TERMS AND CONDITIONS FOR TASMETALS OÜ
Effective from [*]
TASMetals OÜ, registry code 14450014, address Paenurme tee 31, Lubja küla, Viimsi vald, Harju maakond, 74010, Estonia (hereinafter: TASMetals) is the owner of the online marketplace at www.[sisestada veebiaadress] (hereinafter: Marketplace).
1. Essence of the Marketplace and general terms
1.1 The Marketplace is an online platform created and administered by TASMetals through which TASMetals offers its customers (hereinafter: Customer; TASMetals and Customer also referred together: Parties) different services, including making transactions for buying and selling different types of metals.
1.2 These terms and conditions (hereinafter: Terms and Conditions) apply to all legal relationships which arise between the Customer and TASMetals. The Customer is obliged to read the Terms and Conditions. All Customers are legally bound by these Terms and Conditions.
2. Registering an Account
2.1. In order to gain access to the Marketplace, the Customer shall register a user account (hereinafter: Account).
2.2. For registering the Account, TASMetals shall identify the Customer via the internet. The Customer is obligated to submit TASMetals all the data necessary for identifying him or her and any other data requested by TASMetals.
2.3. If a person registers the Account on behalf of a Customer that is a legal person, such representative confirms that he or she has the right to represent and conclude contracts in the Marketplace on behalf of the Customer. TASMetals shall identify the representative and the representative is obligated to submit all data required by TASMetals.
2.4. Registration must be confirmed by TASMetals before an Account is created. Once the registration is confirmed, the Parties have entered into an agreement with an unspecified term by which the Customer has the right to use the Marketplace. TASMetals shall have the right to decide with whom to enter into the agreement and has the right to refuse it for a good reason, including in the following cases:
2.4.1. the Customer does not meet the requirements set forth in the law or the Terms of Conditions;
2.4.2. the Customer refuses to submit the data requested by TASMetals or submits data which is false or insufficient;
2.4.3. there is reason to suspect the Customer of money laundering, terrorist financing or any other illegal activity;
2.4.4. the Customer is a person with a heightened risk or is engaged in a state or field of activity of a heightened risk in the context of the rules for preventing money laundering and terrorist financing.
3. Purchasing metals
3.1. The Customer can issue requests for purchasing metals from TASMetals. To issue such a request, the Customer shall:
3.1.1. choose “Buy” in the Marketplace;
3.1.2. select the Account under which the Customer wishes to make the purchase;
3.1.3. choose the type of metal the Customer wishes to buy;
3.1.4. enter the amount of money the Customer wishes to spend on the purchase.
3.2. The invoice in the amount entered by the Customer is then displayed in the Marketplace and sent to the Customer’s email address.
3.3. After the invoice has been paid and the money has been received by TASMetals, TASMetals shall confirm the request. The Customer can check the status of the requested purchase in the Marketplace.
3.4. When requesting the purchase, the Customer is shown the last fixing of the price of the metal that was determined at 12 AM Estonian time of the previous banking day (hereinafter: Last Fixing). As such, the price applicable to the final purchase is unknown at the time of making the request and is calculated as follows (hereinafter: Applicable Fixing):
3.4.1. if the request is confirmed on a banking day but before 12 AM Estonian time – the transaction is executed according to the price fixed at 12 AM Estonian time of the previous banking day;
3.4.2. if the request is confirmed at 12 AM Estonian time or later during a banking day or not on a banking day – the transaction is executed according to the price fixed at 12 AM of the next banking day.
3.5. All purchases are executed at 12 AM Estonian time on a banking day. After the purchase has been executed, the metals in the maximum amount it was possible to purchase them according to Applicable Fixing shall be debited to the Account.
3.6. The purchased metals are deposited at TASMetals’ vault and the Customer shall obtain ownership of the metals. TASMetals shall not send or ship metals to Customer nor arrange any such service. If the Customer wishes to gain possession of the metals, the Customer shall pick up the metals as provided in section 5.
4. Selling metals
4.1. The Customer can make requests for selling metals to TASMetals. To do such request, the Customer shall
4.1.1. choose “Sell” in the Marketplace;
4.1.2. select the Account under which the Customer wishes to make the sale;
4.1.3. choose the type of the metal the Customer wishes to sell;
4.1.4. enter the amount of metal the Customer wishes to sell in EUR (the daily limit for selling is 4000 EUR).
4.2. The sell value entered by the Customer can be up to 90% of the amount the Customer owns of that specific metal as calculated per Last Fixing prices (e.g. if Customer wants to sell Silver AGD and the Customer owns 1000g of it and the Last Fixing for 1000g of Silver AGD is 500 EUR, the Customer may enter maximum of 450 EUR). If the Customer wishes to sell more than 90% of the metals in the relevant Account or all the metals in said Account, the Customer can instead choose “Empty Account”.
4.3. If the Customer wishes to empty an Account, the Customer shall:
4.3.1. choose “Empty Account” in the Marketplace;
4.3.2. select the Account which shall be emptied.
4.4. In any case, the daily limit for selling metals is 4000 EUR.
4.5. The request for sale must be confirmed by TASMetals before the sale is executed. The Customer can check the status of the requested sale in the Marketplace.
4.6. The Customer hereby warrants that when requesting the sale, the Customer is shown the Last Fixing but the price applicable to the final sale is calculated according to the Applicable Fixing (as explained in section 3.4).
4.7. All sales that have been confirmed are executed at 12 AM Estonian time on a banking day. After the sale has been executed, the Account shall be updated and the Customer shall lose ownership of the corresponding metals sold with the price of Applicable Fixing in the amount indicated by the Customer (see section 4.1.4). TASMetals shall transfer the proceeds (see section 4.1.4) to the Customer’s bank account on the same day when the sale was executed but the specific date and time of the arrival depends on the Customer’s bank.
5.1. TASMetals shall not send or ship metals to Customers nor arrange any such service. The Customer may collect the metals which the Customer owns from TASMetals’ vault located at [*]. For collecting the metals, the Customer has to request the pick-up via Marketplace as follows:
5.1.1. choose “Pick-Up” in the Marketplace;
5.1.2. select the Account from which the Customer wishes to collect metals;
5.1.3. choose the type of the metal and its amount the Customer wishes to collect in grams.
5.2. TASMetals and the Customer shall agree on a time and date when the Customer shall collect the requested metals from TASMetals’ vault. When collecting the metal, the Customer shall immediately examine whether the metals are compliant with the request (e.g. whether the amount of the metal is correct). If any incompliance appears, the Customer must immediately notify TASMetals or loose the right.
5.3. The request for pick-up must be confirmed by TASMetals before any pick-up can be conducted. After the pick-up has been confirmed and conducted, TASMetals shall update the Account of the Customer.
5.4. If the metal which the Customer collects is in the form of coins or any other form in which the metals are in physically separate pieces (e.g. a metal bar) and have different identifiers (e.g. serial numbers), it is at TASMetals’ discretion which specific coins or other pieces of metals are issued to the Customer.
6.1. TASMetals collects an annual fee for depositing the Customer’s metals. The annual fee is collected on 31st of May of each year. The annual fee is 0,4% of the metals owned by the Customer on the date of collection of the fee and is calculated as explained in section 7.3.
6.2. In addition to the annual fee, TASMetals also collects the following one-time fees (all calculated according to section 7.3.) which are deducted from the Account in the course of transaction:
6.2.1. for pick-up (section 5) the fee is 0,4% of the metals which the Customer collects.
6.2.2. for emptying Account (section 6) the fee is 0,4% of the metals which the Customer sells.
6.2.3. for purchasing metals (section 3) the fee is [*] of the metals purchased.
6.2.4. for selling metals (section 4) the fee is [*] of the metals sold.
6.3. If it is physically possible to divide 0,4% of the metals, the fee is 0,4% of the metals. If it is not physically possible to divide 0,4% of the metals, the fee is the smallest separable unit of Customer’s metals (e.g. one coin).
7. Customer’s rights
7.1. The Customer (including the Customer who is a consumer) does not have the right of withdrawal from the request of purchase or sale (including emptying of an account).
7.2. If the services provided by TASMetals are in breach of the terms of the contract concluded between the Parties, the Customer has the right to use legal remedies provided by the law: (a) require performance of the obligation; (b) withhold performance of an obligation which is due from the Customer; (c) demand compensation for damage; (d) withdraw from or cancel the contract; (e) reduce the price; (f) in the case of a delay in the performance of a monetary obligation, demand payment of a penalty for late payment.
7.3. Any complaint against TASMetals can be filed by e-mail to [insert e-mail address] or by post to Paenurme tee 31, Lubja küla, Viimsi vald, Harju maakond, 74010, Estonia. Such notification must include the Customer’s name, contact information, date of submitting the notification, description of the complaint and the content of the offered solution of the complaint.
8. Restrictions of use
8.1. If the Customer is a natural person, the Customer must be at least 18 years old with full legal capacity to use the Marketplace and conclude contracts with TASMetals. By agreeing the Terms and Conditions, the Customer represents and warrants that he or she is at least 18 years old and with full legal capacity.
8.2. The Customer confirms that he or she is not a national or a resident of (or a legal entity established in) the United States of America, Canada or Japan and the Customer’s bank account is not located in the aforementioned countries.
9. TASMetals’ rights
9.1. To prevent any illegal activity, including money laundering and terrorist financing and infringement of Terms and Conditions, TASMetals has all rights set forth in the law, including the right to:
9.1.1. stop providing its services to the Customer and/or cancel the agreement with the Customer at any time and without explanation;
9.1.2. regularly check the data which is basis for the identification of the Customer and/or its representative;
9.1.3. request submission of any additional data from the Customer or request the Customer to perform any other action considered necessary by TASMetals to observe the applicable laws;
9.1.4. identify the Customer, its representative and the beneficial owner (where applicable);
9.1.5. seize the Customer’s Account and any metals owned by the Customer if such obligation derives from the law.
9.2. TASMetals may stop providing its services to the Customer without notifying the Customer in advance if the Customer has violated any applicable law, the Terms and Conditions or does not comply with any requests or obligations deriving from section 10.1.
9.3. TASMetals has the right to execute maintenance and development works of the Marketplace. The Customer shall be notified of such works in advance. Upon extraordinary circumstances, TASMetals has the right to execute maintenance and development works of which the Customer shall not be notified in advance.
9.4. The performance of TASMetals’ obligations to the Customer arising from the Terms and Conditions are considered as suspended for the period of maintenance and development. TASMetals is not obligated to compensate the Customer for the damage arising from failure to perform such obligations due to maintenance or development.
10. Customer’s obligations
10.1. The Customer shall notify TASMetals immediately of all data and circumstances which may be relevant for the relationship between the Customer and TASMetals, including of the following:
10.1.1. changes of any data which the Customer has given to TASMetals for establishing the Customer relationship;
10.1.2. loss of possession of the identity document or any other identification instrument used for identifying the Customer or its representative;
10.1.3. if the Customer is a legal person, initiation of insolvency proceedings (including bankruptcy proceedings) or deletion of the legal person.
11.1. The Parties are liable to each other for infringing the Terms and Conditions. However, under no circumstances will TASMetals be liable for loss of profit, pure economic loss and indirect damages.
11.2. The Customer is responsible for making sure that the submitted data to TASMetals is correct and up to date. If any of the submitted information changes, the Customer shall update it on the Account immediately or notify TASMetals. TASMetals shall not take any liability for consequences which are caused by incorrect or outdated information.
11.3. TASMetals is not liable for any mistakes, insufficient data or transmission errors contained in the request given by the Customer to TASMetals. In case of any ambiguities, TASMetals has the right to demand additional information from the Customer and postpone the execution of the request until TASMetals receives additional information from the Customer which clears the ambiguities.
11.4. TASMetals is not liable for any actions or omission carried out by a third party or any damages which may be caused due to such actions or omission. TASMetals is not liable for any delays in bank transfers which arise from the Customer’s bank.
11.5. If TASMetals has the right to suspend provision of services to the Customer according to the Terms and Conditions or aplicable law, TASMetals shall not be liable for any damages or loss to the Customer or a third party arising from such circumstances.
11.6. The Customer is responsible for keeping his or her password confidential. The Customer shall not share the password with anyone.
11.7. TASMetals does not warrant that the Customer will be able to access the Marketplace at all times or locations. The Customer warrants that TASMetals cannot fully guarantee error free operation of Marketplace.
12. Governing law and dispute resolution
12.1. The Terms and Conditions and the legal relations deriving from it between the Parties shall be governed by the laws of the Republic of Estonia.
12.2. If any disputes arise out of or relating to the Terms and Conditions, the Parties shall attempt to resolve them through negotiations. If the matter is not resolved by negotiations, the Harju County Court located in Estonia will have exclusive jurisdiction as court of first instance of all disputes arising out of the Terms and Conditions.
12.3. If the Customer is a consumer, the Customer also has the right to turn to the Committee for Consumer Complaints formed at the Consumer Protection Board (Pronksi 12, Tallinn, 10117; https://komisjon.ee/et) to reach an out-of-court settlement. This committee solves contractual disputes between consumers and businesses which the parties were not able to resolve by negotiations. Moreover, the Customer may turn to European Commission’s Online Dispute Resolution platform (https://ec.europa.eu/).
13. Processing of personal data
13.2. Where the Customer as a legal entity submits personal data to TASMetals regarding persons related to that entity (e.g. its beneficial owners) but the representative of the Customer submitting the data himself or herself is not the person whose personal data is submitted, the processing is conducted according to the Procedure for Processing Personal Data (annex 1 of the Terms and Conditions).
14. Final provisions
14.1. TASMetals has the right to amend the Terms and Conditions unilaterally. In this case the Customer will be notified of such amendments via the Marketplace or via e-mail. If the Customer does not accept the amended Terms and Conditions, the Customer is obliged to request to empty the Account and/or pick up all metals within 30 days upon the notification of the amended Terms and Conditions.
14.2. If any of the provisions of the Terms and Conditions shall be held invalid or unenforceable, the remaining provisions shall remain valid and enforceable.
14.3. Annexes to the Terms and Conditions constitute an integral part of the Terms and Conditions. If any contractions arise between annexes and Terms and Conditions, the Parties shall apply the provision which is newer.
ANNEX 1 OF THE TERMS AND CONDITIONS – PROCEDURE FOR PROCESSING PERSONAL DATA
This data processing agreement is concluded between the Customer and TASMetal where the Customer as a legal entity submits personal data to TASMetals regarding persons related to the Entity (e.g. its beneficial owners). In such a case the Customer is considered as a data controller and TASMetals as a data processor. Principles for processing such personal data are set forth in this Procedure for Processing Personal Data (hereinafter: Procedure).
1. Obligations of TASMetals
1.1. TASMetals agrees with the following and warrants that:
1.1.1. TASMetals shall process personal data only on behalf of the Customer, and in accordance with the instructions given by the Customer and the Procedure, including with regard to transfers of personal data to a third country or an international organisation, unless required to do so by law to which the TASMetals is subject to. In such a case TASMetals shall inform the Customer of that legal requirement before processing, unless that law prohibits such information on important grounds of public interest;
1.1.2. no circumstances occur that hinder or exclude TASMetals’ ability to follow the instructions given by the Customer or obligations deriving from the Procedure;
1.1.3. TASMetals ensures that persons authorised to process the personal data have committed themselves to confidentiality;
1.1.4. TASMetals takes all measures required pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council (hereinafter: GDPR) article 32 and that TASMetals has implemented technical and organisational security measures for protecting personal data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to personal data transmitted, especially when processing includes transmitting data using network, and against any other illegal processing;
1.1.5. taking into account the nature of the processing, TASMetals assists the Customer by appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to requests for exercising the data subject’s rights laid down in GDPR Chapter III;
1.1.6. TASMetals assists the Customer in ensuring compliance with the obligations pursuant to GDPR articles 32 to 36 taking into account the nature of processing and the information available to TASMetals;
1.1.7. after the end of the provision of services relating to processing on behalf of the Customer, TASMetals deletes all the personal data and existing copies, unless law requires storage of the personal data;
1.1.8. TASMetals makes available to the Customer all information necessary to demonstrate compliance with the obligations laid down in GDPR article 28 and allows at the request of the Customer to conduct audit regarding the means, procedure and location of processing personal data which shall be conducted by the Customer or inspection body chosen by the Customer (and if required, such choice is conciliated with the supervisory authority) which consists of independent members who have the required professional skills and who are bound by requirement of confidentiality. TASMetals shall notify the Customer immediately if, in its opinion, such instruction infringes the law;
1.1.9. TASMetals shall correctly and within reasonable time address all requests made by the Customer which relate to processing personal data and shall comply with all instructions of supervisory authority as regards to processing personal data.
2. The scope of processing personal data and its principles
2.1. The Customer may from time-to-time transfer TASMetals the following personal data:
2.1.1. Personal data of the Customer’s beneficial owners;
2.1.2. Information whether any and which beneficial owner has been entrusted with prominent public functions or whether beneficial owner is a close associate or family member to such person (i.e. politically exposed person according to the law);
2.1.3. Customer’s representatives, members of management and supervisory board;
2.1.4. Customer’s shareholders.
2.2. TASMetals shall retain personal data for up to 5 years from the end of the business relationship with the Customer. The data of importance for prevention, detection or investigation of money laundering or terrorist financing may be retained for a longer period, but not for more than 5 years after the expiry of the first time limit, if so requested by a precept of the competent supervisory authority. Personal data contained in any accounting documents (e.g. invoices) shall be retained for 7 years from the end of the last financial year they relate to.
2.3. The purpose (and nature) of processing personal data is the compliance with legal or regulatory obligations or requests, including the obligations and requests regarding prevention of money laundering and terrorist financing regulation.
3.1. Hereby the Customer gives TASMetals authorisation to engage the following sub-processors to process personal data:
3.1.1. companies which provide TASMetals server computing services in which TASMetals stores and processes personal data, e.g. [sisestada praegune teenusepakkuja] ([sisestada teenusepakkuja asukohamaa - kui väljaspool EL-i, tuleb lisada veel täiendavat infot]);
3.1.2. companies which provide TASMetals e-mail server services where TASMetals uses emails for transferring personal data between TASMetals employees, e.g. Zone Media OÜ (Estonian entity);
3.1.3. companies which provide TASMetals service for developing and maintaining TASMetals’ ICT systems where it is necessary for providing Services, e.g. Dealport OÜ (Estonian entity);
3.1.4. companies which provide TASMetals accounting service where it is necessary for providing Services, e.g. Dealport OÜ (Estonian entity).
3.1.5. [lisada, kui isikuandmeid saadetakse veel kolmandatele isikutele]
3.2. Hereby the Customer gives a general authorisation to TASMetals to engage additional sub-processors at TASMetals’ discretion. If TASMetals wishes to engage additional sub-processors, TASMetals shall inform the Customer by amending the list of sub-processors set forth in the annex 1 of the Terms and Conditions. The Customer has a right to submit an objection to the new sub-processor(s) within 2 weeks of amending the Terms and Conditions. If such objection is submitted, the Customer must stop submitting personal data to TASMetals and the Customer has to stop using the Marketplace.
3.3. TASMetals has concluded contracts with sub-processors (and shall conclude contracts with new sub-processors) which provide sufficient guarantees to implement appropriate technical and organisational measures in such a manner that the processing will meet the requirements of the law.
4. Final provisions
4.1. All the rights and obligations deriving from the Procedure shall transfer and are binding to the legal successors of TASMetals and the Customer.