General Terms and Conditions (hereinafter, the "Terms of Service") of Sapphire Private Assets Pty. Ltd., (ABN: 34 613 892 023) (hereinafter, “Sapphire Capitals”), October 2020.
These Terms of Service and any terms expressly incorporated herein apply to any access to, or use of, any services made available by Sapphire Capitals and using the website www.sapphirecapitals.com (the “Site”) or related websites (which are accessible by visiting any number of websites including the popular social media websites such as Facebook, Twitter, LinkedIn, Instagram and YouTube) or our mobile applications (when available) and to any other related services provided by Sapphire Capitals (collectively, the “Services”). Any and all visitors to our Site and user of Sapphire Capitals’ Services shall be deemed as "User" or “Customer” of the herein contained Services provided for the purpose of this Terms of Service. By ticking the box at the Cart Summary page of the website while checking out at the time of purchase of Services, “you”, the User or the Customer agrees to be bound by these Terms of Services.
Sapphire Capitals provides all Services relating to the usage of application software (hereinafter "Software") to its Customers (the Customer and Sapphire Capitals hereinafter also jointly referred to as the "Parties") on the basis of these General Terms and Conditions as applicable at the time the respective agreement has been entered into.
The provisions of these Terms of Service may be amended by Sapphire Capitals without notice at any time. Sapphire Capitals’ responsibility will be limited only to the extent of sending the text of the amendment to the e-mail address provided by the Customer 30 days before any such amendments are made. If the Customer does not agree to the amendments, the Customer will have the right to terminate the Services; such terminations will be governed by the provisions of Termination rights of the parties.
The use of the Software is reserved for registered Customers only. Customers do not have a claim to registration. Sapphire Capitals reserves the right to request proof of the identity and creditworthiness of the Customer as part of the registration process and to refuse registration of a person without giving reasons.
As part of the registration process, the Customer has to provide all required information completely and truthfully and subsequently update such information without delay in the event of any change. Following submission of all required data by the Customer during the registration process and acceptance of the registration by Sapphire Capitals, the Customer will receive a confirmation e-mail advising access to the Services purchased by the Customer. The Customer may access the Services by visiting the relevant URL or Site, based on the Services subscribed, and by entering his/her personal username and password on the Website.
The Customer undertakes to keep his/her access data secret and to protect the access data from access by unauthorized third parties. The Customer is solely responsible for the confidentiality and protection of his/her access data. If the Customer passes on his/her access data to third parties, he or she undertakes to transfer the obligation to comply with these General Terms and Conditions to the third party. The Customer shall be liable for all direct and consequential losses incurred by Sapphire Capitals if the Customer does not comply with the foregoing obligation. However, the foregoing shall not apply in the event of misuse of access data by third parties without fault on the part of the Customer. In case the Customer loses his/her access data or in case of suspicion that unauthorized third parties have become aware of the access data, the Customer is obliged to promptly change the password or notify Sapphire Capitals by e-mail to email@example.com to arrange for the Customer account to be blocked.
After registration on the Website, the Customer confirms that the General Terms and Conditions were read, understood and explicitly accepted by clicking on the tick box which reads "I accept the Terms of Service.". By clicking on the "Pay now" button, the Customer submits a binding offer to conclude a contract with Sapphire Capitals for the usage of the Software and Services (with costs). The acceptance of this offer and thus the conclusion of the contract are affected by sending an order confirmation to the Customer by e-mail to the e-mail address provided by the Customer. Sapphire Capitals shall be entitled to demand proof of the identity and creditworthiness of the Customer before accepting an order. Any offers made by Sapphire Capitals shall be free and non-binding and merely represent an invitation for the Customer to submit an offer.
The Customer shall be granted a non-exclusive, non-transferable and non-sub-licensable right to use the Software and Services limited to the duration of the contractual relationship.
Customer is entitled to run up to a maximum of 50 reports per calendar month for each of the Software services subscribed. The number of reports run by the Customer will be reported in the dashboard for each Software service. Customer will have the option to buy more reports in the calendar month when the monthly limit is exceeded.
The Customer shall not be entitled to (reversely) develop, decompile, disassemble, modify or duplicate the Software in any manner or make the Software publicly available or use parts of the Software to create a separate application. The Customer shall also not be entitled to embed any part of the Software or Services in any website or applications without express permission from Sapphire Capitals.
The Customer shall be obligated to provide appropriate precautions to prevent unauthorized access by Third Parties to the Software or the documentation.
Copyright notices and any other features identifying the program shall not be removed or altered in any event.
The Customer shall be solely responsible for the establishment of a functioning and adequately dimensioned hardware and application software environment for the usage of the Software and Services. The Site provides tutorials and explanatory notes on the use of the Software and Services. The Customer shall be responsible for the installation of the Software and, if necessary, any patches, updates and upgrades.
In case the specified system requirements are not met and/or an adequate internet connection is not available, this may lead in particular, but without limitation, to delays in the displaying of market data, data delivery failures for market data or historical prices as well as general problems with performance.
The Customer may use the Software on any hardware available. The usage of the Software on more than one set of hardware at a time is not permitted, in particular, any actions allowing more than one user to work with the Software simultaneously. If the Customer wishes to deploy the Software on several hardware configurations at the same time and/or have more than one user of the Software at the same time, i.e. usage by several employees simultaneously, the Customer shall be obligated to acquire the corresponding number of licenses. Further, any non-public reproduction enabling any work results of the program execution to be used simultaneously, such as the private display of the program execution to more than one user of the Customer shall be inadmissible. However, any non-public reproduction not serving the purpose to obtain any work result without additional remuneration, such as training courses on the program or the setting-up of the program by the system administrator, shall be admissible. In case of changes of hardware, the Customer shall be obligated to delete the Software on the hardware previously used.
The Customer shall not allow any Third Parties to use, in particular, to rent or borrow, the Software and any other accompanying material, neither against payment or free of charge nor limited or unlimited in time.
The Customer shall not be entitled to transfer, assign or sublicense any rights of use, claims or obligations of the contractual relationship with Sapphire Capitals to Third Parties, including affiliated companies and close relatives, without the prior written consent of Sapphire Capitals; these terms shall be interpreted broadly in case of doubt.
The Customer acknowledges that past results and past patterns are no indication of future performance, in particular, future market trends. Sapphire Capitals neither recommends nor approves of any particular financial instrument, group of securities, segment of industry, analysis interval or any particular idea, approach, strategy or attitude. Further, Sapphire Capitals hereby excludes any explicit or implied trading recommendation, in particular, any promise, implication or guarantee that profits are earned and losses excluded, provided, however, that in case of doubt, these terms shall be interpreted in a broad sense. Any information provided by means of the Software or on the Website shall not be construed as any kind of guarantee, warranty or representation in a prospectus. The Customer is solely responsible for the results or the trading strategy that is created, developed or applied. Indicators, trading strategies and functions of the Software may contain logical or other errors leading to unexpected results, faulty trading signals and/or substantial losses. Sapphire Capitals neither warrants nor guarantees the accuracy, completeness, quality, adequacy or content of the information provided by means of the Software or on the Website, in particular, as a result of any error of the Software. The Customer is obligated to comply with any applicable capital market rules of the applicable jurisdiction.
The statutory warranty provisions shall apply.
Product descriptions may provide performance or service descriptions to reflect the state of development, but shall not be construed as guarantees. Any guarantee is subject to an explicit written declaration by Sapphire Capitals.
The Customer shall be obligated to notify Sapphire Capitals in writing with details of any defects of the Software and, if applicable, its documentation, which have been detected or should have been detected after examination immediately, or at the latest within seven days, after the conclusion of the contract (hereinafter "Notice of Defect"). If the Customer fails to submit a Notice of Defect, the Software and, if applicable, its documentation shall be deemed to be approved and any warranty and indemnity claims as well as the right to rescission on the grounds of error or defect shall be excluded.
In the event of a justified and timely Notice of Defect, Sapphire Capitals shall have the right to choose to remedy the defects of the Software and, if applicable, its documentation by way of troubleshooting, replacement purchase, updates and / or upgrades. The Customer shall be obligated to install any such updates and / or upgrades.
The agreed warranty period is six months.
Sapphire Capitals shall remedy any defects within a reasonable period of time, whereby the Customer shall enable Sapphire Capitals to undertake all measures necessary to examine and remedy any defects. If Sapphire Capitals culpably fails to remedy any defect within a reasonable period of time, the Customer shall be entitled to reduce the license fee proportionately. In case of Sapphire Capitals’ willingness to remedy any defect, any costs arising by using Third Parties shall be borne by the Customer.
Sapphire Capitals shall be entitled to refuse the remedy of defects, in case such remedy is impossible or entails disproportionate efforts or costs. In this event, the Customer shall have the statutory right to rescind the contract or to reduce the license fee.
Sapphire Capitals shall be under no liability in respect of any defects arising from errors caused by the Customer's installation or usage of the Software. Further, any warranty and liability claims shall be excluded for defects resulting from improper usage of the Software by the Customer, operation of the Software with inadequate power sources, operation with the incorrect type or voltage of electricity, fire, lightning, explosions, mains-related overvoltage or humidity of any kind. Furthermore, any warranty and liability claims for defects caused by modification of the Software by the Customer or Third Parties shall be excluded.
According to the latest state of the art, there is no process to guarantee an error-free execution of software. As a result, Sapphire Capitals shall not assume any liability for a continuous, error-free operation and permanent usability of the Software during the term of the contract.
The subscription fee shall be due and payable in advance for each month for monthly subscription and for each year for annual subscription respectively. Payment shall be deemed in time when received by Sapphire Capitals.
Unless agreed otherwise, the prices shown on the Website valid on the day of conclusion of the contract including statutory value-added tax shall apply.
Any discounts or rebates granted to the Customers shall only apply to the respective delivery and service of the Software and/or for a definite period of time, and are not granted for any subsequent deliveries and services of the Software and/or an indefinite period of time.
The Customer is entitled to choose one of the given payment methods available on the Website before the end of the ordering process. All payment must be made in advance without any deduction.
Any services of Sapphire Capitals agreed upon separately with the Customer and rendered in the course of an assignment which are not explicitly compensated by the agreed subscription fee will be charged separately. Any cash expenditures, expenses, travel costs, etc occurring in the course of fulfilment of the contract and/or assignment shall be reimbursed by the Customer upon the submission of the respective invoices by Sapphire Capitals.
To the extent permitted by law and irrespective of the legal grounds, Sapphire Capitals shall only be liable to the extent any damage is caused by gross negligence or wilful misconduct. To the extent permitted by law, any liability of Sapphire Capitals for slight negligence shall be excluded. Any liability for personal injury shall remain unaffected.
Further, Sapphire Capitals shall not assume any liability for system failures, disturbances, data loss and viruses resulting from external attacks or any other reason, unless such damages were caused by the wilful misconduct or gross negligence of Sapphire Capitals.
The Customer shall be obligated to indemnify and hold Sapphire Capitals harmless against any Third Party claims, to the extent permitted by law.
In case of force majeure, work conflicts, natural catastrophes as well as any other circumstances that are beyond the control of Sapphire Capitals and/or in case of reasons not related to Sapphire Capitals which delay the fulfilment of a contract, Sapphire Capitals does not assume any liability.
Customers herein agree to insure and hold Sapphire Capitals, its subsidiaries, affiliates, agents, employees, officers, partners and/or licensors blameless or not liable for any claim or demand, which may include, but is not limited to, reasonable attorney fees made by any third party which may arise from any content a user of the Site may submit, post, modify, transmit or otherwise make available through our Services, the use of Sapphire Capitals’ Services or your connection with these Services, your violations of the Terms of Service and/or your violation of any such rights of another person.
You do hereby acknowledge and agree that Sapphire Capitals’ Services and any essential application software that may be used in connection with our Services shall contain proprietary and confidential material that is protected by applicable intellectual property rights and other laws. Furthermore, you herein acknowledge and agree that any Content which may be contained in any advertisements or information presented by and through our Services or by advertisers is protected by copyrights, trademarks, patents or other proprietary rights and laws. Therefore, except for that which is expressly permitted by applicable law or as authorized by Sapphire Capitals or such applicable licensor, you agree not to alter, modify, lease, rent, loan, sell, distribute, transmit, broadcast, publicly perform and/or created any plagiaristic works which are based on Sapphire Capitals’ Services (e.g. Content or Software), in whole or part.
In the event you have a dispute, you agree to release Sapphire Capitals (and its officers, directors, employees, agents, parent subsidiaries, affiliates, co-branders, partners and any other third parties) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected or unsuspected, disclosed and undisclosed, arising out of or in any way connected to such dispute.
The Customer shall be obligated to notify Sapphire Capitals without delay in writing about any claims made by Third Parties as a result of any infringement of intellectual property rights. Further, the Customer shall be obligated to make any relevant documents, such as claim letters and decisions of any court and/or authorities, available to Sapphire Capitals upon its request. Sapphire Capitals shall pass all relevant information required for legal defence to the Customer and use its best efforts to support the Customer. The Customer shall enable Sapphire Capitals to defend any such claim and/or assign any such rights connected thereto to Sapphire Capitals.
In case of impairment of the contractual usage of the Software by an infringement of intellectual property rights, Sapphire Capitals shall be entitled - at its own discretion and costs - to either (i) modify or replace the Software so that any intellectual property rights are no longer infringed and the Software in general provides the agreed functionality and performance to the extent reasonable for the Customer, or (ii) exempt the Customer from the payment of licence fees for the usage of the Software during the agreed duration of use for the time the infringement of intellectual property rights lasts.
Sapphire Capitals shall not be liable for any claims made by third parties as a result of any infringement of intellectual property rights, in case the Customer has deviated from the agreed usage of the Software and/or implemented any amendments and/or modifications at its own discretion.
Before entering into a contract with costs, the Customer may test the Software free of charge during a trial phase determined by Sapphire Capitals (hereinafter "Trial Phase"). During the Trial Phase, any warranty and indemnity claims in connection with the Software shall be excluded, to the extent permitted by law. After the Trial Phase the usage of the Software is subject to costs.
Each Party is entitled to terminate the contract in writing prior to the end of the relevant duration of the contract. The contract shall be automatically extended for either (i) one more month, (ii) three more months or (iii) one more year, depending on the original duration of the contract chosen by the Customer, unless the Customer terminates the contract in writing prior to the end of the relevant duration of the contract. Sapphire Capitals is obligated to inform the Customer separately in time, i.e. prior to the beginning of the termination period, about the option to terminate the contract or otherwise the contract will be extended.
Either Party shall be entitled to terminate the contract for good cause with immediate effect. A termination requires the written form. Such good cause shall, in particular, but without limitation, exist if a Party is in breach of material obligations under the contract, such as default of payment or persistent breach of material provisions of these General Terms and Conditions and does not remedy such breach after receipt of a written notice and setting of a grace period of ten business days by the other Party.
In case of a justified termination of the contract by Sapphire Capitals, Sapphire Capitals shall be entitled to the payment of the entire agreed subscription fee. This also applies in case of an unjustified termination of the contract by the Customer.
Any services performed or costs incurred by Sapphire Capitals up to the date of termination shall be paid by the Customer in full, even in cases of termination for good cause.
In case the contractual term or relationship ends, whether as a result of notice given by either Party or any other reason, the Customer’s right to use the Software expires: The Customer shall return all copies of the Software, all documentation and, if applicable, copies, summaries or extracts thereof, all copies of updates including modifications and all other confidential or proprietary information in its possession to Sapphire Capitals.
All legal disputes which may arise out of or in connection with these General Terms and Conditions and/or the legal relationship between Sapphire Capitals and its Customers shall be governed by and construed under the laws of Australia without giving effect to its conflict of law rules and UN Sales Convention. In case of consumers, this choice of law applies only to the extent that the consumer is not deprived of the protection granted by the mandatory provisions of the law of the country of the consumer’s usual residence.
The Parties agree that the competent court in Sydney shall have exclusive jurisdiction to any disputes which may arise out of or in connection with these General Terms and Conditions and/or the legal relationship between Sapphire Capitals and its Customers and, for such purposes, irrevocably submit to the exclusive jurisdiction of such courts. The legal venue for all disputes arising in connection with the contract against a consumer having his/her place of residence, usual domicile or place of employment within the country shall be one of the courts of the district where the consumer has his place of residence, usual domicile or place of employment.
Sapphire Capitals shall be entitled to assign the contractual relationship with its Customer to any Third Party without the prior written consent of the Customer.
Any changes, amendments and side agreements to these General Terms and Conditions shall be made in writing to be effective. This shall also apply to any waiver by the Parties of such written form requirement. In case of inconsistencies between these General Terms and Conditions and written side agreements between the Parties, the provisions of the side agreements shall prevail.
Should any provision of these General Terms and Conditions (or any part thereof) be invalid, the validity of the other provisions shall not be affected. The invalid or ineffective provision shall be deemed to be replaced by such valid and effective provision as most closely corresponds to the economic purpose of the invalid or ineffective provision.
The term "Third Party" within these General Terms and Conditions shall mean any natural or legal person, which is different to the Parties in a legal sense, even if legal and/or economic relations should exist to such a person.