Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement. (a) This Dispute Resolution Provision concerns the resolution of any controversies or claims among the parties, whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For the purposes of this Dispute Resolution Provision only, the term “parties” shall include any parent corporation, subsidiary or affiliate of Bank involved in the servicing, management or administration of any obligation described or evidenced by this Agreement. (b) At the request of any party to this Agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the “Act”). The Act will apply even though this Agreement provides that it is governed by the law of a specified state. (c) Arbitration proceedings will be determined in accordance with the Act, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association or any successor thereof (“AAA”), and the terms of this Dispute Resolution Provision. In the event of any inconsistency, the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, the Bank may designate another arbitration organization with similar procedures to serve as the provider of arbitration. (d) The arbitration shall be administered by AAA and conducted, unless otherwise required by law, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateral, in the state specified in the governing law section of this Agreement. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced. (e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement. (f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. (g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration. (h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.
Appears in 2 contracts
Samples: Loan Agreement (Martha Stewart Living Omnimedia Inc), Loan Agreement (Martha Stewart Living Omnimedia Inc)
Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns The parties shall use and strictly adhere to the following dispute resolution of processes, except as otherwise expressly provided in this Section 14.9, to resolve any and all disputes, controversies or claims among the partiesclaims, whether arising in based on contract, tort or by tort, statute, including but not limited to controversies fraud, misrepresentation or claims that arise any other legal or equitable theory (hereinafter, "Dispute(s)"), arising out of or relate to: (i) relating to this Agreement (and any prior agreement this Agreement supersedes), including any renewalswithout limitation, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For its making, termination, non-renewal, its alleged breach and the purposes subject matter of this Dispute Resolution Provision onlyAgreement (E.G., the term “parties” shall include any parent corporation, subsidiary products or affiliate of Bank involved in the servicing, management services furnished hereunder or administration of any obligation described or evidenced by this Agreement.those related to those furnished):
(b) At The parties shall first attempt to settle each Dispute through good faith negotiations. The aggrieved party shall initiate such negotiations by giving the request other party(ies) written notice of the existence and nature of the Dispute. The other party(ies) shall in a writing to the aggrieved party acknowledge such notice of Dispute within ten (10) business days. Such acknowledgment may also set forth any Dispute that the acknowledging party desires to have resolved in accordance with this AgreementSection.
(c) Thereafter, if any Claim shall be Dispute is not resolved by binding the parties through negotiation within thirty (30) calendar days of the date of the notice of acknowledgment, either party may terminate informal negotiations with respect to that Dispute and have the right, by delivery of written notice thereof (the "Arbitration Notice") to the other party, to submit the matter to be finally settled by arbitration in accordance with the Federal Commercial Arbitration Act (Title 9Rules then in effect of the American Arbitration Association, U.S. Code) as modified herein (the “Act”"AAA Rules"). The Act will apply even though this Agreement provides that it is governed place of arbitration shall be Oklahoma City, Oklahoma. All matters so submitted to arbitration shall be settled by three arbitrators. The disputing party and the Company shall each designate one arbitrator within 20 days of the delivery of the Arbitration Notice. If either the disputing party or the Company fails so to timely designate an arbitrator, the matter shall be resolved by the law one arbitrator timely designated. The disputing party and the Company shall cause the designated arbitrators to mutually agree upon and to designate a third arbitrator, PROVIDED, HOWEVER, that failing such agreement within 45 days of a specified state.
(c) delivery of the Arbitration proceedings will Notice, the third arbitrator shall be determined appointed in accordance with the ActAAA Rules. The disputing party and the Company, shall be responsible for the payment of the fees and expenses of their respectively designated arbitrators and shall bear equally the fees and expenses of the third arbitrator. The disputing party and the Company, shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of the last arbitrator. The arbitral tribunal is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. The final decision of the majority of the arbitrators shall be furnished to the disputing party and the Company and each of the Stockholders in writing and shall constitute a conclusive determination of the matter in question, binding upon JWC, the then-current rules Company and procedures the Stockholders and shall not be contested by any of them. Such decision may be used in a court of law only for the arbitration purpose of financial services disputes seeking enforcement of the American Arbitration Association arbitrators' award. Any arbitration proceeding, decision or any successor thereof (“AAA”), award rendered hereunder and the terms of this Dispute Resolution Provision. In the event of any inconsistencyvalidity, the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision effect and interpretation of this arbitration clauseagreement shall be governed by the Federal Arbitration Act, the Bank 9 U.S.C. Sections 1-16, and judgment upon any award may designate another arbitration organization with similar procedures to serve as the provider be entered in any court of arbitrationcompetent jurisdiction.
(d) The arbitration shall be administered by AAA Company and conducted, unless otherwise required by law, in any U.S. each of the Stockholders hereby irrevocably consents to the exclusive jurisdiction of the state where real or tangible personal property collateral for this credit is located or if there is no such collateral, federal courts in the State of New York, and all state specified or federal courts competent to hear appeals therefrom, over any actions which may be commenced against any of them under or in the governing law section of connection with this Agreement. All Claims shall be determined The Company and each Stockholder hereby irrevocably waive, to the fullest extent permitted by one arbitrator; howeverapplicable law, if Claims exceed Five Million Dollars ($5,000,000), upon any objection which any of them may now or hereafter have to the request laying of venue of any party, such dispute brought in such court or any defense of inconvenient forum for the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days maintenance of such dispute in the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) daysXxxxxxxx Xxxxxxxx xx Xxx Xxxx xxx Xxx Xxxx Xxxxxx. The arbitrator(s) shall provide Company and each Stockholder hereby agree that a concise written statement of reasons for judgment in any such dispute may be enforced in other jurisdictions by suit on the awardjudgment or in any other manner provided by law. The arbitration award may be submitted Company and each Stockholder hereby consent to process being served by any court having jurisdiction party to be confirmed and have judgment entered and enforcedthis Agreement in any actions by the transmittal of a copy thereof in accordance with the provisions of Section 14.2.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitationEACH OF THE PARTIES HERETO, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s)AFTER CONSULTING WITH COUNSEL WAIVE THEIR RIGHTS, except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remediesIF ANY, such as but not limited toTO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS BETWEEN OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rightsITS NEGOTIATION, or (iv) act in a court of law to obtain an interim remedyEXECUTION, such as but not limited toPERFORMANCE, injunctive reliefSUBJECT MATTER, writ of possession or appointment of a receiverOR ANY COURSE OF CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any partyINCLUDING, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER WITHOUT LIMITATION ANY CLAIM UNDER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGESECURITIES ACT, THE PARTIES AGREE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO SECURITIES OR FRAUD OR BOTH, THE RACKETEER INFLUENCED AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY CORRUPT ORGANIZATIONS ACT, AS AMENDED, OR FEDERAL OR STATE COMMON LAW.
Appears in 1 contract
Samples: Stockholder and Investor Rights Agreement (Dobson Communications Corp)
Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns The parties shall use and strictly adhere to the following dispute resolution of processes, except as otherwise expressly provided in this Section 14.9, to resolve any and all disputes, controversies or claims among the partiesclaims, whether arising in based on contract, tort or by tort, statute, including but not limited to controversies fraud, misrepresentation or claims that arise any other legal or equitable theory (hereinafter, "Dispute(s)"), arising out of or relate to: (i) relating to this Agreement (and any prior agreement this Agreement supersedes), including any renewalswithout limitation, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For its making, termination, non-renewal, its alleged breach and the purposes subject matter of this Dispute Resolution Provision onlyAgreement (e.g., the term “parties” shall include any parent corporation, subsidiary products or affiliate of Bank involved in the servicing, management services furnished hereunder or administration of any obligation described or evidenced by this Agreement.those related to those furnished):
(b) At The parties shall first attempt to settle each Dispute through good faith negotiations. The aggrieved party shall initiate such negotiations by giving the request other party(ies) written notice of the existence and nature of the Dispute. The other party(ies) shall in a writing to the aggrieved party acknowledge such notice of Dispute within ten (10) business days. Such acknowledgment may also set forth any Dispute that the acknowledging party desires to have resolved in accordance with this AgreementSection.
(c) Thereafter, if any Claim shall be Dispute is not resolved by binding the parties through negotiation within thirty (30) calendar days of the date of the notice of acknowledgment, either party may terminate informal negotiations with respect to that Dispute and have the right, by delivery of written notice thereof (the "Arbitration Notice") to the other party, to submit the matter to be finally settled by arbitration in accordance with the Federal Commercial Arbitration Act (Title 9Rules then in effect of the American Arbitration Association, U.S. Code) as modified herein (the “Act”"AAA Rules"). The Act will apply even though this Agreement provides that it is governed place of arbitration shall be Oklahoma City, Oklahoma. All matters so submitted to arbitration shall be settled by three arbitrators. JWC and the Company shall each designate one arbitrator within 20 days of the delivery of the Arbitration Notice. If either JWC or the Company fails so to timely designate an arbitrator, the matter shall be resolved by the law one arbitrator timely designated. JWC and the Company shall cause the designated arbitrators to mutually agree upon and to designate a third arbitrator, provided, however, that failing such agreement within 45 days of a specified state.
(c) delivery of the Arbitration proceedings will Notice, the third arbitrator shall be determined appointed in accordance with the ActAAA Rules. JWC and the Company shall be responsible for the payment of the fees and expenses of their respectively designated arbitrators and shall bear equally the fees and expenses of the third arbitrator. JWC and the Company shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of the last arbitrator. The arbitral tribunal is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. The final decision of the majority of the arbitrators shall be furnished to JWC, the then-current rules Company and procedures each of the Stockholders in writing and shall constitute a conclusive determination of the matter in question, binding upon JWC, the Company and the Stockholders and shall not be contested by any of them. Such decision may be used in a court of law only for the arbitration purpose of financial services disputes seeking enforcement of the American Arbitration Association arbitrators' award. Any arbitration proceeding, decision or any successor thereof (“AAA”), award rendered hereunder and the terms of this Dispute Resolution Provision. In the event of any inconsistencyvalidity, the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision effect and interpretation of this arbitration clauseagreement shall be governed by the Federal Arbitration Act, the Bank 9 U.S.C. Sections 1-16, and judgment upon any award may designate another arbitration organization with similar procedures to serve as the provider be entered in any court of arbitrationcompetent jurisdiction.
(d) The arbitration shall be administered by AAA Company and conducted, unless otherwise required by law, in any U.S. each of the Stockholders hereby irrevocably consents to the exclusive jurisdiction of the state where real or tangible personal property collateral for this credit is located or if there is no such collateral, federal courts in the State of New York, and all state specified or federal courts competent to hear appeals therefrom, over any actions which may be commenced against any of them under or in the governing law section of connection with this Agreement. All Claims shall be determined The Company and each Stockholder hereby irrevocably waive, to the fullest extent permitted by one arbitrator; howeverapplicable law, if Claims exceed Five Million Dollars ($5,000,000), upon any objection which any of them may now or hereafter have to the request laying of venue of any party, such dispute brought in such court or any defense of inconvenient forum for the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days maintenance of such dispute in the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) daysXxxxxxxx Xxxxxxxx xx Xxx Xxxx xxx Xxx Xxxx Xxxxxx. The arbitrator(s) shall provide Company and each Stockholder hereby agree that a concise written statement of reasons for judgment in any such dispute may be enforced in other jurisdictions by suit on the awardjudgment or in any other manner provided by law. The arbitration award may be submitted Company and each Stockholder hereby consent to any court having jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined process being served by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to actions by the extent any Claim is not arbitrated, transmittal of a copy thereof in accordance with the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect provisions of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAWSection 14.2.
Appears in 1 contract
Samples: Stockholder and Investor Rights Agreement (Dobson Communications Corp)
Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns the resolution of any controversies or claims among the parties, whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (iii) any other Loan Document (collectively a “Claim”). For the purposes of this Dispute Resolution Provision only, the term “parties” shall include any parent corporation, subsidiary or affiliate of Bank involved in the servicing, management or administration of any obligation described or evidenced by this Agreement.
(b) At the request of any party to this Agreement, any Claim shall be resolved by binding arbitration in accordance with the Federal Arbitration Act (Title 9, U.S. Code) (the “Act”). The Act will apply even though this Agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the Act, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association or any successor thereof (“AAA”), and the terms of this Dispute Resolution Provision. In the event of any inconsistency, the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, the Bank may designate another arbitration organization with similar procedures to serve as the provider of arbitration.
(d) The arbitration shall be administered by AAA and conducted, unless otherwise required by law, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateralNew York, in the state specified in the governing law section of this AgreementNew York. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.
Appears in 1 contract
Samples: Loan Agreement (Martha Stewart Living Omnimedia Inc)
Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns The parties shall use and strictly adhere to the following dispute resolution of processes, except as otherwise expressly provided in this Section 3.6, to resolve any and all disputes, controversies or claims among the partiesclaims, whether arising in based on contract, tort or by tort, statute, including but not limited to controversies fraud, misrepresentation or claims that arise any other legal or equitable theory (hereinafter, "Dispute(s)"), arising out of or relate to: (i) relating to this Agreement (and any prior agreement this Agreement supersedes), including any renewalswithout limitation, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For its making, termination, non-renewal, its alleged breach and the purposes subject matter of this Dispute Resolution Provision onlyAgreement (e.g., the term “parties” shall include any parent corporation, subsidiary products or affiliate of Bank involved in the servicing, management services furnished hereunder or administration of any obligation described or evidenced by this Agreement.those related to those furnished):
(b) At The parties shall first attempt to settle each Dispute through good faith negotiations. The aggrieved party shall initiate such negotiations by giving the request other party(ies) written notice of the existence and nature of the Dispute. The other party(ies) shall in a writing to the aggrieved party acknowledge such notice of Dispute within ten (10) business days. Such acknowledgment may also set forth any Dispute that the acknowledging party desires to have resolved in accordance with this AgreementSection.
(c) Thereafter, if any Claim shall be Dispute is not resolved by binding the parties through negotiation within thirty (30) calendar days of the date of the notice of acknowledgment, either party may terminate informal negotiations with respect to that Dispute and have the right, by delivery of written notice thereof (the "Arbitration Notice") to the other party, to submit the matter to be finally settled by arbitration in accordance with the Federal Commercial Arbitration Act (Title 9Rules then in effect of the American Arbitration Association, U.S. Code) as modified herein (the “Act”"AAA Rules"). The Act will apply even though this Agreement provides that it is governed place of arbitration shall be Oklahoma City, Oklahoma. All matters so submitted to arbitration shall be settled by three arbitrators. The disputing party and the Company shall each designate one arbitrator within 20 days of the delivery of the Arbitration Notice. If either the disputing party or the Company fails so to timely designate an arbitrator, the matter shall be resolved by the law one arbitrator timely designated. The disputing party and the Company shall cause the designated arbitrators to mutually agree upon and to designate a third arbitrator, provided, however, that failing such agreement within 45 days of a specified state.
(c) delivery of the Arbitration proceedings will Notice, the third arbitrator shall be determined appointed in accordance with the ActAAA Rules. The disputing party and the Company, the then-current rules and procedures shall be responsible for the arbitration of financial services disputes payment of the American Arbitration Association or any successor thereof (“AAA”), fees and expenses of their respectively designated arbitrators and shall bear equally the fees and expenses of the third arbitrator. The disputing party and the terms Company, shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of this Dispute Resolution Provisionthe last arbitrator. In The arbitral tribunal is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. The final decision of the event majority of the arbitrators shall be furnished to the disputing party and the Company and AWS in writing and shall constitute a conclusive determination of the matter in question, binding upon the Company and AWS and shall not be contested by any inconsistencyof them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators' award. Any arbitration proceeding, decision or award rendered hereunder and the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision validity, effect and interpretation of this arbitration clauseagreement shall be governed by the Federal Arbitration Act, the Bank 9 U.S.C. ss.ss.1-16, and judgment upon any award may designate another arbitration organization with similar procedures to serve as the provider be entered in any court of arbitrationcompetent jurisdiction.
(d) The arbitration shall be administered by AAA and conductedEACH OF THE PARTIES HERETO, unless otherwise required by lawAFTER CONSULTING WITH COUNSEL WAIVE THEIR RIGHTS, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateralIF ANY, in the state specified in the governing law section of this Agreement. All Claims shall be determined by one arbitrator; howeverTO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS BETWEEN OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, if Claims exceed Five Million Dollars ($5,000,000)ITS NEGOTIATION, upon the request of any partyEXECUTION, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. HoweverPERFORMANCE, the arbitrator(s)SUBJECT MATTER, upon a showing of good causeOR ANY COURSE OF CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitationINCLUDING, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER WITHOUT LIMITATION ANY CLAIM UNDER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGESECURITIES ACT, THE PARTIES AGREE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO SECURITIES OR FRAUD OR BOTH, THE RACKETEER INFLUENCED AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY CORRUPT ORGANIZATIONS ACT, AS AMENDED, OR FEDERAL OR STATE COMMON LAW.
Appears in 1 contract
Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns The parties shall use and strictly adhere to the following dispute resolution of processes, except as otherwise expressly provided in this Section 3.6, to resolve any and all disputes, controversies or claims among the partiesclaims, whether arising in based on contract, tort or by tort, statute, including but not limited to controversies fraud, misrepresentation or claims that arise any other legal or equitable theory (hereinafter, "Dispute(s)"), arising out of or relate to: (i) relating to this Agreement (and any prior agreement this Agreement supersedes), including any renewalswithout limitation, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For its making, termination, non-renewal, its alleged breach and the purposes subject matter of this Dispute Resolution Provision onlyAgreement (e.g., the term “parties” shall include any parent corporation, subsidiary products or affiliate of Bank involved in the servicing, management services furnished hereunder or administration of any obligation described or evidenced by this Agreement.those related to those furnished):
(b) At The parties shall first attempt to settle each Dispute through good faith negotiations. The aggrieved party shall initiate such negotiations by giving the request other party(ies) written notice of the existence and nature of the Dispute. The other party(ies) shall in a writing to the aggrieved party acknowledge such notice of Dispute within ten (10) business days. Such acknowledgment may also set forth any Dispute that the acknowledging party desires to have resolved in accordance with this AgreementSection.
(c) Thereafter, if any Claim shall be Dispute is not resolved by binding the parties through negotiation within thirty (30) calendar days of the date of the notice of acknowledgment, either party may terminate informal negotiations with respect to that Dispute and have the right, by delivery of written notice thereof (the "Arbitration Notice") to the other party, to submit the matter to be finally settled by arbitration in accordance with the Federal Commercial Arbitration Act (Title 9Rules then in effect of the American Arbitration Association, U.S. Code) as modified herein (the “Act”"AAA Rules"). The Act will apply even though this Agreement provides that it is governed place of arbitration shall be Oklahoma City, Oklahoma. All matters so submitted to arbitration shall be settled by three arbitrators. The disputing party and the Company shall each designate one arbitrator within 20 days of the delivery of the Arbitration Notice. If either the disputing party or the Company fails so to timely designate an arbitrator, the matter shall be resolved by the law one arbitrator timely designated. The disputing party and the Company shall cause the designated arbitrators to mutually agree upon and to designate a third arbitrator, provided, however, that failing such agreement within 45 days of a specified state.
(c) delivery of the Arbitration proceedings will Notice, the third arbitrator shall be determined appointed in accordance with the ActAAA Rules. The disputing party and the Company, the then-current rules and procedures shall be responsible for the arbitration of financial services disputes payment of the American Arbitration Association or any successor thereof (“AAA”), fees and expenses of their respectively designated arbitrators and shall bear equally the fees and expenses of the third arbitrator. The disputing party and the terms Company, shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of this Dispute Resolution Provisionthe last arbitrator. In The arbitral tribunal is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. The final decision of the event majority of the arbitrators shall be furnished to the disputing party and the Company and AWS in writing and shall constitute a conclusive determination of the matter in question, binding upon the Company and AWS and shall not be contested by any inconsistencyof them. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators' award. Any arbitration proceeding, decision or award rendered hereunder and the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision validity, effect and interpretation of this arbitration clauseagreement shall be governed by the Federal Arbitration Act, the Bank 9 U.S.C. Sections 1-16, and judgment upon any award may designate another arbitration organization with similar procedures to serve as the provider be entered in any court of arbitrationcompetent jurisdiction.
(d) The arbitration shall be administered by AAA and conductedEACH OF THE PARTIES HERETO, unless otherwise required by lawAFTER CONSULTING WITH COUNSEL WAIVE THEIR RIGHTS, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateralIF ANY, in the state specified in the governing law section of this Agreement. All Claims shall be determined by one arbitrator; howeverTO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS BETWEEN OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, if Claims exceed Five Million Dollars ($5,000,000)ITS NEGOTIATION, upon the request of any partyEXECUTION, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. HoweverPERFORMANCE, the arbitrator(s)SUBJECT MATTER, upon a showing of good causeOR ANY COURSE OF CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitationINCLUDING, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER WITHOUT LIMITATION ANY CLAIM UNDER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGESECURITIES ACT, THE PARTIES AGREE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO SECURITIES OR FRAUD OR BOTH, THE RACKETEER INFLUENCED AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY CORRUPT ORGANIZATIONS ACT, AS AMENDED, OR FEDERAL OR STATE COMMON LAW.
Appears in 1 contract
Samples: PCS Transfer Rights Agreement (Dobson Communications Corp)
Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns The parties shall use and strictly adhere to the following dispute resolution of processes, except as otherwise expressly provided in this Section 14.10, to resolve any and all disputes, controversies or claims among the partiesclaims, whether arising in based on contract, tort or by tort, statute, including but not limited to controversies fraud, misrepresentation or claims that arise any other legal or equitable theory (hereinafter, "Dispute(s)"), arising out of or relate to: (i) relating to this Agreement (and any prior agreement this Agreement supersedes), including any renewalswithout limitation, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For its making, termination, non-renewal, its alleged breach and the purposes subject matter of this Agreement (E.G., products or services furnished hereunder or those related to those furnished):
a) The parties shall first attempt to settle each Dispute Resolution Provision only, through good faith negotiations. The aggrieved party shall initiate such negotiations by giving the term “parties” other party(ies) written notice of the existence and nature of the Dispute. The other party(ies) shall include in a writing to the aggrieved party acknowledge such notice of Dispute within ten (10) business days. Such acknowledgment may also set forth any parent corporation, subsidiary or affiliate of Bank involved Dispute that the acknowledging party desires to have resolved in the servicing, management or administration of any obligation described or evidenced by accordance with this AgreementSection.
(ba) At the request of Thereafter, if any party to this Agreement, any Claim shall be Dispute is not resolved by binding the parties through negotiation within thirty (30) calendar days of the date of the notice of acknowledgment, either party may terminate informal negotiations with respect to that Dispute and have the right, by delivery of written notice thereof (the "Arbitration Notice") to the other party, to submit the matter to be finally settled by arbitration in accordance with the Federal Commercial Arbitration Act (Title 9Rules then in effect of the American Arbitration Association, U.S. Code) as modified herein (the “Act”"AAA Rules"). The Act will apply even though this Agreement provides that it is governed place of arbitration shall be Oklahoma City, Oklahoma. All matters so submitted to arbitration shall be settled by three arbitrators. The disputing party and the Company shall each designate one arbitrator within 20 days of the delivery of the Arbitration Notice. If either the disputing party or the Company fails so to timely designate an arbitrator, the matter shall be resolved by the law one arbitrator timely designated. The disputing party and the Company shall cause the designated arbitrators to mutually agree upon and to designate a third arbitrator, PROVIDED, HOWEVER, that failing such agreement within 45 days of a specified state.
(c) delivery of the Arbitration proceedings will Notice, the third arbitrator shall be determined appointed in accordance with the ActAAA Rules. The disputing party and the Company, shall be responsible for the payment of the fees and expenses of their respectively designated arbitrators and shall bear equally the fees and expenses of the third arbitrator. The disputing party and the Company, shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of the last arbitrator. The arbitral tribunal is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. The final decision of the majority of the arbitrators shall be furnished to the disputing party and the Company and each of the Stockholders in writing and shall constitute a conclusive determination of the matter in question, binding upon JWC, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association or any successor thereof (“AAA”), Company and the terms Stockholders and shall not be contested by any of this Dispute Resolution Provisionthem. In the event of any inconsistency, the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision of this arbitration clause, the Bank may designate another arbitration organization with similar procedures to serve as the provider of arbitration.
(d) The arbitration shall be administered by AAA and conducted, unless otherwise required by law, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateral, in the state specified in the governing law section of this Agreement. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award Such decision may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act used in a court of law to obtain an interim remedyonly for the purpose of seeking enforcement of the arbitrators' award. Any arbitration proceeding, such as but not limited todecision or award rendered hereunder and the validity, injunctive reliefeffect and interpretation of this arbitration agreement shall be governed by the Federal Arbitration Act, writ 9 U.S.C. Sections 1-16, and judgment upon any award may be entered in any court of possession or appointment of a receiver, or additional or supplementary remediescompetent jurisdiction.
(ga) The filing of a court action is not intended to constitute a waiver Company and each of the right Stockholders hereby irrevocably consents to the exclusive jurisdiction of the state or federal courts in the State of New York, and all state or federal courts competent to hear appeals therefrom, over any actions which may be commenced against any of them under or in connection with this Agreement. The Company and each Stockholder hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which any of them may now or hereafter have to the laying of venue of any party, including such dispute brought in such court or any defense of inconvenient forum for the suing party, thereafter to require submittal maintenance of such dispute in the Claim to arbitration.
(h) Any arbitration or trial by Xxxxxxxx Xxxxxxxx xx Xxx Xxxx xxx Xxx Xxxx Xxxxxx. The Company and each Stockholder hereby agree that a judge of judgment in any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver such dispute may be determined only enforced in other jurisdictions by a court and not suit on the judgment or in any other manner provided by an arbitratorlaw. The parties Company and each Stockholder hereby consent to process being served by any party to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrateactions by the transmittal of a copy thereof in accordance with the provisions of Section 14.3.
a) EACH OF THE PARTIES HERETO, to the extent any Claim is not arbitratedAFTER CONSULTING WITH COUNSEL WAIVE THEIR RIGHTS, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limitedIF ANY, voided or found unenforceable. WHETHER TO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS BETWEEN OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, ITS NEGOTIATION, EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION ANY CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGEUNDER THE SECURITIES ACT, THE PARTIES AGREE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO SECURITIES OR FRAUD OR BOTH, THE RACKETEER INFLUENCED AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY CORRUPT ORGANIZATIONS ACT, AS AMENDED, OR FEDERAL OR STATE COMMON LAW.
Appears in 1 contract
Samples: Stockholder and Investor Rights Agreement (Dobson Communications Corp)
Dispute Resolution; Waiver of Jury Trial. This paragraph, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns The parties shall use and strictly adhere to the following dispute resolution of processes, except as otherwise expressly provided in this Section 10.9, to resolve any and all disputes, controversies or claims among the partiesclaims, whether arising in based on contract, tort or by tort, statute, including but not limited to controversies fraud, misrepresentation or claims that arise any other legal or equitable theory (hereinafter, "Dispute(s)"), arising out of or relate to: (i) relating to this Agreement (and any prior agreement this Agreement supersedes), including any renewalswithout limitation, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For its making, termination, non-renewal, its alleged breach and the purposes subject matter of this Dispute Resolution Provision onlyAgreement (E.G., the term “parties” shall include any parent corporation, subsidiary products or affiliate of Bank involved in the servicing, management services furnished hereunder or administration of any obligation described or evidenced by this Agreement.those related to those furnished):
(b) At The parties shall first attempt to settle each Dispute through good faith negotiations. The aggrieved party shall initiate such negotiations by giving the request other party(ies) written notice of the existence and nature of the Dispute. The other party(ies) shall in a writing to the aggrieved party acknowledge such notice of Dispute within ten (10) business days. Such acknowledgment may also set forth any Dispute that the acknowledging party desires to have resolved in accordance with this AgreementSection.
(c) Thereafter, if any Claim shall be Dispute is not resolved by binding the parties through negotiation within thirty (30) calendar days of the date of the notice of acknowledgment, either party may terminate informal negotiations with respect to that Dispute and have the right, by delivery of written notice thereof (the "Arbitration Notice") to the other party, to submit the matter to be finally settled by arbitration in accordance with the Federal Commercial Arbitration Act (Title 9Rules then in effect of the American Arbitration Association, U.S. Code) as modified herein (the “Act”"AAA Rules"). The Act will apply even though this Agreement provides that it is governed place of arbitration shall be Oklahoma City, Oklahoma. All matters so submitted to arbitration shall be settled by three arbitrators. The disputing party and the Company shall each designate one arbitrator within 20 days of the delivery of the Arbitration Notice. If either the disputing party or the Company fails so to timely designate an arbitrator, the matter shall be resolved by the law one arbitrator timely designated. The disputing party and the Company shall cause the designated arbitrators to mutually agree upon and to designate a third arbitrator, PROVIDED, HOWEVER, that failing such agreement within 45 days of a specified state.
(c) delivery of the Arbitration proceedings will Notice, the third arbitrator shall be determined appointed in accordance with the ActAAA Rules. The disputing party and the Company, shall be responsible for the payment of the fees and expenses of their respectively designated arbitrators and shall bear equally the fees and expenses of the third arbitrator. The disputing party and the Company, shall cause the arbitrators to decide the matter to be arbitrated pursuant hereto within 60 days after the appointment of the last arbitrator. The arbitral tribunal is not empowered to award damages in excess of compensatory damages and each party hereby irrevocably waives any right to recover punitive, exemplary or similar damages with respect to any Dispute. The final decision of the majority of the arbitrators shall be furnished to the disputing party and the Company and each of the Stockholders in writing and shall constitute a conclusive determination of the matter in question, binding upon JWC, the then-current rules Company and procedures the Stockholders and shall not be contested by any of them. Such decision may be used in a court of law only for the arbitration purpose of financial services disputes seeking enforcement of the American Arbitration Association arbitrators' award. Any arbitration proceeding, decision or any successor thereof (“AAA”), award rendered hereunder and the terms of this Dispute Resolution Provision. In the event of any inconsistencyvalidity, the terms of this Dispute Resolution Provision shall control. If AAA is unwilling or unable to (i) serve as the provider of arbitration or (ii) enforce any provision effect and interpretation of this arbitration clauseagreement shall be governed by the Federal Arbitration Act, the Bank 9 U.S.C. Sections 1-16, and judgment upon any award may designate another arbitration organization with similar procedures to serve as the provider be entered in any court of arbitrationcompetent jurisdiction.
(d) The arbitration shall be administered by AAA and conductedEACH OF THE PARTIES HERETO, unless otherwise required by lawAFTER CONSULTING WITH COUNSEL WAIVE THEIR RIGHTS, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateralIF ANY, in the state specified in the governing law section of this Agreement. All Claims shall be determined by one arbitrator; howeverTO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS BETWEEN OR AMONG THE PARTIES TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, if Claims exceed Five Million Dollars ($5,000,000)ITS NEGOTIATION, upon the request of any partyEXECUTION, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for arbitration and close within ninety (90) days of commencement and the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. HoweverPERFORMANCE, the arbitrator(s)SUBJECT MATTER, upon a showing of good causeOR ANY COURSE OF CONDUCT OR DEALING OR ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitationINCLUDING, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER WITHOUT LIMITATION ANY CLAIM UNDER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGESECURITIES ACT, THE PARTIES AGREE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, ANY OTHER STATE OR FEDERAL LAW RELATING TO SECURITIES OR FRAUD OR BOTH, THE RACKETEER INFLUENCED AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY CORRUPT ORGANIZATIONS ACT, AS AMENDED, OR FEDERAL OR STATE COMMON LAW.
Appears in 1 contract
Samples: Stockholder and Investor Rights Agreement (Dobson Communications Corp)
Dispute Resolution; Waiver of Jury Trial. This paragraphSubject to Section 2.5 hereof, including the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for if the parties entering into should have a dispute arising out of or relating to this Agreement.Agreement or the parties’ respective rights and duties hereunder, then the parties will resolve such dispute in the following manner:
(a) This Dispute Resolution Provision concerns Any party may at any time deliver to the others a written dispute notice setting forth a brief description of the issue(s) for which such notice initiates the dispute resolution of any controversies or claims among the parties, whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to: (i) this Agreement (including any renewals, extensions or modifications); or (ii) any other Loan Document (collectively a “Claim”). For the purposes of this Dispute Resolution Provision only, the term “parties” shall include any parent corporation, subsidiary or affiliate of Bank involved in the servicing, management or administration of any obligation described or evidenced mechanism contemplated by this AgreementSection 9.6.
(b) At During the request thirty (30)-day period following the delivery of any party the notice described in Section 9.6(a) above, appropriate representatives of the parties will meet and seek to this Agreement, any Claim shall be resolved by binding arbitration in accordance with resolve the Federal Arbitration Act (Title 9, U.S. Codedisputed issue(s) (the “Act”). The Act will apply even though this Agreement provides that it is governed by the law of a specified statethrough negotiation.
(c) Arbitration proceedings If such representatives of the parties are unable to resolve the disputed issue(s) through negotiation, then after the period described in Section 9.6(b) above, the parties (or either of them) will be determined refer the issue (to the exclusion of a court of law) to final and binding arbitration in Milwaukee, Wisconsin in accordance with the Actthen existing Commercial Arbitration Rules (the “Rules”) of the AAA, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof; provided, however, that the law applicable to any controversy shall be as set forth in Section 9.17 hereof. In any arbitration pursuant to this Agreement, the then-current rules award or decision shall be rendered by a panel of three arbitrators (unless Parent and procedures for the arbitration Owners’ Representative mutually agree to a single arbitrator, in which case there shall be a single arbitrator) who shall be appointed by mutual agreement of financial services disputes of the American Arbitration Association or any successor thereof (“AAA”), Parent and the terms of this Dispute Resolution ProvisionOwners’ Representative. In the event of any inconsistencythe failure of Parent and Owners’ Representative to agree within forty-five (45) days after the commencement of the arbitration proceeding upon the appointment of panel of arbitrators (three or one), the terms panel shall be appointed in accordance with the Rules. Upon the completion of this Dispute Resolution Provision the selection of the panel, an award or decision shall controlbe rendered as soon as practicable. If AAA is unwilling The arbitrators’ award or unable to (i) serve as decision shall be in writing and shall state the provider of arbitration reasoning on which the award or (ii) enforce any provision of this arbitration clause, the Bank may designate another arbitration organization with similar procedures to serve as the provider of arbitrationdecision rests.
(d) The arbitration Except for the disputes to be addressed by Section 2.6(c), the procedures specified in this Section shall be administered by AAA the sole and conducted, unless otherwise required by law, in any U.S. state where real exclusive procedures for the resolutions of disputes between the parties arising out of or tangible personal property collateral for this credit is located or if there is no such collateral, in the state specified in the governing law section of relating to this Agreement. All Claims shall be determined by one arbitrator; provided, however, if Claims exceed Five Million Dollars ($5,000,000)that either party may seek preliminary or permanent injunctive relief, upon the whether prohibitive or mandatory, and such request of any party, the Claims shall not be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days of the demand for subject to arbitration and close within ninety (90) days of commencement and may be adjudicated only by the award of the arbitrator(s) shall be issued within thirty (30) days of the close of the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons U.S. District Court for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforcedState of Wisconsin.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitationEACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s)TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to the terms of this Agreement.
(f) This paragraph does not limit the right of any party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then the parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAWIN ANY SUIT, ACTION OR PROCEEDING ARISING HEREUNDER.
Appears in 1 contract
Samples: Merger Agreement (Roadrunner Transportation Systems, Inc.)
Dispute Resolution; Waiver of Jury Trial. This paragraph, including The following binding dispute resolution procedures shall be the subparagraphs below, is referred to as the “Dispute Resolution Provision.” This Dispute Resolution Provision is a material inducement for exclusive means used by the parties entering into this Agreement.
(a) This Dispute Resolution Provision concerns the resolution of any to resolve all disputes, differences, controversies or and claims among the parties, whether arising in contract, tort or by statute, including but not limited to controversies or claims that arise out of or relate to: (i) this relating to the Agreement (including any renewals, extensions or modifications); or (ii) any other Loan Document aspect of the relationship between RCC and Customer (collectively a “ClaimDisputes”). For Either party may, by written notice to the purposes of this Dispute Resolution Provision onlyother party, the term “parties” shall include refer any parent corporation, subsidiary or affiliate of Bank involved Disputes for resolution in the servicing, management or administration of any obligation described or evidenced by this Agreement.manner set forth below:
(b) At the request of any party to this Agreement, any Claim 18.1 Any and all Disputes shall be resolved by binding referred to arbitration in accordance with under the Federal Arbitration Act (Title 9, U.S. Code) (the “Act”). The Act will apply even though this Agreement provides that it is governed by the law of a specified state.
(c) Arbitration proceedings will be determined in accordance with the Act, the then-current rules and procedures for the arbitration of financial services disputes of the American Arbitration Association or any successor thereof (“AAA”), who shall act as the arbitration administrator (the “Arbitration Administrator”).
18.2 The parties shall each nominate one arbitrator and the terms of this Dispute Resolution Provision. In the event of any inconsistencythose two arbitrators shall nominate a third arbitrator, the terms three of this Dispute Resolution Provision whom shall controlact as an arbitrator panel (the “Arbitrator”). If AAA is unwilling or unable to (i) serve as the provider parties cannot agree on an Arbitrator within [**] days of arbitration or (ii) enforce any provision of this arbitration clause, the Bank may designate another arbitration organization with similar procedures to serve as the provider of arbitration.
(d) The arbitration shall be administered by AAA and conducted, unless otherwise required by law, in any U.S. state where real or tangible personal property collateral for this credit is located or if there is no such collateral, in the state specified in the governing law section of this Agreement. All Claims shall be determined by one arbitrator; however, if Claims exceed Five Million Dollars ($5,000,000), upon the request of any party, the Claims shall be decided by three arbitrators. All arbitration hearings shall commence within ninety (90) days delivery of the demand for arbitration (“Demand”) (or such other time period as the parties may agree), the Arbitration Administrator will select an independent Arbitrator.
18.3 Unless otherwise mutually agreed to by the parties, the place of arbitration shall be: (a) if the Demand is issued by Customer, [**] and close within ninety (90b) days if the Demand is issued by RCC, [**], although the arbitrators may be selected from rosters outside these locations.
18.4 The Federal Arbitration Act shall govern the arbitrability of commencement all Disputes. The Federal Rules of Civil Procedure and the award Federal Rules of Evidence (the “Federal Rules”), to the extent not inconsistent with this Agreement, govern the conduct of the arbitrator(s) shall be issued within thirty (30) days arbitration. To the extent that the Federal Arbitration Act and Federal Rules do not provide an applicable procedure, the laws of the close [**] shall govern the procedures for arbitration and enforcement of an award, and then only to the hearing. However, the arbitrator(s), upon a showing of good cause, may extend the commencement of the hearing for up to an additional sixty (60) days. The arbitrator(s) shall provide a concise written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced.
(e) The arbitrator(s) will give effect to statutes of limitation in determining any Claim and may dismiss the arbitration on the basis that the Claim is barred. For purposes of the application of any statutes of limitation, the service on AAA under applicable AAA rules of a notice of Claim is the equivalent of the filing of a lawsuit. Any dispute concerning this arbitration provision or whether a Claim is arbitrable shall be determined by the arbitrator(s), except as set forth at subparagraph (h) of this Dispute Resolution Provision. The arbitrator(s) shall have the power to award legal fees pursuant to extent not inconsistent with the terms of this Agreement.
(f) This paragraph does not limit section. Disputes between the right of any parties shall be subject to arbitration notwithstanding that a party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non-judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights, or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a waiver of the right of any party, including the suing party, thereafter to require submittal of the Claim to arbitration.
(h) Any arbitration or trial by a judge of any Claim will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court and not by an arbitrator. The parties to this Agreement acknowledge that is also a party to a pending court action or special proceeding with a third party, arising out of the Class Action Waiver same transaction or series of related transactions and there is material and essential a possibility of conflicting rulings on a common issue of law or fact.
18.5 Unless otherwise mutually agreed to the arbitration of any disputes between the parties and is nonseverable from the agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or found unenforceable, then by the parties’ agreement to arbitrate , each party shall be null allow and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The parties acknowledge and agree that under no circumstances will a class action be arbitrated. By agreeing to binding arbitration, the parties irrevocably and voluntarily waive any right they may have to a trial by jury participate in respect of any Claim. Furthermore, without intending in any way to limit this Agreement to arbitrate, to the extent any Claim is not arbitrated, the parties irrevocably and voluntarily waive any right they may have to a trial by jury in respect of such Claim. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided or found unenforceable. WHETHER THE CLAIM IS DECIDED BY ARBITRATION OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS AGREEMENT IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW.discovery as follows:
Appears in 1 contract
Samples: Commercial Supply Agreement (Ironwood Pharmaceuticals Inc)
