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Technology Arbitrators, Expert Determiners and Mediators - Mediation Agreement

This Agreement is made on the Agreement Date between the Parties specified in Schedule 1.

Recitals

A. Mediator has the skills and resources to mediate the Dispute.

B. Disputing Parties require the assistance of Mediator to resolve the Dispute.

C. Disputing Parties and Mediator agree as follows.

Operative Part

1. Definitions

1.1 In this Agreement, unless inconsistent with the context:

(a) Agreement means this agreement, its recitals, provisions and any schedule of this agreement.

(b) Clause means a clause of this Agreement.

(c) Mediation Process means the mediation and any preliminary or ancillary step to the mediation.

(d) Party and Parties means a party to this Agreement and their respective successors, trustees and permitted assigns.

(e) Interest Rate means the rate of 5% per annum calculated monthly in arrears and added to the outstanding sum.

(f) Sub-clause means a sub-clause of this Agreement.

2. Interpretation

2.1 In this Agreement, unless inconsistent with the context:

(a) Words denoting a person shall include corporations, statutory corporations, partnerships, joint ventures, associations, boards, governments or semi-government agencies or authorities.

(b) Words denoting the singular number shall include the plural number and vice versa.

(c) Words denoting any gender shall include all other genders.

(d) A reference to a statute or a regulation also refers to any statute or regulation amending, or consolidating or re-enacting same.

(e) Money references are references to Australian currency.

(f) A reference to “includes”, “including” or “inclusive” is to be construed as being a reference to “includes, without limitation”, “including, without limitation”, and “inclusive, without limitation” respectively.

(g) Headings used in this Agreement are for convenience and ease of reference only, and are not part of this Agreement and shall not be relevant or affect the meaning or interpretation of this Agreement.

(h) Every obligation, covenant, agreement, condition express or implied in this Agreement and entered into by more than one party shall bind them jointly and each of them severally.

(i) A provision of this Agreement shall not be construed adversely to the Party that drafted it.

(j) If any provision or part provision of this Agreement is held invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from such provision or part provision which shall be deemed deleted.

(k) The recitals, provisions and any schedule to this Agreement form part of this Agreement.

(l) No remedy, expressly granted to Mediator excludes or shall be deemed to exclude or modify any other right or remedy which would otherwise be available to Mediator.

3. Appointment

3.1 Disputing Parties appoint Mediator as mediator to attempt to resolve the Dispute.

4. Non-Binding

4.1 Nothing that occurs during the Mediation Process shall be binding unless agreed in writing.

5.1 Disputing Parties’ legal representatives may attend and participate in the mediation process subject to this Agreement.

6. Preliminary Meeting

6.1 Disputing Parties shall attend a preliminary meeting either by teleconference or in person.

6.2 At the preliminary meeting Mediator shall provide directions as to the future conduct of the mediation and the documents (if any) which need to be prepared for the mediation.

7. Confidentiality

7.1 Mediator and Disputing Parties acknowledge the confidential and without prejudice nature of:

(a) the matters discussed during the Mediation Process;

(b) the documents prepared as part of the Mediation Process; and

(c) the terms of this Agreement.

7.2 Mediator and Disputing Parties shall ensure that, to the extent that such information and documents are not in the public domain or already known to Disputing Parties, they are kept confidential and shall not, without written permission from each of the other Disputing Parties:

(a) disclose same to any third party; or

(b) disclose same, or seek to use same in way, in any extant or future litigation or arbitration

7.3 Disputing Parties shall ensure that each person participating or attending the Mediation Process agrees to be bound to similar confidentiality obligations as are set out in this Agreement.

8. Mediator not a witness

8.1 Disputing Parties shall not call Mediator as a witness to any proceedings.

9. Statements made during mediation not actionable

9.1 To the extent permitted by law, no statements of any kind made as part of the Mediation Process may be used by any Party as the basis for an action against another for, amongst other things:

(a) defamation;

(b) injurious falsehood;

(c) negligence; or

(d) a breach of any other law.

10. Indemnity

10.1 Save for fraud, Disputing Parties indemnify and shall keep indemnified Mediator for all costs, taxes and expenses on a solicitor and own client basis incurred in connection with the Mediation Process and any dispute arising in relation to it.

10.2 Save for fraud, Disputing Parties indemnify and shall keep indemnified the Appointing Authority for all costs, taxes and expenses on a solicitor and own client basis incurred in connection with the Mediation Process and any dispute arising in relation to it. The Mediator shall hold this indemnity on trust on behalf of the Appointing Authority.

11. Notices

11.1 Notices under this Agreement may be delivered by hand, by mail or by facsimile to the addresses specified in Schedule 1.

11.2 Notices shall be deemed given in the case of:

(a) hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving party;

(b) posting, 3 days after dispatch; and

(c) facsimile, upon completion of transmission.

12. Fees

12.1 Disputing Parties shall pay Mediator’s Fees in the manner and rates as specified in Schedule 1.

12.2 The Fees are binding. The Estimate is not binding.

12.3 This Agreement and the Fees are not subject to any legislation in relation to the legal profession.

12.4 Unless stated to the contrary, the Fees are exclusive of all taxes, duties, fees or other government levies or charges, including without limitation any GST, stamp duty or otherwise, which may be imposed on or in respect of the Fees or the services provided under this Agreement or otherwise. Such taxes, duties, fees or other government charges shall to the extent permissible by law be paid by Disputing Parties.

12.5 Disputing Parties shall pay Mediator interest at the Interest Rate on all overdue amounts from the due date until payment is made.

12.6 If any payment owing to Mediator is not made on the due date, Mediator may, without further notice to Disputing Parties, suspend further services or its remaining obligations to Disputing Parties under this Agreement.

13. Survival

13.1 The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

14. Entire Agreement

14.1 Unless stated expressly to the contrary in this Agreement:

(a) this Agreement constitutes the entire agreement between the Parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded;

(b) this Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties. No Party may represent that there exists such a relationship between the Parties;

(c) no Party may bind the other Party to any agreements, arrangements, contracts or understanding or represent that they have such authority; and

(d) no modification or alteration of any provision of this Agreement shall be valid except in writing signed by each Party.

15. Governing Law

15.1 This Agreement shall be governed by and construed according to the law of Jurisdiction.

15.2 The Parties irrevocably submit to the exclusive jurisdiction of the courts of Jurisdiction and the Commonwealth of Australia and any courts hearing appeals from such courts. Any proceedings in a Commonwealth court shall be commenced in Jurisdiction.

16. Agreement Costs

16.1 All expenses (including legal costs) incidental to this Agreement shall be borne by the Parties incurring those expenses.

17. Counterparts

17.1 This Agreement may be executed by the electronic exchange of counterparts.


Executed as an Agreement

By Mediator by being signed by Steve White)
)
) Sign here
)
)
In the presence of:

Name of Witness:
Witness sign here

Print Name of Witness
By
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:
)
)
) Attach company seal here
)
)
Director/Secretary sign here

Print Name of Director/Secretary here

Director/Secretary
Director sign here

Print Name of Director here

Director
By
by being signed by the following persons
or if a seal is affixed witnessed by the following persons:
)
)
) Attach company seal here
)
)
Director/Secretary sign here

Print Name of Director/Secretary here

Director/Secretary
Director sign here

Print Name of Director here

Director

Schedule 1 – General Details

Agreement Date
Appointing AuthorityNil (if appointment is ad hoc)
Dispute
Disputing Parties
FeesRates

Estimate

JurisdictionAustralian Capital Territory / New South Wales / Northern Territory / Queensland / South Australia / Tasmania / Victoria / Western Australia / New Zealand 1)
MediatorStephen Wallace White ABN 94 669 684 644
NoticesAs per above.
1) delete to suit

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