Terms and Conditions

1. Definitions and interpretation

1.1. Unless the context requires otherwise, capitalised terms have the meanings given to them in the body of this Agreement, and the following words and expressions shall have the meanings set out below:

(a) Agreement means this Project Agreement, including these terms and conditions, the Formal Instrument of Agreement and all schedules (including the Schedule), annexures and attachments to these terms and conditions.

(b) Architect means the architect sourced by Milk Chocolate to carry out the design work necessary for the Building Works, and to provide such advice as Milk Chocolate deems necessary for the carrying out of the construction of the Building Works;

(c) Builder means the person sourced by Milk Chocolate to carry out and complete the Building Works and shall, where applicable, include any nominated subcontractors of the Builder or the Client;

(d) Building Works means the works to be performed on the Land pursuant to the Building Contract;

(e) Building Contract means the building contract to be entered into between the Builder and Milk Chocolate for the construction of the Building Works, as varied from time to time;

(f) Client means the Client set out in Item 1 of the Schedule (and includes the Client’s representative set out in Item 1 of the Schedule, or as appointed by the Client and notified to Milk Chocolate from time to time);

(g) Client’s Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services (including Intellectual Property), owned, licensed or developed by or on behalf of the Client or any of its personnel before the date of this Agreement and/or developed by or on behalf of the Client or any of its personnel independently of this Agreement;

(h) Confidential Information includes information which:

(i) is disclosed to the Receiving Party in connection with this Agreement at any time;

(ii) is prepared or produced under or in connection with this Agreement at any time;

(iii) relates to the Disclosing Party’s business, assets or affairs; or

(iv) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information;

(i) Consequential Loss includes any consequential loss, indirect loss, real or anticipated loss of profit, loss of benefit, loss of use or property or money, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise;

(j) Consultants has the meaning given in clause 4.1;

(k) Disclosing Party means the party disclosing Confidential Information to the Receiving Party;

(l) Force Majeure means any event or circumstance beyond a Party’s reasonable control and may include one or more (or a combination) of the following:

(i) an act of God (including but not limited to fire, earthquake, cyclone, landslide, tsunami, or other natural disaster);

(ii) civil unrest, armed conflict, act of terrorism, insurrection, military coup, war (whether declared or not) or other like hostilities;

(iii) ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination; or

(iv) disease, epidemic, pandemic, and/or government sanctioned shutdown.

(m) Formal Instrument of Agreement means the document attached to or referred to in these terms and conditions, forming part of this Agreement;

(n) Improvements means any development, modification, adaptation or improvement of any New Materials made by or on behalf of either Party (or any of their respective personnel), or in respect of which Intellectual Property Rights are acquired by, either Party during the term of this Agreement;

(o) Intellectual Property means any domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layouts, software, computer programs, databases or source codes, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing;

(p) Intellectual Property Rights means for the duration of the rights in any part of the world, any industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property;

(q) Land means the Land set out at Item 2 of the Schedule;

(r) Liability means any expense, cost, liability, loss, damage, claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent;

(s) Milk Chocolate’s Materials means all work, models, processes, technologies, strategies, materials, information, documentation and services that Milk Chocolate may provide to the Client under this Agreement, and which may contain material which is owned by or licensed to Milk Chocolate, and is protected by Australian and international laws;

(t) New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of Milk Chocolate or the Client or any of either Party’s respective personnel in connection with this Agreement or the provision of the Project Management Services, whether before or after the date of this Agreement;

(u) Parties means the Client and Milk Chocolate;

(v) Plans and Specifications mean the designs, plans and specifications to be prepared by the Architect and specialist Consultants and forming part of the Building Contract and where the context so admits any variations thereto authorised by the Client and approved by the relevant authorities;

(w) Project means the building project at the Land, including the Building Works and the services provided by the Consultants;

(x) Project Fees means the fees payable to Milk Chocolate by the Client in consideration of the performance by Milk Chocolate of the Project Services hereunder being the amount specified in Item 3 of the Schedule, as adjusted in accordance with this Agreement;

(y) Project Services means the services of Milk Chocolate as set out in this Agreement; and

(z) Receiving Party means the party receiving Confidential Information from the Disclosing Party; and

(aa) Website means www.milkchoc.com.au.

1.2. In this Agreement, unless the context otherwise requires:

(a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;

(c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;

(d) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;

(e) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;

(f) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(g) a reference to time is to local time in New South Wales; and

(h) a reference to $ or dollars refers to the currency of Australia from time to time.

2. Appointment of Milk Chocolate

2.1. The Client hereby engages Milk Chocolate to project manage the design, construction and completion of the Building Works, and Milk Chocolate hereby accepts that appointment.

2.2. The Project shall typically proceed in the following stages:

(a) Stage 1 – design, and planning and building approvals stage;

(b) Stage 2 – contract stage;

(c) Stage 3 – construction stage; and

(d) Stage 4 – commissioning and maintenance stage.

2.2. This Agreement commences on the date that this Agreement is executed by both Parties, and will continue until Milk Chocolate reasonably considers that it has performed the whole of the Project Services, unless earlier terminated in accordance with its terms.

3. Project Services

3.1. To the extent that there is any ambiguity or discrepancy between the Project Services described in the Schedule and these terms and conditions, including in this clause 3, the Schedule will prevail. For the avoidance of doubt, if the Schedule indicates that any of the Project Services listed in this clause 3 do not apply, then the relevant provisions in these terms and conditions (including this clause 3) will not apply. Subject to the Schedule, the Project Services are as follows:

(a) assist the Client in applying for all necessary approvals and consents required from all relevant authorities and adjoining owners so as to facilitate any required building permit or approval being issued by the relevant authority;

(b) consult with the Architect, the Builder and the Client, liaise with Consultants in respect of their specifications for the Building Works, consulting with the Client in relation to the preparation of a list of tenderers, and prepare necessary tender documentation for procuring the Builder;

(c) arrange for the calling of tenders, advise as to the suitability and qualification of tenderers for the Building Works, and make recommendations as to the letting of the Building Contract;

(d) act as project manager for the purposes of the Building Contract;

(e) provide the necessary liaison between the Client, the Architect, the Builder and the Consultants and co-ordinate their activities;

(f) respond to communications from the Client, Architect, Builder and Consultants in a timely manner;

(g) keep the Client reasonably informed of cost and timing changes to the Building Works;

(h) relay instructions to the Architect, the Consultants and the Builder in a timely manner;

(i) render advice to the Architect, Builder, Consultants and the Client in various matters so as to promote the economical and efficient completion of the Building Works;

(j) comply with the requirements of all governmental and statutory authorities having jurisdiction over the construction of the Building Works, to the extent that any such requirements apply to Milk Chocolate;

(k) arrange project meetings as provided herein;

(l) report regularly to the Client;

(m) continually monitor the program, budget and cash flow projections for the Project;

(n) advise the Client on technical and administrative problems arising on the Project; and

(o) advise the Client of the need for any specialist Consultants to be employed in specified design functions and to frame terms of reference, conditions of engagement or similar for any such specialist Consultants.

3.2 If Milk Chocolate considers that a direction from the Client constitutes a change or variation to the Project Services, Milk Chocolate will inform the Client of the impact of the variation on the Agreement (including the Project Fees). 

4. Appointment of Consultants

4.1. So as to allow Milk Chocolate to carry out the Project Services, the Client authorises Milk Chocolate to source relevant third parties who can provide services in relation to the construction of the Building Works pursuant to this Agreement, including but not limited to:

(a) the Architect or a draftsperson;

(b) the Builder;

(c) relevant experts; and

(d) providers of building material required for the construction of the Building Works,

(collectively, the “Consultants”).

5. Project Communication

5.1. Milk Chocolate may provide the Client access to a variety of communication methods to facilitate ongoing real-time communication between the Client and Milk Chocolate, including but not limited to the methods of communication set out in Item 4 of the Schedule.

5.2. Milk Chocolate may hold regular project meetings with the Client.

5.3. Milk Chocolate will use its reasonable endeavours to obtain a progress report for the meetings focusing on time and cost issues that may require further action.

5.4. Notwithstanding clauses 5.2 and 5.3, the Client will be entitled to call for reports and ask questions in relation to the services.

5.5. The Parties acknowledge and agree that communication between the Parties is vital to the performance of the Project Services and the Client warrants that they will take all reasonable steps to ensure that any communication between the Parties will be dealt with promptly and in accordance with the communication methods set out in Item 5 of the Schedule. Milk Chocolate will use reasonable endeavours to (but is not obliged to) use the communication methods set out in Item 5 of the Schedule to communicate with the Parties. 

6. Design, Planning and Building approval stage

6.1. Milk Chocolate shall oversee the preparation of the Plans and Specifications and shall obtain the approval of the Client and all take reasonable steps to facilitate the obtaining of the necessary consents and approvals from the relevant public authorities required for the construction of the Building Works.

6.2. Unless otherwise agreed between the Parties, Milk Chocolate shall prepare any necessary documentation (other than the Plans and Specifications and any other documentation required to be provided by the Client) required for the obtaining of the relevant consents and approvals from the relevant authorities, and shall comply with (or pass on to the relevant Consultant) all reasonable requests for information and requisitions by the said authorities with respect to the Building Works.

6.3. If the Plans and Specifications are required to be altered or amended to comply with any reasonable requirements of any public authority then Milk Chocolate shall cause such alteration or amendment to be made after having first obtained the consent of the Client.

7. Construction Stage

7.1. Milk Chocolate shall take reasonable steps to arrange for the Builder to commence construction of the Building Works as soon as practicable after execution of the Building Contract.

7.2. Milk Chocolate shall monitor the progress of the Building Works and take reasonable steps to coordinate activities of the Builder with those of the Architect and the Consultants. Milk Chocolate in monitoring the progress of the Building Works shall have regard to the construction budget and to the value of the Building Works and progress claims made by the Builder.

7.3. Milk Chocolate shall keep the Client advised on all aspects of the construction of the Building Works, and in particular shall make recommendations to the Client in relation to the assessment by the Client of progress payments, variations, extensions of time and disputes under the Building Contract.

7.4. Milk Chocolate shall, monitor the standard of workmanship, materials and equipment carried out or used on the Project by the Builder and shall report on such matters to the Client.

7.5. Milk Chocolate shall, in association with the Architect and Consultants, advise on any testing of materials and shall make recommendations as to such testing of materials as it considers desirable to be made.

7.6. Milk Chocolate shall arrange for any additional design work to be carried out which may be required for the Building Works during the course of the construction of the Building Works, including design work associated with variations under the Building Contract, provided that the additional design work is approved in writing by the Client.

7.7. Milk Chocolate shall take reasonable steps to arrange for the issue of all certificates required to be issued under the Building Contract and take reasonable steps to assist the Client in obtaining the certificate(s) of occupancy for the Building Works.

8. Commissioning Stage

8.1. To the extent required by the Building Contract, Milk Chocolate shall in association with the Builder, the Architect and other Consultants arrange for the commissioning of all furnishing and equipment in the Building Works prior to practical completion of the Building Works under the Building Contract and shall deliver to the Client all operation and maintenance manuals in relation to such commission that it receives from the Builder, the Architect or other Consultants.

8.2. During the defects liability period under the Building Contract, Milk Chocolate shall, take reasonable steps to arrange for any necessary rectification works to be carried out by the Builder.

9. Fees

9.1. Payment by the Client:

(a) The Client must pay Milk Chocolate the Fee set out in item 3 of the Schedule in accordance with the Formal Instrument of Agreement, or as otherwise agreed between the Parties.

9.2. Timing of payment 

The Client shall pay Milk Chocolate the Fees as specified in Item 3 of the Schedule, within 3 days of submission of an invoice by Milk Chocolate to the Client. For the avoidance of doubt, the Client shall pay the full amount owing in respect of each invoice without set-off or deduction. 

 9.3. Interest on overdue payment 

The Client agrees that in addition to all other rights and remedies of Milk Chocolate, if the Client fails to pay all monies as when due, Milk Chocolate shall be entitled to recover interest on the outstanding amounts, at the rate equal to the Cash Rate Target set by the Reserve Bank of Australia, plus 2% per annum calculated daily and compounded monthly. 

10. Milk Chocolate’s Obligations and Rights

10.1. Milk Chocolate shall perform the Project Services in a professional manner using reasonable skill, care and diligence.

11. Client’s Obligations and Rights

11.1. The Client warrants that they appoint Milk Chocolate as their agent and authorise Milk Chocolate to take any reasonable steps on behalf of the Client as required for the performance of the Project Services, including but not limited to in its dealings with the relevant authorities in relation to the Building Works, and as otherwise contemplated by this Agreement. 

11.2. The Client shall provide clear and concise instructions to Milk Chocolate within a reasonable period of time. 

11.3. The Client shall, at its own cost, and as soon as practicable make available to Milk Chocolate all information, documents and other particulars that Milk Chocolate requires in order to perform its obligations under this Agreement. 

11.4. The Client shall act reasonably and in good faith in all dealings with Milk Chocolate.

11.5. The Client shall cooperate with Milk Chocolate and shall not interfere with, or obstruct the proper performance of the Project Services. 

11.6. The Client acknowledges and agrees that, while Milk Chocolate is authorised to act on their behalf, the Client is solely responsible for the payment of all third party costs incurred by Milk Chocolate in the course of the provision of the Project Services. 

12. Intellectual Property Rights

12.1 As between the Parties: 

(a) Milk Chocolate owns all Intellectual Property Rights in Milk Chocolate’s Materials; and 

(b) the Client owns all Intellectual Property Rights in the Client’s Materials,

and nothing in this Agreement constitutes a transfer or assignment of any Intellectual Property Rights in Milk Chocolate’s Materials or the Client’s Materials.

12.2 As between the Parties, ownership of all Intellectual Property Rights in any New Materials or Improvements will at all times vest, or remain vested, in Milk Chocolate upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials and/or Improvements do not automatically vest in Milk Chocolate, the Client agrees to do all acts necessary or desirable to assure Milk Chocolate’s title to such rights.

12.3 Milk Chocolate grants the Client a non-exclusive, revocable, worldwide and non-transferable right and licence, for the duration of the term of this Agreement, to use Milk Chocolate’s Materials that Milk Chocolate provide to the Client and the New Materials and Improvements, solely for the purposes for which they were developed and for the Client’s use and enjoyment of the Project Services, as contemplated by this Agreement.

12.4 If the Client has any moral rights (as defined in the in the Copyright Act 1968 (Cth)) in any material provided, used or prepared in connection with this Agreement, the Client agrees to consent to Milk Chocolate’s use or infringement of those moral rights.

13. Termination

13.1 Either Party OR the Contractor may terminate this Agreement or any relevant Order at any time by giving 30 days’ notice in writing to the other Party OR the Owner.

13.2 This Agreement will terminate immediately upon written notice by:

(a) the Contractor, if:

(1) the Owner (or any of its Personnel) breach any material provision of this Agreement and that breach has not been remedied within 10 Business Days of being notified by the Contractor;

(2) the Owner fails to provide the Contractor with clear or timely instructions or information to enable the Contractor to provide the Services;

(3) for any other reason outside the Contractor’s control which has the effect of compromising the Contractor’s ability to provide the Services; or

(4) the Owner is unable to pay its debts as they fall due; and

(b) the Owner, if the Contractor:

(1) is in breach of a material term of this Agreement, and that breach has not been remedied within 10 Business Days of being notified by the Owner; or

(2) is unable to pay its debts as they fall due.

13.3 Upon expiry or termination of this Agreement:

(a) the Contractor will immediately cease providing the Services;

(b) the Owner agrees that any payments made by the Owner to the Contractor are not refundable to the Owner, and the Owner is to pay for all Services provided prior to termination, including Services in relation to which a Payment Claim has not yet been issued to the Owner, and all other amounts due and payable under this Agreement;

(c) by the Contractor pursuant to clauses 13.2(a)(1), (2) or (4) or the Owner, pursuant to clause 13.1, the Owner also agrees to pay the Contractor its additional costs arising from, or in connection with, such termination; and

(d) the Owner agrees to immediately return to the Contractor (where possible), or delete or destroy (where not possible to return), any of the Contractor’s property (including any of its Confidential Information, the Contractor’s Materials, New Materials and Improvements and any of the Contractor’s Intellectual Property).

13.4 The Contractor will retain the Owner’s documents (including copies) as required by law or regulatory requirements. The Owner’s express or implied agreement to this Agreement constitutes its authority for the Contractor to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

13.5 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

13.6 This clause 13 will survive the termination or expiry of this Agreement.

14. Insurance

14.1. Milk Chocolate shall effect and maintain for the duration of the term of this Agreement or as otherwise required by law:

(a) a professional indemnity insurance policy; and

(b) a public liability insurance policy,

and shall provide certificates of currency within a reasonable period of time following a request from the Client for proof of such insurance policies.

15. Limitation of Liability 

15.1. Despite anything to the contrary, to the maximum extent permitted by law, neither Party will be liable to the other Party for any Consequential Loss. 

15.2. Despite anything to the contrary, to the maximum extent permitted by law, Milk Chocolate will have no liability for any Liability, and the Client waives and releases Milk Chocolate from any such Liability, caused or contributed to by, arising from or in connection with:

(a) the Client’s, the Consultants’, or their respective personnel’s, acts or omissions;

(b) any use or application of, or reliance on, the Project Services by a person or entity other than the Client, or other than as reasonably contemplated by this Agreement;

(c) any works, services, goods, materials or items which do not form part of the Project Services (as expressed in this Agreement), or which have not been provided by Milk Chocolate;

(d) any third parties or any goods and services provided by third parties, including customers, end-users, suppliers, transportation or logistics providers or other subcontractors which the provision of the Project Services may be contingent on, or impacted by;

(e) the Project Services being unavailable, or any delay in Milk Chocolate performing the Project Services to the Client, for whatever reason; 

(f) any contract the Client has with a Consultant (including the Building Contract); and/or

(g) any event outside of Milk Chocolate’s reasonable control.

15.3. Despite anything to the contrary, to the maximum extent permitted by law:

(a) each Party’s liability for any Liability will be reduced proportionately to reflect the extent to which the other Party may have caused or contributed to the relevant Liability; and

(b) Milk Chocolate’s aggregate liability for any Liability arising from or in connection with this Agreement shall be limited to Milk Chocolate reperforming the Project Services the subject of the Liability to the Client or, in Milk Chocolate’s sole discretion, to Milk Chocolate repaying the Client the amount of the Project Fees paid by the Client to Milk Chocolate in respect of the relevant Liability, and in any event, Milk Chocolate’s aggregate liability for all Liabilities arising from or in connection with this Agreement shall not exceed $500.

16 Australian Consumer Law

16.1 Certain legislation, including the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time (ACL), and similar consumer protection laws and regulations, may confer the Client with rights, warranties, guarantees and remedies relating to the provision of the Project Services by Milk Chocolate to the Client which cannot be excluded, restricted or modified (Statutory Rights).

16.2 If the ACL applies to the Client as a consumer, nothing in this Agreement excludes the Client’s Statutory Rights as a consumer under the ACL. The Client agrees that Milk Chocolate’s Liability for the Services provided to an entity defined as a consumer under the ACL is governed solely by the ACL and this Agreement.

16.3 Subject to the Client’s Statutory Rights, Milk Chocolate excludes all express and implied warranties, and all material, work and services (including the Project Services) are provided to the Client without warranties of any kind, either express or implied, whether in statute, at Law or on any other basis.

17. Force Majeure

If a Party is prevented from or delayed in performing an obligation by a Force Majeure, and provided the Party takes reasonable steps to mitigate or remove the Force Majeure and its effects (where possible), then the obligation is suspended during, but for no longer than, the period the Force Majeure continues and any further period that is reasonable in the circumstances.

18. Confidentiality

18.1 Each Receiving Party agrees: 

(a) not to disclose the Confidential Information of the Disclosing Party to any third party;

(b) to use all reasonable endeavours to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure; and 

(c) to only use the Confidential Information of the Disclosing Party for the purposes for which it was disclosed or provided by the Disclosing Party, and not for any other purpose.

18.2 The obligations in clause 18.1 do not apply to Confidential Information that:  

(a) is required to be disclosed in order for the Parties to comply with their obligations under this Agreement;

(b) is authorised to be disclosed by the Disclosing Party;

(c) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or

(d) must be disclosed by Law or by a regulatory authority, including under subpoena.

18.3 Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 18.4 A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 18.

19. General

19.1. Each provision of this Agreement which, by its nature, including any indemnities, shall survive the expiry or termination of this Agreement.

19.2. Milk Chocolate may only assign or deal with the whole or any part of its rights and obligations under this Agreement with the prior written consent of the Client, such consent not to be unreasonably withheld.

19.3. This Agreement is not intended to create a partnership, joint venture or employment relationship between the Parties.

19.4. The covenants, provisions, terms and Agreements contained herein expressly or by statutory implication cover and comprise the whole of the Agreement between the Parties and the Parties expressly agree and declare that no further or other covenants, agreements, provisions or terms shall be deemed to be implied herein or to arise between the Parties by way of collateral of other Agreement by reason of any promise, representation, warranty or undertaking given or made by either party to the other and such implication or collateral or other Agreement is hereby negatived.

19.5 If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

19.6 The Client agrees that Milk Chocolate may advertise or publicise the broad nature of our provision of the Project Services provided to the Client, including on the Website or in its promotional material.

19.7 This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

19.8 This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

19.9 Each Party shall promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

19.10 A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

19.11 This Agreement may be executed in any number of counterparts that together will form one instrument.

19.12 This Agreement may only be amended by written instrument executed by the Parties.