Common use of Landlord’s Consent or Approval; Limitation on Damages Clause in Contracts

Landlord’s Consent or Approval; Limitation on Damages. (a) In the event that Tenant shall claim or assert that Landlord has violated or failed to perform a covenant of Landlord not to unreasonably withhold, delay or condition Landlord’s consent or approval, or in any case where Landlord’s reasonableness in exercising its judgment is in issue, Tenant’s sole remedy shall be an action for specific performance, declaratory judgment or injunction, and in no event shall Tenant be entitled to any money damages for a breach of such covenant, and in no event shall Tenant claim or assert any claims for money damages in any action or by way of set-off, defense or counterclaim, and Tenant hereby specifically waives the right to any money damages, set-off, defense, counterclaim or other remedies; provided, however, that Tenant shall have the right to determine any dispute between Landlord and Tenant as to whether Landlord has violated or failed to perform a covenant of Landlord not unreasonably to withhold, delay or condition Landlord’s consent or where Landlord’s reasonableness in exercising its judgment is in issue, or any other dispute which by the express terms of this Lease provides that it shall be resolved by arbitration, in each case by arbitration in the County of Santa Clara, California in accordance with the provisions of this Section 18.4. Within ten (10) days next following the giving of any notice by Tenant to Landlord stating that it wishes such dispute to be so determined, Landlord and Tenant shall each give notice to each other setting forth the name and address of an arbitrator designated by the party giving notice. If either party shall fail to give notice of such designation within said ten (10) days, then the arbitrator chosen by the other side shall make the determination alone. The two arbitrators shall designate a third arbitrator. If the two arbitrators shall fail to agree upon the designation of a third arbitrator within five (5) days after the designation of the second arbitrator, then either party may apply to any court having jurisdiction, requesting the designation of such arbitrator. Notwithstanding the foregoing, in the event of disputes relating to less than $100,000, one (1) arbitrator shall be selected in accordance with the then prevailing Commercial Rules of the American Arbitration Association. All arbitrators shall be persons who shall have had at least ten (10) years experience arbitrating or mediating disputes relating to California office leases or who shall otherwise be approved by the parties, and shall not be financially or contractually related to Landlord or Tenant. The three arbitrators shall conduct such hearings as they deem appropriate, making their determination in writing and give notice to Landlord and Tenant; the concurrence of any two of said arbitrators shall be binding upon Landlord and Tenant. The sole question to be determined shall be whether or not Landlord has unreasonably withheld or delayed its consent or approval, and the sole remedy shall be the determination that such consent or approval must be granted. The determination in any arbitration held pursuant to this Section shall be final and binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Section 18.4, including the expenses and fees of any arbitrator selected by it in accordance with provisions of this Section, and the parties shall share all other expenses and fees of any such arbitration, provided that the foregoing shall not prohibit the arbitrators from determining that the prevailing party shall be entitled to recover all costs and expenses from the non-prevailing party. The arbitrators shall be bound by the provisions of this Lease, and shall not add to, subtract from or otherwise modify such provisions.

Landlord’s Consent or Approval; Limitation on Damages. (a) In the event that Tenant shall claim or assert that Landlord has violated or failed to perform a covenant of Landlord not to unreasonably withhold, delay or condition Landlord’s consent or approval, or in any case where Landlord’s reasonableness in exercising its judgment is in issue, Tenant’s sole remedy shall be an action for specific performance, declaratory judgment or injunctioninjunction , and in no event shall Tenant be entitled to any money damages for a breach of such covenant, and in no event shall Tenant claim or assert any claims for money damages in any action or by way of set-off, defense or counterclaim, and Tenant hereby specifically waives the right to any money damages, set-off, defense, counterclaim or other remedies; provided, however, that Tenant shall have the right to determine any dispute between Landlord and Tenant as to whether Landlord has violated or failed to perform a covenant of Landlord not unreasonably to withhold, delay or condition Landlord’s consent or where Landlord’s reasonableness in exercising its judgment is in issue, or any other dispute which by the express terms of this Lease provides that it shall be resolved by arbitration, in each case by arbitration in the County of Santa Clara, California in accordance with the provisions of this Section 18.4. Within ten (10) days next following the giving of any notice by Tenant to Landlord stating that it wishes such dispute to be so determined, Landlord and Tenant shall each give notice to each other setting forth the name and address of an arbitrator designated by the party giving notice. If either party shall fail to give notice of such designation within said ten (10) days, then the arbitrator chosen by the other side shall make the determination alone. The two arbitrators shall designate a third arbitrator. If the two arbitrators shall fail to agree upon the designation of a third arbitrator within five (5) days after the designation of the second arbitrator, then either party may apply to any court having jurisdiction, requesting the designation of such arbitrator. Notwithstanding the foregoing, in the event of disputes relating to less than $100,000, one (1) arbitrator shall be selected in accordance with the then prevailing Commercial Rules of the American Arbitration Association. All arbitrators shall be persons who shall have had at least ten (10) years experience arbitrating or mediating disputes relating to California office leases or who shall otherwise be approved by the parties, and shall not be financially or contractually related to Landlord or Tenant. The three arbitrators shall conduct such hearings as they deem appropriate, making their determination in writing and give notice to Landlord and Tenant; the concurrence of any two of said arbitrators shall be binding upon Landlord and Tenant. The sole question to be determined shall be whether or not Landlord has unreasonably withheld or delayed its consent or approval, and the sole remedy shall be the determination that such consent or approval must be granted. The determination in any arbitration held pursuant to this Section shall be final and binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Section 18.4, including the expenses and fees of any arbitrator selected by it in accordance with provisions of this Section, and the parties shall share all other expenses and fees of any such arbitration, provided that the foregoing shall not prohibit the arbitrators from determining that the prevailing party shall be entitled to recover all costs and expenses from the non-prevailing party. The arbitrators shall be bound by the provisions of this Lease, and shall not add to, subtract from or otherwise modify such provisions.

Landlord’s Consent or Approval; Limitation on Damages. (a) In the event that Tenant shall claim or assert that Landlord has violated or failed to perform a covenant of Landlord not to unreasonably withhold, delay or condition Landlord’s consent or approval, or in any case where Landlord’s reasonableness in exercising its judgment is in issue, Tenant’s sole remedy shall be an action for specific performance, declaratory judgment or injunction, and in no event shall Tenant be entitled to any money damages for a breach of such covenant, and in no event shall Tenant claim or assert any claims for money damages in any action or by way of set-off, defense or counterclaim, and Tenant hereby specifically waives the right to any money damages, set-off, defense, counterclaim or other remedies; provided, however, that Tenant shall have the right to determine any dispute between Landlord and Tenant as to whether Landlord has violated or failed to perform a covenant of Landlord not unreasonably to withhold, delay or condition Landlord’s consent or where Landlord’s reasonableness in exercising its judgment is in issue, or any other dispute which by the express terms of this Lease provides that it shall be resolved by arbitration, in each case by arbitration in the County of Santa Clara, California in accordance with the provisions of this Section 18.4. Within ten (10) days next following the giving of any notice by Tenant to Landlord stating that it wishes such dispute to be so determined, Landlord and Tenant shall each give notice to each other setting forth the name and address of an arbitrator designated by the party giving notice. If either party shall fail to give notice of such designation within said ten (10) days, then the arbitrator chosen by the other side shall make the determination alone. The two arbitrators shall designate a third arbitrator. If the two arbitrators shall fail to agree upon the designation of a third arbitrator within five (5) days after the designation of the second arbitrator, then either party may apply to any court having jurisdiction, requesting the designation of such arbitrator. Notwithstanding the foregoing, in the event of disputes relating to less than $100,000, one (1) arbitrator shall be selected in accordance with the then prevailing Commercial Rules of the American Arbitration Association. All arbitrators shall be persons who shall have had at least ten (10) years 10)years experience arbitrating or mediating disputes relating to California office leases or who shall otherwise be approved by the parties, and shall not be financially or contractually related to Landlord or Tenant. The three arbitrators shall conduct such hearings as they deem appropriate, making their determination in writing and give notice to Landlord and Tenant; the concurrence of any two of said arbitrators shall be binding upon Landlord and Tenant. The sole question to be determined shall be whether or not Landlord has unreasonably withheld or delayed its consent or approval, and the sole remedy shall be the determination that such consent or approval must be granted. The determination in any arbitration held pursuant to this Section shall be final and binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Section 18.4, including the expenses and fees of any arbitrator selected by it in accordance with provisions of this Section, and the parties shall share all other expenses and fees of any such arbitration, provided that the foregoing shall not prohibit the arbitrators from determining that the prevailing party shall be entitled to recover all costs and expenses from the non-prevailing party. The arbitrators shall be bound by the provisions of this Lease, and shall not add to, subtract from or otherwise modify such provisions.