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Award of Arbitrator

[1].
I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the Dispute Resolution clause in the Master Software License Agreement and Product License Agreement signed by the parties on August 9, 2007 (the "Agreements"),1 and having been duly sworn, and having duly heard the proofs and allegations offered by the parties, FIND, as follows:

Procedural History

[2].
In its Notice of Arbitration, filed on July 2, 2009, Burning Glass International, Inc., hereinafter referred to as Claimant, contended that Consim Info Pvt Ltd., hereinafter referred to as Respondent, breached the Agreement by failing to make payments, and asked for missing payments and late charges from Respondent. In its Answering Statement, Respondent contended that Claimant breached its duties by delivering a defective software product. Respondent further contested the venue of the hearing and advocated that Claimant's claim was barred by the statute of limitations in the Agreements. (The venue and statute of limitation provisions are found in the Master Software License Agreement and incorporated into the Product License Agreement.)

Venue

[3].
The International Centre for Dispute Resolution is administering this matter as part of the American Arbitration Association. Under its Procedures, the ICDR can make a preliminary ruling on the location of the arbitration hearings (Article 13) and the Arbitrator can make a final determination as a preliminary matter or in the final award (Article 15). Section 11 of the Master Software License Agreement states that arbitration proceedings shall be conducted in a mutually convenient location. Respondent contends that the proper location is in Chennai, India. Claimant contends that the proper location is in San Diego, California. The hearings were conducted on March 11-12, 2010, in San Diego, California, with Respondent participating fully via real-time videoconference link. The Arbitrator finds that no prejudice occurred to Respondent, and that the conduct of the hearing as constituted in San Diego, California was appropriate. Respondent's motion to change the venue is denied.

Statute of Limitations

[4].
Section 7 of the Master Software License Agreement states that "[no] arbitration or other action under this Agreement may be brought by either party against the other more than one (1) year after the cause of the action arises, except with regard to the confidentiality obligations of Section 5 ('Confidential Information')." The parties signed the Agreements in August, 2007, and Respondent was given until October, 2007, to unilaterally cancel the Agreement, which it did not do despite being given a two-week extension. Claimant submitted the first invoice to Respondent in January, 2008, with charges back to October, 2007. Respondent's Mr. Chandrasekar quickly responded objecting to the invoices because he contended that Claimant had not met its contractual obligations. Claimant's Mr. Sigelman immediately replied that payments were payable because Claimant had performed as required under the Agreements. During the hearing, Mr. Sigelman testified that he understood Mr. Chandrasekar's response to be an objection and clarification, not a formal objection. Also during the hearing, Claimant's Mr. Ticktin testified that he understood Mr. Chandrasekar's e-mail response to be an objection to the invoices that Claimant submitted. Respondent made no payment despite Claimant sending "past due" notices and new invoices. The parties attempted to resolve their dispute over the next year without success.
[5].
The language of Section 7 of the Master Software License Agreement is clear and unambiguous. Claimant argues that Respondent is estopped from contending that the Statute of Limitations lapsed because of its conduct in indicating that a corporate restructuring was imminent, after which an amendment to the Agreements might be agreed. While California case law cited by Claimant permits tolling the statute of limitations for policyholders against insurance companies when the later make misrepresentations of fact, those are not the facts in this matter. Claimant argues for a strict interpretation of the contract because of the integration clause in all other respects. Further, Claimant prepared the wording of the Agreements with only minor changes made in negotiations, so any ambiguity in the terms would be interpreted against Claimant.
[6].
On June 30, 2009, the Claimant submitted its Notice of Arbitration, which was received on July 2, 2009. Clearly more than one year after the dispute over the invoices arose in January, 2008. Claimant's claim for damages is barred by the Agreements' statute of limitations.

ACCORDINGLY, I THE UNDERSIGNED ARBITRATOR, AWARD AS FOLLOWS:

[7].
1. Claimant's Demand for damages is hereby DENIED.

2. Claimant shall pay to Respondent its attorney's fees in the amount of INR 1,084,500 and non-food approved costs in the amount of INR 10,000 in this matter, which total INR 1,094,500.

3. The administrative fees and expenses of the International Centre for Dispute Resolution ("ICDR") totaling US $1,550.00 and the compensation and expenses of the Arbitrator totaling US $1,106.00 shall be borne by the parties equally. Therefore, Respondent shall reimburse Claimant the sum of US $625.00, representing that portion of said fees and expenses in excess of the apportioned costs previously incurred by Claimant.

4. All the other costs and expenses of the arbitration including the cost of video conferencing should be borne by the parties as incurred.

5. This award is in full settlement of all claims and counterclaims submitted to this Arbitration.

[8].
I hereby certify that, for the purposes of Article 1 of the New York Convention of 1958, on the Recognition and Enforcement of Foreign Arbitral Awards, this Final Award was made in San Diego, California, U.S.A.
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