Baseball arbitration is a dispute resolution process where each party presents a proposed monetary award, and an arbitrator chooses one of the proposals in its entirety, without modification. This method encourages reasonable and realistic offers, as the arbitrator cannot split the difference and must select the more compelling and fair proposal.
14.5 Baseball Arbitration for Certain Sublicensing Fee Related Disputes. In the event of any Dispute arising under Section 4.1.3 (including if the Parties fail to agree on apportionment of the amount of proceeds that are and are not Sublicense Fees subject to Section 4.1.3), the Parties shall submit such Dispute to mediation and binding baseball arbitration pursuant to the mediation and baseball arbitration process set forth under this Section 14.5. The purpose of the mediation and baseball arbitration shall be to resolve only those issues that remain in dispute under Section 4.1.3 following good faith negotiations within a Dispute Resolution Period in accordance with Section 14.2. The mediation and baseball arbitration shall be conducted in San Diego County, California under the applicable AAA rules (except as modified by this Section 14.5 below) and the proceedings shall be held in English. Each Party shall bear its own costs with respect to the mediation and baseball arbitration proceedings and share the cost of the Third Party Expert (defined below).
(e)If upon expiry of the MCSA Negotiation Period, the Parties are unable to agree the terms of the MCSA, BioNTech may, in its sole discretion, refer the terms of the MCSA for resolution using Baseball Arbitration, which referral must occur within [***] of expiry of the MCSA Negotiation Period. If (i) BioNTech does not refer the terms of the MCSA for resolution using Baseball Arbitration within [***] of expiry of the MCSA Negotiation Period, or (ii), BioNTech chooses not to enter into the MCSA within [***] after the arbitrator has given a final decision in Baseball Arbitration then, without any further action required on the part of either Party, the obligations set out in Section 3.1(a), Section 3.1(b) and Section 3.1(c) shall expire and, if an MCSA has not been entered into by such date, then there shall be no further obligation to continue negotiations on either Party and Autolus, at its sole discretion, may enter into an agreement with a Third Party pursuant to which Autolus would Manufacture a Third Party’s CAR-T Cell Therapy.
(c)Landlord shall, within thirty (30) days of receipt of Tenant's notice of Tenant's intent to exercise the Renewal Option, deliver a lease amendment containing the Fair Market Rental Value of the Premises for the Renewal Term. All of the other terms and conditions shall remain as provided in the Lease. Tenant shall have ten (10) business days to execute the amendment, thus exercising the Renewal Option. Should Tenant disagree with Landlord’s interpretation of the Fair Market Rental Value of the Premises, Tenant’s sole remedies shall be to decline to exercise the Renewal Option or to have the Fair Market Rental Value of the Premises determined by Baseball Arbitration (defined below). Tenant shall send written notice to Landlord of Tenant’s election to decline to exercise the Renewal Option or to proceed to Baseball Arbitration within ten (10) business days after Tenant’s receipt of the amendment from Landlord setting forth Landlord’s determination of the Fair Market Rental Value of the Premises. If Tenant fails to execute the amendment within the ten (10) business day time frame set forth above or if Tenant fails to timely deliver to Landlord Tenant’s election to have the Fair Market Rental Value of the Premises determined by Baseball Arbitration, then Tenant shall conclusively be deemed to have declined to exercise the Renewal Option and the Lease shall end as of the end of the then current Term.
10.4 Any Baseball Arbitration shall be held in San Francisco, California, according to the then-current commercial arbitration rules of the American Arbitration Association (“AAA”), except to the extent such rules are inconsistent with this Paragraph 10.4. The Baseball Arbitration will be conducted by one (1) arbitrator who shall be reasonably acceptable to the Parties and who shall be appointed in accordance with AAA rules. If the Parties are unable to select an arbitrator, then the arbitrator shall be appointed in accordance with AAA rules. Any arbitrator chosen hereunder shall have educational training and industry experience sufficient to demonstrate a reasonable level of experience relevant to the nature of the matter in dispute. Within twenty (20) days after the selection of the arbitrator, each Party shall submit to the arbitrator and the other Party a proposal for the steps Licensee is to take to address the material breach, together with any relevant evidence in support thereof (the “Proposals”). Within fifteen (15) days after the delivery of the last Proposal to the arbitrator, each Party may submit a written rebuttal of the other Party’s Proposal and may also amend and re-submit its original Proposal. The Parties and the arbitrator shall meet within fifteen (15) days after the Parties have submitted their Proposals, at which time each Party shall have one (1) hour to argue in support of its Proposal. The Parties shall not have the right to call any witnesses in support of their arguments, nor compel any production of documents or take any discovery from the other Party in preparation for the meeting. Within thirty (30) days after such meeting, the arbitrator shall select one of the Proposals so submitted by one of the Parties as the resolution of the dispute, but may not alter the terms of either Proposal and may not resolve the dispute in a manner other than by selection of one of the submitted Proposals. If a Party fails to submit a Proposal within the initial twenty (20) day time frame set forth above, the arbitrator shall select the Proposal of the other Party as the determination of the steps Licensee shall take to remedy the material breach. Any time period set forth in this Paragraph 10,4 may be extended by mutual agreement of the Parties. The content (but not the existence or outcome) of the proceedings shall be confidential. Each Party shall bear its own costs incurred in Baseball Arbitration, and Licensee shall pay the costs of the arbitrator. The Regents shall have the right to issue the Notice of Termination in respect of the applicable material breach following Baseball Arbitration only if Licensee fails to perform the measures to address such material breach as set forth in the Proposal selected by the arbitrator.
(d)Meetings and Decision-Making by the JSC — Before Proof-of-Concept. During the Research Term and through achievement of Proof-of-Concept, the JSC shall meet periodically as needed, but in no event less than [**], in person (with locations to alternate between the parties) or by teleconference or other electronic means as mutually agreed, to discuss matters within its jurisdiction. In addition, the JSC may agree to hold special meetings at any time on reasonable notice given by the chairperson or the secretary to the other members of the JSC. Unless waived by a party in writing, at least [**] JSC representatives of each party must participate in a meeting of the JSC in order for there to be a quorum at such meeting. The members of the JSC shall seek to make all determinations to be made by them unanimously following full discussion thereof (with each party’s representatives having, collectively, one (1) vote). If the JSC is unable to reach a unanimous decision on any matter within its jurisdiction, the parties’ respective Chief Executive Officers shall meet in person to attempt to resolve the matter in good faith. If the parties’ respective Chief Executive Officers are unable to reach agreement on a matter referred to them pursuant to the foregoing sentence within [**] days after the matter referral, then either party may by written notice to the other submit the matter to Baseball Arbitration as provided in Section 17 of this Second Amendment; provided, however, that the following matters shall not be subject to such referral to Baseball Arbitration, and any disputes arising in the JSC with respect to them may only be resolved by mutual agreement of the parties: (i) [**]; (ii) any [**] described in Second Amendment Section [**]; (iii) any changes to the [**] that would require [**] than contemplated in the [**]; and (iv) deciding whether to pursue ([**] of this Second Amendment in the event of a [**].
14.5Baseball Arbitration for Certain Sublicensing Fee Related Disputes. In the event of any Dispute arising under Section 4.1.3 (including if the Parties fail to agree on apportionment of the amount of proceeds that are and are not Sublicense Fees subject to Section 4.1.3), the Parties shall submit such Dispute to mediation and binding baseball arbitration pursuant to the mediation and baseball arbitration process set forth under this Section 14.5. The purpose of the mediation and baseball arbitration shall be to resolve only those issues that remain in dispute under Section 4.1.3 following good faith negotiations within a Dispute Resolution Period in accordance with Section 14.2. The mediation and baseball arbitration shall be conducted in San Diego County, California under the applicable AAA rules (except as modified by this Section 14.5 below) and the proceedings shall be held in English. Each Party shall bear its own costs with respect to the mediation and baseball arbitration proceedings and share the cost of the Third Party Expert (defined below).
(c) Baseball Arbitration. If the Parties do not agree upon the financial terms for the Commercial License by the end of the Negotiation Period, then either Party may request, within [***] following the end of the Negotiation Period, to determine such financial terms by baseball arbitration in accordance with the process set forth in Exhibit D. Within [***] after the independent expert panel renders its decision on the financial terms in accordance with Exhibit D, BlueRock may notify Senti of its acceptance of the independent expert panel’s decision, in which case the Parties will enter into a Commercial License that includes the financial terms determined by such independent expert panel.
17.6.3 Baseball Arbitration. Any inability of the Parties to agree upon (a) the terms of an agreement as set forth in Section 8.1.2 (Exercise of Profit-Share Options) or Section 8.2 (Co-Detail Option), including the U.S. Allocation Percentage as defined in and described in Exhibit B (Profit-Share Exhibit) or (b) the royalties as described in Section 12.5 (Ownership) (each of sub-clauses (a) and (b), a “Short-Form Dispute”) shall be finally determined by binding arbitration in accordance with this Section 17.6.3 (Baseball Arbitration) by a single arbitrator, which arbitrator shall (i) be neutral and independent of the Parties and all of their respective Affiliates and (ii) have significant experience and expertise in the development of pharmaceutical or biologic products in oncology. Any such arbitration shall be administered by Judicial Arbitration and Mediation Services (“JAMS”) and shall be seated in San Francisco, California in accordance with the applicable JAMS Streamlined Arbitration Rules, except as expressly set forth herein. If the Parties are unable to agree on an arbitrator within fifteen (15) days of request by a Party for arbitration, the arbitrator shall be selected by JAMS. Each Party to the arbitration shall prepare a written proposal setting forth its position with respect to the Short-Form Dispute, including a proposed form of agreement or terms (as applicable) as specified in sub-clauses (a) and (b) above. Without delaying the arbitration procedures, for a period not to exceed ten (10) days commencing no later than fifteen (15) days after the arbitrator has been selected, the Parties shall exchange and discuss the Parties’ respective written proposals in good faith in an effort to resolve the matter. The arbitrator shall select one of the requested proposals as her/his decision, and shall not have authority to render any substantive decision other than to so select the proposal of one of the Parties. If one Party does not submit to the arbitrator a written proposal setting forth its position within the time period established by the arbitrator therefor, the arbitrator shall select the other Party’s proposal. The costs of such arbitration shall be shared equally by the Parties, and each Party shall bear its own costs and expenses in connection with the arbitration. The Parties shall use good faith efforts to complete arbitration under this Section 17.6.3 (Baseball Arbitration) within sixty (60) days following the initiation of such arbitration. The arbitrator shall establish reasonable additional procedures to facilitate and complete such arbitration within such sixty (60) day period. The existence of any arbitration and all submissions, correspondence and evidence relating to such arbitration shall constitute the Confidential Information of each Party, and this provision shall survive the termination of any arbitration.
14.5Baseball Arbitration. If the Parties fail to agree on any matter described in Section 0 and a Party submits such failure to baseball arbitration for final resolution, then relevant failure to agree shall be resolved in accordance with this Section 0. Within [***] Business Days following a Party’s receipt of any baseball arbitration notice from the other Party, the Parties shall meet and attempt to agree on an independent Third Party expert with at least ten (10) years of experience in the licensing of biopharmaceutical compounds or products. If the Parties cannot agree on such expert within such time period, then each Party may nominate one independent expert within [***] Business Days after such [***]-Business Day period and the two experts so selected shall nominate the final independent expert within [***] Business Days of their nomination. Within [***] Business Days of her or their appointment, the expert(s) shall set a date for the arbitration, which date shall be scheduled as soon as possible and is intended to be scheduled no more than [***] days after the date the arbitration is demanded. At least [***] Business Days prior to the arbitration, each Party shall provide the expert with a complete, written proposal of such Party’s solution to the applicable Dispute, along with any documentary or other evidence it wishes to provide in support for such proposal. After receiving both Parties’ proposals, the expert(s) will have the right to meet with the Parties as necessary to inform the expert’s determination and to perform independent research and analysis. The expert(s) will be instructed to select one of the Party’s proposals without modification within [***] days following the receipt of both proposals. The expert(s) will deliver her/their decision regarding the disputed matter in writing, which decision will be made in accordance with the standard for resolution of such matter set forth in this Agreement and will be binding and conclusive upon both Parties. The Party whose proposal is not selected by the experts is responsible for the fees of the experts and the costs and expenses of the baseball arbitration. The provisions of Section 0 and Section 0 apply to any baseball arbitration proceedings commenced under this Section 0 mutatis mutandis.
17.6.3 Baseball Arbitration. Any inability of the Parties to agree upon (a) the terms of an agreement as set forth in Section 8.1.2 (Exercise of Profit-Share Options) or Section 8.2 (Co-Detail Option), including the U.S. Allocation Percentage as defined in and described in Exhibit B (Profit-Share Exhibit) or (b) the royalties as described in Section 12.5 (Ownership) (each of sub-clauses (a) and (b), a “Short-Form Dispute”) shall be finally determined by binding arbitration in accordance with this Section 17.6.3 (Baseball Arbitration) by a single arbitrator, which arbitrator shall (i) be neutral and independent of the Parties and all of their respective Affiliates and (ii) have significant experience and expertise in the development of pharmaceutical or biologic products in oncology. Any such arbitration shall be administered by Judicial Arbitration and Mediation Services (“JAMS”) and shall be seated in San Francisco, California in accordance with the applicable JAMS Streamlined Arbitration Rules, except as expressly set forth herein. If the Parties are unable to agree on an arbitrator within fifteen (15) days of request by a Party for arbitration, the arbitrator shall be selected by JAMS. Each Party to the arbitration shall prepare a written proposal setting forth its position with respect to the Short-Form Dispute, including a proposed form of agreement or terms (as applicable) as specified in sub-clauses (a) and (b) above. Without delaying the arbitration procedures, for a period not to exceed ten (10) days commencing no later than fifteen (15) days after the arbitrator has been selected, the Parties shall exchange and discuss the Parties’ respective written proposals in good faith in an effort to resolve the matter. The arbitrator shall select one of the requested proposals as her/his decision, and shall not have authority to render any substantive decision other than to so select the proposal of one of the Parties. If one Party does not submit to the arbitrator a written proposal setting forth its position within the time period established by the arbitrator therefor, the arbitrator shall select the other Party’s proposal. The costs of such arbitration shall be shared equally by the Parties, and each Party shall bear its own costs and expenses in connection with the arbitration. The Parties shall use good faith efforts to complete arbitration under this Section 17.6.3 (Baseball Arbitration) within sixty (60) days following the initiation of such arbitration. The arbitrator shall establish reasonable additional procedures to facilitate and complete such arbitration within such sixty (60) day period. The existence of any arbitration and all submissions, correspondence and evidence relating to such arbitration shall constitute the Confidential Information of each Party, and this provision shall survive the termination of any arbitration.
14.4 Baseball Arbitration. If the Parties fail to agree on any matter described in Section 2.2 or Section 6.4(a) and a Party submits such failure to baseball arbitration for final resolution, then relevant failure to agree shall be resolved in accordance with this Section 14.4. Within ten (10) Business Days following a Party’s receipt of any baseball arbitration notice from the other Party, the Parties shall meet and attempt to agree on an independent Third Party expert with at least ten (10) years of experience in the licensing of biopharmaceutical compounds or products. If the Parties cannot agree on such expert within such time period, then each Party may nominate one independent expert within ten (10) Business Days after such ten (10)-Business Day period and the two experts so selected shall nominate the final independent expert within ten (10) Business Days of their nomination. Within ten (10) Business Days of her or their appointment, the expert(s) shall set a date for the arbitration, which date shall be scheduled as soon as possible and is intended to be scheduled no more than sixty (60) days after the date the arbitration is demanded. At least fifteen (15) Business Days prior to the arbitration, each Party shall provide the expert with a complete, written proposal of such Party’s solution to the applicable Dispute, along with any documentary or other evidence it wishes to provide in support for such proposal. After receiving both Parties’ proposals, the expert(s) will have the right to meet with the Parties as necessary to inform the expert’s determination and to perform independent research and analysis. The expert(s) will be instructed to select one of the Party’s proposals without modification within thirty (30) days following the receipt of both proposals. The expert(s) will deliver her/their decision regarding the disputed matter in writing, which decision will be made in accordance with the standard for resolution of such matter set forth in this Agreement and will be binding and conclusive upon both Parties. The Party whose proposal is not selected by the experts is responsible for the fees of the experts and the costs and expenses of the baseball arbitration. The provisions of Section 14.3 apply to any baseball arbitration proceedings commenced under this Section 14.4 mutatis mutandis.
7.2Baseball arbitration: If an Impasse is referred to "baseball arbitration" under clause 7.1 of this schedule, the following provisions will apply. (a)The MFG Shareholder referring the Impasse to "baseball arbitration" will provide a notice to the other MFG Shareholder setting out what it considers to be the Impasse and the matters that need to be agreed to resolve the Impasse. The MFG Shareholder that receives that notice will, within five Business Days of receipt, if it considers other matters need to be agreed to resolve the Impasse, notify the other MFG Shareholder of those matters. Only those matters contained in these notices will be determined by the "baseball arbitration". (b)An independent expert suitably qualified and experienced in forestry related investments will be appointed by agreement of the MFG Shareholders, or, failing the MFG Shareholders agreeing to an expert within five Business Days, will be appointed by the New Zealand Institute of Forestry (Expert). (c)From the date of appointment of the Expert, each MFG Shareholder will have five Business Days to submit to the Expert one written submission setting out, as its "final best offer", a single proposal to resolve the matters that need to be agreed to resolve the Impasse (the Submissions). Each Submission must be no longer than eight A4 pages each (but may include any reasonable and appropriate attachments such as valuation information or forestry maps or source data relevant to the Submission, which will not be taken into account in the page limit). (d)Upon receipt of the Submissions, the Expert will provide copies of the same to each of the MFG Shareholders. Each MFG Shareholder will have five Business Days from the date of receipt of the other MFG Shareholder's proposal to submit to the Expert a written response to the other MFG Shareholder's Submission, which must be no longer than four A4 Pages together with any supporting attachments that may reasonably be provided. At any time up until the time of determination by the Expert, the MFG Shareholders may mutually agree an appropriate way forward and terminate the "baseball arbitration". (e)Upon receipt of both of the responses, the Expert will select a single Submission that, in the determination of the Expert, most closely conforms to the commercial circumstances of MFG and its subsidiaries and is the most fair and reasonable to the MFG Shareholders in light of the totality of the circumstances (Determination). For clarity, the Determination must be of a single Submission and not a combination of the Submissions or be a resolution that was not one of the Submissions. In the absence of manifest error, the Determination is final and binding on the parties. For the purposes of clause 2.12, the approval of a supermajority of the Board will be deemed to have been given to any matter necessary to give effect to the Determination.
13.12 Baseball Arbitration. This Section 13.12 (Baseball Arbitration) shall apply to disputes arising under Section 12.3(b) (Effect of Termination) to be resolved by baseball arbitration. Baseball arbitration will be conducted by one (1) arbitrator who shall be reasonably acceptable to the Parties and who shall be appointed in accordance with the [***]. If the Parties are unable to select an arbitrator within [***] then the arbitrator shall be appointed in accordance with the [***]. Any arbitrator chosen under this Section 13.12 (Baseball Arbitration) shall have significant legal or business experience in the pharmaceutical industry, and shall not be a current or former employee or director, or a current significant shareholder, of either Party or any of their respective Affiliates or any Sublicensee. Within [***] after the selection of the arbitrator, each Party shall submit to the arbitrator and the other Party a proposed resolution of the dispute that is the subject of the arbitration, together with any relevant evidence in support thereof (the “Proposals”). Within [***] after the delivery of the last Proposal to the arbitrator, each Party may submit a written rebuttal of the other Party’s Proposal and may also amend and re-submit its original Proposal. The Parties and the arbitrator shall meet within [***] after the Parties have submitted their final Proposals (and rebuttals, if any), at which time each Party shall have one (1) hour to argue in support of its Proposal. The Parties shall not have the right to call any witnesses in support of their arguments, nor compel any production of documents or take any discovery from the other Party in preparation for the meeting. Within [***] after such meeting, the arbitrator shall select one of the final Proposals so submitted by one of the Parties as the resolution of the dispute, but may not alter the terms of either final Proposal and may not resolve the dispute in a manner other than by selection of one of the submitted final Proposals. If a Party fails to submit a Proposal within the initial [***] time frame set forth above, the arbitrator shall select the Proposal of the other Party as the resolution of the dispute.
Baseball arbitration, also known as final-offer arbitration, is a method of resolving disputes in which both parties submit a final offer to the arbitrator, who must choose one of the proposals as the binding resolution. This approach encourages both parties to make reasonable and fair offers, given that the arbitrator cannot split the difference but must select one complete offer.
Baseball arbitration is often used in scenarios where traditional negotiation has failed but the parties still desire a structured and decisive resolution. It is particularly effective in:
When drafting a Baseball arbitration clause for a contract, clarity and specificity are key. Below is a sample clause:
“In the event of a dispute arising under this agreement, the parties agree to submit the dispute to Baseball Arbitration. Each party shall submit to the arbitrator its final offer in writing, and the arbitrator shall select one of the submitted final offers in full settlement of the dispute. The arbitrator’s decision shall be final and binding on both parties.”
Baseball arbitration clauses are typically included in contracts where a swift resolution is critical and both parties want to minimize the risk of extreme outcomes. Commonly, these clauses are found in:
Remember that Baseball Arbitration can be a powerful tool to resolve conflicts efficiently. Ensure that all parties fully understand the process and its implications before including such a clause in any contract.
Dive deeper into the world of clauses and learn more about these other clauses that are used in real contracts.
Billing and payment terms outline the specific details regarding the timing, methods, and conditions for invoicing and remittance between parties in an agreement. These terms clarify when payments are due, acceptable forms of payment, any penalties for late payments, and any applicable discounts or incentives for early payments.
A binding arbitration clause requires parties to resolve disputes through arbitration rather than litigation, with the arbitrator's decision being final and legally enforceable. This mechanism aims to provide a more efficient and private resolution process compared to traditional court proceedings.
A break clause is a provision in a contract that allows one or both parties to terminate the agreement early under specified conditions, often after giving prior notice. This clause offers flexibility, enabling parties to exit the contract without facing significant penalties or legal repercussions.
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