Common use of Baseball Clause in Contracts

Baseball. Notwithstanding Section 9.17.01, for any Dispute arising out of Section 2.04, then subject to Section 9.18, such Dispute shall be finally settled as a “baseball” type arbitration proceeding; and the arbitrators may fashion such detailed procedures as the arbitrators consider appropriate to implement this intent. Accordingly, each Party shall provide the arbitrators and the other Party with a written report setting forth its position with respect to the substance of the Dispute and may submit a revised report and position to the arbitrators within fifteen (15) days of receiving the other Party’s report. The arbitrators shall select one of the Party’s positions as his or her final decision, and shall not have the authority to render any substantive decision other than to so select the position of either Dow or Pfenex as set forth in their respective written reports (as initially submitted, or as revised in accordance with this Section 9.17.02, as applicable); provided that, in determining which Party’s position to select, the arbitrators will take into account the financial position of each Party and will not make a determination that would impose an undue hardship on either Party.