Incredimail 2013 Annual Report Download - page 248

EXECUTION VERSION
(a) the provisions of Sections 12.1.1 and 12.1.2 will not apply;
(b) the Nonpayment Dispute will immediately after written notice thereof 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;
(c) if the Nonpayment Dispute is not resolved within such time period, either Party thereafter may invoke
arbitration remedies and either Party (as the “Initiating Party”) may elect for such Dispute to be reviewed under the Expedited
Relief Process (and the other Party may not contest such an election), in which case the Initiating Party may commence a
proceeding for emergency relief, the other Party will be required to respond to the initial motion for relief within seven (7)
days, the Initiating Party will be required to reply to the response within seven (7) days, the arbitration hearing will occur
within seven (7) days after the reply is submitted, and the arbitrator will issue a decision within seven (7) days after the
hearing. The arbitrator in such an Expedited Relief Process shall automatically award interim monetary and injunctive relief
(without requiring a bond) compelling payment to Conduit of a minimum of [***] of all unpaid invoices submitted in material
compliance with and containing all material information required by this Agreement. In addition, arbitrator in such an
Expedited Relief Process shall award such further amounts as to which either Party establishes a substantial likelihood of
prevailing on the merits In the Expedited Relief Process, the arbitrator will not require either Party to establish proof that it
would be immediately or irreparably harmed or damaged absent such interim relief nor consider the asserted adequacy of any
alternative remedy. The Parties intend for this subsection (c) to contractually permit either Party to pursue a remedy providing
immediate payment, rather than having such recourse available only after completion of an arbitration proceeding. Payments
made pursuant to any arbitral award of interim relief may be subsequently adjusted in accordance with further arbitral
proceedings regarding the applicable Dispute or as the Parties may otherwise agree in connection with settling the applicable
Dispute;
(d) 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 rate of [***per month with respect to any amounts determined by such
arbitration to be overdue in payment by Microsoft to Conduit;
(e) notwithstanding any other provision of this Agreement, in the event that an arbitration of any Nonpayment
Dispute is initiated at the AAA, any other arbitration relating to this Agreement shall be consolidated to proceed at the AAA in
conjunction therewith, provided, however, that if the members of an arbitral tribunal have been fully and finally constituted in
a JAMS arbitration relating to this Agreement, any arbitration of a Nonpayment Dispute commenced thereafter will proceed
before such previously constituted panel, which shall adhere to the procedures and timelines for the Expedited Relief Process
set forth in Section 4.3.3;
(f) the parties and arbitrator shall make best efforts to finally complete a final award in any arbitration of a
Nonpayment Disputes as expeditiously as possible, but in all events within nine (9) months after initiation of such arbitration;
and
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