If contracting party’s (“You” or “Your”) principal office is located outside North America, these terms and conditions apply to all disputes arising out of or relating to an agreement with Dragos (“Agreement”) (excluding disputes regarding the actual or alleged violation of Dragos’s intellectual property rights or the collection of overdue invoices, which shall be governed by New York law and which are not subject to arbitration).  Otherwise, these terms shall not apply. 

The following terms apply to all principal offices outside North America: 

1. GOOD FAITH NEGOTIATION 

In the event of any dispute, claim, or controversy arising out of or relating to this Agreement or the existence, breach, termination, enforcement, interpretation, or validity of the Agreement, including the determination of the scope or applicability of this Agreement to arbitrate (each, a “Dispute”), the parties hereto agree first to try and settle the Dispute through informal negotiation between senior representatives who have authority to settle the Dispute. Any party may give the other party written notice of any Dispute not resolved in the normal course of business and a demand for negotiation. Within thirty (30) days after delivery of the notice of Dispute, the representatives of the parties shall meet at a mutually acceptable time and place or via videoconference utilizing ZOOM or a similar platform agreed upon by the parties, and thereafter as often as they reasonably deem necessary, to attempt to resolve the Dispute. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement negotiations for purposes of applicable rules of evidence. If a party refuses to negotiate as provided herein, any other party may immediately initiate arbitration as provided below. Unless the parties otherwise agree, if settlement is not reached within 60 days after service of a written demand for negotiation, any unresolved Dispute shall be resolved through arbitration in accordance with the arbitration provisions of this Agreement. The parties may by mutual agreement forego negotiation of a Dispute and proceed directly to arbitration. 

2. ARBITRATION.  

Any Dispute shall be referred to and finally resolved by arbitration under the rules and at the location identified below. Unless the parties agree otherwise, the arbitral panel (the “Tribunal”) shall consist of three (3) arbitrators, selected as follows: each party shall appoint one (1) arbitrator; and those two (2) arbitrators shall select a third arbitrator. The third arbitrator shall serve as the chairperson of the tribunal. If the two party-appointed arbitrators are unable to agree on a third arbitrator within thirty (30) days of their appointment, the third arbitrator shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be neutral and independent of each of the parties and shall have suitable experience and knowledge in the subject matter of the Dispute. The parties agree that if there are two or more claimants and/or two or more respondents that the claimants will be treated as one party with regard to the selection of arbitrators and the respondents will be treated as one party with regard to the selection of arbitrators.  

The Tribunal shall have the authority to grant specific performance or other forms of equitable relief. The Tribunal shall have the authority to allocate between the parties the costs of the arbitration (including administrative fees, arbitrator fees, reasonable attorney’s fees and other expenses related to the arbitration) in such equitable manner as the arbitrator may determine. The Tribunal shall not have authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The Tribunal shall issue a reasoned award.  

Any party may at any time, including prior to the appointment of the Tribunal, commence an action or proceeding in a court of proper jurisdiction seeking an order compelling arbitration, pre-arbitral injunction, pre-arbitral attachment, or other relief in aid of arbitration proceedings (referred to herein collectively as “Judicial Remedies”) pending a final decision by the arbitrator provided that a permanent injunction and damages shall be awarded only by the arbitrator.  

By agreeing to arbitration of Disputes, the parties do not intend to deprive any court of its jurisdiction to issue Judicial Remedies. The parties hereby submit to the exclusive jurisdiction of the federal and state courts located in New York, New York (the “New York Courts”) for the purpose of an application for Judicial Remedies, and to the non-exclusive jurisdiction of the New York Courts for an action or proceeding related to enforcing or vacating any award by the Tribunal.   

At the request of any party, the preliminary hearing, final arbitration hearing, and any related proceedings shall be conducted via videoconference utilizing ZOOM or a similar platform agreed upon by the parties. The language to be used in all arbitral proceedings shall be English.   

In addition, the following terms apply only to principal offices within Europe, the Middle East or Africa (EMEA):  Unless the parties agree otherwise, any Dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is as follows: (a) if you bring an action against Dragos, then the governing law is the State of New York, USA, (b) if Dragos brings an action against you, then the governing law is the laws of England and Wales. The seat, or legal place, of arbitration shall be London, England. 

In addition, the following terms apply only to principal offices within Asia Pacific (including India), Australia & New Zealand:  Unless the parties agree otherwise, any Dispute shall be referred to and finally resolved by arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce in force on the date when the notice of arbitration is submitted in accordance with such Rules (which Rules are deemed to be incorporated by reference into this clause) on the basis that the governing law is as follows: (a) if you bring an action against Dragos, then the governing law is the State of New York, USA, (b) if Dragos brings an action against you, then the governing law is as follows: for parties in: (x) Asia Pacific (including India): the laws of England and Wales, (y) Australia and New Zealand: the laws of the State of New South Wales, Australia. In all cases, the seat, or legal place, of arbitration shall be Singapore. 

In addition, the following terms apply only to principal offices within the Americas, excluding North America:  Unless the parties agree otherwise, any Dispute shall be referred to and finally resolved by arbitration under International Dispute Resolution Procedures of the American Arbitration Association in force on the date when the notice of arbitration is submitted in accordance with such Procedures (which Procedures are deemed to be incorporated by reference into this clause) on the basis that the governing law is the law of the State of New York, USA. The seat, or legal place, of arbitration shall be New York, New York, USA.