Incredimail 2013 Annual Report Download - page 249

EXECUTION VERSION
(g) the arbitrator(s) shall also require that that all costs of arbitration and all reasonable attorneys’
fees and costs
incurred in connection with any arbitration of any Nonpayment Dispute by the substantially prevailing Party be paid by the
other Party, notwithstanding anything to the contrary in Section 12.2.4.(b) or any other provision of this Agreement.
4.3.4 [***] Exception-Related Disputes . All Disputes regarding or related to the application or calculation of a
[***] Exception-Based Adjustment (a “ [***] Exception-Related Dispute”)
will be resolved exclusively through the good faith
negotiation of the Parties or in the binding arbitration procedures described in Section 12.2; provided that either Party may
elect (which election the other Party may not contest) that the timelines, but not the discovery-related procedures, set forth in
the Expedited Procedures as defined in the JAMS Comprehensive Arbitration Rules and Procedures then in effect (as
referenced in Section 12.2) shall apply. Notwithstanding Section 12.1 and 12.2, neither Party will have any remedy in court
with respect to a [***] Exception-Related Dispute except those sought in aid of arbitration (e.g., an order compelling
arbitration) In the event of a [***] Exception-Related Dispute (a) the provisions of Sections 12.1.1 and 12.1.2 will not apply;
(b) the [***] Exception-Related Dispute will immediately be escalated to an officer of each Party and they will have 15 days
from the date of escalation to attempt to resolve the dispute, acting in good faith; and (c) if the [***] Exception-Related
Dispute is not resolved within such time period, either Party thereafter may invoke the arbitration remedies permitted under
Section 12. If such an arbitration finds that either Party owes any amount to the other Party with respect to a [***] Exception-
Related Dispute, the arbitrator(s) will award (in place of, and not in addition to, the interest at commercial rates referenced in
Section 12.2.4(b)) pre- and post-award interest at the then-current U.S. prime rate (as published by the Wall Street Journal)
plus [***] per year with respect to any amounts determined by such arbitration to be overdue in payment by one Party to the
other Party.
4.3.5 If either Party does not pay all amounts due to the other Party under an interim or final arbitral award
within ten (10) days of such award being issued in writing in connection with a Dispute, then notwithstanding anything to the
contrary in Section 12 of the Agreement or this Section 4.3, the Party to whom such amounts are owed may pursue
enforcement of such award in any court of competent jurisdiction.”
4 . T ermination . Section 15.3 of the Agreement is deleted in its entirety and all references thereto in the Agreement are stricken.
5. Exhibit G and Exhibit D . Exhibit G is deleted in its entirety. The title of Exhibit D is deleted in its entirety and replaced with the
following: “ [***] In addition, the title of the first table in Exhibit D is deleted and replaced with the following: [***]
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