This arbitration agreement is between
The Claimant has a claim against the Respondent arising out of a dispute over
The parties have decided to refer to and finally resolve the Dispute through arbitration under the applicable rules (the "Rules") of the
This agreement is intended to serve as the parties' submission of the Dispute to arbitration and sets forth the terms on which the arbitration will be conducted.
The parties therefore agree as follows:
1. SUBMITTAL TO ARBITRATION.
The parties shall not litigate their Dispute. The Dispute shall be determined finally by binding arbitration conducted before the Arbitrator described below under the provisions set forth in this agreement (the "Arbitration"). The parties will abide by and perform any ruling, judgment, or award issued by the Arbitrator, and any court having jurisdiction may enter judgment on the award.
2. INITIATION OF ARBITRATION.
To initiate the arbitration process, the Claimant must file a written claim with the governing authority. Claims can be filed at the office of
(a) each party shall appoint an Arbitrator, and these two appointed Arbitrators shall appoint a third Arbitrator, who shall act as chairman of the tribunal; (b) if either party fails to appoint an Arbitrator within days of receipt of notice of the appointment of an Arbitrator by the other party, such Arbitrator shall at the written request of either party be appointed by ; (c) if the two Arbitrators to be appointed by the parties fail to agree on a third Arbitrator within days of the appointment of the second Arbitrator, the third Arbitrator shall be appointed at the written request of either party by ; (d) if a vacancy arises because any Arbitrator dies, resigns, refuses to act, or becomes incapable of performing his or her duties, the vacancy shall be filled by the method by which that Arbitrator was originally appointed.
The place of Arbitration shall be
5. APPLICABLE LAW AND RULES.
- (a) Applicable Law. The agreement shall be governed by and interpreted in accordance with the laws of
. Judgment on the award rendered by the Arbitrator smay be entered by any court having jurisdiction thereof. The Arbitrator sshall determine the Dispute in accordance with the substantive law of the state of , exclusive of its conflict-of-law rules.
- (b) Arbitration Rules. The Arbitration shall be conducted in accordance with the Rules. In the event of a conflict between this agreement and the Rules, this agreement shall govern. The rules applicable to attorney-client and work-product privileges, and to settlement offers, will be honored in the Arbitration as though the case were being determined in a
state or federal court.
- (c) Familiarity with Rules. The parties hereby state that they have read the procedures and are familiar with the Rules relating to arbitration.
8. CONDUCT OF HEARING.
- (a) Management of Proceedings. The Arbitrator
sshall manage the proceedings as he or she theydeem sappropriate so as to make the Arbitrator sexpeditious, economical, and less burdensome than litigation.
- (b) Powers. The Arbitrator
- (i) Award any relief that could be awarded by a
- (ii) Hear and decide the Dispute on the evidence presented even if a party notified of the date and time of the Hearing fails to appear;
- (iii) To provide for speed and efficiency,
- A. limit issues and discovery to focus on the core of the Dispute,
- B. limit the time allotted to each party for presentation of its case, and
- C. exclude testimony and other evidence
it theydeem sirrelevant, cumulative, or inadmissible; and
- (iv) In the course of the proceedings, order any provisional or equitable remedy, including preliminary or mandatory injunction, that
it theydeem sjust and equitable.
- (i) Award any relief that could be awarded by a
- (c) Oath Required. All testimony shall be presented under oath or affirmation.
- (d) Right to Counsel. Each party shall have the right to be represented by counsel at any Arbitration covered by this agreement.
- (e) Subpoenas. Each party and the Arbitrator
sshall be entitled to subpoena witnesses for attendance at the Hearing and for the production of records. All provisions of applicable state or federal rules of civil procedure relating to fees and expenses of witnesses shall be equally applicable in this Arbitration.
- (f) Unavailable Witnesses. Use of depositions of witnesses who cannot be subpoenaed or are unable to attend the Hearing will be permitted to the extent permitted by applicable state or federal rules of civil procedure.
- (g) Deadlines. When an event is to be completed by a specific date, it must be completed by 5:00 p.m. on that date.
- (h) Copies. A party providing any document to the other party shall also provide a copy to the Arbitrator
s. (i) No Record. There will be no stenographic record of the Hearing. (i) Record of Proceedings. Either party may, at its expense, have the Hearing transcribed. The recording party shall provide a copy of any prepared transcript to the Arbitrator s .
- (a) Form of Award.
The award will be a reasoned award, and will be issued in writing and signed by the Arbitrator s within days of the conclusion of the Hearing . The Arbitrator s may make specific findings of fact or law. The award will be based on the evidence presented and the law argued by the parties. The award will be a decision only, without opinion or reasoning and if in favor of the Claimant, shall specify only the amount of damages awarded.
- (b) Timing.
The award shall be rendered within months of the commencement of the Arbitration, unless this time limit is extended by the Arbitrator s . Barring extraordinary circumstances, Arbitration proceedings will be concluded within days from the date the Arbitrator s are is appointed. The arbitral tribunal may extend this time limit in the interests of justice. Failure to adhere to this time limit shall not constitute a basis for challenging the award.
- (c) Written Statement. Before rendering the final award, the Arbitrator
sshall submit to the parties an unsigned draft of the proposed award. Within business days after receiving this draft, a party may serve on the other party and file with the Arbitrator sa written statement outlining any claimed errors of fact, law, computation, or other ("Written Statement"). Within business days after receipt of the Written Statement of each party, the Arbitrator sshall render its theirfinal award.
- (d) Damages.
The Arbitrator s is are not empowered to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. Each party hereby irrevocably waives any right to recover damages with respect to the Dispute. The Arbitrator s is are empowered to award punitive damages in excess of compensatory damages. If punitive damages are awarded, the Arbitrator s will separately state those damages and set forth the factual and legal basis for that portion of the award. However, in no event may a punitive damage award exceed .
Costs. In the final award, the Arbitrator s will split the costs of the Arbitration evenly between the parties or as the Arbitrators deem Arbitrator deems just and equitable. Fees. In the final award, the Arbitrator s is are authorized and encouraged to award, as it they deem deems fair and just, to the Party deemed by the Arbitrator s to be the prevailing party, that party's costs and fees. "Costs and fees" means all reasonable pre-award expenses of the Arbitration, including the Arbitrator 's s' fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, and attorneys' fees.
In addition to any other consideration, each party's promise to resolve the Dispute by Arbitration in accordance with the provisions of this agreement, rather than through the courts or other bodies, is consideration for the other party's promise.
12. EXCLUSION OF LIABILITY.
No amendment to this agreement will be effective unless it is in writing and signed by a party or its authorized representative.
14. ASSIGNMENT AND DELEGATION.
- (a) No Assignment. Neither party may assign any of its rights under this agreement, except with the prior written consent of the other party. All voluntary assignments of rights are limited by this subsection.
- (b) No Delegation. Neither party may delegate any performance under this agreement, except with the prior written consent of the other party.
- (c) Enforceability of an Assignment or Delegation. If a purported assignment or purported delegation is made in violation of this section, it is void.
15. COUNTERPARTS; ELECTRONIC SIGNATURES.
- (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
- (b) Electronic Signatures. This agreement, agreements ancillary to this agreement,and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.
If any one or more of the provisions contained in this agreement is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this agreement, but this agreement will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this agreement to be unreasonable.
- (a) Writing; Permitted Delivery Methods. Each party giving or making any notice, request, demand, or other communication required or permitted by this agreement shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this agreement: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
- (b) Addresses. A party shall address notices under this section to a party at the following addresses:
- If to the Claimant:
- If to the Respondent:
- (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.
No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this agreement will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.
19. ENTIRE AGREEMENT.
This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.
The descriptive headings of the sections and subsections of this agreement are for convenience only, and do not affect this agreement's construction or interpretation.
This agreement will become effective when all parties have signed it. The date this agreement is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this agreement.
22. NECESSARY ACTS; FURTHER ASSURANCES.
Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this agreement contemplates or to evidence or carry out the intent and purposes of this agreement.
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Each party is signing this agreement on the date stated opposite that party's signature.
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