Governing Law and Mandatory Arbitration Agreement
Governing Law and Mandatory Arbitration Agreement
Last updated July 21, 2020. Prior versions are available here.
THIS GOVERNING LAW AND MANDATORY ARBITRATION AGREEMENT ("Arbitration Agreement") THIS GOVERNING LAW AND MANDATORY ARBITRATION AGREEMENT (“Arbitration Agreement”) is entered into and binding as of the effective date of the Service Order or any other document that otherwise incorporates by reference this Arbitration Agreement through the General Terms, by and between the Company and Counterparty. Unless otherwise defined in this Arbitration Agreement, the capitalized terms set forth in this Arbitration Agreement shall have the meanings set forth in the General Terms. For the avoidance of doubt, this Arbitration Agreement is incorporated by reference into the General Terms and the Service Order. The Parties hereby unequivocally agree to abide by the following terms:
(1)Any dispute, controversy or claim arising out of, in connection with, or relating to the General Terms, the Service Order, or the Services: (a) shall be governed by and construed in accordance with the laws of the State of Georgia exclusive of its conflict or choice of law rules; (b) shall be submitted to and shall be settled by binding arbitration held in Gwinnett County, Georgia; and (c) such arbitration shall be conducted by a single arbitrator selected by mutual agreement of the Parties (the “Single Arbitrator”).
(2) If the Parties cannot agree on a Single Arbitrator, each Party shall nominate a single potential arbitrator (each a “Nominee”, collectively the “Nominees”), and the Nominees shall jointly select some other person to be the Single Arbitrator. The Single Arbitrator, and each Nominee (if applicable), shall be licensed to practice law in Georgia. The arbitration shall not be administered by JAMS or the American Arbitration Association (AAA). The decision of the Single Arbitrator rendered in connection with this Arbitration Agreement shall be final and binding upon the Parties, including, but not limited to, any decision on the calculation of damages or to issue an award or to impose liability or a judgment, and the decision of the Single Arbitrator may, at the election of either Party, be entered in a court of competent jurisdiction. The fees, costs, and expenses of arbitration under this Arbitration Agreement shall be borne equally by the Parties; provided that each Party shall pay for such Party’s own expert’s and counsel’s fees and expenses, except that, in the discretion of the Single Arbitrator, any award may include counsel’s fees if the Single Arbitrator expressly determines that the Party against whom such award is entered has caused the dispute to be submitted to binding arbitration hereunder solely as a dilatory tactic.
(3) Notwithstanding application of Georgia law, the validity, interpretation, and enforcement of this Arbitration Agreement shall be governed solely by the Federal Arbitration Act. The Parties acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce.
(4) This Arbitration Agreement shall not apply to any of the following: (a) actions regarding the validity or enforceability of this Arbitration Agreement; or (b) any claims arising out of or relating to the restrictive covenants, including, but not limited to, any claims for equitable relief relating to such covenants. With respect to (a) in the preceding sentence, applicable federal law shall be applied to determine whether this Arbitration Agreement is enforceable under the Federal Arbitration Act, and, with respect to (b) in the preceding sentence, such claims shall be governed by the laws of the State of Georgia exclusive of its conflict or choice of law rules. Any action or claim within the scope of this Paragraph (4) above shall be (i) brought in the Superior Court of Gwinnett County, Georgia, or (ii) brought in or removed to the United States District Court for the Northern District of Georgia, Atlanta Division ((i) and (ii) collectively the “Mandatory Courts”). The Parties unequivocally (A) consent to the personal jurisdiction of the Mandatory Courts, (B) waive any claims relating to lack of personal jurisdiction in the Mandatory Courts, (C) waive any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any action brought in either of the Mandatory Courts, and (D) waive any claim of forum non conveniens or improper forum with respect to the Mandatory Courts ((A) through (D) collectively the “Parties’ Unequivocal Consent and Waivers”).
(5) If, after applying applicable federal law as described in Paragraph (4) of this Arbitration Agreement above, this Arbitration Agreement is held invalid or unenforceable under the Federal Arbitration Act, then any dispute, controversy, or claim arising out of, in connection with, or relating to these General Terms or any Service Order, shall be governed by the laws of the State of Georgia exclusive of its conflict or choice of law rules and shall be brought in a Mandatory Court, and each Party hereby acknowledges and agrees that the Parties’ Unequivocal Consent and Waivers shall apply.
(6) To the maximum extent permitted by law, the Parties hereby waive any right to bring on behalf of entities or persons other than themselves, or to otherwise participate with other entities or persons in, any class or collective action against the other Party.
For the avoidance of doubt, not limitation, the provisions set forth in this Arbitration Agreement are severable. If any provision is determined to be invalid, illegal, or unenforceable, in whole or in part, the remaining provisions and any partially enforceable provisions shall remain in full force and effect. If there is a dispute about the language of this Arbitration Agreement, the fact that one Party drafted this Arbitration Agreement or any portion of this Arbitration Agreement shall not be used in its interpretation.