On-Market BookBuilds Pty Ltd (ABN 31 140 632 024) (“OnMarket”) operates under an Australian Financial Services Licence (AFSL 421 535) issued by the Australian Securities and Investments Commission. It operates (or will operate) a number of platforms and applications, through which investors can apply for financial products, including:
• On-Market IPOs – for initial public offers by companies proposing list on ASX; and
• On-Market Crowd – for crowd-sourced funding offers by unlisted Australian companies.
These terms and conditions apply to all websites and applications operated by OnMarket.
1 Important Notice
1.1 Warranties – Australian investors
This website and mobile application are intended for use only by residents of Australia who are accessing them from within Australia, or other Permitted Jurisdictions.
By proceeding you represent, warrant and agree that:
(a) you are either:
(i) a resident of Australia and are accessing this website or mobile application from within Australia; or
(ii) you are a resident of a Permitted Jurisdiction, meeting the stipulated criteria for applicable selling restrictions in that Permitted Jurisdiction, and accessing this website or mobile application from within Australia or within that Permitted Jurisdiction;
(b) you and each person on whose account you are acting are not in the United States (as defined in Regulation S under the U.S. Securities Act of 1933, as amended (“US Securities Act”)) and are not acting for the account or benefit of a person in the United States;
(c) you and each person on whose account you are acting acknowledge that the Securities described on the following pages have not been and will not be, registered under the US Securities Act or the securities laws of any state or other jurisdiction in the United States and accordingly, the securities may not be offered, sold or otherwise transferred except in accordance with an available exemption from such registration;
(d) you and each person on whose account you are acting have not and will not send the offer document, any Application Form or any other materials relating to the offering of the securities to any person in the United States or that is, acting for the account or benefit of a person in the United States, or any person in any other place in which, or to any other person to whom, it would be unlawful to do so ("Ineligible Persons");
(e) you are not acting as a nominee for, or otherwise for the account or benefit of, any Ineligible Persons; and
(f) the primary Country of Residence, State/Territory and Postcode (for Australian residents) or the Region, District/City and Postcode (for Permitted Jurisdictions) provided by you are true and accurate.
1.2 Overseas (i.e. non-Australian) investors
Not all OnMarket offers are available to non-residents of Australia. Generally, Australian IPOs are open to residents of New Zealand and some IPOs may also extend their offers to other permitted jurisdictions. OnMarket may prevent international investors from accessing some offers. Where OnMarket does not restrict access, if you are a non-resident, you are solely responsible for ensuring that it is lawful for you to submit an expression of interest, access and receive a CSF offer or IPO and to make an investment in a company via OnMarket.
1.3 No offer in unlawful jurisdictions
This website and mobile application do not constitute an offer of Securities or invitation in any place that it would be unlawful to make such an offer or invitation. It has been provided for information purposes only and is subject to change without notice.
1.4 No advice
OnMarket doesn’t provide personal advice.
Nothing on this website, mobile application or any other related document constitutes investment, financial, legal, business, taxation or other advice nor is any express or implied recommendation made that the offer of Securities is appropriate for your investment objectives, financial situation or particular needs.
Because of this you should, before acting on any advice in this document, consider whether it’s appropriate to your objectives, financial situation and particular needs.
2 Incorporation of Other Terms
2.1 Other terms and policies
By agreeing to this Member Agreement, you acknowledge that you have read, understood and agreed to:
(a)
the OnMarket Terms of Use, accessible
here;
(b)
the OnMarket Privacy Policy, accessible
here;
(c)
the OnMarket Financial Services Guide, accessible
here;
(d)
OnMarket Crowd-Sourced Funding Risk Warning, accessible
here; and
(e)
the OnMarket general warning statement on this page and on the home page of the Website, which are also accessible
here.
2.2 Changes to terms
OnMarket may make changes to this Agreement from time to time, including changes to the rewards programs set out in Schedule 1 or Annexure A, by providing you notice on the OnMarket website.
Any changes published on our website will be taken to be effective when they are published. The latest modification of this Agreement will be as per the date stated at the top of this Agreement.
If you do not agree to any variation to this Agreement, you may terminate this Agreement in accordance with clause 20.
3 Registration
3.1 Member access
By registering as a Member of OnMarket you will be able to access the Member only areas of this facility, view Offers and use our services.
3.2 Member entitlements
Once you have signed up with us, you will be entitled to:
(a) view Offers on the websites and mobile applications; and
(b) view company specific information and third party research in relation to the Offers,
but you will not be able to apply for any Securities in an Issuer under an Offer until you have completed an Investor Profile and an Application Form.
There are additional restrictions that may apply to any application for Securities in:
(a) a CSF Offer,
(b) an IPO;
(c) a pre-IPO Offer; or
(d) an Offer which is only open to investors that meet the eligibility requirements of s708 of the Corporations Act.
4 OnMarket Notifications and Correspondence
4.1 Electronic alerts
By registering as a Member of OnMarket, you agree to be sent electronic alerts. These alerts may be sent via email, SMS or Push notifications. These alerts may include, but are not limited to, the following:
(a) Welcome note;
(b) Email verification requirement;
(c) Live deal notifications (deal open and closing soon);
(d) When a change in a live offer price results in your application being out of the money (only notified by SMS or push);
(e) Notifications on new Offer related documents being available;
(f) Notification of allocations or refunds; and
(g) General OnMarket update emails.
4.2 Unsubscribing
Members can unsubscribe from the alerts at the base of any notification, or manage their notifications in the Member dashboard.
4.3 Delays in alerts
Where alerts relate to time specific information (such as changes in live offer price and new Offer related documents) we will endeavour to provide information as soon as possible but take no responsibility if information is delayed.
5 Investing via OnMarket
5.1 Risks you should understand
Trading or investing in Securities and other financial products in any market involves risks. You acknowledge and undertake that:
(a) it is up to you to decide whether investment in any Security is appropriate for you given your personal circumstances.
(b) you should seek your own professional advice and you will rely on your own judgement in relation to your financial situation, needs and objectives when submitting an application, or making an offer to acquire Securities;
(c) an investment in Securities may involve risk of loss, including loss of capital;
(d) we do not give any guarantees regarding the performance of any Securities;
(e) we do not provide financial advice nor accept responsibility for financial advice provided by others including in respect of any application submitted by you; and
(f) past returns for a Security do not constitute an indication or guarantee of future performance.
5.2 Disclaimer of liability
You agree that, to the maximum extent permitted by law, we disclaim liability for all loss or damage arising as a result of being a Member, applying for and being allocated Securities, using this website or mobile application or accessing information expressly or implicitly made or given by us, notwithstanding any error or omission, including negligence.
5.3 Important documents to read
Before making any decision in relation to the Offers, you should read and understand:
(a) the relevant terms and conditions of the Offer and the securities being offered;
(b) for an Offer on OnMarket IPOs - the Prospectus, Product Disclosure Document or other Disclosure Documents;
(c) for an Offer on OnMarket Crowd – the CFS Offer Document, and the Risk Warning Statement
You should consider the information in these documents before making any decision about whether to acquire or continue to hold the Securities.
You should rely only on the Prospectus, Product Disclosure Document, CFS Offer Document and any supplementary or replacement document for information on the terms and details of the offer of Securities.
We recommend that you obtain independent financial, legal and taxation advice before entering into any financial investment decision.
5.4 Terms of Applications
You agree that, if you apply for Securities, then you apply under:
(a) for an Offer on OnMarket IPOs - the terms of the Prospectus, Product Disclosure Document, other Disclosure Document, relating to that Offer; or
(b) for an Offer on OnMarket Crowd –the terms of the CFS Offer Document relating to that Offer; and
(c) any specific additional terms agreed to at the time of applying through the OnMarket site; and
(d) the terms of this Member Agreement, including any terms incorporated by reference.
6 Investor Profiles
6.1 Create your Investor Profile
Prior to applying for an Offer, Members will be required to create an Investor Profile.
Members may have multiple Investor Profiles.
Members are responsible for entering an Investor Profile that complies with CHESS naming protocols and can be set up as an individual, joint holdings, trust, SMSF or company.
6.2 Warranties you give
As a Member you warrant and undertake that:
(a) all Investor Profiles that you create are genuine and existing legal entities, or a genuine person, or joint accounts of genuine people, correctly described;
(b) that you have power and authority to bind the entity or persons referred to in an Investor Profile, to give instructions to us and to enter into these terms and conditions;
(c) all information provided is accurate, complete and not misleading;
(d) that we may rely on that information;
(e) if you wish to make applications under a CSF Offer and you are not classified as a sophisticated investor or a professional investor in accordance with clause 11.2:
(i) you will not make an application under a CSF Offer if the application, together with any other CSF applications made by you for shares in the same company in any 12 month period, would result in the total amount paid or payable by you exceeding $10,000; and
(ii) you have not sought or obtained, and will not seek or accept, any financial assistance from an issuer or its associates, to acquire shares in respect of an Offer (whether before, during or after an Offer);
(f) you have not engaged, and will not, engage, in prohibited activity referred to in clause 6.3.
6.3 Prohibition on manipulative activity
You must not engage (or act in concert with others to engage) in improper or manipulative application activity, or otherwise do anything that has the effect of manipulating or damaging OnMarket’s systems, including by:
(a) submitting information in an Investor Profile in such a way as to avoid restrictions in the Corporations Act;
(b) submitting applications that seek to avoid restrictions in the Corporations Act;
(c) splitting applications to avoid prescribed limits;
(d) using nominees or other structures to mask the identity of a beneficial or economic owner to avoid restrictions or prescribed limits;
(e) by submitting applications (whether with side-arrangements or otherwise) to create a false impression of demand;
(f) by hacking, or inserting script or codes into OnMarket’s systems, using bots, or otherwise engaging in cyber crime with respect to OnMarket’s systems or data held on its systems, or other misuse of its systems or data.
6.4 Additional consequences of breach of clause 6.3
You acknowledge and agree that if you breach this prohibition, in addition to other consequences under these terms and conditions:
(a) you consent to any Securities allocated to you being forfeited, cancelled or divested to a third party without any further consent from you; and
(b) OnMarket or the issuer company is permitted to apply to a court to cancel or divest any Securities allocated to you to a third party,
without compensation to you, and without limiting any other legal remedies or sanctions that may apply.
6.5 Broker sponsored holdings
For Offers on OnMarket IPOs and Offers by listed issuer companies - Members with existing brokerage accounts may enter their Broker Sponsored Holder Identification Number (HIN) that correspond to the Investor Profile.
Any allocations received as part of an Offer will be allocated to that broker sponsored HIN by the registry making the allocations directly allocating the Securities under the relevant applicant’s name/HIN.
Broker sponsored holdings may not be available for Offers on OnMarket Crowd, as the issuer companies are unlisted.
6.6 Issuer sponsored holdings
For Offers on OnMarket IPOs and Offers by listed issuer companies - if a HIN is not entered as part of the Investor Profile, or if the name and address entered do not match exactly with registration details held by CHESS, any Shares or Securities allocated will be held on the Issuer Sponsored subregister under a Shareholder Reference Number (SRN).
For Offers on OnMarket Crowd – any Securities allocated will be held directly on the issuer company’s register.
6.7 Investor Profile details and updates
For Offers on OnMarket IPOs and Offers by listed issuer companies
It is recommended that Members check a recent CHESS statement that they have received to make sure that the name and address details that they enter in the Investor Profile exactly match.
For OnMarket IPOs Offers or OnMarket Crowd Offers
Members may update the details of their Investor Profiles at any time prior to close of the Offer.
Changes to Investor Profiles may affect eligibility, and may result in a Member being ineligible to be allocated securities under an Offer – in which case any application monies will be refunded.
Once Securities are allocated under an Offer the Member will need to contact the relevant share registry to update their holder details.
If a change to holder details or to an Investor Profile after allocation indicates that a Member was ineligible to receive the securities – sanctions under these terms and condition (including clause 6.4) may be applied.
6.8 Default to issuer sponsored holdings
OnMarket takes no responsibility if the investor holdings default to an SRN.
7 Offer Information
7.1 Currency of information on OnMarket – live Offers
OnMarket will endeavour to make sure that information on our platforms about current Offers is current and up to date, but takes no responsibility if this is not the case.
7.2 Information outside Offer period
Information about individual issuers may not be up to date if an Offer is not live.
7.3 OnMarket relies on issuers
OnMarket relies on issuers providing accurate and up to date information and updates about their companies.
OnMarket encourages issuers to take care with the information that they provide, but is not responsible for the information that issuers provide.
7.4 Other sources of information
For current information about listed issuer companies - investors should also check the ASX Market Announcement Platform for all company announcements at www.asx.com.au, and the issuer company’s website.
For current information about unlisted issuers on OnMarket Crowd – investors should also check the issuer company’s website.
OnMarket is not responsible for disclosures that issuer companies make on other sites or through other channels.
8 OnMarket Crowd’s communications platform
8.1 Who can submit posts
Comments, questions and information can be posted on OnMarket Crowd’s communications facility by issuers and Members.
8.2 Warnings regarding posts
Those comments or information are the sole responsibility of the person making the post. Posts may not have been fact-checked or verified, and may be inaccurate, incomplete or misleading.
OnMarket is not responsible for, and disclaims any liability for, any comments, information, links, or other posts made on or through the communications facility, or for any other loss arising out of use of or reliance on the communications facility.
8.3 No liability for delays
OnMarket will endeavour to make the communications facility available throughout a CSF Offer, but technical disruptions and delays can occur which are outside its control.
To the maximum extent permitted by law, OnMarket disclaims liability for any delays or disruptions to the communications facility, and any loss of posts made on the communications facility as a result.
8.4 Restrictions on use of OnMarket Crowd’s communications platform
Use of the communications platform is subject to restrictions as set out in this clause 8.
Failure to comply with these restrictions may (at OnMarket’s discretion) result in a Member being disqualified from making an application under an Offer, removal of content, or suspension or closure of an Offer.
8.5 Persons must disclose associations with issuers or OnMarket
If a person who makes a post onto the communications facility is and officer, employee or agent of:
(a) the issuer, or a related party of the issuer; or
(b) OnMarket, or an associate of OnMarket,
the person must clearly disclose that fact in the post they make.
8.6 No offensive, misleading or illegal posts
Members and issuers must not post information, or links on the communication platform that are (or that link to other sites that are) irrelevant to the Offer, defamatory, offensive, untrue or misleading, or otherwise illegal, improper or posted in bad faith.
8.7 No embedded scripts, cyber attacks or misuse of data
Members and issuers must not post links, use bots or embed script or code on the communications facility or any other part of OnMarket’s platform or system which facilitates any form of hacking or cyber crime, or which seeks to compromise anyone’s cyber security or to seek to access or misuse data of OnMarket, issuers or other Members.
8.8 No advertising
Members and issuers must not use the communication platform to seek to advertise products or services other than those of the relevant issuer, or for any other purpose not relevant in good faith to the particular Offer.
8.9 Discretion to remove, redact or block
OnMarket may at its discretion (but is not obliged to) remove or redact all or part of any post on its communications facility, or block an entity or person (and associated entities or persons) from making posts on the communications facility or from use of its platform (including participation in current or future Offers), if it considers that a post has breached these terms.
9 Australian residents only
Only those Members who have confirmed that they are Australian residents or are a resident of a Permitted Jurisdiction, will be permitted to view company documents, access a communications facility, view research and submit application into the Offers.
10 Third Party Research Providers
10.1 Third party research reports
Third party research reports available via OnMarket are prepared by independent parties and are not paid for by OnMarket or by issuers, unless disclosed by OnMarket.
These research reports are provided based on agreements between OnMarket and the research providers, but OnMarket is not responsible for the contents of any research report.
However, Research providers may receive a referral fee if they refer Members to OnMarket (if permitted by law or applicable ASIC policy).
OnMarket may charge you a fee to access research reports, on behalf of the author, and OnMarket may retain part of that fee.
Research report providers may be provided with your Investor Profile details for identification and compliance purposes, and they may seek additional information from you for those purposes before providing you with access to research reports.
10.2 Third party information not verified
The information provided by third party data and research suppliers has not been verified by OnMarket.
OnMarket does not make any representation or warranty as to the timeliness, reliability, accuracy or completeness of the material, nor does it accept any responsibility arising in any way for errors in, or omissions from that material.
10.3 Links in research coverage
Links associated with the research coverage will take Members to PDF documents on our site, or to third party websites. OnMarket is not responsible for the linked information or third party websites, or any risks associated with accessing those websites.
11 Restricted Offers
11.1 Offers not available to Retail Investors
In accordance with Chapters 6D and 7 of the Corporations Act 2001 (Cth), certain offers available via OnMarket will be restricted to Wholesale investors where a Product Disclosure Statement, Prospectus, CSF Offer Document or other regulated offer document is not available.
Wholesale investors include Sophisticated Investors and Professional Investors. Some offers may also be available for Experienced Investors.
Investors and Members who are not validly classified by OnMarket must not seek access to Offers for which they are not eligible.
11.2 Classifying investors as professional, sophisticated or experienced
Investors may apply to be classified as sophisticated, experienced investor or professional investors in the Investor Profile panel.
A process is in place to allow investors to apply to be classified as one of:
(a) Sophisticated Investor – Investors will be required to provide a current Certified Accountant Certificate, confirming that they have either $2.5million of net assets or have an annual income of over $250k for the last two years. A Certificate will only be current for 2 years (or any other period that the Corporations Act may prescribe), and must be in place before an application can be made.
(b) Professional Investor – They will be required to confirm that they hold an AFSL or operate certain investment vehicles with at least $10m of assets under management.
(c) Experienced Investor – You and your accountant or other financial services adviser will be required to confirm that you are an Experienced Investor, in accordance with Corporations Act requirements.
11.3 Disclaimers and discretions
We will rely on you to provide accurate and complete information, including information from your accountant or financial services adviser. We will not be responsible or liable for any incorrect classification, or failure to classify, where we have relied on your information.
If your supporting information or certifications are not complete or current, or we have any other concerns about the validity of your information or classification, we may refuse at our discretion to classify you as wholesale, or may suspend your classification. We will not be liable to you for any exercise of that discretion.
12 Applying for an Offer
12.1 Applications are binding
Subject to clauses 13, 14 and 15, an application is binding on a Member once submitted to OnMarket.
12.2 How to make an application
An application can only be made by completing the relevant application procedures for an Offer.
Members may only make an application, and submit payment, through the OnMarket site.
Members will be required to complete certain acknowledgements, as part of making an application – including agreeing to be bound by the constitution (which may include any shareholder agreement terms) of the issuer.
Failure to strictly comply with the application procedures including providing relevant information and providing acknowledgements may not comply with the Corporations Act and result in rejection of a Member’s application.
Members should have regard to the relevant Offer document (available through the OnMarket site) and any Risk Warnings for the Offer, in making an application.
12.3 No responsibility for application entry or transmission delays
There may be some delay between the time that a Member enters an application into OnMarket, and the time that OnMarket provides the application to the issuer, or enters the application into the OnMarket pricing facility, in the event that the Offer is priced through that facility.
While OnMarket will endeavour to enter applications into the facility, or provide the applications to the offeror, OnMarket takes no responsibility and shall incur no liability for applications that are not submitted prior to the close of the Offer.
12.4 Not liable for amendment or cancellation delays
OnMarket shall not be liable for any delay between a Member making an amendment or cancellation (where permitted), and OnMarket entering that change into OnMarket (as the case may be) or providing information to the issuer.
12.5 Obligation to make payment for applications
A Member must make payment for every application that it makes, at the time of making the application.
OnMarket shall have full recourse to any Member for consequential damages in the event that a Member does not make payment for an application prior to the offer closing.
A failure to make prompt payment may result in an application being denied, and OnMarket will not be liable for that.
12.6 Payment does not guarantee allocation
Allocation is subject to the terms of the Offer, and applications may be scaled back or rejected with any excess payment refunded. Scale-back and rejecting of applications may be undertaken by OnMarket before it supplies the resulting scaled-back applications to the registry. On-Market accepts no liability to any Member, person or entity as a result of scaling-back or rejecting any application.
12.7 No responsibility for offeror’s allocations
OnMarket takes no responsibility in the event that an offeror does not allocate Securities in accordance with the terms of its Offer.
12.8 Interest on payments retained by OnMarket
OnMarket will retain all interest earned on any payments received from a Member prior to settlement with the Issuer of an application and, where applicable, refunds that OnMarket pays to the Member.
12.9 Indemnity
Each Member agrees to indemnify OnMarket for all losses incurred by OnMarket, whether directly or indirectly, if they breach the terms of the Offer, or fail to pay, or they manipulate or attempt to manipulate the market, breach the Corporations Act or ASX Operating Rules.
12.10 Effect of delays in full payment
A Member’s application into an Offer available via OnMarket will only be complete when full payment has been received and cleared in our bank account.
If payment is received after an Offer closes the associated application may be rejected and all moneys received may, be refunded to the Member in OnMarket’s absolute discretion.
13 Additional rules for applications into OnMarket IPO Offers
13.1 Cancellations and withdrawal of applications
While an OnMarket IPO Offer remains live (that is, open via OnMarket), a Member may cancel their application, and any payments made will be refunded.
Once an OnMarket IPO Offer has been closed, any fully funded applications will be binding and may not be withdrawn (except as otherwise provided under these terms).
OnMarket will not give Members notice of when it closes an Offer and applications may no longer be cancelled.
No cooling off rights otherwise apply to an OnMarket IPO Offer unless specified in these terms, or in express terms of the relevant Offer.
13.2 Resubmitting application
A Member may resubmit an application into an OnMarket IPO Offer, following a cancelled application if the Offer period is still open.
14 Additional rules for applications into OnMarket Crowd Offers
14.1 Cancellation and withdrawal of applications
A Member who is not classified as a sophisticated investor or a professional investor in accordance with clause 11.2 may cancel an application into a CSF Offer within 5 Business Days after they submit their application (even if the Offer period has closed in that period), and any payments made will be refunded.
If we publish a supplementary or replacement CSF Offer document to correct a defective CSF Offer document, and the defect is materially adverse from the point of view of an investor, we will send a link to the supplementary or replacement document to each person who has already applied to the CSF offer. Each investor in the offer may, within 14 days after the date of the notice, withdraw their application and have their application money refunded (even if the Offer period has closed in that period).
14.2 Resubmitting application
A Member may resubmit an application into a CSF Offer, following a cancelled application if the Offer period is still open.
14.3 Pricing through an OnMarket pricing facility
If a CSF Offer is priced through an OnMarket pricing facility, the terms of the CSF Offer may specify additional terms for submitting applications into the Bookbuild to determine a price.
14.4 Allocations for CSF Offers on OnMarket Crowd
Fully funded applications submitted via OnMarket Crowd’s application facility will, if the Offer is complete, be allocated in accordance with the allocation principles specified in the CSF Offer Document, or in the absence of such allocation principles, OnMarket’s absolute discretion.
15 Additional rules where an OnMarket Pricing Facility is used
15.1 Adaptation of rules for OnMarket Crowd
The following rules relate principally to a pricing facility used for an OnMarket IPO Offer. These rules may be adapted if a pricing facility is used for an OnMarket Crowd Offer, or another Offer.
15.2 Changing or amending applications in pricing facility
A Member may only change or amend their application where the live offer price has increased above their application price (if applicable).
Any increase in the application price must be made within the total value of a current application.
15.3 Cancelling and resubmitting an application in pricing facility
If the Offer is using an OnMarket pricing facility - if a Member wishes to amend their application when the live offer price has not changed, then the Member must cancel their application and resubmit their amended application.
If funds have been received, then OnMarket automatically refunds those funds, and the Member will be required to pay a second time, using the new payment method associated with the new application.
15.4 Application price falls below live price – pricing facility
OnMarket will endeavour to notify Members when their application price has fallen below the live offer price via SMS or Push notification (email notifications will not be provided here).
Members will need to have downloaded the mobile application and turned on or accepted notifications from the app, or have included their mobile phone number in their Investor Profile to receive these notifications.
15.5 No responsibility for delays or notification failures – pricing facility
We take no responsibility if the notification of the change in live offer price is delayed, or fails to occur, or if the Member does not change their application price prior to the closing of an Offer.
16 Other Allocation rules
16.1 Notification of allocation
A notification that allocation has occurred under an Offer will be emailed to relevant Members.
A notification may include notice that applications were scaled back, in accordance with the relevant allocation principles (for instance, if applications exceeded a maximum offer size).
Members that have received allocations may download their Allocation Statement from OnMarket.
Allocation Statements from OnMarket are not evidence of title, but a record from OnMarket.
Members obtain evidence of title from the share registry of the issuer. OnMarket will not be liable in the event that the OnMarket Allocation statement is not correct, or is inconsistent with information provided by the registry.
The notification of allocations under these terms will represent a final determination.
16.2 Unsuccessful applications
Where an application has not received an allocation due to:
(a) late payment, full payment not being received or non-payment;
(b) late submission or delayed entry of their application;
(c) the application price being below the final price (where applicable);
(d) the application being scaled back to below any minimum application size;
(e) ineligibility of the Member, or of the Member’s application; or
(f) breach or suspected breach of these terms,
the Member will be sent a notification to say that their application was not successful and they did not receive an allocation.
The Member’s History Panel will record that an application was unsuccessful.
16.3 Priority Allocations
OnMarket will use its reasonable endeavours to advise OnMarket members if actions by an Issuer, Member, or bidder or class of Members or Bidders, would result in applications by such Members or bidders receiving a priority in allocations. OnMarket retains absolute discretion in determining whether applications satisfy any requirements to receive a priority application over other applications. OnMarket bears no liability to any member to the extent that it gives priority to certain applications, or classes of applications, or if its disclosure of its allocation policy, or lack thereof, fails to adequately explain the effect of its allocation policy or policies.
17 Refunds
17.1 Eligibility for refunds
Refunds will be paid in the following situations:
(a) late or incomplete payment;
(b) late submission or delayed entry of an application;
(c) an investor's application is scaled back or the investor pays more than the application price multiplied by the number of securities applied for;
(d) the application price is below the final price,
(e) there is a rounding difference in a variable priced deal;
(f) the Offer is withdrawn by the issuer or OnMarket; or
(g) a withdrawal right arises under the Corporations Act, and the Member withdraws its application; or
(h) if cooling off rights apply, a Member exercises its cooling off right to cancel or withdraw its application.
17.2 Timing of refunds
Refunds will be made to a Member’s nominated refund account in the Investor Profile within 5 Business Days of the issue of the allocation statements associated with the Offer, or such other time as may be required or permitted by law.
17.3 Refunds by cheque (if applicable)
If a Member under the relevant Investor Profile has elected to be refunded by cheque, and OnMarket permits cheque payments, then refunds will be paid within 20 Business Days. OnMarket reserves the right to deduct a suitable charge associated with the costs of providing cheque refunds.
17.4 Foreign Currency Refunds
OnMarket facilitates payments from overseas investors through its Purchased Payment Facility (PPF) provider, Wise Australia Pty Ltd ACN 616 463 855. Wise Australia Pty Ltd holds an Australian Financial Services licence (AFSL) number 513764 and is authorised by the Australian Prudential Regulation Authority (APRA). OnMarket will refund foreign investors by depositing the Australian dollars received with Wise and instructing Wise to refund the investor. OnMarket is not responsible for any fees or losses as a result of currency conversion or exchange rate fluctuations, any action taken by, or failure to act, by Wise or losses incurred by Investors if Wise fails to remit the refund to the investor for any reason including fraud or insolvency.
18 Retention of amounts from refund to cover transaction costs
18.1 Retention amount for costs
Where On-Market pays a refund in relation to an application, and to the extent permitted by law, OnMarket reserves the right to retain the greater of:
(a) $5; and
(b) any transaction costs such as, but not limited to, bank fees plus 20%.
18.2 Refunds below $5
In the event that a refund would, if made, be less than $5, then (to the extent permitted by law) OnMarket reserves the right to retain such amount, and no further amount shall remain owing by OnMarket to the applicant.
19 Rewards and Incentives
From time to time, where permitted by law, OnMarket may offer rewards to its Members for sharing the OnMarket App, or for referring Members to the OnMarket website.
To the extent permissible by law, OnMarket shall not be liable for non-payment of any reward.
Terms of participation in rewards programs are set out in Schedule 1.
20 Term and Termination
20.1 Termination of Membership
You may terminate your Membership at any time via the Membership Details section of the website, mobile application or by notifying us by email at enquiries@onmarket.com.au
20.2 Effect of termination or suspension of Membership
If your Membership registration is terminated, or suspended, you will not be entitled to:
(a) view any detailed information of the Offers;
(b) subscribe for any shares in an Issuer under an Offer (subject to clause 20.4).
20.3 Discretion to refuse, terminate or suspend
OnMarket reserves the right, in its sole discretion, to refuse registration, terminate or suspend registration of a Member, or refuse to permit a Member to invest in any Issuer.
20.4 Effect of termination or suspension during an Offer
If a Member’s registration has been terminated or suspended after they have submitted an application into an Offer, the Member will continue to be bound by the terms of that Offer and be required to invest.
20.5 OnMarket has immediate termination right
OnMarket may terminate this Agreement with immediate effect by notice in writing on its website.
20.6 Refund of monies held
Except to the extent that you have made an application under an Offer as contemplated by clause 20.4, if OnMarket terminates this Agreement or blocks your use of its platform for future Offers, OnMarket may refund monies, if any, held on your account, to your designated refund account or may pay the monies to the issuer’s account, in accordance with the terms of the Offer and subject to applicable laws.
20.7 Release following termination
OnMarket and you will be released from all obligations and liabilities to each other occurring or arising after the date of such termination, except with respect to those obligations that by their nature are designed to survive termination, as set out in this Agreement.
Termination will not relieve you from any liability arising from any breach of this Agreement, which occurred prior to termination.
21 OnMarket’s Disclosure of Fees
21.1 No application fees without notice
Members will not pay any fees to OnMarket for submitting an application into an Offer via OnMarket, including any pricing facility, or making an application under a CSF Offer on OnMarket Crowd’s application facility, unless notified under these terms or the terms of the Offer.
21.2 Notification of any introduction of fees
OnMarket may introduce fees by giving advance notice to subscribers.
21.3 OnMarket’s allocation fee
OnMarket may charge a percentage of the application value payable to OnMarket, or the greater of a minimum fee on submitting an application into an offer via OnMarket. At the absolute discretion of OnMarket, this fee may be waived. If an applicant initiates an action that has the effect of causing an application fee to no longer be calculated as part of the bidding process, and such applicant does not complete the entire action required by OnMarket to have the fee waived, OnMarket may, in its absolute discretion, refuse to provide the applicant’s application to the issuer.
Each investor that submits an application via OnMarket that incurs a fee payable in addition to, and at the time of making, the application, acknowledges that, to the extent of any inconsistency between this clause and the offer document, this clause will prevail.
21.4 OnMarket’s other fees and interests
If OnMarket participates in Offers by making a “house” application, or acting as a lead manager or arranger, then it will receive fees for acting in this capacity and may receive allocations of Securities.
The Issuer (or Lead Manager, if applicable) to an Offer may make a firm allocation of Securities available to OnMarket for distribution among OnMarket’s clients or subscribers and OnMarket may receive fees associated with making the Offer available on the OnMarket platform, collecting applications and proceeds.
OnMarket or one or more of its associates may also have or receive interests in the Securities or derivatives of the Issuer for its own account or the account of clients.
21.5 Fees to access third party research
Fees may be charged by OnMarket (on behalf of third party research or data providers) for access to third party research reports or data, and OnMarket may retain a part of those fees (subject to applicable law).
21.6 OnMarket’s licensing fees for use of third party facilities
OnMarket may collaborate with third parties in the provision of its services or facilities, and may permit third parties to use certain of its facilities.
OnMarket may pay licensing or other fees to those third parties, or may receive licensing or other fees from those third parties.
21.7 Fees and benefits of OnMarket from Issuers
OnMarket may also be paid a fee by Issuers for advisory services provided in relation to an Offer, other capital raising fees, mandate fees for preparatory work, Broker Stamping fees, fees for the use of any pricing facility, reimbursement of expenses, and indemnities under Issuers terms of engagement.
21.8 Broker stamping fees
Broker Stamping fee are a fee, if any, that OnMarket determines, in its absolute discretion that it has received from an Issuer or broker specifically attributable to a percentage of the dollar value of the aggregate allocations made to via OnMarket.
Exclusions from stamping fees
For the avoidance of doubt, the Broker Stamping fee excludes fees related to setting up or hosting an offer, advising an issuer or broker, targeted marketing efforts, creating a video, or other materials, or fees that are contingent on receiving a cumulative number of allocations, or a cumulative dollar value of applications or allocations in relation to a transaction.
In the event that an issuer, broker or other party pays a fee to OnMarket for processing applications, which is not calculated as a percentage of the dollar value of an allocation, such fee will not be included in the Broker Stamping fee calculation for the purposes of the Influencer rewards program.
21.9 OnMarket Crowd – fee disclosures
Members can access disclosures of fees by OnMarket for Offers on OnMarket Crowd, via its website.
22 Changing of the Member Terms & Conditions
22.1 Changes from time to time
22.2 We may change these Member Terms & Conditions from time to time. Notification on OnMarket site
We’ll give you notice of these changes by publishing the new Member Terms & Conditions on the OnMarket site and telling you when you next login.
22.3 Deemed acceptance of changes
Continued use of the website or mobile application will be deemed acceptance of the changed Member Terms & Conditions.
23 Dispute Resolution
23.1 OnMarket’s records are conclusive
In the case of a dispute, in the absence of evidence to the contrary, OnMarket’s records of electronic or telephone communications shall be conclusive evidence of the details of the communications by email, internet or telephone (as the case may be) between OnMarket and the Member.
23.2 Internal Dispute Resolution Program
OnMarket has an Internal Dispute Resolution (IDR) Program that aims to facilitate an effective and timely resolution of disputes between clients of OnMarket and OnMarket. Copies of this IDR can be provided on request.
23.3 Referral of complaints
If OnMarket can’t resolve a dispute to a Member’s satisfaction, depending on its nature, the Member can refer their complaint to the Credit and Investment Ombudsman PO Box A252, South Sydney NSW 1235.
24 Indemnity
Members are liable for, and indemnify OnMarket for costs, losses and claims:
(a) caused by unauthorised transactions where we can prove that you probably contributed to losses through fraud or breach of the security protocols and requirements; or
(b) from unauthorised transactions because of your failure to keep passwords or your computers and mobile devices secure; or
(c) caused by a material breach of these terms and conditions.
25 Anti money laundering and counter terrorism rules
25.1 Obligation to verify information
OnMarket may be required under the Anti-Money Laundering and Counter Terrorism Financing Act 2006 and Anti- Money Laundering and Counter Terrorism Financing Rules 2007 (No.1) (AML/CTF legislation) and the Australian implementation of the US Foreign Account Tax Compliance Act (FATCA), to collect information and verification documentation from Member’s when they become a Member or apply for an Offer.
25.2 Your undertaking to provide information
You agree to provide OnMarket with whatever information that is required in order for OnMarket to meet its obligations under the AML/ CTF legislation and FATCA from time to time.
25.3 Disclaimer
OnMarket will not be responsible or liable for any losses or missed opportunities that you incur as a result of compliance with, or failure or delays in compliance with, the AML/CTF legislation and FATCA, including from delays in being provided with relevant information or verification documentation, or from delays in assessing information.
26 Other regulatory reporting
26.1 Other reporting obligations
In providing services to you we are bound by regulatory reporting obligations which may mean that we have to monitor and collect data, report data, conduct, dealings or omissions by you or regarding you, to regulatory authorities, including, but not limited to, the Australian Taxation Office, the Australian Securities & Investments Commission, the Australian Transaction Reports and Analysis Centre and the Australian Federal Police.
26.2 Consent
You acknowledge and consent to the collection and reporting of any such information.
26.3 Disclaimer
OnMarket will not be responsible or liable for any losses or missed opportunities that you incur as a result of such collection or reporting of information or data, or any assessments made as to obligations to collect and report, or exercises of discretion in collecting and reporting.
27 General
27.1 Financial Services Guide - electronic delivery
You agree to accept delivery of our Financial Services Guide electronically via our website or (at our discretion) as an email attachment, through mobile applications, or by hyperlinks within emails, websites or mobile applications.
27.2 Other documents – electronic delivery
You agree to accept delivery of any relevant prospectus, product disclosure statement, other prescribed disclosure document, CSF offer document, recognised offer document or other offer materials or notifications electronically, including by email, as email attachments, on websites, through mobile applications, or by hyperlinks within emails, websites or mobile applications.
27.3 Incorporation of website terms and conditions
You have read and agree to OnMarket’s website terms of use which are incorporated into this agreement by reference (see clause 2.1), available
here.
27.4 Governing law
These terms and conditions are governed by the laws of New South Wales.
28 Definitions and interpretation
28.1 Defined terms
In these terms the following words have the following meanings:
Application Form means the application form attached to, associated with or accompanying an Offer under which a Member applies for Securities in that Offer
ASX means ASX Limited (ABN 98 008 624 691)
ASX Operating Rules means the market operating rules of the ASX
Broker Stamping fee means the fees described in clause 21.7.
Business Day means a day that is not a Saturday, a Sunday or a public holiday or bank holiday in Sydney
CHESS means the clearing house electronic subregister system operated by the ASX
Corporations Act means the Corporations Act 2001 (Cth)
General Rewards means the general rewards program referred to in Schedule 1 of these Member Terms & Conditions (program expired 1 May 2017)
Influencer Rewards means the influencer rewards program described in clauses Schedule 1 of these Member Terms & Conditions
Investor Profile means an Investor Profile completed by a Member with the relevant details of an applicant of an Offer
Issuer means the issuer of Securities under an Offer
Member means a person who is a member of the OnMarket website and mobile application
New Member means a person who has registered as a Member of the OnMarket website and mobile application for the first time, as determined by OnMarket in its absolute discretion
Offer means an offer of Securities made by an Issuer that is available to be subscribed for through OnMarket’s website and mobile application
Permitted Jurisdiction means a jurisdiction nominated as a permitted jurisdiction in the selling restrictions for an Offer, in which an Offer of Securities may be made under applicable laws without requirement for a prospectus, registration statement or other regulatory filing, to relevant investors who meet certain criteria set out in selling restrictions in the Offer Document for the relevant Offer.
{Note – not all Offers may permit applications from investors in jurisdictions other than Australia}
Rewards ID is your unique ID associated with your Membership that allows us to identify you as the referrer for the purposes of the General Rewards program, Influencer Rewards program and any other applicable rewards program from time to time.
Securities has the meaning as in Section 92(1) of the Corporations Act, and includes depositary interests in Securities.
28.2 Terms defined in the Corporations Act
Terms used in these terms and conditions, and defined in the Corporations Act have the same meaning as in the Corporations Act unless the contrary intention appears.
AGREEMENT
By continuing you represent, warrant and agree that you have read, understood and will comply with the Member Terms & Conditions and all other requirements on this website or mobile application.
Schedule 1 Rewards and incentive programs
1 Reward programs – OnMarket IPOs
1.1 Available rewards programs
A Member (other than a Member participating in a CSF Offer) can elect to participate in one of the following rewards programs:
(a) Influencer Rewards; or
(b) Other rewards programs that may be introduced from time to time.
{Note – the General Rewards program expired 1 May 2017.}
1.2 Payment out of Broker Stamping Fees
All rewards will be paid out of the Broker Stamping Fee (see definitions) that OnMarket receives from the Issuer in relation to an OnMarket IPO Offer.
1.3 New Members
If we have reasonable belief that someone has been a Member of OnMarket before, then they won’t be considered a New Member for the purpose of being referred under the Influencer Rewards programs.
A New Member means a person who has registered as a Member of the OnMarket website and mobile application for the first time.
1.4 Your responsibility for entry of Rewards ID
You agree that you bear the entire responsibility for a referred Member entering your Rewards ID.
1.5 Disclaimer – Rewards ID
You agree that OnMarket bears no responsibility if a referred Member does not enter your Rewards ID.
1.6 No rewards for prior transactions
You agree that you will have not earn any rewards in relation to transactions that occur prior to a Member entering your Rewards ID or prior to you entering your nominated bank account for the purposes of receiving rewards payments.
1.7 No liability to pay if prohibited by law
You agree that OnMarket shall have no liability to pay rewards in the event that any law, regulation or rule that applies to OnMarket, either in existence at the time that these terms were accepted or introduced with retrospective application, prohibits the payment of rewards.
You agree that OnMarket makes no implied warranty that the rewards program is in compliance with all laws, regulations and rules in the relevant jurisdiction of you or any referred Member.
1.8 Application of these terms
You agree that these terms apply to you sharing OnMarket prior to, or after, accepting these terms and conditions.
1.9 Changes to a referred Member’s code or rewards programs
You agree that if a referred Member:
(a) changes or deletes your Rewards ID as their referral code; or
(b) requests that OnMarket changes their referral code; or
(c) joins another rewards program (note – the General Rewards program expired 30 November 2017); or
(d) creates a new profile that does not contain your referral code,
then you will no longer be entitled to any rewards in relation to that referred Member.
You agree that OnMarket bears no responsibility for ensuring that a referred Member may not change or delete their Rewards ID as their referral code, change their rewards program or create a new profile that does not contain your referral code.
1.10 No Disclosure of Referred Members Identity or individual applications
OnMarket respects the privacy of Referred Members. You agree that OnMarket will not disclose the identity of any Referred Member to you or the individual allocations that result from your referrals.
The total number of OnMarket Members in your referral network and the total allocations to your referred Members is disclosed under your ‘Refer’ tab on your investor dashboard.
2 Termination of Rewards Programs
2.1 Termination on notice
If OnMarket ceases to make any reward or incentive program generally available to OnMarket Members, then OnMarket may immediately terminate your participation in such program by giving you at least 30 days’ written notice of termination (such notice to be sent by OnMarket to the email address associated with your Membership).
2.2 Changes to programs
If OnMarket determines, in its absolute discretion, that OnMarket is required to implement changes to the rewards or incentive program to comply with any requirement, direction, or instruction or advice from a regulatory body or has received legal advice that such changes are necessary to comply with any law, rule or regulation; then OnMarket may amend the terms and conditions of such program with immediate effect, without any liability to you or any referring Member.
You agree that you will not make any claim for loss or damages, whether direct or indirect, against OnMarket if OnMarket amends the terms and conditions of such rewards or incentive program under this clause.
2.3 You may terminate participation on notice
You may terminate your participation in a rewards or incentive program at any time, without cause, by giving OnMarket at least 30 days’ written notice of termination (such notice to be sent to OnMarket by email to omb@onmarket.com.au).
2.4 Release after termination
OnMarket and you will be released from all obligations and liabilities to each other occurring or arising after the date of such termination.
Termination will not relieve you from any liability arising from any breach of this Agreement, which occurred prior to termination.
2.5 No continuation
If OnMarket continues to generate revenue after termination from Members referred by you, this does not constitute a continuation or renewal of this Agreement or a waiver of termination.
2.6 Broker Stamping fees prior to termination
You will be entitled to any unpaid share of Broker Stamping fees relating to closed offers, if any, earned by you on or prior to the date of termination. You will not be entitled to referral fees relating to offers that close after the date of termination.
3 General Rewards program - retired
OnMarket has retired the General Rewards program.
On 1 May 2017 all General Rewards balances (including the $500 sign-up bonus for early adopters) expired.
We will advise Members that have referred people under the General Rewards program how they can port referrals to the Influencer Rewards Program.
Please contact us if you require any further information.
4 Influencer Rewards
4.1 Sharing the OnMarket facility
A Member may elect to share the OnMarket facility under the Influencer Rewards program (other than in connection with a CSF Offer).
Where the referred people sign up as New Members and reference the referring Member’s unique sharing ID, the referring Member will receive a cash reward based on the Rewards % multiplied by the Broker Stamping fee paid to OnMarket in relation to that allocation, as determined by OnMarket in its absolute discretion.
4.2 Other forms of sharing
For the avoidance of doubt, any sharing as part of the application process for offers via OnMarket, will not be included under the influencer Rewards program by default, unless new members who sign up have referenced the referring Member’s unique sharing ID
4.3 Calculation of Rewards %
The Rewards % is determined as:
(a) in relation to OnMarket IPO Offers, 25% of the Broker Stamping fee paid to OnMarket; and
(b) in relation to CSF Offers, the lesser of:
(i) 25% of the Broker Stamping fee paid to OnMarket; and
(ii) 1.25% of the referred Member’s allocation.
4.4 Expiry of Influencer Reward cash payments
Subject to section 20, and Schedule 1 clauses 1 and 2, Influencer Reward cash payments will expire:
(a) after a period of two years after from the earlier of:
(i) the date that the Referred Member becomes a New Member of OnMarket; and
(ii) (the date that OnMarket notifies Members that the Influencer Program will cease to be offered as a referral incentive program; and
(b) if applicable, the date that a referred Member changes, or requests that OnMarket changes, the Rewards ID indicating your referral of such Member or joins the Velocity rewards program (note – the Velocity rewards program expired on 30 November 2018) or other rewards program.
4.5 No requirement to apply or obtain financial services
There is no requirement that the referring Member under the Influence Rewards program submits an application under any Offer or otherwise obtains financial services from OnMarket.
4.6 Payment conditions
Members that participate in the Influencer Rewards program will be required to enter valid bank account details to facilitate the payment.
Where the payment is being made to a GST reporting entity or company, the Member is required to enter the relevant Australian Business Number (ABN) so that OnMarket can include required GST amounts.
No payment will be made in relation to an allocation if the referring Member does not enter their valid bank account details prior to the referred New Member being allocated shares.
4.7 Disclaimer – payment arrangements
OnMarket takes no responsibility if the bank account details, or relevant ABN details provided by the Member are incorrect.
In the event that a Member has provided incorrect bank account details, and subsequently corrects those details, OnMarket will not make payments in relation to past allocations to a referred New Member.
4.8 Reconciliation of underpayments
In the event that we determine that we have underpaid your cash rewards we will provide a reconciling payment to you within 3 months of that determination. You will not be entitled to lost interest or any other consequential damages due to any delays of our payment.
4.9 Transfer back - overpayments
If we calculate your cash rewards as more than they should be and notify you of the error, you agree to transfer the balance back to us within 1 month of being notified of such error.
You will be entitled to retain any interest earned on the funds that we mistakenly transferred to you.
4.10 Disclaimer - miscalculations
To the extent permissible by law, we will not be liable for any miscalculation of the value of Influencer rewards payments.
4.11 Rewards payments below $10
In the event that a rewards payment would, if made, be less than $10, then OnMarket reserves the right to retain such amount, and no further amount shall remain owing by OnMarket to the referring person in relation to the allocation made to the referred Member.
4.12 Confidentiality – referred Member applications / allocations
You acknowledge that any application made by a referred Member is confidential to that Member, and that OnMarket may not disclose information about applications or allocations made by referred Members to you, without the consent of that referred Member.
4.13 Disclosure of rewards payments
You acknowledge that OnMarket may disclose to a person that you send a referral code to, that you will receive a payment based on the allocation fee that OnMarket receives in relation to their allocations.
You acknowledge that OnMarket may give such Member the opportunity to opt out of being registered as your referral, and, if this happens, then you will not receive any payment in relation to that Member’s allocations.
4.14 Acknowledgement of fees
If you have been referred to OnMarket under the Influencer program, then you acknowledge that OnMarket will pay a fee to the referring person which will be calculated by reference to the value of your application.
You consent to this payment being made and agree not to make any claim, whether direct or indirect, against OnMarket or the referring Member in relation to the Influencer program, or payments made under it.