United States: Nielsen Contracting, Inc. V. Applied Underwriters, Inc.

In Nielsen Contracting, Inc. v. Applied Underwriters, Inc., 22 Cal. App. 5th 1096 (2018), the Fourth District Court of Appeal affirmed the trial court's denial of a motion to compel arbitration and stay litigation filed by defendant Applied Underwriters, Inc. ("Applied"), seeking to compel arbitration of a workers compensation dispute pursuant to an arbitration provision in a Reinsurance Participation Agreement ("RPA").

Nielsen Contracting, Inc. ("Nielsen") signed a "Request to Bind" with Applied for its patented workers' compensation program known as "EquityComp." Under the agreement, California Insurance Company ("CIC"), a subsidiary of Applied, issued Nielsen a guaranteed-cost workers' compensation policy. The Request to Bind also required Nielsen to sign the RPA with Applied Underwriters Captive Risk Assurance Company, Inc. ("AUCRA"), another of Applied's subsidiaries. Nielsen and AUCRA signed the RPA in December 2012, with a three-year term.

The RPA modified and supplanted many of the terms in the CIC policy, including adding an arbitration provision which provided, in relevant part:

"(A) It is the express intention of the parties to resolve any disputes arising under this Agreement without resort to litigation in order to protect the confidentiality of their relationship and their respective business and affairs. Any dispute or controversy ... arising out of or related to this Agreement shall be fully determined in the British Virgin Islands under the provisions of the American Arbitration Association.

"(B) All disputes between the parties relating in any way to (1) the execution and delivery, construction or enforceability of this Agreement, (2) the management or operations of the Company, or (3) any other breach or claimed breach of this Agreement or the transactions contemplated herein shall be ... finally determined exclusively by binding arbitration in accordance with the procedures provided herein. ... [¶] ... [¶]

(Italics added.)

In June 2016, the California Insurance Commissioner issued an administrative decision in a case involving a different insured, Shasta Linen Supply, Inc., who had challenged the same EquityComp insurance program offered by Applied, AUCRA, and CIC (collectively, "Defendants"). The Commissioner found that the RPA was unlawful and void as a matter of law for several reasons, including that it had not been filed and approved by the Department of Insurance ("Department") before it was issued. The Commissioner also determined that the governing administrative regulations required workers' compensation insurers to obtain approvals for any "side agreements," including any arbitration provisions differing from the dispute resolution provisions contained in a previously approved insurance policy. Two months later, the Department entered into a stipulated cease and desist order with Defendants, by which they stated that they disagreed with the administrative decision, but acknowledged its precedential effect under Government Code section 11425.60(b), and agreed that they would not issue any new RPAs or renew any existing RPA unless the policy was filed with and approved by the Department.

In January 2017, Nielsen sued Defendants, seeking a declaration that the RPA was void and its provisions unconscionable, as well as damages for Defendants' misrepresentations and breach of the implied covenant of good faith and fair dealing. Nielsen alleged that the RPA was an adhesion contract with unconscionable terms, it was written and structured to purposely mislead Nielsen and intentionally circumvent California insurance laws, and it was an illegal contract because it was not filed with or approved by the Department.

In response to the complaint, AUCRA moved to compel arbitration pursuant to the RPA's arbitration provision. AUCRA argued that paragraph (B) requiring arbitration of disputes concerning "enforceability of this Agreement" constituted a delegation clause that gave the arbitrator exclusive authority to determine the enforceability of the agreement. Alternatively, AUCRA argued that, if the court was permitted to rule on the arbitrability issues, the arbitration clause was valid and enforceable. 

Nielsen opposed the motion to compel, arguing that the delegation clause was severable from the RPA and the arbitration clause, and the court must first resolve its specific challenge to the enforceability of the delegation clause. The trial court denied Defendants' motion to compel, finding that it had authority to decide the enforceability of the delegation clause because Nielsen had specifically asserted that "'both the delegation provision and the arbitration provision are illegal and unenforceable separate and apart from the evident unenforceability of the entire RPA, albeit for the same reason, i.e., failure to file with, and obtain approval from, the Insurance Commissioner.'" The trial court held that neither the delegation clause nor the arbitration provision were enforceable.

On appeal, the Fourth District Court of Appeal affirmed, finding that the trial court properly decided the enforceability of the delegation clause, and that neither the delegation clause nor the arbitration provision were enforceable.

The parties agreed that the delegation clause expressed a clear intent to delegate the issue of enforceability of the arbitration clause to the arbitrator, but that applicable law required the court to rule on specific challenges to the enforceability of delegation clauses before compelling a matter to arbitration. They disagreed as to whether Nielsen had raised an adequate challenge to the delegation clause, such that judicial resolution of the challenge was required.

The appellate court first examined the United States Supreme Court's decision in Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63 (2010), which addressed the issue of whether the court or the arbitrator rules on a challenge to the enforceability of a delegation clause under the Federal Arbitration Act ("FAA"), as the parties agreed that the RPA was governed by the FAA. 

The high court began this analysis by confirming that a delegation clause—nested within the larger arbitration agreement—must be viewed as an independent ("severable") contract. (Id. at pp. 70–71.) Thus, the court held that as with any independent contract, the court must resolve specific challenges to the delegation clause that are proper under section 2 of the FAA, i.e., any "'generally applicable contract defenses.'" (Rent-A-Center, at pp. 68, 71.) "If a party challenges the validity under [FAA] § 2 of the precise agreement to arbitrate at issue, the federal court must consider the challenge before ordering compliance with" the delegation clause. (Id. at p. 64.) Otherwise, courts would be treating the delegation clause on a ground that would "'elevate it over other forms of contract,'" which is not permitted under the FAA. (Rent-A-Center, at p. 71.)

But—consistent with its severability reasoning—the Rent-A-Center court made clear this rule requiring judicial consideration of contractual defenses to the enforceability of the delegation clause is triggered only if the challenge is "directed specifically to the agreement to arbitrate." (Rent-A-Center, supra, 561 U.S. at p. 71.) Thus, an argument that the arbitration agreement or the underlying contract is unenforceable is not sufficient to trigger the court's obligation to resolve contentions regarding the enforceability of a severable delegation clause. (Id. at pp. 71–76.)

The facts of Rent-A-Center illustrate this principle. There, the plaintiff filed an employment discrimination suit against his former employer. (Rent-A-Center, supra, 561 U.S. at p. 65.) The employer responded by seeking arbitration based on an arbitration agreement that was separate from the underlying employment contract and contained a delegation clause. (Id.at pp. 65–66.) The employee opposed the motion, arguing the arbitration agreement was unconscionable. (Id. at p. 66.) But the employee challenged only the validity of the arbitration contract and never "even mention[ed] the delegation provision." (Id. at p. 72.) On this record, the United States Supreme Court found the arbitrator, and not the court, was to consider the enforceability of the delegation clause because the employee had not challenged the delegation provision. (Id. at pp. 72–76.) The court reasoned that the delegation clause must be viewed as a separate agreement nested within the arbitration agreement, and unless the clause is directly challenged, the arbitrator must resolve all of the disputed issues. (Ibid.)

Following Rent-A-Center, California courts have recognized that a court is the appropriate entity to resolve challenges to a delegation clause nested in an arbitration clause when a specific contract challenge is made to the delegation clause. 

The appellate court determined that Nielsen had expressly raised challenges to the delegation clause:

In opposing the motion to compel, Nielsen argued the delegation clause was unenforceable because it constituted a material change to CIC's filed insurance policy (which contained no arbitration clause or delegation clause), and the RPA's delegation clause constituted an endorsement or collateral agreement that was required to be filed with the Insurance Department to be lawful and enforceable. Defendants countered by arguing California law does not require a delegation clause to be approved by the Insurance Department, and an unfiled arbitration provision and delegation clause remain lawful and enforceable. These issues relate specifically to the enforceability of the delegation clause, and thus under Rent-A-Center these issues are for the court to resolve.

Relying on Rent-A-Center, defendants contend a court may rule on the enforceability of the delegation clause only if the plaintiff's challenge to the delegation clause is different from the plaintiff's challenge to the entire contract or to the entire arbitration agreement. This argument is not supported by Rent-A-Center's holding or logic. The high court's determination that a court should generally resolve specific state law contractual defenses to delegation clauses was based on its view that delegation clauses are separate and severable from the remainder of the arbitration agreement and the FAA requires that arbitration provisions be enforced in the same manner as other types of contractual provisions. (Rent-A-Center, supra, 561 U.S. at pp. 67, 70–71 [under the FAA courts must "place[] arbitration agreements on an equal footing with other contracts"].) If we were to accept defendants' argument that courts are precluded from ruling on specific contract defenses to a delegation clause merely because the same defense is also brought to invalidate other related contractual provisions, we would be treating delegation clauses differently than other contractual clauses, a determination that would be inconsistent with the FAA, as interpreted by the United States Supreme Court.

The appellate court also rejected Defendants' argument that Nielsen's challenge was insufficient because it was directed at both the delegation clause and the arbitration agreement as a whole:

Rent-A-Center's discussion of the type of challenge that might have triggered court review supports our conclusion. In explaining that the plaintiff's unconscionability challenge specifically concerned only the validity of the contract as a whole, rather than the delegation provision, the high court noted that the plaintiff's "substantive unconscionability arguments assailed arbitration procedures called for by the [arbitration] contract—the fee-splitting arrangement and the limitations on discovery—procedures that were to be used during arbitration under both the agreement to arbitrate employment-related disputes and the delegation provision. It may be that had [the employee] challenged the delegation provision by arguing that these common procedures as applied to the delegation provision rendered that provision unconscionable, the challenge should have been considered by the court. To make such a claim based on the discovery procedures, [the employee] would have had to argue that the limitation upon the number of depositions causes the arbitration of his claim that the Agreement is unenforceable to be unconscionable. That would be, of course, a much more difficult argument to sustain than the argument that the same limitation renders arbitration of his factbound employment-discrimination claim unconscionable. Likewise, the unfairness of the fee-splitting arrangement may be more difficult to establish for the arbitration of enforceability than for arbitration of more complex and fact-related aspects of the alleged employment discrimination. [The employee], however, did not make any arguments specific to the delegation provision; he argued that the fee-sharing and discovery procedures rendered the entire Agreement invalid." (Rent-A-Center, supra, 561 U.S. at p. 74.)

This hypothetical—that if the plaintiff had directed the unconscionability challenges (the unfairness of the discovery limitations and the fee-splitting requirements) against the delegation clause in addition to asserting the same unconscionability challenge against the arbitration agreement itself, the "challenge [to the delegation clause] should have been considered by the court"—illustrates that the focus of the court's attention must be on whether the particular challenge is directed at the delegation clause, not whether the same challenges are also directed at the agreement or agreements into which the delegation clause is embedded or nested. (Rent-A-Center, supra, 561 U.S. at p. 74.) Under Rent-A-Center's reasoning, whether the challenge is the same as or different from the challenge to other provisions of the arbitration clause or underlying agreement is not dispositive of whether the challenge is specifically directed at the delegation clause. (See Malone, supra, 226 Cal.App.4th at pp. 1559–1560.)

The appellate court also found support for its position in a recent federal decision relying on Rent-A-Center and addressing a similar RPA with AUCRA in an EquityComp program:

In Minnieland, the specific challenge to the delegation clause was the same as the challenge to the arbitration clause as a whole, but this fact did not preclude the reviewing court from upholding the district court's conclusion that it was the proper entity to rule on the enforceability of the delegation clause. (Ibid.)

The appellate court agreed that a party merely stating that it was challenging the delegation provision was insufficient to trigger judicial determination of the issue if it was merely a subterfuge to challenge the entire agreement as unenforceable,

[ b ]ut the need for a careful inquiry regarding the nature of the party's challenge does not support a blanket rule that any time there is a similar challenge to the delegation clause and to other contractual provisions, a court must ignore its statutory obligation to rule on state law contract defenses specifically asserted against the enforceability of the delegation clause.

The record supported the trial court's determination that Nielsen had asserted a specific, substantive challenge to the delegation clause separate from the challenge to the arbitration clause and underlying contracts, which was not merely a device to challenge other provisions in the contract.

After determining that the court had the authority to decide the issue of enforceability of the delegation clause and arbitration provision, the Court of Appeal turned to the issue of whether such provisions were enforceable, finding that the trial court had properly determined that the provisions were void and unenforceable because Defendants had not filed them with the Insurance Commissioner as required by Insurance Code section 11658 and Code of Regulations section 2268, which provided as follows:

Section 11658 states in relevant part:

"(a) A workers' compensation insurance policy or endorsement shall not be issued by an insurer to any person in this state unless the insurer files a copy of the form or endorsement with [the Workers Compensation Insurance Rating Bureau] ... and 30 days have expired from the date the form or endorsement is received by the commissioner from the rating organization ... , unless the commissioner gives written approval of the form or endorsement prior to that time.

"(b) If the commissioner notifies the insurer that the filed form or endorsement does not comply with the requirements of law, specifying the reasons for his or her opinion, it is unlawful for the insurer to issue any policy or endorsement in that form." (Italics added.)

At the time the RPA was executed, Regulations section 2268 provided: "No collateral agreements modifying the obligation of either the insured or the insurer shall be made unless attached to and made a part of the policy ... ." (Italics added.) In 2016, this Regulations section was amended to delete the reference to "collateral agreements" and instead state: "An insurer shall not use a policy form, endorsement form, or ancillary agreement except those filed and approved by the Commissioner in accordance with these regulations." (Regs., § 2268, subd. (b), italics added.) The Regulations were also amended to define an "Ancillary agreement" to include a "dispute resolution agreement[]." (Regs., § 2250, subd. (f).)

In Nielsen, Applied had properly filed the CIC policy with the Insurance Commissioner and the Workers Compensation Rating Bureau, but Defendants did not file the RPA with the Insurance Commissioner.  As only the RPA contained the delegation clause and arbitration provisions, the Commissioner had no opportunity to evaluate these provisions.

In Shasta Linen, the Insurance Commissioner found the RPA between Shasta Linen and AUCRA was a "collateral agreement" within the meaning of Regulations former section 2268 because it modified and supplanted the terms of the CIC policies and therefore it should have been filed with, and approved by, the Insurance Department before it became effective. (Shasta Linen, at pp. 1, 46, 53, 58.) The Insurance Commissioner also found the failure to do so rendered the RPA void as a matter of law. (Id. at p. 65.) The Insurance Commissioner emphasized section 11658's mandatory language that an unfiled policy or endorsement "'shall not be issued by an insurer'" and that "issuing an unapproved policy or endorsement 'is unlawful.'" (Shasta Linen, at p. 65, second italics added.)

The Insurance Commissioner also observed:

"By its own admission [Applied] designed EquityComp and the RPA to circumvent workers' compensation policy. It would defeat the statutory purpose to allow CIC to bypass the governmental review process by simply waiting until after the insurance policy has gone into effect to introduce additional or modified terms to its insurance program. Workers' compensation insurance is mandatory and California employers expect the statute's protection. CIC knew of the review and pre-approval process and deliberately ignored that process with regard to the RPA. ...

"... [T]he legal requirement for modifying any workers' compensation insurance obligation is to endorse the agreement to the insurance policy. This is done by filing the agreement with the [Rating Bureau], which in turn will file it with the Insurance Commissioner, and endorse it to the insurance policy after the requisite time or approval. Unfiled side agreements are prohibited and shall not be used without complying with these requirements; otherwise, they are not permitted in this state and are void as a matter of law." (Shasta Linen, at p. 66, fns. omitted.)

Although Shasta Linen pertained primarily to the validity of the entire RPA agreement, the Insurance Commissioner also considered the RPA's arbitration provisions. The Insurance Commissioner found the RPA's arbitration clause was intended to "supplant [the dispute resolution provisions] of the [CIC] guaranteed cost policy" and the arbitration clause substantially modified these CIC provisions. (Shasta Linen, at p. 56.) The Insurance Commissioner found that Regulations former section 2268 was "clear on its face" that "unendorsed side agreements are prohibited" and an "arbitration obligation" comes within the definition of a "side agreement[]" that must be filed before it is effective. (Shasta Linen, at p. 43.)

The appellate court noted that the RPA considered in Shasta Linen and the RPA issued to Nielsen were essentially identical. Although the court was not bound by the decision in Shasta Linen, it found its analysis persuasive.

The appellate court further rejected Defendants' arguments that the RPA provisions were not subject to the filing requirement because AUCRA is not an insurer, the RPA was not an insurance policy, and the RPA did not modify the CIC-issued policies, as well as their argument that the arbitration provision was not an "endorsement" or "collateral" agreement under applicable law.

The Insurance Commissioner rejected identical arguments. After carefully reviewing the terms of Shasta Linen's RPA, the Insurance Commissioner found that "it is clear the RPA's dispute resolution ... provisions are meant to replace those of [the CIC policies]" and that the "affiliated entities" (Applied, AUCRA, and CIC) were "so enmeshed" and "intertwined" that they should be considered together in determining whether the RPA constitutes a modification of the CIC policies. (Shasta Linen, at pp. 57, 49.)

The record here supports those findings. The RPA expressly pertains to Nielsen's workers' compensation coverage and states that it "represents the entire understanding ... between the parties with respect to the subject matter hereof and supersedes all prior negotiations, proposals, letters of intent, correspondence and understandings relating to the subject matter hereof." The RPA additionally states that its terms apply "to all payroll, premium, and losses occurring under the Policies ... ." In materials provided to Nielsen, Applied stated that its EquityComp program (that includes the CIC policies and the RPA agreement) "is a seamlessly integrated package providing nationwide workers' compensation coverage ... ." Based on this evidence, we are unpersuaded by defendants' attempt to recharacterize their integrated EquityComp program to suggest that the statutory filing requirements should not apply.

. . .

As found by the Insurance Commissioner, the RPA's arbitration provision and delegation clause are endorsements and/or collateral agreements to the CIC policies because they relate to and materially alter the dispute resolution provisions in the earlier approved policy. (See American Zurich Ins. Co. v. Country Villa Service Corp. (C.D.Cal., July 9, 2015, No. 2:14-cv-03779-RSWL-AS) 2015 WL 4163008, pp. *5–*6 (American Zurich).)

Finally, the appellate court determined that the delegation clause and arbitration provision were unenforceable because they were not properly filed with the Insurance Commissioner in violation of California statute and regulations.

Section 11658, subdivision (b) expressly states it is "unlawful" for an insurer to issue any policy or endorsement or form that is not approved by the Insurance Commissioner, and the regulations implementing this law made clear that collateral agreements must be filed to be effective. (See Regs., former § 2268.) These prohibitions would have no meaning if the insurer could enforce contracts despite having violated the disclosure and approval requirements. Allowing the insurer to make material modifications to the filed and approved dispute resolution mechanism without the knowledge of the Rating Bureau or the Insurance Commissioner would effectively remove any regulatory oversight of this process.

In California, workers' compensation insurance (or an adequate substitute) is mandatory, and the Insurance Commissioner is charged with closely scrutinizing insurance plans to protect both workers and their employers. (See American Zurich, supra, 2015 WL 4163008 at p. *17.) To accomplish this objective, the Legislature mandated that the Commissioner have full access to insurance information through mandatory filing requirements. (Regs., former § 2268.) It follows that a violation of these requirements prevents crucial regulatory oversight and thus renders the unfiled agreement unlawful and void as a matter of law.

In doing so, the court rejected Defendants' arguments that the arbitration provisions were not void and unenforceable because Insurance Code section 11658 and Code of Regulations section 2268 do not provide for this specific remedy, and that the Legislature specifically rejected the rule that an unfiled arbitration provision or delegation clause is void as a matter of law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions