.1. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between You and the Company.
16. DISCLAIMERS OF WARRANTIES
16.1. Nothing in these Terms excludes, restricts and modifies any consumer guarantee, right or remedy conferred on You by Schedule 2 to the Competition and Consumer Act 2010 (ACL), or any other applicable law, that cannot be excluded, restricted or modified by agreement.
16.2. To the extent permitted by law (including the ACL), the Company excludes all warranties, whether express or implied (not including any consumer guarantees under the ACL), including any warranties or representations concerning availability, quality, completeness, accuracy, suitability, merchantability, acceptability or fitness for purpose in relation to the Services and the Website including content, all links to or from and the goods and services advertised or accessible using the Services and Website.
16.3. Subject to the consumer guarantees provided for in consumer protection legislation (including the ACL) as applicable, the Company does not warrant that You will have continuous access to the Services or the Website. The Company will not be liable in the event that the Services or the Website is unavailable to You or due to computer downtime attributable to malfunctions, upgrades, preventative or remedial maintenance activities or interruption in telecommunications supply. The Company does not represent or warrant that PMGT or the delivery mechanisms for PMGT are free of viruses or other harmful components.
16.4. Some jurisdictions do not allow the exclusion of certain warranties or disclaimer of implied terms in contracts with consumers, so some or all of the exclusions of warranties and disclaimers in this clause may not apply to You.
17. LIMITATION OF LIABILITY
17.1. To the fullest extent permitted by Applicable Law or the applicable law of any other jurisdiction, except where the Company fails to meet a consumer guarantee under the ACL and notwithstanding any other provision of these Terms: (i) in no event will the Company or any of the Indemnified Parties be liable for any indirect, special, incidental, consequential, or exemplary damages of any kind (including, but not limited to, where related to loss of revenue, income or profits, loss of use or data, or damages for business interruption) arising out of or in any way related to the sale or use of PMGT or due to loss of any private keys or loss of passwords in relation to PMGT or the Platform or otherwise related to these Terms, now or in the future, regardless of the form of action, whether based in contract, tort (including, but not limited to, simple negligence, whether active, passive or imputed), or any other legal or equitable theory (even if the party has been advised of the possibility of such damages and regardless of whether such damages were foreseeable); and (ii) in no event will the aggregate liability of the Company and the Indemnified Parties (jointly), whether in contract, warranty, tort (including negligence, whether active, passive or imputed), or other theory, arising out of or relating to these Terms or the use of or inability to use PMGT, exceed the amount You pay to the Company for PMGT.
17.2. The limitations set forth in clause 17.1 will not limit or exclude liability for the gross negligence, fraud or intentional, willful or reckless misconduct of the Company. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations of this clause may not apply to You.
17.3. The Company shall not be liable for failure to perform due to force majeure events including, but not limited to, unavoidable casualty, delays in delivery of materials, embargoes, government orders, acts of civil or military authorities, acts by common carriers, emergency conditions (including weather conditions), or any similar unforeseen event that renders performance commercially implausible.
18.1. To the fullest extent permitted by Applicable Law, You release Company and the other Indemnified Parties from responsibility, liability, claims, demands and/or damages (actual and consequential) of every kind and nature, known and unknown (including, but not limited to, claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties.
19. GOVERNING LAW
19.1. The Terms shall be governed by, construed under and enforced in accordance with the laws of New South Wales, without regard to any conflict of law rules or principles that would cause the application of the laws of another jurisdiction.
19.2. Any dispute or claim between the You and the Company arising out of or relating to these Terms or its subject matter or formation (including non-contractual disputes or claims) shall be exclusively resolved by the courts of New South Wales.
20. TERMINATION OF THE SERVICE
20.1. The Company may be entitled to terminate any or all of the Services at any time for any reason by making an announcement on the Website and in particular (without prejudice to the generality of this clause), if:
20.1.1. The Perth Mint terminates the underlying GoldPass platform;
20.1.2. The Company is required by the Applicable Laws to terminate any or all of the Services for any reason;
20.1.3. The Services are considered illegal or irregular under the applicable laws of any jurisdiction, is prohibited, banned or forced to cease by any government in any jurisdiction; or
20.1.4. The Company or the Platform ceases to operate, including as a result of any force majeure event and cannot resume.
20.2. Upon termination of the Service, the Company shall, within one (1) month, use reasonable endeavours to a) redeem Your PMGT and credit the corresponding amount of Certificate(s) to Your GoldPass Account, provided that You created the link to Your Ethereum Address as set out in clause 5.1 (c); or b) contact You and inform You about the termination of the Service including Your redemption options, provided that You had provided Your Personal Information under clause 11.
20.3. On termination of the Services, a wind down period of 6 months will begin. During this period:
20.3.1. There will be no Issuing of Tokens;
20.3.2. Subject to the foregoing, the Platform will continue to be made available to Token Holders;
20.3.3. Via the Website, Token Holders will be instructed to cease holding PMGT (by redeeming them into Certificates);
20.3.4. Where Token Holders cannot be contacted after the wind down period of 6 months, the Company may dispose the unredeemed PMGT subject to any applicable unclaimed or uncollected goods legislations.
20.4. Other than as set forth in this clause 21, the Company shall be under no obligation to any holder of PMGT for the termination of the Issuing of Tokens.
21. COMPANY’S RIGHT TO REFUSE ISSUE OR RESTRICT TRANSFER
21.1. The Company reserves the right to refuse, restrict or reject the issuing, transfer or redemption of PMGT (including blacklisting Your Ethereum Address) at any time at the Company’s sole discretion, including but not limited to occasions when:
21.1.1. The information provided by You or a third party to whom You are transferring the PMGT upon any request is insufficient, inaccurate or misleading;
21.1.2. You have not complied with any of the requirements stated in these Terms;
21.1.3. the Company suspects that You are using PMGT with the objective of money laundering, terrorist financing or any other illegal activity;
21.1.4. the Company determines not to issue PMGT in particular jurisdictions; or
21.1.5. the Company is so required by a valid subpoena, court order, or binding order of a government authority.
22. DISRUPTION EVENT
22.1. In the event of a Disruption Event, the Company has the right to suspend the Services. If the Company suspends the Services pursuant to this clause 22.1, resumption of the Service will be at the Company’s sole discretion.
23.1. You acknowledge and agree that the purchase or acquisition of PMGT may have tax consequences for You.
23.2. You shall declare, bear and pay all such taxes, duties, imposts, levies, tariffs and surcharges that might be imposed by the laws and regulations of any jurisdiction as a result of or in connection with the receipt, holding, use, purchase, appreciation, trading or divestment of PMGT whether acquired during the Issuing of Tokens or otherwise.
23.3. You shall be solely liable for all such penalties, claims, fines, liabilities or otherwise arising from Your non-payment, underpayment, undue payment or belated payment of any applicable tax.
23.4. The Company gives no advice and makes no representation as to the tax implications of Your participation in the Services.
23.5. The Company bears no liability with respect to any tax consequences to You.
24.1. Severability: If any term, clause or provision of these Terms is held unlawful, void or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
24.2. Entire Agreement: These Terms (which for the avoidance of doubt, include the Annexures), together with the terms and conditions applicable to Certificates, constitute the entire agreement between You and the Company relating to Your use of PMGT, and purchase or acquisition of PMGT from the Company, and the underlying Certificates. Such entire agreement supersedes all prior agreements, understandings and/or arrangements in relation to the Issuing of Tokens, PMGT and Certificates.
24.3. Assignment: Except as otherwise provided herein, these Terms are intended solely for the benefit of You and the Company and are not intended to confer third-party beneficiary rights upon any other person or entity. The Company may assign its rights and obligations under these Terms.
24.4. Waiver: The failure of the Company to exercise or enforce any right or enforce strict compliance or provision of these Terms will not operate as a waiver of such right or provision. The Company will not be liable for any delay or failure to perform any obligation under these Terms where the delay or failure results from any cause beyond the Company’s reasonable control.
24.5. No Partnership/Joint Venture: Acquiring PMGT from the Company does not create any form of partnership, joint venture or any other similar relationship between You and the Company.
24.6. Title and Subtitles: The titles and subtitles used in these Terms are used for convenient reference only and are not to be considered in construing or interpreting these Terms.
24.7. Right to Amend: The Company may revise the PMGT Terms from time to time in any circumstances, including but not limited to the functionality of PMGT or any laws or regulations which The Company is otherwise subject to. If any amendments are made to these Terms, the Company will publish a notice on its Website and Platform with the updated Terms. Any amendments to the Terms shall be effective immediately upon the publication of such notice and updated Terms on the Website and Platform.
24.8. Third Party Websites or Platforms: The Company may provide certain hyperlinks to third party websites, and the inclusion of any hyperlinks or any advertisement of any third party on the Platform does not imply endorsement by the Company of their websites, products or business practices. If You access and use any third-party websites, products, services, platforms and/or business, You do so solely at Your own risk for which the Company will bear no liability.
24.9. Intellectual Property Rights: The Terms shall not entitle You to any intellectual property rights, including the rights in relation to the use, for any purpose, of any information, image, user interface, logos, trademarks, trade names, Internet domain names or copyright in connection with the Website, the Platform, or the Issuing of Tokens.
24.10. Jurisdiction for Issuing of Tokens: Subject to clause 22.1, the procedure for the Issuing of Tokens may be initiated and may take place worldwide and is not linked to any specific jurisdiction. In order to be eligible to participate, save as otherwise provided, You may be from any jurisdiction in the world, except for any jurisdiction where PMGT may be classified or treated by any government, quasi-government, authority or public body as a kind of currency, securities, commercial paper, negotiable instrument, financial product, investment or where PMGT may be otherwise banned, regulated or subject to certain legal restrictions. In this connection, please refer to clause 14.1.10.
TIME LINES FOR ISSUING OF TOKENS AND REDEMPTION FOR CERTIFICATES
- Dependency on the Ethereum blockchain: You understand that the Issuing of Tokens and the Redemption of PMGT depend on the Ethereum blockchain. Increased transaction volumes on the Ethereum blockchain may delay the confirmation of the transfer of a) new PMGT to You or of b) the PMGT for redemption to the Company (the Company may wait for multiple blocks to be mined before acknowledging a transaction to help mitigate risk). Such delays are outside the control of the Company.
- Operational Limits: The Issuing of Tokens and the Redemption of PMGT are operations that are processed automatically. You understand that the Company may introduce operational limits on the Platform for these operations as part of its overall security concepts. If any such limit has been reached, a manual verification of the operation might be required.
- Time line for Issuing of Tokens: The Issuing of Tokens should be completed within 1 to 30 minutes. If a manual verification of an operational limit is required, the Issuing may take up to 1 business day.
- Time line for Redemption of Tokens: The Redemption of Tokens should be completed within 5 to 30 minutes. If a manual verification of an operational limit is required, the Redemption may take up to 1 business day to be completed.
RISKS AND ASSUMPTIONS
- Risk of Software Weakness: You understand that the Platform is still in early development stages and unproven. You understand that there is no warranty that the process for creating the Website and Platform will be error-free and that there is an inherent risk that the software could contain weaknesses, vulnerabilities, bugs, etc., that could cause complete loss of PMGT, Website or the Platform.
- Risk of Losing Access to Tokens Due to Loss of Private Key(s): A private key, or a combination of private keys, is necessary to control and dispose of PMGT stored in Your digital wallet or vault. Accordingly, loss of requisite private key(s) associated with Your digital wallet or vault storing PMGT will result in loss of such PMGT. Moreover, any third party that gains access to such private key(s), including by gaining access to login credentials of a hosted wallet service You use, may be able to misappropriate Your PMGT.
- Risks Associated with the Ethereum blockchain: Because PMGT are based on the Ethereum blockchain, any malfunction, breakdown or abandonment of the Ethereum blockchain or other technological difficulties may have a material adverse effect on or prevent access to or use of the Platform or PMGT. Moreover, advances in cryptography, or technical advances such as development of quantum computing, could present risks to PMGT and the Platform by rendering ineffective the cryptographic consensus mechanism that underpins the Ethereum blockchain. Transactions involving tokens on the blockchain may be irreversible, and, accordingly, losses due to fraudulent or accidental transactions may not be recoverable.
- Risk of Hacking and Security Weaknesses: Hackers or other malicious groups or organizations may attempt to interfere with the Platform or PMGT in a variety of ways, including, but not limited to, malware attacks, denial of service attacks, consensus-based attacks, Sybil attacks, smurfing and spoofing.
- Risks Associated with Markets for Tokens: If third party exchanges do permit the trading of PMGT on their own initiative, such exchanges may be relatively new and subject to little or no regulatory oversight, making them more susceptible to fraud or manipulation. Tokens are not legal tender, and to the extent that third parties do ascribe an external exchange value to PMGT, such value may be extremely volatile and diminish to zero. There is no assurance that a person or company who accepts a PMGT as payment today will continue to do so in the future.
- Risk of Uninsured Losses: Unlike bank accounts or accounts at some other financial institutions, PMGT are uninsured unless You specifically obtain private insurance to insure them. Thus, in the event of loss or loss of utility value, there is no public insurer or private insurance arranged by the Company, to offer recourse to You.
- Risks Associated with Uncertain Regulations and Enforcement Actions: The regulatory status of PMGT and distributed ledger technology is unclear or unsettled in many jurisdictions. It is difficult to predict how or whether regulatory agencies may apply existing regulation with respect to such technology and its applications, including the Platform and PMGT. It is likewise difficult to predict how or whether legislatures or regulatory agencies may implement changes to law and regulation affecting distributed ledger technology and its applications, including the Platform and PMGT. Residents of certain jurisdictions may not be permitted to participate in the sale and purchase of Cryptocurrencies or digital tokens such as PMGT, and such participation may be illegal in such jurisdictions. Legislation prohibiting or regulating such token sales may be introduced in the jurisdiction of the purchasers or acquirers of PMGT.
New or revised legislation, regulations, administrative directives or guidelines issued by regulators, and regulatory actions could negatively impact the Platform and PMGT in various ways. The Company may cease operations in a jurisdiction in the event that regulatory actions, or changes to law or regulation, make it illegal to operate in such jurisdiction, or commercially undesirable to obtain the necessary regulatory approval(s)to operate in such jurisdiction.
Regulators from the jurisdictions in which a purchaser or acquirer of PMGT resides may, after the sale and purchase or acquisition of PMGT, conduct investigations and take regulatory action in respect of such sale and purchase or acquisition, or prohibit the secondary sale and purchase or acquisition of PMGT.
- Risks Arising from Taxation: The tax characterization of PMGT is uncertain. You must seek Your own tax advice in connection with purchasing Tokens, which may result in adverse tax consequences to You, including withholding taxes, income taxes and tax reporting requirements.
- Risk of Insufficient Interest in the platform: It is possible that the Platform will not be used by a large number of individuals, companies and other entities. Such a lack of use or interest could negatively impact the extended use of the Platform and therefore the potential utility of PMGT..
- Risk of Dissolution of the Company: It is possible that, due to any number of reasons, including, but not limited to, the failure of commercial relationships, or intellectual property ownership challenges, the Platform may no longer be viable to operate and the Company may dissolve.
- Risks Arising from Lack of Governance Rights: Because PMGT confer no governance rights of any kind with respect to the Platform or the Company or its corporate affiliates, all decisions involving the Platform or the Company will be made by the Company at its sole discretion, including, but not limited to, decisions to discontinue the Platform, to issue more PMGT, or to sell or liquidate the Company. These decisions could adversely affect the Platform and the PMGT You hold.
- Unanticipated Risks: Cryptographic tokens such as PMGT are a new and unproven technology. In addition to the risks included in this Annexure 2, there are other risks associated with Your purchase or acquisition, holding and use of PMGT, including those that the Company cannot anticipate. Such risks may further materialize as unanticipated variations or combinations of the risks discussed in this Annexure 2.
- Intellectual Property Claims: Intellectual property rights claims may adversely affect the operation of the Platform. Third parties may assert intellectual property claims relating to the holding and transfer of digital assets and their source code. Regardless of the merit of any intellectual property or other legal action, any threatened action that reduces confidence in the Platform’s long-term viability may adversely affect the value of the Company, Platform, or PMGT. Additionally, a meritorious intellectual property claim could prevent You from accessing the Platform.
- Nature of PMGT: As set out at the beginning of these Terms, and in clauses 3.2 to 3.4, PMGT are asset-backed tokens to be used on a blockchain and grant the holder the right to use the Platform. PMGT are not, and are not intended to be “securities” as defined under the Applicable Law, such as a share or debenture. Purchasers or acquirers of PMGT do not acquire any equity or security interest in, or a debt owed by any corporate entity, and will not enjoy the rights normally associated with shares, debentures or other instruments normally classified as a security.