TERMS AND CONDITIONS
Restore 45/5 Group Fitness Program
These Restore 45/5 Group Fitness Program Terms and Conditions (Terms) govern the terms on which BZ Medical Pty Ltd ACN 619 725 843 as trustee for the IMS Trust ABN 23 239 964 432 trading as Evolution Pain Management Clinic (our, us and we) agrees to provide the Restore 45/5 Group Fitness Program (as defined below) to you, and forms a binding contractual agreement between us and you.
These Terms constitute the entire and only agreement between us and you and supersedes all prior agreements, conduct, representations and understandings.
Please carefully read these Terms before signing up and enrolling in a Restore 45/5 Group Fitness Program or otherwise accessing the membership portal. By signing up to a Restore 45/5 Group Fitness Program on the Website (as defined below) or by agreeing to participate in a Restore 45/5 Group Fitness Program by other methods accepted by us, or by participating generally in the Restore 45/5 Group Fitness Program, you agree to be automatically bound by these Terms.
If you do not agree to be bound by these Terms, you must not access the membership portal or otherwise participate in the Restore 45/5 Group Fitness Program. These Terms may be updated by us from time to time, and the updated Terms will apply from the date they are published on the Website (or otherwise provided to you). Each time you participate in the Restore 45/5 Group Fitness Program or otherwise use our Website you should revisit these Terms.
Definitions & Interpretation
Definitions
In these Terms, unless inconsistent with the context or subject matter the following terms have the corresponding definitions:
Account: a Member’s online account to use our Services.
Australian Consumer Law: the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).
Applicable Laws: any applicable laws (including orders, by-laws and regulations) in the jurisdiction in which you and any Member you are interacting with are located or which in any way govern or affect your use of the Services.
Loss: any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).
Restore 45/5 Group Fitness Program: the restore 45/5 group fitness program that we supply, as described on the Website.
Services: any services we provide to you, including the Website, and the supply of the Restore 45/5 Group Fitness Program.
Session: has the meaning given to it under clause 4.1.
State: Victoria, Australia.
Member: means any person who is a member of the Restore 45/5 Group Fitness Program.
Website: www.evolutionpainmanagement.com.au and its related services, subdomains, products, websites, tools and applications.
you and your: a Member.
Interpretation
In these Terms the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:
Headings and subheadings are for convenience only and do not affect the interpretation of these Terms.
References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, these Terms.
References to parties are references to the parties to these Terms.
References to a party to any agreement or document include that party’s permitted assignees and successors, including executors and administrators and legal representatives.
Words denoting the singular include the plural and words denoting the plural include the singular.
Words denoting any gender include all genders.
The word ‘person’ includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any government agency.
A reference to a body (other than a party to these Terms), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.
A reference to any agreement or document (including these Terms) includes any amendments to or replacements of that document.
A reference to a law includes:
legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
any constitutional provision, treaty or decree;
any judgment;
any rule or principle of common law or equity,
and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.
Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.
Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.
No provision of these Terms will be construed adversely to a party because that party was responsible for the preparation of that provision or these Terms.
If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.
A reference to time is a reference to time in the capital city of the State.
A reference to a day is a reference to a day in the capital city of the State.
A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.
If any act is required to be performed under these Terms by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.
If any act is required to be performed under these Terms on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.
A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.
Specifying anything in these Terms after the terms ‘include’, ‘including’, ‘includes’, ‘for example’, ‘such as’ or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.
Where these Terms is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.
These Terms includes all schedules, annexures, appendices, attachments and exhibits to it.
A reference to writing or written includes email.
Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
Restore 45/5 Group Fitness Program and subscription terms
We provide a Restore 45/5 Group Fitness Program which you may enrol in through the Website, subject to you complying with these Terms. The information and details of the Restore 45/5 Group Fitness Program including the number of Sessions you will be able to participate in each month as part of your membership will be as displayed on the Website (or otherwise notified by us to you) at the time you submit your sign up.
You may sign up for the Restore 45/5 Group Fitness Program either online or by other means approved by us from time to time. Whether you are signing up on the Website or in writing or verbally by phone, these Terms will apply to you.
Enrolment in a Restore 45/5 Group Fitness Program is on a monthly subscription basis and will continue until terminated in accordance with these Terms. The details of the subscription plans and associated billing cycles will be as stated on the Website at the time you sign up. In order to avoid interruption to your access to the Restore 45/5 Group Fitness Program, unless you cancel your subscription before the end of the then current billing cycle, your subscription will automatically renew for successive periods equivalent to the initial term and you authorise us to charge you the fees for the following billing cycle.
Signing up for the Restore 45/5 Group Fitness Program with us is an offer by you to subscribe for the Restore 45/5 Group Fitness Program for the monthly price specified at the time you sign up. All registrations are subject to availability. Your enrolment will not be confirmed until we have provided written notice of such. You may not cancel your enrolment in a Restore 45/5 Group Fitness Program other than as expressly provided for in these Terms.
In the event that you sign up for a Restore 45/5 Group Fitness Program on behalf of a third party, you represent and warrant that you have made that third party aware of these Terms and you acknowledge and agree that actions of that third party shall also be attributed to you for the purposes of these Terms.
In the event that a third party signs up for a Restore 45/5 Group Fitness Program on your behalf, by attending any Restore 45/5 Group Fitness Program or using the Services you are taken to have agreed to be bound by these Terms, regardless of whether you were provided with notice of them.
You must be able to form legally binding contracts under Applicable Laws to register for the Restore 45/5 Group Fitness Program.
Restore 45/5 Group Fitness Program prices & payment terms
The fees payable for the Restore 45/5 Group Fitness Program and the due dates of payment are as set out on the Website at the time you sign up. We reserve the right to modify the fees or terminate the Restore 45/5 Group Fitness Program at any time. If you have already subscribed to the Restore 45/5 Group Fitness Program, we will provide you with at least 30 days’ notice prior to increasing any fees.
All fees will be payable in the manner as specified on the Website at the time you sign up for enrolment including by way of Stripe or Paypal, and you must follow the prompts on the Website to submit the details of the selected payment method (Debit Account). By subscribing to the Restore 45/5 Group Fitness Program you authorise us to charge your Debit Account immediately.
You provide your consent to the relevant third party payment processor storing your Debit Account details and for us to bill your Debit Account (through the third party payment processor) at the time the fees become payable (including on renewal of the subscription), to avoid interruptions to your access to the Restore 45/5 Group Fitness Program.
You must ensure that the Debit Account details are up to date at all times and you must notify us in the event that the details are no longer current, and provide replacement details (including updating those details with the relevant third party processor). You irrevocably authorise us to deduct all other fees and charges payable by you to us under these Terms from your nominated Debit Account (through the third party payment processor). You warrant that you are the owner or have the right to use any Debit Account details provided to us. Default charges will apply in the event that you stop the authority to charge the Debit Account without our agreement. We may also charge you an administrative fee in the event that there are insufficient funds in the Debit Account at the time we attempt to debit it.
Our payment processor may charge you a fee depending on the payment method used by you (for example, payments made by credit card may attract a small surcharge). You agree to pay such fees at the same time as you make payment to us, even if such fees are not explicitly disclosed on the Website or otherwise.
In our sole discretion, we may offer free or discounted pricing for the Restore 45/5 Group Fitness Program. The terms of such use and any limitations will be as specified on the Website. If we offer a trial program, once the terms of that trial program have expired you agree that our normal billing rates shall apply.
You acknowledge and agree that you are solely responsible for ensuring that you have read and understood any applicable third party terms and conditions when using the Website. We will not be liable for any loss or damage suffered by you in connection with such third party terms, regardless of whether we have brought them to your attention or not. You are solely responsible for obtaining a copy of and reviewing such third party terms.
We are not a party to any transaction between you and a third party. For example, if you incur a debt to a third party payment provider in connection with a subscription through the Website, you are solely liable for that debt.
You authorise us, directly or through third parties, to make any inquiries we consider necessary to help verify or check your identity or prevent fraud.
Prices shown on the Website are in Australian Dollars (AUD) and exclude GST, unless otherwise stated. To the extent that any supply made under on in connection with these Terms is a taxably supply (under applicable laws) then, unless the amount expressly includes GST you agree to pay the amount stated on the Website plus the GST amount as indicated. Prices are subject to change without notice. You must pay all fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to these Terms.
Except to the extent set out in these Terms or otherwise as permitted by law, no refunds will be provided.
Restore 45/5 Group Fitness Program sessions
Enrolment in the Restore 45/5 Group Fitness Program entitles you to participate in our scheduled group fitness sessions (Sessions). The number of Sessions you are entitled to participate in each month will depend on the subscription type which you have signed up for. Any unused Sessions in any month will not roll over to the next month, and instead will expire if unused at the end of the current month.
Once you have enrolled in the Restore 45/5 Group Fitness Program, we will provide you with an Account to access the membership portal on the Website where you will be able to view the group scheduling timetable and register for any Sessions that have availability. All Sessions must pre-booked as they are limited in number. We may change the group scheduling timetable from time to time in our discretion without notice.
Information in relation to the Sessions will be available on the Website at the time you book in for the session. Please arrive at least five minutes prior to the starting time. If you arrive late, you may be denied entry in our discretion and you will be deemed to have failed to attend.
If you arrive more than 15 minutes late for a Session then you may be required to forfeit your right to participate in that Session (at our discretion). If however we permit you to enter the Session, the Session will continue until its allocated end time and will not be extended on the basis that you arrived late. Although the Session may be shorter, this will be deemed a full Session.
If you fail to attend a Session that you have pre-booked, or you arrive more than 15 minutes late (and we do not permit you to enter) then you will forfeit that Session and this will count towards your allocated monthly Sessions.
We reserve the right to reschedule Sessions where necessary. We will attempt to provide you with advance notice should your Session need to be rescheduled.
Account
In registering with us and setting up an Account (or otherwise submitting your details to us):
you must not use false or misleading information and must update your details should they change during the term;
you must not share your Account with others;
you must follow any password policies made available on the Website from time to time (for Accounts);
you are solely responsible for maintaining the confidentiality of your login information and you are liable for all activities that happen under your Account, even if you do not authorise such activities; and
you must notify us immediately if you become aware of any unauthorised use or access of your Account or other security breach.
If we enable you to connect to the Website with a third-party service (e.g. Facebook or Google+), you hereby grant us permission to access, store, and use your information from that service as permitted by that service and as may be described in our privacy policy.
Obligations
In attending any Sessions and in participating in the Restore 45/5 Group Fitness Program, you must:
keep us informed of any medical, health or personal circumstances that may interfere with the Sessions;
be honest and truthful in our relationship with you so that we can work together;
be respectful to us and to other participants (be mindful that in group sessions each participant should have equal time to ask questions and receive feedback);
not attempt to sell products to anyone;
not attempt to collect personal information about other users of the Restore 45/5 Group Fitness Program for commercial or unlawful purposes;
not infringe on others privacy rights;
not contribute or otherwise act in a manner that:
is unlawful, fraudulent, misleading, deceitful, threatening, abusive, libellous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, abusive, offensive, inflammatory or otherwise objectionable;
harasses, degrades, intimidates or is hateful to an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; or
impersonates any person or entity.
Coaches
Unfortunately, due to the nature of our Services, we are unable to guarantee any specific coach will be available to provide the Restore 45/5 Group Fitness Program. We may in our discretion substitute the coaches providing the Restore 45/5 Group Fitness Program and Sessions at any time in our discretion and without notice.
Disclaimer
We provide our Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. You rely on the Services and any information or guidance provided by us throughout the provision of the Services at your own risk.
You acknowledge and agree that you have voluntarily chosen to participate in the Restore 45/5 Group Fitness Program including any Sessions or other exercise activities and that at all times you may choose to end your participation. You understand that by providing this informed consent you are assuming full responsibility for your participation in the Restore 45/5 Group Fitness Program including the Sessions.
You understand that there are inherent and obvious risks in taking part in such activities and agree to participate in these activities at your own risk. You understand that participation in the Restore 45/5 Group Fitness Program is potentially hazardous to your health. In choosing to participate in activities as part of the Restore 45/5 Group Fitness Program you fully accept and assume all risks whether before, during or upon completion of the Restore 45/5 Group Fitness Program. This includes without limitation, risk of physical injury, mental psychosis, emotional distress, trauma, death, loss, accident, and injury due to physical and mental exercises; contact with other participants, contact with animals or insects, contact with construction materials, contact with vehicles, contact with tents or buildings and appliances, contact with kitchen or electrical equipment; the natural environment including sticks and forests and uneven rocky terrain; and the effects of weather including wind and lightning and extreme temperature or conditions.
You acknowledge that you understand that the Restore 45/5 Group Fitness Program and activities may be physically and emotionally stressful and you are participating in them voluntarily and that it is your sole responsibility to refrain from participating in any activities, which may be stressful or harmful to your physical or emotional health or well-being
We provide support, guidance and tools to assist you to set goals, determine priorities and achieve results, but any decision that you make, and the consequences that flow from such decisions, are your sole responsibility. Your success depends on many factors, including your dedication, participation, desire, and motivation. You are 100% responsible for your progress and results from the Restore 45/5 Group Fitness Program.
Nothing on the Website, or the Services is a promise or guarantee of results. We cannot and do not make any guarantees that attendance at the Sessions and/or the Restore 45/5 Group Fitness Program will get results. Any information given (including case studies) is purely based on experience and is for illustrative purposes only. You acknowledge and understand that because of the nature and extent of the Restore 45/5 Group Fitness Program, the results experienced by each participant may significantly vary.
Any testimonials and examples within any marketing materials are not to be taken as a guarantee that you will achieve the same or similar results.
You acknowledge and agree that whilst every effort is taken to ensure the Website is accurate, we make no representations and give no guarantees or warranties about the currency, suitability, reliability, availability, timeliness and/or accuracy of the Program Content and the Website for any purpose.
The Restore 45/5 Group Fitness Program and your participation in it is not intended to establish a doctor/psychologist/psychiatrist-patient relationship between us and you, nor is it intended to replace the services of a health care professional. The Website and Restore 45/5 Group Fitness Program is not a clinical tool and should not be relied on as a substitute for any professional medical, psychological or health advice, diagnosis or treatment. We cannot and will not, assume the role of your doctor, psychologist, psychiatrist or other health professional.
If you think you may be suffering from any medical condition, you should seek immediate medical attention from an appropriately qualified medical practitioner. Any mental, emotional or medical issues or concerns should be addressed with a qualified physician or licensed psychotherapist or physiologist. You understand that if you have any mental, emotional or medical issues or concerns you will communicate it to the coach and seek appropriate professional medical help.
You should not rely on the Restore 45/5 Group Fitness Program in making medical, health-related or any other decisions of any kind.
You should always speak with your doctor or other healthcare professional before adopting any treatment for a health problem or before using our Restore 45/5 Group Fitness Program or relying on any information on the Website.
You acknowledge that you are solely responsible for following, or not following, or making an assessment of any advice and/or using the Restore 45/5 Group Fitness Program that we provide or recommend via the Website and that we are not responsible for any Loss that you may suffer as a result of use of the Website, or Services.
This disclaimer applies to the fullest extent permitted by law and shall survive any termination or expiration of these Terms or your use of this Website.
Termination and refunds
You may terminate these Terms and cancel your subscription to the Restore 45/5 Group Fitness Program at any time without cause by giving us written notice or by following the prompts on the Website. Termination will take effect at the end of the relevant month in which you give your notice and you will continue to have access to the Restore 45/5 Group Fitness Program until the end of that month. Please note that to the extent permitted by law, no refund or partial refund will be provided to you, in such circumstances.
You may also terminate these Terms immediately if we are in breach of any term of these Terms and we fail to rectify that breach upon being given 30 days’ written notice to do so. In such circumstances we will offer a pro-rata refund for any part of the billing cycle that remains (that has been prepaid).
If you need assistance in terminating or require further information regarding billing cycles please contact us.
We reserve the right to terminate these Terms and cancel your subscription to the Restore 45/5 Group Fitness Program at any time, immediately on giving notice to you where:
you breach any term contained in these Terms and either that breach is irremediable or the breach is remediable and you fail to rectify that breach within 7 days of us giving you notice to do so;
you fail to pay any fees to us when due; or
you act in such a way, that we believe is inappropriate or unlawful, such as threatening or harassing other participants, inappropriate behaviour towards staff or failure to follow proper procedures for safety.
Where we terminate under clause 9.4 no refund will be provided in whole or part.
Effect of termination
On termination or expiry of this agreement:
you must pay to us any sums that are outstanding and to be accounted for under these Terms;
unless otherwise specified in accordance with these Terms there will be no refund for any fees paid.
Limitation of liability
Subject to the other terms of this clause, we exclude all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Services that are not expressly set out in these Terms to the maximum extent permitted by law.
Subject to the other terms of this clause, our maximum aggregate liability to you for any Loss or damage or injury arising out of or in connection with these Terms, including any breach by us of these Terms however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual amounts paid by you to us under these Terms in the one-month period preceding the matter or event giving rise to the claim.
Nothing in these Terms is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of the Australian Consumer Law, or the exercise of a right conferred by such a provision, or any liability of ours in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of services, to the extent that the Australian Consumer Law applies to the Services.
If we are liable to you in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law that cannot be excluded, our total liability to you for that failure is limited to, at our option to the resupply of the Services or the cost of resupply.
The limitation and exclusion of liability in this clause applies whether the liability claim is based on breach of contract, under a warranty or an indemnity, tort (including negligence), under statute, in equity or otherwise.
Without limitation to the other terms of this clause, we exclude any liability to you, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with these Terms.
Notwithstanding anything else in this clause, our liability will be reduced to the extent the loss or damage is caused by or contributed to by you.
Where you are or may be entitled to recover from a third party any sum in respect of any matter or event that could give rise to a claim under these Terms, you must:
use your best endeavours to recover that sum before making the claim;
keep us at all times fully and promptly informed of the conduct of such recovery; and
reduce the amount of the claim to the extent that sums are recovered.
Indemnity
Except to the extent caused by our breach of these Terms, you indemnify us against, and hold us harmless from, any Losses (including any direct, indirect, special or consequential Losses) and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by us arising out of or in connection with:
your breach or negligent performance or non-performance of these Terms (including if you fail to pay any fees on time);
any claim made against us or you by a third party arising out of or in connection with the provision of the Restore 45/5 Group Fitness Program, the Services and/or these Terms to the extent that such claim arises out of your breach, negligent performance or failure or delay in performance of these Terms or your acts or omissions;
any reliance by you or a third party on the Restore 45/5 Group Fitness Program or any advice, information or deliverable provided in connection with the provision of the Restore 45/5 Group Fitness Program, the Services and/or these Terms;
the enforcement of these Terms; and
any negligent act, omission or wilful misconduct of yours.
You must make payments under this clause:
in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
It is not necessary for us to incur expense or make payment before enforcing a right of indemnity under this clause.
The indemnities in this clause:
are continuing obligations of yours, independent from your other obligations under these Terms and survive termination or expiry of these Terms; and
are absolute and unconditional and unaffected by anything which otherwise might have the effect of prejudicing, releasing, discharging or affecting your liability.
Reviews and other submissions
If you submit a review or other material to us, or if you tag us in any of your own material (including any social media post on your personal account) you grant us a non-exclusive, royalty-free, perpetual, irrevocable and fully sub-licensable right to use, reproduce, modify, adapt, publish, translate and create derivative works from, distribute and display such content throughout the world in any media.
You represent and warrant that you own or otherwise control all the rights to that material and that at the date of submissions:
the material is accurate; and
the material does not breach any Applicable Laws.
General provisions
No Waiver
No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with these Terms unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
Assignment, Novation and Other Dealings
We may assign or novate any rights that arise out of or under these Terms without your consent and without notice to you.
Any rights of yours that arise out of or under these Terms are not assignable or capable of novation by you without our prior written consent, which may be withheld in its discretion.
Severability
If the whole or any part of a provision of these Terms is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.
No Merger
On completion or termination of these Terms, the rights and obligations of the parties set out in these Terms will not merge and any provision that has not been fulfilled remains in force.
Further Action
Each party must do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to give full effect to these Terms and the transactions contemplated by these Terms.
Time of the Essence
Time is of the essence in these Terms in respect of any date or time period and any obligation to pay money.
Relationship of the Parties
Nothing in these Terms gives a party authority to bind any other party in any way.
Nothing in these Terms imposes any fiduciary duties on a party in relation to any other party.
Remedies Cumulative
Except as provided in these Terms and permitted by law, the rights, powers and remedies provided in these Terms are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of these Terms.
Entire agreement
These Terms state all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
No Reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in these Terms.
Governing Law and Jurisdiction
These Terms are governed by the law in force in the State.
Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with these Terms.
Dispute resolution
If a dispute arises in connection with these Terms then a party may only deal with that dispute in the manner set out in this clause.
A party to a dispute which arises in connection with these Terms may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.
Within 7 days after a notice is given under the above clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.
If despite the parties’ best efforts a dispute not resolved within 7 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Resolution Institute Mediation Rules. The mediation will be conducted by a mediator to be appointed by agreement of the parties or, if the parties are unable to agree on a mediator within 7 days of a party making a written nomination to the other party, to be appointed by the Chair (or his or her designated representative) of Resolution Institute (ACN 008 651 232) at the request of a party.
If the dispute is not resolved within 30 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute.
The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.​