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EXHIBIT 10.16
R/3 NATIONAL IMPLEMENTATION PARTNER AGREEMENT
SAP AUSTRALIA PTY LTD - SOFTWARE CONSULTING SERVICES PTY LTD
This R/3 National Implementation Partner Agreement (the "Agreement"), made as
of 14 March 1995,
is by and between SOFTWARE CONSULTING SERVICES PTY LTD (ACN 005 931
886) ("SCS"), with its principal place of business at
Xxxxx 0, 00 Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxx, 0000,
Xxxxxxxxx;
and SAP AUSTRALIA PTY LTD (ACN 003 682 504) ("SAP") with
its principal place of business at Xxxxx 0, 00 Xxxxxx
Xxxxxx, Xxxxxxxxx, XXX 0000 Xxxxxxxxx.
RECITALS
A. WHEREAS SCS and SAP, desiring to work together, in connection with the
SAP R/3 National Implementation Partner Program (as defined below),
with the goal of furthering the implementation of SAP's R/3 Software
System;
B. WHEREAS SAP desires to enhance its capabilities to market and support
SAP Products through the use of SCS's services; and
C. WHEREAS SCS and SAP desire to formalize their relationship by entering
into this Agreement to undertake co-operative efforts for SAP R/3
Products within the SAP R/3 NIP Program.
NOW, THEREFORE, in reliance upon the foregoing recitals, intending to be
legally bound, and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, SCS and SAP agree as follows:
1. DEFINITIONS.
As used in this Agreement:
(a) The SAP - SCS R/3 National Implementation Partner Program (the "R/3
NIP Program") means the business relationship set forth in this
Agreement and Appendix A to this Agreement.
(b) Software. Software shall mean all SAP R/3 software, in whole or in
part, licensed by SAP AG or SAP Australia Pty Ltd in any release,
version or correction level and including all improvements,
modifications, and extensions thereto, whether in human or machine
readable form.
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(c) Documentation. Documentation shall mean all human and machine
readable materials and copies of SAP manuals, program listings, flow
charts, logic diagrams, input and output forms, data models,
specifications, and instructions relating to the Software made
available to SCS under this Agreement, or, generally, to SAP end-user
licensees.
(d) R/3 Products. R/3 Products shall mean the Software, Documentation and
related materials.
(e) Confidential Information. Confidential Information shall include all
information concerning SCS and SCS's clients, and their respective
products, businesses, techniques, designs, formulations, systems,
programs, processes, policies, business strategies and plans or other
information which is not in the public domain, and SAP's R/3 Products,
program concepts including literal and nonliteral elements, such as
structure, sequence and organisation, SAP's training materials,
literature, and related SAP materials, SAP's customers, their
respective products, businesses, techniques, designs, formulations,
systems, programs, processes, policies, business strategies and plans
and all other information which is disclosed by either party to the
other party either in writing and marked bearing a legend such as
"confidential" or "proprietary" or "for internal use only" or orally
when contemporaneously described as such.
(f) Territory. Territory shall mean Australia and New Zealand.
2. AUTHORIZATION AND COMMITMENT OF RESOURCES.
(a) SAP hereby authorises SCS to offer services as related to R/3 Products
to potential users in the Territory under the terms of this Agreement
and any Appendices thereto. This authorisation does not include
maintenance of the R/3 Products, physical installation of the R/3
Products, and training. This authorisation is non-exclusive and
non-transferable.
(b) SAP in its sole discretion shall have the right to limit the
Territory, the R/3 Products, and the type of customers to be covered
by this Agreement, as SAP deems reasonably advisable in its sole
discretion following reasonable notice and consultation with SCS. SAP
may authorise other parties to offer services as related to the R/3
Products in the Territory as it deems advisable in its sole
discretion.
(c) Services to be provided by either party to its clients and customers
are to be contracted for separately by each party, independently of
each other, unless otherwise expressly agreed upon in writing between
SAP and SCS for that specific engagement. Except as otherwise
required by Law, each party shall be solely liable to its customers
and clients for its own services.
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3. SERVICES AND RESPONSIBILITIES OF SAP.
(a) Should SCS desire to license all or any part of the Software for use
in the operation of its own business, SAP will license it to SCS under
the terms of SAP's standard end-user license agreement and at SAP's
standard license fees then in effect.
(b) With regard to training in use of the Software, SAP shall:
(i) invite SCS, on a space available basis, at negotiated rates,
to SAP regularly scheduled alliance partner training. SCS
shall be responsible for all related travel and living
expenses;
(ii) provide access, on a space available basis, to SCS for its
personnel participating in the R/3 NIP Program to customer
training courses generally offered by SAP, such training
courses to be available at SAP's current prices and terms;
(iii) provide marketing-oriented training courses to SCS on a
cost-sharing basis to be agreed upon between the parties; and
(c) SAP shall otherwise inform and instruct SCS as to the use and
operation of R/3 Products and provide guidance, as SAP deems necessary
in its sole judgement, for SCS to carry out its responsibilities under
this Agreement.
4. SERVICES AND RESPONSIBILITIES FOR SCS.
SCS agrees that it shall:
(a) acquire as soon as possible and maintain a comprehensive and
fundamental knowledge of the R/3 Products and ensure that its
employees are technically qualified and sufficiency trained in SAP
courses, including ongoing training at SAP, and internally, to provide
appropriate advice on the use of the R/3 Products to clients and
prospective users of the Software;
(b) use its best efforts to promote internally the R/3 Products and to
offer services as related to the R/3 Products throughout the Territory
and ensure that its employees who perform any services hereunder shall
have the proper skill, training and background to enable them to
demonstrate the R/3 Products in a competent and professional manner,
it being understood that SCS will have no liability to SAP in the
event that it fails to successfully promote R/3 Products and related
services except as committed to in this Agreement;
(c) use its best efforts to meet the goals relative to the R/3 NIP Program
set out in SCS's annual business plan, which is attached hereto as
Appendix A, and to update such business plan quarterly;
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(d) ensure that it has the necessary number of qualified personnel
available according to SCS's annual business plan attached as Appendix
A;
(e) continually improve its training of all personnel who are or will be
acting under this Agreement by utilising the training offered under
clause 3;
(f) use its best efforts to make the R/3 Products known to its customers
and potential customers; make every effort to see that the R/3
Products it suggests to each potential customer meet that entity's
application requirements; present the R/3 Products using only the
product names given by SAP; provide potential customers such marketing
materials and nonconfidential information necessary for evaluating the
R/3 Products being considered (except as limited by Section 10.(b)
below); and, make no warranties, assurances or statements concerning
R/3 Product features that are misleading or materially divergent from
the descriptive literature supplied by SAP;
(g) not engage in any business activity, either directly or indirectly, in
any manner or capacity, on its own behalf or in behalf of any other
person, firm, corporation or organisation, nor accept or continue any
obligations which may interfere with or impair its ability to perform
any of its duties or obligations under this Agreement;
(h) to the extent it conducts end-user training within its other
consultation activities, not offer or conduct end user training which
competes with official SAP courses offered by SAP or SAP AG or any
other SAP-related entity without prior written authorisation from SAP;
(i) upon invitation by SAP, participate in SAP sponsored marketing events
by presenting speeches, providing information to potential prospects
(subject to Section 10.(b) below), and assisting, where requested, in
the organisation and implementation of the events;
(j) expressly inform its customers that unauthorised modifications and
extensions to the Software by the Customer may impair or terminate the
maintenance or support services provided by SAP and may nullify the
warranty;
(k) undertake to provide customers with release and version management and
migration support as related to the Software throughout the period of
productive installation of the Software; and
(l) dedicate a co-ordinator with an adequate support structure to act as
the central focal point to co-ordinate activities with SAP and
designate a contact person within the support group to be available to
SAP who is authorised to act on behalf of SCS within the scope of this
Agreement.
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5. SERVICES AND RESPONSIBILITIES OF THE PARTIES.
To the extent reasonable under the circumstances, the parties shall
undertake the following co-operative activities with respect to
identifying and bringing to each other opportunities to promote the
R/3 Products;
(a) regularly inform each other about general market developments and
factors relating to the R/3 Products in the marketplace and current
projects and customer implementations in which SCS is involved; this
information shall be designated and treated as Confidential
Information under Section 10. of this Agreement;
(b) furnish each other with appropriate information for support and
planning purposes; provided, however, that each party reserves the
right, in its sole discretion, to determine the content and
availability of such information;
(c) inform appropriate personnel in their respective organisations of the
existence of this Agreement;
(d) subject to confidentiality constraints, endeavor to keep each other
appraised about new products and services;
(e) exchange such other information and conduct such other activities as
the parties agree will carry out the intent of this Agreement.
6. GENERAL REPRESENTATIONS AND WARRANTIES.
Each party hereby represents and warrants to the other that:
(a) it has the right and power to enter into this Agreement;
(b) entering into this Agreement does not violate the terms and conditions
of any other agreement providing for co-operative marketing of
products of another entity, or any other legal obligations;
(c) the information which it may disclose to the other party, and the
process of disclosure and use of such information in accordance with
the provisions of this Agreement, will not violate any trade secret
right, trademark, issued United States patent, copyright or other
proprietary right of any third party;
(d) it holds good title or right, free and clear of all liens and
encumbrances, to the products and services which it is providing under
this Agreement;
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(e) the products and services being provided under this Agreement do not
infringe any Australian copyright, trademark, issued Australian
patent, trade secret or other proprietary right of any third party;
and
(f) Except as specifically set forth herein, neither party makes any other
warranty to the other party, either express, implied or statutory, or
arising by course of conduct or performance, custom or usage in the
trade, including but not limited to any implied warranties of
merchantability or fitness for a particular purpose, except as may be
otherwise required by law.
7. TERM AND TERMINATION.
(a) This Agreement shall have an initial term expiring on December 31,
1996, with an automatic renewal for one (1) additional year unless, at
least six (6) weeks prior to the renewal date, either party gives
written notice of its intention not to renew this Agreement.
(b) At least four (4) months prior to any scheduled expiration date, SAP
will decide whether to continue or terminate the Agreement by applying
the following criteria:
i. Customer satisfaction with the projects conducted by SCS, with
special regard to the length and cost of the project, the
project objectives met by SCS, and the achievements and
professionalism of SCS employees;
ii. Number and scope of R/3 projects executed;
iii. Thoroughness of employee training;
iv. Accomplishment of goals set herein and in the annual business
plans; and
v. Level of effective communication with SAP.
The procedures for such audits and the weights to be assigned each
criterion will be provided in writing by SAP to SCS prior to the first
such audit.
On the basis of this evaluation and subsequent consultations with SCS,
SCS agrees that SAP may, based on a reasonable evaluation of whether
the specified criteria have been met, choose to terminate this
Agreement six (6) weeks prior to the next scheduled expiration date.
(c) Notwithstanding the above, either party may terminate this Agreement:
(i) In accordance with the provisions of Section 7(a) and (b) at
the end of a term;
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(ii) Upon thirty (30) days prior written notice in the event of
material breach of a material provision of this Agreement by
the other party, except that the party in breach shall have
the right, during the 30-day period, to cure the claimed
breach or default; or
(iii) Immediately upon prior written notice if there is: (a) a
consolidation, merger or reorganisation of the other party
with or into another corporation or entity; (b) creation of a
new majority interest in, or change in majority ownership of,
the other party; (c) a sale of all or substantially all of the
assets of the other party; or (d) a breach of the
confidentiality provisions as specified in Section 10. below.
(d) Upon any termination of this Agreement:
(i) each party shall, within ten (10) business days after
termination is effective, return to the other party or dispose
of as mutually agreed all advertising materials and other
properties, including all Confidential Information, furnished
to it by the other party pursuant to this Agreement and so
certify in writing;
(ii) within ten (10) business days after termination is effective,
SCS shall return to SAP materials and all copies thereof to
SAP, or as the case may be, delete all R/3 Products from SCS's
hardware, including binary or other resulting files (if any),
and erase all R/3 Products from any storage media before
discarding such, and so certify in writing, unless SCS has a
continuing End User licence which allows it to retain the
Software and/or any other R/3 Products;
(iii) SCS shall not hold itself out as a participant in the R/3 NIP
Program; and
(iv) both parties shall cease acting in a manner that would suggest
any continuing relationship between the parties regarding
SAP's Software, and shall cease all display and advertising
contemplated under this Agreement.
(e) Termination of this Agreement shall not impact upon any active
engagements in process prior to such termination.
(f) The following provisions of this Agreement shall in all events survive
its termination: Section 6. (General Representations and
Warranties); 7. (Provisions Applicable to Termination); 8.
(Relationship of Parties); 10. (Confidentiality); and 11. (General
Provisions).
8. RELATIONSHIP OF PARTIES.
(a) SCS and SAP are independent contractors acting for their own account,
and neither party or its employees are authorised to make any
representation otherwise or any commitment on the other party's behalf
unless previously authorised by such party in writing. Neither party
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is responsible to any end user for the quality of services or products
provided by the other party. Each party is solely responsible for
establishing the prices for its own products.
(b) Neither party is a distributor or agent for the products or services
of the other. Each party's products and services shall be available
to a prospective client only through separate agreement between that
party and the client. Each party shall independently develop and
price its respective products and services offered between such party
and a client.
(c) It is understood and agreed upon by the parties hereto, that during
the term of this Agreement, the use of the terms "joint venturer,"
"co-venturer," "partner," "marketing partner," "partnership" or
similar terms to be used to describe the relationship between the
parties under this Agreement refer to the spirit of co-operation
between SCS and SAP, and do not describe, or expressly or by
implication create, a legal partnership or joint venture, or any
responsibility by one party for the actions of the other.
9. INTELLECTUAL PROPERTY RIGHTS.
(a) The name "R/3 NIP Program" shall be used by the parties only jointly
and pursuant to the terms of this Agreement; and upon any termination
of this Agreement, neither SAP nor SCS may use the name in conjunction
with the parties' respective corporate names; however, SAP shall have
the right to use the name with any other parties who choose to
participate in the SAP R/3 NIP Programs.
(b) Nothing in this Agreement grants to either party the right to use or
display any other names, trademarks, trade names, logos or service
marks of the other party, except to identify the products and
associated services and deliverables of the other party to the extent
obligations are undertaken pursuant to this Agreement. Except in the
case of correspondence and proposals issued in the ordinary course of
business, each party agrees to submit to the other party for written
pre-publication approval, any materials which may use or display any
name, trademark, trade name, logo or service xxxx of the other party.
Notwithstanding the foregoing, nothing contained in this Agreement
shall affect either party's rights and obligations to use any
trademarks, service marks or proprietary words or symbols of the other
party to properly identify the goods or services of such other party
to the extent otherwise permitted by applicable law or by written
agreement between the parties.
(c) SCS herein acknowledges that title to all intellectual property
rights, including patent, copyright, trademark, and trade secret
rights in R/3 Products, including any modifications, enhancements,
versions, releases, or correction levels thereto, program concepts
including literal or nonliteral structure, sequence and organisation,
training materials, literature, and other SAP related materials shall
remain exclusively with SAP AG, Walldorf, Germany, or SAP as the case
may be, and that by virtue of this Agreement, no such rights have been
transferred, licensed, granted, assigned or acquired by SCS from SAP
AG or SAP.
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10. CONFIDENTIALITY.
(a) Each party acknowledges that, during the term of this Agreement, it
will receive Confidential Information from the other party. Neither
party shall disclose, provide or otherwise make available to any third
party (including any prospective client) any Confidential Information
of the other party and shall utilize such Confidential Information on
an internal organisation need-to-know basis only to the extent
necessary to effect the provisions and purposes of, and as expressly
contemplated under the terms of, this Agreement and for no other
purpose.
(b) Each party agrees that it will protect the Confidential Information of
the other party through the exercise of no less protection and care
than it customarily uses in safeguarding its own confidential and
propriety information which it desires to retain in confidence, but
always at least a reasonable degree of care. Disclosure of the other
party's Confidential Information to employees shall only be made on a
need-to-know basis. Further, each party shall take reasonable steps
to advise their employees of the confidential nature of Confidential
Information, to ensure by agreement or otherwise that such employees
are prohibited from copying, revealing or using such Confidential
Information except to the extent required to carry out the parties'
obligations under this Agreement, and to require that Confidential
Information be kept in a secure location. Each party will promptly
notify the other if it believes that Confidential Information has lost
its status as such.
(c) The foregoing shall not prohibit or limit a party's use of
information, including but not limited to ideas, concepts, know how,
techniques and methodologies, which: (i) is or become publicly
available through no act or failure to act of the receiving party;
(ii) rightfully obtained by the receiving party without restriction;
(iii) is released by the receiving party in response to lawful legal
process and with prior notice to the other party; (iv) is rightfully
already known to or is independently developed by the receiving party
prior to disclosure.
(d) Neither party will be liable to the other for any inadvertent or
accidental disclosure of Confidential Information if the disclosure
occurs notwithstanding the party's exercise of (i) the precautions set
forth in this Section; and (ii) the same level of care that each party
customarily uses in preserving and safeguarding its Confidential
Information, but always at least a reasonable degree of care.
(e) Notwithstanding the foregoing, each party hereto understands that they
may become familiar with each other's services and that SCS may become
familiar with SAP's R/3 Products, specifically its proprietary
software. Accordingly, SCS agrees, with respect to the R/3 Products
(including all program concepts therein) SAP's training materials,
literature and other SAP related materials, as the case may be, that
SCS shall not copy, translate, disassemble or decompile, nor create or
attempt to create by reverse engineering or otherwise the source code
from the object code, or to use such items to create derivative works,
unless so authorised in advance, in writing, by SAP. All updates,
replacements, revisions,
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enhancements, additions, or conversions to such SAP items specified
above shall be subject to the provisions as stated herein.
11. GENERAL PROVISIONS.
(a) Non-solicitation. During the term of this Agreement and for one (1)
year after its termination, SAP and SCS agree that neither shall
directly or indirectly solicit for employment any staff of the other
party who have been directly and substantively involved in performance
under this Agreement.
(b) Non-exclusivity. Nothing in this Agreement shall limit or restrict
either party from entering into or continuing any agreement or other
arrangement with any other party, whether similar to this Agreement in
nature or scope. Moreover, each party shall remain free to provide
products and services to any client or prospective client so long as
the terms of this Agreement are not violated.
(c) Notices. All notices required to be given under this Agreement shall
be sent by certified mail to:
SAP Australia Pty Ltd
Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxxxxxx XXX 0000
Xxxxxxxxx
Telephone: (00) 000 0000
Facsimile: (00) 000 0000
and to
Software Consulting Services Pty Ltd
Xxxxx 0
00 Xxxxxx Xxxxxx
Xxxxxx Xxxxxxxx 0000
Xxxxxxxxx
Telephone: (00) 000 0000
Facsimile: (00) 000 0000
(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New South Wales. To the
extent that the properties are permitted under this Agreement to seek
judicial remedies, each party hereby consents to the jurisdiction of
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the federal and state courts within the commonwealth of Australia to
resolve any and all such matters.
(e) Merger. This Agreement and any Appendices hereto constitute the
entire agreement between the parties with respect to the matters set
forth herein. All prior agreements, oral or otherwise, between the
parties and relating to the subject matter contained herein, are
hereby superseded, provided, however, that in the event SCS executed
an Alliance Agreement and related License and Maintenance Agreement
for SAP's R/2 Software Systems, such agreement shall continue pursuant
to its terms.
(f) Amendments. This agreement may not be modified except by a writing
signed by both parties.
(g) Severability. If any of the provisions of this Agreement are held
invalid, such provisions shall be deemed severed and the remaining
provisions shall remain in full force and effect.
(h) Non-assignment. This Agreement may not be assigned or transferred nor
may rights or obligations be delegated, without the prior written
agreement of the parties. Notwithstanding the foregoing, this
Agreement shall be binding upon and inure to the benefit of the
parties of this Agreement, as well as their respective permitted
successors and assigns.
(i) Waiver. Failure of any party to enforce, in any one or more
instances, any of the terms or conditions of this Agreement shall not
be construed as a waiver of the future performance of any such terms
or conditions.
(j) Limitation of Liability.
(i) SAP shall not be liable to SCS or third parties for any loss
of business, loss of profits, loss of data or computer
malfunction, or any indirect, incidental, special,
consequential or punitive damages, even if SAP has been
apprised of the possibility thereof; or
(ii) In no event shall the liability of SAP under this Agreement,
for any reason whatsoever, whether in contract, tort or
statute (including, without limitation, negligence), or
otherwise, exceed $1,000,000.00; provided, however, that this
limitation shall not apply to claims for personal injury
caused by SAP's gross negligence or wilful misconduct.
(k) No Endorsement. Execution of this Agreement does not, and shall not
be construed to be, an endorsement by either party of the products or
services of the other party.
(l) Press Releases and Publicity. Any news release, public announcement,
advertisement, or publicity proposed to be released by either party
concerning the R/3 NIP Program or any
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matters arising under this Agreement shall be subject to the approval
of the designated representatives of both parties.
(m) Dispute Resolution Procedures.
(i) Any dispute, disagreement, claim or controversy between the
parties arising under or relating to this Agreement or the
parties' performance thereunder (the "Disputed Matter") which
cannot be resolved by consultations between the senior
executives of SCS and SAP shall be resolved by binding
arbitration, according to the then prevailing commercial
arbitration rules of the Australian Arbitration Association,
before a panel of three arbitrators. Each party will select
one arbitrator, and the third arbitrator will be selected by
the party-selected arbitrators. Any such arbitration shall be
held in the City of Sydney, New South Wales. The parties will
share the cost of the arbitration equally, subject to any
final apportionment by the arbitrators. The arbitrators will
apply New South Wales law in resolving the Disputed Matter.
The decision of the arbitrators will be final and conclusive
on the parties, and each party consents that judgment upon an
award rendered by the arbitrators may be entered in any court
of competent jurisdiction.
(ii) Neither party shall institute any action or proceeding against
the other in any court concerning any Disputed Matter that is
or could be the subject of a claim or proceeding under this
Section; provided, however, that if a party believes in good
faith that a temporary or preliminary injunction is necessary
to preserve the status quo or otherwise to avoid irreparable
harm to such part, such as in the event of a breach of Section
9. or Section 10., such party shall not be precluded by this
Section from seeking such injunctive relief from a court of
competent jurisdiction.
(iii) Pending the resolution of a Disputed Matter, to the extent
feasible, both parties shall continue their performance under
this Agreement.
IN WITNESS WHEREOF and intending to be legally bound, the parties have cause
this Agreement to be signed by their authorized representatives as of the date
shown above.
SAP AUSTRALIA PTY LTD. SOFTWARE CONSULTING SERVICES PTY LTD
Name: Xxx Xxxxxx Name: Xxxx X. Xxxxxxxxx
Title: Managing Director Title: Director-Business Manager
Date: 14 March 1995 Date: 14 March 1995
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SAP:R3 NIP AGREEMENT
11.(m) Dispute Resolution Procedure
(i) The parties to this Agreement will comply with
sub-clauses ll(m)(i)-(iv), before commencing court
proceedings or arbitration in relation to any dispute
under this Agreement, except that where a party
believes in good faith that urgent interlocutory
relief is reasonably necessary, (such as in the event
of a breach of Section 9 or Section 10), a party need
not comply with this clause before seeking relief
from a court of competent jurisdiction.
(ii) A party claiming that a dispute has arisen under this
Agreement which cannot be resolved by consultation
between the senior executives of SCS and SAP shall
give written notice to the other party designating as
its representative in any negotiations relating to
the dispute a person who has their authority to
settle the dispute and the party given that notice
shall promptly give return notice in writing
designating as its representative a person with
similar authority.
(iii) The persons designated under sub-clause (ii) shall,
seek to resolve any dispute between the parties
within 14 days of the last appointment required by
that clause.
(iv) If the dispute is not resolved within 14 days
following the representatives appointment (or within
any further period as the representative may agree is
appropriate) the parties in dispute shall within a
further 7 days (or within any further period as the
representatives may agree is appropriate) agree on a
process for resolving the whole or part of the
dispute through means other than litigation or
arbitration, such as mediation, independent expert
determination, or mini-trial and in particular the
parties shall agree in writing on:
A. the procedure and timetable for any exchange
of documents and other information relating
to that dispute;
B. procedural rules and a timetable for the
conduct of the selected means of dispute
resolution;
C. a procedure for selection and compensation of
any neutral person who may be employed by the
parties in dispute; and
D. whether the parties should seek the
assistance of a professional dispute
resolution organisation.
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(v) The parties acknowledge that the purpose of any
exchange of information or documents or the making of
any offer of settlement pursuant to this clause is to
attempt to settle the dispute between the parties.
No party may use any information or documents
obtained through the dispute resolution process
established by this clause for any purpose other than
in an attempt to settle a dispute between the
parties.
(vi) If after the expiration of the time established by or
agreed under sub-clause (iv) of this clause for
agreement on a dispute resolution process, no
agreement is reached any party which has complied
with the provisions of sub-clauses (i)-(iv) of this
clause may in writing terminate the dispute
resolution process provided for and may refer the
dispute to arbitration.
(vii) If any dispute is referred to arbitration pursuant to
sub-clause (vi) of this clause, the dispute will be
resolved according to the then prevailing commercial
arbitration rules of the Australian Arbitration
Association, before a panel of three arbitrators.
Each party will select one arbitrator and the third
arbitrator will be selected by the party-selected
arbitrators. Any such arbitration shall be held in
the City of Sydney, New South Wales. The parties
will share the cost of the arbitration equally,
subject to any final apportionment by the
arbitrators. The arbitrators will apply New South
Wales law in resolving the dispute. The decision of
the arbitrators will be final and conclusive on the
parties and each party acknowledges that any judgment
on an award rendered by the arbitrators may be
entered in any court of competent jurisdiction.
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