MASTER TERMS OF BUSINESS
THESE MASTER TERMS OF BUSINESS (the “Terms”) govern the provision of the Services that the Emerge Capital Group (“Emerge Capital”, “the Group”) will provide to you (“the Client”).
“Emerge Capital Group” includes the following entities in the following jurisdictions;
Emerge Capital Partners (Transactions) Pty Limited (ACN 133 260 698). Registered office address of 3 Hickson Road, The Rocks, NSW, 2000. Emerge Capital Partners (Transactions) Pty Limited 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 Limited (ACN 619 332 142). Registered office address of 3 Hickson Road, The Rocks, NSW, 2000. Emerge Capital Pty Limited is an Authorised Representative of the Australian Financial Services License held by Emerge Capital Partners (Transactions) Pty Limited.
Emerge Capital Partners (International) Holdings Pte. Limited (Registered Company Number 201616663W). Registered office address of 67 McNair Road, Singapore, 328547. Emerge Capital Partners (International) Holdings Pte. Limited is authorised and regulated by the Accounting and Corporate Regulatory Authority.
Emerge Capital Partners (Fund Management) Pte. Limited (Registered Company Number 201626238N). Registered office address of 67 McNair Road, Singapore, 328547. Emerge Capital Partners (Fund Management) Pte. Limited is authorised and regulated by the Accounting and Corporate Regulatory Authority, in accordance with the Monetary Authority of Singapore regulations, is both an exempt fund manager and an exempt financial advisor servicing qualified investors only.
Emerge Capital Partners (UK) Limited (Registered Company Number 10286703). Registered office address of 16-19 Eastcastle St, Fitzrovia, London, W1W 8DY, United Kingdom. Emerge Capital Partners (UK) Limited is authorised and regulated by the U.K. Companies House.
Section 1. Appointment
1.1. By executing an Engagement Letter and in consideration for payment of the Fees, the Client agrees to the appointment of Emerge Capital to provide the Services, subject to these Terms.
1.2. These Terms together with the Engagement Letter shall constitute the entire agreement between you and us (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.
Section 2. Services to be Provided
2.1. In these Terms, the term "Services" means the services to be provided by Emerge Capital as set out in the Engagement Letter.
2.2. 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".
2.3. 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.
2.4. 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.
2.5. The Client agrees and acknowledges that it will be the sole party responsible for:
2.5.1. implementing the Services and/or Deliverables;
2.5.2. verifying that the Services and Deliverables meet the Client's requirements;
2.5.3. verifying that the Services and/or Deliverables comply with:
188.8.131.52. the Client's needs;
184.108.40.206. applicable regulations or applicable laws.
2.6. The Client agrees and acknowledges that it shall be exclusively responsible for:
2.6.1. 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
2.6.2. the assessment and consequent approval of the Services and Deliverables.
Section 3. Client Responsibilities
3.1. 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").
3.2. 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.
3.3. 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.
3.4. In any event and notwithstanding Clause 3.3., 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.
3.5. In addition to any particular items specified in the Engagement Letter, the Client shall provide on-site Emerge Capitalpersonnel 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").
3.6. The Client shall be responsible for its operation and use of the Deliverables and for ensuring that the Deliverables meet the Client's requirements.
3.7. 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.
3.8. 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.
3.9. The Client shall obtain all consents necessary from third parties required for Emerge Capital to perform its obligations under this Agreement.
Section 4. Payment for Services
4.1. In consideration for payment of the fees as outlined in the Engagement Letter (“the Fees”), Emerge Capital shall provide to the Client the Services as set out in the Engagement Letter in accordance with good industry practice and reasonable skill and care. 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.
4.2. Any quotation of Fees is valid for thirty (30) days from the date of quote. After that date we reserve 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. Unless otherwise stated, all references to dollars or “$” refer to Australian dollars. Unless otherwise stated, all Fees quoted are exclusive of local sales taxes. If required under local law, sales taxes will be added to the Fees in accordance with the appropriate local legislation.
4.3. Unless otherwise agreed in writing, upon acceptance by the Client of a quotation of the provision of Services, 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.
4.4. At the end of each agreed payment period, 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.
4.5. 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 the Terms.
4.6. All invoices are due for settlement in accordance with the terms of invoice unless otherwise specified and agreed in writing in advance. Invoices paid after expiry of the agreed period may, subject to applicable laws, be charged interest per annum equal to our local bank’s base rate plus 5 percentage points for each day outstanding from the due date until the date of actual payment. Furthermore, in such circumstances we reserve the right to withhold the provision of the Services or any Deliverables until your total indebtedness to us has been discharged.
Section 5. Term and Termination
5.1. 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.
5.2. 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.
5.3. 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.
5.4. 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.
5.5. Subject to clause 5.7, 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.
5.6. 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.
5.7. 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.
Section 6. Warranties
6.1. 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.
6.2. Both Parties warrant that they will comply with all relevant regulatory and statutory obligations.
6.3. The Client shall ensure that all documentation and information provided to Emerge Capital is accurate and complete.
6.4. 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 6.3.
Section 7. Indemnity
7.1. 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.
7.2. 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.
Section 8. Limitations
8.1. 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.
8.2. 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.
8.3. 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.
8.4. 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.
Section 9. Non-Solicitation
9.1. 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, endeavor to solicit or entice away any of Emerge Capital’s employees or endeavor to solicit or entice away any contractor or agent for whom Emerge Capital has engaged to assist in the performance of the Services.
Section 10. Employees
10.1. 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.
10.2. The Client agrees that Emerge Capital is permitted to use sub-contractors to perform the Services where appropriate.
Section 11. Insurance
11.1. The Client will maintain a current insurance policy to cover its liabilities under these Terms where insurable.
Section 12. Confidentiality and Intellectual Property
12.1. 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.
12.2. 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.
12.3. 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.
12.4. 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.
12.5. 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.
Section 13. Independent Contractor
13.1. 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.
Section 14. Rights in Deliverables
14.1. 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.
14.2. 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.
14.3. 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 .
Section 15. Force Majeure
15.1. 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 endeavors to mitigate the effects of such factors outside its control.
15.2. Other factors unforeseen at the time of proposal could affect the timing of the delivery of Services. Under these circumstances, we will endeavor 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.
Section 16. Dispute Determination
16.1. 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.
16.2. 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.
Section 17. Miscellaneous
17.1. 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.
17.2. Quotes provided and any work undertaken by Emerge Capital is subject to these Terms notwithstanding the Client proposing any other terms or conditions or the purported application of any other Terms.
17.3. 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.
Section 18. Governing Law and Jurisdiction
18.1. Unless otherwise agreed in writing in the Engagement Letter, these Terms shall be governed by and construed in accordance with the laws of Australia.
18.2. 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.