The iPartners Pty Ltd (ACN 616 310 555, AFSL 502 791) (iPartners) terms and conditions set out below (the Terms and Conditions) govern your use of:
- the iPartners website located at www.ipartners.com.au (the Website),
- the iPartners Online Investment Platform (OIP),
- any investment offered by iPartners or its associates (including iPartners Nominees Pty. Ltd. (ACN 619 036 663) (iPartners Nominees) and iPlatforms Nominees Pty. Ltd. (ACN 632 914 464) (iPlatforms Nominees)) on the OIP (an iPartners Fund), and
- any investment offered by a third party and made available to you on the OIP (Third Party Fund).
The Terms and Conditions form a binding agreement between iPartners and you in relation to same.
The terms "we", "us" or "our" refer to iPartners, iPartners Nominees and/or iPlatforms Nominees, in their personal capacity or as the trustee of an iPartners Fund, either collectively or individually, as the context requires.
Each iPartners Fund and Third Party Fund is a “Fund”.
iPartners may, from time to time, amend the Terms and Conditions (or any other documents referenced herein). Any such amendments will be posted on the Website and will take effect immediately after such posting. If you do not accept such amendments to the Terms and Conditions, you must stop using the Website and the OIP and refrain from using any services offered by us. By using the Website, the OIP and by investing in a Fund, you agree that the then-current version of the Terms and Conditions (including any amendments effective at that time) applies to you.
iPartners reserves the right to modify, discontinue or disable the Website or the OIP or any part of them (on a permanent or temporary basis) at any time. While iPartners will, where reasonably practicable and possible, endeavour to provide you with prior notice of such modifications, discontinuations or disabling, you agree and accept that it may not always be possible to provide you with such prior notification and that in such circumstances we are not liable to you for any resulting loss.
iPartners may assign its obligations under the Terms and Conditions provided that the relevant assignee undertakes to perform all of iPartners' obligations herein.
The material on this web page and the web pages accessed through this web page (together, the "Website") is for distribution only to persons who are:
- if in Australian, are “wholesale clients” within the meaning of s761G of the Corporations Act 2001 (Cth) (Corporations Act)(Wholesale Client); and
- if in New Zealand, are"wholesale investors" as that term is defined in clauses 3(2)(a), (c) and (d) of Schedule 1 to the Financial Markets Conduct Act 2013 of New Zealand ("FMCA"), being a person who is (a) an “investment business”; (b) “large”; or (c) a “government agency”, in each case as defined in Schedule 1 to the FMCA and, in all cases, in such circumstances as may be permitted by applicable law in any jurisdiction in which an investor may be located. For the avoidance of doubt, the material on this Website is not for distribution to, among others, any “eligible investors” (as defined in clause 41 of Schedule 1 to the FMCA) or to any person who, under clause 3(2)(b) of Schedule 1 to the FMCA, meets the investment activity criteria specified in clause 38 of that Schedule (NZ Wholesale Investor).
Each person accessing this Website further confirms that they are a person who is entitled to do so under all applicable laws, regulations and directives in all applicable jurisdictions and who may be issued interests in any of the products offered through the Website without the need for any lodgement, registration or other formality or filing with or by a governmental or regulatory authority.
To the extent possible we choose to carry out transactions by means of electronic communication in accordance with the Electronic Transactions Act 1999 (Cth) and any regulations. You consent to using electronic means to form, or agree, or agree to, or bind you to, legal obligations in relation to the OIP, this Website and any relevant Fund (as applicable). Therefore, where you indicate through electronic means your agreement to, or acceptance of, terms and conditions, offers and other documents, you will be taken to have agreed to, or signed them.
Where we are required, by law or otherwise, to provide you with any documentation, you consent to the provision of that document electronically through the links on this Website or any other electronic means we choose to use. You must regularly check your email, the Website and the OIP for any documents. You may withdraw your consent to the giving of documents by electronic communication at any time by emailing us at email@example.com. We suggest that you print a copy of important documents, or file them electronically, for future reference.
These Terms and Conditions constitute an agreement by iPartners to provide the OIP to you. Access to certain features and content on the Website require you to be signed up to the OIP.
iPartners will only provide the OIP to users who meet its eligibility criteria (refer to "Eligibility" below in these Terms and Conditions). Investment in a Fund is only available to you once you have successfully signed up to the OIP.
Please be aware that whilst iPartners and its associates will not be bound to provide you with services prior to you signing up to the OIP, your use of the Website prior to that point (e.g. any browsing activity of the publicly accessible portions of the Website) will remain subject to these Terms and Conditions. For the sake of clarity, we note that successful access to the OIP does not guarantee your investment in a Fund will be accepted.
iPartners Master Fund
If you choose to invest in the iPartners Master Fund, you will invest in an unregistered and unlisted unit trust established in New South Wales. iPartners Nominees is the trustee of the iPartners Master Fund. The iPartners Master Fund invests in a range of assets and may invest through interposed unit trusts, as it sees fit. The iPartners Master Fund may have multiple classes of units whereby each class of units will provide investors with exposure to the assets held by the corresponding interposed unit trust (each a Series). The iPartners Master Fund may have a separate investment strategy for each Series. You can select which Series you would like to invest in by clicking on the appropriate links on the website. Each Series will have a term sheet and that term sheet will contain specific terms applicable to the relevant Series.
If you choose to invest in an iPartners Fund operated by iPlatforms Nominees (each an iPlatforms Fund), you will invest in an unregistered and unlisted unit trust established in New South Wales. iPlatforms Nominees is the trustee of each iPlatforms Fund. The iPlatforms Funds invest in a range of assets and may invest through interposed unit trusts, as iPlatforms Nominees sees fit. Each iPlatforms Fund may have a separate investment strategy. You can select which iPlatforms Fund you would like to invest in by clicking on the appropriate links on the website. Each iPlatforms Fund will have a term sheet and that term sheet will contain specific terms applicable to the relevant iPlatforms Fund.
Third Party Funds
Each Third Party Fund invest in a range of assets and may invest through interposed unit trusts, as the issuer or appointed manager of the Third Party Fund sees fit. Each Third Party Fund may have a separate investment strategy. You can select which Third Party Fund you would like to invest in by clicking on the appropriate links on the website. Each Third Party Fund will have a Term Sheet (defined below) and that Term Sheet will contain specific terms applicable to the relevant Third Party Fund.
A Fund may be stapled to one or more other Funds (Stapled Fund). Where a Fund is also a Stapled Fund, you will, by clicking on the appropriate links on the website, be deemed to give your consent to invest in each of the stapled vehicles indicated as forming part of the Stapled Fund in the Term Sheet and the Term Sheet will apply for each vehicle in the Stapled Fund unless otherwise described. A reference in these Terms and Conditions to a Fund includes a reference to a Stapled Fund as applicable.
Investments on the OIP
The terms of your investment in any Fund on the OIP are governed by:
- these Terms and Conditions;
- the term sheet for the relevant Fund or Series (Term Sheet);
- the application form or other subscription document (if applicable) for the relevant Fund or Series (the Application Materials); and
- the trust deed, limited partnership deed or other governing document for the relevant Fund (the Constituent Document),
(together the Fund Documents).
The Fund Documents must be read carefully before you make a decision to invest. Copies of the Fund Documents will be made available on the Website or on request. It is only after the point in time when you agree to the Application Materials, cleared funds and any relevant supporting documents are received by the issuer of the relevant Fund (the Trustee), and the Trustee, in its absolute discretion, accepts your offer to invest, that the Trustee will issue interests (being units, partnership interests or other interests in the Fund (as the case may be)) in that Fund to you. If the Trustee rejects your offer to invest, your application will be returned to you without interest. Any investment in a Fund is subject to allocation which means that the Trustee reserves the right to return your funds or a portion of your funds. For specific details on the unit price of your investment in a Fund and fees associated with your investment, refer to the Term Sheet for the relevant Fund or Series. Any investment in a Fund is subject to the eligibility criteria (refer to "Eligibility" below in these Terms and Conditions). Following investment, the Trustee will provide you an electronic confirmation of your capital commitment to the Fund. By clicking "I agree", you agree to be bound by the Fund Documents and meet all obligations in those documents in a timely manner.
If there is any conflict or inconsistency between the provisions of the Term Sheet, the Constituent Document and these Terms and Conditions, the terms of the Constituent Document will prevail to the extent of the conflict or inconsistency.
By applying to invest in a Fund on the OIP, you agree and acknowledge that:
- you agree to be bound by the Fund Documents (as amended from time to time) and acknowledge that a copy of the Fund Documents have been made available to you;
- you will only obtain exposure to the investments held by the relevant Fund or, in the case of a Series, the interposed unit trust corresponding to, the Series you have invested in;
- in respect of the iPartners Master Fund:
- iPartners intends to segregate the assets held by each interposed unit trust corresponding to a Series, but reserves the right to co-mingle any of those assets;
- there is no cross-liability between the interposed unit trusts corresponding to each Series in the iPartners Master Fund;
- we reserve the right to appoint any entity as the trustee of an interposed unit trusts corresponding to a Series in the iPartners Master Fund and that entity may or may not be iPartners or a related company of iPartners.
- the Trustee may act in the acquisition and disposal of any asset held by a Fund on behalf of other persons.
- you authorise the Trustee to deal with any asset and any other funds it manages as an undivided whole, to the extent necessary for the efficient management or administration of the asset, subject to the Trustee maintaining systems and records that distinguish the asset from the property of any other person.
- the Trustee may issue, buy, sell and otherwise deal in assets of a Fund as trustee or on its own behalf, and may be paid commissions or other payments in respect of such assets. Such dealings may affect the value of the asset that underlies the relevant Fund. You acknowledge that the Trustee may have a conflict of interest in these circumstances and accept that the Trustee will avoid conflicts where possible and will otherwise manage them appropriately as required by law.
- you undertake that your investment is not being made with funds that are the proceeds of crime, money laundering or any other fraudulent activity.
- iPartners and its associates reserve the right to reject your application for the OIP in our sole discretion without having to give any reason.
- the Trustee reserves the right to reject or scale back your application in whole or part for any investment in a Fund in its sole discretion without having to give any reason.
- you must pay all amounts due in relation to any investment in a Fund (including any fees if applicable) by the due date.
- any payments owing to us must be paid by BPAY, direct credit or direct debit.
- if your commit capital to a Fund (Capital Commitment) under the terms of the relevant Fund Documents:
- your Capital Commitment will be called in instalments (Capital Calls) by notice from the Trustee in accordance with the Fund Documents and payments of amounts due will be in accordance with the Fund Documents;
- you unconditionally and unequivocally commit to pay the full amount of the Capital Commitment;
- if you fail to pay any Capital Calls when determined and requested by the Trustee, interest on the unpaid instalment will be charged to you, your right under the Fund Documents may be suspended and your units or other interests in the Fund may be forfeited in which event monies paid up previously by you may be entirely forfeited in accordance with the Fund Documents; and
- you have the financial capacity to hold the units or other interests in the Fund for the term of the relevant Fund, bear associated risks and obligations and otherwise meet all Capital Calls by their due date.
- in respect of an investment in a Fund or Series:
- the investment is speculative and subject to material risk including loss of all invested capital and an obligation to pay any Capital Calls;
- the investment may be illiquid – redemptions from a Fund or Series may not be permitted under the Fund Documents and there may be no established secondary market for units or other interests in the Fund in a particular Fund or Series; and
- there can be no expectation of returns other than through the distribution of proceeds (if any) from the realisation of portfolio investments,
and you have taken this into account before deciding to invest.
- you have relied in every respect on your own independent investigation, enquiries and appraisals in deciding to invest and you have had the opportunity to obtain independent financial, taxation, legal, and investment professional advice.
- neither iPartners nor any of its associates or their officers, directors, employees, advisers, nor any Trustee, general partner or the manager of any Fund (Manager) or their respective officers, directors, employees, advisers or associates (together the Relevant Persons) have provided any financial product advice in connection with any Fund or made any representations or warranties in connection with a Fund or the performance of a Fund or Series (or any investment made by a Fund) other than those (if any) contained in the Fund Documents.
- you have not relied or acted on the contents of any representation (including investor presentation), statement, warranty, promise, undertaking, agreement or other information, whether made expressly or implied, by any Relevant Person or purported to have been given on behalf of the Trustee, general partner or Manager, except as expressly set forth (if at all) in the Fund Documents. You understand that no person has been authorised by iPartners, its associates or the Trustee, general partner or Manager to furnish any such representations or other information.
The secondary market
To the extent permitted in the Fund Documents in respect of the relevant Fund or Series, you may give us an order to buy or sell your units or other interest in the Fund by clicking the "Buy" or "Sell" buttons on the Website. In doing so, you agree and acknowledge that:
- you must provide us with any information that we reasonably request in order to place your order on the Website;
- you must ensure the accuracy and completeness for your orders and that we are not responsible for any loss resulting from inaccurate or incomplete orders;
- we may act on your orders (including any orders we believe to be from you or a person authorised to place such orders in our absolute discretion);
- we can act on incomplete or unclear orders if we reasonably believe we can correct the information without referring to you;
- we can act on conflicting orders and determine the order of acting if you place multiple orders with us;
- we may not act on any order if we are unable to verify it(where verification is required)[?] by contacting you;
- we may reject or refuse your order in our sole discretion without any explanation, but that where lawful, we will notify you of the refusal as soon as practicable;
- there may be a delay between when we receive your order and when we act on it;
- we are not responsible for any delays or errors in the execution of your orders;
- we are not responsible for prices quoted on the Website;
- we are not responsible for your order being fulfilled once it is placed and in circumstances where your order is not fulfilled, we are not liable to you for any resulting loss;
- we will not act on any order until and unless we have received any required cleared funds;
- we are not operating a financial market for the purposes of the Corporations Act and accept your sell and buy orders as principal;
- you will indemnify us against all costs incurred in relation to your order (unless that cost is incurred as a result of our gross negligence, fraud or wilful misconduct);
- you agree and acknowledge that we provide this feature on a reasonable endeavours basis only and have no liability to you whatsoever for your use of this feature, the price you obtain or any loss you may incur; and
- you agree and acknowledge that an order is not complete until cleared funds have been received in our account and we have provided you with a final confirmation.
General Advice Only
- The Website and the OIP have been prepared by iPartners for general promotional purposes only and do not constitute an offer to sell or solicitation to buy any financial product. While all reasonable efforts have been made to ensure that the information and content contained on the Website and OIP is accurate and up to date, it has been prepared without taking account of your objectives, financial situation or needs. Consequently, before acting on the information on this Website or the OIP, you should consider the appropriateness of the information in view of your own objectives, financial situation and needs.
- Neither iPartners nor any other Relevant Person makes any representation or gives any advice in respect of any financial, investment, tax, legal or accounting matters in any jurisdiction including in relation to the suitability of any financial product to investors. Neither iPartners nor any other Relevant Person shall be liable for any direct, indirect, special, incidental, consequential, punitive, or exemplary damages, including lost profits arising in any way from, including but not limited to: (i) the information provided on the Website or the OIP; (ii) the modification or misuse of information on the Website or the OIP; or (iii) claims of third parties in connection with the use of the Website or the OIP.
- You must not use the Website or OIP:
- • to collect any personal information on other individuals or to upload personal information of other individuals, including their names, address, phone number or any other identifying information; or
- • for any unlawful purpose.
- You and your associates must not violate, attempt or procure another person to violate the security of the Website or the OIP. You must not hack into the Website, iPartners or its associate's computer systems or the computer systems of other users of the Website or OIP. "Hacking" means unauthorised access, malicious damage and/or interference and includes, without limitation, spamming, propagating viruses, worms or other types of malicious programs, deliberate attempts to overload a computer system, broadcast attacks or any other method designed to damage or interfere with the operation of a computer system or website.
- If you breach the terms of these Terms and Conditions, iPartners or its associates may (in their discretion, and without limiting the remedies available to iPartners or its associates in any way) terminate its agreement with you, terminate your subscription to the OIP or bar you from accessing the Website on a temporary or permanent basis.
- Neither iPartners nor its associates takes any responsibility for the accuracy of information contained in the virtual data room.
- Unless stated otherwise in the Fund Documents, the OIP and any investment in a Fund are only available to investors who:
- are Australian residents; and
- are Wholesale Clients; and
- who are fully registered with iPartners.
- Full registration includes verification of your identity and confirmation of your Wholesale Client status being completed to our satisfaction.
Usernames and passwords
- You can play an important role in keeping your personal information secure by maintaining the confidentiality of any password used on the Website or OIP. Please notify iPartners immediately if there is any unauthorised use of your OIP access by any other internet user or any other breach of security.
- You are responsible for the security of your user name and password (or other log-in information) and you take responsibility to ensure the confidentiality of this information.
Intellectual Property Rights
- The Website and OIP and all content contained on the Website and OIP (including without limitation all text, graphics, icons, advertisements, photographs, databases, trade marks and other information contained on the Website (other than Third Party Content, as defined below)) (iPartners Content) and all intellectual property and similar rights that subsist in the Website and iPartners Content are owned and operated by iPartners or its third party licensors and suppliers. Nothing in these Terms and Conditions constitutes a transfer of any intellectual property rights.
- Subject to these Terms and Conditions and all applicable laws and regulations, iPartners grants you a non-exclusive, non-transferable, personal, limited licence to download, access, view, use and display the iPartners Content which iPartners makes available to you from time to time on the terms and conditions set out in these Terms and Conditions.
- You must not do anything which breaches or otherwise interferes with iPartners’ intellectual property rights or the intellectual property rights of any of iPartners’ third party licensors. You may not distribute, reproduce, publish, alter, modify or create derivative works from any iPartners Content without the prior written permission of iPartners or the relevant third party licensor or exploit such contents for commercial benefit.
- All rights not expressly granted are reserved by iPartners.
- By using the Website, you agree to provide true, accurate, current and complete information about yourself, and your accounts maintained at third party websites and you agree to not misrepresent your identity or your account information held with third party account providers. You also represent that, if you are acting on behalf of a company or other body, that you are authorised to provide information about that body to iPartners, that the information you provide is true, accurate, current and complete and that you are authorised to bind that body to these Terms and Conditions and, if applicable, the Fund Documents.
- By using, and continuing to use the Website, you authorise iPartners and its service providers (Service Providers) to access third party websites designated by you, on your behalf, to retrieve information requested by you in order to facilitate the provision of services by iPartners. For that sole purpose only, you hereby appoint iPartners and each Service Provider as your agent, with full power of substitution and resubstitution, to access third party websites, servers or documents, retrieve information, and use your information, all as described in this clause, with the full authority to do and perform anything necessary to be done in connection with such activities, as fully to all intents and purposes as you may or could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN IPARTNERS OR A SERVICE PROVIDER ACCESSES AND RETRIEVES INFORMATION FROM THIRD PARTY WEBSITES, IPARTNERS AND ANY SERVICE PROVIDER ARE ACTING AS YOUR AGENT. You agree that third party account providers are entitled to rely on the foregoing authorisation and agency granted by you solely for the purpose set out in this clause.
Third Party Activities
The Website may contain links to third party websites where content is not controlled by iPartners (Linked Sites).
Links to Linked Sites are provided for convenience only. The appearance of a link to a Linked Site does not imply iPartners’s endorsement of that Linked Site or any content created or uploaded by a party other than iPartners, including all text, graphics, icons, advertisements, photographs, databases, trade marks and other information created and/or uploaded by such a party (Third Party Content). iPartners has no control over and is not responsible for any Linked Site or any Third Party Content.
You access Linked Sites at your own risk and, to the full extent permitted by law, iPartners disclaims all guarantees and warranties, express and implied, as to the accuracy, value, legality or otherwise of any materials or information contained on such Linked Sites and in Third Party Content.
Your use of Third Party Content (including, without limitation, that featured on Linked Websites) may be subject to a third party's terms and conditions of use. It is your responsibility to check and comply with such terms.
To the full extent permitted by law, iPartners and each other Relevant Person exclude all representations, warranties, guarantees, terms and conditions, whether express or implied (and including, without limitation, those implied by statute, custom, law or otherwise), except as expressly set out in these Terms and Conditions.
To the full extent permitted by law, the Website, the OIP and the iPartners Content is provided to you "as is" and on an "as available" basis, without any representation or endorsement made and without warranty or guarantee of any kind (whether express or implied). This means that iPartners does not guarantee continuous, uninterrupted or secure access to the Website or OIP or that its servers are free of computer viruses, bugs or other harmful components or that defects will be corrected. As a result, you may at times experience disruption or other difficulties in using the Website. You should consider the potential for disruption or other difficulties in planning your use of the Website. To the extent permitted by law, iPartners has no liability to you whatsoever for loss or costs of any kind you suffer as a result of or in connection with any disruption or other difficulties in using the Website or OIP.
To the full extent permitted by law, and except where the relevant liability arises from iPartners' unlawful actions, neither iPartners nor any party involved in creating, producing or delivering the Website or OIP accepts any liability for the accuracy, timeliness or completeness of the information contained on the Website (including information included in the virtual data room) or OIP or any responsibility for any errors or omissions in the content on the Website or OIP.
To the full extent permitted by law, and except where the relevant liability arises from iPartners' unlawful actions, iPartners excludes all liability to you for any damages or loss (including without limitation direct, incidental, indirect, consequential, special, punitive or exemplary damages or any loss of business, interest, goodwill, revenue, profit, or loss or corruption of data) arising out of your access to, or use of, or inability to use or access the Website or otherwise in connection with:
- your use of, or reliance on, the Website or OIP (or any of the iPartners Content, Linked Site or Third Party Content) however caused (including, without limitation, damage or loss arising in contract, tort (including, without limitation, negligence), statute or otherwise));
- the accuracy, timeliness, credibility, quality, utility or completeness of the information contained on the Website or OIP; and/or any errors or omissions in the content on the Website or OIP, whether or not iPartners is aware of such errors or omissions.
Certain legislation including the Australian Consumer Law, may imply warranties or conditions or impose obligations, remedies or guarantees which cannot be excluded, restricted or modified except to a limited extent. Such legislation may, for example, impose non-excludable guarantees that goods are of acceptable quality or that services will be rendered with due care and skill (with certain remedies available to consumers for certain breaches of such guarantees). To the extent that such legislation applies, these Terms and Conditions must be read subject to those statutory provisions. If those statutory provisions apply, notwithstanding any other provision of these Terms and Conditions, to the extent that iPartners is entitled to do so, iPartners limits its liability pursuant to such provisions for any goods to the replacement, repair or refund of the cost of goods, or for services, to the re-supply or the payment of the cost of having the services supplied again.
You agree to fully compensate iPartners, its associates and their officers, employees and agents from and against reasonable liability, loss, damage, costs and expense (including, without limitation, reasonable legal expenses on a reasonable basis) and penalties incurred or suffered by any of them arising out of:
- your material breach of the Fund Documents (noting that a material breach will include, without limitation, a breach of a representation, obligation or warranty);
- any misuse or use of iPartners Content in breach of the Fund Documents; and
- any act of fraud or wilful misconduct by or on behalf of you.
The obligations to compensate for losses incurred by iPartners, its associates and their officers, employees and agents in these Terms and Conditions are continuing obligations of the parties, separate and independent from their other obligations and survive termination of these Terms and Conditions are absolute and unconditional and unaffected by anything that might have the effect of prejudicing, releasing, discharging or affecting in any other way the liability of the party that is obliged to provide the compensation.
In accordance with the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML/CTF Act), we are required to identify, and verify the identity of, new investors (and in certain circumstances, existing investors) in a Fund. In order to do this, we must collect certain information (and documentation) from each investor. If you do not provide this information to us, we will not process your application and in these circumstances, will not be liable to you for any resulting loss. We may be required to collect further information from you in accordance with our ongoing customer due diligence obligations under the AML/CTF Act.
We are obliged under the AML/CTF Act to take and maintain copies of any information/documentation collected from you and, in certain circumstances, may be required to disclose said information to the Australian Transaction Reports and Analysis Centre (AUSTRAC) or other government bodies. We may be prohibited from informing you of such disclosure. Aside from disclosures permitted or required under the AML/CTF Act, we will keep your information confidential in accordance with relevant legislation.
By investing in a Fund, you are acknowledging that we may, in our absolute discretion, not issue units or other interests in the Fund to you, cancel any units or other interests in the Fund previously issued to you, delay, block or freeze any transaction or redeem any units or other interests in the Fund issued to you if we believe it necessary in order to comply with out AML/CTF legislative obligations. In these circumstances, we will not be liable to you for any resulting loss. It is an offence to provide false or misleading information to us.
By applying for the OIP and/or applying to invest in a Fund:
- You undertake that you are a Wholesale Client and you agree to provide all documents and information we reasonably request for the purposes of verifying your status as a Wholesale Client.
- You undertake that you are authorised to provide the information made available to us, and that if you are providing information on behalf of a corporation or other body, that you are authorised to bind that body to these Terms and Conditions and, if applicable, the Fund Documents.
- You undertake that you have read and understood all relevant Fund Documents.
- You consent to receive any and all advice, documents, information, or other communications from us electronically through text message, the Website, email or otherwise over the internet.
- You agree that you will use the Website for all transactions in respect of the OIP or a Fund (unless we require otherwise).
- You agree and acknowledge that we will use your personal information to send you messages containing important information about the OIP. These messages are an important part of the service that we provide to you, and will be sent to you as long as you are signed up to the OIP. You cannot opt-out of receiving these messages.
- You warrant that:
- if you are acting as a trustee, you have authority to enter into these Terms and Conditions, apply for the OIP and invest in the Fund;
- if you are acting as a corporation, you are validly constituted and your principal place of business is in Australia;
- if you are a natural person, you are over 18 years of age and an Australian Wholesale Client resident in Australia (or, where the Fund Documents permit, a NZ Wholesale Investor resident in New Zealand);
- it is not unlawful for you to enter into these Terms and Conditions, apply for the OIP or invest in the Fund;
- You acknowledge and agree that the Constituent Document will prevail in the case of any inconsistency between it and these Terms and Conditions.
- You acknowledge that you may only terminate your access to the OIP by contacting us by email.
- You acknowledge and agree that any person listed as a certified investor in relation to your OIP access can provide binding instructions and that we can act on the instructions of any of those persons.
- You acknowledge that all of your dealings on the OIP and in relation to a Fund are subject to our obligations under the Corporations Act and AML/CTF Act and any other applicable legislation.
- You agree and acknowledge that we may pay referral fees to related bodies corporate or third-party entities in relation to your investment in any Fund.
- You acknowledge and agree that you must review as soon as possible any and all confirmations of transactions sent to you. Confirmations shall be binding upon you, unless you inform us electronically or in writing within 2 business days of receipt that there is an error or discrepancy.
- We accept no responsibility for the accuracy of the information presented in the "Registry" tab.
- You acknowledge and agree that we make no guarantee that your investment will be successful - we will use our best endeavours to ensure that your investment is made in a proper and efficient manner.
- You acknowledge and agree that each of the representations, warranties, undertakings and other confirmations provided in these Terms and Conditions are provided for the benefit of each of iPartners, the Trustee, Fund manager, and each of their respective associates, officers, employees and agents and these Terms and Conditions may be enforced by any of them.
By accessing the Website and investing in a Fund on the Website or OIP, you acknowledge that you understand and accept the risks involved in any investment and that you:
- have read and understood each of the Fund Documents in full;
- have such knowledge and experience in financial and business matters as to be capable of evaluating the merits of an investment in the Fund;
- are aware that an investment in the Fund involves substantial risks, and may result in the loss of the entire amount invested, and you have determined that the holding of securities in the Fund is a suitable investment for you; and
- have the financial ability to bear the economic risk of the investment, have adequate means for providing for your current needs and possible contingencies and have no need for liquidity with respect to you investment in the Fund (other than as provided for in the Constituent Documents).
iPartners, the Trustee, their respective associates and their respective officers, employees and agents make no representation about, nor give any guarantee of, future performance, future profitability, payment of dividends or return of capital in respect of any Fund on the Website or OIP.
Any statements, opinions, projections, forecasts and other material (forward looking statements) are based on various assumptions. Those assumptions may or may not prove to be correct. None of iPartners, the Trustee, their respective associates, their respective officers, employees, agents, advisers or any other person named in on the Website or OIP make any representation as to the accuracy or likelihood of fulfilment of any forward looking statements or any of the assumptions upon which they are based.
We recommend that you assess your appetite for risk independently and consult with your tax, legal and/or financial planning advisors before making a decision to invest through the Website.
These Terms and Conditions are governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales and waive, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum.
By making an application to invest in the Fund, in addition to the Terms and Conditions that govern the OIP and the Fund, you are deemed to have acknowledged, represented and warranted on behalf of each person on whose account you are acting that:
- you represent and warrant that:
- the Foreign Acquisitions and Takeovers Act (Cth) 1975 (FATA) does not apply to you; or
- you are in compliance with the requirements of the FATA we will not cease to be in compliance if you acquire the Units the subject of your Application;
- You have all requisite power and authority to execute and perform the obligations under the Constitution and your Application;
- You acknowledge that application monies will be held in a trust account until invested in the Fund or returned to you. Interest will not be paid to applicants in respect of their application monies regardless of whether their monies are returned;
- You have read the information on privacy and personal information contained in [the Term Sheet] and consent to your personal information being used and disclosed as set out in [the Term Sheet]. Specifically, you confirm the following:
- You have the legal capacity to understand and communicate any personal information required under this application;
- You have read and understood the privacy disclosure as detailed in [the Term Sheet];
- You consent to your personal information being collected, held, used and disclosed in accordance with the privacy disclosure voluntarily;
- You consent to the Trustee disclosing your personal information to any of the Trustee’s service providers, in relation to any identification and verification that the Trustee is required to undertake on you, as required under the AML/CTF Law (as defined below).
This shall include any information required by or provided to any third party document verification service provider;
In making the subscriptions and investing in the Fund as contemplated by your Application, you acknowledge that you can be issued Units without the need for any disclosure document or any other document to be lodged or registered with any person in, or to otherwise comply with the laws of, its country of residence;
- Unless otherwise stated, you are acquiring the Units for your own account and not as trustee, agent, representative, intermediary, nominee or in a similar capacity on behalf of a third party;
- you have no contract, undertaking or arrangement with any person to sell, assign, transfer or grant a participation right with respect to any interest in the Units and has no current intention to sell, assign or otherwise transfer the Units;
- To your knowledge, there is no action or proposed action that could lead to your winding-up, dissolution, or administration or inability to pay your debts;
- This Application Form constitutes valid and binding obligations upon you enforceable in accordance with its terms by appropriate legal remedy and you are not entitled to claim any sovereign or other general immunity from suit or execution for myself/ourselves or your assets;
- You have read the Constitution carefully, am/are able to evaluate the risks of investing in the Fund, and am/are purchasing the Units in reliance solely on the information contained in the Constitution and the Transaction Documents, and not on any other oral or written statement with respect to the offering of the Units made or provided by the Trustee, any placement agent or any partner, officer, director, employee, agent, member or associate of any of them. You have made and relied upon your own assessment of the Trustee, the Fund and the Investee Entity (as defined in the Constitution) and have conducted your own investigations with respect to the Fund and the Investee Entity including, without limitation, any restrictions on resale of the Units in the Fund and the particular tax consequences of acquiring, owning or disposing of the Units in light of your particular situation and have decided to acquire Units based on your own enquiries and professional advice, and not in reliance upon any act, investigation, research, recommendation or representation made by the Trustee or a Sponsor Party (as defined below) or any persons acting on behalf of them. None of those persons has made any representation to you, express or implied, with respect to the Fund or the Investee Entity;
- You were not offered the opportunity to invest in the Fund by means of any form of general solicitation or general advertising, including (i) any advertisement, article, notice or other communications published in any newspaper, magazine or similar media (including any internet site that is not password protected) or broadcast over television or radio or (ii) any seminar or meeting whose attendees were invited by any general solicitation or general advertising;
- You have been given the opportunity to ask questions of, and receive answers from, the Trustee with respect to the business to be conducted by the Fund, the financial condition and capital of the Fund, the terms and conditions of the offering and other matters pertaining to an investment in the Fund and you have otherwise had access to all information that you believe is necessary or appropriate in connection with the acquisition of Units and the Investee Entity for an adequate time so as to enable you to make an informed investment decision regarding such acquisition.
- You have taken independent professional advice with regard to the tax, legal, regulatory, currency and other economic considerations related to its investment in the Fund, and you have neither requested nor received advice on such matters from the Trustee or any placement agent;
- The execution, delivery and performance of your Application, the acquisition of the Units in the Fund, the performance by you of your obligations under the Constitution and the consummation of the transactions contemplated by your Application and the Constitution will not breach any law or regulation to which I/us is/are subject and will not conflict with, result in the breach of or constitute a default under any agreement, instrument or obligation by which you is/are or may be bound nor any provision of any instrument governing you and no government consent or filing is required in connection with the execution, delivery or performance by you of your Application nor require the Fund or the Units to be registered in any jurisdiction;
- All information provided by you to the Trustee under your Application and the Constitution (whether provided on your Application or subsequently) is true, correct and complete as of the date of your Application, or if later the date of provision of such information, and you acknowledge that such information has been and will be relied on by the Trustee and may be relied on by other Members of the Fund;
- You acknowledge that: (i) neither the Trustee nor any of their affiliates nor any of their respective partners, members, managers, officers, employees or agents (each, a “Sponsor Party”) has acted for you or advised you in connection with the your subscription for Units; (ii) accordingly, no Sponsor Party is responsible for providing you with the protections afforded to clients of any Sponsor Party in connection with your subscription for Units; (iii) no advisory services will be provided to you and no duties will be owed to you except in your capacity as a Member; and (iv) you have taken such advice from such other persons (if any) as you consider appropriate. You further acknowledge that King & Wood Mallesons represents only the Trustee and not you, in connection with the establishment of the Fund and the offer and sale of the Units, and that you should consult your own legal and tax advisors in connection therewith;
- You acknowledge that the Trustee and the Sponsor Parties do not guarantee or in any way stand behind the performance of the Fund or the repayment of capital out of the Fund or makes any representation in relation to any of the matters in this paragraph;
- You declare that the Trustee and/or the Sponsor Parties will not be liable to you or other persons for any loss suffered (including consequential loss) in circumstances where transactions are delayed, blocked, frozen or where the Trustee refuses to process a transaction;
- You acknowledge and agree that the Trustee is acting on behalf of the Fund and any liability of the Trustee under your Application is limited to, and may be recovered by the Fund out of, the assets of the Fund in accordance with the provisions of the Constitution;
- You apply to have Units in the Fund issued to you in consideration for paying to the Trustee the Application Price set out in Section 5 of the Application Form and you acknowledge that the amount of the Application Price becomes the property or a right of the Fund;
(*The terms “United States” and “U.S. Person” as defined in Rule 902 of Regulation S promulgated under the United States Securities Act of 1933, as amended (the “Securities Act”)).
- You am/are not in the United States, not a “U.S. Person” and have not agreed to these Terms and Conditions in the United States;
- You am/are purchasing the Units in an “offshore transaction” (as defined in Rule 902(h) under the Securities Act);
- You am/are not purchasing the Units as a result of any “directed selling efforts” (within the meaning of Rule 902(c) of Regulation S under the Securities Act);
- In the case of a trust, you do not have any beneficiaries or trustees that are U.S. Persons;
- You did not acquire (except as specifically authorized by the Fund) and will not transfer any of your Units within the United States, its territories or possessions;
- You did not engage (except as specifically authorized by the Fund) and will not engage in any activity relating to sale of the Units of the Fund in the United States;
- You understand that the offer and sale of the Units has not been, and will not be, registered under the Securities Act, or the securities laws of any state or other jurisdiction of the United States and that, therefore, the Units cannot be offered, sold, pledged, transferred or otherwise disposed of without registration under the Securities Act (which you acknowledge and agree the Trustee has no obligation to do or procure) or unless the Units are offered, sold, pledged, transferred or otherwise disposed of in a transaction exempt from, or not subject to, the registration requirements of the Securities Act and any other applicable securities laws;
- All declarations, acknowledgements, representations, warranties and agreements contained herein will survive the execution, delivery and performance of your Application;
- You represent and warrant that the amounts paid or to be paid by you to the Fund in respect of your Application are not directly, or to your knowledge indirectly, derived from activities that may contravene U.S. federal or state or non-U.S. laws and regulations, including laws and regulations governing money laundering and terrorist financing, including without limitation the Australian Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (collectively the “AML/CTF Law”). You also represent and warrant to, and agree and covenant with the Trustee of the Fund, as of the date hereof and as of each subsequent date on which you acquire any additional interest in the Fund that, to the best of your knowledge, none of (a) you, (b) any person controlling or controlled by you, if you are a privately held entity, any person having a beneficial interest in you, or (d) any person for which you are acting as agent or nominee in connection with your Application (those persons covered by (b), (c) and collectively being referred to as “Related Parties”) is named on any list of prohibited persons, entities or jurisdictions maintained and administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), or otherwise covered by any other sanctions program administered by OFAC or any similar or related executive order issued by the President of the United States. The lists of OFAC prohibited persons, entities or jurisdictions and any similar or related Presidential executive orders can be found on the OFAC website at www.treas.gov/ofac and you should review the website before making this representation.
- You further represent that you am/are not a “senior foreign political figure” (as defined herein). A “senior foreign political figure” is defined as a senior official in the executive, legislative, administrative, military or judicial branches of a non-U.S. government (whether elected or not), a senior official of a major non-U.S. political party, or a senior executive of a non-U.S. government-owned corporation. In addition, a “senior foreign political figure” includes any corporation, business or other entity that has been formed by, or for the benefit of, a senior foreign political figure. You agree to promptly notify the Trustee should you become aware of any change in the information set forth in this paragraph;
- You acknowledge that, to comply with AML/CTF Law, OFAC and related requirements that are applicable to the Fund or the Trustee, the Trustee may at any time require such information as the Trustee deems necessary to establish your identity and any Related Parties and may seek to verify such identity and the source of funds for the subscription. If the Trustee deems it necessary, for other reasons, to comply with AML/CTF Law, OFAC and related requirements applicable to the Fund, including, without limitation, as a result of any delay or failure by you or any Related Party to produce any information required for identification, identity verification and/or source-of-funds confirmation purposes, the Trustee, on behalf of the Fund, may refuse to accept your Application and/or any portion or all of the subscription and may return any funds received to the account from which such funds were sent (unless such return is, in the judgment of the Trustee, contrary to applicable law or regulation or contrary to the dictate of law enforcement officials, in which case the funds may be blocked or retained). You acknowledge that the Trustee may refuse to make any distribution or other payment to you if the Trustee determines, suspects, or is advised that such distribution or payment might result in a violation of any applicable AML/CTF Law, OFAC or other laws or regulations by any person in any relevant jurisdiction, or such refusal is considered by the Trustee necessary or appropriate to ensure the compliance by the Trustee with any such laws or regulations in any relevant jurisdiction. You acknowledge that the Trustee, acting in relation to the Fund, may be required to report transactions that raise suspicions of money laundering or OFAC violations and to disclose my/ our identity and that of any Related Parties to appropriate government authorities. You agree further that the Sponsor Parties shall be held harmless and indemnified against any loss, claim, cost, damage or expense (a) arising as a result of a failure to process any subscription or the refusal to make a distribution or other payment under terms of this paragraph, or (b) which the Trustee may suffer as a result of any violations of law, rule or regulation committed by you;
- You will provide the Trustee with such information, documentation or certifications as the Trustee may reasonably request from time to time with respect to the identity, citizenship, residency, ownership, tax status, business, control, source of funds used or to be used in connection with such investment, beneficial owners of, or other information relating to you (and, in each case, the verification of such information) so as to permit the Trustee to evaluate and comply with any legal, regulatory or tax requirements applicable to the Fund, the Trustee, the Members or any investments or proposed investments of the Fund, or any other entity in or through which the Fund directly or indirectly invests (including, without limitation, any anti money laundering or know your customer obligations) or to obtain a reduced rate of or exemption from any applicable tax. Such information may include, without limitation, information regarding my/ our ultimate beneficial owners and you hereby acknowledge and agree the Trustee may, to the extent reasonably required, provide any such information, documentation or certification to any applicable tax authority. In particular, but without limitation, you agree to provide any documentation or other information regarding yourself and your beneficial owners requested by the Trustee or its agents in connection with (i) the disqualification provisions under Rule 506(d) of Regulation D under the Securities Act. Any such information that is expressly stated by you to be confidential shall be kept confidential by the Trustee and shall not be disclosed to any third party (other than the legal advisers to the Trustee or the Fund) unless:
- disclosure is required by law, regulation or treaty applicable to the Trustee, the Fund (or any other entity in or through which the Fund directly or indirectly invest) or any investee entity or by any court of law or by any governmental, regulatory or tax authority to whose powers the Trustee, the Fund or any investee entity is subject or submits;
- disclosure is necessary to comply with any tax disclosure obligations applicable to the Trustee, the Fund (or any other entity in or through which the Fund directly or indirectly invests) or any investee entity, or to obtain any relevant tax clearances from any appropriate tax authority or to obtain a reduced rate of, or exemption from, any applicable tax; or
- the Trustee considers that such disclosure is prudent in the interest of the Fund or other Members of the Fund.
- You will: (i) promptly notify the Trustee upon the occurrence of any change in circumstances that causes any information, form, disclosure, certification or documentation provided by you pursuant to the above declarations to be incorrect, obsolete or invalid; and (ii) promptly provide corrected information and execute and deliver updated and valid information, form, disclosure, certification or documentation upon the occurrence of any change in circumstances described in (i) hereof;
- You consent to the Trustee disclosing any information it has in compliance with its obligations under the U.S. Foreign Account Tax Compliance Act (“FATCA”) and the OECD Common Reporting Standards for Automatic Exchange of Financial Account Information (“CRS”) and any related Australian law and guidance implementing the same. This may include disclosing information to the Australian Taxation Office, who may in turn report that information to the relevant tax authorities as required;
- You acknowledge that the collection of your personal information may be required by the Financial Transaction Reports Act 1988, the Corporations Act 2001, the Income Tax Assessment Act 1936, the Income Tax Assessment Act 1997, the Taxation Administration Act 1953, the FATCA and CRS (includes any related Australian law and guidance) and the Anti- Money Laundering and Counter-Terrorism Financing Act 2006. Otherwise, the collection of information is not required by law, but you acknowledge that if you do not provide personal information, the Trustee may not allow you to invest in the Fund;
- You acknowledge that the Trustee may decide to delay or refuse any request or transaction, including investment request to transfer Units in the Fund, if the Trustee is concerned that the request or transaction may breach any obligation of, or cause the Trustee to commit or participate in an offence (including under the AML/CTF Law, FATCA and CRS);
- You acknowledge and agree that the above declarations, representations, warranties, undertakings, acknowledgments and confirmations given by you under your Application are given for the benefit of the Trustee, any affiliate of the Trustee, each of their respective officers, directors, shareholders, agents, members, advisers, consultants, partners and employees and the Members of the Fund from time to time, and you shall indemnify the Trustee, each affiliate of the Trustee, each of their respective officers, directors, shareholders, agents, members, advisers, consultants, partners and employees and the Members of the Fund from time to time in respect of all losses and expenses incurred by reason of any representation, warranty, undertaking, acknowledgment or confirmation given by you under your Application being untrue;
- You shall promptly notify the Trustee if, at any time during the life of the Fund, any of the details specified in your Application change or any of the representations, warranties, undertakings, acknowledgments or confirmations given by you under the provisions of your Application ceases to be true, and shall promptly provide updated or revised information to the Trustee;
- You authorise the Trustee to apply the tax identification number (if any) and company/entity registration number provided in your Application and authorise it to be applied to any future subscriptions and redemptions for Units, including reinvestments, unless you otherwise advise the Trustee;
- You hereby authorise the Trustee to disclose to the other Members and any prospective members in the Fund your name and the number of Units you hold;
- You acknowledge and agree that your Application is governed by the law in force in New South Wales and you submit to the non-exclusive jurisdiction of the courts of that place;
- You represent and warrant that you are not a Benefit Plan Investor. You agree (i) to notify the Trustee not less than 45 days prior to this representation and warranty (or any part thereof) no longer being true or becoming likely to be untrue and (ii) to provide the Trustee upon request such information as may be required to confirm and/or refine the representations and warranties provided herein;
- You represent and warrant that no person who is a beneficial owner of your Units is also a beneficial owner of another Member’s Units in the Fund, except for the Members in the Fund identified below:
- You have the knowledge, expertise and experience in financial matters to evaluate the risks of investing in the Fund, are aware of the risks inherent in investing in the assets in which the Fund will invest and the method by which those assets will be held and/or traded, and can bear the loss of your entire investment in the Fund.
- You represent that you are neither a “Restricted Person”, which includes persons employed by or affiliated with a broker and portfolio managers of hedge funds and other registered and unregistered investment advisory firms, or a “Covered Investor”, which includes certain persons who are affiliated with certain companies that are current, former or prospective investment banking clients of the broker, in respect of U.S. Financial Industry Regulatory Authority Rules 5130 and 5131. Alternatively, if you are a Restricted Person of a Covered Investor, you acknowledge and agree (i) your ability to participate fully in profits and losses from equity securities that are part of an initial public offering (“new issues”) may be negatively impacted and (ii) that the Trustee may request additional information. You agree to notify the Trustee in writing promptly when any representation made in this Section is no longer accurate.
- If you are an entity, you represent that you are not organized or incorporated under the laws of a state or other jurisdiction in the United States, you do not have a “principal place of business in the United States” and you are not majority-owned by U.S. Persons.
 A “Benefit Plan Investor” is (i) any employee benefit plan subject to the fiduciary responsibility provisions of Title I of the U.S. Employee Retirement Income Security Act of 1974, as amended (“ERISA”), (ii) any individual retirement plan or account subject to the prohibited transaction rules of Section 4975 of the U.S. Internal Revenue Code of 1986, as amended, or (iii) any entity whose underlying assets include “plan assets” (as defined by ERISA and the regulations thereunder) by reason of a plan’s investment in the entity.
 For purposes of this Section, a “beneficial owner" is any person within the meaning of Rule 13d-3 under the U.S. Exchange Act ("Rule 13d-3"), and the related rules and interpretations thereunder. In general, a “beneficial owner” of a security under Rule 13d-3 is a person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has or shares: (i) voting power which includes the power to vote, or to direct the voting of, such security; and/or (ii) investment power which includes the power to dispose, or to direct the disposition of, such security. In making this representation, warranty and covenant, you should review the full Rule 13d-3 definition of a “beneficial owner”. The Rule 13d-3 definition includes direct and indirect voting and investment power over Interests, and Interests may be beneficially owned by multiple persons.
 For purposes of this Section, an entity’s principal place of business is the place where its high level officers direct, control and coordinate the entity’s activities. If you are a fund, you should consider the location of the individuals responsible for your formation and promotion as well as the implementation of its investment strategy.