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Governing Law; Dispute Resolution |
Example Clauses
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Governing Law |
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1. This Agreement shall be
interpreted and construed according to, and governed by, the laws of [Jurisdiction
Convenient to All Parties], excluding any such laws that might direct the
application of the laws of another jurisdiction. The federal or state courts
located in [Jurisdiction Convenient to All Parties] shall have jurisdiction
to hear any dispute under this Agreement. 2. This Agreement shall be governed by and construed in accordance with the laws of the State of [Licensor's state], except for matters arising from or concerning Section __ (Indemnification) which shall be governed by and construed in accordance with the laws of the State of [Licensee's state]. |
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Commentary: If parties residing in different states
of the Depending on the nature of the dispute, the law of some states may favor
one party or the other. For example, some states' laws favor business
interests over consumers' interests. On the other hand, some states have a
highly developed, refined and predictable body of law dealing with certain
kinds of disputes. Of course, we cannot know today what we may be upset about tomorrow. Perhaps the best approach for universities and libraries is to be sure that the chosen governing law does not unduly favor the other party or differ markedly from the institution's state law. Example 1 also contains a Forum Selection clause as well as a choice of governing law clause. Selecting a forum establishes where the parties must go to file a lawsuit (in this example, in the courts of the Licensor's state). This selection may result in extreme hardship for the party that must travel to the selected state. If a contract does not include a forum selection clause, there are procedural rules that govern where lawsuits may be filed. They are generally more favorable for the party being sued. Some clauses designate the forum as the location of the party being sued. The mutual inconvenience of such an arrangement makes it seem fair: Whoever wishes to institute a lawsuit must travel to the other party's state to file and prosecute it. |
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Dispute Resolution |
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1. In the event any dispute or controversy
arising out of or relating to this Agreement, the parties agree to exercise
their best efforts to resolve the dispute as soon as possible. The parties
shall, without delay, continue to perform their respective obligations under
this Agreement which are not affected by the dispute. Mediation. In the
event that the parties can not by exercise of their best efforts resolve the
dispute, they shall submit the dispute to Mediation. The parties shall,
without delay, continue to perform their respective obligations under this
Agreement which are not affected by the dispute. The invoking party shall
give to the other party written notice of its decision to do so, including a
description of the issues subject to the dispute and a proposed resolution
thereof. Designated representatives of both parties shall attempt to resolve
the dispute within [time period] after such notice. If those designated
representatives cannot resolve the dispute, the parties shall meet at a
mutually agreeable location and describe the dispute and their respective
proposals for resolution to responsible executives of the disputing parties,
who shall act in good faith to resolve the dispute. If the dispute is not
resolved within [time period] after such meeting, the dispute shall be submitted
to binding arbitration in accordance with the Arbitration provision of this
Agreement. Arbitration. Any
controversies or disputes arising out of or relating to this Agreement shall
be resolved by binding arbitration in accordance with the then current
Commercial Arbitration Rules of the American Arbitration Association. The
parties shall endeavor to select a mutually acceptable arbitrator
knowledgeable about issues relating to the subject matter of this Agreement.
In the event the parties are unable to agree to such a selection, each party
will select an arbitrator and the arbitrators in turn shall select a third
arbitrator. The arbitration shall take place at a location that is reasonably
centrally located between the parties, or otherwise mutually agreed upon by
the parties. All documents, materials, and information in the
possession of each party that are in any way relevant to the claim(s) or
dispute(s) shall be made available to the other party for review and copying
no later than [time period] after the notice of arbitration is served. The arbitrator(s) shall not have the authority, power, or
right to alter, change, amend, modify, add, or subtract from any provision of
this Agreement or to award punitive damages. The arbitrator shall have the power
to issue mandatory orders and restraining orders in connection with the
arbitration. The award rendered by the arbitrator shall be final and binding
on the parties, and judgment may be entered thereon in any court having
jurisdiction. The agreement to arbitration shall be specifically enforceable
under prevailing arbitration law. During the continuance of any arbitration
proceeding, the parties shall continue to perform their respective
obligations under this Agreement. |
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Commentary: Many software and database licensers wish to include Alternative Dispute Resolution ("ADR") clauses in their contracts. These clauses either suggest or mandate alternatives to litigation, at least as a first choice to resolve a dispute. Like governing law and forum selection clauses, they may mandate that arbitration take place under a certain set of rules and in a certain location. Licensees should feel free to change the location if it is inconvenient. |
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