Incredimail 2013 Annual Report Download - page 197

EXECUTION VERSION
(c) Prior to the commencement of an arbitration proceeding, either Party may disqualify the appointment of
an arbitrator for conflict of interest as established in good faith by the Party. Additionally, each Party may in its sole discretion exercise
one peremptory disqualification of the third arbitrator.
12.2.3 Choice of Law . This arbitration provision (including the validity and applicability of the agreement to arbitrate,
the conduct of any arbitration of a Dispute, the enforcement of any arbitral award made hereunder and any other questions of arbitration law or
procedure arising hereunder) and its interpretation, any and all disputes between the Parties arising out of or relating to this Agreement in any
manner, shall be governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any choice or
conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of laws of any
jurisdictions other than those of the State of New York or the United States. The Parties specifically exclude from application to the Agreement
the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. The
parties further agree that any claim, cause of action or proceeding relating to any arbitration sought, compelled or performed hereunder will be
brought and pursued only in the U.S. District Court for the Southern District of New York or, solely in the case that such federal court does not
have jurisdiction, in any New York State court sitting in New York City (collectively, the “New York Courts”). Microsoft and Conduit each
submit to the exclusive jurisdiction and venue of the New York Courts for such purposes, except that any confirmed arbitration award may be
enforced in any court having jurisdiction over a party or, to the extent of any in rem action, any of its assets. The parties further irrevocably
waive any objection to the laying of the venue of any such proceeding in the New York Courts, any claim that any such proceeding has been
brought in an inconvenient or inappropriate forum and any right to a jury trial with regard to any such proceeding.
12.2.4 Conduct of Arbitration .
(a) Decision . The arbitration award will be a reasoned decision, will be in writing and will state with
particularity the legal and factual bases for the decision and will be final and binding upon the Parties.
(b) Fees and Awards . The arbitrators’ fees and costs of the arbitration will be borne by the Claimant and
Respondent equally, unless the arbitration panel in its discretion makes a different provision in the final award. The arbitration panel is
empowered in its discretion to include an award of costs, including reasonable attorneys’
fees and disbursements to the prevailing Party.
In addition to monetary damages, the arbitration panel will be empowered to award equitable relief, including, but not limited to, an
injunction and specific performance of any obligation under this Agreement. The arbitrators’ award of damages shall be limited by
Section 9 (Limitation of Liability) and any other relief, including suspension or termination, will be consistent with the terms and
conditions of this Agreement. The arbitrators will have no jurisdiction to, and are not empowered to, modify or amend the exclusions
and limitations of liability or the termination rights set forth in this Agreement. The arbitration panel will be authorized in its discretion
to grant pre- and post-award interest at commercial rates. Any costs, fees or taxes incident to enforcing the award will, to the maximum
extent permitted by law, be charged against the Party resisting such enforcement. Judgment upon the award may be entered by any
court in the United States having jurisdiction over the relevant Party or any of its assets.
CONFIDENTIAL
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