Arbitration/Alternative Dispute Resolution

Commercial Contract

Arbitration/Alternative Dispute Resolution

Parties to a contract commonly include terms governing the resolution of disputes that favor processes and procedures that tend to be more expeditious and less costly than traditional litigation. If the parties agree to resolve disputes arising from their contract outside of litigation, for example via binding arbitration, the applicable terms should include details such as applicable law, the number of arbitrators, how such arbitrators are to be selected, location of arbitration, and the language to be used during the proceedings:

Exemplar C7-1

This Agreement shall be construed and governed by the substantive laws of Singapore without regard to its conflict of law provision. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to this Agreement. The parties shall try to amicably resolve any disputes, controversies or differences which may arise between the parties hereto out of, in relation to, or in connection with this Agreement. Any disputes that remain unresolved shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Singapore Arbitration Rules of the International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore, and the language of arbitration shall be English. The Arbitration tribunal shall consist of three arbitrators. Each party shall appoint one arbitrator and the appointed arbitrators shall appoint the chairman. If the parties cannot agree on the arbitrator or the appointed arbitrators cannot agree on the chairman within 30 (thirty) days, then the parties agree to accept the arbitrator(s) appointed by the relevant chairman of SIAC. The parties irrevocably agree that the decision in arbitration proceedings shall be final and binding upon the parties and may be entered into judgment by any court of competent jurisdiction.

Exceptions

As illustrated in the following exemplars, even if an alternative dispute-resolution process is agreed to, the parties may nevertheless desire to identify certain claims that are exempt from the dispute-resolution process stipulated in the contract and are subject to direct court review:

Injunctive Relief

Exemplar C7-2

Any dispute or claim arising out of this Agreement, except for the collection of monies, the protection of confidential information or any other matter subject to injunctive relief, shall be finally settled by binding arbitration in King County, Washington under the Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. The arbitrator shall be fluent in English and experienced and knowledgeable in the subject matter of this Agreement. The arbitral decision shall be in writing and based on written findings of fact and conclusions of law. Either party may seek judicial review of errors of law in any court of competent jurisdiction. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction for injunctive and other equitable relief, without breach of this Section and without any abridgment of the powers of the arbitrator.

Exemplar C7-3

If a dispute arises related to this Agreement, or its breach, and the parties have not been successful in resolving such dispute through negotiation, the parties agree to attempt to resolve the dispute through mediation by submitting the dispute to a sole mediator selected by the parties or, at any time at the option of a party, to mediation by the American Arbitration Association (“AAA”). Any such mediation will be held in Orange County, Florida. Each party shall bear its own expenses and an equal share of the expenses of the mediator and the fees of the AAA. All defenses based on passage of time shall be suspended pending the conclusion of the mediation. Nothing in this clause shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending mediation. In the event mediation is unsuccessful, the parties agree to submit the matter for binding arbitration by AAA and in accordance with the AAA rules for commercial arbitration. Any such arbitration will be conducted in Orange County, Florida. In such event, each party shall bear its own expenses and an equal share of the arbitrator fees of the AAA.

Protection of Confidential Information

Exemplar C7-4

Any dispute or claim arising out of this Agreement, except for the protection of confidential information or any other matter subject to injunctive relief, shall be finally and exclusively settled by binding arbitration in Palm Beach County, Florida under the Commercial Arbitration Rules of the American Arbitration Association by one arbitrator appointed in accordance with such rules. The language of the arbitration shall be English. The parties to the arbitration shall bear equally the fees and related expenses of arbitration and each party shall bear their respective attorneys' fees. ANY AWARD OF THE ARBITRATION SHALL BE FINAL AND BINDING ON THE PARTIES AND EACH PARTY HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A JURY TRIAL OR ANY RIGHT TO APPEAL THAT IT MAY OTHERWISE HAVE UNDER THE LAWS OF ANY JURISDICTION.

Exemplar C7-5

Any controversy, dispute or claim arising out of or relating to this Agreement, any modification or extension hereof, or any breach hereof (including the question of whether any matter is arbitrable hereunder) and which is not capable of resolution in accordance with this Agreement shall be settled exclusively by arbitration. Either party may initiate arbitration upon written notice to the other party. Such arbitration shall be in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the "Rules). Such arbitration is to be effected by three arbitrators one to be appointed by each party and the third arbitrator by consent of the two arbitrators. The language of the arbitration shall be English. The parties to the arbitration shall bear equally the fees and related expenses of arbitration and each party shall bear their respective attorneys' fees. The arbitrator’s shall have no power to add to, subtract from, or modify any of the terms or conditions of the Agreement. It is expressly understood and agreed that a pending dispute hereunder shall at no time and in no respect constitute a basis for any modification, limitation, or suspension of either party’s obligations to fully perform in accordance with the terms of the Agreement. Any award of the arbitration shall be final and binding on the parties and each party hereby waives to the fullest extent permitted by law any right to any form of appeal that it may otherwise have under the laws of any jurisdiction. Nothing in this Section is intended to deprive either party of injunctive or other equitable relief in any court. All such awards and decisions may be filed by the prevailing party with any court having jurisdiction over the person or property of the other party as a basis for judgment and the issuance of execution thereon. The parties agree that the foregoing shall not apply to the breach of provisions pertaining to confidentiality and proprietary rights, and that either party may petition a court of law for injunctive relief and such other rights and remedies as it may have at law or equity against such breaches.

Exemplar C7-6

CONSULTANT AGREES THAT EITHER THE COMPANY OR CONSULTANT MAY PETITION A COURT FOR PROVISIONAL RELIEF, INCLUDING INJUNCTIVERELIEF, AS PERMITTEDBY THE RULES, INCLUDING, BUT NOT LIMITED TO, WHERE EITHER THE COMPANY OR CONSULTANT ALLEGES OR CLAIMS A VIOLATIONOF THIS AGREEMENT BETWEEN CONSULTANT AND THE COMPANY OR ANY OTHER AGREEMENT REGARDING TRADE SECRETS,CONFIDENTIAL INFORMATION, NONSOLICITATION OR LABOR CODE §2870. CONSULTANT UNDERSTANDS THAT ANY BREACH OR THREATENED BREACH OF SUCH AN AGREEMENT (INCLUDING THIS AGREEMENT) WILL CAUSE IRREPARABLE INJURY AND THAT MONEY DAMAGES WILL NOT PROVIDE AN ADEQUATE REMEDY THEREFOR AND BOTH CONSULTANT AND THE COMPANY HEREBY CONSENT TO THE ISSUANCE OF AN INJUNCTION.

Pending Litigation

Exemplar C7-7

As a condition precedent to initiating a lawsuit against the other party relating to this Agreement, the parties shall use good faith efforts to resolve between them all disputes and claims arising out of or in connection with this Agreement. To this end, the party seeking to initiate a lawsuit must formally request in writing that the other party designate a senior executive employee with authority to bind that party to meet to resolve the dispute within ten (10) business days in Austin, Texas, U.S.A. or any other location agreed to by the parties. During these discussions, each party shall honor the other’s reasonable requests for non-privileged and relevant information. The parties may agree to include an independent mediator in the discussions. This provision is not applicable to joinder of parties or cross claims that a party may make in any proceeding, lawsuit, litigation or controversy that was not initiated by that party.

Limitation of Powers

In the following exemplars, the parties limit the power of the arbitrator to take certain actions, including the ability to award punitive damages or to require any change in lawful corporate policies:

Exemplar C7-8

The arbitration panel shall have no power to award damages that are punitive in nature, that do not measure a party's actual damages, or that are inconsistent with the Release and Indemnification provisions or any other terms of the engagement letter. The parties further agree that if the arbitration panel determines to award pre- or post-judgment interest, any such interest shall be computed on a simple basis at a rate of three percent. The parties accept and acknowledge that any demand for arbitration must be issued within one year from the date the demanding party becomes aware or should reasonably have become aware of the facts that give rise to the alleged liability and, in any event, no later than two years after the cause of action accrued.

Exemplar C7-9

EXCEPT AS PROVIDED BY THE RULES AND THISAGREEMENT, ARBITRATION SHALL BETHE SOLE, EXCLUSIVEAND FINAL REMEDY FOR ANY DISPUTE BETWEEN THE COMPANY AND CONSULTANT. ACCORDINGLY, EXCEPT AS PROVIDED FOR BY THE RULES AND THIS AGREEMENT, NEITHER THE COMPANY NOR CONSULTANT WILL BE PERMITTED TO PURSUE COURT ACTION REGARDING CLAIMS THAT ARE SUBJECT TO ARBITRATION. NOTWITHSTANDING, THEARBITRATOR WILL NOTHAVE THE AUTHORITY TO DISREGARD OR REFUSE TO ENFORCE ANY LAWFUL COMPANY POLICY, AND THE ARBITRATOR SHALLNOT ORDEROR REQUIRE THE COMPANY TO ADOPT A POLICY NOT OTHERWISE REQUIRED BY LAW.

Compliance with Law

In the context of certain substantive areas, such as employment contracts, applicable law may not permit the assignment of legal costs and fees arising from an arbitration to the losing party:

Exemplar C7-10

Subject to Disclosing Party’s right to seek injunctive relief as provided in this Agreement, in the event of a dispute concerning this Agreement or the parties’ obligations hereunder, the parties shall endeavor in good faith to settle the dispute through negotiation. If the dispute cannot be resolved through negotiation, or another mutually agreeable dispute resolution mechanism, either party has the right to request non-binding mediation. If mediation fails to resolve the dispute, the parties agree to submit the matter in dispute to binding arbitration. Written notice of the intent to submit a matter to arbitration shall be given by the party requesting the same. The arbitration proceedings shall be conducted in accordance with the CPR Rules for Non-Administered Arbitration, then in effect, or, if the parties so agree, the relevant rules of another arbitration entity or organization. In any case, regardless of any rules of the selected arbitration organization to the contrary, only one (1) arbitrator shall be used to decide the outcome of the arbitration who shall have ultimate authority to resolve all matters in the arbitration, including but not limited to, disputes over the enforceability of this arbitration provision or claims of unconscionability. Such arbitration shall be held in Covington, Kentucky, or if the parties agree upon another location. The prevailing party shall be entitled to an award of reasonable attorneys’ fees. Notwithstanding the foregoing, if applicable state law imposes an obligation of mutuality or otherwise prohibits such an award, each party shall bear its own attorney’s fees and costs. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. §§1 et seq, and judgement upon the arbitrator’s award may be entered in any court having jurisdiction over such matter. Each party agrees that any applicable limitations period, whether arising from contract, statute, or otherwise, will be tolled and suspended beginning when a party provides written notice to the other party, as provided for in these Terms, of a dispute to be resolved under this section or when the parties begin negotiations under this section, whichever is earlier. Tolling and suspension of the limitations period will continue until: (i) the parties resolve the dispute as evidenced by a written settlement agreement or (ii) 45 calendar days after a binding arbitration decision is rendered, whichever is earlier. Notwithstanding the foregoing, in the absence of a written notice from one party to the other to submit the dispute to either non-binding mediation or binding arbitration (an “ADR Notice”), then either party may provide the other party with written notice that it desires the running of the limitations period to recommence. Such limitations period shall recommence 45 days thereafter, unless within such 45-day period the receiving party delivers an ADR Notice to the other party, in which event the limitations period shall be tolled and suspended as set forth above.

Exemplar C7-11

CONSULTANT AGREES THAT ANY ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AND THAT THE NEUTRAL ARBITRATOR WILLBE SELECTED IN A MANNER CONSISTENT WITH AAA’S NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES. CONSULTANT AGREES THAT THE ARBITRATOR SHALL HAVE THE POWERTO DECIDE ANY MOTIONS BROUGHT BY ANY PARTY TO THE ARBITRATION, INCLUDING MOTIONS FOR SUMMARY JUDGMENT AND/OR ADJUDICATION, MOTIONS TO DISMISS AND DEMURRERS, AND MOTIONS FOR CLASS CERTIFICATION, PRIOR TO ANY ARBITRATION HEARING. CONSULTANT ALSO AGREES THAT THEARBITRATOR SHALL HAVE THE POWER TO AWARD ANY REMEDIES AVAILABLE UNDER APPLICABLE LAW, AND THAT THE ARBITRATOR SHALL AWARD ATTORNEYS’ FEES AND COSTS TO THE PREVAILING PARTY EXCEPT AS PROHIBITEDBY LAW. CONSULTANT UNDERSTANDS THAT THE COMPANY WILL PAY FOR ANY ADMINISTRATIVE OR HEARINGFEES CHARGED BY THEARBITRATOR OR AAA, EXCEPT THAT CONSULTANT SHALL PAY THE FIRST $125.00 OF ANY FILING FEES ASSOCIATED WITHANY ARBITRATION CONSULTANT INITIATES. CONSULTANT AGREES THAT THE ARBITRATOR SHALL ADMINISTER AND CONDUCT ANY ARBITRATION IN A MANNER CONSISTENT WITH THE RULES AND THAT TO THE EXTENT THAT THE AAA’S NATIONAL RULES FOR THE RESOLUTION OF EMPLOYMENT DISPUTES CONFLICT WITH THE RULES, THE RULES SHALL TAKE PRECEDENCE. CONSULTANT AGREESTHAT THE DECISION OF THE ARBITRATOR SHALL BE IN WRITING.

Arbitration/Alternative Dispute Resolution

Commercial Contract

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