Incredimail 2013 Annual Report Download - page 196

EXECUTION VERSION
12.1.2 Escalation . In the event that the Parties are unable to resolve the Dispute within 30 days, the Parties shall
escalate the Dispute by referring the details of the Dispute, the status of the negotiations and any proposed compromise in writing to the Parties’
respective designated executive with decision-making authority. The Parties’ designated executives shall have 30 days from receipt of notice of
the Dispute or such longer period as the Parties may mutually agree to in writing, to resolve the Dispute in good faith. If the Parties’ designated
executives are unable to resolve the Dispute, the Dispute will be escalated to an officer of each Party, who shall have ten days, or such longer
period as the Parties may mutually agree to in writing, to attempt to resolve the Dispute in good faith.
12.2 Arbitration . If the Parties cannot resolve a Dispute pursuant to Section 12.1 above, any and all Disputes (including, but not
limited to, the validity of this agreement to arbitrate) will be settled exclusively by final and binding arbitration joining all of the claims asserted
by or against the Parties in connection with such Dispute or claim. The arbitration will be conducted in San Francisco, California and shall be
administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures then in effect except as limited or expanded by
this Agreement. This clause shall not preclude Parties from seeking provisional remedies in aid of arbitration (e.g., to compel arbitration) or from
seeking equitable or provisional relief from a court of competent jurisdiction.
12.2.1 Smaller Claims . If the Dispute involves a claim for monetary damages only and in an amount equal to or less
than $1 million, exclusive of legal fees and costs of the arbitration, then the Parties will jointly select one independent arbitrator who is
experienced and knowledgeable about the Internet industry and about the particular products or services at issue and who is not an employee,
consultant or former employee or consultant of either Party. If the Parties do not agree on the identity of the arbitrator within five Business Days
of the commencement of the arbitration, either Party may apply to JAMS for the appointment of an arbitrator who will have, to the greatest
extent possible, experience and knowledge about the Internet industry and about the particular products or services at issue. If required to act in
accordance with this Section to appoint a single arbitrator in lieu of a Party, JAMS will appoint an arbitrator within 15 days of such application.
12.2.2 Larger Claims .
(a) For all other Disputes governed by this Section 12.2, the Dispute will be determined by a panel of three
arbitrators. The Party initiating the arbitration (the “Claimant”) will appoint an arbitrator experienced and knowledgeable about the
Internet industry and about the particular products or services at issue and who is not an employee, consultant or former employee or
consultant of either Party in its request for arbitration, demand for arbitration or notice of claim (the “Demand”). The Party responding
to the Demand (the “Respondent”) will within 15 days appoint one arbitrator experienced and knowledgeable about the Internet
industry and about the particular products or services at issue and who is not an employee, consultant or former employee or consultant
of either Party and will notify the Claimant in writing of the appointment. If within 30 days after receipt of the Demand by the
Respondent, either Party has not appointed an arbitrator, then that Arbitrator will be appointed by JAMS from its then-current roster of
arbitrators for Large, Complex Commercial Disputes, and in making this appointment, JAMS will nominate an arbitrator who is (i)
experienced and knowledgeable about the Internet industry and about the particular products or services at issue and (ii) not an
employee, consultant or former employee or consultant of either Party. If required to act in accordance with this Section to appoint an
arbitrator in lieu of a Party, JAMS will appoint an arbitrator within 15 days of such application.
(b) Within 30 days of the appointment of the second arbitrator, JAMS shall appoint the third arbitrator in
accordance with Rule 15 of the JAMS Comprehensive Arbitration Rules and Procedures. The third arbitrator must be (i) experienced
and knowledgeable about the Internet industry and about the particular products or services at issue and (ii) not an employee, consultant
or former employee or consultant of either Party. The third arbitrator will act as the chair of the arbitration panel.
CONFIDENTIAL
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