Introduction and how these Terms apply
Jasper Property Limited (Jasper, we, us, or our) provides this online platform (Platform, and overall our Services) for investors to consider and invest in property investment opportunities created and managed by us (each an Offer). Offers may be either Wholesale Offers or, once we are licensed in your jurisdiction as a fund manager, Retail Offers.
When we refer to you or your in these terms and conditions (Terms) we are referring to you, as the person using the Platform or the Services, including (where applicable) any investment entity you nominate through the Platform (Investment Entity).
We also refer in these terms to Jasper Nominee, which means Jasper NZ Investors Nominee Limited (or any other Jasper group company that we nominate from time to time) which holds your wallet containing your money and other assets on the Platform (Wallet). Jasper Nominee is a party to these Terms and is entitled to the benefit of any protections, indemnities or limitations of liability that we are under them.
These Terms apply to you (and are legally binding) when you access and/or use the Platform and the Services.
Each Offer will have its own specific terms and conditions, as set out in a product disclosure statement (for a Retail Offer) or some other form of offer document (for a Wholesale Offer) (Offer Document) and the other agreements, deeds or disclosures in relation to the Offer (in either case, the Offer Terms).In the event of any inconsistency between these Terms and the specific terms and conditions of an Offer (including its Offer Terms), the specific terms and conditions of the Offer will prevail.
We can change these Terms at any time and publish them on our website. We do not need to give you notice of changes that benefit you or that do not materially reduce the benefit of the Platform or the Services. For any other change, we will give you such notice as we consider to be reasonable, or are able to give, in the circumstances. We may give you notice by providing a message directly to you (including by sending you an email, text message, or a message within the Platform) or by posting a general notification on the Platform. If you keep using the Platform or our Services after the notification is provided or posted, you will be deemed to have accepted the changes. If you don’t accept any changes, you must not create a User Account and/or must notify us, cease using our Platform and Services immediately, and close your User Account.
Description of the Platform and Services
The Platform will give you the opportunity (but not the right) to subscribe to Offers and acquire “managed investment products” (as defined in the Financial Markets Conduct Act 2013, or FMCA) in the form of interests in investment vehicles which will acquire commercial or industrial properties (Invest, with Investment having a corresponding meaning), subject to the Terms, the Offer Terms and other terms and conditions of the Offer.
Schemes may be structured as limited partnerships, unit trusts, proportionate ownership schemes or in any form that we consider best meets the requirements of the Offer. Schemes will generally be managed by us or a company 100% owned by us and, where it makes sense or is required by law, we may appoint an independent trustee or supervisor.
Each Scheme will generally have a Governing Document which you will agree to be bound by. This may be a partnership agreement, trust deed or other set of documents which reflect the structure and the Offer.
Initially, Offers will only be Wholesale Offers open to (and capable of acceptance by) persons who do not require disclosure under Part 3 of the FMCA, primarily wholesale investors as that term is defined in the FMCA or in Australia clients who do not require a prospectus in relation to securities or otherwise are wholesale clients under the Australian Corporations Act (Wholesale Investor). When we are able to open the
Platform to make Retail Offers, we will publish details on the website and may amend these Terms as necessary to meet the requirements of applicable laws and regulations.
Also initially, there is no secondary market for Investments (we may develop and offer this later) and you should consider your Investment to be illiquid. The terms of an Offer or Governing Document may also restrict transfers.
Jasper does not give financial advice
We do not give any recommendation or opinion as to whether you should use our Services or make any Investment through the Platform.
Before making an Investment, you must read the Offer Document and consider and assess whether the Investment is suitable for you depending on your financial circumstances and tolerance to risk. To help with this, you should seek any independent financial, legal and/or tax advice you need before you invest.
You acknowledge that there are risks in using the Platform and our Services, and in making Investments. These include, but are not limited to, those set out below
Past performance is not a reliable indicator or guarantee of future performance. Making an Investment involves risk and you can experience financial loss including the entire value of your Investment.
Once you have completed and finalised an Investment, you will not be able to reverse it and get your money back.
We make no warranties or representations as to the future value of any Investment and accepts no liability (of any form) for any change in value to your Investment.
There are many risks associated with owning commercial or industrial property, from the risk of default by tenants, through to statutory liability as an owner (such as in relation to health & safety or environmental contamination).
Different types of Scheme will be treated differently for tax purposes. For flow-through vehicles such as limited partnerships, you will be responsible for your tax obligations. Other vehicles such as unit trusts may be portfolio investment entities (PIEs) or taxed in other ways (as companies, for example). In all cases, you should seek your own tax advice to understand your obligations.
If you invest in a PIE, you must provide us with your IRD number and keep us notified of your prescribed investor rate (PIR). If you don't notify us of your PIR and your IRD number, we may use the default rate of 28%. If you notify a PIR that is lower than your correct rate, you will need to include your PIE income in your tax return and pay any tax shortfall (including penalties or interest) to Inland Revenue. If the default rate or your notified PIR is higher than your correct rate, you won't get a refund of any overpaid tax.
There is a risk that your proposed transaction cannot be settled or is delayed at settlement, that processing times differ for each transaction, or a transaction may be incorrectly processed.
These risks can result from, amongst other issues:
- user error when providing transaction details;
- an error in delivering the consideration for a transaction;
- high transaction volume on the Platform; and
- a failure in the Platform processing systems.
Any networks and software, whether proprietary or third-party, connected directly or indirectly to the Platform, may be subject to technical weaknesses, bugs, system failures, or hacks by external parties.
Hackers are sophisticated, and you may also be targeted by ‘phishing’ attacks or other scams. Phishing includes where third parties masquerade as our website (Website), social media account, email support number or any of our other applications in order to steal your credentials. You should only access the Website through its official URL (https://www.jasper.io/). Never click on a link or download an application from a third-party. We strongly recommend that you keep your credentials and password secure to prevent unauthorised account use. Your passwords should be unique to the Platform and should never be stored insecurely on any personal device.
We will make reasonable efforts to notify users in the event the Website, the Platform, or a specific part of the Website or Platform, has been subject to a technical weakness, bug, system failure, or hack.
Cyber security generally
The transmission of information over the internet (including to or from the Platform) is not completely secure or error free. You should stop transacting when it is clear there has been a breach of security or a system failure that poses a risk to security exists (such as malware, ransomware or phishing).
Your User Account
To use the Platform and our Services you will need to register a user account (User Account).
You may only create a User Account if:
- you are at least 18 years old and live in New Zealand or, where we permit you to invest in a Wholesale Offer, Australia;
- you provide accurate and complete information as required by our User Account creation process, including but not limited to, providing a valid email address (which you control) and creating a password;
You agree that you will create one User Account and will not register as a user under multiple personas (whether false or not).
You must keep the information relating to your User Account up to date (including but not limited to your contact details).
It is your responsibility to maintain the confidentiality, security and control of any information (including your passwords) or devices (such as mobile phones, tablets or laptops) that may be used to access your User Account.
You must exercise all reasonable care to ensure the safety of your User Account to prevent loss, theft and unauthorised or fraudulent use. Without limiting this requirement, you agree that you will:
- ensure the password you use for you User Account is not the same as that which you use for any other purpose;
- not share your password, login information or other security related information with any other person that may allow them to access your User Account;
- not permit or enable any other person to use or access your User Account; and
- not leave your User Account open when not in use by you.
If you become aware or suspect that your login and password to the Platform have been compromised in any way, or if there has been or you suspect there has been or will be, any unauthorised use of your password or User Account, you agree that you will immediately change your password and also notify us.
You understand that anyone accessing your User Account will be able to make Investments using your User Account and that we have no obligation to verify or take any steps to verify any instruction received from you or appearing to be sent by you. You are solely responsible for the activity that occurs on your User Account.
Any investment money you send on the Platform will be temporarily held by Jasper in its holding account on trust for you (Holding Account), until such time as it transfers such investment money to the bank account of the relevant Scheme.
The Holding Account is with a New Zealand registered bank. The Holding Account is a separate bank account to Jasper’s operating account. The Holding Account will only contain your investment money together with any investment money received from any other investor who uses the Platform from time to time
Jasper reserves the absolute discretion to return any investment money it receives in the Holding Account to its source for the purposes of its compliance with any law.
Part of your User Account is a Wallet on the Platform. Your Wallet can hold money or any other asset (including Investments) we agree from time to time. You may have more than one Wallet (for example, for different currencies) and each Wallet may be held by a different Jasper Nominee (for example, a company incorporated outside New Zealand where reasonably required).
Any money you pay in to the Platform will be held in your Wallet by Jasper Nominee on bare trust for you. Any money we receive for you, from an Investment or otherwise, will be held by Jasper Nominee on the same basis. You authorise us to instruct Jasper Nominee on your behalf for any purpose under these Terms.
We will keep accurate records of your Wallet (and all other user’s wallets).
Jasper Nominee is a non-trading company that exists to hold our clients’ money and Investments secure and separate from our own (although we may hold a buffer of our own money in the same account).
Your money may be held in a pooled account. This means your money may be held in a bank account in the name of Jasper Nominee along with the money of other people using the Platform.
We reserve the absolute discretion to return any money in your Wallet to its source for the purposes of its compliance with any law.
Without limiting any other right we may have, if you owe us money, you agree that we can:
- direct Jasper Nominee to pay us using the money in your Wallet, including converting currency into another currency to meet any obligation;
- direct Jasper Nominee to sell or otherwise deal with Investments in your Account, and to pay us using the proceeds;
- set off any money you owe us against money we owe you;
- register a security interest over Investments in your Account; or
- take legal action against you to recover any debt and any costs and expenses we incur in recovering the debt.
Making an Investment
We may, but we are not required to, make Wholesale Offers or, when we are able to do so, Retail Offers available on the Platform.
Where an Offer is open on the Platform, you may offer to Invest by completing the application process on the Platform (Investment Application).
By making an Investment Application, you warrant and confirm that you have read and accept all Offer Terms available through the Platform in relation to the Offer including:
- the Governing Document for the Scheme;
- any management agreement for a Scheme between the Scheme and us; and
- any other agreement or deed entered into (or to be entered into) by the Scheme or us (as the case may be) including without limitation, an agreement or deed in relation to finance or services for the Scheme.
Your Investment in a particular Offer, is conditional upon you:
- submitting an Investment Application (in respect of that particular Offer);
- meeting any preconditions to invest in the Offer, including where applicable being a Wholesale Investor; and
- paying the full amount committed in the Investment Application (or such lesser amount as we may specify) to us in cleared funds.
You acknowledge and accept that:
- once submitted, your Investment Application is binding and irrevocable;
- you may not acquire more than 25% of the managed investment products in a Scheme or 20% of the units of any investor class of a Scheme which is a PIE (in aggregate with any associate as defined in any of the FMCA, the Overseas Investment Act 2005 (NZ) or the Income Tax Act 2007 (NZ) of any other investor in relation to the Investment) and
- for the purposes of the Contract and Commercial Law Act 2017 (NZ) you are bound by any agreement reached by us through electronic means; and
- your investment money will be held in the Holding Account until such time as Jasper transfers such investment money to the bank account of the relevant Scheme.
We may, at our discretion:
- accept or reject your Investment Application;
- issue you with fewer managed investment products than you applied for in your Investment Application (in such circumstances, we will refund to you any Investment monies we have not accepted from you);
- require you to provide any further information or documents;
- withdraw the Offer before its closing date, or if the Offer has no closing date withdraw the Offer at any time; and
- amend any of the Offer Terms, provided that in making any such amendment, we will not increase your subscription for managed investment products in your Investment Application, remove any specific rights that you would have under the Offer Terms or cause the Offer Terms to be materially more onerous or adverse to you, before the amendment.
By submitting an Investment Application:
- you unconditionally and irrevocably agree to be bound by the terms and conditions of the Governing Document for the relevant Scheme including through electronic means pursuant to the Contract and Commercial Law Act 2017 (NZ);
- you represent and warrant that all information that you have provided to us (whether through the Platform or otherwise) is true and correct;
- you represent and warrant that you have read and accepted the Offer Terms:
- you unconditionally agree to be bound (where appropriate) by the Offer Terms in all respects;
- you hereby unconditionally and irrevocably authorise, and appoint us as your attorney, to execute any document required by the Offer Terms on your behalf;
- you accept that we have the right to not exercise the powers referred to above; and
- you indemnify and hold us harmless against all claims, costs, expenses or losses incurred by us (including without limitation, all legal costs) arising (directly or indirectly) from the power referred to above.
Compliance with laws
As a condition of your access to or continued use of the Services or the Platform, we will require you or any person connected to you (such connection determined by us at our discretion) to answer, provide or otherwise confirm the truth and accuracy of any information or document we may request, at our discretion, for the purpose of our compliance with any law, including without limitation, the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (NZ) (AML/CFT Act).
We may, at our discretion, immediately and indefinitely refuse your access to the Services or the Platform, without prior notice, if we have reason to believe (at any time) that:
- any communication, information or document you or any person connected to you has provided or procured the provision of, is not materially true or accurate or is no longer materially true or accurate;
- we are required by law to refuse your access to the Services or the Platform;
- your use of the Services or the Platform may result (or has resulted) in us, breaching any law or incurring any liability, including without limitation, under the AML/CFT Act; and
- your use of the Services or the Platform may result (or has resulted) in you breaching any law.
We will not be liable for any loss, of any form, resulting from your inability to access our Services or the Platform.
Privacy and Data Collection
Your use of the Platform and Services
You continually warrant to us that:
- you are a bona fide user of the Platform and the Services for the purposes of making Investments;
- you are legally permitted to enter into these Terms;
- you are not legally precluded from using the Platform and/or our Services;
- if you have completed our wholesale investor certification process, you are a wholesale investor as that term is defined in the FMCA or, if you are in Australia, an investor client who does not require a prospectus in relation to securities and is a wholesale clients under the Australian Corporations Act; and
- you are not an associate of any other investor in relation to a potential Investment.
You acknowledge and agree that we are not acting as your agent for any purpose.
You acknowledge that we will process your transactions through the Platform in accordance with your instructions, and you should carefully verify all instructions before making any Investments. If there is an error in those instructions, then that is at your risk and we do not accept any responsibility or liability for those errors.
When using the Platform and Services, you acknowledge and agree that you will comply with all applicable laws. Without limiting this requirement, you will not use the Platform or the Services to engage in any restricted, unlawful or criminal activities, including without limitation:
- financing terrorist organisations;
- money laundering;
- illegal gambling;
- theft or fraud;
- Ponzi or pyramid schemes; or
- computer hacking.
You agree you will not do anything that may directly or indirectly interfere with or negatively affect the operation of our Website, the Platform, the Services or other users’ use and enjoyment of the Website, the Platform or the Services. Without limiting this requirement, you will not:
- attempt to access any User Account, or the data, Investments, tokens, or keys associated with any User Account, other than your own;
- interfere with or attempt to impair our Website, the Platform or our Services or transmit software viruses, worms, other harmful files or other malware;
- attempt to decipher, decompile, disassemble or reverse engineer, copy, replicate, publish, or broadcast, frame, deep link to or otherwise distribute any of the software, the databases or the information used to provide our Website, the Platform or Services;
- use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tool, program, algorithm or methodology to access, copy or monitor our Website the Platform or our Services;
- modify, reroute, or gain access to our Website, the Platform or our Services other than as permitted by these Terms;
- use our Website, the Platform or our Services to breach any law or regulation or harm any other person or entity; and
- use systematic, repetitive or other related methods which are designed to generate or obtain repetitive and repeated amounts of data or other information from or to our Website or the Platform or which may otherwise place an unreasonable load on the infrastructure of our Website or the Platform, and for the avoidance of doubt, any action referred to above includes any attempt to perform that action (no matter how remote).
You will not use our Website, the Platform or Services for purposes which are competitive to the Platform, the Services, or our business or which would otherwise be detrimental or prejudicial to our interests in any way.
Charges and Payment
You agree to promptly pay all fees, charges and commissions in connection with, your use of the Services and the Platform and your Investment in an Offer as set out on our Website, the Platform and/or the relevant Offer Terms.
You agree to pay any goods & services or other tax in relation to any Investment.
Links to third parties
The Platform and Services may contain links to third party websites, platforms, services, and content. When you access these, you do so at your own risk. We do not verify or endorse any third party capability or content and we not responsible for what is contained at such third party locations.
You agree that all right, title and interest (including all copyright, trade mark, service marks, and other intellectual property rights of any kind, whether registered or unregistered) in the Platform or Services (whether present or future) belong to us and/or our licensors, as applicable.
When using the Platform or the Services, we grant you a limited, non-exclusive, non-transferable, revocable licence to access and use the Platform and Services only as required for your use of the Platform or the Services as expressly permitted in this Terms.
You may download and print information from the Platform for your own personal or internal business purposes only related to your use of the Platform or the Services.
We reserve all right, title and interest not expressly granted under this licence to the fullest extent possible under applicable laws.
You may at any time, for any reason, close your User Account by contacting us and requesting for your User Account to be closed.
We may refuse to create a User Account for you, or we may close your User Account and terminate, suspend or modify your access to the Platform or Services without giving any prior notice to you where we consider we have good cause. Without limiting this requirement, we may refuse to create a User Account, or we may terminate, suspend or modify your access, in the following circumstances:
- you breach these Terms;
- you impersonate another person or provide any false information when creating a User Account;
- we receive a serious complaint or multiple complaints about you from any other person;
- we consider your conduct, directly or indirectly, puts us, our Website, our Platform or any other person at risk;
- we deem your behaviour to be unacceptable;
- we consider your conduct may bring us into disrepute or adversely affect us or any other users’ reputation or image; or
- we receive a request from a law enforcement or government agency to do so.
We may discontinue providing the Platform and the Service for any reason and where we do so we will notify you.
In the event we close your User Account and/or either party terminates these Terms:
- we may immediately do anything in order to deny your access to our Website and the Platform;
- any amounts you are required to pay us (whether or not it is due to be paid) shall be immediately paid to us;
- we may set-off any amounts that are payable to you in connection with your User Account your use of the Platform and our Services (including without limitation, any cash proceeds from the liquidation of your Investments) with any amounts payable by you in connection with your User Account (including without limitation, any fees or charges you must pay us); and
- we may at our discretion, if we have reason to believe doing so may cause any risk to us (including without limitation, financial risk), other users of the Platform, our Platform or our Services, delay making any payment to you until we believe such a risk has dissipated.
Warranties, liability and disclaimers
The Platform and Services are provided on an “as is” and “as available” basis, we make no warranty or representation (either express or implied) about the Platform or Services, including no warranty or representation that use of the Platform and Services will be:
- uninterrupted, secure, or error-free (including free from viruses, vulnerabilities or other malicious code);
- of any quality (including of a merchantable quality), fit for a particular purpose, or non-infringing; or
- compatible with your device.
You acknowledge that the Platform may not contain all information you require in order to evaluate whether or not you should make an Investment. We do not warrant the accuracy or correctness of information displayed on the Platform and give no warranties or guarantees or accept any liability (except that which cannot be excluded by law) in relation to the statements, representations and information displayed on the Platform.
The exclusions and limitations in these Terms apply whether any claim or liability arises in under contract, tort (including for our negligence), breach of a statutory duty or any other cause of action.
To the fullest extent permitted by law, we are not liable for any loss, costs, liability, expenses or damages (including direct or indirect, special, incidental, consequential or exemplary) arising from or in relation to:
- your use of the Platform or Services and your investment decisions;
- corruption or loss of data or other information;
- malware that may be transmitted to your computer by use of the Platform;
- negligent, malicious or wilful acts or omissions of third parties;
- telecommunications unavailability, interruption, delay, failure or fault;
- our decision to change, modify, suspend or discontinue the Platform or Services or your User Account;
- maintenance or repairs carried out by us or any third party service provider in respect of any systems used in connection with the provision of the Platform or Services;
- any events beyond our reasonable control;
- any decision to withdraw an Offer; or
- any decision to amend the terms of any Offer Terms permitted by these Terms.
To the fullest extent permitted by law, we are not liable for any loss of profit or any loss of opportunity.
Our maximum liability to you in connection with any and all claims arising from your use or inability to use the Platform or Services, under contract, tort (including for our negligence) or any other cause of action, will not exceed the total fees you have paid or are liable to pay to us in connection with your legitimate use of our Website, the Platform and our Services over the last 12 months.
Despite anything in these Terms, if these Terms are or become inconsistent with any applicable law then the applicable law will apply in precedence to those Terms. If you are a “consumer” for the purposes of the Fair Trading Act 1986 (NZ) or the Consumer Guarantees Act 1993 (NZ), nothing in these Terms excludes, restricts or modifies the application of any provision, the exercise of any right or remedy that you may have or the imposition of any liability that we may have under the Fair Trading Act 1986 (NZ) or the Consumer Guarantees Act 1993 (NZ). If you are a “consumer” for the purposes of the Consumer Guarantees Act 1993 (NZ), our services come with guarantees that cannot be excluded and you have a right of redress against us if our services do not comply with the guarantees under that Act.
To the maximum extent permitted by law, you agree to indemnify us, and hold us harmless, from and against all claims, damages, costs and expenses (including reasonable solicitor/client fees) that arise out of or relate to:
- your access and use of the Platform and/or our Services;
- your breach of these Terms;
- any information or content you may provide;
- any damage that you may cause to the Platform; and
- any tax you may be legally required to pay in relation to your Investment.
This indemnification includes without limitation, liability relating to intellectual property rights, defamation and breaches of privacy.
You unconditionally and irrevocably agree to be bound by any agreement reached by us including through electronic means pursuant to the Contract and Commercial Law Act 2017 (NZ).
You may not assign, transfer or sub-contract any of your rights or obligations under these Terms without our prior written consent.
We may assign, transfer and sub-contract any of our rights and obligations under these Terms in whole or in part to anyone.
We may provide you with notices, including notices relating to these Terms by way of electronic communications, including by email or other electronic communication through the Platform.
If any part of these Terms is, or becomes, legally invalid or unenforceable, then that part will be removed or amended as necessary and the remainder of these Terms will continue to apply.
If we do not exercise or enforce any rights available to us under these Terms, that does not constitute a waiver of those rights.
These Terms may not be construed adversely to a party, just because that party prepared, or procured the preparation of, these Terms.
Any reference to any document, including these Terms, includes a reference to that document as amended or replaced from time to time.
A reference to an enactment or any regulation is a reference to that enactment or regulation as amended or substituted, and a reference to an enactment includes regulations made under that enactment.
These Terms are governed by New Zealand law and you and we submit to the exclusive jurisdiction of the courts of New Zealand. However, you accept that if you are located outside of New Zealand then we may bring a claim in any relevant location.
By using the Platform and Services, you accept that it is your responsibility to determine whether and to what extent, any taxes apply to any Investments you may make.
If you have any questions in relation to these Terms or the Platform or Services, you can contact us at [email protected].
Last updated: 11th January, 2020