Updated: 1 October 2021
This document (Terms) sets out the general terms and conditions related to usage of the Rush gold trading platform (Platform) operated by Mobile Assets Pty Ltd ACN 615 060 252 (Mobile Assets), a company based in Sydney, Australia. These Terms are to be read together with the Contract Note entered into between you, us and SendGold Vault Pty Ltd ACN 615 062 694 (Rush Vault) (together, Contract).
1.1. The Platform is offered to allow the customers of your online service (Customers) to buy, sell or send gold for non-commercial purposes (Service).
1.2. Unless the context otherwise requires, when these Terms refer to “you” or “your”, it means the party referred to as the User in the Contract Note, and when it refers to “we”, “us” or “our”, it means Mobile Assets.
1.3. We may change all or part of these Terms at any time by prior written notice to you. If we do, the new Terms will also be posted at https://rush.gold/gold-as-a-service-terms-of-use/. Your subsequent use of the Service will constitute your acceptance of any changes. If you object to any changes to these Terms, you must stop using the Service.
1.4. The Contract Note will prevail to the extent of any inconsistency with these Terms.
1.5. In order to use the Service, a Customer must agree to be bound by the terms and conditions with respect to the Rush Gold service available at https://rush.gold/terms-of-use/ as updated from time to time (Service Terms). It is the responsibility of the User to ensure that each Customer who uses the Service:
(a) agrees to be bound by the Service Terms; and
(b) complies with the Service Terms at all times.
1.6. You must use the Service in accordance with these Terms, the Contract Note and all applicable laws, rules and regulations including, without limitation, copyright laws.
2.1. In consideration for the Fee, we grant you a non-exclusive, non-transferable, non-redeemable, revocable licence for access to the Platform to allow your Customers to buy, sell or send gold for non-commercial purposes using the Platform.
2.2. Access to the Service will be provided as agreed in the Contract Note, and may be by way of an API data feed communication link furnished by us or such other access mechanism determined by us from time to time. The information available through the access mechanism will be as specified in the Contract Note.
2.4. You acknowledge that we have the right to:
(a) refuse access to the Platform to any Customer; and
(b) impose conditions or restrictions (including a ban) on the use of the Platform by any Customer,
having regard to our Regulatory Obligations and without giving any reasons.
3.1. The Contract commences on the Commencement Date and continues until the End Date unless the Contract is terminated earlier. Upon termination of the Contract, your rights to use the Service ceases immediately.
3.2. We may immediately terminate the Service if:
(a) we are required to do so by order of a court or regulatory authority, or otherwise required by law;
(b) we suspect that the Service is being used for an unlawful purpose or in a fraudulent, misleading, deceptive, inappropriate or unlawful manner;
(c) you become insolvent or are wound up;
(d) we discontinue the Service or the Platform for any reason; or
(e) you are otherwise in breach of any of these Terms.
3.3. A Party may terminate the Contract by providing not less than period of Voluntary Termination Notice to the other Party as set out in the Contract Note.
4.1. You will use reasonable endeavours to ensure that your network and systems comply with the relevant specifications provided by us from time to time so that you can use the Service. You accept that you may not be able to use the Service or that the Service may not operate correctly if you do not do so.
4.2. You must not use the Service:
(a) for any unlawful purpose or in a fraudulent, misleading, deceptive or unlawful manner including, without limitation, infringing any person’s Intellectual Property Rights, menacing or harassing any person or in respect of content that is unlawful, defamatory or obscene; or
(b) in a manner so as to adversely affect the operation of the Platform for other Users.
4.3. By entering into a Contract Note, you represent and warrant that you have all legal and regulatory rights to offer the Service to Customers in the Territory, and have and shall maintain all rights to do so at all relevant times.
4.4. You must do all things necessary to ensure that you comply with, and we remain in compliance with, all Regulatory Obligations including promptly providing us with all information, documents or other assistance we reasonably require to properly discharge our Regulatory Obligations. This includes:
(a) Access to your respective premises and documentation to the extent such body lawfully considers necessary in its role as Regulator; and
(b) Assistance to the other party to the extent reasonably required for the other party to comply with any such lawful request.
4.5. With respect to our obligations to comply with the Australian AML Regime, you acknowledge and agree that:
(a) if specified in the Contract Note, you may be appointed as our CDD Reliance Partner, and be obliged to carry out CDD Procedures in accordance with the Australian AML Regime; and
(b) you will be required to carry out CDD Procedures to the extent specified in the Contract Note.
4.6. The prices for Buying and Selling gold via the Service shall be established by Mobile Assets and regulated by the Service Terms. You are not permitted to add any margin to the Buy or Sell prices and fees unless otherwise agreed with us in writing.
4.7. You must ensure that at all times the Service is branded as Rush Gold, and such branding is visible to Users. The exact designation and location of the Rush Gold branding shall be agreed with Mobile Assets prior to the Service being made available to Users.
5.1. If the agreed access method is via API, the Service will be provided to the User and its Customers through the Rush Gold-as-a-Service (GaaS) API.
5.2. If clause 5.1 applies, the User will at its own cost work to integrate gold into Distribution Service using the GaaS API, with support from the Mobile Assets technical team, as set out in the Contract Note.
5.3. The User acknowledges that the User-specific API interface key acts as a secret authentication key for access by the User and its Customers to the API and the Service. The User must ensure that the User-specific API interface key you are provided for access to the Service is kept confidential and secure at all times. The User acknowledges that they are responsible and liable for any person obtaining access to and using the User-specific API access key for any purpose, including without limitation any malicious purpose.
6.1. The User must use reasonable endeavours to promote and advertise the Service to Customers to drive transaction volumes.
6.2. The User must obtain Mobile Assets’ prior written consent to make any statements or release any marketing information regarding the Services or this Agreement including:
(a) any use of Mobile Assets’ name, trademarks or logos;
(b) promotion of the Service on advertising or marketing materials to promote the User’s business;
(c) direct mail to potential Service Customers;
(d) the provision of market information or intelligence;
(e) co-promotional opportunities; or
(f) promotional information to the User’s potential clients or employees.
6.3. Where practicable, Mobile Assets may provide standing consent under clause 6.2(a) for use of marketing materials that form part of an ongoing marketing or communication strategy by the User for the Service.
6.4. User acknowledges and agrees that it will comply with any reasonable direction given by Mobile Assets in respect of the marketing and promotion of the Service.
6.5. Where the User fails to obtain Mobile Assets’ prior written consent or comply with any directions provided by Mobile Assets in granting its consent, Mobile Assets may, in addition to any other rights available to it under this agreement:
(a) direct the User to immediately withdraw the materials or information from the public domain or amend the materials or information to Mobile Assets’ satisfaction; or
(b) suspend the operation of the Service until Mobile Assets’ consent is obtained by the User or the User complies with the relevant directions provided by Mobile Assets.
7.3 In that regard and in accordance with the Contract Note:
(a) Rush Vault will open and maintain the Bank Account;
(c) you will be responsible for ensuring that sufficient funds have been received by Rush Vault to satisfy in full that Customer’s obligations under their agreement to buy gold from Rush Vault.
7.4 To avoid doubt:
(a) we are not acting as agent for either your Customers or Rush Vault;
(b) you are not acting as agent for your Customers except for your role as an Authorised Affiliate; and
(c) you are not acting as our agent.
8.1 Our Service is protected by intellectual property laws, and embody our valuable confidential information and that of our licensors. You acknowledge and agree that we and our licensors own all rights, title and interest in respect of the Service including all Intellectual Property Rights. We reserve all rights other than those granted to you under these Terms and the Contract Note.
8.2 You hereby assign to us absolutely the entire copyright and all other Intellectual Property Rights subsisting in any new Intellectual Property Rights created in relation to the Platform whether in collaboration or otherwise with us.
8.3 You must not, and you must ensure that your Customers do not:
(a) provide access to the Platform to any other person;
(b) except as permitted by non-excludable laws, reverse engineer, decompile, disassemble, or extract any element of the Service or otherwise seek to discover any source code, algorithms, methods or techniques embodied in the Service or do any similar thing; or
(c) re-sell, modify, transfer, distribute, pledge, sublicense, rent, lease, or create derivative works based on the Service, including its user interfaces or do any similar thing.
9.3 By using the Service, you acknowledge and agree that you will provide any notices to, and obtain any consents from, your Customers as required by Privacy Laws to allow you to use the Service and your Customers to use the Platform.
9.4 As soon as reasonably practicable, you will notify us and cooperate, at your expense, with any reasonable requests or directions from us or Rush Vault, if you become aware (or suspect):
(a) of any misuse, interference or loss of Data;
(b) of any unauthorised access, modification or disclosure of Data;
(c) that a disclosure of Data may be required by law; or
(d) that a breach of this paragraph 7.4 has occurred.
9.5 If an event under paragraph 7.4(i) or 7.4(ii) occurs with respect to any Data you hold from time to time, we or Rush Vault will decide whether you, we or Rush Vault will handle any response to the event, including, without limitation, any remedial actions that we or Rush Vault deem necessary. You will be responsible for all costs and expenses associated with any response to the event.
10.1 A notice or other communication connected with the Contract (Notice) has no legal effect unless it is in writing. In addition to any other method of service provided by law, a Notice may be:
(a) sent by prepaid priority post to the address of the addressee;
(b) sent by email to the email address of the addressee; or
(c) delivered at the address of the addressee,
set out in the Contract Note or subsequently notified.
11.1 These Terms and the Contract Note 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. Each party acknowledges and agrees that in entering into these Terms and the Contract Note, it 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 or the Contract Note. We may assign the Contract without your prior consent. You may not assign the Contract. No waiver of any term of the Contract will be deemed a further or continuing waiver of that term or any other term. No failure to assert any right under the Contract will constitute a waiver of that right. Each Party must pay its own costs connected with the negotiation, preparation and execution of the Contract. If any provision of these Terms or the Contract Note is deemed invalid by a court of competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions of these Terms and the Contract Note, which will remain in full force and effect.
11.2 Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, GST (as defined in A New Tax System (Goods and Services Tax) Act 1999, as amended), harmonised, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, ‘Taxes’). The Customer is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If Mobile Assets has the legal obligation to pay or collect Taxes for which the Customer is responsible under this clause, the appropriate amount shall be invoiced to and paid by the Customer, unless the Customer provides Mobile Assets with a valid tax exemption certificate authorised by the appropriate taxing authority. To avoid doubt, Mobile Assets is solely responsible for taxes assessable against Mobile Assets based on its income, property and employees.
11.3 To the extent that the claim, loss, liability, damage, cost and or expenses was due to the User’s act or omission, the User indemnifies Mobile Assets and Rush Vault and will keep them indemnified against any claim, loss, liability, damage, cost and/or expense that may be incurred or sustained by them.
11.4 Notwithstanding any other provision of this agreement:
(a) Mobile Assets and Rush Vault will not in any circumstances together be liable for an amount equal to more than one (1) year of Fees under this Agreement; and
(b) Mobile Assets and Rush Vault will not be liable for any Indirect Loss suffered by the User which arises in connection with this Agreement or its subject matter even if such Indirect Loss may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract, where “Indirect Loss” includes loss of income, profits or business, any failure to achieve any anticipated savings, damage to goodwill or reputation and punitive or exemplary damages that may otherwise be awarded.
11.5 The Contract is 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. You acknowledge that you have had the opportunity to negotiate and take legal advice in connection with this Contract.
12.1 In these Terms unless the contrary intention appears:
Australian AML Regime means the requirements under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (Cth) and AUSTRAC regulations and guidance, as amended, updated or supplemented from time to time, and their international equivalents to the extent applicable;
AML Obligations means all of our, and our related companies’, obligations under or in connection with the Australian AML Regime which shall include but not be limited to customer due diligence, transaction monitoring and reporting, recordkeeping and liaising with AUSTRAC as required from time to time;
AUSTRAC means the Australian Transaction Reports and Analysis Centre or its successor from time to time;
Authorised Affiliate has the meaning given in paragraph 4.2;
Bank Account means an “at call” bank account in the name of Rush Vault with an Australian bank of Rush Vault’s choosing from time to time, which will be designated as a trust account;
Break Fee has the meaning given in the Contract Note;
Buy has the meaning given in the Service Terms;
CDD Arrangement means a written agreement or arrangement under section 37A(1)(a) of the Anti-Money Laundering & Counter Terrorism Financing Act 2006 (Cth) as amended, entered into between Mobile Assets and the User, pursuant to which the applicable requirements of the Australian AML Regime are met, including without limitation the CDD Procedures;
CDD Procedures means customer due diligence procedures as agreed in or referred to under the Contract Note;
CDD Reliance Partner means a User which has entered into a CDD Arrangement with Mobile Assets under the Contract Note;
Commencement Date has the meaning given in the Contract Note;
Confidential Information means:
(a) any information, personal information or material provided by or on behalf of us to you or any of your associates or representatives in connection with the Service; and
(b) the fact and substance of any discussions or negotiations between you and us relating to any potential corporate transaction or commercial matter,
and includes all information made or derived in whole or in part by you or any of your associates or representatives from the information and material referred to above;
Contract means the Terms and Contract Note entered into by you, us and Rush Vault;
Contract Note means the contract note entered into containing the specific agreed terms and conditions relating to the Service between you and us which are supplemental to these Terms;
Customer means an end customer of the gold account being provided by Mobile Assets via the Distribution Service.
Data means all data, personal information and other information relating to Customers, regardless of whether the information was provided or created by a Customer, you, us or Rush Vault;
End Date has the meaning given in the Contract Note;
Expiry Date has the meaning given in the Contract Note;
Fee has the meaning given in the Contract Note;
GaaS API means the Mobile Assets Gold-As-A-Service API;
GaaS Service has the meaning given in paragraph 1.3;
Intellectual Property Rights means any and all existing and future rights throughout the world conferred by statute, common law, equity or any corresponding law in or in relation to copyright, trademarks, designs, patents, business and domain names, inventions, trade secrets, know-how and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable. These rights include:
(a) all rights in all applications to register these rights;
(b) all renewals and extensions of these rights;
(c) similar rights, such as moral rights;
Platform has the meaning in paragraph 1.1;
Privacy Act means the Privacy Act 1988 (Cth);
Regulatory Obligations means the AML Obligations, the Privacy Act, financial services laws and any other applicable laws;
Restricted List has the meaning given in the Contract Note;
Sell has the meaning given in the Service Terms;
Service Terms has the meaning given in paragraph 1.6;
Terms has the meaning in paragraph 1.1.
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