Labour Hire Services Agreement (Australia)

SHKK Pty Ltd ABN 61 632 885 904 trading as SHKK operates an online platform enabling three unique parties comprised of the “Organiser” who can obtain and manage “Live Performers”, “Live Performers” whom gain work from “Organisers”, and “General Audience” whom follow “Organisers” and “Live Performers”, through the Gigme Platform.

Each of these unique parties are referred to as a “Party” and collectively, the “Parties”.

Preamble

  1. Gigme provides a win-win-win marketplace between Organisers, Live Performers and the General Audience.
  2. The Organiser creates a Service Agreement with the Organiser to initiate the relationship.
  3. By agreeing to the Service Agreement the Live Performer confirms that it agrees to be bound by this Agreement and any amended term of this Agreement that is subsequently changed in accordance with the terms of this Agreement.
  4. Part of the terms of the Service Agreement are used to provide geo-location, and connect the Live Performer to the General Audience.

This Agreement sets out the terms and conditions upon which SHKK will provide the Services to the Organiser.

IT IS AGREED

  1. Definitions and Interpretation

1.1 Definitions

In this Agreement:

Agreement means this agreement including any Schedules to it and any document signed by both of the Parties that varies or supplements it in accordance with its terms or which has been changed pursuant to clause 23 of this Agreement;

Award has the same meaning as Modern Award, as that term is used by the Australian Government Fair Work Ombudsman;

Business Day means any day which is not a Saturday, Sunday or designated public holiday or bank holiday in Victoria, Australia;

Confidential Information means any information of a confidential nature provided by or made available by a Party, or otherwise obtained by a Party, whether before or after execution of the Agreement, in connection with the Party, the Services or this Agreement, including:

(a) all confidential business information, documents, records, financial information, reports, technical information and forecasts which relate to the Party or the Party’s business;

(b) the Party’s Intellectual Property; or

(c) any information created under or arising out of the provision of Services under this Agreement;

but does not include information which:

(d) is in or becomes part of the public domain, other than through a breach of this Agreement or an obligation of confidence owed to the Party or any of its Representatives;

(e) was known to Party at the time of disclosure, unless such knowledge arose through breach of an obligation of confidence; or

(f) was independently acquired by a Party or developed without breaching any of the obligations set out in this Agreement;

Corporations Act means the Corporations Act 2001 (Cth) and any regulations made under it;

Developed IP means Intellectual Property that is developed or created by SHKK (including by a SHKK) during, in the course of and for the purposes of providing the Services to the Organiser, but excludes any pre-existing Intellectual Property of SHKK or the Live Performer;

Event means a window of time in which Gigs are allocated. There can be multiple Gigs within an Event;

Force Majeure Event means any of the following events which are unforeseen by, beyond the control and occurs without fault or negligence by the Party prevented from or delayed in performing the obligation:

(a) acts of God, earthquake, fire, flood, storm;

(b) war, riot, insurrection, vandalism or sabotage;

(c) strikes, stoppages, labour disputes and other forms of industrial disturbance;

(d) explosion; or

(e) power shortage, breakdown of plant, machinery or equipment,

and for the avoidance of doubt does not include any kind of industrial action;

Gig means a period of time allocated to one Live Performer event;

Gigme Sites means the websites at www.gigme.events;

GST has the meaning given to the term in A New Tax System (Goods & Services Tax) Act 1999 (Cth), related legislation and any delegated legislation made pursuant to such legislation;

Insolvency Event in relation to a Organiser means anything that reasonably indicates that there is a significant risk that that Organiser is or will become unable to pay its debts as they fall due. This includes:

(a) the suspension or cessation of its business activities;(b) its liquidation or insolvency or a step being taken to make the Organiser bankrupt or to wind the Organiser up;

(c) a meeting of the Party’s creditors being called or held;

(d) the Organiser entering into any type of arrangement with, or assignment for the benefit of all or any of its creditors;

(e) the Organiser being made subject to a deed of company arrangement;

(f) the appointment of a controller or administrator as defined in section 9 of the Corporations Act;

(g) a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the person or any of its assets; or

(h) any other act which shows or tends to show that it is insolvent;

Intellectual Property means all present and future rights conferred under statute, common law or equity in and to inventions, know-how, confidential information, trade secrets, patents, patent applications, registered and unregistered trade-marks, registered and unregistered designs, copyright, circuit layouts and all other rights protected by law resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;

Serve Agreement means a request for services posted by the Organiser on the Gigme Platform or in writing via another method as agreed by the Parties;

Loss means any loss including any liability, cost, expense (including legal costs on a full indemnity basis), claim proceeding, action, demand or damage; damages of compensation, loss of profits or any other consequential loss;

Party means SHKK or the Organiser, Live Performer or General Audience as the context requires;

Related Entity has the same meaning as under the Corporations Act;

Representative means any director, officer, employee, agent, contractor, subcontractor, adviser or a Related Entity of a Party, and for the avoidance of doubt, when referring to SHKK;

Services means the provision by SHKK of labour hire related services to the Organiser in response to a Service Agreement;

Gigme Platform means any system, website or platform provided by SHKK (including the Gigme sites) to facilitate the engagement of Live Performers by Organisers via Gigme, and includes any other sites and services owned or controlled by SHKK;

Term means the period from which this Agreement first becomes effective until the date on which it is terminated.

Gig means any location, premises or building at which a Live Performer is, will or has worked for the purposes of providing the Services.

1.2 Interpretation

In this Agreement, except where the context otherwise requires:

(a) the singular includes the plural and vice versa, and a gender includes other genders;

(b) another grammatical form of a defined word or expression has a corresponding meaning;

(c) a monetary reference is to Australian currency;

(d) a reference to time is to Australian Eastern Standard Time or Australian Eastern Daylight Time (as the case may be);

(e) a reference to a Party includes the Party’s executors, administrators, successors and permitted assigns and substitutes;

(f) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;

(g) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;

(h) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;

(i) headings are for ease of reference only and do not affect interpretation;

(j) if a Party consists of more than one person, this Agreement binds each of them separately and any two or more of them jointly;

(k) an obligation, representation or warranty in favour of more than one person is for the benefit of them jointly and collectively;

(l) any agreement, representation, warranty or indemnity in favour of two or more Parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally;

(m) a rule of construction does not apply to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it; and

(n) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day.

  1. Term

This Agreement will remain in force for the Term.

  1. Services

 3.1 Provision of the Services

SHKK will provide the Services to the Organiser on the terms set out in this Agreement.

3.2 Headhunting/Poaching Prohibited

3.2.1 All interactions between a Organiser and a Live Performer initiated through Gigme must be arranged through the Gigme Platform. If following the provision of the Services, the Organiser wishes to directly employ a Live Performer, it may do so if it has first advised Live Performer of this intention in writing.

3.2.2 Notwithstanding clause 3.2.1, the Organiser must not, and must make sure its Related Entities do not, solicit the employment of any employee (including without limitation, a Live Performer) or Representative currently employed or engaged by Live Performer or its Related Entities or attempt to entice any such person to leave their employment or engagement with Live Performer or its Related Entities.  However, clause 3.2.1 does not restrict or prohibit the Organiser or its Related Entities from employing a person who:

(i) responds (unsolicited) to a general advertisement and bona fide recruitment campaign that is not targeted at the person; or

(ii) contacts the Organiser or its Related Entities on his or her own initiative without any solicitation from the Organiser or its Related Entities.

Regardless of whether sub clause 3.2.2 (i) or (ii) above applies, the Base Fee or the Breech Fee in clause 3.2.1 will apply and is payable to Live Performer.

 3.3 Non-exclusive appointment

The appointment of Live Performer is non-exclusive and this Agreement does not purport to restrict the Organiser’s right to perform any services itself or contract with third parties for the performance of services similar to the Services or the Services provided by any Live Performer.

 3.4 No guarantee of supplying a Live Performer

Until confirmed by Live Performer otherwise, Live Performer does not guarantee in any way that it will supply a Live Performer for any given Gig posted by the Organiser.  

  1. Live Performers

4.1 Employment of Live Performers

A Live Performer is employed under a contractor agreement where both the Live Performer and Organiser have a valid Australian Business Number (ABN).

4.3 Warranties in relation to a Live Performer

The Live Performer warrants that:

(a) it has complied with all applicable laws, regulations and procedures, including but not limited to any occupational health and safety, superannuation, and employment;

(b) it is legally able to work in Australia;

(c) it will pay all necessary taxes (including fringe benefits tax, income tax and payroll tax) and superannuation in relation to income generated via Gigme;

 4.4 Standard of Behaviour

A Live Performer agrees to:

(a) be courteous and diligent at all times while engaged by the Organiser;

(b) comply with all of the Organiser’s policies and guidelines, including, without limitation, those relating to occupational health and safety;

(c) comply with all reasonable directions of the Organiser;

(d) keep the Organiser’s Confidential Information confidential;

(e) comply with any conditions of entry or other site specific requirements as notified by Live Performer and/or the Organiser from time to time; and

(f) not use any property of the Organiser for any purpose other than to perform the work required by the Organiser and will return any property of the Organiser used in the provision of the Services to the Organiser in good, undamaged, clean, and usable condition.

 4.5 Nature of the relationship between the Organiser and Live Performer

Nothing in this Agreement creates a relationship between the Organiser and any Live Performer of employer and employee.

  1. Obligations of the Parties

5.1 Level of Performance

The Live Performer will seek to ensure that:

(a) the Services are provided promptly, carefully and in a professional manner;

(b) when providing the Services, the Live Performer exercises due care, skill and judgment;

(c) it allocates sufficient resources when carrying out the Services;

(d) it cooperates with the Organiser in all matters relating to the Services;

(e) the Services are provided to the Organiser’s reasonable satisfaction having regard to the Organiser’s requirements; and

(f) it complies with all reasonable instructions, directions, descriptions and specifications given by the Organiser.

5.2 Compliance with laws and policies

At all times during the Term, the Live Performer must exercise all reasonable and best endeavours to:

(a) comply with all requirements of any laws relating to the performance of the Services; and

(b) comply with any of the Organiser standards, operating policies or procedures that are in effect and the details of which have been provided to Live Performer in writing not less than 10 business days prior to the Organiser issuing the Gig to Live Performer.

5.3 Obligations of the Organiser

The Organiser must advise Live Performer in writing:

(a) within 5 business days, with time being of the essence, of all incidents occurring and involving any Live Performer that may give rise to a claim against Live Performer by the Live Performer, the Organiser or any third party; and

(b) on the day the Services are provided, if the work, role, responsibilities or work conditions the Organiser sets for a Live Performer at the time the Services are provided do not match those for the role classification that the Organiser selected when creating the Gig.

  1. Occupational Health and Safety and Training

6.1 The Organiser must ensure the health and safety of the Live Performer at all times whilst they are under its management and control and / or working at a Work Site. Without limiting this requirement in anyway, the Organiser must ensure that:

6.1.1 the Live Performer has received any required and reasonably necessary training for the work to be performed; and

6.1.2 the Live Performer are provided with all safe work procedures relevant to the workplace.

6.1.3 it complies with all relevant occupational, health, safety and associated legislation, regulations and codes of practice;

6.1.4 it will provide comprehensive site and safety inductions to the Live Performer;

6.1.5 it will advise Live Performer of any proposed change in the nature of the tasks undertaken (or to be undertaken) by a Live Performer;

6.1.6 it adequately supervise the Live Performer at all times; and

6.1.7 it promptly lets Live Performer know of any incidents or injuries involving the Live Performer.

6.2 Inspection

The Organiser will permit the Live Performer (on reasonable notice) to attend any Event location for the purpose of:

(a)   carrying out a sound and equipment check;

(b)   meetings with its the Live Performer on site; and/or

(c)   carrying out a general reconnaissance of the Event space.

6.3 No Duty to Review

(a)    A Live Performer, nor any person acting on their behalf, assumes or owes any duty of care to the Organiser to review any documentation provided by the Organiser, or any other documentation for errors, omissions or compliance with this Agreement.

(b)   No receipt or review of, comments upon, consent to, rejection or approval of, permission to use, or failure to review or comment on or to reject or approve or consent to or give permission to use, that documentation or any other documentation or any other direction by Live Performer about such documentation will:

(i)     relieve the Organiser from, or alter or affect, the Organiser’s liabilities or responsibilities whether under this Agreement or otherwise according to law; or

(ii)    prejudice Live Performer’s rights and remedies against the Organiser whether under this Agreement or otherwise according to law. 

  1. Reports

Live Performer agrees to keep records and documentation in relation to the Services during the Term and for a period of seven years after the Agreement ends. Upon request by the Organiser, Live Performer will make documentation relating to the Services available to the Organiser for inspection. 

  1. Payment

8.1 Rates

8.1.1 The Organiser will pay the Live Performer via the Gigme Platform the equivalent of the sum of the total agreed sum with or without GST, depending on the Live Performer’s taxation status.

8.1.2 A service fee calculated in accordance with clause 8.1.1 (the “Service Fee”);

(collectively, the “Rate”) to SHKK;

8.1.3 The Service Fee payable to SHKK will be calculated by multiplying the sum of all components of clauses 8.1.1 by 8%.

 8.2 GST

8.2.1 The Rate is exclusive of GST.

8.2.2 In addition to the Rate, the Organiser will pay Live Performer any GST payable in respect of the Services, on the same date on which payment for the relevant Services are due and payable.

 8.3 Invoices and payment

8.3.1 Gigme will issue invoices and payment remittance to the Organiser and Live Performer, respectively:

8.3.1(a) the invoice is a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

8.3.1(b) the rates claimed in the invoice are due for payment under this Agreement; and

8.3.1(c) the invoice is addressed to the Organiser.

8.3.2 Invoices will be dated on the day the Gig was provide.

8.3.3 The payment to the Live Performer will be transferred by Gigme to the Organiser at the time of the issue of the invoice.

  1. Warranties

 9.1 General warranties

Each Party represents and warrants to the other Party:

(a) it has full corporate power to enter into and give effect to this Agreement and the transactions contemplated by this Agreement;

(b) it has taken all necessary action to authorise the execution, delivery and performance of this Agreement;

(c) the execution, delivery and performance of this Agreement does not contravene any contractual, legal or other obligations that apply to it; and

(d) the obligations under the Agreement will be valid, binding and enforceable. 

  1. Liability and Indemnity

10.1 Live Performer’s Indemnities

10.1.1 Live Performer shall be liable for and shall indemnify, and keep indemnified, the Organiser and its Representatives from and against all Loss in relation to or in connection with:

10.1.1(a) personal injury, illness or death of any person where the personal injury, illness or death is caused by or results from any act or omission of Live Performer or its Representatives;

10.1.1(b) loss of or damage to any property owned, hired or supplied by Live Performer or its Representatives;

10.1.1(c) a breach by way of any act or omission of Live Performer or its Representatives of the confidentiality provisions in this Agreement;

10.1.1(d) a breach by Live Performer or its Representatives of the Privacy Act or of the Organiser’s privacy policy; and

10.1.1(e) unlawful, negligent, or wrongful act or omission of Live Performer or its Representatives in connection with the performance of its obligations under this Agreement;

but only to the extent not caused or contributed to by the Organiser or its Representatives and Live Performer shall only be liable for Loss to the extent that is directly caused by Live Performer or its representatives.

The Organiser acknowledges that Live Performer does not hold motor vehicle insurance for vehicles that are registered or required at law to be registered and which are not owned by Live Performer.  The indemnities in this Agreement do not apply to the Loss to the extent they would ordinarily and commonly be covered by a motor vehicle insurance policy unless the motor vehicle is a forklift.

 10.2  Live Performer’s Additional Indemnities

10.2.1 Live Performer indemnifies and agrees to keep indemnified the Organiser against:

10.2.1(a) any loss or penalty under any applicable legislation arising from all employee entitlements of the Live Performer, which, for the avoidance of doubt, will be provided by Live Performer; and

10.2.1(b) any loss or penalty under any applicable legislation that the Organiser may incur in connection with any workers compensation or pay-roll tax liability arising out of the performance of the Services (including in respect of the engagement or employment (as applicable) by Live Performer of the the Live Performer.

but only to the extent not caused or contributed to by the Organiser or its Representatives.

 10.3 No consequential loss

Under no circumstance will either Party be liable to the other for any indirect or consequential loss, however it arises or for punitive or exemplary damages or for any loss of profit, loss of revenue, or loss of opportunity

 10.4 Limitation of Liability and Disclaimers

(a) Live Performer endeavours to provide accurate background, qualification and experience checks of its the Live Performer (“Live Performer Checks”). However, these details are based on information made available by the the Live Performer and referees. Accordingly, no responsibility can be accepted by Live Performer for errors, omissions, or incorrect conclusions in relation to the Live Performer Checks.

(b) Live Performer makes every effort to provide the Live Performer that are suitable for the Organiser’s requirements.  However it is the Organiser’s sole obligation to satisfy itself as to whether a Live Performer is suitable for the Organiser’s needs.

(c) Notwithstanding any other provision of this agreement, Live Performer shall not be liable for any loss of or damage to the property of the Organiser and the Organiser releases and forever discharges Live Performer and it’s Representatives for any and all such claims.

 10.5 The Organiser’s Indemnities

The Organiser shall indemnify, and keep indemnified, Live Performer its the Live Performer and its Representatives from and against:

10.5.1 all losses arising from or in connection with the Organiser’s breach of its commitments and obligations under this Agreement; and

10.5.2 all losses not caused by Live Performer or its Representatives.

  1. Intellectual Property

11.1 The Live Performer acknowledges and agrees that all Intellectual Property and other information that the Organiser provides or makes available to Live Performer remains the property of the Organiser or its licensors. Live Performer must not and must procure that a Live Performer does not use or reproduce such Intellectual Property or information for any purpose other than for the purpose of performing its obligations under this Agreement.

11.2 The Organiser acknowledges and agrees that Live Performer continues to own all of its own Intellectual Property existing at the date of this Agreement or coming into existence during the Term of this Agreement and that no licence thereto is granted to the Organiser.

11.3 All Developed IP will be owned by Live Performer without the need for further formality. 

  1. Confidentiality

 12.1 Obligations of confidence

12.1.1 Where either Party receives Confidential Information from the other under this Agreement, each must:

12.1.1 (a) keep the Confidential Information confidential;

12.1.1 (b) not use, disclose or reproduce the Confidential Information for any purpose other than the purposes of this Agreement;

12.1.1 (c) not, without the other’s written consent, disclose Confidential Information to any person other than its Representatives who need the information for the purposes of this Agreement; and

12.1.1 (c)establish and maintain effective security measures to safeguard the Confidential Information from unauthorised access, use, copying or disclosure, including but not limited to any security measures specified by the other Party.

12.2 Further permitted use and disclosure

12.2.1 Notwithstanding clause12.1, either Party may use or disclose Confidential Information to the extent necessary to:

12.2.1(a) comply with any law or binding directive of a regulator or a court order;

12.2.1(b) comply with the listing rules of any stock exchange on which its securities are listed; or

12.2.1(c) obtain professional advice in relation to matters arising under or in connection with this Agreement. 

12.3 Return of Confidential Information

Each Party must immediately on demand, or on completion or termination of this Agreement, return to the other Party, or destroy if requested, any documents in its possession, power or control containing Confidential Information. 

12.4 Obligations to continue after Agreement ends

All obligations of confidence set out in this Agreement capable of surviving termination or expiry of this Agreement shall continue in full force and effect after this Agreement ends.

  1. Privacy obligations

13.1 Each Party agrees to:

13.2.1 comply with the Privacy Act 1988 (Cth) and such other data protection laws as may be in force from time to time which regulate the collection, storage, use and disclosure of personal information, as if it were regulated by these laws (whether or not regulated); and

13.3.2 comply with any reasonable privacy code or policy which has been adopted by the other and which has been communicated to the other Party, as if it were bound by that code or policy.

Live Performer’s Privacy Policy applies to all Users and forms part of this Agreement. Use of the Live Performer Platform confirms that the Organiser consents to, and authorises, the collection, use and disclosure of its personal information in accordance with Live Performer’s Privacy Policy.

  1. Termination

Either Party may terminate this Agreement at any time by providing written notice to the other Party.

  1. Consequences of Termination and Continuing Obligations

The termination or expiration of this Agreement does not affect accrued rights or remedies, including but not limited to each Party retaining its rights in respect of any breach by the other Party and the Organiser must pay Live Performer for any Services provided, in accordance with clauses 8.3.  For the avoidance of doubt, clause 8.4 of this Agreement will survive the expiration or termination of this Agreement until such time as all amounts owed to Live Performer by the Organiser have been paid in full.

  1. Force Majeure

16.1 If a Party is prevented from or delayed in performing an obligation under this Agreement (other than an obligation to pay money) by a Force Majeure Event then the obligation is suspended during, but for no longer than, the period the Force Majeure Event continues and such further period as reasonable in the circumstances.

16.2 The Party that is prevented from or delayed in performing the obligation must as soon as reasonably possible, notify the other Party of its inability to perform the obligation due to the Force Majeure Event.

  1. Notices

17.1 All notices to be given under this Agreement are to be given in writing.

17.2 Notices must be forwarded to the other Party by prepaid post or registered mail to the addresses set out in this Agreement or otherwise as notified in writing to the other Party from time to time.

17.3 All notices served under this Agreement will be considered to have been received three Business Days after posting, unless sent by facsimile or email, in which case the notice will be deemed to have been received on the date shown on the sender’s transmission report, or if sent via the Live Performer Platform, in which case it will be deemed to have been received on the date the sender’s systems demonstrate the notice was first delivered to a Representative of the Organiser.

  1. Relationship

18.1 Nothing contained or implied in this Agreement constitutes a Party the partner, agent or legal representative of the other Party for any purpose, or creates any partnership, employment, agency or trust. Neither Party has the authority to bind the other Party in any way.

  1. Severability

19.1 If any part of this Agreement is held to be invalid, unlawful or unenforceable in any way, that part will be deemed as severed from the Agreement and the remaining provisions will not be affected and will remain in full force for the Term.

  1. Assignment

20.1 The Organiser  may not assign its rights or obligations under this Agreement without the prior written consent of Live Performer.

  1. No Waiver

21.1 A Party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

21.2 The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.

21.3 A waiver is not effective unless it is in writing.

21.4 Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.

  1. Governing Law

This Agreement will be governed by the laws of the State of Victoria, Australia and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts in that jurisdiction.

  1. Entire Agreement and Changing the Agreement

23.1 Entire Agreement

This Agreement constitutes the entire agreement between the Parties in respect of the Services and each Parties rights and obligations, and supersedes all other agreements, representations, negotiations and correspondence.

23.2 Changes to this Agreement

Live Performer may change any term of this Agreement by providing reasonable notice to the Organiser and / or its Representatives.  The new form of this Agreement including the changed term will then become effective in entirety.

If Live Performer does make changes to the terms of this Agreement and the Organiser determines the change(s) could adversely affect the Organiser, the Organiser may terminate this Agreement pursuant to clause 14.

  1. Warranty

24.1 Except as provided herein and to the extent allowed by law, the Service is provided on an “as is” basis, and without any warranty or condition, express or implied. To the extent permitted by law, Live Performer and its suppliers specifically disclaims any implied warranties of title, merchantability, fitness for a particular purpose and non-infringement.

24.2 Where Live Performer provides a report of any sort to the Organiser, where that report has been produced or provided to Live Performer by a third party provider, including where Live Performer obtains such report then represents the results of same to the client rather than providing a copy of the report received from the third party provider, such as but not limited to, letters of reference, star ratings submitted by other clients, police reports, medical test reports and drug and/or alcohol test reports, Live Performer does not warrant the accuracy of those reports and the Organiser agrees that Live Performer will not be held responsible should it be found that any such report was inaccurate.

  1. Dispute Resolution

25.1 Notice of Dispute

If a difference or dispute between the parties arises in connection with the subject matter of this Agreement, then either party shall give the other party a Notice of dispute adequately identifying and providing details of the dispute.

25.2 Continue to Perform

Notwithstanding the existence of a dispute the parties shall continue to perform this Agreement.

25.3 Conference

Within 5 business days after receiving a Notice of dispute the parties shall confer at least once to resolve the dispute or to agree on methods of doing so.  At every such conference each party shall be represented by a person having authority to agree to such resolution or methods.  All aspects of every such conference except the fact of occurrence shall be privileged.

25.4 Mediation

If the parties are unable to resolve the dispute via conference, either party may refer any dispute to mediation by a mediator agreed by the parties or, failing agreement, by a mediator appointed by the President of the Law Institute or Law Society in the jurisdiction referred to in clause 22 of this Agreement.  Upon referral to mediation the parties will use their best endeavours to resolve the dispute.

25.5 Arbitration

If the parties are unable to resolve the dispute pursuant to clause 25.4, either party may refer the dispute or difference to be resolved by arbitration.  The arbitration will be administered by the Australian Centre for International Commercial Arbitration and will be finally resolved under the Australian Centre for International Commercial Arbitration Arbitration Rules (Arbitration Rules).  There shall be one arbitrator who shall be appointed in accordance with the Arbitration Rules. The seat of the arbitration shall be Victoria, Australia and the language of the arbitration shall be English.  The arbitrator must give written reasons for their award.

25.6 Final and Binding Decision

The arbitrator’s decision shall be final and binding on the parties.

25.7 Parties not to Commence Legal Action

Notwithstanding anything in this clause 25, either Party may apply to court:

  1. a) for urgent interim relief;
  2. b) for summary judgment to recover an amount due and payable by the other Party;
  3. c) to enforce an arbitral award; or
  4. d) to determine whether clause 25.5 or 25.6 of this Agreement are held to be invalid, unlawful or unenforceable.