Wholesale Terms & Conditions

These supply terms and conditions, together with the Details, Schedules and Annexures (Agreement), form the agreement between Emergence and the Customer in relation to the supply of the Products (or any other products) by Emergence to the Customer. Unless otherwise agreed by Emergence, any Order placed by the Customer incorporates the terms of this Agreement.

DEFINITIONS

In this Agreement, capitalised terms have the meaning given to them in the Details, and unless the context indicates otherwise:

Affiliate means, of a person any other person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person. The term “control” (including the terms “controlled by” and “under common control with”) has the meaning set out in section 50AA of the Corporations Act;
Business Day means a day that is not a Saturday, Sunday or public holiday in Victoria;
Disputed Item has the meaning given in clause 7.2(b)(i);
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Force Majeure Event means an act of God, government order or restriction, or any other event which could not be predicted at the time of the Order and cannot be controlled, avoided or overcome by the parties;
Invoice means a valid tax invoice issued by Emergence relating to an Order;
Order means a request by the Customer for the supply of Products from Emergence to the Customer;
PPSA means Personal Properties Securities Act 2009 (Cth);
Price List means the price list specified by Emergence from time to time, which as at the date of this Agreement is the Price List specified in the Details;
Products means the products provided by Emergence as specified in the Details page or otherwise notified in writing from time to time by Emergence to the Customer;
Quote means the indicative cost provided by Emergence to fulfil the Order;
Representatives means the officers, employees, agents, contractors and sub-contractors of a party; and
Term means the period specified in the Details.

Minimum Order means the minimum amount set out in this agreement the Customer must maintain to Emergence.
CONSTRUCTION AND INTERPRETATION

In this Agreement:

any terms and conditions (including the Special Conditions) set out in the Details take precedence over these terms and conditions in the event of inconsistency;
headings are for guidance only and do not affect the interpretation of the clauses;
reference to a clause, Schedule or Annexure is reference to a clause, Schedule or Annexure of this Agreement;
words importing the singular include the plural and vice versa;
words importing one gender include all other genders;
reference to a statute, ordinance, code or other law includes regulations, directions and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them from time to time;
unless otherwise indicated, reference to $, dollar or USD is to United States currency;
any agreement, obligation, representation, right or warranty on the part of or in favour of two or more persons binds or is for the benefit of them jointly and severally; and
where the day on, or by which, anything is to be done, is not a Business Day, then that thing need be done on or by the next Business Day.

EXCLUSIVITY

The Customer must not, and must ensure and procure that each of its Affiliates does not:

purchase, or facilitate the purchase of, any goods or products that are similar to, or in direct competition to, the Products from any person other than Emergence;
sell, or facilitate the sale of, any goods or products that are similar to, or in direct competition to, the Products (other than the Products supplied to the Customer in accordance with this Agreement); and
canvass, solicit, approach or accept an approach from the manufacturer or other supplier of the Products with a view to purchase the Products directly from the manufacturer or other suppliers of the Products, or any goods or products that are similar to, or in direct competition to, the Products.

The Customer must:

ensure that the Customer’s buyers and customers:

purchase the Products only from the Customer and/or Emergence; and
not canvass, solicit, approach or accept an approach from a manufacturer or other supplier of the Products, or any goods or products that are similar to, or in direct competition to, the Products, with a view to purchase the Products directly from the manufacturer or other supplier of the Products or those similar products; and

ensure that any agreement between the Customer and the Customer’s buyers and customers incorporates terms consistent with the terms and conditions of this clause.

ORDERS

The Customer may place an Order with Emergence by submitting to Emergence:

a purchase order in writing;
this signed Agreement; or
by any other method agreed by Emergence.

An Order made by the Customer must specify the type and quantity of the Products required.
Any Quote given by Emergence shall expire seven (7) days after the date of the relevant Quote. No contract arises from a quotation until Emergence accepts the Order.
The acceptance of the Order gives rise to a separate agreement between the Customer and Emergence for the supply of the Products referred to in the Order that is subject to the terms of this Agreement (including any special conditions specified in the Details).
Emergence will provide the Customer with an Invoice in respect of the Products to be supplied.
The supply of Products by Emergence is on a non-exclusive basis, and nothing in this Agreement limits Emergence’s ability to supply Products, or products similar to the Products, to any third party.

PRICE

Unless otherwise agreed by the parties, the Price is as set out in the Price List, which may be amended from time to time, upon Emergence providing written notice to the Customer or as otherwise specified in the Quote.
Unless otherwise specified, the Price includes any transport, delivery, storage, insurance and similar costs in respect of the supply of those Products to the Customer.
The Price is based on taxes and statutory charges current at the time of the Quote. Any variation of taxes or statutory charges between the date of the Quote and the date of the Invoice are the responsibility of the Customer.
All contingency charges such as exchange rate fluctuation, sales tax, or other taxes, increases in freight or insurance costs, shipping company financial collapse, surcharges due to war, threat of war, warlike conditions, port congestion, or any other emergencies unforeseen or non-existent at the time of establishment of the sale is not included in the Price, and shall be payable by the Customer.
Emergence reserves the right to change the Price in the event of a variation to the Order by the Customer.
All prices are in United States Dollars.

SUPPLY AND DELIVERY OF PRODUCTS

To the maximum extent permitted by law, Emergence may decline requests for any Products requested in an Order.
Emergence will make all reasonable efforts to deliver the Products to the Delivery Address (as set in the Order and/or the Details) unless otherwise agreed between the parties.
Unless otherwise specified by Emergence, Emergence does not represent or warrant that it is capable of providing the Products at specific times requested by the Customer. All delivery dates quoted are estimates only.
If the Customer fails to take delivery of the Products, the Customer shall be liable for a reasonable fee for:

failing to take delivery; and
storage and re-delivery of the Products.

The Customer is responsible for checking the Products upon delivery and must report any discrepancy in the quantity, quality or whatsoever in the Products ordered by the Customer to Emergence within five (5) Business Days of delivery. Any claims by the Customer for damage, contamination or shortage in relation to the Products are to be advised immediately to Emergence so that insurance company inspection and assessment can be arranged.
Risk to the Products passes to the Customer from the time the Products are delivered to the Customer or as otherwise agreed by Emergence and the Customer.

PAYMENT

Unless otherwise set out in an Invoice, the Customer must pay the amount set out in an Invoice on the date the Invoice is received by the Customer.
Emergence may refuse to accept further Orders from the Customer, or deliver Products to the Customer, if any Invoice has not been paid by its due date for payment.
The Customer shall have no right of set off in any suit, claim or proceeding brought by Emergence against the Customer for default in payment.
If the Customer fails to pay any amount due to Emergence on the due date for payment, Emergence may (in addition to any other right that Emergence may have under this Agreement), charge interest on the overdue amount at 2% above the interest rate fixed from time to time pursuant to section 2 of the Penalty Interest Rate Act 1983 (Vic). Interest will accrue each day from the due date for payment until such time as the sum due (plus interest) is paid in full. This obligation to pay default interest arises without the need for a notice or demand from Emergence for such default.

RETENTION OF TITLE

It is expressly agreed that until full payment has been made for all Products, and any other sums in any way outstanding from the Customer to Emergence from time to time:

the legal and beneficial ownership of the Products remain with Emergence and will not pass to the Customer;
the Customer holds the Products as bailee for Emergence (and will return such Products to Emergence on request) and must separately store the Products in such a way that makes it clear that the Products are the property of Emergence; and
the Customer is only authorised to sell the Products (or any portion of them) to third parties as the fiduciary agent of Emergence (provided that there will be no right to bind Emergence to any liability to such third party by contract or otherwise).

If the Customer defaults under this Agreement (including any default on the payment of any monies due to Emergence), Emergence reserves the right to:

without giving notice to the Customer, retake possession of the Products supplied to the Customer by Emergence, and the Customer hereby authorises and allows Emergence or its Representatives to enter the premises upon which the Products are kept or stored for the purposes of retaking possession of the Products. Emergence is not liable for any costs, losses, damages, expenses or any other monies or losses suffered by the Customer as a result of Emergence retaking possession of the Products; and
initial legal proceedings against the Customer as a liquidated sum for monies outstanding.

If the Customer sells the Products to a third party prior to making full payment of the Price for those Products in compliance with clause 6, then the Customer is accountable to Emergence for all the proceeds derived from such sale, and shall hold such proceeds (either as received or in a separate bank account opened expressly for the purpose) on trust for Emergence. If the Customer manufactures, intermingles, or deals with the Products in any such manner that they become an integral part of any other object, then the Customer shall be deemed to do so as agent of Emergence, and ownership of the Products will remain with Emergence as principal.

PPSA

Unless otherwise defined in this Agreement, capitalised terms and expressions used in this clause have the meanings given to them in the PPSA.
For the avoidance of any doubt, the Customer acknowledges that any purchase of any Products by it on credit terms from Emergence, or any reservation of title supply pursuant to this Agreement, constitutes a Purchase Money Security Interest for the purposes of the PPSA.
The Customer agrees that:

it grants to Emergence a Security Interest in the Products and their Proceeds, including any Accounts, and Accessions and Commingled goods’
this Agreement applies to the supply of all and any Products by Emergence to the Customer to the exclusion of all other terms of sale or purchase to the maximum extent permitted by law and constitutes a Security Agreement for the purposes of the PPSA;
the Products supplied by Emergence secure the payment of the purchase price of those Products and of any other Products supplied with priority to the maximum extent permitted by law over all other registered or unregistered Security Interests;
it will immediately on request by Emergence, do all things necessary in Emergence’s reasonable opinion, including signing any documents and provide any necessary information and do anything else required by Emergence, to enable Emergence to register a Financing Statement or any Financing Change Statement on the Register as a Security Interest and/or a Purchase Money Security Interest;
it will not permit the creation or registration, or enter into any agreement which permits the creation or registration, of a Security Interest in the Products or any Proceeds of the Products which would rank in priority to the Security Interests granted under the Agreement;
it will not change its name or ABN or other details required in respect of registration, or maintenance of registration, of each Security Interest on the Register without first notifying Emergence in writing;
it waives its right to receive a copy of a Verification Statement confirming registration of a Financing Statement, or any Financing Change Statement, relating to any Security Interest created under the Agreement; and
it will pay Emergence’s costs of any discharge or necessary amendment of any Registration.

If the provisions of Chapter 4 of the PPSA would otherwise apply, to the maximum extent permitted by law, the Customer agrees that sections 129(3), 132(1), 132(3)(d), 132(4), 135, 142 and 143 of the PPSA will not apply.
To the maximum extent permitted by law, the Customer contracts out of and waives any rights it may have pursuant to sections 95 and 96, and if the provisions of Chapter 4 of the PPSA would otherwise apply, sections, 121(4), 123, 129(2) and 130 of the PPSA.
The Customer appoints and authorises Emergence as its attorney to sign in the Customer’s name all documents which Emergence reasonably considers necessary to enforce or protect its rights and powers under the Agreement to protect, preserve and enforce its rights under the PPSA.

PRODUCT WARRANTY

Subject to clause 13, Emergence warrants title to the Products and that all Products sold hereunder will conform to the manufacturer's standard specifications.
Except as otherwise expressly agreed by Emergence, Emergence makes no representation or warranty of any kind as to the merchantability, fitness for any particular purpose or any other matter with respect to the Products whether used alone or in conjunction with other substances. All conditions and warranties expressed or implied by law are hereby expressly excluded.
The warranty for Products supplied shall be the current warranty provided by the manufacturer of the Products. Emergence shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Products. Emergence will use its reasonable endeavours to assist the Customer with any claim with respect of the Products.
The Customer is responsible for all amounts owing to Emergence in the event that any Products are supplied on the basis that a manufacturer’s warranty is in place and it subsequently becomes known to the parties that the warranty is void or inapplicable.
The warranty for Products shall only cover the cost of Products. The Customer acknowledges that additional costs incurred such as labour and/or freight must be borne by the Customer.
No claim by the Customer whether for defective goods, shortage or for any other cause whatsoever need be recognised by Emergence (and all such claims shall be deemed absolutely waived by the Customer) unless notified in writing to and received by Emergence within 14 days after date of delivery or within 14 days after the Customer learns of the facts giving rise to the claim whichever shall first occur. All goods alleged to be defective or otherwise subject to a claim shall be returned to Emergence at the Customer's expense.
To the maximum extent permitted by law, the Customer forfeits any rights if any he, she or it may have against Emergence if the Products are applied for any other use to which the Products are not intended for and/or not in accordance with any applicable instructions.
Sole responsibility for any damage or injury to property or person caused by using the Products in any way which the Customer may forfeit their rights against Emergence.
Emergence confirms it will replace the EasyNAT analyzer within 24 hours of written request by the Customer should the device malfunction or breakdown within five years of the product being delivered to the customer.

LIMITATION OF LIABILITY

Each warranty made by Emergence under this Agreement is made solely to the Customer in its own right. To the maximum extent permitted by law, each warranty explicitly excludes any liability of Emergence to any third party, including but not limited to:

any person to whom the Customer on-sells Products; and
any person for whom:

the Customer installs (or has installed, as the case may be) Products; or
any purchaser, occupant or licensee of a premises at which Products are installed or located.

To the maximum extent permitted by law and notwithstanding any other provision of this Agreement, Emergence and its Representatives will not be liable to the Customer or its Representatives for any:

delay, loss, liability, damage, expense or cost whatsoever, damage, negligence and third party claims; or
loss or damage which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity,

incurred or suffered by the Customer in connection with this Agreement (including, without limitation, as a result of Emergence's breach of this Agreement, or any negligence by Emergence of its Representatives) or the Products.

To the maximum extent permitted by law, the Customer acknowledges that it has not relied on any representation or warranty from Emergence with respect to the merchantable quality description, quality suitability or fitness of the Products.
Nothing in this Agreement is intended to have the effect of contravening any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Act in each of the States and Territories of Australia. For the avoidance of doubt, Emergence acknowledges that certain provisions of the Competition and Consumer Act 2010 (Cth) (as amended) and other statutes from time to time in force cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent. This Agreement must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which Emergence is entitled to do so, its liability under those statutory provisions will be limited at its option to:

the replacement of the Products or the supply of equivalent Products; or
the repair of the Products; or
the payment of the cost of replacing the Products or of acquiring equivalent Products; or
the payment of the cost of having the Products repaired.

The Customer acknowledges that in the event of any breach of this Agreement by Emergence, the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price.

CUSTOMER WARRANTY

The Customer represents and warrants that:

it is duly authorised and have capacity to enter into and carry out the transactions contemplated by this Agreement; and
it will comply with all applicable laws in the performance of this Agreement, including but not limited to the Australian Competition and Consumer Act 2010 and the Crimes Act 1958 (Vic) and any equivalent Act in each relevant jurisdiction (including in relation to any secret commissions).

CUSTOMER’S INDEMNITY

The Customer indemnifies Emergence, its Affiliates and its Representatives from and against any losses or damages whatsoever whether in an action in contract, negligence or other tort or other actions, causes of action, suits, claims, demands, damage, damages, loss, costs, penalties, liabilities, charges, third party claims and expenses of every description (including without limitation any loss suffered by Emergence, its Affiliate or its Representatives as a result of adverse publicity, loss of profits and any legal costs on a full indemnity basis) that Emergence, its Affiliate or its Representatives may incur or suffer, arising directly or indirectly from or in connection with:

any breach or threatened breach of this Agreement by the Customer, its Representatives, its Affiliates or its buyers and customers;
any act or omission of the Customer, its Affiliate, its Representatives or its buyers and customers in breach of this Agreement;
any penalty imposed under any applicable law, regulation or industry code relating to the Customer’s performance of this Agreement; and
any infringement of trade mark, design, pattern, mode of construction, patent, know how, utility model or copyright rights arising from performance of this Agreement, and the Customer acknowledges that the supply of the Products shall not include the transfer of any such rights.

TERMINATION AND CANCELLATION

Unless terminated earlier, this Agreement continues for the Term.
This Agreement may be terminated at any time by mutual written agreement between the parties.
If either party commits a breach of this Agreement, the other party may request in writing that the breach be remedied, and if this is not done within thirty (30) days of the request then the other party may terminate this Agreement immediately.
To the maximum extent permitted by law, Emergence may cancel any Order to which this Agreement applies or cancel delivery of Products at any time before the Products are delivered provided by giving written notice to the Customer. On giving such notice Emergence shall repay to the Customer any sums paid in respect of the Price, and to the maximum extent permitted by law, Emergence shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.
Without prejudice to Emergence's other remedies at law, Emergence shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall whether or not due for payment become immediately payable to the event that:

any money payable to Emergence becomes overdue; or
the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or, similar person is appointed in respect of the Customer or any asset of the Customer.

Any Order cannot be cancelled by the Customer unless expressly agreed to by Emergence in writing.
If the Customer cancels delivery of Products, the Customer shall be liable for any loss incurred by Emergence (including but not limited to any loss of profits) up to the time of cancellation.
If the Customer places an Order with Emergence and Emergence places an Order with a third party supplier to meet the Customer's request, the Customer shall be liable for the Price of the Products ordered if the Customer cancels the Order and the Products have already been dispatched by the third party.

FORCE MAJEURE

Emergence will not be held responsible for any failure or delay to perform an obligation under this Agreement for any reason beyond its control, such as a Force Majeure Event. If a party is affected by a Force Majeure Event, the party must inform the other party in writing of any anticipated delay or failure as soon as possible.

GOODS AND SERVICES TAX

Terms used in this clause have the meanings contained within the GST Act.
Unless otherwise indicated, it is agreed between the Customer and Emergence that the consideration for Emergence expressed in this Agreement is exclusive of Emergence's liability of GST.
The Customer will pay to Emergence in addition to the total Price the amount payable by Emergence of GST on the taxable supply made by Emergence under this Agreement.
Emergence shall deliver to the Customer a tax Invoice for each supply in a form which complies with the GST Act and any regulations made under the GST Act from time to time.
The Customer:

must pay, on demand by Emergence, all costs and expenses of Emergence in relation to compliance with the provisions of the GST Act in relation to any supply under the Agreement, including but not limited to any and all administrative costs associated with any refund of payment or overpayment of GST to the Customer in circumstances where the whole or any part of the supply is GST exempt; and
indemnifies Emergence against any and all costs incurred by Emergence in relation to the matters contemplated by clause 18.5(a).

GENERAL

A notice, request or other communication to a party under this Agreement, must be in writing and be delivered by hand or sent by prepaid post or email to the physical address or email address of that party as specified in the Details.
This Agreement constitutes the whole agreement between the Customer and Emergence.
All prior discussions and negotiations are merged within this document and all prior representations made by Emergence or on its behalf that are in conflict with any clauses in this Agreement in any way are expressly excluded.
This Agreement may only be varied by the parties in writing.
A party may only assign or novate its rights and obligations under this Agreement with the other party’s consent.
A waiver by a party in respect of a breach of a provision of this Agreement must be given in writing and will not constitute a waiver of any other breach.
If the parties to the dispute are unable to resolve a dispute by discussion between the parties, the parties agree to refer the dispute to arbitration to be conducted in Melbourne in accordance with UNCITRAL Arbitration Rules, with the appointing authority the Australian Centre for International Commercial Arbitration and conducted in English by one arbitrator.
Time is of the essence in this Agreement.
This Agreement may be signed electronically and in counterparts.
This Agreement is deemed to be made in the State of Victoria and all disputes hereunder shall be determined by the appropriate courts of Victoria.
The failure by Emergence to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect Emergence’s right to subsequently enforce that provision.
The Customer agrees to deposit USD$100,000 to Emergence to obtain exclusivity for Taiwan for the extent registration remains active and minimum orders met.
Should Registration not eventuate Emergence agrees to refund the USD$100,000 deposit
The Customer must order and pay for a minimum order of 100,000 individual units per month in order to maintain exclusivity.

Country/region

Wholesale Terms & Conditions