the date when institution of legal or equitable proceedings based on such
dispute would be barred by the applicable statute of limitations.
The
arbitration shall be governed by the Federal Arbitration Act.
The award of the arbitrator(s) shall be final and binding upon the Parties.
Judgment may be entered upon it by any court having jurisdiction thereof.
Engineer and Client expressly agree that any arbitration pursuant to this
Section 12.1 may be joined or consolidated with any arbitration involving any
other person or entity (i) necessary to resolve the claim, dispute or
controversy, or (ii) substantially involved in or affected by such claim,
dispute or controversy.
Both Engineer and Client will include appropriate
provisions in all contracts they execute with other parties in connection with
the Services to require such joinder or consolidation.
THE PREVAILING PARTY IN ANY ARBITRATION, OR ANY OTHER FINAL, BINDING DISPUTE
PROCEEDING UPON WHICH THE PARTIES MAY AGREE, SHALL BE ENTITLED TO RECOVER FROM
THE OTHER PARTY REASONABLE ATTORNEYS' FEES AND EXPENSES INCURRED BY THE
PREVAILING PARTY.
ARTICLE 13
CONFIDENTIALITY
13.1
NON-DISCLOSURE OBLIGATION.
EXCEPT AS REQUIRED BY COURT ORDER,
SUBPOENA, OR APPLICABLE LAW, NEITHER PARTY SHALL DISCLOSE TO THIRD PARTIES ANY
CONFIDENTIAL OR PROPRIETARY INFORMATION REGARDING THE OTHER PARTY'S BUSINESS
AFFAIRS, FINANCES, TECHNOLOGY, PROCESSES, PLANS OR INSTALLATIONS, PRODUCT
INFORMATION, KNOW-HOW, DESIGN DRAWINGS, SPECIFICATIONS, INVENTIONS, IDEAS, OR
OTHER INFORMATION THAT IS RECEIVED FROM ENGINEER PURSUANT TO THIS AGREEMENT OR
THE PARTIES' RELATIONSHIP PRIOR THERETO OR IS DEVELOPED PURSUANT TO THIS
AGREEMENT, WITHOUT THE EXPRESS WRITTEN CONSENT OF ENGINEER, WHICH CONSENT SHALL
NOT BE UNREASONABLY WITHHELD.
THE CLIENT SHALL AT ALL TIMES USE THEIR
RESPECTIVE REASONABLE EFFORTS TO KEEP ALL INFORMATION REGARDING THE TERMS AND
CONDITIONS OF THIS AGREEMENT CONFIDENTIAL AND SHALL DISCLOSE SUCH INFORMATION TO
THIRD PERSONS ONLY AS REASONABLY REQUIRED FOR THE PERMITTING OF THE PROJECT;
FINANCING THE DEVELOPMENT, CONSTRUCTION, OWNERSHIP, OPERATION AND MAINTENANCE OF
THE PLANT; OR AS REASONABLY REQUIRED BY CLIENT FOR PERFORMING ITS OBLIGATIONS
HEREUNDER AND IF PRIOR TO SUCH DISCLOSURE, THE CLIENT INFORMS SUCH THIRD PERSONS
OF THE EXISTENCE OF THIS CONFIDENTIALITY OBLIGATION AND ONLY IF SUCH THIRD
PERSONS AGREE TO MAINTAIN THE CONFIDENTIALITY OF ANY INFORMATION RECEIVED.
THIS
ARTICLE 13 SHALL NOT APPLY TO INFORMATION THAT WAS ALREADY IN THE POSSESSION OF
CLIENT PRIOR TO RECEIPT FROM ENGINEER, THAT IS NOW OR HEREAFTER BECOMES A PART
OF THE PUBLIC DOMAIN THROUGH NO FAULT OF THE CLIENT, OR THAT CORRESPONDS IN
SUBSTANCE TO INFORMATION HERETOFORE OR HEREAFTER FURNISHED BY THIRD PARTIES
WITHOUT RESTRICTION ON DISCLOSURE.
13.2
PUBLICITY AND ADVERTISING.
CLIENT SHALL MAKE OR PERMIT ANY OF ITS
SUBCONTRACTORS, AGENTS, OR VENDORS TO MAKE ANY EXTERNAL ANNOUNCEMENT OR
PUBLICATION, RELEASE
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment and have been filed with the United States Securities and
Exchange Commission.
12
ANY PHOTOGRAPHS OR INFORMATION CONCERNING THE PROJECT OR ANY PART THEREOF, OR
MAKE ANY OTHER TYPE OF COMMUNICATION TO ANY MEMBER OF THE PUBLIC, PRESS,
BUSINESS ENTITY, OR ANY OFFICIAL BODY WHICH NAMES