Kitco (Asia) Limited
Online Store Terms and Conditions
Updated: October 28, 2016
1.
Definitions and Interpretation:
1.1. Definitions
For the purpose of these Terms and
Conditions, the following terms shall have the meanings specified below, unless
otherwise indicated:
“Agreement” or “Terms and
Conditions” shall mean these terms and conditions that shall govern the
relationship between Kitco and the Customer with respect to the Online Store,
except as otherwise specifically provided for, and as same may be amended from
time to time, without notice;
“Business Day” shall refer to
Kitco’s operational hours, between 9:00 a.m. and 5:30 p.m., Monday through
Friday, excluding Saturdays, Sundays and any statutory holidays and bank
holidays in Hong Kong;
“Customer” shall mean a customer who enters
into a transaction with Kitco for the purchase or sale of physical Precious
Metal products and is in compliance with
these Terms and Conditions between the Customer and Kitco;
“Customer Purchase Transaction”
shall mean any sale operation whereby Kitco sells physical Precious Metals to
its Customer;
“Customer Sale Transaction” shall
mean any sale operation whereby Kitco purchases physical Precious Metals from
its Customer;
“Hong
Kong” shall mean Hong Kong Special Administrative Region of the People’s
Republic of China;
“Kitco” shall mean Kitco (Asia) Limited;
“Online Store” shall mean and refer
to Kitco’s Precious Metal Store, available at http://online.kitco.com.hk and at
http://online.kitco.cn;
“Open
Transactions” shall mean all contemplated, submitted and booked Customer
Purchase Transactions and Customer Sale Transactions which have not been
completed, as defined in Section 4.7.
“Precious Metal(s)” shall mean and
refer to gold, silver, platinum, palladium, and rhodium or other such metals as
may be amended from time to time.
1.2. Interpretation
In these Terms and Conditions,
unless inconsistent with the context, words denoting person include corporation
and firm, words denoting masculine gender include feminine gender, and words
denoting singular number include plural number and vice versa.
The Section headings herein are inserted
for convenience only and for reference, and in no way define, limit or describe
the scope of these Terms and Conditions or the intent of any provision thereof.
1.3. Applicability
The following Terms and Conditions shall govern all
transactions between the Customer and Kitco which are placed via internet on
Kitco’s Online Store. Transactions
placed in person or by telephone shall be governed by the Kitco (Asia) Limited
General Terms and Conditions.
It is the Customer's responsibility to confirm that their
transaction conforms to the Terms and Conditions as set out in each of the
above scenarios.
2. Application
Customers wishing to purchase from or sell to Kitco must
have an account. For Customers who currently have a Kitco account, please refer
to Section 3 of these Terms and Conditions.
2.1. Individual Customers
Individuals may create an account with Kitco online, in
person or by mail. All individual
customers are required to submit a copy of their government issued primary identification
document with photo therein and residential proof to complete the account
application process.
2.2. Business Customers
Business customers may create an account by mail or in
person. The following documentation is required for all Business customers:
·
A completed application form for a business account;
·
Signature specimen of the person authorized to sign and
transact in the business account;
·
A completed and signed copy of a Certified Business/Trust
Resolution containing name of the person authorized to sign and transact on the
business account;
·
A clear copy of one valid, government issued photo
identification for each signing authority on account.
Depending on the type of business
entity, a copy of the following documentation will also be required:
Sole
Proprietorships |
Business
Registration Certificate; and |
Partnerships |
Business
Registration Certificate; and |
Corporations |
Business
Registration Certificate; |
Trusts |
Trust
deed/indenture; and |
Other Legal
Entities- unincorporated associations,
community groups, non-profit organizations, registered charities, or places of
worship |
Business
Registration Certificate (except the non-profit making organizations with
exemption); Registration/Charter documents; and |
Failure to provide all required documentation as set out
above may delay the opening of the business customer account. Upon receipt and
formal acceptance of the completed business customer application and copies of
the required documentation, Kitco will send a confirmation to the Customer as
to whether the application has been approved or rejected. Once the application
is approved, Kitco will open an account and inform the Customer of their
account details.
The Customer acknowledges that Kitco relies on the veracity
of all information provided by the Customer when processing any application. By
agreeing to these Terms and Conditions, the Customer warrants that all
information provided is true and accurate.
2.3. Multiple Accounts
Only one account may be created per individual Customer. Kitco
will not accept transactions placed by a single Customer over multiple
accounts, and the Customer may be held liable for any resulting market loss
repayments and administrative fees.
3.
Transactions
3.1. Purchase Restrictions
Kitco may restrict bullion products purchases based on a
minimum quantity or value.
Kitco reserves the right to unilaterally amend existing
restrictions or implement new restrictions without notice at any time.
3.2. Locking in a Price for Customer Purchase Transactions
A price is
locked in at the time a Customer Purchase Transaction is submitted (both online
as well as by telephone). Should a Customer cancel a Customer Purchase
Transaction after it has been submitted, the Customer may be liable for market
loss repayments and administrative fees, pursuant to Sections 5.1 and
6.1.3. Subject to the conditions below,
the price at the time a transaction is submitted will be locked in, regardless
of market fluctuations.
3.2.1. Customer Purchase Transactions submitted by Customers residing or
having their principal place of business in Hong Kong
·
Open Transactions with a value up to and including USD$20,000
Customers
who have Open Transactions with a total value that is less than or equal to
USD$20,000 (or HKD equivalent, rounded up to the highest HKD$1000) are required
to provide a valid Visa or MasterCard credit card number in order to lock in a
transaction purchase price. The Customer
acknowledges that providing a valid credit card number does not constitute
payment, and confirms they will abide by the payment terms as stated in Section
4.
·
Open Transactions with a value greater than USD $20,000 and up to
and including USD $100,000
Customers
who have Open Transactions with a total value that is greater than USD$20,000 and up to and including USD$100,000 (or HKD
equivalent, rounded up to the highest HKD$1000) are required to provide a valid
Visa or MasterCard credit card number and to have at least 15% of the total
value of Open Transactions in cleared funds with Kitco in order to lock in a
transaction purchase price.
·
Open Transactions with a value greater than USD $100,000
Customers
who have Open Transactions with a total value that is greater than USD$100,000
(or HKD equivalent, rounded up to the highest HKD$1000) are required to provide
a valid Visa or MasterCard credit card number and to have at least 25% of the
total value of Open Transactions in cleared funds with Kitco in order to lock
in a transaction purchase price.
3.2.2. Customer Purchase
Transactions submitted by Customers residing or having their principal place of
business outside of Hong Kong
·
Open Transactions with a value up to and including USD $100,000
Customers who have Open Transactions with a total value up to and including USD$100,000 (or HKD equivalent, rounded up to
the highest HKD$1000) are required to provide a valid Visa or MasterCard credit
card number and to have at least 15% of the total value of Open Transactions in
cleared funds with Kitco in order to lock in a transaction purchase price.
·
Open Transactions with a value greater than USD $100,000
Customers
who have Open Transactions with a total value greater than USD$100,000 (or HKD
equivalent, rounded up to the highest HKD$1000) are required to provide a valid
Visa or MasterCard credit card number and to have at least 25% of the total
value of Open Transactions in cleared funds with Kitco in order to lock in a
transaction purchase price.
3.3. Locking in a
Price for Customer Sale Transactions
A price is confirmed at the time a Customer Sale
Transaction is submitted (both online as well as by telephone/in person at the
time goods are received for bullion products transactions). The price at the
time a transaction is submitted will be locked in, regardless of market
fluctuations.
3.4. Credit Cards
As
described in Sections 3.2, Customers must provide a valid Visa or MasterCard
credit card number when placing a Customer Purchase Transaction.
While
credit cards are not considered an acceptable form of payment, in the event
market loss repayments (as outlined in Section 5) or other fees (as outlined in
Section 6) become payable and remain unpaid, the credit card shall be charged
for such unpaid amounts.
By providing a valid credit card number to Kitco, the
Customer confirms that:
·
The
Customer is the named credit card holder or is duly authorized to use the
credit card; and
·
Kitco
or through its receiving agent shall charge
outstanding market loss repayments or other fees to their credit card for
amounts that remain unpaid; and
·
The
credit card may be used to lock in a price for a transaction as outlined in
Section 3.2.
3.5. Booking a
Customer Transaction
Once
a Customer has submitted their transaction and the price of their Customer
Purchase Transaction or Customer Sale Transaction has been locked in, Kitco
will book the transaction. Once the
transaction has been booked by Kitco, the Customer will receive an email to
this effect.
Kitco
may, at its sole discretion, cancel or reject an order. In cases where a
transaction has been cancelled or rejected by Kitco before it is booked, market
loss repayments, or other fees, will not be applicable.
Kitco
encourages all Customers to log into their Kitco account within twenty-four
(24) hours of submitting a purchase or sale transaction in order to verify the
transaction’s status and to review all payment procedures and settlement
options.
4.
Payment
4.1. Acceptable Methods of Payment
Kitco accepts the following methods of payment for Customer
Purchase Transactions, or payable balances:
· Bank wire
· Cleared funds on a Kitco account
Note that for any single transaction, payment can be made by
only one method in addition to funds on account. Multiple bank wires will not be
accepted as payment for a single order.
Kitco may refuse payments or funds (in any form whatsoever,
including, without limitation, cheques, bank drafts, money orders or bank
wires) received from an individual or from an entity that is not the named account
owner. Furthermore, Kitco may request
additional documentation before such payment or funds are applied to Customer’s
Kitco account.
4.2. Payment Deadlines - Customer Purchase Transactions
Payment must be sent to Kitco within one (1) Business Day from
the date on which a transaction is booked.
Payments made by bank wire must be received by Kitco no later than three
(3) Business Days from the date on which a transaction is booked.
Should a Customer fail to send payment within one (1)
Business Day from the date on which a transaction is booked, or if Kitco does
not receive payment within the deadline specified above, Kitco reserves the
right to cancel the transaction and the Customer will be liable for market loss
repayments and other fees, as described in Sections 5 and 6.
4.3. Funds on a Kitco Account
Customers may add funds to their Kitco account (also
referred to as “funds on account”).
Cleared funds on a Kitco account shall be used towards payment for
Customer Purchase Transactions, as described in Section 4.1, and may be used to
lock in a price for Customer Purchase Transactions, as described in Section
3.2. In order for funds on account to be
considered cleared, there must be no hold placed on the funds, and applicable
holding periods must have elapsed.
Funds on a
Customer’s Kitco account belong to the Customer until they are applied to a
specific transaction or used as payment for any amount due to Kitco. These funds shall be specifically identified
as money belonging to the Customer and segregated at all times from funds
belonging to Kitco.
4.3.1. Customers
residing or having their principal place of business in Hong Kong
Customers residing or having their
principal place of business in Hong Kong may use the following methods to add
funds to their Kitco Account:
·
Certified cheque, Cashier’s cheque,
Cashier Order, Official Cheque (subject to a holding period of four (4)
Business Days from the date of receipt to ensure clearance)
·
Personal and business cheques
(subject to a holding period of four (4) Business Days from the date of receipt
to ensure clearance)
·
Bank draft (subject to a holding
period of four (4) Business Days from the date of receipt to ensure clearance)
·
Bank wire
· Cash (in person only)
4.3.2. Customers residing or having their principal place of business outside
of Hong Kong
Customers residing or having their principal place of business outside of Hong Kong may add funds to their Kitco Account
by bank wire only.
4.4. Cheques
Cheques are an acceptable method of
adding funds to a Kitco account for Customers residing or having their
principal place of business in Hong Kong, as described in Section 4.3 (subject
to applicable holding periods). Cheques
must always reference Customer’s Kitco account in order for funds to be
properly applied to said account.
Cheques will be returned to the
Customer by Kitco if they are incorrectly written (for reasons which include,
without limitation, incorrect or missing date, dollar amount discrepancies,
incorrect spelling of payee or missing signature). Incorrectly written cheques will be returned to the
Customer via regular mail once the Customer has been notified by Kitco of the
returned cheque. Customers may choose to
have their cheque returned via courier upon payment of relevant shipping
fees.
Cheques are returned by the bank in
cases of fraud, counterfeiting, NSF (Non Sufficient Funds) in Customer’s account, ACL
(Account Closed) or CNT (Cannot Trace).
Returned cheques will be subject to the administrative fee described in
Section 6.1.2.
4.5. Bank Wires
Kitco’s bank wire information is
made available to the Customer at the end of the online ordering process,
through the Customer’s online account transaction details. This information is
also made available to the Customer by e-mail, once a transaction is booked.
Bank wire transfers must respect the
payment deadlines described in Section 4.2 herein. Bank wire transfers must always reference the
Customer’s Kitco account in order for funds to be properly applied to said
account.
4.5.1. International
Bank Wires
International bank wires may be
subject to correspondent bank fees that are deducted while a wire is in
transit. As Kitco’s bank is simply the recipient bank, it is impossible to
determine the fees that may be deducted by any correspondent banks. Kitco
highly recommends that all Customers sending funds from a bank outside of Hong
Kong include an additional amount on their bank wire to accommodate for any
fees that may be deducted by a correspondent bank. The Customer should confirm
with their banking institution the exact amount that may need to be included in
the wire to cover all fees that may be deducted. Kitco will always credit the entire
amount it receives to the Customer’s account.
Should no fees be deducted, the entire bank wire amount will be credited
to the Customer’s account.
Customers may also request
confirmation of any correspondent bank fees upon initiation of a bank wire. Kitco
suggests Customers contact their banking institution for further clarification.
4.6. Proceeds from Customer Sale Transactions
Settlement options for a Customer
Sale Transaction are as follows:
·
Cheque by regular mail: no service
fee
· Bank wire: USD$30.00 (or HKD equivalent) service fee for local
chats; USD$40.00 (or HKD equivalent) for International bank wires
· Deposit as
funds on Customer’s account: no service fee
Once a payment option has been
selected it cannot be altered for any reason.
Processing and settlement for
Customer Sale Transactions may take two (2) Business Days from receipt of
Precious Metals into Kitco's account.
To comply with the anti-money
laundering law and regulations applicable in our jurisdiction, Kitco does not
forward or remit any refunds, balances of funds on accounts or the proceeds
from any customer sale transaction to any individual, corporation or entity
other than the one(s) designated as the holder(s)/owner(s) of the concerned
account. Any payment from a Customer
Sale Transaction in a Business Account can be made in the business name only.
For Sole Proprietorships, payment can be made in the business name or the sole
proprietor’s name, provided proper authorization documentation has been
received by Kitco. Note that for any single transaction, payment can be made by
only one method in addition to funds on account.
4.7. Completing a Customer Transaction
4.7.1. Customer
Purchase Transactions
A Customer Purchase Transaction is
completed when payment is received in full within the payment deadlines
described in Section 4.2, provided that no hold is placed on payment, and Kitco
performs its principal obligation.
For Customer Purchase Transactions
of physical Precious Metals, Kitco 's principal obligation is presumed to have
been performed if Kitco attempted to deliver the physical Precious Metals but
was prevented from doing so by the actions or negligence of the Customer, or
when Kitco consents to the Customer taking possession of the physical Precious
Metals.
Legal ownership of the physical
Precious Metals will be considered transferred from Kitco to the Customer once
the transaction is completed.
4.7.2.
Customer Sale Transactions
A Customer Sale Transaction is
completed when Kitco has performed its principal obligation.
Legal ownership of the Customer’s
Precious Metals will be considered transferred from the Customer to Kitco once
the transaction is completed.
5.
Transaction Cancellations
When cancelling a transaction, market loss repayments may
apply as a submitted transaction constitutes a binding agreement between Kitco
and the Customer. Depending on whether a Customer transaction is a purchase or
a sale, any applicable market loss repayments will be determined based on the
following:
5.1. Customer Purchase Transactions
In the event a Customer Purchase
Transaction is cancelled (whether by the Customer or by Kitco for failure to
receive payment in full within payment deadlines, as stipulated above), market
loss repayments may be applicable. This fee is calculated based on whether
there has been a loss in market value of the Precious Metals (market loss) from
the time the price is locked in for a submitted transaction to the time a
transaction is cancelled.
For Customer Purchase Transactions
cancelled by Kitco due to non-payment, market loss repayments will be
calculated using the last available price fixing published by the London
Bullion Market Association on the day that the payment deadline expires. For transactions involving rhodium, market
loss repayments will be calculated using Kitco’s live spot price for rhodium on
the day that the payment deadline expires.
For Customer Purchase Transactions
which are cancelled by the Customer, market loss repayments will be calculated
using Kitco’s live spot price at the time a cancellation request is submitted.
Market Loss
In the event of market loss, the market loss repayment will
be equivalent to the difference between the original value of the Customer
Purchase Transaction and its value at the time of cancellation. See Example 1 below.
Market Gain
In the event of market gain: no market loss repayment will
be applicable. See Example 2 below.
Examples
|
Unit price of transaction |
Unit price of cancellation |
Quantity |
Price difference multiplied by
quantity |
Market Loss Repayment |
Example 1 |
$1,000 |
$980 |
10 oz |
($1,000 - $980) x 10 = $200 |
$200 |
Example 2 |
$1,000 |
$1,050 |
10 oz |
N/A |
$0 |
5.2. Customer Sale Transactions
In the event a Customer Sale
Transaction is cancelled, whether by the Customer or by Kitco, market loss
repayments may be applicable. This fee is calculated based on whether there has
been a gain in market value of the Precious Metals (market gain) from the time
a transaction is submitted and the price locked in to the time a transaction is
cancelled.
For Customer Sale Transactions
cancelled by Kitco, market loss repayments will be calculated using the last
available price fixing published by the London Bullion Market Association on
the date of cancellation. For
transactions involving rhodium, market loss repayments will be calculated using
Kitco’s live spot price for rhodium on the date of cancellation.
For Customer Sale Transactions which
are cancelled by the Customer, market loss repayments will be calculated using
Kitco’s live spot price at the time a cancellation request is submitted.
Market
Gain
In the event of market gain, the market loss repayment will
be equivalent to the difference between the original value of the Customer Sale
Transaction and its value at the time of cancellation. See Example 3 below.
Market
Loss
In the event of market loss, no
market loss repayment will be applicable. See Example 4 below.
Examples
|
Unit price of transaction |
Unit price of cancellation |
Quantity |
Price difference multiplied by
quantity |
Market Loss Repayment |
Example 3 |
$1,000 |
$1,020 |
10 oz |
($1,000 - $1,020) x 10 = -$200 |
$200 |
Example 4 |
$1,000 |
$950 |
10 oz |
N/A |
$0 |
5.3. Cancellation at the Customer’s request
Transactions may be cancelled at the Customer’s request,
provided payment has not been received in full. Should the Customer request a
cancellation, the above cancellation policy will be considered in effect. Fees
will be calculated based on Kitco ’s live spot price at the time a cancellation
request is submitted, as described in detail in Sections 5.1 and 5.2. Customers
must submit all requests for cancellation by telephone or in person only.
5.4. Unauthorized Sale Transaction Request
In the event that a Customer Sale
Transaction is initiated when the Customer did not request the transaction, the
Customer must notify Kitco immediately upon being made aware of the request so
that Kitco may begin examination of the claim without delay. In the event that Kitco determines that the
Customer Sale Transaction was unauthorized, the market loss repayments as
outlined in Section 5.2 will be waived.
6.
Fees
The following section outlines all fees that Kitco may
charge the Customer in relation to physical Precious Metals. Unless otherwise
specified, all fees stated are in US Dollars. For transactions in HKD, fees
will be converted based on the US Dollar exchange rate offered by Kitco.
6.1. Administrative Fees
6.1.1. Returned Cheque
An administrative fee of
USD$35.00,including applicable taxes, will be charged to Customer if a cheque (of any kind), bank
draft or money order that Customer has sent to Kitco has been returned. This includes, but is not limited to, cheques
returned due to fraud or counterfeiting, NSF (Non-Sufficient Funds) in
Customer’s account, ACL (Account Closed) or CNT (Cannot Trace).
6.1.2. Transaction Cancellations
In addition to applicable market
loss repayments, transactions cancelled pursuant to Sections 5.1, 5.2 and 5.3
will be subject to an administrative fee of USD$50.00, including applicable
taxes. This fee applies to both Customer
Purchase Transactions and Customer Sale Transactions.
6.2. Conversion Fees
6.3. Shipping and Insurance Fees
Should the Customer request that
Kitco arrange for shipping or delivery of physical Precious Metals, shipping
and insurance fees will be applicable.
6.3.1. Remote
Area Shipments
For orders shipping to remote areas (within Hong Kong or
internationally), a surcharge may be applicable in addition to the shipping and
insurance fees stated in Section 6.3.
6.3.2. Large Value
Shipments
For orders over USD$75,000.00, or for 100 oz / 400 oz gold
bars, Kitco may recommend or require shipment via armored vehicle, which will
require delivery to a business, bank, or depository service. If applicable, the Customer is responsible
for all shipping and insurance costs for armored vehicle service. A quote for shipping and insurance fees will
be provided by Kitco after a transaction has been submitted, on a case by case
basis.
6.4. Taxes and Duties
Should the Customer request delivery of physical Precious
Metals to a location outside Hong Kong, taxes and duties, including Value Added
Taxes (VATs), may be applicable, depending on the country of import. The
Customer, in agreeing to these Terms and Conditions, acknowledges that any
taxes or duties, including VATs, will be the sole responsibility of the
Customer and Kitco will not be held liable for any fees, and that the Customer
will be responsible for any importation compliance.
6.5. Pick-up and Drop-off Fees
Should the Customer submit a Purchase Transaction or convert
to physical Precious Metals and pick-up at one of Kitco’s depositories, a
pick-up fee may be applicable.
6.6. Sales Tax
All fees quoted herein and on
Kitco’s Online Store are exclusive of sales tax. Taxes may apply on some
transactions.
For more information, please contact Kitco.
6.7. Storage Fees and Account Administration Fees
If the Customer purchases physical
Precious Metals and chooses to pick up at one of the Kitco’s depository
locations, the Customer shall pick up the physical Precious Metals within 14
days (both commencement date and ending date are inclusive) from the date of
order and pay the pick-up fee as required in Section 6.5. In case that the
Customer does not pick up in time, a storage fee and account administration fee
will be applicable. The amount of storage fee and account administration fee
will be available on Kitco’s website: www.kitco.com.hk,
but in any event, the minimum account administration fee will be at least
USD$100 and the storage fee will be charged at the rate of at least USD$10 per
day.
Unless and until the Customer
settles the storage fee and account administration fee and all other fees, the
physical Precious Metals will not be released to the Customer.
Kitco has absolute discretion to
unilaterally amend the storage fees and account administration fee without
notice from time to time.
7.
Right to
Withholding and Compensation (Set-off)
To secure the repayment of any sums
payable by Customer to Kitco , including, without limitation, for transactions,
market loss repayments and fees, Customer undertakes to maintain and consents
that Kitco withholds cleared funds on Customer’s Kitco account, in an amount
corresponding to those needed to lock in a price for Customer Transactions, as
described in Sections 3.2 and 3.3. Kitco
may withhold said funds on Customer’s Kitco account until full payment has been
received.
In case of cancellation of a
transaction or non-payment by Customer of any sums payable to Kitco, Kitco shall
be entitled to operate compensation, or set-off, between sums payable by
Customer to Kitco and any funds on Customer’s Kitco account at any time,
without prior notice to Customer.
8.
Transfer and
Use of Personal Information
In the course of the Customer’s transactions with Kitco, Kitco will have access to, be entrusted with and become privy to confidential personal information belonging to the Customer. Kitco may transfer said personal information to its affiliated companies or its subsidiaries who agree to maintain the confidentiality of such transferred personal information for the purpose of charging outstanding market loss repayment. They are prohibited from using such information for any purpose other than as specified under this Agreement.
Customer hereby consents and authorizes Kitco to transfer said personal information and to its use by
Kitco’s affiliated companies or subsidiaries pursuant to the terms of this
Agreement.
For avoidance of doubt, Customer
hereby consents, agrees and authorizes that Customer’s credit card information
may be transferred to Kitco’s affiliated companies or subsidiaries and that
said affiliated companies or subsidiaries, as receiving agent of Kitco, may charge outstanding market loss repayments,
fees or any amounts that remain unpaid to the Customer’s credit card, as
described in Section 3.4.
9. Risk
9.1. Advice
Kitco has not offered or given and
will not provide any investment advice in connection with any transaction and
has not offered or given any opinion with respect to the suitability of any
transaction made or which might be made by the Customer.
The Customer warrants that Kitco has
not offered or given any investment advice to Customer in connection with the
products and services offered by Kitco.
In addition, Kitco has not given Customer any opinion with respect to
the suitability of any of its products or services for Customer.
9.2. Market Risk
Customers should carefully consider
the suitability of Precious Metals as an investment choice before taking any
decisions that may affect their financial situation. Precious Metal products
and accounts are not insured by the Deposit Protection Scheme in Hong Kong or
other similar program and may lose value.
The purchase and sale of Precious
Metals involves a high degree of risk and is not suitable for all persons. The purchase and sale of Precious Metals
provides no guarantee of interest, yield or return. Losses may be incurred both as a result of
price devaluation and if price gains do not exceed applicable fees, including
those charged herein. The Customer has
read and understands these Terms and Conditions and acknowledges that all risk
of decline in the market value of any Precious Metals is the Customer’s risk
and not that of Kitco. If the Customer
has any doubt as to the suitability of Precious Metals as an investment, the
Customer should contact an independent legal or financial advisor.
10. Kitco’s Rights
Kitco hereby reserves the following
rights and the Customer acknowledges and agrees to the following:
·
Kitco may adjust ASK and BID prices at any time without
prior notice.
·
Kitco may withdraw or limit the products or services
provided by telephone, in person and on Kitco’s Online Store, or may suspend
the availability of Kitco ’s Online Store, or suspend the booking of
transactions submitted to Kitco, without notice at any time.
·
Kitco may cancel or reject any order at any time.
·
Kitco may place limits on the amounts that may be offered
for sale or the amounts that may be bought back by Kitco in any twenty-four
(24) hour period.
·
Kitco may terminate this Agreement at its sole discretion
and may freeze an account or liquidate and close an account at any time for any
reason including but not limited to the abuse of policy, criminal activity,
circumvention of Kitco’s web security services, and any other violation of
these Terms and Conditions
11. Limitation of Liability
Kitco hereby reserves the following
rights and the Customer acknowledges and agrees to the following:
11.1. Capital Gains/Income Taxes
Kitco does not report any Customer transactions to the
government authority unless it is required by law or court order; however, the
purchase or sale of Precious Metals may be considered reportable as taxable
income in the relevant jurisdiction. It is the Customer's responsibility to
contact a financial advisor for further information. Kitco will not be held
liable for any capital gains or tax implications due to the purchase or sale of
Precious Metals by the Customer in the relevant jurisdiction.
11.2. Technical Issues
11.2.1. Electronic Order Entry Risk Disclosure and Disclaimer
Kitco specifically disclaims any liability or responsibility
for orders placed via the Kitco online order entry system, for any losses, or
direct, indirect, consequential or incidental damages, which the Customer may
recognize or incur as a result of the use of the Kitco online order entry
system. Further, Kitco specifically disclaims any liability for the
interruption, cancellation or other termination of the Kitco online order entry
system.
11.2.2. Negligence
All orders placed through the order entry system are taken
on a reasonable efforts basis. Kitco shall not be responsible for errors,
negligence or inability to execute orders. Nor shall Kitco be responsible for
any delays in the transmission, delivery or execution of Customer's order due
to breakdown or failure of transmission or communication facilities, or to any
other cause or causes beyond Kitco's reasonable control or anticipation.
11.2.3. Possible System Failure
Order entry systems have been designed to provide an
efficient and dependable method for entering orders. Commercial internet
service providers are not 100% reliable and a failure by one or more of these
providers may affect internet based order entry. The Customer acknowledges that
the order entry system is a mechanical system and as such may be subject to
failure beyond the control of Kitco .
11.3. Internet Security
Kitco adheres to the highest security measures to ensure
Customer data is protected against theft, loss, and corruption, and against the
misuse and alteration of any Customer data stored on Kitco’s servers. However,
when a Customer accesses their account via a public or unsecured computer
terminal or if a Customer chooses to share their account username and password
(“Electronic Identification Information”),
Kitco cannot guarantee the security of account data.
Sensitive communication between the Customer and Kitco’s
online store is always protected via encryption while in transit, using the SSL
encryption standard. However, the Customer should be aware that Kitco has no
control over the privacy of Customer e-mail communications with us. We highly
recommend that Customers not include private and sensitive information in
e-mails to Kitco, including, but not limited to, account numbers, balances,
passwords, Electronic Identification Information, etc. Kitco will not be held
liable for any damages suffered by Customers should they transmit confidential
or sensitive information to Kitco e-mail.
Information provided on Kitco’s website is not intended to
provide legal, accounting, or tax advice, and should not be relied upon in that
regard. Kitco is not responsible in any manner for direct, indirect, special or
consequential damages howsoever caused, arising out of the use of its website.
11.4. Indemnification
Except as otherwise expressly provided, Kitco shall not be
liable for any loss or damage, whether direct or indirect, resulting from the
transactions contemplated by these Terms and Conditions.
Kitco shall not be liable under any circumstances whatsoever
for special, incidental, consequential, indirect or punitive losses or damages
(including lost profits or lost savings), whether or not caused by the fault or
neglect of Kitco and whether or not Kitco had knowledge that such losses or
damages might be incurred.
The limitations and exclusions in this Section shall apply
to all claims of whatsoever nature, kind and description, whether arising from
breach of contract, delay or non-delivery of services, negligence or otherwise.
11.5. Force Majeure
Kitco shall
not be liable for any failure to perform its obligations hereunder due to fire,
computer viruses, network failure, computer hardware failure, explosion, flood,
lightning, act of terrorism, war, rebellion, riot, sabotage, orders or requests
of any government or any other authority, legislative changes, strikes,
lockouts or other labour disputes, or events or circumstances beyond its
reasonable control, but Kitco shall use commercially reasonable endeavors to
minimize dangers or losses to the Customer as a consequence of such events.
12. Customer Obligation and Liability
12.1. Ownership and Authority
Customer hereby warrants that it is either the owner or the authorized
agent of the owner of any Precious Metals sent or brought to Kitco for the purpose of
a Customer Sale Transaction.
Customer further warrants that it is authorized to accept and is
accepting the terms of this Agreement not only for itself but also as agent for
or on behalf of all other parties who have or may hereafter have any interest
in said Precious Metals.
12.2. Compliance and Due Diligence
The Customer is responsible for complying with all laws of
the jurisdiction from which the Customer accesses the Kitco Website or receives
the services described herein, and the Customer shall at all times be solely
responsible for obtaining any authorizations required by any authoritative body
in such jurisdiction.
The Customer has carried out reasonable due diligence to
ensure that the purchase and sale of Precious Metals as provided under these
Terms and Conditions is not contrary to any laws or regulations of the
Customer’s governing jurisdiction, and that the acceptance of these Terms and
Conditions by the Customer and the entering into of a Customer Purchase
Transaction or Customer Sale Transaction is not contrary to any federal,
provincial, state, special administrative region, city, or any other law or
regulation applicable to the Customer.
12.3. Protection of Electronic Identification Information
It is the Customer’s obligation to ensure that its
Electronic Identification Information is kept secret. The Customer agrees to keep their Electronic
Identification Information and all components thereof secret and safe to
prevent unauthorized use.
12.4. Notification
If a Customer believes that any transaction or balance
recorded in their account is incorrect, the Customer must contact Kitco
immediately to notify Kitco of suspected unauthorized use of Customer’s
Electronic Identification Information.
Customers are responsible for ensuring the accuracy of the information
displayed in their account, howsoever accessed.
Kitco will not be held liable should a Customer fail to disclose any
unauthorized use of Electronic Identification Information and Customer’s Kitco
accounts.
12.5. Customer Liability
Kitco will be under no obligation to confirm the actual
identity or authority of any user of the Electronic Identification Information
or any component thereof.
The Customer will not be responsible for any unauthorized
use of Electronic Identification Information occurring after notifying Kitco of
the suspected unauthorized use as indicated in sub-section 13.4 above.
13.
Intellectual Property, Trademarks,
Logos
All of the intellectual property rights including without
limitation trademarks, service marks, trade names, copyright and other rights
used or embodied in this website are and will remain the sole property of Kitco
(or its suppliers where applicable).
All information and material supplied by Kitco, constitutes
part of Kitco's confidential and proprietary information and no Customer
participating in any of its programs may reproduce, copy or disclose such
information without the prior written consent of Kitco.
No party accessing this website may attempt to tamper with,
modify, reverse engineer, gain unauthorized access to, or in any way alter any software
used in Kitco’s programs or comprising Kitco’s website.
14. Miscellaneous
14.1. Insolvency
In the event: (i) that a liquidator, receiver or
trustee is appointed in respect of the property and assets of the Customer as a
result of the latter’s liquidation or bankruptcy, and (ii) that Kitco is
requested by the liquidator, receiver or trustee to remit any Customer
holdings, the liquidator, receiver or trustee will direct any Customer holding
liquidation requests to Kitco. Any inquiries by the said liquidator, receiver
or trustee regarding the present Agreement between the Customer and Kitco shall
be directed to Kitco.
14.2. Death of Customer
In the event of a Customer (individual or partner of a
partnership) death, Kitco will require full documentation of the Customer’s
estate, including a copy of death certificate, will or trust documentation, and
any probate information if applicable. Upon confirmation of a Customer
(individual or partner of a partnership) death, Kitco will freeze the
Customer’s account and act in accordance with the conditions set out in the Probate or Letters of Administration, and the instructions of the
trustee, administrator or executor of the Customer’s estate. It is the sole
responsibility of the Customer to ensure that such documentation will be
provided for in the event of death.
14.3. Changes to Terms and Conditions
Kitco reserves the right to amend
these Terms and Conditions, any applicable fees and charges, or any services,
rights or obligations provided for herein at its sole discretion, at any time,
without prior notice to the Customer. Acceptance of these Terms and Conditions
is limited to the acknowledged transaction and is not applicable to any future
transactions. The Customer will be responsible for accepting the Terms and
Conditions for every subsequent transaction.
14.4. Applicable Law
This Agreement shall be construed in
accordance with and governed by the laws applicable in Hong Kong. The Parties
hereby irrevocably submit to the non-exclusive jurisdiction of the Courts of
Hong Kong in respect of all matters or disputes arising from the Agreement,
except as otherwise specifically stated herein.
14.5. Binding Effect
This Agreement is binding upon the
parties hereto and their respective successors, heirs, legal representative and
permitted assigns.
14.6. Severability
In the event that any provision in
this Agreement is determined to be invalid, illegal, or unenforceable, such
determination shall not affect the validity and enforceability of any other
remaining provisions of this Agreement.
14.7. Language
The parties hereto have expressly
required that this agreement and all deeds, documents or notices relating
thereto be executed in the English language. Should there be a Chinese
translation and there be any discrepancy between the English version and
Chinese version, the English version shall prevail.
14.8. Privacy
Kitco respects your privacy. Our privacy policy is available at: https://online.kitco.com.hk/privacy_policy_ENU.html
Kitco (Asia) Limited
Online Store Terms & Conditions-v4.0
This document contains confidential
and proprietary information of Kitco (Asia) Limited