Terms and Conditions
ShareMart NZ Limited Terms & Conditions OF Trade
All orders to buy and sell shares and agreements for sale and purchase of shares made by any person through ShareMart NZ Limited (“ShareMart”) shall be subject to these terms and conditions of trade despite any indication to the contrary by any person acting or purporting to act on ShareMart’s behalf.
1. The ShareMart Market
a) ShareMart will operate an electronic market (“Market”) for the sale and purchase of shares in the named unlisted companies.
b) Any person who wishes to buy or sell shares traded on the Market will, by placing an order with ShareMart in accordance with clause 3, empower ShareMart to act as his/her agent for that purpose.
2. Hours of Operation
The market will be open for the trading of shares between the hours of 9.00am and 3.00pm, Monday to Friday, with the exception of national and local public holidays. ShareMart may at any time change the hours of operation or suspend or stop the operation of the market.
3. Placing Orders to Buy or Sell Shares
a) Orders to buy or sell shares (“Order” or “Orders”) shall be received by ShareMart during the hours of operation set out in clause 2 by telephone only ((09) 4888 796 or 0800 505-006). These telephone calls may be recorded by ShareMart.
b) ShareMart may at their discretion fulfil an Order or Orders in part. For the purposes of these terms and conditions the term Order or Orders shall include an Order to buy or sell shares in part. Each fulfilment of an Order in part shall constitute a separate contract of sale and purchase.
c) By giving an Order to ShareMart, which is accepted by ShareMart, the intending vendor or intending purchaser shall appoint ShareMart their agent to sell or buy shares in accordance with the Order/s given.
d) ShareMart may refuse to accept any Order and may cancel the contract of agency at any time by giving written notice to the
intending vendor or intending purchaser.
e) Any person from whom ShareMart has accepted an Order may, by written notice to ShareMart, revoke that Order at any time before a contract or sale and purchase of shares is made in respect of the Order in accordance with clause 4.
f) Any Order which has not become subject to a contract of sale and purchase of shares in accordance with clause 4 within 30 days after its acceptance by ShareMart, shall be deemed to have been revoked by the person who placed the order. ShareMart will notify, by telephone or in writing, any intending vendor and purchaser whose Order has been deemed to have been revoked in accordance with this clause.
4. Contracts to Buy and Sell Shares
a) A contract of sale and purchase of shares shall be formed between an intending vendor and an intending purchaser when ShareMart matches an Order for the sale of shares with an Order for the purchase of shares.
b) ShareMart may buy and sell the balance of a parcel of shares for sale or purchase on its own account to facilitate the operation of the market.
c) Where ShareMart exercises its power to buy or sell shares under (b) of this clause 4, it shall buy or sell such share/s only at the same price per share as the last transaction completed on the Market concerning shares in the capital of the same company.
5. Procedure following Sale and Purchase
a) Following the information of a contract of sale and purchase of shares in accordance with clause 4(a) or (b) (“Sale Contract”):
i. ShareMart will send a Buy/Sell Transaction Record Form (“Transaction Record Form”) to each of the vendor (“Vendor”) and the purchaser (“Purchaser”) of the shares subject to the Sale Contract. The Transaction Record Form shall in the case of the vendor include the Memorandum of Transfer;
ii. The Transaction Record Form shall contain (inter alia) details of the number of shares sold, the name of the company in which the shares are held, the price at which the Sale Contract has been completed, the fee payable to ShareMart for the completion of the Sale Contract and the total amount payable by the Purchaser;
iii. The Purchaser shall return to ShareMart within 5 business days of its despatch by ShareMart the completed Transaction Record Form together with a New Zealand currency cheque for the amount payable comprising the purchase price of the shares subject to the Sale Contract and ShareMart’s fee for the transaction;
iv. The Vendor shall return to ShareMart within 5 business days of its despatch by ShareMart the completed Transaction Record Form together with the share certificate/s for the shares subject to the Sale Contract provided that the Vendor shall not be obliged to forward a certificate where such a share certificate has already been forwarded to ShareMart in relation to a previous Sale Contract;
v. ShareMart will bank the cheque received from the Purchaser in respect of the Sale Contract.
i. All of the steps set out in clause 5(a) being completed within the time set out; and
ii. ShareMart receiving confirmation from the receiving Bank that the Purchaser’s cheque has been cleared
iii. Register a transfer of the shares the subject of the Sale Contract; and
iv. Mail to the address of the Purchaser a share certificate for the shares the subject of the Sale Contract; and
v. Mail to the address of the Vendor a cheque for an amount equal to the purchase price of the shares the subject of the Sale Contract less the transaction fee due to ShareMart.
c) ShareMart will not register a transfer of the shares the subject of the Sale Contract until:
i. All of the steps set out in clause 5(a) above have been completed; and
ii. Payment on the purchaser’s cheque for the shares has been received by ShareMart.
a) In the event that:
i. The Purchaser fails to complete the steps set out in clause 5(a) (iii) within the time provided after despatch of the Transaction Record Form; and/or
ii. The Purchaser’s cheque for the shares is dishonoured by the Purchaser’s bank; and/or
iii. The Vendor fails to complete the steps set out in 5(a) within the time provided after despatch of the Transaction Record Form.
Then, notwithstanding any rights or remedies the Vendor and Purchaser may have in respect of or against each other, the contracts between ShareMart on the one hand and the Vendor or Purchaser on the other hand may at the discretion of ShareMart be deemed to be cancelled and ShareMart shall not be obliged to do any thing or perform any act in relation to the Sale Contract provided that ShareMart will refund the amount of any purchase price of the shares to a Purchaser who has complied with the steps set out in clause 5(a)(iii).
b) Where a Vendor or Purchaser has complied with their obligations under clause 5, but the Sale Contract has not been fully performed due to the default of the other party to the Sale Contract, ShareMart will contact that Vendor or Purchaser with a view to arranging a new order. If the Vendor or Purchaser places a new order, ShareMart will use its best endeavours to satisfy that Order.
a) The Vendor and the Purchaser to a Sale Contract will each be liable to pay a fee to ShareMart upon the formation of that contract notwithstanding any subsequent default by either the Vendor or Purchaser in respect of the Sale Contract.
b) The amount of the fee payable by each Vendor and Purchaser in respect of each Sale Contract shall be $15.00 plus 1.5% of the total consideration payable under the Sale Contract. The Purchaser shall make payment of the fee when returning the Transaction Record Form relating to the Sale Contract to ShareMart.
c) ShareMart shall be entitled to its fee in accordance with this clause notwithstanding that any additional fee is charged by any sharebroker engaged by either the Vendor or Purchaser in relation to the transaction.
8. No Liability
a) Subject to 8(c), no warranty or condition shall be implied against ShareMart by any statute, at common law or otherwise, and no variation of these terms and conditions shall be binding on ShareMart unless it is in writing and signed for and on behalf of ShareMart.
b) Subject to 8(c) neither ShareMart, nor the officers, employees, agents or advisers of ShareMart nor the Company whose shares are being traded (hereafter referred to as the “Affected Company”) make any representation, warranty, or guarantee in respect of the shares traded on the Market and in particular, but without limiting the foregoing:
i. Neither ShareMart nor the Affected Company give any warranty that Orders placed with ShareMart will be satisfied and neither ShareMart nor the Affected Company shall be liable in any way where any Order is not satisfied;
ii. ShareMart gives no warranty that a Sale Contract will be performed or adhered to by the Vendor and Purchaser and neither ShareMart nor the Affected Company shall be liable in any way in respect of the partial performance or non-performance of a Sale Contract;
iii. ShareMart gives no warranty or guarantee as to the title to or ownership of the shares traded on the Market and ShareMart shall not be liable in any way for any loss caused to any person in respect of title to or ownership of such shares.
c) Except as provided in these terms and conditions, neither ShareMart nor the Affected Company shall have any further liability or responsibility to any person for any direct, or indirect or consequential injury, loss or damage whatsoever and howsoever arising.
d) Nothing in this clause affects:
i. Any rights or remedies which a Vendor or Purchaser to a Sale Contract may have against the other;
ii. Any rights or remedies ShareMart may have, against any person who has placed an Order with ShareMart, or against a Purchaser or Vendor under a Sale Contract;
iii. Any rights or remedies any person may have under the Consumer Guarantees Act 1993 relating to the trading of shares on the Market.
9. Records of ShareMart
The records of ShareMart held concerning the trading of shares on the Market shall form the indisputable record of all details of such trading.
10. Variation of Terms and Conditions
ShareMart may at any time alter these terms and conditions by notice given verbally or in writing to any party dealing with ShareMart.
11. Articles of Association
All Sale Contracts shall be subject to the articles of Association or Constitution of the company the shares of which are being traded.
12. Time of the Essence
For the purpose of these terms and conditions time shall be of the essence in all respects.
13. Governing Law
These terms and conditions shall be governed by the laws of New Zealand.
If any of these terms and conditions is held by a Court to be ineffective by virtue of non-registration, illegality or otherwise, then such condition, or part of it, shall be severed from all other of these conditions without affecting the validity of enforceability of all other of these conditions or part of them.
If you are not satisfied with the service you have received from us you should contact us. We have an internal complaints process and undertake to investigate your concerns promptly and fairly. You may contact us to make a complaint by telephone, by email or in writing. We are a member of an independent dispute resolution scheme operated by Financial Services Complaints Limted ("FSCL") and approved by the Ministry of Consumer Affairs. We have 40 days to respond to your complaint. If you are not satisfied by our response, you may refer the matter to FSCL by emailing firstname.lastname@example.org or calling FSCL on 0800 347257. Full details of how to access the FSCL scheme can be obtained on their website www.fscl.org.nz. There is no cost to you to use the services of FSCL
16. Contracts (Privity) Act 1982
For the purposes of the Contracts (Privity) Act 1982, it is declared that the immunities and privileges conferred by clause 8 of these terms and conditions on the Affected Company are intended to be legally enforceable.
26 March 2007