Common Draft

(a) One individual or organization ("Person") is an Affiliate of another Person if either of the following is true: (1) directly or indirectly via one or more intermediaries, one of those Persons controls (as defined in subdivision (b) below), or is controlled by, or is under common control with, the other Person; or (2) both Persons are members of the same Named Affiliate Group, as defined in subdivision (c) below.

(b) For purposes of determining Affiliate status, control of an organization refers to the possession of voting control — via, for example, legal, beneficial or equitable ownership, or a voting agreement — of securities of (or other interest in) an organization having at least 50% (the Minimum Voting Percentage) of the aggregate right to vote for the organization's board of directors or comparable governing body.

(c) The respective members of the following Specific Named Affiliates are deemed Affiliates of each other without regard to control: NONE NAMED

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For purposes of determining Affiliate status, control of an organization also arises from the power to direct or cause the direction of the management and policies of the organization, by contract or otherwise.

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For purposes of determining Affiliate status, control of an organization is possesssed by a specific class of shares or of comparable voting interests in the organization if a particular type of decision by the organization be approved by that class.

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For purposes of determining Affiliate status, control of an organization also exists if a relevant type of transaction or decision by the organization must be approved by a vote of a supermajority of the organization's board of directors, shareholders, outstanding shares, members, etc.

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A Person also controls an organization if the Person has a legally-enforceable right to select a majority of the members of that board or other body.

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Unless the context clearly indicates otherwise, the terms "the Agreement" and "this Agreement" refer, collectively, to the following: (1) the agreement document signed by the parties (the "Agreement Document"); (2) any exhibit, schedule, appendix, or addendum attached to or forming part of the Agreement Document (each, an "Additional Document"); and (3) any document, or portion thereof, that the Agreement Document or an Additional Document expressly incorporates by reference.

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The term Agreement-Related refers to something – such as, for example, a dispute – that arises out of or relates to any of the following:

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For the avoidance of doubt, the term Agreement-Related Dispute refers to any claim, controversy, or other dispute between the parties — whether based on the law of contract; tort; strict liability; statute; or otherwise — that:(1) is brought before any Tribunal anywhere; and (2) arises out of or relates to any of the following:

(A) an instrument executed in conjunction with this Agreement or any transaction or relationship memorialized by, or resulting from, this Agreement (each, a Transaction or Relationship, respectively);

(B) a service provided pursuant to, or incidentally to, this Agreement or a Transaction or Relationship;

(C) insurance coverage for, or relating to, this Agreement or a Transaction or Relationship;

(D) a document or instrument that documents or otherwise contains information about any of the items listed in subdivisions (A) through (D); and

(E) an application for, or an advertisement, solicitation, processing, closing, or servicing of, a Transaction or Relationship.

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The term and/or, whether or not capitalized, means the inclusive or, as opposed to the exclusive or. EXAMPLE: "The parties expect to meet on Tuesday and/or Wednesday" means that they expect to meet on Tuesday, on Wednesday, or on both days.

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(a) Best efforts (whether or not capitalized) refers to the diligent making of all efforts reasonable under the circumstances, leaving no stone unturned to achieve the stated objective.

(b) For the avoidance of doubt, a party required to use best efforts: (1) need not take every conceivable action to achieve the stated objective; (2) need not materially harm its own interests; and (3) need not take any action that would not qualify as a reasonable effort.

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For the avoidance of doubt, the term breach, in respect of this Agreement, includes a misrepresentation made in, or incorporated by reference into, this Agreement.

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The term business day, whether or not capitalized, refers to a day other than a Saturday, Sunday, or holiday on which banks in the relevant country are closed. See also the Day Definition clause (definition of day).

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Unless the Agreement expressly states otherwise:

(a) The term calendar year, whether or not capitalized, refers to a year according to the Gregorian calendar, beginning at midnight at the beginning of January 1 and ending at midnight at the end of the following December 31.

(b) An interval of a calendar year, specified as beginning on a particular date, ends at midnight at the end of the same date one (Gregorian) year afterwards.

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The term Claim, whether or not capitalized, refers to a request or demand for relief, by any third party (including without limitation any governmental entity):

(1) in a written communication such as, for example, a letter or email; and/or

(2) in an original or amended complaint, petition, counterclaim, cross-claim, or other paper that is filed with (or otherwise submitted to) a court, arbitration panel, administrative agency, or other tribunal of competent jurisdiction.

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For an assertion to be proved by clear and convincing evidence, the evidence must be sufficient to produce in the factfinder an abiding conviction that the assertion's truth is highly probable.

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Defining the term with an illustrative example, commercially-reasonable efforts (whether or not the term is capitalized) refers to at least those efforts that experienced business people, in the relevant circumstances, would regard as reasonable efforts. Other uses of the term commercially-reasonable have corresponding meanings.

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IF: The Agreement requires a specified party (the "Acting Party") to consult with another party before taking or omitting a specified action, or to take or omit the action "in consultation with" the other party; THEN: The Acting Party will

(1) seasonably advise the other party that it intends to take or omit the action; and

(2) subsequently, if so requested by the other party, provide the other party with:

(A) such relevant information about the Acting Party's intentions as the Acting Party reasonably deems appropriate; and

(B) a reasonable opportunity for the other party to be heard by the Acting Party concerning the action to be taken or omitted.

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For the avoidance of doubt, a consultation requirement does not limit the freedom of the Acting Party to take or omit the specified action unless this Agreement expressly states otherwise.

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Unless otherwise specified in this Agreement, the terms "Consumer Price Index" and "CPI" refer to CPI-U, US City Average, All Items, as published by the U.S. Bureau of Labor Statistics.

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Unless otherwise specified in this Agreement, Customer refers to a party that this Agreement contemplates will acquire goods (including for example intangible goods), rights, and/or services from another party.

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Unless the Agreement expressly states otherwise:

(a) The term day, whether or not capitalized, refers to a calendar day.

(b) A period of X days begins on the specified date and ends at midnight at the end of the day X days later. EXAMPLE: A five-day period beginning on January 1 ends at midnight at the end of January 6.

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IF: The Agreement states a deadline date marking the end of a specified period, but does not clearly indicate a time at which the specified period ends; THEN: The specified period ends at midnight at the end of the indicated date. EXAMPLE: A one-month period that begins on January 1 ends at midnight at the end of February 1. (See also the Ending Time Usage clause.)

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Unless the context clearly indicates otherwise, the term defend, whether or not capitalized, refers to providing a defense in accordance with the IndemnDefenseCls clause.

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(a) The terms diligence and diligent, whether or not capitalized, refer to activity that is energetic; conscientious; perservering.

(b) As an illustrative example, the term diligent efforts (whether or not the term is capitalized) refers to efforts that reasonable people would regard as assiduous; attentive; conscientious; earnest; industrious; persevering; steady.

(c) For the avoidance of doubt, diligent efforts are not the same as reasonable efforts — a person could diligently make efforts that were ill-advised and unreasonable.

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Unless otherwise specified in this Agreement, the term discretion (whether or not capitalized) refers to sole discretion.

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The dollar sign $ refers to United States dollars unless clearly indicated otherwise.

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Unless the Agreement clearly states otherwise, the term Effective Date, whether or not the term is capitalized, refers to the date on which the Agreement was signed by or on behalf of the party whose signature was the last one required for the Agreement to form a contract.

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(a) For the avoidance of doubt, IF: The Agreement states that a time period ends or expires on a specified day; BUT: The Agreement does not specify the time of day the period ends; THEN: Unless otherwise clear from the context, the period ends or expires at 11:59:59 p.m. Universal Time on that day. (See also the Deadlines Usage clause.

(b) For purposes of this clause, the term "expires on" in respect to a date has the same meaning as "ends on" in respect to that date.

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Glossary entry: This clause will serve as an introduction for students and others who might be unfamiliar with its subject.

Ex Works and EXW are abbreviations under the INCOTERMS 2010 pre-defined commercial terms published by the International Chamber of Commerce (ICC); they mean, in a nutshell, that a seller will make goods available at the seller's place of business.

See also:

• FOB ("Free On Board")

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(a) Examples (and terms such as for example), whether or not capitalized, are used in this Agreement for purposes of illustration, not of limitation, unless another meaning is clear from the context.

(b) For the avoidance of doubt, if in some places the Agreement uses longer expressions such as "by way of example and not of limitation," such usage does not mean that the parties intend for shorter expressions such as "for example" to serve as limitations unless expressly stated otherwise.

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Glossary entry: This clause will serve as an introduction for students and others who might be unfamiliar with its subject.

For accounting purposes, most companies keep track of their revenues, expenses, and profit or loss on an annual and quarterly basis. They use a *fiscal year* — often ending December 31, but sometimes ending at the end of other months, e.g., September 30 — divided into four fiscal quarters. Business people often use shorthand terms such as:

• FY2000: The fiscal year 2000. If a company uses a calendar-year fiscal year, FY2000 ended on December 31, 2000.
• Q1 (or sometimes 1Q): The first quarter of the fiscal year. For a company with a calendar-year fiscal year, Q1 would end on March 31.
• 1Q2000: The first fiscal quarter of the fiscal year 2000.

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Glossary entry: This clause will serve as an introduction for students and others who might be unfamiliar with its subject.

"FOB [place name or vessel name]" is a term commonly used in contracts for the sale of goods. It indicates where and how delivery of the goods is to occur.

The term has somewhat different meanings under section 2-319 of the [U.S.] Uniform Commercial Code, on the one hand, and the INCOTERMS 2010 pre-defined commercial terms published by the International Chamber of Commerce (ICC) on the other.

See also:

• EXW ("Ex Works")

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IF: The parties omit from the Agreement a Clause or Subclause containing the term "for the avoidance of doubt" (or similar phrases such as "for clarity"); THEN: That omission does not in itself signify that the parties affirmatively agreed to a proposition contrary to the omitted Clause or Subclause.

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GAAP refers to generally accepted accounting principles, as established and interpreted in the United States, and consistently applied.

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Unless the context clearly requires otherwise, any gender-specific or gender-neutral term in this Agreement (for example, he, she, it, etc.) is to be read as referring to each gender and to the neutral gender.

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The terms good faith and good faith and fair dealing each mean honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.

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(a) Government authority and governmental authority,  whether or not capitalized, refer to any individual or group (collectively, "authority"), anywhere in the world, exercising de jure or de facto governmental- or regulatory power of any kind, whether administrative, executive, judicial, legislative, policy, regulatory or taxing power.

(b) The term includes, for example, any agency; authority; board; bureau; commission; court; department; executive; executive body; judicial body; legislative body; or quasi-governmental authority; at any level (for example, state, federal or local).

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For the avoidance of doubt, the term hold harmless (whether or not capitalized) has the same meaning as indemnify unless this Agreement clearly and expressly states otherwise.

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For the avoidance of doubt, the term if means if and only if unless the context clearly indicates otherwise. EXAMPLE: The term Party A will have the right to take Action X if Condition Y exists means that Party A will not have the right to take Action X unless Condition Y exists.

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The term In-House Personnel, used in respect of a party, refers collectively to the following individuals:

(1) the employees of the party;

(2) the officers and directors of the party if the party is a corporation or comparable organization;

(3) the managers of the party if the party is a limited liability company (LLC) or comparable organization; and

(4) the general partners of the party if the party is a general- or limited partnership.

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(a) The terms including and like words (for example, include, includes, and included), whether or not capitalized, are to be deemed followed by the phrase without limitation if not followed literally by that phrase.

(b) For the avoidance of doubt, if in some places the Agreement uses longer expressions such as including but not limited to or including without limitation, such usage does not mean that the parties intend for other, shorter expressions such as including to serve as limitations unless expressly stated otherwise.

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Incorporation of material by reference into this Agreement has the same force and effect as setting forth the full text of the material in the body of this Agreement.

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INCOTERMS 2010 refers to a standardized and widely-used set of abbreviations and definitions for commercial terms, published by the International Chamber of Commerce (ICC).

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The term intellectual property, whether or not capitalized, refers broadly to inventions, concepts, techniques, plans, designs, methodologies, procedures, programs, approaches, ideas, know-how, computer software, technology, writings, graphics, other works of authorship, trademarks, service marks, logos, trade names, and (in the case of the last four) the goodwill associated with each.

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The term intellectual-property right, whether or not capitalized, refers broadly to any intellectual-property right or industrial-property right existing by law at the relevant time anywhere in the world, including without limitation the right to sue for present or past infringement thereof. For the avoidance of doubt, the term includes, for example:

(1) all rights (whether registered or unregistered) in, or arising under laws concerning: trade secrets; confidential information; inventions; patents; trademarks, service marks, and trade names; Internet domain names; copyrights; designs; rights of publicity; and mask works;

(2) any application then pending for such a right, including for example an application for a patent or to register a copyright or trademark;

(3) any right to file such an application; and

(4) any right to claim priority for such an application.

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When the Agreement authorizes a party to filea Joint Motion, it means that: (1) in filing a motion of the kind specified, the filing party may represent to the court that the motion is agreed to by the other party or parties; and (2) the other party or parties shall not oppose the motion. EXAMPLE: If the Agreement authorizes a party to file a Joint Motion to stay litigation, it means that the filing party is authorized to represent to the court that the other party has agreed to the motion

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Knowledge refers to actual knowledge; knows has a corresponding meaning.

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Law, whether or not capitalized, refers to any and all applicable provisions of a constitution, statute, regulation, ordinance, judgment, order, or other obligation, requirement, or prohibition having legally-binding effect at the relevant time.

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When material to the Agreement as a whole, any of the following is considered a material breach of this Agreement: 

(1) a failure by a Party to comply with the terms and conditions of this Agreement;

(2) a series of two or more such failures, even if individually not material, if the series itself is material to the Agreement as a whole; and (3) a misrepresentation by a Party to another Party.

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For the avoidance of doubt, when the Agreement states that a party may take an action, it means that the party has the right, but not the obligation, to take (or not take) the action, in its sole discretion, unless this Agreement clearly states otherwise.

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For the avoidance of doubt, to establish a person's liability in respect of a claim for misrepresentation in connection with this Agreement, the claimant must show that all of the following are true:

(1) the person made a representation that, at that time, either: (A) was untrue as to a material fact, or (B) omitted a material fact necessary in order to make the representation, in the light of the circumstances under which it was made, not misleading;

(2) the person that made the representation either: (A) failed to use reasonable care or competence in obtaining or communicating the information comprising the representation, or (B) knew, at the time of making the representation, of the circumstances described in subdivision (1);

(3) the claimant reasonably relied on the representation and suffered harm as a result; and

(4) the person that made the representation knew, or should have known, that the claimant would rely on the representation.

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To prevail in a claim of misrepresentation, the claimant must show the facts set forth in the Misrepresentation Definition clause by clear and convincing evidence.

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Unless the Agreement expressly states otherwise, the term month, whether or not capitalized, refers to the Gregorian calendar.

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Unless the Agreement expressly states otherwise, a period of X months, beginning on a specified date, ends at midnight at the end of the same day (or the last day, if earlier) of the month X months later. EXAMPLE: A one-month period beginning on December 31 ends at midnight at the end of January 31. EXAMPLE: A two-month period beginning on December 31 ends at midnight at the end of February 28.

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The following terms and variations on them, whether or not capitalized, have the stated meanings. The terms are defined by example; variations on the terms have corresponding meanings.

(a) Net 30 means that 100% of the invoiced amount is due no later than 30 days after the invoice date (or, if so stated in this Agreement, no later than 30 days after the date of receipt of the invoice).

(b) 2%/10 net 30 has the same meaning as net 30 except that the amount due will be reduced by 2% (that is, to 98% of the invoiced amount) if payment is received within 10 days instead of 30 days.

(c) 2% every 5 days early, net 30 means that if the invoice is paid (for example) in 10 days (that is, 20 days early, which is 4 increments of 5 days), then the amount due is equal to 92% of the invoiced amount (that is, 100% of the invoiced amount, less 4 times 2% of that amount).

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Non-party, whether or not capitalized, refers to an individual or organization that is not a signatory of this Agreement unless another meaning is clear from the context.

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Organization, whether or not capitalized, refers to a corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

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Party, whether or not capitalized, refers to a signatory of this Agreement unless another meaning is clear from the context.

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The term patent rights, whether or not capitalized, singular or plural, refers generally to the following (if any) that exist, in any jurisdiction unless this Agreement specifies otherwise, at a relevant time:

(1) issued patents, including but not limited to reissue patents and reexamined patents;

(2) patent applications, both pending and abandoned, including but not limited to provisional, non-provisional, divisional, continuation, continuation-in-part, and reissue applications, whether or not published;

(3) any right to claim priority under any of the foregoing; and

(4) any right to sue for infringement of any claim in, or other right arising from, an issued patent or pending patent application.

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(a) Person, whether or not capitalized, refers to an individual or organization.

(b) Unless otherwise clear from the context, a reference to a person encompasses that person's successors and assigns. (This subdivision, however, does not in itself authorize assignment of any right or delegation of any obligation under this Agreement.)

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Unless otherwise specified in this Agreement, prime rate (whether or not capitalized) refers to the per annum rate of interest for commercial loans announced or published from time to time by the Wall Street Journal (the Prime Rate Organization), as in effect at the date in question.

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Unless the context indicates otherwise, Provider refers to a party that this Agreement contemplates will furnish goods (including for example intangible goods), rights, and/or services to another party.

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See Fiscal years; fiscal quarters

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When the Agreement permits a party to act in its reasonable discretion (whether or not the term is capitalized), the party in question must act in a commercially-reasonable manner.

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Any claim that a party did not exercise reasonable discretion must be proved by clear and convincing evidence.

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(a) The term reasonable efforts, whether or not capitalized, refers to one or more reasonable actions reasonably calculated to achieve the stated objective.

(b) Any assessment of reasonable efforts is to give due regard to the information reasonably available, to the relevant person at the relevant time, about (for example) the likelihood of success of specific action(s); the likely cost of other actions; the parties' other interests; the safety of individuals and property; and the public interest.

(c) A requirement to make reasonable efforts: (1) does not necessarily require taking every conceivable reasonable action; and (2) does not require the obligated party to put itself in a position of undue hardship.

(d) A party obligated to make reasonable efforts may consider potential cost and potential return when determining what actions it must take to satisfy that obligation.

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A person (the "actor") acts recklessly when the actor consciously disregards a substantial and unjustifiable risk that harm will result from the actor's conduct. The risk of harm must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to the actor, the disregard of the risk involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation.

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All references to articles, sections, clauses, subsections, subdivisions, paragraphs, exhibits, appendixes, addenda, and the like are to those of this Agreement unless otherwise clear from the context.

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The term responsible, whether or not capitalized, refers to action that is both reasonable and conscientious. As an illustrative example, to make responsible efforts to achieve an objective (whether or not the term is capitalized) means to make at least such reasonable efforts as a reasonable person would make in a conscientious attempt to achieve that objective.

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A representation is a statement of past or present fact; the verb represent has a corresponding meaning. For the avoidance of doubt, a statement of future fact is not a representation.

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An action is taken seasonably (whether or not the word is capitalized) if the action is taken at or within the time agreed or, if no time is agreed, at or within a reasonable time.

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The term Serious Dispute refers to any Agreement-Related Dispute that becomes, or appears reasonably likely to become, the subject of litigation or arbitration.

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Unless the context clearly requires otherwise, terms such as "Party A shall take Action X" mean that Party A is required to take Action X"; likewise, "Party B shall not take Action Z" means that Party B is prohibited from taking Action Z.

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Signed and like terms such as sign, signing, signature, whether or not capitalized, with respect to a writing, refer to executing or adopting a symbol, or carrying out a process, attached to or logically associated with a writing or other record, with the intent to adopt, accept, or authenticate the record. Such terms encompass, for example, an electronic signature as defined in the [U.S.] Electronic Signatures in Global and National Commerce Act ('E-SIGN'), 15 U.S.C. § 7006(5).

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IF: This Agreement states that a party may take an action in its sole discretion (whether or not the term is capitalized); THEN: The party in question is free to take the action, in whatever manner it deems appropriate, or not to take the action, in any case with a view solely toward its own interests and desires; the party's action or inaction is to be conclusively deemed to comply with any applicable duty of reasonableness, good faith, or fair dealing.

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A party's authority under this Agreement to act in its sole discretion is not to be exercised arbitrarily, capriciously, or irrationally.

Tax, whether or not capitalized, refers to any tax, assessment, charge, duty, levy, or other similar governmental charge of any nature, imposed by any taxing authority.

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Illustrative examples of taxes include the following, whether or not an obligation to pay the same is undisputed and whether or not a return or report must be filed:

(1) all taxes on income, gross receipts, employment, franchise, profits, capital gains, capital stock, transfer, sales, use, occupation, property, excise, severance, windfall profits, sick pay, and disability pay;

(2) all ad valorem, alternative minimum, environmental, license, payroll, registration, social security (or similar), stamp, stamp duty reserve, unemployment, value added, and withholding taxes; and

(3) all other taxes, assessments, charges, customs and other duties, fees, levies or other similar governmental charges of any kind whatsoever, together with

(4) all estimated taxes, deficiency assessments, additions to tax, fines, penalties, and interest.

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The term Taxing authority, whether or not capitalized, refers to any government authority exercising de jure or de facto power to impose, regulate, or administer or enforce the imposition of taxes.

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(a) For the avoidance of doubt, termination of this Agreement, whether or not the term is capitalized: (1) cancels the parties' respective rights and obligations arising after termination except to the extent, if any, otherwise provided in this Agreement (for example in a survival clause);

(2) does not affect any claim for pre-termination breach of this Agreement; and

(3) is without prejudice to any party's other rights or remedies pursuant to this Agreement except to the extent, if any, that this Agreement clearly provides otherwise.

(b) Unless otherwise clear from the context, the term termination encompasses any expiration of the term of this Agreement, if any, including, for example, due to a party exercising a right under this Agreement to opt out of an automatic-extension provision, if any.

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An action is timely taken (whether or not the word is capitalized) if the action is taken at or within the time agreed or, if no time is agreed, at or within a reasonable time.

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Tribunal, whether or not capitalized, refers to an adjudicatory body of competent jurisdiction. Examples of tribunals include a court, an arbitral tribunal, or an administrative agency or legislative body acting in an adjudicatory capacity. For this purpose, 'acting in an adjudicatory capacity' means that in a particular matter, after the presentation of evidence or legal argument or both by one or more parties, a panel of one or more neutral officials renders a binding legal judgment directly affecting the interests of one or more parties in the matter.

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The term USD refers to U.S. dollars.

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Unless the context clearly requires otherwise, terms such as "Party A will take Action X" mean that Party A is required to take Action X"; likewise, "Party B will not take Action Z" means that Party B is prohibited from taking Action Z.

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(a) The term willful (and its variant spelling wilful), in the context of action or conduct — for example, willful act or willful action or willful conduct or willful misconduct or willful neglect) — refers to action or conduct as to which it is shown, by clear and convincing evidence, that:

(1) the party that engaged in the action or conduct (the "actor") specifically intended to cause a particular consequence;

(2) the consequence was unlawful;

(3) the actor knew or should have known that the consequence was unlawful; and

(4) the action or conduct was not privileged.

(b) For the avoidance of doubt, for purposes of subdivision (a), the terms act, action, and conduct include one or more failures to act.

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Writing and written, whether or not capitalized, refer to any tangible or electronic record of a communication or representation. The terms encompass, for example, handwriting, typewriting, printing, photocopying, photography, audio or video recording, and e-mail.

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(a) To the extent not clearly prohibited by applicable law, at the request of either party, any dispute arising out of this Agreement or any transaction or relationship resulting from it (the Arbitrable Dispute) that is not settled by the parties themselves is to be submitted to arbitration:

(1) in English (the Arbitral Language) before a single arbitrator appointed in accordance with the Arbitral Rules (the Arbitral Tribunal);

(2) governed by the U.S. Federal Arbitration Act (the Arbitral Law);  

(3) conducted, as a choice of rules and not of forum, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the demand for arbitration (the Arbitral Rules), to the extent not inconsistent with this Agreement or the Arbitral Law; and

(4) administered by the American Arbitration Association (the Arbitration Administrator).

(b) Except to the extent, if any, that this Agreement provides otherwise, the arbitration award for such a dispute: (1) will be binding, and (2) may be enforced in any court of competent jurisdiction.

(c) For the avoidance of doubt, the provisions of this Agreement relating to arbitration will survive any termination or expiration of this Agreement.

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For the avoidance of doubt, if for any reason the Arbitral Tribunal cannot be appointed, or a vacancy cannot be filled, in accordance with this Agreement — for example, because a designated arbitration administrator declines to act — then the arbitration is to proceed nevertheless, with the Arbitral Tribunal being appointed, or the vacancy being filled, as provided in section 5 of the U.S. Federal Arbitration Act (the Arbitrator Appointment Backup Procedure).

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For the avoidance of doubt, the term Arbitrable Dispute encompasses all claims that are explicitly or implicitly created by constitution, statute, or regulation (for example, state- or federal anti-discrimination statutes).

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Any dispute about the arbitrability of a claim is to be decided by the Arbitral Tribunal, including for example any dispute about: (1) whether the parties have in fact entered into an agreement to arbitrate; (2) whether the agreement to arbitrate is binding; (3) whether the agreement to arbitrate is enforceable; (4) whether any party has waived its right to require arbitration; (5) whether the parties' agreement to arbitrate applies to a particular type of controversy or a particular dispute; and (6) whether the parties' agreement to arbitrate conflicts with a statutory right that cannot be waived by contract.

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In the interest of increasing efficiency and reducing cost, the Arbitral Tribunal is to take suitable measures, where appropriate, to streamline the arbitration proceedings. In appropriate circumstances, such streamlining measures may include (for example) the Arbitral Tribunal's directing or authorizing one or more of the following: (1) motion practice for early disposition of issues; (2) testimony by telephone- or video conference; (3) direct testimony by written narrative statement, with oral summarizing by the witness followed by oral cross-examination; (4) joint written reports by opposing expert witnesses, explaining their points of agreement and disagreement; (5) witness-examination procedures such as "witness panel" or "hot-tub" examination of fact- and/or expert witnesses; (6) summary exhibits to supplement or substitute for voluminous evidence; (7) issuance of a tentative or draft award to allow the parties an opportunity to comment before issuance of the final award.

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(a) The Arbitral Tribunal's powers do not include the power to render an award that: (1) is based on errors of law or legal reasoning that would be grounds for reversal if made by a judge in a court; or (2) is based on evidence that would not satisfy the requirements of law in a civil trial to the court; or (3) grants relief prohibited by this Agreement or not available under applicable law.

(b) Accordingly, the parties expressly agree that any award that is so based, in whole or in part, may be appealed to a court of competent jurisdiction, on grounds that the Arbitral Tribunal thereby exceeded its agreed powers, as though the award were a judgment in a civil "bench trial" to the court in a U.S. district court.

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The parties regard the right of enhanced judicial review set forth in the Enhanced Appellate Review clause as a material consideration for and condition of the parties' agreement to arbitrate. IF: That right of enhanced judicial review right is finally held invalid, void, or unenforceable by a tribunal of competent jurisdiction, from which no further appeal is taken or possible; THEN: At either party's written election, delivered by notice to the other no later than ten business days after that final holding:

(1) the parties' agreement to arbitrate (but not other portions of this Agreement) is to be deemed rescinded by mutual agreement; and

(2) that agreement to arbitrate will be unenforceable, as will any award that might have been rendered by an Arbitral Tribunal pursuant to that agreement to arbitrate.

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Each arbitrator is to: (1) have appropriate experience in the general field of the dispute, and preferably in the resolution of disputes in that general field; (2) preferably be licensed to practice law in one or more jurisdictions, but not necessarily in any particular jurisdiction; and (3) meet the following Special Arbitrator Qualifications: None specified.

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(a) Unless this Agreement states otherwise or the parties otherwise agree: (1) all joint arbitration expenses — for example, the fees and expenses of the Arbitral Tribunal and, if applicable, the Arbitration Administrator — are to be shared equally; and (2) any other arbitration expense is to be borne by the party incurring it, unless the award specifies otherwise.

(b) For the avoidance of doubt, this clause: (1) does not in itself give the Arbitral Tribunal any other power to assess expenses against a party, but (2) is without prejudice to any other agreement to that effect between the parties (including for example any provision to that effect in the Arbitral Rules).

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In any dispute required by this Agreement to be arbitrated, any party may seek temporary, interim, or preliminary injunctive relief, in accordance with applicable law, (1) from a court or other tribunal of competent jurisdiction, without waiving the seeking party's right to arbitration; and/or (2) from the Arbitral Tribunal.

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(a) Except as provided in subdivision (b), each party to the dispute; each member of the Arbitral Tribunal; and each other participant in the arbitration proceedings, must: (1) maintain in confidence all non-public information that may be disclosed, in the course of the proceedings, by any party to the dispute; (2) use any such information only for purposes of the proceedings; and (3) not disclose any such information to any third party.

(b) The obligations of subdivision (a) apply indefinitely except to the minimum extent authorized or required: (1) by the Arbitral Rules; (2) by order of the Arbitral Tribunal after notice to the parties and an opportunity for them to be heard; (3) with the consent of the disclosing party; or (4) by law.

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In rendering its award, the Arbitral Tribunal may not act as amiable compositeur or ex aequo et bono; it has the power only to award such relief as would be both:

(1) legally able to be awarded in a court proceeding under applicable law concerning the dispute in question, including for example any applicable statute of limitation or of repose; and

(2) consistent with this Agreement, including for example any limitation of liability (a term that includes for example exclusions of remedies) and any shortened limitation period stated in this Agreement.

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The Arbitral Tribunal is to provide the parties with a transcript of the hearing, prepared by a suitably-qualified reporter.

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In the interest of expediting the preparation of the award, a tribunal of multiple arbitrators shall remain at the place of the arbitration, or at some other convenient place with access to suitable administrative support and research resources, and devote their full time and attention to the preparation of the award (except in case of true emergency or force majeure).

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The Arbitral Tribunal shall issue its award in a written statement that sets forth the tribunal's reasons for the award, with enough detail to provide reasonable support for the award (in case of subsequent judicial review) without being excessively wordy.

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To facilitate any judicial review that might occur, the Arbitral Tribunal is to include findings of fact and conclusions of law in its award.

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For the avoidance of doubt, no party may: (1) join or consolidate claims in arbitration by or against other individuals or entities; nor (2) arbitrate any claim as a representative member of a class; nor (3) arbitrate any claim in a capacity of private attorney general.

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The parties regard the class-action prohibition of this Agreement as material to their agreement to arbitrate disputes. Consequently, IF: That prohibition is finally held invalid, void, or unenforceable by a tribunal of competent jurisdiction from which no further appeal is taken or possible; THEN: At either party's written election, delivered by notice to the other, the parties' agreement to arbitrate (but not other portions of this Agreement) is to be deemed rescinded by mutual agreement and will be unenforceable. 

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(a) The signatory parties anticipate that one or more individuals or organizations other than themselves — referred to here as non-parties — may participate in one or more transactions or relationships arising out of this Agreement.

(b) Any such non-party may demand that a claim arising out of or relating to such a transaction be arbitrated in accordance with the arbitration provisions of this Agreement. To that extent, the signatory parties intend that the non-party be a third-party beneficiary of those arbitration provisions.

(c) For the avoidance of doubt, neither this Clause nor anything else in this Agreement is intended to limit the ability of a signatory party to this Agreement to demand arbitration, in accordance with the arbitration provisions of this Agreement, of a claim made by or against a non-party, where such a demand would otherwise be permitted by applicable law.

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Except to the extent (if any) expressly stated otherwise in this Agreement, the Arbitral Tribunal may not include, in any award, any injunction or direction to any party other than a direction to pay one or more sums of money.

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The Arbitral Tribunal will not have the power to award punitive damages, exemplary damages, or the like, all of which the parties expressly waive in any arbitration proceeding.

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IF: a court or other tribunal of competent jurisdiction rules that the parties' agreed prohibition of punitive damages in arbitration in this Clause is invalid or otherwise unenforceable; THEN: That prohibition is to be severed from this Agreement and the remainder of the parties' agreement to arbitrate is to be given effect.

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Arbitration is required for any dispute, of any nature, that may arise between the parties before termination or expiration of this Agreement, whether or not the dispute arises out of or relates to this Agreement.

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(a) A final award by an Arbitral Tribunal will not be binding, and the relevant part of the underlying dispute may be adjudicated de novo in a court of competent jurisdiction, if all of the following conditions are met:

(1) A party to the arbitration that desires to challenge some or all of the final award (the "Challenger") must give notice of its challenge to each other party no later than ten business days after the issuance of the award (the Challenge Notice Deadline). The notice must contain a short and plain statement of the challenge showing that the Challenger is entitled to relief.

(2) The Challenger must duly file and serve an action (the "Challenge Action"), in a court of competent jurisdiction, against one or more other parties to the arbitration (each, a "Respondent"), no later than 30 days after the issuance of the award (the Challenge Action Filing Deadline).

(3) The Challenge Action must seek only one or both of: (A) relief that the Challenger sought, but was not granted, from or against the Respondent in the arbirration; and/or (B) a declaratory judgment (or comparable action by the court) that a Respondent was not entitled to relief that was granted against the Challenger in the final award.

(b) Time is of the essence for each condition set forth in subdivision (a); for the avoidance of doubt, IF: A Challenger, for any reason, does not meet all of those conditions as to a given Respondent; THEN:

(1) The final award will automatically become binding as between that Challenger and that Respondent, without further action on the part of any individual or organization; and

(2) IF: The Challenge Action had already been filed when the final award became binding as to that Respondent pursuant to subdivision (1); THEN: That Respondent may file a motion, and represent to the court that it is a joint motion with the Challenger, to dismiss the Challenge Action with prejudice in respect of that Respondent.

(c) Any applicable limitation period, as defined below, is to be extended until the Challenge Action Filing Deadline to the extent necessary to permit filing of the Challenge Action.

(1) For this purpose, the term "applicable limitation period" refers to any limitation period whose expiration did not preclude asserting a claim for relief in arbitration, but would preclude filing the Challenge Action.

(2) Against the possibility that applicable law does not permit the above extension of the applicable limitation period, the relevant Respondent expressly agrees not to assert the expiration of the applicable limitation period as a defense to the Challenge Action.

(d) To reduce the cost of the Challenge Action and avoid duplication of effort, any Challenger or Respondent may file a motion, and represent to the court that it is a joint motion with all other parties to the Challenge Action, requesting that the court do one or more of the following:

(1) admit into evidence some or all of the record in the arbitration hearing, in the general form of a joint appendix in an appeal under the [U.S.] Federal Rules of Appellate Procedure (or as otherwise required or permitted by applicable law or rules), without regard to any objection made at the arbitration hearing or in the Challenge Action; and/or

(2) deem the non-binding final award of the Arbitral Tribunal to be the report of a master who was appointed, with the consent of the parties, to hold trial proceedings and recommend findings of fact, with the same effect as stated in Rule 53(f) of the [U.S.] Federal Rules of Civil Procedure.

(e) Neither party will be entitled to discovery in or concerning the Challenge Action except by leave of the court for good cause as shown by clear and convincing evidence.

(f) With respect to any given Respondent, IF: The final judgment in the Challenge Action, from which no further appeal is taken or possible, is not at least 20% more favorable to the Challenger than the arbitration award; THEN: The Challenger must pay or reimburse that Respondent for:

(1) all costs of court taxed to that Respondent in the Challenge Action; and

(2) all reasonable expenses, including for example reasonble fees and -expenses for attorneys and expert witnesses, incurred by that Respondent in both the arbitration and the Challenge Action (including without limitation in all appeals from the judgment in the Challenge Action).

(g) To the greatest extent not prohibited by applicable law, EACH PARTY PERMANENTLY, VOLUNTARILY, KNOWINGLY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY OF THE CHALLENGE ACTION OR ANY RELATED ISSUE.

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(a) APPLICABILITY: This clause applies whenever: (1) the parties agree, or (2) the Arbitral Tribunal proposes, and the parties do not agree to the contrary, that a particular dispute, or one or more issues in the dispute, is to be decided using baseball-style arbitration.

(b) SUBMISSION OF PARTIES' PROPOSED AWARDS: After the arbitration hearing, each party is to provide the Arbitral Tribunal and the other party with a written proposed award disposing of the relevant issue or issues (each, a "Proposed Award").

(1) The Arbitral Tribunal may specify a deadline for doing so (ten business days after the end of the hearing if not otherwise agreed or directed).

(2) Each party may include, in its Proposed Award, a brief explanation why the Arbitral Tribunal should select that Proposed Award as the final award.

(3) In the interest of speeding up settlement discussions at the hearing, the parties are encouraged, but not required, to exchange Proposed Awards while their representatives are still at the place of the hearing.

(c) REVISION OF PROPOSED AWARDS BEFORE SELECTION: Unless the parties agree to the contrary, the Arbitral Tribunal may advise the parties, as many times as the Arbitral Tribunal deems necessary, that, in the Arbitral Tribunal's view, neither Proposed Award should be selected (preferably explaining why), in which case the Arbitral Tribunal is to allow the parties more time to submit revised Proposed Awards.

(d) SELECTION OF PROPOSED AWARDS: Except as provided in subdivision (c), the Arbitral Tribunal is to select, as the final award, without modification, the one Proposed Award that the Arbitral Tribunal regards as most-closely matching the award that the Arbitral Tribunal itself would render pursuant to this Agreement.

(e) OTHER MATTERS: All other matters concerning the arbitration are to be governed by the then-most-recent Common Draft Arbitration – Basic Clause provision to the extent not inconsistent with the other arbitration provisions of this Agreement, if any.

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(a) This clause applies in any case in which: (1) this Agreement sets forth a reasonableness standard for something concerning an Audit (EXAMPLE: the Audit Right clause permits the Auditing Party to conduct commercially-reasonable Audits); and (2) the parties are unable to agree about whether that standard has been, or would be, met.

(b) Any such dispute will be resolved by "baseball" arbitration in accordance with the [[#[#ArbBaseballCls][/[#ArbBaseballCls/]] clause (CD14A).

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(a) An assignment of this Agreement itself operates not only as a transfer of the assigning party's rights, but also as a delegation of the assigning party's duties, under this Agreement.

(b) An assignee's acceptance of an assignment of this Agreement constitutes the assignee's promise to perform the assigning party's duties under this Agreement. That promise is enforceable by either the assigning party or by the non-assigning party.

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For the avoidance of doubt, an assignment of this Agreement itself does not relieve the assigning party of its responsibility to the non-assigning party for performance of its duties under this Agreement unless the non-assigning party expressly agrees otherwise in writing.

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Neither the Assigning Party, namely [fill in party name(s)] nor its then-current successor in interest, may assign this Agreement to any other individual or organization without the express prior written consent of the Consenting Party, namely fill in party name or its then-current successor in interest, except as expressly otherwise provided in this Agreement.

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Consent to assignment is not required in connection with a transaction (or series of transactions) in which all assets of the Assigning Party's business are to be acquired by another party, whether the acquisition is expressly described as such or is to occur by operation of law.

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Consent to assignment is not required in connection with a transaction (or series of transactions) in which all the assets of the Assiging Party's business to which this Agreement specifically relates are to be acquired by another party, whether the acquisition is expressly described as such or is to occur by operation of law.

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(a) For purposes of this clause, the term "Pledge", in respect of a right under this Agreement, refers to (1) an assignment or pledge of the right; or (2) a grant of a security interest in the right.

(b) Consent to assignment is not required in connection with a Pledge by the Assigning Party of or more of the Assigning Party's rights under this Agreement – whether the Pledge is absolute or collateral – so long as the Pledge does not purport to delegate any obligation of the Assigning Party under this Agreement.

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(a) An assignment of this Agreement by the Assigning Party by operation of law requires the consent of the Consenting Party to the same extent as would an assignment by the Assigning Party to the same assignee outside of such a transaction or series of transactions.

(b) For the avoidance of doubt, a merger, consolidation, amalgamation, or other transaction or series of transactions is considered an assignment by operation of law.

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(a) IF: An Assigning Party requests the Consenting Party's consent to a contemplated assignment of this Agreement, or of any right or interest in this Agreement; THEN: The Consenting Party will preserve in confidence, and use only for the Assigning Party's benefit,(1) the fact that an assignment or other transaction is contemplated, together with (2) any information about the contemplated assignment or other transaction that the Assigning Party may disclose to the Consenting Party in connection with the consent request.

(b) The confidentiality obligation of subdivision (a) applies until such time, if any, as the fact of the assignment or other transaction, and/or the information in question, as applicable, becomes publicly known.

(c) For the avoidance of doubt, this clause does not limit any separate confidentiality obligation that may be agreed to by the parties, if any, in respect of the contemplated assignment.

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Any putative assignment of this Agreement that is made without a consent required by this Agreement is void.

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IF: This Agreement requires consent to an assignment of this Agreement or of one or more types of interest therein; THEN: The Assigning Party commits a material breach of this Agreement if it makes any such assignment without the required consent.

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For the avoidance of doubt, the Consenting Party may, in its sole discretion, grant or withhold its consent to an assignment of this Agreement by the Assigning Party.

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The Consenting Party may not unreasonably withhold, delay, or condition its consent to an assignment of this Agreement by the Assigning Party.

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Any unreasonable withholding of consent to assignment by the Consenting Party is not subject to any exclusion of remedies or other limitation of liability that might be set forth in this Agreement.

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(a) This clause applies if a tribunal of competent jurisdiction holds, in a final judgment or award (or comparable action) from which no further appeal is taken or possible, that the Consenting Party unreasonably withheld its consent to an assignment of this Agreement that required such consent.

(b) In such a case: (1) the Consenting Party will be deemed to have given its approval; and (2) the Consenting Party will not be liable to the Assigning Party, nor to any third party, for money damages for having withheld its consent.

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The Consenting Party's consent is not required for an assignment of this Agreement to an Affiliate of the Assigning Party.

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The Assigning Party, to be able to assign this Agreement to an Affiliate without the consent of the Consenting Party, must unconditionally the assignee's performance of the Assigning Party's obligations under this Agreement.

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IF: [fill in party name] (the Assigning Party) assigns this Agreement; THEN: [fill in party name] (the Non-Assigning Party) may, in its sole discretion, terminate this Agreement by giving notice of termination to the Assigning Party or its assignee no later than [fill in] (the Termination Deadline).

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Unless otherwise clear from the context, the term records, whether or not capitalized, refers to books, documents, and other data, stored in any tangible- or intangible medium regardless of type, and without regard to whether such items are in written, graphic, audio, video, or other form.

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During the term of this Agreement, the Recordkeeping Party will, in the ordinary course of business, create and timely update the Required Records, namely, materially-complete and ­accurate records, in accordance with commercially-reasonable standards of recordkeeping, that are sufficient to establish the accuracy and the compliance with this Agreement (or, if applicable, compliance with documents ancillary to the Agreement such as a statement of work), of each of the following, where applicable:

(1) the performance of services for the Auditing Party, and/or the delivery of goods, equipment, or intangibles (for example, software) to the Auditing Party, by or on behalf of the Recordkeeping Party, pursuant to this Agreement;

(2) amounts billed or to be billed to the Auditing Party by the Recordkeeping Party, such as (for example) cost-plus charges for goods and time-and-materials charges for services; and

(3) amounts paid or to be paid to the Auditing Party by the Recordkeeping Party, such as (for example) royalties or rents to be paid to the Auditing Party as a percentage of the Recordkeeping Party's sales.

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Tthe Recordkeeping Party will maintain each of the Required Records until at least [fill in] (the the Record Retention Period), and, if longer, the duration of any audit conducted persuant to this Agreement.

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(a) The Recordkeeping Party will maintain each of the Required Records for at least the period that the record would be required to be maintained under the (U.S.) Federal Acquisition Regulations (FARs), Contractor Records Retention, 48 C.F.R. Subpart 4.7.

(b) For the avoidance of doubt, subdivision (a) is included for the convenience of the parties in drafting and negotiating this Agreement; the parties do not intend to imply that this Agreement and/or their relationship are in any way subject to the FARs.

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For purposes of this Agreement, the term audit, as a verb, whether or not capitalized, refers to one or more of the following: (i) auditing, inspecting, examining, reviewing, and/or analyzing one or more Records; and (ii) orally discussing such Records and their contents with personnel of the recordkeeping party who might be familiar with them. The noun form of audit has the corresponding meaning.

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Except as otherwise provided in this Agreement, the Auditing Party may cause commercially-reasonable audits to be conducted of all Required Records, in the form in which the Recordkeeping Party keeps them in the ordinary course of the Recordkeeping Party's business.

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To be entitled to audit Required Records, the Auditing Party must give the Recordkeeping party reasonable notice (the Required Audit Notice) that becomes effective no later than the end of the Record Retention Period for the specific Records to be audited.

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For the avoidance of doubt, the Auditing Party's audit rights do not extend to information that, under applicable law, would be immune from discovery on grounds of attorney-client privilege, work-product immunity, or the like.

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For the avoidance of doubt, the Auditing Party's right to audit the Recordkeeping Party's Records does not extend to (and the the Recordkeeping Party need not provide the Auditing Party or its auditors with):

(1) unrelated information such as, for example, information concerning the Recordkeeping Party's other customers, clients, business associates, and/or general business affairs;

(2) in a fixed-cost transaction, information concerning the Recordkeeping Party's costs and profit margins; nor

(3) information falling into any of the following Excluded Information Categories: None specified.

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(a) Each audit is to be conducted by one or more of the following (each, an Acceptable Auditor): (1) employees of the Auditing Party; (2) a Big Four accounting firm; (3) any other individual or organization agreed in writing by the parties, in this Agreement or elsewhere; and (4) any other individual or organization reasonably acceptable to the Recordkeeping Party.

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Absent consent of the Recordkeeping Party, the Auditing Party:

(1) will not use any nonpublic information that is learned or derived in the course of any such audit, except to the extent necessary to protect the Auditing Party's rights and/or for the Auditing Party's performance of its obligations under this Agreement;

(2) will not disclose any such information to third parties except in response to compulsory legal process, after first (i) advising the Recordkeeping Party of such process (where not prohibited by law) and (ii) providing reasonable cooperation in any efforts by the Recordkeeping Party to preserve the confidentiality of such information; and

(3) will enter into binding written agreements with its auditors requiring them to comply with subdivisions (1) and (2) above.

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All audits are to be conducted at the location where the records are kept in the ordinary course of business, or at another reasonable location designated by the Recordkeeping Party in consultation with the Auditing Party.

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The Recordkeeping Party will provide the auditor(s) with suitable facilities, of the type customarily used by professional knowledge-based workers, with appropriate furniture, lighting, air conditioning, and electrical outlets.

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The Recordkeeping Party will provide reasonable cooperation with the auditor(s) in any audit permitted by this Agreement; such cooperation is to include, for example, at the request of the auditor(s), making the Recordkeeping Party's relevant personnel reasonably available to the auditor(s) and directing them to answer questions not requiring disclosure of attorney-client privileged information.

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All audits are to be conducted at reasonable times, designated by the Auditing Party in consultation with the Recordkeeping Party, during the Recordkeeping Party's normal business hours at the relevant location.

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If so requested by the Recordkeeping Party, the Auditing Party will promptly cause the Recordkeeping Party to be provided with a complete and accurate copy of each audit report provided to the Auditing Party by the auditor(s).

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For the avoidance of doubt, the auditor(s) may make and keep copies of the Required Records it audits, so long as the auditor(s): (1) comply with the confidentiality requirements of the Audits – Confidentiality clause; and (2) return or destroy the copies, in accordance with the auditor's regular, commercially-reasonable policies and processes, within a reasonable time after the expiration of any applicable record-retention requirement.

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IF: An audit reveals the apparent existence of a discrepancy such as (for example) over- or underbilling; over- or underpayment; or a breach of this Agreement; AND: The party benefiting from the apparent discrepancy does not show the contrary; THEN: The party benefiting from the discrepancy will promptly take such action as may be necessary to remedy the discrepancy.

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IF: An audit reveals, and the Recordkeeping Party does not disprove the existence of, a discrepancy in billing or payment, for the period being audited, in favor of the Recordkeeping Party, of at least 5% (the the Expense-Shifting Threshold Percentage); AND: The discrepancy was caused by an error that was made by, or that is imputable to, the Recordkeeping Party; THEN: The Recordkeeping Party will reimburse the Auditing Party for reasonable expenses actually incurred (for example, auditors' fees and expenses) that were reasonably necessary to the audit.

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The Recordkeeping Party will likewise reimburse the Auditing Party if an audit reveals, and the Recordkeeping Party does not disprove, an uncured material breach of this Agreement by the Recordkeeping Party.

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(a) The Recordkeeping Party will likewise reimburse the Auditing Party if: (1) an audit reveals clear and convincing evidence of fraud (as defined below) by the Recordkeeping Party (and/or its subcontractors, if applicable); and (2) the Recordkeeping Party does not convincingly refute such evidence.

(b) For purposes of subdivision (a), "fraud" refers to either of the following conduct by the Recordkeeping Party: (1) the making of an untrue statement of a  material fact with knowledge of the statement's untruth; or (2) the omission of a material fact with knowledge that the material fact was necessary in order to make the statements made by the Recordkeeping Party, in the light of the circumstances under which they were made, not misleading.

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Except for good reason clearly shown, the Recordkeeping Party need not permit audits: (1) more often than once per calendar year, with at least 12 months between audit requests (the Maximum Audit Frequency); nor (2) more than once per period audited (the Maximum Audit Repetitions).

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IF: The Recordkeeping Party is not required to reimburse the Auditing Party's expenses of the audit pursuant to the Audit Right clause; THEN: The Auditing Party will reimburse the Recordkeeping Party (and its subcontractors, if applicable) for reasonable expenses actually incurred in connection with the audit, such as (for example) reasonable fees and expenses for an auditor engaged by the Recordkeeping Party to monitor the audit.

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The auditor(s) may disclose to the Auditing Party only whether a reportable discrepancy was revealed by the audit, and if so, the size and general nature of the discrepancy.

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The Recordkeeping Party will include, in each subcontract under thie Agreement (if any), provisions for the benefit of the Auditing Party as a third-party beneficiary, as follows: (1) a requirement that the subcontractor likewise (A) keep records, and (B) permit audits by the Auditing Party, each in accordance with the audit provisions of this Agreement; and (2) an authorization for the subcontractor to deal directly with the Auditing Party and its auditor(s) in connection with any such audit.

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[Fill in party name] (the Investigating Party) will cause commercially-reasonable background checks to be conducted on all individuals who will engage in any of the following Restricted Activities; such individuals are referred to as Relevant Individuals: (1) working on-site at any premises of [fill in party name] (the the Requesting Party); (2) having access to the Requesting Party's equipment or computer network; (3) having access to the Requesting Party's confidential information; (4) interacting with the Requesting Party's employees, suppliers, or customers; and (5) the following Specified Restricted Activities, if any: None specified.

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The Investigating Party will take commercially-reasonable measures to ensure that all background checks are conducted in accordance with law, including for example, (1) any applicable privacy laws, including for example any requirement that an individual's consent be obtained; and (2) any applicable pre-decision and/or post-decision notification requirements, for example, in credit-reporting laws, in respect of information learned in any such background check.

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Absent the specific approval of the Requesting Party, the Investigating Party will not assign any Relevant Individual to engage in any Restricted Activity if either of the following is true: (1) The individual's criminal-background check, if any, indicates that the individual has been convicted of, or pled guilty or no contest to either or both of (i) a felony, or (ii) a misdemeanor involving fraud or moral turpitude; and/or (2) The individual's drug test, if any, indicates either or both of: (i) the use of illegal drugs; and/or (ii) the use of prescription drugs not in accordance with a legally-issued prescription.

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All background checks other than drug testing must be or have been completed no earlier than [describe] (the Earliest Background-Check Date).

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All drug testing must be or have been completed no earlier than [describe] (the Earliest Drug-Testing Date).

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The Investigating Party will defend and indemnify the Requesting Party against any and all third-party claims — including but not limited to claims by government agencies and/or private individuals — arising from any noncompliance with law in the conduct of Background Checks pursuant to this Agreement.

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The parties will participate in status-review conferences by phone or, if so agreed, in person, whenever reasonably requested by either party (the Conference Frequency).

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Unless otherwise agreed, (1) conference details for requested conferences will be arranged by the requesting party; (2) details for regularly-scheduled conferences will be arranged by the parties on an alternating basis; and (3) each party will bear its own expenses of participating in the conference.

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The parties anticipate that the agenda for a status-review conference will include discussion of some or all of the following "G-PP-AA factors": (1) Goals; (2) Progress to date; (3) Problems encountered or anticipated; (4) Action plans for the future; and (5) Assumptions being made.

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(a) For convenient reference, at the request of any participating party, the party arranging the conference details should seasonably circulate a draft of written minutes of the conference (but doing so is not mandatory).

(b) Any participating party may seasonably object to the contents of the draft minutes by advising all other parties in writing of its proposed corrections and/or additions to the draft.

(c) For the avoidance of doubt, minutes will not in themselves be deemed to amend this Agreement nor to waive any right or obligation under it, regardless whether one or both parties prepared and/or approved the minutes, unless the minutes meet the requirements of this Agreement for amendment or waiver, as the case may be.

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Each party (the Appointing Party), upon request by the other party from time to time, will designate to the other party, in writing (including for example by email), an individual of appropriate seniority who is authorized by the Appointing Party to act as the Appointing Party's primary contact point for the other party under this Agreement.

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The other party may rely on any communication, by or from an individual who has been so designated as a party representative, as being a communication of the Appointing Party.

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In connection with its activities in connection with this Agreement, [fill in party name] (the Obligated Party) will cause at least commercially-reasonable safety measures to be taken.

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(a) For purposes of this Agreement, the term site), in respect of [fill in party name] (the the Host Party), refers to either (1) physical premises, or (2) a computer system or network, of the Host Party; the term site visit refers to the physical presence at such premises, or access to such a computer system or network, by individuals subject to the control of [fill in party name] (the Accessing Party).

(b) The Accessing Party will cause all such individuals to comply with such reasonable site rules and policies as the Host Party may seasonably communicate in writing to the Accessing Party.

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For the avoidance of doubt, the Host Party may not deny access to the Accessing Party's personnel for any reason prohibited by applicable law (for example, antidiscrimination or equal-opportunity law).

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Each party (the Obligated Party) will make reasonable efforts to avoid interfering with the activities of the other party at any site where both parties' personnel are present.

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IF: Individuals under control of [fill in party name] (the Visiting Party) are to access any physical premises controlled by another party; THEN: At the other party's request, the Visiting Party will provide the other party with reasonable evidence that such individuals are legally employable where those physical premises are located.

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The term Confidential Information refers to information – and only to information – that: (1) is maintained in confidence by or on behalf of either party to the Agreement (the Disclosing Party); (2) is made available to another party to the Agreement (the Receiving Party) pursuant to this Agreement; and (3) meets any other requirement or prerequisite stated in this Agreement to be considered Confidential Information.

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At any particular time, Confidential Information does not include information shown to be or to have been, at that time, within one or more of the following categories:

(1) The information was known by the Receiving Party before it obtained access to the information under this Agreement; or

(2) The information was provided to the Receiving Party by a third party that, at the time, was not under an obligation of confidence benefiting the Disclosing Party in respect of the information; or

(3) The information was independently developed by the Receiving Party without use of Confidential Information; or

(4) The information was published, or otherwise made generally available to one or more others not under an obligation of confidence to the Disclosing Party, without breach of this Agreement by the Receiving Party; or

(5) The information was disclosed to one or more third parties, by the Disclosing Party or with its authorization, without confidentiality obligations comparable to those of this Agreement.

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For the avoidance of doubt, the fact that Confidential Information comes within the scope of a legally-enforceable demand, issued by a third party, for disclosure does not in itself mean that the information becomes categorically excluded from Confidential Information status.

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A specific selection or combination of information is not excluded from Confidential Information status solely by virtue of the fact that some or all of its individual component parts are themselves so excluded, unless the selection or combination itself is shown to be so excluded.

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A party asserting that an item of information is excluded from Confidential Information status must support that assertion with documentary evidence or other reasonable corroboration.

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For the avoidance of doubt, the following types of materials prepared by (or for or on behalf of) the Receiving Party are themselves considered Confidential Information to the extent that Confidential Information is contained in them: Analyses; compilations; forecasts; interpretations; notes; reports; studies; summaries; and similar materials.

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For the avoidance of doubt, otherwise-eligible information of a third party is considered Confidential Information, to the same extent as if were the information of the Disclosing Party, if the third-party information:

(1) is in the possession of the Disclosing Party; and

(2) is disclosed or made accessible to the Receiving Party pursuant to this Agreement.

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For the avoidance of doubt, the term Confidential Information encompasses, by way of example and not of limitation, the following types of information when otherwise eligible under this Agreement: Algorithms; audit reports; biological materials; business plans; business records; circuit records; commercial information; compounds; computer programs; contracts; construction records; data-center designs; designs; diagrams; documents; draft publications; drawings; engineering records; financial information; financial projections; financial statements; forecasts; formulas; hardware items; ideas; interpretations; invention disclosures; leases; machine-readable data; maps; market projections; marketing information; methods; offers; operational data; opinions; patent applications (unpublished); plans; pricing information; procedures; processes; product development plans; product information programs; projections; proposals; research data; research plans; samples; server-configuration designs; source code for computer programs; specifications; strategies; tax bills; technical information; technical reports; technological developments; test data; title reports.

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For otherwise-eligible information to be considered Confidential Information, the information must be initially disclosed or otherwise made accessible to the Receiving Party, by or on behalf of the Disclosing Party, during the following period: [fill in] (the Protected Disclosure Period).

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For otherwise-eligible information to be considered Confidential Information, the information must fall within one or more of the following categories: [fill in] (the Protected Information Categories).

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Except as otherwise provided by this Agreement, otherwise-eligible information that is owned or maintained by an Affiliate of the Disclosing Party but not by the Disclosing Party itself is considered Confidential Information to the same extent as if it were owned or maintained by the Disclosing Party itself.

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Otherwise-eligible information that is owned or maintained by an Affiliate of the Disclosing Party but not by the Disclosing Party itself will not be considered Confidential Information unless the information is clearly marked as being subject to the Agreement (regardless whether this Agreement requires Confidential Information of the Disclosing Party to be marked as such).

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The following are the Confidential Information of each party (even if only one party is designated as a Disclosing Party): (1) the fact and content of the parties' dealings with each other, including if applicable the fact and content of their discussions or negotiations; and (2) the fact that the parties have entered into this Agreement and its terms and conditions.

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Except to the extent (if any) expressly provided otherwise by this Agreement, information that is made available to the Receiving Party in connection with this Agreement, by or on behalf of the Disclosing Party, will not be considered Confidential Information unless it is set forth in a copy or written summary that is marked with a reasonably-prominent, visually-readable notice such as (for example) "Confidential information of [name]" or "Subject to NDA."

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IF: A disclosure of Confidential Information by the Disclosing Party does not comply with the marking requirement of the Marking Requirement clause THEN: The information will not be considered Confidential Information unless the Disclosing Party

(1) advises the Receiving Party of the information's confidential status at the time of disclosure; and

(2) no later than 30 days after the initial disclosure (the Late-Marking Deadline), (A) furnishes the Receiving Party with a copy or summary of the Confidential Information that complies with that marking requirement, and (B) gives the Receiving Party notice, in accordance with this Agreement, that it has done so.

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A particular document or thing containing Confidential Information (for example, a paper document or an electronic file) need not be marked as confidential if both of the following are true:

(1) the Receiving Party is given access to that particular document or thing as it is kept in the ordinary course of business, for example in the Disclosing Party's paper- or electronic files; and

(2) the Receiving Party is not authorized by the Disclosing Party to remove, transmit, or otherwise take a copy of Confidential Information contained in that particular document.

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Information otherwise eligible to be considered Confidential Information need not be marked as confidential if, under the circumstances, a reasonable person would recognize the confidentiality of the information.

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Receiving parties often object to clauses like this because of the potential for later disputes about what information would qualify as reasonably-recognizable as confidential.

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The Receiving Party will take, at a minimum, commercially-reasonable security precautions to protect Confidential Information, including for example precautions not less than the precautions that the Receiving Party uses to protect its own confidential information of comparable importance and value.

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Other than as expressly permitted by this Agreement, the Receiving Party may not do any of the following without the Disclosing Party's express prior written consent: (1) use Confidential Information; (2) make copies of Confidential Information; (3) remove, obscure, or alter existing confidentiality markings from copies of Confidential Information; (4) disclose, transmit, or otherwise make Confidential Information available to a third party; or (5) confirm, to any third party, any correlation or similarity between Confidential Information and information from any other source.

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During the term of this Agreement, the Receiving Party may use Confidential Information to the extent reasonably necessary for one or more of the following: (1) performing the Receiving Party's obligations under this Agreement; (2) exercising the Receiving Party's rights under this Agreement; (3) assessing whether to enter into another agreement with the Disclosing Party; and (4) any other purpose agreed to in writing in advance by the Disclosing Party.

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During the term of this Agreement, the Receiving Party may disclose Confidential Information, in confidence, to one or more of the Receiving Party's officers, directors, and employees, and individuals having comparable status if the Receiving Party is a non-corporate type of organization (for example, to managers of a limited liability company and general partners of a general- or limited partnership).

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Each individual or organization to which Confidential Information is disclosed pursuant to the Permitted Disclosures clause must have a need to know the information in question in connection with a use of Confidential Information by the Receiving Party permitted by this Agreement.

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Each individual or organization to which Confidential Information is disclosed pursuant to the Permitted Disclosures clause must be obligated, either to the Receiving Party or to the Disclosing Party, by written agreement or as a matter of law, to comply with legally-enforceable confidentiality obligations concerning the Confidential Information that are at least as restrictive as the confidentiality obligations of this Agreement.

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(a) Subject to subdivisions (b) through (e), the Receiving Party may disclose Confidential Information in response to a demand for information (1) that is initiated or propounded by a third party and (2) as to which the Receiving Party's compliance may be compelled by law, such as (for example) a subpoena; a search warrant; a civil investigative demand; or a discovery request in a lawsuit.

(b) The Receiving Party must promptly advise the Disclosing Party upon learning of the demand (to the extent that doing so is not prohibited by applicable law).

(c) If so requested by the Disclosing Party, the Receiving Party must provide reasonable cooperation with any efforts by the Disclosing Party to limit the disclosure, and/or to obtain legal protection for the information to be disclosed, in response to the demand.

(d) Upon request by the Receiving Party, the Disclosing Party will reimburse the Receiving Party for all reasonable expenses incurred in providing the cooperation required by subdivision (c), including for example reasonable attorneys' fees and -expenses.

(e) The Receiving Party may disclose only so much Confidential Information as is legally required in response to the demand.

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The Receiving Party may make copies and excerpts of Confidential Information, solely to the extent reasonably necessary for use or disclosure permitted by this clause, subject to the following conditions: (1) The Receiving Party must ensure that any such copy or excerpt duplicates any confidentiality marking on the copy from which the copy or excerpt is made; and (2) for the avoidance of doubt, the confidentiality obligations of this Agreement apply to all such copies or excerpts.

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The Receiving Party will make prudent efforts to ensure that any use, disclosure, or copying of Confidential Information, by or on behalf of the Receiving Party, complies with applicable law, including for example any applicable law concerning privacy and export controls.

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For the avoidance of doubt, except as expressly provided otherwise in this Agreement, the Receiving Party's obligations under the Security Precautions clause and the Prohibited Activities clause will continue in effect indefinitely for all information that continues to come within the definition of Confidential Information, regardless of any termination or expiration of this Agreement or any other right or obligation under it.

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The Receiving Party need not comply with the obligations of the Security Precautions clause and the Prohibited Activities clause after [fill in] (the Expiration Date) except to the extent that applicable law would independently require such compliance (for example, a law concerning personal health information or consumer financial information).

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Notwithstanding any expiration of the confidentiality obligations of this Agreement, those obligations will nevertheless remain in effect for any Confidential Information that is shown to be a trade secret under applicable law, until such time (if any) as the information becomes subject to a specific exclusion from confidentiality status under this Agreement.

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The Receiving Party may disclose Confidential Information, in confidence, to its contractors on the same basis as it may do so to its employees.

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The Receiving Party may disclose Confidential Information, in confidence, to its Affiliates on the same basis as it may do so to its employees.

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Before providing Confidential Information to an individual recipient (for example, a Receiving-Party officer, director, or employee), the Receiving Party must first specifically instruct the individual that he or she has a duty to abide by the confidentiality obligations of this Agreement.

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The Receiving Party may not provide Confidential Information to any [FILL IN] (each, an Ineligible Recipient without the express prior written consent of the Disclosing Party; this prohibition takes precedence over any disclosure authorization in this Agreement.

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The Receiving Party will provide the Disclosing Party with a copy of the written confidentiality agreement between the Receiving Party and each individual or organization to which the Receiving Party provides Confidential Information. Such copies may be redacted, if so desired by the Receiving Party, to prevent disclosure to the Disclosing Party of confidential information.

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The Receiving Party may disclose Confidential Information in any legally-required submission to a regulatory agency or other governmental body to the same extent as if the submission were required in response to a subpoena (see the ConfInfoSubpoenasCls clause), BUT ONLY IF the Receiving Party first consults with the Disclosing Party a sufficient time in advance to give the Disclosing Party a reasonable opportunity to seek a protective order or other relief.

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(a) Subject to subdivision (b), the Receiving Party may, without the Disclosing Party's consent, disclose Confidential Information to a prospective acquirer of (1) the Receiving Party itself, or (2) substantially all of the assets of the Receiving Party's business specifically associated with this Agreement.

(b) Any such prospective recipient of Confidential Information must agree in writing to abide by the Receiving Party's obligations in this Agreement relating to Confidential Information.

Any disclosure of Confidential Information to a prospective acquirer pursuant to the Disclosure of Confidential Information to Prospective Acquirer clause must be limited to making the Confidential Information availalbe to the prospective acquirer in a secure data room.

(a) REQUIREMENT: Except to the extent (if any) that this Agreement provides otherwise, the Receiving Party will make diligent efforts to do one or the other of the following in respect of all "Specimens," as defined below, of Confidential Information: (1) return the Specimens to the Disclosing Party (or to another individual or organization designated in writing by the Disclosing Party), or (2) destroy the Specimens.

(b) DEFINITION – SPECIMENS: For purposes of subdivision (a), the term "Specimens" refers to all copies of, and all physical objects embodying, Confidential Information (for example, paper- or electronic copies and hardware samples), that are in the possession, custody, or control of any of the following: (1) the Receiving Party, and/or (2) any individual or organization to which the Receiving Party made Confidential Information accessible.

(c) EXCEPTION: Subdivision (a) does not apply to copies of Confidential Information that are not reasonably capable of being readily located and segregated — for example, system-backup copies of email and other information.

(d) CONFIDENTIALITY OBLIGATION CONTINUES: For the avoidance of doubt, the confidentiality obligations of this Agreement will continue to apply to all Specimens of Confidential Information that are not returned or destroyed for so long as those obligations remain in effect.

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If seasonably requested in writing by the Disclosing Party, the Receiving Party will seasonably provide the Disclosing Party with a certificate that it has complied with the obligations of the Return or Destruction of Confidential Information clause. The certificate must: (1) be signed by an officer of the party or other individual authorized to bind the party; (2) note any known compliance exceptions; and (3) for each exception, note whether and how the exception is authorized by this Agreement.

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(a) As a limited exception to the return-or-destruction obligations of the the Return or Destruction of Confidential Information clause clause, a set of archive copies of Confidential Information, including reasonable backups for such copies, may be maintained indefinitely, by or on behalf of the Receiving Party, PROVIDED THAT the conditions set forth in subdivision (b) are met.

(b) The archive copies must be maintained at one or more locations meeting commercially-reasonable security standards and made accessible only: (1) on a need-to-know basis to the Receiving Party for purposes of compliance with the Receiving Party's confidentiality obligations under this Agreement; or (2) as directed or permitted by a tribunal of competent jurisdiction; or (3) with the Disclosing Party's consent.

(c) For the avoidance of doubt, the confidentiality obligations of this Agreement will continue in effect, in accordance with their terms, for all such archive copies.

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All archive copies retained by the Receiving Party copies must be kept under the direct or indirect control of the Receiving Party's outside counsel; such control may include, for example, maintenance of the archive copies in a commercial records-storage facility operated by an individual or organization that, directly or indirectly, is contractually obligated to outside counsel to maintain the copies in confidence.

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For the avoidance of doubt, this Agreement does not grant the Receiving Party any license right or ownership right of any kind, in Confidential Information, nor in other any intellectual property of the Disclosing Party, EXCEPT to the extent (if any) that this Agreement expressly states otherwise.

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For the avoidance of doubt:

(a) The Disclosing Party DISCLAIMS all warranties, representations, conditions, and terms of quality, express or implied, about Confidential Information (for example, warranties of completeness or accuracy), all of which is provided or otherwise made available AS IS, WITH ALL FAULTS, EXCEPT to the extent (if any) expressly stated otherwise in this Agreement;

(b) The Receiving Party is not entitled to rely, and agrees not to rely, on Confidential Information for any purpose, except to the extent (if any) expressly stated otherwise in this Agreement; and

(c) The Disclosing Party will not be liable for any use of Confidential Information made by the Receiving Party EXCEPT to the extent (if any) expressly stated otherwise in this Agreement.

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(a) This clause applies if: (1) a third party – for this purpose including, for example, any employee of the Receiving Party – obtains or otherwise accesses Confidential Information in question as a result of the third party's relationship with the Receiving Party; and (2) that third party uses, discloses, and/or copies that Confidential Information in a manner not permitted by this Agreement.

(b) In such a situation, the Receiving Party will be liable to the Disclosing Party for any resulting harm to the Disclosing Party or its interests, to the same extent as if the damage had been caused by use, disclosure, or copying of the Confidential Information by the Receiving Party.

(c) For the avoidance of doubt, the obligations of this clause will survive any termination or expiration of this Agreement.

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(a) The Receiving Party will defend and indemnify the Disclosing Party, its Affiliates, and the Personnel of each of them, against any claim by a third party arising out of the use of Confidential Information by, on behalf of, or with the permission of, the Receiving Party.

(b) For the avoidance of doubt, the obligations of this clause will survive any termination or expiration of this Agreement.

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During the term of this Agreement, in response to any reasonable request by the Disclosing Party, the Receiving Party will provide reasonable cooperation with the Disclosing Party – at the Disclosing Party's expense – in investigating and/or taking action against a third party in connection with possible misappropriation of Confidential Information.

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For the avoidance of doubt: Apart from (i) the confidentiality obligations of this Agreement or (ii) as may be required by applicable law (for example, privacy law) —

(a) The Receiving Party is under no obligation of confidence in respect of any information that the Disclosing Party causes to be disclosed or made available to the Receiving Party pursuant to this Agreement, apart from Confidential Information; and

(b) Consequently, the Receiving Party is free to use and/or disclose any or all such non-Confidential Information in its sole and unfettered discretion, as long as such use or disclosure does not violate another intellectual-property right of the Disclosing Party (if any), such as, for example, patent rights, trademark rights, or copyrights.

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The Disclosing Party warrants to the Receiving Party that it has the right to disclose any Confidential Information that it makes available to the Receiving Party pursuant to this Agreement.

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To induce the Disclosing Party to provide it with access to Confidential Information, the Receiving Party makes the representation stated in this Agreement concerning the Receiving Party's status and its intentions for the use of Confidential Information.

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The Receiving Party will be under no obligation of confidence under this Agreement with respect to any Confidential Information disclosed to it unless the Receiving Party first consents in writing to the specific disclosure.

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(a) The Receiving Party may, without obligation to the Disclosing Party, use ideas, concepts, know-how, techniques, and similar information that may be retained in the unaided memory of the Receiving Party's personnel who did not intentionally memorize the information for that purpose (collectively, Residuals).

(b) For the avoidance of doubt, any such use of Residuals by the Receiving Party will be subject to any applicable patent rights, copyrights, trademark rights, or other intellectual-property rights owned or assertable by the Disclosing Party.

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For the avoidance of doubt, the Disclosing Party need not provide any particular Confidential Information to the Receiving Party except to the extent, if any, that this Agreement clearly indicates otherwise.

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(a) PROCEDURE: Either party may submit any dispute that is reasonably likely to become the subject of litigation or arbitration to (nonbinding) early neutral evaluation, in accordance with the Early Neutral Evaluation procedures of the American Arbitration Association then in effect (the ENE Rules), or such other procedures as the parties may agree. In that event, each party will participate in the evaluation in good faith.

(b) DISCLOSURES OPTIONAL: For the avoidance of doubt, in addition to any confidentiality requirements in the ENE Rules: (1) in the evaluation proceedings, no party need reveal any particular information to the other party or to the evaluator; and (2) if a party privately discloses information to the evaluator, then the evaluator will not reveal that information to any other party without the disclosing party's consent.

(c) BACKGROUND: The goal of early neutral evaluation is to provide parties to a dispute and their counsel with a "reality check." The neutral's evaluation is confidential, non-binding, and not shared with the trial judge or arbitrator. Any applicable rights the parties may have, under the relevant rules of procedure, to engage in discovery and motion practice are fully preserved. The evaluator has no power to impose settlement and does not attempt to coerce a party to accept any proposed terms. While the parties may agree to a binding settlement, if no settlement is reached, the case remains on the litigation- or arbitration track, as applicable.

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(a) Any dispute arising out of or relating to the Agreement or any transaction or relationship resulting from it, including but not limited to any dispute concerning breach, termination, or validity of this Agreement, whether based on action in contract, tort, or otherwise, will be finally resolved by civil litigation in accordance with the CPR Economical Litigation Agreement (2010 edition).

(b) THE PARTIES IRREVOCABLY AGREE TO TRIAL TO A JUDGE SITTING WITHOUT A JURY, except that trial will be to a jury: (1) in jurisdictions where pre-dispute waiver of jury trial is prohibited by law; or (2) where all parties to this Agreement agree in writing to trial by jury.

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(a) The parties will jointly refer any disagreement between them to their respective higher management levels, including executive-level management where appropriate, whenever requested in writing by either party.

(b) Upon a request for escalation, each party will promptly advise the other party in writing of the name and contact information of a senior representative who: (1) has authority to discuss — and, preferably, the authority to settle — the dispute on behalf of the advising party, and (2) is available for the meeting required by subdivision (c) below.

(c) Promptly thereafter, the parties will cause their respective senior representatives: (1) to meet and confer at least once about the dispute, by telephone, or if so agreed, by video conference or in person; and (2) at each such meeting or meetings, to make a good-faith effort to settle the dispute.

(d) The party making the request for escalation will coordinate reasonable meeting arrangements. Each party will be responsible for its own expenses of the senior representatives' meeting.

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The term Dispute Expenses refers to the following in respect of litigation, arbitration, or any other dispute-resolution proceeding:

(1) the costs of the proceeding, such as for example costs of court or administration fees charged by an arbitration provider, as applicable; and

(2) reasonable and necessary expenses actually incurred in connection with the proceeding, such as (for example) reasonable fees for attorneys and expert witnesses and the reasonable expenses of each.

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In any Agreement-Related Dispute, the prevailing party (the Recovering Party) will be entitled to recover its Dispute Expenses from the other party, in addition to any other relief that may be granted.

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(a) The parties believe that the following categories of dispute-resolution provision hold out the possibility of promoting amicable settlement of disputes between the parties, or at least of helping reduce the expense and burden of such disputes: (1) arbitration; (2) early neutral evaluation; (3) economical litigation agreement; (4) escalation of disputes; (5) forum selection; (6) jury-trial waiver; (7) mediation; (8) mini-trial to management; (9) service of process by courier.

(b) To create an incentive for the parties to comply with such provisions — if any are included in this Agreement — this clause applies if a party (the "non-participating party"): (1) fails to participate in dispute-resolution efforts or proceedings required by any such provision, or (2) challenges the validity or enforceability of any such provision.

(c) The non-participating party will not be entitled to recover its costs, attorneys' fees, or other expenses, AND HEREBY WAIVES, KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY, ANY CLAIM TO SUCH RECOVERY.

(d) For the avoidance of doubt, the waiver of this clause applies even if the non-participating party: (1) would otherwise have been entitled to such a recovery under this Agreement or pursuant to applicable law; and/or (2) prevails in the dispute in question or in the challenge against validity or enforceability of the provision in question.

(e) For the avoidance of doubt, the waiver of this Clause is in addition to any other relief to which another party may be entitled in respect of the non-participating party's actions.

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To the maximum extent not prohibited by law, EACH PARTY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT IT MIGHT HAVE TO TRIAL BY JURY of any dispute arising out of or relating to the Agreement or any transaction or relationship arising from the Agreement.

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Each party certifies that no representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the Agreement's waiver of jury trial.

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Each party acknowledges that the other party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Clause.

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The Protected Party will not be liable in any action, proceeding, or claim for breach of any provision of this Agreement, in any forum or before any Tribunal, that is brought after the expiration of the Limitation Period; any such action, proceeding, or claim that is brought or asserted after such expiration will be barred.

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The Limitation Period will begin on (1) the date of discovery of the facts constituting or giving rise to the alleged breach; or (2) if earlier, the date such facts should or could have been discovered with reasonable diligence.

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(a) As to any claim of breach of this Agreement, the limitation period specified in this Agreement in the Limitation Period clause will begin on the date of the earliest event that, either alone or together with previous events, was necessary to give rise to the claim.

(b) For the avoidance of doubt, subdivision (a) applies regardless whether the claimant knew or should have known of the occurrence of the event or of any such previous event.

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(a) IF: Provider (the Liable Party) fails to deliver goods or perform services as specified in this Agreement; THEN: The Liable Party shall pay the other party, in place of actual damages, [fill in] (the Liquidated Damages Amount).

(b) The parties agree that the stated liquidated damages represent a reasonable estimate of [NEEDS WORK XXX – INDIANA v. IBM]

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Any party desiring to bring an action, before any tribunal, against another party, in respect of any specified dispute must first attempt to resolve the matter through non-binding mediation administered by the American Arbitration Association (the Mediation Administrator) under the AAA Commercial Mediation Rules (the Mediation Rules), or such other administrator and/or rules as the parties may agree.

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Either party may submit any Serious Dispute for consideration by a neutral advisor and a representative of each party's senior management, in accordance with the then-current mini-trial procedures of the American Arbitration Association (the Minitrial Procedures) or such other procedures as the parties may agree.

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[PARTY 1 NAME] KNOWINGLY AND VOLUNTARILY WAIVES any duty on the party of [PARTY 2 NAME] to mitigate its damages in the event of a breach of this Agreement by [PARTY 1 NAME] In the event of a breach of this Agreement, the breaching party need not use reasonable efforts to mitigate its damages arising from or relating to the breach.

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In the event of a breach of this Agreement, the non-breaching party will use reasonable efforts to mitigate its damages arising from or relating to the breach.

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(a) Each party agrees not to assert any Contract Claim (defined below) against any individual or organization other than an individual or organization expressly identified in the preamble of this Agreement as entering into this Agreement (Contracting Party).

(b) As used in this Clause, Contract Claim refers to any claim, obligation, liability, or cause of action (each, a Claim) that may: (1) be based upon; (2) be in respect of; (3) arise under, out or by reason of; (4) be connected with; or (5) relate in any manner to, any of the following: (A) the Agreement; or (B) the negotiation, execution, performance, or breach of this Agreement; or (C) any representation or warranty made in, in connection with, or as an inducement to, this Agreement.

(c) For the avoidance of doubt, the term Contract Claim encompasses all Claims whether, for example, (1) in contract or in tort, (2) in law or in equity, or (3) granted by a constitution, statute, regulation, order precedent, or other governmentally-enforceable policy.

(d) For the avoidance of doubt, the parties intend for the covenant in subdivision (a) to benefit, for example, the following NonParty Affiliates: (1) each affiliate of each Contracting Party; and (2) each director; officer; employee, incorporator; member; partner; manager; stockholder; agent; attorney; or representative of; and any financial advisor or lender to; (A) each Contracting Party, and (B) each such affiliate.

(e) To the maximum extent not prohibited by law, each Contracting Party, for itself and any individual organization claiming through or under that Contracting Party, WAIVES AND RELEASES all such Contract Claims against each NonParty Affiliate.

(f) For the avoidance of doubt, the waiver and release of subdivision (e) applies, for example, to all Claims of entitlement to avoid or disregard the entity form of a Contracting Party or otherwise impose liability of a Contracting Party on a Nonparty Affiliate. Such Claims of entitlement include, for example, those based on theories of equity; agency; control; instrumentality; alter ego; domination; sham; single business enterprise; piercing the veil; unfairness; undercapitalization; or otherwise.

(g) Each Contracting Party DISCLAIMS, AND AGREES NOT TO ASSERT, ANY RELIANCE UPON any Nonparty Affiliate with respect to the performance of this Agreement or any representation or warranty made in, in connection with, or as an inducement to the Agreement.

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In connection with any action arising out of or relating to the Agreement or any transaction or relationship resulting from the Agreement, each party irrevocably: (1) authorizes the other party to cause process to be served on the authorizing party by sending the process via established courier (for example, via DHL, Federal Express, UPS, and the like) with proof of delivery; and (2) waives any objection to the sufficiency of any such method of service where the process is actually received by the party being served.

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(a) APPLICABILITY: This clause applies if, in any dispute arising out of or relating to this Agreement or any transaction or relationship resulting from it (a Covered Dispute): (1) a party (the "rejecting party") does not timely accept a Covered Settlement Offer, namely a written offer that: (1) expressly states that it is subject to this clause; and (2) offers to settle a Covered Dispute.

(b) PAYMENT REQUIREMENT: IF: The rejecting party finally fails to obtain a result in the dispute at least 20% more favorable than the Covered Settlement Offer; THEN: The rejecting party must pay or reimburse the offeror's Dispute Expenses that the offeror incurred in the dispute after making the Covered Settlement Offer.

(c) PROCEDURAL MATTERS: Matters of timing and other procedural issues concerning the offer will be governed in the general manner provided for an offer of judgment under Rule 68 of the [U.S.] Federal Rules of Civil Procedure, any necessary change being made, to the extent the parties do not agree otherwise.

(d) CONFIDENTIALITY OF SETTLEMENT DISCUSSIONS: Absent consent of the other party, each party shall preserve in strict confidence: (1) the existence and details of any offer made by the other party pursuant to this section; and (2) any subsequent communications between the parties regarding any offer made pursuant to this section.

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(a) This Clause applies if invoked by the party specified in this Agreement (each party if the Agreement does not specify a party) (a "claimant") in any case of actual or threatened breach of this Agreement by the other party (a "respondent").

(b) The parties agree that in any such case, the claimant may seek equitable relief, such as specific performance and/or injunctive relief, against the respondent in respect of the actual or threatened breach.

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IF: The claimant proves an actual or threatened breach of the obligations of this Agreement by the respondent; THEN: For purposes of seeking injunctive relief or similar equitable remedy, the claimant is deemed to have established that monetary damages alone would not be an adequate remedy against the respondent.

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The claimant need not post a bond to obtain injunctive relief against the respondent under this the Equitable Relief – Availability clause.

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Unless the Agreement expressly states otherwise, nothing in this Agreement precludes a party from seeking a temporary restraining order, preliminary injunction, or similar relief, in accordance with applicable law, to prevent or stop irreparable injury or other harm not capable of being fully redressed by a monetary award.

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FILL IN PARTY NAME (the Invoking Party) may invoke force majeure to excuse a failure of timely performance, but only if the failure is caused by a Force Majeure Event, defined as one or more events as to which a prudent person in the position of the Invoking Party would not reasonably have been able to (i) anticipate the event or events and (ii) avoid the resulting failure.

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(a) If so requested by the other party, the Invoking Party will provide reasonable information, from time to time, about its efforts, if any: (1) to perform its obligations under this Agreement, and/or (2) to remedy or mitigate the effect of the force majeure.

(b) The other party will maintain in confidence all force-majeure status information it receives from an Invoking Party unless and until the information becomes available to the general public.

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The Invoking Party must make at least commercially-reasonable efforts to remediate the effects of the force majeure.

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The Invoking Party must make at least commercially-reasonable efforts to mitigate the effect of the force majeure on the other party or parties.

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Each party other than the Invoking Party must make at least commercially-reasonable efforts to mitigate the effect upon itself of the force majeure.

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The Terminating Party may terminate the Agreement by, and effective upon, giving notice of termination to the other party if the effect of the force majeure: (1) is material to the Agreement as a whole; and (1) lasts for longer than [fill in] (the Termination Waiting Period), which begins on the effective date of the Invoking Party's notice of invocation of force majeure.

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Neither party is obligated to give effect to Additional Terms, as defined below, unless the requirements of this Agreement to amend this Agreement are satisfied. The term Additional Terms refers to terms in a quotation, purchase order, confirmation of order, shipping manifest, invoice, or similar document that may be provided by a party in connection with a transaction pursuant to this Agreement, where such terms are in addition to or different from those of this Agreement.

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For the avoidance of doubt and as illustrative examples, a party is not deemed to assent to Additional Terms by doing one or more of the following pursuant to a previously-formed contract: (1) performing one or more actions called for by, or otherwise described in, Additional Terms; (2) shipping an orally-agreed order after receiving a written purchase order containing Additional Terms; (3) paying an invoice containing Additional Terms; and/or (4) accepting or paying for goods or services after receiving a document containing Additional Terms.

#+END_QUOTE

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For an amendment to this Agreement to be effective, it must: (1) be in writing; (2) state or clearly indicate that the provisions of the amendment take precedence over those of this Agreement or, alternatively, the extent to which that is the case; and (3) be signed by an individual having authority to bind the party that is asserted to be bound by the amendment.

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[Fill in party name] (the Amending Party) may unilaterally amend this Agreement, or any exhibit, schedule, or appendix of this Agreement, by giving notice to the other party, as follows:

(a) Any such unilateral amendment will take effect at the end of 30 days following the effective date of the notice of amendment (the Amendment Notice Period).

(b) IF: The other party is unwilling for this Agreement to continue as amended; THEN: The other party may terminate this Agreement by giving notice to the Amending Party no later than the end of the Amendment Notice Period (the Termination Deadline).

(c) No unilateral amendment will retroactively modify any binding dispute-resolution provision of this Agreement (for example, a binding-arbitration provision) in respect of any then-accrued claim of breach of this Agreement by one signatory party against another unless those parties expressly agree otherwise.

(d) Without the non-amending party's express written agreement, a unilateral amendment will not retroactively eliminate or modify any right already exercised by the non-amending party, including for example any right to demand that the Amending Party perform an obligation, under this Agreement.

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(a) Each party acknowledges that it has read the Agreement; understands it; and agrees to be bound by it.

(b) The Agreement is likewise binding on the respective heirs, legal representatives, successors, and assigns of the parties, if any — this subdivision (b), though, is not to be interpreted as one party's consent to assignment of this Agreement by another party.

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The parties agree that the contra proferentem ('against the offeror') principle of contract interpretation is not to be applied to the Agreement. That is, any ambiguity or inconsistency in this Agreement is not to be resolved strictly against the party that drafted the ambiguous or inconsistent provision(s), but instead is to be resolved in accordance with the most reasonable construction.

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Any reproduction of this Agreement, or of any of its pages or other components parts, that is made by reliable means is to be considered an original.

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Each party acknowledges that it has had the opportunity to be represented, by counsel of that party's choice, in deciding whether to enter into this Agreement on the terms and conditions set forth in it.

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No course of prior dealing or usage of the trade is to be used to modify, supplement, or explain any term of this Agreement.

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For the avoidance of doubt, each party acknowledges that, except to the extent – if any – expressly stated otherwise in this Agreement, nothing in this Agreement requires the other party to enter into any other agreement, nor to provide any goods, services, or information.

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(a) For the avoidance of doubt, nothing in this Agreement is intended to restrict a party's ability to exercise any legally-protected and non-waivable right:

(1) to engage in collective action, for example under the U.S. National Labor Relations Act (NLRA); or

(2) to file a charge or other claim with a governmental authority, for example the U.S. National Labor Relations Board (NLRB) or the U.S. Equal Employment Opportunity Commission (EEOC).

(b) Subdivision (a) is not to be interpreted as establishing or evidencing, nor as an assertion by any party:

(1) that an employment relationship exists between the parties; nor

(2) that the NLRA or other legislation applies; nor

(3) that the NLRB or EEOC has jurisdiction.

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The Agreement sets forth the final, complete, exclusive, and binding statement of the agreement of its signatory parties concerning the subject matter of this Agreement. It supersedes all prior agreements and undertakings, both written and oral, between or on behalf of the signatory parties with respect to that subject matter, all of which are merged into this Agreement.

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For the avoidance of doubt, no signatory party, in entering into this Agreement, intends to enter into a fiduciary- or agency relationship except to the extent, if any, expressly so stated in this Agreement.

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(a) Any action or other proceeding to assert a claim arising out of this Agreement (each, a "proceeding") may be commenced against a party (the "defendant") in the court or courts having jurisdiction in [fill in location] (the Selected Forum), regardless where the defendant is geographically located or conducts business.

(b) For the avoidance of doubt, this clause does not negate any provision of this Agreement provisions requiring arbitration or other non-judicial dispute resolution procedure.

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The jurisdiction of the court or courts specified in the Forum Selection clause is exclusive; neither party may commence any proceeding in any other forum, nor transfer the action to any other forum, and each party agrees not to attempt to do either.

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Each party agrees to submit to the specific jurisdiction of court or courts specified in the Forum Selection clause, but solely for proceedings specified in that clause; nothing in that clause is intended as a submission by a party to the general jurisdiction of any court or other tribunal.

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For the avoidance of doubt, unless this Agreement provides for exclusive jurisdiction in a court or courts, nothing in this Agreement is intended to negate or waive any right a party may have: (1) to assert a claim in any other proper forum; nor (2) to seek to transfer the action to another venue, for example on grounds of greater convenience to the parties and witnesses; nor (3) to remove an action from one court to another, for example to remove an action filed in state court (in the United States) to federal court.

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A signatory party to this Agreement may invoke the Forum Selection clause in any action or proceeding initiated by a non-party to this Agreement to the greatest extent permitted by law.

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The parties do not intend that any non-party to this Agreement should be able to invoke Author's note: This is an optional subclause that can be used to augment the Forum Selection clause..

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The laws that apply in [fill in] (the Governing-Law Location) will govern in any dispute arising out of or relating to this Agreement or any transaction or relationship resulting from it, without regard to conflicts-of-law or choice-of-law rules.

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For the avoidance of doubt, any arbitration of disputes, pursuant to an agreement to arbitrate in this Agreement (if any), will likewise be governed by the law(s) specified in the Governing Law clause unless the Agreement expressly provides for a different arbitral law. EXAMPLE: If the Agreement contains an arbitration provision that specifies that California law will apply, then any arbitration pursuant to that provision will be governed by California law and, if applicable, the U.S. Federal Arbitration Act.

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The United Nations Convention on Contracts for the International Sale of Goods ("UN CISG" or "Vienna Convention") will not govern this Agreement nor any transaction or relationship arising out of it.

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The Uniform Computer Information Transactions Act ("UCITA") will not govern this Agreement nor any transaction or relationship arising out of it.

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The American Law Institute Principles of Law of Software Contracts will not govern the Agreement nor any transaction or relationship arising out of it.

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Headings and subheadings in this Agreement are included for convenient reference only and are not to be considered in construing the corresponding text of this Agreement.

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The parties intend for their relationship to be that of independent contractors, and nothing in this Agreement is to be interpreted as creating any other kind of relationship (such as, for example, an employment relationship) or any other kind of authority as between the parties.

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Except to the extent (if any) expressly stated otherwise in this Agreement or otherwise agreed in writing, no party will hold itself out:

(1) as an employee, agent, partner, joint venturer, division, subsidiary, or branch of another party; nor

(2) as having authority to bind the other party to any promise or other commitment; representation; warranty; modification of a warranty; waiver; or other term.

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For the avoidance of doubt, and by way of example and not of limitation, except to the minimum extent (if any) expressly agreed in writing by the parties, no party has or will have any authority, on behalf of the other party – and neither party will purport – to do any of the following:

(1) hire any individual to be an employee of the other party;

(2) determine the working hours or working conditions of the other party's employees;

(3) select or assign any employee of the other party to perform a task;

(4) direct or control the manner in which any employee of the other party performs his or her work, as distinct from the result to be accomplished;

(5) remove any employee of the other party from a work assignment;

(6) discharge or otherwise discipline any employee of the other party;

(7) incur any debt or liability; nor

(8) bind the other party to any other type of obligation, commitment, or waiver.

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(a) This Agreement and its appendixes, exhibits, and attachments, if any, are written in and shall be interpreted for all purposes in accordance with the English language as used in the United States of America (the Agreed Language). (French translation: Les parties conviennent expresssément que le présent Accord ainsi que toutes ses annexes seront rédigés en langue Anglaise et interprétés par référence à la terminologie utilisée aux Etats-Unis d'Amérique.) Any version of this Agreement in any other language is to be considered as being for convenient reference only and not binding on any party.

(b) Any communication made pursuant to this Agreement (including for example notices, technical support, and so forth) is to be in the Agreed Language unless the parties expressly agree otherwise in particular circumstances.

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(a) In performing its obligations and exercising its rights under this Agreement, [fill in party name] (the Obligated Party) will comply with each of the following to the extent relevant to the Obligated Party's obligations or the other party's rights under this Agreement:

(1) all requirements of law that apply generally to the Obligated Party (for example, corporation law, employment law, and the like);

(2) all requirements of law that apply generally to the type of business engaged in by the Obligated Party (for example, licensing requirements); and

(3) any other requirements of law agreed to in writing by the parties (which could include for example particular requirements that are specific to the other party's business or industry).

(b) For the avoidance of doubt, the Obligated Party is not responsible for complying with requirements of law that are specific to any other party or its business unless such requirements also come within any of the categories enumerated in subdivisions (a)(1) through (a)(3).

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(a) Neither party will dispute the effectiveness of any statement, in this Agreement, of: (1) fact; (2) policy; or (3) legal conclusion.

(b) The kinds of statement referred to in subdivision (a) include, for example, if present in this Agreement: (1) a statement to the effect that a particular party will own any intellectual property created; (2) a disclaimer of warranties; (3) a limitation of liability; (4) an entire-agreement provision; and (5) a requirement that amendments or waivers be in writing.

(b) Neither party will assert that any statement referred to in subdivision (a) was orally amended or waived.

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The prohibitions and restrictions of this Agreement extend, without limitation, to:

(1) attempts to do a prohibited or restricted things; and

(2) inducing, soliciting, permitting, or knowingly assisting anyone else to do, a prohibited or restricted thing.

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Each party (the Publicizing Party) will not issue any press release about, or otherwise publicly disclose the existence or terms of, (i) this Agreement, nor (ii) the parties' business relationship contemplated by this Agreement, without the prior written consent of the other party (the Approving Party).

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Each party represents that it or its counsel has 'redlined' or otherwise called attention to all changes that it made and sent to the other party in previously-sent drafts of this Agreement, including but not limited to drafts of any attachments, schedules, exhibits, addenda, etc.

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As part of the parties' intentional allocation of the risks and benefits associated with this Agreement, [fill in party name] (the Disclaiming Party) represents and warrants to each other party that, in entering into this Agreement, the Disclaiming Party is not relying on any representation by the other party, other than: (1) the representations and warranties set forth in this Agreement (if any), including for example in the Agreement's exhibits, schedules, etc.; and (2) any representations or warranties expressly incorporated into this Agreement by reference.

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IF: A provision of this Agreement is held invalid, void, unenforceable, or otherwise defective by a tribunal of competent jurisdiction; THEN:

(1) All other provisions of this Agreement will remain enforceable in accordance with their terms; AND

(2) the provision in question will be deemed modified or, if necessary, severed, but in either case only: (A) as between the parties; (B) in the jurisdiction in question; (C) to the minimum extent necessary to cure the defect; and (D) until such time, if any, as the tribunal's holding, in relevant respects, is vacated, reversed on appeal, legislatively overruled, or otherwise set aside.

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The Agreement may be signed and delivered in separate counterpart originals; all such counterparts will be deemed to constitute one and the same instrument. Any counterpart may be signed by less than all of the parties provided that each party whose signature is required signs at least one such counterpart.

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Delivery of a counterpart original of this Agreement may be effected (for example) by transmitting a signed signature page by FAX, by emailed PDF, or by other electronic transmission means.

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Each individual signing the Agreement on behalf of an organization personally represents that, to the best of his (or her) knowledge, his signature has been authorized by that organization.

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(a) Each individual signing the Agreement agrees to make him- or herself reasonably available to testify, and/or to produce documents and things, in any action that both (i) is duly commenced before a court or other tribunal of competent jurisdiction, and (ii) arises out of or relates to the Agreement.

(b) Each such individual PERMANENTLY, VOLUNTARILY, KNOWINGLY, AND IRREVOCABLY WAIVES any immunity or privilege from service of process or compulsory appearance to which he or she might otherwise be entitled, whether by constitution, statute, regulation, or common law.

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Any right or obligation which by its nature should extend beyond termination or expiration of this Agreement for any reason will survive such termination or expiration.

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For the avoidance of doubt, the rights and obligations set forth in this Agreement (if any) concerning the following subjects will survive any termination of this Agreement (including for this purpose any expiration of this Agreement): Confidentiality. Indemnification. Insurance requirements. Intellectual-property ownership. Limitations of liability. Remedy limitations. Warranty rights. Warranty disclaimers. Governing law (or choice of law). Forum selection (or choice of forum). Arbitration. Early neutral evaluation. Attorneys' fees. Expense-shifting after settlement-offer rejection.

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Except to the extent (if any) clearly stated otherwise in this Agreement, the parties do not intend for the Agreement to create any right or benefit for any party except themselves.

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No effect is to be given to any claim that a party waived a right, representation, obligation, or condition (collectively, "term") stated in this Agreement, or that the party waived a breach of this Agreement, unless the purported waiver: (1) is in writing; and (2) is signed by the waiving party or by an individual authorized to make binding commitments on behalf of that party.

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Nothing in this Agreement is to be construed as making Licensee as a franchisee of Licensor; Licensee KNOWINGLY WAIVES the benefit of any state or federal statutes dealing with the establishment and regulation of franchises.

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For the avoidance of doubt: (1) a party's waiver of a term or breach of this Agreement will affect only that term or breach, and is not to be deemed a waiver of any other term or breach; and (2) the fact that a party, at a given moment in time, did not enforce one or more terms is not be deemed a waiver by that party of its right to enforce any term at any other time.

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[Fill In guarantor name] (the Guarantor) (each of them, if more than one) guarantees, to [fill in creditor name] (the Creditor) the timely performance by of the following Guaranteed Obligation (each of them, if more than one): [describe guaranteed obligations].

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For the avoidance of doubt, the obligations of a Guarantor under the guaranty provisions of this Agreement will apply even if the instrument setting forth those obligations is not signed by any Creditor.

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(a) The Guarantor's obligations under the Guaranty – Basic Provision clause will immediately become due, upon written demand by the Creditor to the Guarantor, after any failure by the Principal to perform a Guaranteed Obligation.

(b) If one or more obligations to pay money is guaranteed, then the Guaranty – Basic Provision clause guarantees the full and prompt payment of all such obligations when due, whether by maturity, acceleration, or otherwise.

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The Guarantor undertakes the obligations of the Guaranty – Basic Provision clause to induce the Creditor to enter into this Agreement with the Principal.

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The Guarantor's total liability under the the Guaranty – Basic Provision clause clause, to all Creditors in the aggregate, will not exceed [fill in] (the Guarantor Liability Cap Amount).

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The Guarantor will pay or reimburse all court costs and reasonable expenses, including for example attorneys' fees and expenses, that a Creditor incurs in enforcing that Creditor's rights against the Guarantor under the guaranty provisions of this Agreement.

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The Guarantor will pay or reimburse all court costs and reasonable expenses, including for example attorneys' fees and expenses, that a Creditor incurs in enforcing a Guaranteed Obligation against a Principal.

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For the avoidance of doubt, an amendment to or modification of a Guaranteed Obligation does not discharge or otherwise affect the guaranty obligation of any Guarantor in respect of that Guaranteed Obligation.

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For the avoidance of doubt, the Guarantor need not pay the Guaranteed Obligation unless the Creditor, after using reasonable diligence, has been unable to collect that obligation from the Principal.

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(a) A Guarantor's liability to a Creditor is not contingent: (1) on the Creditor's exercise or enforcement of any rights or remedies it may have against a Principal in respect of a Guaranteed Obligation; nor (2) on the Creditor's enforcement of any lien or security interest securing a Guaranteed Obligation.

(b) For the avoidance of doubt, subdivision (a) means that a Creditor may enforce its rights under this clause: (1) whether or not the Creditor takes action against any Principal to enforce a Guaranteed Obligation; and (2) whether or not the Creditor forecloses on any lien, security interest, or other collateral securing a Guaranteed Obligation.

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Each Guarantor KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES all rights and defenses arising out of an election of remedies by a Creditor, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for a Guaranteed Obligation, has destroyed the Guarantor's rights of subrogation and reimbursement against the Principal.

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Each Guarantor KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES any and all defenses — and expressly agrees that it will not assert (and it will cause its affiliates not to assert), by way of claim or defense — that its obligations under this Clause are allegedly illegal, invalid, void, or otherwise unenforceable.

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Each Guarantor KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES any and all defenses pertaining to any Guaranteed Obligation, other than the defense of discharge by full performance. Without limiting the generality of this waiver, the Guarantor will not assert, plead or enforce, against any Creditor: (1) any defense of waiver, release, statute of limitations, res judicata, statute of frauds, fraud, incapacity, minority, usury, illegality or unenforceability which may be available to the Principal or any other person liable in respect of any Guaranteed Obligation; nor (2) any setoff available to the Principal or any other such person liable, whether or not on account of a related transaction.

#+END_QUOTE

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The Guarantor will be (and remain) liable, to the fullest extent permitted by applicable law, for any deficiency remaining after foreclosure of any lien or other security interest in collateral or other rights or property securing a Guaranteed Obligation, even if the Principal's liability for such a deficiency is discharged pursuant to statute or judicial decision.

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When multiple Guarantors are listed, each Guarantor is jointly and severally liable for each Guaranteed obligation.

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For purposes of this Agreement, Indemnifying Party refers to an individual or organization that is obligated to indemnify another individual or organization (each, a Protected Person) against a claim, liability, expense, or other event.

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(a) This the Indemnity Group Definition clause applies if the Agreement requires an Indemnifying Party to indemnify the Indemnity Group of another party against a claim or other occurrence – as a hypothetical illustration, "Provider will indemnify Customer's Indemnity Group."

(b) In such a situation, the Indemnifying Party will indemnify each of the following individuals and organizations against the claim or other occurrence:

(1) the other party itself;

(2) the other party's Affiliates;

(3) to the extent so specified in this Agreement (if any), the customers and subcontractors (at any tier) of each organization listed in of the other party;

(4) to the extent so specified in this Agreement (if any), the successors and assigns of each organization listed in subdivisions (b)(1) through (b)(3);

(5) the employees, officers, directors, shareholders (in that capacity), general- and limited partners, members, managers, and other persons occupying comparable positions in respect of each organization listed in subdivisions (b)(1) through (b)(4), as applicable; and

(6) any other individual or organization specified in this Agreement.

(c) Apropos of subdivision (b)(4): IF: This Agreement requires a member of the Indemnity Group to obtain the consent of another party before assigning the Agreement (or otherwise assigning its right to indemnification); THEN: For the avoidance of doubt:

(1) this Clause does not in itself constitute such consent; and

(2) if such consent was not obtained, then the Indemnifying Party is not obligated to indemnify the putative assignee.

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The Indemnifying Party will pay an indemnified liability or expense at the request of the Protected Person (with any such request to be made by written notice), regardless whether applicable law would otherwise require the Protected Person to pay the liability or expense first and then seek reimbursement from the Indemnifying Party.

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An Indemnifying Party's party's obligation to indemnify a Protected Person against a claim includes the obligation to provide the Protected Person with a defense against the claim (see also the IndemnDefenseCls clause).

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For the avoidance of doubt, the indemnity obligations of this Agreement are not subject to any provision of this Agreement limiting the amount of the Indemnifying Party's liability.

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For the avoidance of doubt, an Indemnifying Party's obligation to indemnify a Protected Person against claims extends only to claims by a third party and not to claims by a Protected Person against another Protected Person.

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The Indemnifying Party, in determining the amount it owes a Protected Person pursuant to an indemnity obligation under this Agreement, may reduce that amount by the following amounts received by the Protected Person, if any: (1) insurance proceeds in respect of the indemnified claim; and/or (2) contributions from a party jointly liable with the Protected Person.

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The Indemnifying Party need not indemnify any Protected Person in respect of claims arising out of or relating to negligent or reckless conduct by, or attributable to, that Protected Person.

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The Indemnifying Party's MAXIMUM AGGREGATE LIABILITY FOR INDEMNIFICATION, under all indemnification obligations arising under this Agreement, is [fill in amount] (the Indemnity Cap Amount)

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The Indemnifying Party need not indemnify any Protected Person until the aggregate amount that the Indemnifying Party would be required to pay or reimburse equals at least [fill in amount] (the Indemnity Floor Amount)

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The Indemnifying Party need not indemnify any Protected Person for consequential, indirect, special, punitive, exemplary, or similar damages, including (for example) loss of profits from collateral business arrangements or damages from business interruption.

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The Indemnifying Party will reimburse the Protected Person for any indemnifiable amount that is paid by the Protected Person within 30 days (the Indemnity Reimbursement Deadline) after notice from the Protected Person with proof of payment.

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In connection with an obligation under this Agreement to defend an individual or organization (each, a Protected Person against a third-party claim (each, a Covered Claim, the term Defending Party refers to the party required to defend the Protected Person against the Covered Claim.

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IF: A Protected Person so requests in writing in connection with a Covered Claim; THEN: The Defending Party will provide the Protected Person with a competent, diligent investigation of, and defense against, the Covered Claim.

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IF: A Protected Person does not request a defense against a Covered Claim within a reasonable time after learning of the claim; THEN:

(1) the Defending Party will not be responsible for any harm to the Protected Person that may result from the delay; and

(2) the Defending Party may elect, in its sole discretion, to provide a defense nonetheless.

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IF: The Defending Party advises the Protected Person in writing that it will provide a defense against a Covered Claim in accordance with this Agreement; THEN: The Defending Party is entitled to control the defense against the claim; OTHERWISE: The Protected Person is entitled to control its own defense.

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The party controlling the defense against a Covered Claim (that is, the Defending Party or the Protected Person, as the case may be) will engage counsel of recognized standing, reasonably acceptable to the non-controlling party, to conduct the defense.

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When a Defending Party provides a defense against a Covered Claim, the Protected Person will provide reasonable cooperation in the defense.

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The Defending Party will reimburse the Protected Person for reasonable out-of-pocket expenses actually incurred in cooperating with the Defending Party in providing a defense against a Covered Claim.

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In any defense against a Covered Claim, the Protected Person must not make any non-factual admission concerning the claim without the Defending Party's written consent. EXAMPLES: An admission that a third party's patent was valid and enforceable would be an example ofa non-factual admission; in contrast, an admission that, in calendar year X, the Protected Person sold Y units of its Model ABC widget would be an example ofa factual admission.

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In any defense against a Covered Claim, the Protected Person must not waive any defense to the claim (for example, a statute-of-limitations defense) without the Defending Party's consent.

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IF: The Defending Party controls the defense; THEN: The Defending Party, in its sole discretion, may settle the claim on behalf of the Protected Person, EXCEPT THAT absent the Protected Person's consent, the Defending Party may not settle the claim on terms including any of the following Restricted Settlement Terms, namely any terms that:

(1) restrict or place conditions on the Protected Person's otherwise-lawful activities; or

(2) require any action by the Protected Person, other than making one or more payments of money — funded in advance by or on behalf of the Defending Party — to one or more third parties; or

(3) encumber any of the Protected Person's assets; or

(4) include any non-factual admission by the Protected Person.

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IF: A Protected Person controls its own defense of a Covered Claim; THEN: That Protected Person will not settle the claim without the Defending Party's express written consent, not to be unreasonably withheld.

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IF: A Protected Person settles a Covered Claim in violation of the Settlement by Protected Person clause; THEN: The Defending Party will have no further obligation of defense or indemnity to that Protected Person unless the Defending Party unreasonably withheld its consent to the settlement.

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For the avoidance of doubt, a Protected Person's withholding of consent to a proposed settlement of a Covered Claim will not be deemed unreasonable if the proposed settlement includes any Restricted Settlement Terms enumerated in the Settlement by Defending Party clause.

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For the avoidance of doubt, a party's authority to settle a case under the XXX clause includes the authority to agree to a consent judgment.

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The parties will be responsible for insuring all loss, INCLUDING THAT CAUSED BY NEGLIGENCE, ETC., OF OTHER PARTIES, as follows [describe]

XXX [Text to follow]

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(a) For purposes of this Agreement's limitation(s) of liability, the term Excluded Damages refers to consequential, indirect, special, punitive, exemplary, or similar damages arising from any breach of this Agreement. The term encompasses, for example, the following: (1) loss of profits from collateral business arrangements; (2) damages from business interruption; (3) loss of use; and (4) loss of data or privacy or confidentiality.

(b) For the avoidance of doubt, the term consequential damages refers to damages that the breaching party could not reasonably have foreseen upon entering into this Agreement; and

(c) For the avoidance of doubt, the term Excluded Damages does not encompass incidental damages, namely reasonable expenses incurred by a party incident to a breach or delay by another party; that is to say, incidental damages are not excluded.

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For purposes of this Agreement's limitation(s) of liability, the term Protected Individual, in respect of a party, refers to each individual who at the relevant time is an employee, officer, director, shareholder, general- and limited partner, member, or manager of that party.

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Except to the extent (if any) expressly provided otherwise in this Agreement, NEITHER [fill in] (the Protected Party) NOR ITS PROTECTED INDIVIDUALS WILL BE LIABLE FOR EXCLUDED DAMAGES.

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(a) LIMITATION: Except as provided in subdivision (b), in respect of any claim or group of related claims, NEITHER [fill in] (the Protected Party) NOR ITS PROTECTED INDIVIDUALS WILL BE LIABLE, in the aggregate, for damages in excess of [fill in amount] (the Damages Cap Amount) (or the applicable cap, if the Agreement provides for more than one).

(b) CARVE-OUTS: For the avoidance of doubt, subdivision (a) does not apply: (1) to amounts due pursuant to this Agreement; nor (2) to the extent expressly provided in the Carve-Outs from Liability Limitations clause or elsewhere in this Agreement.

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Damages arising from the following are not Excluded Damages under the No Liability for Excluded Damages clause, nor are they subject to any Damages Cap under the No Liability in Excess of Damages Cap clause:

(1) personal injury or death proximately resulting from breach of this Agreement by the Protected Party;

(2) the Protected Party's failure to comply with an obligation stated in this Agreement, if any, to defend and/or indemnify another Person against third-party claims — however, a specifically-stated maximum aggregate liability for such defense and indemnity obligations is not considered a Damages Cap, and such maximum aggregate liability will apply to such obligations;

(3) the Protected Party's infringement of another party's patent, copyright, trademark, or rights in confidential information;

(4) the Protected Party's intentional or reckless misrepresentation or omission of a material fact, where the other party justifiably relied on the misrepresentation or omission;

(5) the Protected Party's conversion of, or infliction of harm to, property of another party (for example, intentional and wrongful erasure or corruption of computer programs or -data), IF the same is shown, by clear and convincing evidence, to have been both intentional and wrongful.

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The parties have specifically agreed that all limitations of liability set forth in this Agreement are to apply: (1) to all claims for damages or other monetary relief, whether alleged to arise in contract, tort, or other-wise, and (2) even if the allegedly-liable party was advised, knew, or had reason to know of the possibility of Excluded Damages and/or of damages in excess of the relevant Damages Cap, if any; and (3) even if a limited remedy fails of its essential purpose.

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Each party acknowledges that: (1) the Agreement's limitations of liability are material provisions of this Agreement; and (2)  absent those limitations of liability, one or both of the parties would have declined to enter into this Agreement on the economic- and other terms stated in it.

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The parties expressly agree that IF: One or more limitations of liability benefiting a Protected Person under this Agreement is held void or unenforceable under applicable law; THEN: That Protected Person's relevant liability is nonetheless to be limited to the greatest extent consistent with that law and with this Agreement.

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Some jurisdictions might not permit limitation or exclusion of remedies under some circumstances, in which case some or all of the limitations of liability stated in this Agreement might not apply.

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Each party expressly agrees not to seek damages inconsistent with any limitation stated in this Agreement on the liability of the Protected Persons.

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All notices required or permitted by this Agreement must be in writing. Except to the extent, if any, that this Agreement provides otherwise, all notices are effective upon receipt or refusal.

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Permissible addresses for notice include (1) those stated in this Agreement; and (2) any other address reasonably communicated, unless this Agreement specifically requires notice of any change of address for notice.

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A notice to an organization: (1) must be marked for the attention of a specific individual, office, or position in the organization; and (2) is effective only upon receipt or refusal by an individual who is the organization's agent for purposes of receiving communications of the general type sent (for example, a mailroom clerk).

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IF: A party's initial address for notice specifies (i) an individual to which a copy is to be sent, or (ii) a position to whose attention a copy is required to be sent (for example the notified party's general counsel, chief financial officer, etc.); THEN: A notice to that party is not effective unless such a copy is sent, in a manner prescribed or permitted by the notices clauses of this Agreement, (x) to that individual, or (y) to the attention of that position.

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(a) A notice that is delivered by email to a specific email address, but that is not read by any individual accessing that email address after delivery, is nevertheless effective as to that email address if the party being notifed has expressly designated the specific email address, in writing, as one to which notices under this Agreement may be sent.

(b) For the avoidance of doubt, the inclusion of an individual's email address in contact information for that individual or for a party does not in itself satisfy the express-designation requirement of subdivision (a).

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In the interest of expediting discussion, each party giving notice under this Agreement is encouraged, but not required, to send a copy of significant notices to the notified party's counsel by any reasonable means. A significant notice might be, for example, a notice of breach or of termination.

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For the avoidance of doubt, a notice to a party that cannot be found is deemed effective after reasonable delivery efforts.

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Notices given by mail are deemed effective at the end of the three business days (the Mail Delivery Period) after being deposited with the official government postal service of the jurisdiction in which the sender is located, in a properly-addressed and postage-prepaid envelope either: (1) as first class mail or its equivalent in the jurisdiction in question; or

(2) as automation-compatible mail, that is, mail prepared according to postal-service standards so it can be scanned and processed by automated mail processing equipment such as a barcode sorter.

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A party desiring to change its address for notice must give the other party notice of the change in accordance with the notice requirements of this Agreement.

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A communication delivered solely by email will not be deemed effective as notice under this Agreement even if the communication is actually received by its intended recipient.

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(a) [Fill in party name] (the Web-Hosting Party) may give any notice under this Agreement by: (1) making the notice available on the Web-Hosting Party's Web site, and (2) displaying, while the other party is accessing the hosting party's Web site, a suitably-prominent notice message containing (A) the text, or a summary, of the notice; and/or (B) an alert that advises of the existence of the notice and contains a link to (or other instructions for accessing) the content of the notice.

(b) Any such notice will be effective as to the other party at such time (if any) as the other party accesses the Web site and is presented with the notice message.

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Payment of amounts due under this Agreement are to be made [fill in terms] (the Payment Terms), in [fill in currency] (the Payment Currency), by any means reasonably acceptable to the payee (the Payment Method).

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IF: A party receiving an invoice wishes to dispute the invoice; THEN: That party will: (1) timely pay any undisputed portion; and (2) seasonably furnish the party sending the invoice with a written explanation of the basis for its dispute, together with (where applicable) reasonable supporting documentation.

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For the avoidance of doubt, in case of multiple‑ or significant late payments by a party, the other party may require cash-on-delivery (COD) terms for any subsequent transactions.

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For the avoidance of doubt, the payment obligations of [Fill in payor name] (the Paying Party) are not contingent on its receipt of money owed to it.

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[Fill in party name] (the Prime Contractor) need not pay any invoice from [fill in party name] (the Subcontractor) until ten business days after Prime Contractor's own corresponding invoice to [fill in party name] (the End-Customer) has itself been paid.

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[Fill in payor name] (the Paying Party) may offset, against amounts it allegedly owes to the other party, any amount that the Paying Party claims is owed to it by the other party.

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[Fill in payor name (the Paying Party) may not offset, against amounts it allegedly owes to the other party, any amount that the Paying Party claims is owed to it by the other party.

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Unless the parties agree otherwise in writing in connection with a particular transaction, [fill in party name] (the Invoicing Party) will do the following, at its own expense:

(1) determine what if any sales taxes, including for example ad valorem taxes, must be paid to an applicable jurisdiction in connection with the transaction;

(2) timely report and remit, to all relevant taxing authorities, all sales taxes determined pursuant to subdivision (1);

(3) defend [fill in party name] (the Paying Party) against any claim by a taxing authority for unpaid sales tax(es); and

(4) indemnify the Paying Party against any such claim.

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For the avoidance of doubt, each party is solely responsible for payment of taxes based on its income, franchise, or capital.

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[Fill in party name] (the Expense-Incurring Party) will invoice [fill in party name] (the Expense Reimburser) for reimbursement of reasonable out-of-pocket expenses actually incurred by the Incurring Party, pursuant to this Agreement, in connection with [fill in purpose or activities] (the Reimbursable Activities).

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The Expense-Incurring Party wil not invoice the Expense Reimburser for expenses except on a straight pass-through basis with no markup unless the parties expressly agree otherwise in writing.

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IF: From time to time the Expense Reimburser provides the Expense-Incurring Party with a copy of the Expense Reimburser's then-standard writen reimbursement policy, at least a reasonable time before the Expense-Incurring Party incurs the relevant expense(s) or otherwise becomes obligated to pay them; AND: The relevant provision(s) of the reimbursement policy are not shown to be unreasonable; THEN: The Expense-Incurring Party will not invoice the Expense Reimburser for expenses except in conformance with that policy.

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A copy of the Expense Reimburser's current reimbursement policy is attached to and considered part of this Agreement.

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IF: The Incurring Party incurs or expects to incur a charge from a third party that equals or exceeds [fill in amount] (the Direct Billing Threshold Amount); THEN: The Incurring Party may request in writing that the Expense Reimburser pay the third party directly, in which case the Expense Reimburser will timely pay all such charges.

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The Expense Reimburser need not reimburse expenses invoiced after [fill in date description] (the Expense Reimbursement Invoice Deadline).

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[Fill in party name] (the Payee) may charge interest on past-due unpaid amounts at 5% (the Interest Rate) or the maximum rate permitted to be charged by law under the circumstances, whichever is less, beginning 30 days after the due date (the Interest Start Date) and ending when paid.

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The parties intend for any interest charged or paid pursuant to this Agreement, in any contingency, to comply with law. Consequently, IF: One or more charges and/or payments hereunder are properly characterized as interest, and are determined to have exceeded the maximum interest permitted by law (after taking all permitted steps to spread such payments over time); THEN:

(a) The excess interest is to be deemed the result of an inadvertent error, even if the party charging or paid the excess intended to take the action(s) resulting in the excess;

(b) if the excess interest has not yet been paid, then the charge for the excess interest will be canceled; and

(c) if the excess interest has been paid, then the party that was paid the excess interest will refund it, or credit it to any balance still owed by the payer, along with interest on the excess at the maximum rate permitted by law.

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A party desiring payment from another party of an amount due under this Agreement must send the other party a reasonably-detailed invoice stating the amount due.

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Provider will mail or otherwise send Customer an invoice for delivered goods on or before [fill in deadline] (the Invoice Transmission Deadline for Goods).

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Provider will mail or otherwise send Customer an invoice for completed services on or before [fill in deadline] (the Invoice Transmission Deadline for Services).

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All hard-copy invoices are to be sent to Customer at the address stated in the Provider-accepted purchase order or as otherwise agreed in writing.

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