MASTER TERMS OF BUSINESS

THESE MASTER TERMS OF BUSINESS (the “Terms”) are between Emerge Capital Pty Ltd (ABN 73 619 332 142), its successors and assignees (referred to as (“Emerge Capital”, “the Group”) and you, the person, organisation or entity described in the Engagement Letter (referred to as “the Client”. These Terms apply to all Services provided by Emerge Capital to the Client.

Emerge Capital Partners (Transactions) Pty Limited (ACN 133 260 698). Registered office address of Level 9, Suite 1, 20 Hunter Street, Sydney NSW 2000, Australia. Emerge Capital Partners (Transactions) Pty Ltd is authorised and regulated by the Australian Securities and Investments Commission and holds an Australian Financial Services License (License Number 431 622).

Emerge Capital Pty Ltd (ACN 619 332 142). Registered office address of Level 9, Suite 1, 20 Hunter Street, Sydney NSW 2000, Australia. Emerge Capital Pty Ltd is an Authorised Representative of the Australian Financial Services License held by Emerge Capital Partners (Transactions) Pty Ltd. 

1.  APPOINTMENT

1.1. The Client has requested the Services set out in the Engagement Letter. The Client accepts these Terms by:

1.1.1. signing and returning the Engagement Letter;

1.1.2. confirming in writing, including by email, that the Client accepts the Engagement Letter;

1.1.3. accepting the Engagement Letter online;

1.1.4. instructing us to proceed with the Services; or

1.1.5. making part or full payment for the Services.

1.2. These Terms together with the Engagement Letter shall constitute the entire agreement between the Client and Emerge Capital (the “Agreement”).  No amendment shall be deemed to have been made unless made in writing by the party requesting the amendment and subsequently confirmed in writing by the other party and in which these terms are amended by express reference to them.

1.3. The Client agrees that these Terms form the agreement under which Emerge Capital will supply Services to the Client. Please read these Terms carefully. The Client should contact Emerge Capital if they have any questions. Purchasing Services from Emerge Capital indicates that the Client has had sufficient opportunity to read these Terms and contact Emerge Capital if needed, and that the Client has read, accepted and will comply with these Terms.

2. SERVICES TO BE PROVIDED

2.1. Emerge Capital agree to perform the Services in accordance with good industry practice and reasonable skill and care.

2.2. Emerge Capital may provide the Services at the sites set out in the Engagement Letter.  It is understood and agreed that the Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, the Client.

2.3. Emerge Capital reserves the right to refuse any request that Emerge Capital deems inappropriate, unreasonable or illegal.

2.4. Emerge Capital may provide the Services to the Client using Emerge Capital’s employees, contractors and third party providers, and they are included in these Terms.

2.5. Third parties who are not Emerge Capital’s employees or Emerge Capital’s direct contractors will be the Client’s responsibility.  Emerge Capital are not responsible for the products or services provided by those third parties.

2.6. The Client agrees and acknowledges that it will be the sole party responsible for:

2.6.1. implementing the Services and/or Deliverables;

2.6.2. verifying that the Services and Deliverables meet the Client’s requirements; and

2.6.3. verifying that the Services and/or Deliverables comply with:

2.6.3.1. the Client’s needs; and

2.6.3.2. applicable regulations or applicable laws.

2.7. The Client agrees and acknowledges that it shall be exclusively responsible for:

2.7.1. any assessments of a legal, financial or fiscal nature which are expressly reserved to those individuals admitted or assigned to such professional registers, and the consequent decisions; and

2.7.2. the assessment and consequent approval of the Services and Deliverables.

3. ADDITIONAL SERVICES/DELIVERABLES

3.1. The Parties agree and acknowledge that any changes to the scope of the Services or any Deliverables shall be agreed in writing and executed by authorised representatives of both Parties.  The Parties agree that any change so agreed and executed in writing shall be deemed to be a change (“Change”).

3.2. If the Client requests a Change to the Services, Emerge Capital has discretion as to whether Emerge Capital makes the Change. If Emerge Capital is unable to accommodate the Change, Emerge Capital may request that they be paid for Services performed to date and terminate these Terms.

3.3. The Client agrees that Emerge Capital will not be obliged to commence the provision of any work pursuant to a Change until the Parties agree in writing upon the impact of the proposed Change on the Fees and method of execution. 

3.4. Emerge Capital shall be entitled to charge the Client any Changes.  The Client agrees that such charges are in addition to any other Fees and other amounts agreed to be paid to Emerge Capital by the Client under this Agreement.

4. CLIENT RESPONSIBILITIES

4.1. In connection with Emerge Capital’s provision of the Services and the Deliverables, the Client shall perform those tasks and fulfill those obligations required of it as specified in these Terms and/or the Engagement Letter (Client Responsibilities). 

4.2. The Client agrees and acknowledges that Emerge Capital’s performance of its obligations under these Terms and/or the Engagement Letter is dependent on the Client’s timely and effective performance of the Client Responsibilities and timely decisions and approvals by the Client.

4.3. Except to the extent the Engagement Letter contains specific acceptance provisions, all Services and/or Deliverables shall be deemed accepted if, within ten (10) days after provision or delivery (as the case may be), the Client has not provided to Emerge Capital written notice identifying specifically any basis for not approving the Services and/or Deliverables.

4.4. In any event and notwithstanding clause 4.3, all Services and/or Deliverables will be considered accepted at the time the Client starts using or benefiting from any part of the relevant Service or Deliverable.

4.5. In addition to any particular items specified in the Engagement Letter, if any part of the Services are to be provided on-site, the Client shall provide on-site Emerge Capital personnel with suitable office space, desks, storage, furniture, and other normal office equipment, adequate computer resources (including necessary third party rights to use software), telephone and facsimile service, postage, copying, secretarial support, word processing, and general office supplies which may be necessary in connection with Emerge Capital’s performance of the Services (“Office Support”). 

4.6. The Client shall be responsible for its operation and use of the Deliverables and for ensuring that the Deliverables meet the Client’s requirements.

4.7. The Client shall be responsible for its compliance with all applicable laws and regulations and for ensuring the compliance of the Services and Deliverables with all applicable laws and regulations relating to the Client and its business.

4.8. The Client shall provide Emerge Capital with access to all information, know-how and resources it has and which may be necessary for the provision of the Services or Deliverables by Emerge Capital in a timely manner.

4.9. The Client shall obtain all consents, licences and permissions from other parties necessary for the Services to be provided, at the Client’s cost, and for providing Emerge Capital with the necessary consents, licences and permissions.

4.10. There are no legal restrictions preventing the Client from agreeing to these Terms.

4.11. The information the Client provides to Emerge Capital is true, correct and complete.

4.12. The Client will not infringe any third party rights in working with Emerge Capital and receiving the Services.

4.13. The Client will not employ, canvass, solicit, entice, induce or attempt to employ Emerge Capital’s employees or contractors.

5. PAYMENT FOR SERVICES

5.1. In consideration for payment of the Fees as outlined in the Engagement Letter, Emerge Capital shall provide to the Client the Services as set out in the Engagement Letter.

5.2. Any quotation of Fees is valid for thirty (30) days from the date of quote/Engagement Letter.  After that date Emerge Capital reserves the right to revise the quotation.  The Client shall pay Emerge Capital the Fee and any reasonable reimbursable expenses duly incurred in the provision of the Services, at the times and in the manner set out in these Terms and the Engagement Letter.  Unless otherwise stated, all references to dollars or “$” refer to Australian dollars.  Unless otherwise stated, all Fees quoted are exclusive of Australian GST or any foreign equivalent. (where applicable).

5.3. Unless otherwise agreed in writing, upon acceptance by the Client of this Agreement for the provision of Services per clause 1.1, Emerge Capital may invoice the client 10% of the estimated Fees as an obligatory deposit for the provision of Services.  The Client shall pay this invoice within fourteen (14) days of receipt of invoice. Unless otherwise agreed in writing, Emerge Capital will not commence performing the Services until the Client has paid the deposit or the first instalment of the Fee.

5.4. At the end of each agreed payment period as set out in the Engagement Letter, Emerge Capital shall submit to the Client an account for the Services performed, including any reimbursable expenses incurred, during the period in accordance with agreed budgets. The Client shall pay any such invoice within fourteen (14) days of receipt, unless otherwise stated in the Engagement Letter.

5.5. The Client agrees to pay Emerge Capital’s invoices by the payment date set out on the invoice. If the Client does not pay by the payment date, Emerge Capital may cease to provide the Services or any Deliverables to the Client until Emerge Capital receive payment for the total indebtedness.

5.6. Emerge Capital may charge interest at a rate equal to the Reserve Bank of Australia’s cash rate from time to time plus 8% per annum, calculated daily and compounding monthly, on any amounts unpaid after the payment date.

5.7. If invoices are unpaid after the payment date, Emerge Capital have the right to engage debt collection services for the collection of unpaid and undisputed debts, and the right to commence legal proceedings for any outstanding amounts owed to Emerge Capital at the Client’s expense.

5.8. Emerge Capital reserve the right to report bad debts to independent credit data agencies.

5.9 If the Client disputes the whole or any portion of an invoice, the Client shall pay the portion not in dispute and shall notify Emerge Capital in writing of the reasons for disputing the account. If the parties are unable to reach agreement within fourteen (14) days of the Client's notice, the dispute shall be determined in accordance with these Terms.

6. COMMUNICATION

6.1 Each party will appoint and maintain at all times a relationship manager who will be responsible for the day to day management of this Agreement.

6.2 The details of each party’s relationship manager will be set out in the Engagement Letter and each party will notify the other party if that party’s relationship manager, or the contact details for that party’s relationship manager, change at any time.

6.3. The parties’ respective relationship managers will communicate from time to time (whether via email, telephone or video conference) to ensure the appropriate and efficient management of these Terms.

7. TERM AND TERMINATION

7.1. Unless otherwise agreed in the Engagement Letter, either party may terminate this Agreement for convenience at any time on thirty (30) days’ prior written notice to the other.

7.2. The Client may, by notice in writing served on Emerge Capital, terminate the Services under the Terms if Emerge Capital is in material breach of the Terms and the breach has not been remedied within twenty-eight (28) days (or longer period as the Client may allow) of the service by the Client on Emerge Capital of a notice requiring the breach to be remedied. Emerge Capital may by notice in writing served on the Client, terminate the Terms if the Client is in breach of any part of the Terms and the breach has not been remedied within twenty-eight (28) days (or such longer period as Emerge Capital may allow) of the service by Emerge Capital on the Client of a notice requiring the breach to be remedied.

7.3. To the extent the Client terminates this Agreement for convenience, it will pay Emerge Capital for all Services rendered, effort expended, expenses incurred, contingent fees (if any), or commitments made by Emerge Capital to the effective date of termination. To the extent the Client terminates this Agreement for breach; it will pay Emerge Capital for all conforming Services rendered and reasonable expenses incurred by Emerge Capital to the effective date of the termination.

7.4. Further, Emerge Capital reserves the right to terminate this Agreement at any time, upon providing written notice to the Client, if conflicts of interest arise or become known to Emerge Capital that, in its sole judgment, would impair its ability to perform the Services objectively.

7.5. Subject to clause 8.7, these Terms shall remain in force from their date of acceptance until delivery of the final Deliverables by Emerge Capital and receipt of final cleared payment for the Services from the Client.

7.6. Termination shall be without prejudice to any claim that either party may have against the other in respect of any breach to or of the Terms, which occurred prior to the date of termination.

7.7 . Section 7, 8, 9, 13, 16, 17 and 18 shall survive termination for any reason and remain enforceable for a period of two (2) years following such termination.

8. INSOLVENCY

8.1. If either Party:

8.1.1. being a person, becomes bankrupt or makes an assignment of its estate for the benefit of its creditors;

8.1.2. being a company, becomes insolvent, has a liquidator, provisional liquidator, administrator or receiver appointed or takes or has taken or instituted against it any action which may result in the liquidation of the company or if it enters into any Subcontract with its creditors, the other Party may, without issuing a notice to show cause, terminate the Agreement by written notice.

9. WARRANTIES

9.1. Emerge Capital warrants that in carrying out its obligations under these Terms, it will do so in accordance with good industry practice and reasonable skill and care, and provide the Services in a timely manner.

9.2. Both Parties warrant that they will comply with all relevant regulatory and statutory obligations.

9.3. The Client shall ensure that all documentation and information provided to Emerge Capital is accurate and complete.

9.4. Except for the Client’s statutory rights, Emerge Capital exclude all express and implied warranties representations and guarantees and all material and work is provided to the Client without warranties, representations and guarantees of any kind.

9.5. The Client agrees and acknowledges that Emerge Capital shall not be liable for any damage, loss, cost or expense (including legal costs and expenses) incurred by the Client (including any of its personnel, agents, sub-contractors or representatives) due to the Client's breach of clause 10.4.

10. INDEMNITY

10.1. The Client shall indemnify and hold Emerge Capital harmless against all costs and liabilities, including third party claims, incurred by Emerge Capital while providing the Services, as a result of the Client providing any information (including, without limitation, client lists, customer telephone numbers, and other personal information) for Emerge Capital’s use; Emerge Capital’s following of any of the Client’s instructions; Emerge Capital’s use or demonstration of any goods or services; or the Client’s use of the deliverables or any tools or software provided in connection with the Services other than in accordance with these terms, except to the extent that such costs and liabilities are caused by the fraud, negligence, or dishonesty by Emerge Capital.

10.2. The Client shall provide Emerge Capital with such information and/or take such actions as it may reasonably require in relation to any circumstances which may give rise to any such costs and liabilities including, without limitation, disclosing the Client’s identity to third parties in relation to the project, providing further development information in relation to the goods and services which are the subject of the project (or similar goods and services) and taking on the conduct of any litigation or threatened litigation to the extent, in each case, Emerge Capital requires.

11. LIMITATIONS

11.1. Where available under law, Emerge Capital expressly acknowledges the recession of any fiduciary relationship obligations owed by it to the Client in relation to Emerge Capital’s services, including but not limited to its acting as a corporate advisor, investment advisor or responsible entity.

11.2. To the extent capable of exclusion under applicable law, neither party shall be liable to the other, howsoever arising, for any indirect, incidental, special, consequential, punitive, exemplary or other similar damages of the other party or for the other party’s loss of profits, loss of revenues, loss of business opportunity, reputation or goodwill, whether foreseeable or contemplatable, in connection with any agreement to which these terms relate, whether or not the party was or should have been aware or advised of the possibility of such damage and notwithstanding any failure of essential purpose or of any remedy set out here-in.  Neither party excludes or limits liability to the other party for death, personal injury or fraud.

11.3. Emerge Capital’s liability to the Client (other than pursuant to the above paragraph) shall be limited to one (1) times the monetary value of the total consideration payable to us for the provision of Services pursuant to these Terms.

11.4. Except as expressly stated herein and subject to applicable law, Emerge Capital makes no warranty regarding the Services and disclaims any implied warranty, including any warranties of quality or fitness for a particular purpose even if it has been made aware of such purpose.  Emerge Capital also makes no warranty that the Services will be uninterrupted or error free. Emerge Capital does not authorize anyone, including, but not limited to, its agents or representatives, to make a warranty of any kind on its behalf and any such statements should not be relied on.

12. NON-SOLICITATION

For a period of six (6) months after the termination or expiry of these Terms, or the completion of the provision of Services (whichever the sooner), the Client agrees that it will not, whether by itself or with others, without the prior written approval of Emerge Capital, endeavour to solicit or entice away any of Emerge Capital’s employees or endeavour to solicit or entice away any contractor or agent for whom Emerge Capital has engaged to assist in the performance of the Services.

13. EMPLOYEES

13.1. Emerge Capital reserves the right to determine which of its personnel shall be assigned to perform the Services, and to replace or reassign such personnel during the term of this Agreement; provided, however, that it will, subject to scheduling and staffing considerations, attempt to satisfy the Client's request for specific individuals. 

13.2. The Client agrees that Emerge Capital is permitted to use sub-contractors to perform the Services where appropriate.

14. INSURANCE

The Client will maintain a current insurance policy to cover its liabilities under these Terms where insurable.

15. CONFIDENTIALITY AND INTELLECTUAL PROPERTY

15.1. Neither the Client nor Emerge Capital shall disclose any details or information in any form provided to either Party on a confidential basis, during or after the Term, without the prior written approval of the providing party. The above provision shall not apply to information that is generally available to the public or was in either Party’s control or possession prior to the date of agreement to these Terms.

15.2. The Intellectual Property produced by Emerge Capital in performing the Services shall be and remain the absolute property of Emerge Capital.  Emerge Capital shall be at liberty to use, apply, exploit, register, protect or otherwise turn to account the intellectual property in such manner as it deems fit. The Client shall not suffer or permit any of its employees to copy or remove the intellectual property or to divulge to any party any information with respect thereto or with respect to Emerge Capital’s work, business, clients, facilities or operations without Emerge Capital’s prior consent in writing.

15.3. The Client shall be granted a license by Emerge Capital to use its intellectual property for the Client’s intended purpose as indicated in the Engagement Letter. The Client shall not suffer or permit any of its employees to copy, remove or modify the Deliverables or the Intellectual Property incorporated therein for any other use. The Client shall not suffer or permit any of its employees to divulge to any party any information with respect thereto or with respect to Emerge Capital’s business, clients, facilities or operations without the prior consent of Emerge Capital in writing.

15.4. In no event shall Emerge Capital be precluded from independently developing for itself, or for others, materials which are competitive with, or similar to, the Deliverables.  In addition, Emerge Capital shall be free to use its general knowledge, skills and experience, and any ideas, concepts, know-how, formats, templates, methodologies and techniques that are acquired or used in the course of providing the Services.

15.5. Emerge Capital shall be entitled to terminate on written notice (such termination to be effective on the Client's receipt of that notice) any license granted to the Client under this Agreement.

16. INDEPENDENT CONTRACTOR

In connection with this Agreement, each party is an independent contractor and as such will not have any authority to bind or commit the other.  Nothing herein shall be deemed or construed to create a joint venture, partnership, fiduciary or agency relationship between the Parties for any purpose.  In performing the Services, Emerge Capital staff do so as employees of Emerge Capital (or of an Emerge Capital Affiliate), not as partners of any partnerships.

17. REFERRALS

Emerge Capital may provide the Client with contact details of third party specialists. This is not a recommendation by Emerge Capital for the Client to seek their advice or to use their services. Emerge Capital make no representation or warranty about the third party advice or provision of services, and Emerge Capital disclaim all responsibility and liability for the third party advice or provision of services, or their failure to advise or provide services.

18. RIGHTS IN DELIVERABLES

18.1. As used in this Agreement, the term "Deliverables" shall mean those items, materials and other things delivered to the Client in an intangible or tangible form.

18.2. Upon the payment of the relevant Fees due under this Agreement, the Client shall be granted a perpetual, non-transferable, non-sublicensable, non-exclusive, royalty free license to use, copy, modify and prepare derivative works from the relevant Deliverables solely for the Client's internal business purposes. 

18.3. All rights, title and interest in any intellectual property (including, without limitation, copyrights and related rights, trademarks, trade names and domain names, patents, design rights, know-how, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world either now or hereafter ("Intellectual Property Rights") in the Deliverables vest and remain vested in Emerge Capital.

19. FORCE MAJEURE

19.1. Neither party shall be held liable to the other for delays or other failure to perform its obligations occasioned by factors outside its control (including, by way of example only, postal or other communication delays, industrial disputes, fire or accident, governmental act, riots, armed conflict, war, terrorism (including threatened acts of terrorism), adverse weather conditions (e.g. hurricanes or typhoons) or natural catastrophe) provided such party uses its best endeavours to mitigate the effects of such factors outside its control.

19.2. Other factors unforeseen at the time of proposal could affect the timing of the delivery of Services.  Under these circumstances, we will endeavour to meet the proposed time schedule, but shall not be held liable for such delays.  Time shall not be of the essence in providing the Services.

20. DELAY

Where the provision of Services depends on the Client’s information or response, Emerge Capital have no liability for a failure to perform the Services, where it is affected by the Client’s delay in response or supply of incomplete or incorrect information.

21. DISPUTE DETERMINATION

21.1. If the parties are in dispute with each other regarding any matter arising out of these Terms, then either party may, by notice in writing served on the other, require that such dispute be resolved by the determination of an independent third party acceptable to all parties.  If the parties cannot agree on an independent third party within fourteen (14) days of the date of service then the President of Law Society of New South Wales, Australia shall choose such an independent third party.

21.2. The third party who has been agreed upon or appointed shall act as an expert and not as an arbitrator and his decision shall be final and binding upon the parties.

22. MISCELLANEOUS

22.1. If a court, arbitrator, tribunal or other competent authority determines that a word, phrase, sentence, paragraph or clause of these Terms is unenforceable, illegal or void, then it will be severed and the other provisions of these Terms will remain operative.

22.2. In the case of any inconsistency or conflict between the Engagement Letter and these Terms, the Engagement Letter shall take precedence.   In the case of any inconsistency or conflict with such other Terms, these Terms shall take precedence over such other terms and conditions except to the extent Emerge Capital and the Client enter into an agreement in writing signed by both parties containing such inconsistent or conflicting terms.

22.3. Notices: Any notice required or permitted to be given by either Party to the other under these Terms will be in writing addressed to the relevant address in the Engagement Letter. Any notice may be sent by standard post or email, and notices will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

22.4. Assignment: These Terms are personal to the Parties. A Party must not assign or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent not to be unreasonably withheld).

22.5. Privacy: Emerge Capital agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.

23. GOVERNING LAW AND JURISDICTION

23.1. Unless otherwise agreed in writing in the Engagement Letter, these Terms shall be governed by and construed in accordance with the laws of Australia. 

23.2. Unless otherwise agreed in writing in the Engagement Letter, each party agrees to submit to the jurisdiction of the Courts of New South Wales, Australia as regards any claim or matter arising in relation to the Terms or the Engagement Letter.

24. DEFINITIONS

Claim/Claims includes a claim, notice, demand, right, entitlement, action, proceeding, litigation, prosecution, arbitration, investigation, judgment, award, damage, loss, cost, expense or liability however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute, whether indirect, incidental, special, consequential and/or incidental, and whether involving a third party or a Party to the Terms or otherwise.

Deliverables as set out in the Engagement Letter.

Engagement Letter means any letter of engagement or quote provided to the Client by Emerge Capital.

Fees as set out in the Engagement Letter.

GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time or any replacement or other relevant legislation and regulations.

Services means the services set out in the Engagement Letter.

Terms means these master terms of use.