Bloody Long Walk Brisbane – Photographer

THIS AGREEMENT dated as per application for Job via Wingman.com.au Portal.
BETWEEN
The Trustee for Project Nine Event Group Unit Trust. (ABN 93 547 571 766) trading as The Shift Corp Unit 1/94 Taren Point Road, Taren Point 2229 (THE SHIFT.)
And
Job Applicant (Contractor)

RECITALS

1. The Shift is a supplier of event management services.
2. The Shift. has agreed to use the Services of the Contractor and the Contractor has agreed to provide those Services on the terms and conditions set out in this Agreement.

OPERATIVE PART

1. Definitions and Interpretation
   This agreement is governed by the law in the State of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts of that State.
   In the interpretation of this Agreement
   1. References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
   2. Words denoting the singular include the plural and vice versa; words denoting individuals or persons include bodies corporate and vice versa; references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
   3. Grammatical forms of defined words or phrases have corresponding meanings;
   4. Parties must perform their obligations on the dates and times fixed by reference to the standard time for the location of the Event, or if the location of the Event is not fixed, by reference to the capital city of New South Wales;
   5. Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
   6. If anything which by its nature needs to be done on a business day, and the day on or by which it is to be done falls on a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next business day;
   7. References to a party are intended to bind their executors, administrators and permitted transferees; and
      Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.
2. Services
   1. The engagement of the Contractor commences on the date specified at Item 1 of Schedule A and continues until the date specified at Item 2 of Schedule A, or until terminated in accordance with this Agreement.
   2. The Shift and the Contractor enter into the arrangements on the terms set out herein for the provision by the Contractor of Services to The Shift as described in Item 4 of Schedule A.
   3. The Contractor warrants the provision of the Services will not breach the terms of any other binding arrangement.
   4. The Contractor will comply with all reasonable time limits imposed by The Shift for the performance of the Services.
   5. The Contractor will provide the Services in a professional manner to the required standards and be liable for rectification of any work not up to the required standards.
   6. The Contractor must comply with the policies and procedures adopted by The Shift in the conduct of its business.
   7. The Contractor will act with good faith in all of the Contractor’s dealings with The Shift and whilst performing the Services, the Contractor will not intentionally do anything which is harmful to The Shift
3. Equipment
   The Contractor will provide its own equipment in the provision of the Services. Any additional equipment deemed necessary by The Shift will be provided by, and remain the property of, The Shift.
4. Fees and expenses
   1. The Shift agrees to pay to the Contractor the fee specified in Item 3 of Schedule A.
   2. At the end of each period specified in Item 6 of Schedule A the Contractor will submit an invoice, in approved format, for the work completed by the Contractor in the amount agreed or calculated at the rate agreed from time to time and payment will be made within seven days thereof.
   3. The total amount of the invoices submitted by the Contractor to The Shift pursuant to Clause 4(b) above shall not exceed the fee specified in Item 3 of Schedule A, unless agreed otherwise between the parties in writing.
   4. The Shift agrees to reimburse the Contractor for all expenses that are reasonably and necessarily incurred in the performance of the work and that have been consented to by The Shift in writing prior to their purchase.
5. Statutory obligations, insurances and registrations
   1. The Contractor will comply with its statutory obligations in respect of the Services, including but not limited to compliance with:
      1. any applicable industrial awards and agreements;
      2. minimum terms and conditions of employment including those in respect of long service leave, annual leave, parental leave and sick leave;
      3. applicable industrial relations and anti-discrimination legislation; and
      4. occupational health and safety and workers compensation legislation.
   2. The Contractor is responsible for obtaining and maintaining all insurances deemed necessary for their services to ensure they are personally covered, such as: Workers Compensation Insurance, Professional Indemnity, Public Liability Insurance.
      It is the responsibility of the Contractor to gain the right advice for the cover required.
   3. The Contractor acknowledges it is solely responsible for all remuneration, expenses, taxes, leave entitlements, superannuation, workers’ compensation and other insurances in respect of it or its employees.
   4. The Contractor will obtain and maintain until the termination of this Agreement any licences or registrations required for the Contractor or its employees to perform the Services.
6. Confidential information
   1. The Contractor shall not at any time or for any reason, whether during the term of this contract of after its termination divulge any confidential information to any third party and they hereby indemnify The Shift and any related entity against any loss or damage they may suffer as a result of the breach of confidentiality.
   2. The Contractor shall cause any person assisting the Contractor to sign an acknowledgement of their obligations to observe the confidentiality to the same extent as the Contractor.
7. Intellectual property
   1. The Contractor acknowledges that the intellectual property in all works of the Contractor or its servants or agents in the course of the fulfilment of the Contractor’s obligations hereunder are the absolute property of The Shift and that the Contractor shall do all things and sign all documents that may be necessary to vest such intellectual property in The Shift.
   2. The Contractor irrevocably appoints The Shift to be the Contractor’s attorney to do all things and sign all documents that may be necessary to vest such intellectual property in The Shift.
8. Relationship of parties
   The Contractor’s relationship with The Shift. is that of independent Contractor. Neither the Contractor nor The Shift has (nor may it represent that it has) any power, right or authority to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other or in the other’s name. Nothing stated in this Agreement must be construed as constituting the Contractor and The Shift. as partners, or as creating the relationship of employer and employee, master and servant or principal and agent between the parties.
9. Indemnity
   1. The Contractor indemnifies The Shift from and against any costs, damages, loss or liability of any kind (including legal costs and disbursements in defending or settling the claim giving rise to same) however suffered or incurred by The Shift by virtue of the provision of the Services or any breach of this Agreement by the Contractor.
   2. The indemnity contained in clause 9(a) extends (without limiting the generality of the foregoing) to any costs, damages, loss or liability (including legal costs and disbursements in defending or settling the claim giving rise to the same) incurred by The Shift by virtue of any injury or disability suffered by any employee or sub-contractor of the Contractor, arising by whatever legal theory (whether statutory, tortious or otherwise).
10. Termination by notice
    Either party may terminate this Agreement by one month’s written notice to the other.
11. Termination without notice
    1. THE SHIFT. may immediately terminate this Agreement if the Contractor:
       1. fails to comply, in The Shift’s reasonable opinion, with The Shift.’s standards of Services, as set out in Item 7 of Schedule A;
       2. commits any serious or persistent breach of this Agreement which is in the reasonable opinion of The Shift incapable of rectification; or
       3. fails to remedy, to The Shift.’s reasonable satisfaction, a breach of any provision of this Agreement within one week of receiving a notice from The Shift identifying the breach and requiring the breach to be remedied; or
       4. becomes bankrupt or goes into liquidation or makes any assignment arrangement or composition with creditors of the Contractor on the happening of the event; or
       5. is subject to a finding of guilt for a criminal or civil offence, other than an offence which, in the reasonable opinion only of The Shift. does not affect the Contractor’s ability to perform their duties; or
       6. an employee in the performance of Services commits any act of misconduct, fraud or dishonesty; or
       7. the Contractor ceases business; or
       8. the Contractor, or a nominated employee of the Contractor for delivery of the Services, becomes of unsound mind.
    2. The Contractor may immediately terminate this Agreement by giving written notice to The Shift, if The Shift:
       1. commits any serious or persistent breach of this Agreement, which is in the reasonable opinion of the Contractor incapable of rectification; or
       2. commits any serious or persistent breach of this Agreement which The Shift. fails to remedy within one week after The Shift receives written notice from the Contractor of that breach; or
       3. is placed under some form of official management or insolvency administration.
    3. On termination of this Agreement, and after receipt of an appropriate invoice from the Contractor, The Shift will pay to the Contractor the amount of any fee and reimbursement of approved expenses owing pursuant to this Agreement, up to and including the date of termination. The Shift may set-off and deduct from any amount owed to the Contractor including payments made in advance against unfinished works that The Shift will require to be completed by others.
    4. The termination of this Agreement will not prejudice any rights or remedies already accrued to any party under, or in respect of any breach of this Agreement.
12. Delivery upon termination
    1. Upon termination of this Agreement, the Contractor must:
       1. immediately deliver to The Shift any hardware, software, plant or equipment owned by The Shiftn the possession of the Contractor and all documents, plans, lists, inventions, and intellectual property arising out of the work undertaken by the Contractor or any other person working for the Contractor for The Shift; and
       2. disclaim any association with the business of The Shift.
13. Post termination restraint
    The Contractor agrees that for a period of 12 months it will not directly or indirectly endeavour to entice away from The Shift or any of its related entities any person or organization who is a client, employee, customer or contractor of The Shift or any of its related entities.
14. Dispute resolution
    1. If a dispute arises out of or relates to this Agreement (including any dispute as to breach or termination of the agreement or as to any claim in tort, in equity or pursuant to any statute) neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.
    2. Notice specifying the nature of the dispute
       1. The party to this Agreement claiming that a dispute has arisen under or in relation to this Agreement must give written notice to the other party to this Agreement specifying the nature of the dispute.
       2. On receipt of the notice referred to in this clause by that party, both parties must endeavour to either resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, or determination or similar techniques agreed by them.
    3. Mediation
       1. If the Contractor andThe Shift. do not agree within seven days of receipt of the notice (or such further period as agreed in writing by them) as to:
          1. The dispute resolution technique and procedures to be adopted;
          2. The timetable for all steps in those procedures; and
          3. The selection and compensation of the independent person required for such technique,
             then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the State of New South Wales.
       2. The president of this professional association or the president’s nominee will select the mediator and determine the mediator’s remuneration.
    4. Proceedings
       If the mediation referred to above is not completed within four weeks of reference to a mediator either party may commence any court or arbitration proceedings relating to the dispute as they see fit.
    5. Associated costs
       The costs of the mediation will be borne equally by the parties.
15. Notices
    A communication required by this agreement, by a party to another, must be in writing and may be given to them by being:
    1. delivered personally; or
    2. posted to their address specified in this agreement, or as later notified by them, in which case it will be treated as having been received on the second business day after posting; or
    3. faxed to the facsimile number of the party with acknowledgment of receipt received electronically by the sender, when it will be treated as received on the day of sending; or
    4. sent by email to their email address, when it will be treated as received on that day.
16. Counterparts
    This agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the agreement will be the date on which it is executed by the last party.
17. Costs
    Each party will pay their own costs in relation to this agreement.

SCHEDULE A

The terms of this agreement are based on the details laid out in the Project Information section of the application for which this agreement is in relation too.

Pay, Hours of work, Location and additional are itemised in the job description on Wingman Platform.

THIS AGREEMENT dated as per application for Job via Wingman.com.au Portal.
BETWEEN
Australian Mitochondrial Disease Foundation Limited ABN 84 135 324 391 of Suite 804, Level 8/28 Foveaux St, Surry Hills NSW 2010 (The Mito Foundation)
And
Job Applicant (Contractor)

Background:

1. The Mito Foundation has engaged the Contractor to provide the Services.
2. The Contractor has agreed to provide Services to The Mito Foundation for the Fees subject to the terms and conditions contained in this agreement.

Operative provisions:

1. Schedules
   1. Each of the Schedules to this agreement form part of this agreement.
   2. Unless the context requires otherwise, Terms that are capitalised in this agreement have the meaning given to those terms in Schedule 1.
2. Conditions Precedent
   The Mito Foundation’s engagement of the Contractor is subject to and conditional on satisfaction of each of the following conditions, which are for the sole benefit of The Mito Foundation:
   1. the Contractor demonstrating to the satisfaction of The Mito Foundation that the Contractor is eligible to work and perform the Services in Australia, by the production to The Mito Foundation of documents to prove:
      (1) Australian citizenship;
      (2) a right to permanent residency in Australia; or
      (3) a valid temporary visa permitting the Contractor to work in Australia.
      The Contractor authorises The Mito Foundation to copy and retain copies of documents submitted by the Contractor to The Mito Foundation. If the Contractor’s eligibility to work and perform the Services changes during the Term, the Contractor must immediately inform The Mito Foundation. If the Contractor is or becomes ineligible to work in Australia, this agreement will at the option of The Mito Foundation, immediately cease from the date of such ineligibility;
   2. there being no restriction upon the Contractor’s ability to commence providing the Services immediately with The Mito Foundation under the terms and conditions specified in this agreement;
   3. the Contractor completing a full national criminal record check (the Contractor may also be required from time to time to complete a full national criminal record check during the Term and if the Contractor does not agree or the results of the check are not satisfactory, this agreement will at the option of The Mito Foundation, immediately cease);
   4. the Contractor completing a working with children check;
   5. the Contractor holding a valid first aid certificate (if required); and
   6. the Contractor obtaining an appropriate workers compensation insurance and / or personal accident and illness / sickness policy, providing The Mito Foundation with a true copy of the relevant certificate of currency for the applicable insurance policy, and evidence that all applicable insurance premiums payable by the Contractor, have been paid.
3. Term
   This agreement commences on the Commencement Date and continues until the Termination Date unless terminated earlier in accordance with this agreement.
4. Services
   1. The Contractor must provide the Services to The Mito Foundation on the Dates and at the Locations, in accordance with this agreement.
   2. In providing the Services the Contractor must:
      1. provide the Services in a professional manner to the standards specified by The Mito Foundation or its agents from time to time and be liable for rectification or re-provision of any Services that, in the reasonable opinion of The Mito Foundation or its agents, do not meet those standards;
      2. provide to The Mito Foundation or its agents any information that The Mito Foundation or its agents may request;
      3. comply with all directions of The Mito Foundation and its agents (however in the case of an inconsistency between the directions of The Mito Foundation and its agents, the directions of The Mito Foundation will prevail); and
      4. not cause any unreasonable or unnecessary disruption to the routines, procedures and responsibilities of The Mito Foundation, or cause any damage whatsoever to the reputation of The Mito Foundation.
   3. The Contractor will not be relieved from liability under this agreement for ensuring that the Services meet the requirements of The Mito Foundation, or its agents, as a result of:
      1. any payment made by The Mito Foundation to the Contractor on account of, or for the Services;
      2. any assistance provided by The Mito Foundation or its agents to the Contractor; and / or
      3. any review, acceptance or approval of the Services or procedures relating to the Services by The Mito Foundation or its agents.
5. Frequency of engagement to perform the Services
   1. Notwithstanding any other provision of this agreement, the Contractor must be engaged in providing the Services for at least eight (8) hours, or as otherwise required by the Mito Foundation, on each of the Dates.
   2. The Mito Foundation may, at its sole discretion and by written notice to the Contractor, remove any of the Dates set out in item 2 of Schedule 2, due to cancellation of the Services, listed on that Date. In those circumstances, the Services will not be required to be performed and no Fee will be payable to the Contractor.
6. Provision of Services by persons other than the Contractor
   1. Subject to clause 6(b), the Contractor may permit other persons to provide the
      Services, or parts of the Services, in the place of the Contractor, provided that the
      persons providing the Services:
      (1) have the same or equivalent qualifications as the Contractor;
      (2) have met the requirements of clause 2 of this agreement, to the satisfaction of
      the Mito Foundation;
      (3) comply with the obligations of the Contractor under this agreement; and
      (4) in relation to subclause 6(a)(3), execute a document in favour of The Mito
      Foundation, to the satisfaction of The Mito Foundation, reflecting the obligations
      of the Contractor under this agreement.
   2. The delegation of the Services may only be provided with the prior written consent of The Mito Foundation, but such consent will not be unreasonably withheld.
   3. The Contractor will be responsible for the work of any person who provides the Services in the place of the Contractor.
   4. The Contractor will be responsible for meeting the costs of any person that the Contractor permits to provide the Services, or parts of the Services, in the place of the Contractor.
7. Equipment
   1. The Contractor will provide any equipment specified by The Mito Foundation or its agents as being necessary to enable the Contractor to perform the Services in accordance with this agreement (other than the Supplied Resources).
   2. Any Supplied Resources will be provided by, and remain the property of, The Mito Foundation or its agents (as the case may be).
   3. The Contractor will use any Supplied Resources with due care and will be responsible for any loss of or damage to any Supplied Resources arising from the Contractor’s negligent use, misuse or abuse of the Supplied Resources or a default by the Contractor of his or her obligations under this agreement.
8. Fees, Taxes & Expenses
   1. If the Contractor provides the Services to The Mito Foundation (to the reasonable satisfaction of The Mito Foundation), The Mito Foundation shall pay the Fees to the Contractor.
   2. If on any Date, the Contractor is engaged in providing the Services for less than the hours, as required under 6(e), the Fee may be reduced proportionately.
   3. If:
      1. the Contractor considers that it is desirable or necessary for the Contractor to incur an expense in order for the Contractor to provide the Services pursuant to this agreement;
      2. prior to incurring an expense, the Contractor obtains the written consent of The Mito Foundation or its agents, prior to incurring that expense,

      The Mito Foundation and / or its agents (whichever is applicable) will reimburse the Contractor for that expense.

   4. The Contractor must invoice The Mito Foundation for the Services on a monthly basis.
   5. Each invoice must:
      1. be in Australian dollars and in the form of a Tax Invoice addressed to The Mito Foundation; and
      2. set out in a manner which enables The Mito Foundation to ascertain the Services to which the invoice relates and the amount payable in respect of those Services; and
      3. if reasonably requested by The Mito Foundation be accompanied by documentation verifying the provision of the Services.
   6. The Mito Foundation will pay a Tax Invoice issued by the Contractor in accordance with clause 8(e) within thirty (30) days after the date of receipt of the Tax Invoice.
   7. In the event that The Mito Foundation considers in good faith that a Tax Invoice exceeds the amount properly payable, The Mito Foundation will notify the Contractor of the amount in dispute and pay the undisputed amount in accordance with clause 8(f).
   8. For the avoidance of doubt, where a Tax Invoice is in dispute, the Contractor must continue to comply with the Contractor’s obligations under this agreement.
9. Intellectual Property Rights
   1. The Contractor warrants that the performance by the Contractor of obligations of the Contractor under this agreement will not infringe the Intellectual Property Rights of any person.
   2. Title to and all Intellectual Property Rights in all work arising directly or indirectly out of or in relation to the Services, vests in The Mito Foundation, free from all encumbrances. To the extent any Intellectual Property Rights in any work arising directly or indirectly out of or in relation to the Services vests in the Contractor, the Contractor agrees to assign the relevant Intellectual Property Rights to The Mito Foundation.
   3. The Contractor must indemnify and keep indemnified The Mito Foundation from andagainst all Claims by any person against The Mito Foundation where such loss or liability arises out of an infringement, or alleged infringement, of the Intellectual Property Rights of any person, which occurred by reason of the provision of the Services.
   4. The Contractor must pay to The Mito Foundation all sums required to be paid under the indemnity provided under this clause 9 within ten (10) Business Days of receipt of a written notice from The Mito Foundation requiring payment of those sums.
   5. The rights and obligations of each of the Parties under this clause will survive expiration or termination of this agreement.
10. Confidential Information
    1. The Contractor must treat as confidential all Confidential Information which comes into possession of the Contractor, pursuant to or as a result of or in the performance of this agreement, and may only use the Confidential Information to enable the Contractor to provide the Services under this agreement.
    2. The Contractor must not, without the written permission of The Mito Foundation, copy or cause to be copied or disclose the Confidential Information, including to a third party (other than its agents for the purpose of providing the Services), or otherwise use or exploit the Confidential Information without the prior written consent of The Mito Foundation which may be withheld or granted subject to conditions at the sole discretion of The Mito Foundation.
    3. The Contractor must immediately notify The Mito Foundation of any actual incident, or reasonable grounds for suspicion of any incident, where Confidential Information is or may be compromised, including where Confidential Information is or may be lost or subjected to unauthorised access, modification, use or disclosure or other misuse (Data Breach) and cooperate fully, at its own expense, with The Mito Foundation in connection with any action that The Mito Foundation may take in respect of such Data Breach.
    4. The obligations and commitments of the Contractor not to disclose Confidential Information shall not apply to:
       (1) Confidential Information which is at the time of disclosure or thereafter becomes part of the public domain through no act or omission by the Contractor;
       (2) Confidential Information which was otherwise lawfully in the possession of the Contractor, prior to disclosure, as shown by written records;
       (3) Confidential Information which is after the date of this agreement lawfully disclosed to the Contractor by a third party which did not acquire the Confidential Information under an obligation of confidentiality from or through The Mito Foundation; or
       
       (4) disclosure is required by law or a regulatory body (including a relevant stock exchange).
    5. The obligations of the Contractor under this clause shall survive the termination of this agreement.
11. Privacy
    1. The Contractor must:
       1. comply with all Privacy Laws in relation to Personal Information, whether or not the Contractor is bound by any one or more of the Privacy Laws;
       2. not do anything or omit to do anything which will cause The Mito Foundation or its agents to breach any Privacy Laws; and
       3. take all reasonable steps to ensure that the Personal Information is protected against any, misuse, loss, unauthorised access, modification or disclosure.
    2. The Contractor must provide all reasonable cooperation, assistance and information to The Mito Foundation and its agents as may be required from time to time to allow The Mito Foundation and its agents to comply with their obligations under the Privacy Laws.
    3. The Contractor must allow, for the purposes of verifying the Contractor’s compliance with the terms of this agreement, The Mito Foundation, its agents and/or their appointed representatives to inspect, audit and take copies of the records, information, documents, facilities and any processing activities relating to the Personal Information.
12. Insurance
    If requested to do so by The Mito Foundation in writing, the Contractor must, from the date of this agreement, arrange and maintain on terms acceptable to The Mito Foundation, until a date that is twelve (12) months after the expiry or termination of this agreement:
    1. a public liability policy of insurance to the value of at least ten million dollars ($10,000,000.00) per claim;
    2. professional indemnity insurance in a reasonable amount to cover the obligations of the Contractor under the agreement; and
    3. any other insurance required by law.
13. Warranties
    As at the date of this agreement, the Contractor gives the following warranties to The Mito Foundation:
    1. The Contractor acknowledges that the Contractor does not rely on any representation, warranty, condition or other conduct which may have been made by The Mito Foundation, its agents or any person purporting to act on behalf of The Mito Foundation or its agents in any antecedent negotiations leading to this agreement other than an express warranty contained in this agreement.
    2. The Contractor agrees, warrants and represents that:
       1. the obligations of the Contractor under this agreement will be performed in accordance with all applicable laws;
       2. no claim, lien, or action exists or is threatened against the Contractor that would interfere with the rights of The Mito Foundation under this agreement;
       3. the Contractor has the right to enter into this agreement, and the performance of this agreement by the Contractor will not result in any breach by the Contractor, of the terms of any contract, obligation, law, regulation or ordinance;
       4. the Contractor will provide the Services using due care, skill and diligence; and
       5. the Services will be performed to a high professional standard, and in a timely manner to ensure that all obligations specified in this agreement are satisfied.
    3. It is a condition of this agreement that the Contractor has disclosed in writing to The Mito Foundation prior to the Commencement Date:
       1. any litigation or proceeding whatsoever, actual or threatened, against the Contractor;
       2. the existence of any breach or default or alleged breach or default of any agreement, order or award binding upon the Contractor; or
       3. matters relating to the commercial, technical or financial capacity of the Contractor; or
       4. any other matters materially affecting the ability of the Contractor to perform any obligation of the Contractor under this agreement.
    4. The Contractor must promptly notify and fully disclose to The Mito Foundation in writing particulars of any event or occurrence actual or threatened which will or may materially affect the ability of the Contractor to perform any of the obligations of the Contractor under this agreement.
14. Termination
    1. A Party (Non-Defaulting Party) may terminate this agreement, by notice in writing to the other Party (Defaulting Party) if the Defaulting Party commits a breach of this agreement, where:
       1. the breach can be remedied and the Defaulting Party fails to remedy such breach within ten (10) Business Days after receipt of a notice from the Non-Defaulting Party specifying the breach and requiring the Defaulting Party to remedy such breach; or
       2. the breach cannot be remedied; or
       3. the Defaulting Party becomes Insolvent.
    2. The Mito Foundation may terminate this agreement upon five (5) Business Days’ written notice to the Contractor:
       1. if The Mito Foundation ceases to conduct business in the normal course; or
       2. in whole or in part for convenience.
    3. If this agreement is terminated pursuant to this clause, The Mito Foundation shall be liable to the Contractor only for payments for Services provided in accordance with this agreement before the effective date of termination.
    4. Upon termination of this agreement, the Contractor must:
       1. cease the provision of the relevant Services;
       2. take all available steps to minimise loss resulting from the termination;
       3. provide The Mito Foundation and its agents with all reasonable assistance and information to assist The Mito Foundation and its agents in transitioning to any new service arrangements with any third party;
       4. promptly return all Supplied Resources to The Mito Foundation (or, if directed by The Mito Foundation, its agents); and
       5. continue work on any part of the Services not affected by the termination.
    5. In the event of partial termination of this agreement resulting in a reduction in the scope of this agreement, the relevant Fee shall abate proportionately to the reduction in the scope of this agreement.
    6. Despite any provision of this agreement or otherwise, the Contractor shall not be entitled to compensation for loss of prospective profits, indirect or consequential loss, as a result of the termination or repudiation by The Mito Foundation of this agreement.
    7. The termination of this agreement will not extinguish or affect any rights of either Party against the other which accrued prior to termination or any provisions of this agreement and which by their nature survive expiry or termination.
15. Restraints
    The Contractor must not, for any reason, during the term of this agreement or within the period of twelve (12) months after termination of this agreement, either directly or indirectly:
    1. endeavour to entice away from The Mito Foundation any person or entity that is a client, customer or contractor of The Mito Foundation or any related entity of The Mito Foundation; or
    2. induce, solicit, engage or employ (or procure the inducement, solicitation, engagement or employment of) any officer, employee or contractor of The Mito Foundation without the prior written consent of The Mito Foundation.
16. Liability and Indemnity
    1. The Mito Foundation is not liable to the Contractor for any lost revenues, lost profits, lost business, lost data or data use, lost goodwill or anticipated savings, incidental, indirect, consequential, special, economic or punitive damages whether arising from or in connection with any breach of contract, negligence or any other cause of action in connection with or relating to this agreement.
    2. The Contractor indemnifies The Mito Foundation from and against any costs, damages, loss or liability of any kind (including legal costs and disbursements on a full indemnity basis) however suffered or incurred by The Mito Foundation by virtue of the provision of the Services or any breach of this agreement by the Contractor.
    3. The indemnities contained in this clause extend to any costs, damages, loss or liability (including legal costs and disbursements on a full indemnity basis) incurred by The Mito Foundation by virtue of any injury or disability suffered by the Contractor, in the performance of the Services.
17. Superannuation
    1. The Mito Foundation will deduct from the Fee an amount equivalent to the minimum level of superannuation contributions, for the benefit of the Contractor, in respect of the performance of Services by the Contractor, pursuant to this agreement (Superannuation Deduction).
    2. For the avoidance of any doubt, the minimum level of superannuation contributions referred to in clause 17(a) will be calculated by reference to the Fee (exclusive of GST) otherwise payable in accordance with clause 8 of this agreement.
    3. The Mito Foundation will contribute an amount equal to the Superannuation Deduction to a complying superannuation fund nominated by the Contractor (Contribution).
    4. The Superannuation Deduction and the Contribution are being made for the abundance of caution and in order to avoid any fines, penalties or charges being applied to any of The Mito Foundation or Contractor, by any relevant statutory authority at any later date, under any of the Superannuation Guarantee (Administration) Act 1992 (SGAA) or the Superannuation Guarantee Charge Act 1992 (Cth), or any other relevant law, notwithstanding that the parties do not consider any relationship of employment, either at common law or otherwise, exists between The Mito Foundation and the Contractor (including as set out in clause 17 of this agreement).
    5. The parties acknowledge that there is an extended definition of employee, pursuant to section 12 of the SGAA.
18. Force Majeure
    1. Neither Party is liable to the other Party in respect of the results of any delay or failure to perform its obligations pursuant to this agreement if such delay or failure is caused by an event of Force Majeure.
    2. The performance of the obligations of a Party will be suspended for the period of an event of Force Majeure.
    3. If a delay or failure of the Contractor to perform the obligations of the Contractor under this agreement due to an event of Force Majeure exceeds forty five (45) Business Days, The Mito Foundation may immediately terminate the agreement by notice in writing to the Contractor.
    4. If this agreement is terminated pursuant to this clause, the Contractor must refund moneys previously paid by The Mito Foundation pursuant to this agreement for Services not provided by the Contractor to The Mito Foundation.
19. No Agency, Partnership or Employment Relationship
    1. The Parties do not consider any relationship of employment, either at common law or otherwise, exists between the Parties.
    2. It is not the intention of the Parties, including by virtue of this agreement, that the Contractor be considered an employee of The Mito Foundation, for any purpose.
    3. The Contractor will not by virtue of this agreement, or otherwise, be, or for any purpose be deemed to be, an employee, agent or partner of The Mito Foundation.
    4. The Contractor must not represent themselves as being an employee, agent, joint venturer or partner of The Mito Foundation.
    5. For the avoidance of doubt, the Contractor acknowledges that the Contractor has no authority to bind The Mito Foundation or its agents.
20. Non Exclusivity
    Nothing in this agreement will prevent The Mito Foundation from obtaining any products or services, or both, including products and services similar to the Services from another person or organisation. If The Mito Foundation obtains any such products or services, or both, from another person or organisation, the Contractor will reasonably cooperate with any such other person or organisation where necessary.
21. Publicity
    The Contractor must not make any media, press or other announcements or releases about the making or existence of this agreement, the Services or otherwise in any way related to The Mito Foundation, without the prior written consent of The Mito Foundation.
22. Interpretation
    In this agreement unless the context otherwise indicates:
    1. references to a Party shall include the executors administrators successors and permitted assigns of that Party;
    2. references to a clause or schedule or other annexure shall be construed as references to a clause of or schedule or annexure to this agreement and references to this agreement shall include its schedules and any annexures;
    3. references to (or to any specified provision of) this agreement or another deed or document shall be construed as references to (that provision of) this agreement or that other deed or document as amended or substituted with the deed of the relevant parties and in force at any relevant time;
    4. references to any statute, ordinance or other law shall include all regulations and other instruments thereunder and all consolidations, amendments, re-enactments or replacements thereof;
    5. words importing the singular shall include the plural and vice versa, words importing a gender shall include other genders and references to a person shall be construed as references to an individual, firm, body corporate, association (whether incorporated or not), government and governmental, semi-governmental and local authority or agency;
    6. where any word or phrase is given a defined meaning in this agreement, any other part of speech or other grammatical form in respect of such word or phrase shall have a corresponding meaning;
    7. headings included in this agreement are for convenience only and shall be disregarded in the construction of this agreement.
23. Dispute Resolution
    The Parties agree that any dispute arising during the course of this agreement will be dealt with in accordance with the following procedure:
    1. the Party claiming that there is a dispute must send the other Party a written notice setting out the nature of the dispute (Notice);
    2. the Parties will try to resolve the dispute initially through direct negotiation between the Contractor and a representative of The Mito Foundation who will endeavour to resolve the matter within ten (10) Business Days from the date of the Notice;
    3. if the dispute is not resolved within the time specified in clause 23(b), the Parties may agree that the dispute is to be submitted to mediation or some alternative dispute resolution procedure; and
    4. if:
       1. the dispute is not resolved within twenty (20) Business Days from the date of the Notice;
       2. there is no agreement on submission of the dispute to mediation or some alternative dispute resolution procedure in that time; or
       3. there is a submission to mediation or some other form of alternative dispute resolution procedure, but there is no resolution within fifteen (15) Business Days of the submission, or such extended time as the parties may agree in writing before the expiration of the fifteen (15) Business Days,

       then either Party may commence legal proceedings.

    5. Notwithstanding clause, a Party may commence court proceedings relating to any dispute arising from this agreement at any time where that Party seeks urgent interlocutory relief.
24. Compliance with Laws
    The Contractor must, in carrying out its obligations under this agreement, comply with the provisions of any relevant statutes, regulations, by-laws, and the requirements of any governmental authority.
25. Assignment
    The Contractor must not assign or transfer, in whole or in part, the rights or obligations of the Contractor under this agreement, without the prior written consent of The Mito Foundation.
26. General
    1. This agreement is governed by the law in force in New South Wales.
    2. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales and courts of appeal from them. Each Party waives any right it has to object to an action being brought in those courts, to claim that the action has been brought in an inconvenient forum or to claim that those courts do not have jurisdiction.
    3. Without preventing any other mode of service, any document in an action including, without limitation, any writ of summons or other originating process or any third or other party notice may be served on a Party by being delivered to or left for that Party at its address specified in this agreement.
    4. A notice, approval, consent or other communication in connection with this agreement:
    5. must be in writing unless expressly specified otherwise; and
    6. must be left at or sent by prepaid ordinary post to the address of the addressee specified in this agreement.
    7. Unless a later time is specified in it a notice, approval, consent or other communication takes effect from the time it is received.
    8. A letter is taken to be received on the third day after posting.
    9. Any present or future legislation which operates to vary an obligation or right, power or remedy of a person in connection with this agreement is excluded except to the extent that its exclusion is prohibited or rendered ineffective by law.
    10. A Party may give conditionally or unconditionally or withhold its approval or consent in its absolute discretion unless this agreement expressly provides otherwise. In considering requests for its approval or consent a Party must act with reasonable expedition.
    11. A Party may exercise a right, power or remedy at its discretion and separately or concurrently with another right, body or remedy. A single or partial exercise of a right, power or remedy by a Party does not prevent a further exercise of that or of any other right, power or remedy. Failure by a Party to exercise or delay in exercising a right, power or remedy does not prevent its exercise.
    12. A provision of or a right created under this agreement may not be waived or varied except in writing signed by the Party or Parties to be bound.
    13. This agreement may be executed in any number of counterparts and by the different Parties hereto on separate counterparts, each of which when so executed and delivered shall be an original but all the counterparts shall together constitute one and the same instrument.
    14. The provisions of this agreement must not and cannot be varied, except by agreement in writing signed by the Parties.
    15. The Mito Foundation is not liable for any additional work undertaken or expenditure incurred by the Contractor pursuant to a variation of this agreement unless such variation is agreed to in writing by both the parties and any additional consideration or expenditure has been agreed to in writing by The Mito Foundation.
    16. Any provision of this agreement will be read down to the extent necessary to prevent that provision or this agreement being invalid, voidable or unenforceable in the circumstances.
    17. If notwithstanding clause 26(n), a provision of this agreement is still invalid or voidable:
    18. if the provision would not be invalid or voidable if a word or words were omitted, that word or those words will be deleted; and
    19. in any other case, the whole provision will be deleted, and the remainder of this agreement will continue to have full force and effect.

Schedule 1 – Definitions

In this agreement (including the background) the following expressions shall have the following meanings unless inconsistent with the context:
agreement means this agreement.

Business Day means any day which is not a Saturday, Sunday or a public holiday in Sydney, New South Wales.

Claims includes all manner of losses, damages, liabilities, obligations, actions, suits, causes of action, arbitration, debts, dues, demands, costs, interest, verdicts and judgments whatsoever, at law or in equity, or both, under the written law or unwritten law, or both, whether known or unknown.

Commencement Date means the date in Item 3 of Schedule 2 or, if there is no such date, the date of this agreement.

Contractor means the party listed in Item 1 of Schedule 2.

Confidential Information includes all information however recorded or retained and whether oral or written or electronically stored about all or any of the following:

1. information, ideas and concepts related to The Mito Foundation or the business of The Mito Foundation;
2. ideas or concepts of any employee or consultant of The Mito Foundation shared with, or disclosed to the Contractor;
3. the affairs of The Mito Foundation;
4. arrangements between The Mito Foundation and:
   1. any person other than the Contractor (including its agents); and
   2. the Contractor;
5. trade secrets of The Mito Foundation;
6. the management, policies, strategies, practices and procedures of The Mito Foundation;
7. any other information or communication that The Mito Foundation notifies the Contractor as being confidential information;
8. the financial position of The Mito Foundation or its agents; and
9. Personal Information.

Corporations Act means the Corporations Act 2001 (Cth).

Dates means the dates specified in Item 2 of Schedule 2.

Fee means the fees to be paid by The Mito Foundation to the Contractor for the Services provided by the Contractor to The Mito Foundation, as set out Item 5 of Schedule 2.

Force Majeure means acts of God, pandemics recognised as such by the World Health Organisation, acts of government, strikes, lockouts or other industrial disturbances, blockades, wars, insurrections or riots, epidemics, landslides, fires, storms, floods, explosions or other similar causes beyond the control of a Party, provided that such Party has not substantially contributed to the occurrence of such acts through its own default or negligence.

GST Law has the same meaning as is ascribed to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Insolvent means:

1. in the case of a natural person, that person becoming an insolvent under administration as that term is defined in the Corporations Act;
2. in the case of a corporation, that corporation becoming:
   1. an externally-administered body corporate as that term is defined in the Corporations Act;
   2. unable to pay its debts as and when they fall due;
   3. insolvent or deemed to be insolvent under the Corporations Act; or
   4. subject to a scheme of arrangement or official management pursuant to the Corporations Act; or
3. in any other case, any event analogous to any of the foregoing.

Intellectual Property Rights includes all intellectual property rights and industrial property rights throughout the world including rights in respect of or in connection with:

1. any Confidential Information;
2. copyright (including future copyright and rights in the nature of or analogous to copyright); analogous nature which may now exist or which may exist in the future including any moral rights;
3. inventions including any patents;
4. trade marks;
5. service marks;
6. designs; and

whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes a right to apply for all renewals and extensions.

Locations means the locations specified in Item 2 of Schedule 2.

Parties means The Mito Foundation and the Contractor and Party means any one of them.

Personal Information means information or an opinion (including information or an opinion forming part of a database), whether or not true, and whether recorded in a material form or not about an individual whose identity is apparent, or can reasonably be ascertained from the information or opinion, which the Contractor receives or learns from any source including as a consequence of or in the provision of the Services in the performance of the obligations of the Contractor under this agreement.

Privacy Laws means:

1. the Privacy Act 1988 (Cth); and
2. any other legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting of access rights to Personal Information.

Services means those services to be provided by the Contractor to The Mito Foundation from time to time and as listed in Item 2 of Schedule 2.

Supplied Resources means any resource or item of equipment, materials and facilities owned or controlled by The Mito Foundation, its agents or any affiliate of The Mito Foundation and made available to the Contractor for use in the course of the provision of the Services.

Tax Invoice means a tax invoice which complies with the requirements under the GST Law.

Termination Date means the date in Item 4 of Schedule 2, or a date on which the agreement is terminated in accordance with clause 14.

The Mito Foundation means the Australian Mitochondrial Disease Foundation Limited ABN 84 135 324 391.