BY ANY
PRIOR FACTUAL OR LEGAL
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DETERMINATION MADE BY ANY OTHER ARBITRATORS APPOINTED UNDER THIS AGREEMENT.
THE
ARBITRATORS MAY, UNDER PROCEDURES WHICH THE ARBITRATORS DEEM APPROPRIATE, HEAR
AND DETERMINE ANY PRELIMINARY ISSUE OF LAW ASSERTED BY A PARTY TO THE PROCEEDING
TO BE DISPOSITIVE, IN WHOLE OR IN PART, OF A CLAIM OR DEFENSE TO THE SAME EXTENT
THAT A COURT COULD DO SO UNDER A MOTION FOR SUMMARY JUDGMENT.
THE AWARD (THE
"AWARD") DETERMINED BY THE ARBITRATORS WILL BE ISSUED IN ACCORDANCE WITH A
DATED, WRITTEN OPINION, WHICH WILL SET FORTH THE ARBITRATORS' FINDINGS OF FACT
AND CONCLUSIONS OF LAW.
COUNTERPARTS OF THE AWARD AND OPINION WILL BE PROMPTLY
SENT TO THE PARTIES TO THE PROCEEDING.
16.2.4
NO PARTY WILL BE ENTITLED TO COMMENCE OR MAINTAIN ANY ACTION IN A
COURT OF LAW UPON ANY MATTER IN DISPUTE, EXCEPT FOR INTERIM INJUNCTIVE RELIEF,
UNTIL SUCH MATTER WILL HAVE BEEN SUBMITTED TO ARBITRATION AND DETERMINED AS
PROVIDED IN THIS SECTION 16.2, AND THEN ONLY FOR THE ENFORCEMENT OF ANY AWARD.
THE PARTIES AGREE THAT JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY
COURT OF COMPETENT JURISDICTION AND THEY WILL NOT CHALLENGE SUCH JUDGMENT.
16.2.5
ALL COSTS OF ENFORCING THIS AGREEMENT, INCLUDING THE COSTS OF
ARBITRATION, JUDICIAL ENFORCEMENT OF THE ARBITRATION AND AWARD, COURT COSTS,
REASONABLE ACCOUNTANTS' AND EXPERT WITNESS FEES, AND REASONABLE ATTORNEYS' FEES,
WILL BE AWARDED TO THE PREVAILING PARTY.
"REASONABLE ATTORNEYS' FEES" FOR
PURPOSES OF THIS AGREEMENT REFERS TO SUCH FEES AS ARE REASONABLE AND CUSTOMARY
IN LIGHT OF THE RELEVANT DISPUTE.
16.2.6
PENDING THE RESOLUTION OF A DISPUTE BY ARBITRATION, THE PARTIES WILL,
EXCEPT IN THE EVENT OF TERMINATION, CONTINUE TO PERFORM ALL THEIR OBLIGATIONS
UNDER THIS AGREEMENT WITHOUT PREJUDICE TO A FINAL ADJUSTMENT IN ACCORDANCE WITH
THE ARBITRAL AWARD.
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16.3
ASSIGNMENT AND BINDING EFFECT. THIS AGREEMENT MAY NOT BE ASSIGNED BY
EITHER PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER, EXCEPT AS PART OF A
MERGER, CONSOLIDATION, SALE, OR TRANSFER OF ALL OR SUBSTANTIALLY ALL ITS ASSETS,
BUT ONLY IF THE INTENDED ASSIGNEE EXECUTES AND DELIVERS TO THE PARTY WHICH IS
NOT THE ASSIGNOR A WRITING WHEREBY THE ASSIGNEE EXPRESSLY UNDERTAKES TO PERFORM
AND COMPLY WITH ALL OF ITS ASSIGNOR'S OBLIGATIONS HEREUNDER.
NOTWITHSTANDING
SUCH UNDERTAKING, SUCH ASSIGNOR SHALL CONTINUE TO BE PRIMARILY LIABLE FOR SUCH
ASSIGNEE'S PERFORMANCE HEREOF AND COMPLIANCE HEREWITH.
16.3.1
ANY ASSIGNMENT IN VIOLATION OF THIS SECTION 16.3 SHALL BE VOID AND OF
NO EFFECT.
16.3.2
THIS AGREEMENT, AND THE RIGHTS AND DUTIES OF THE PARTIES HEREIN
CONTAINED, SHALL BE BINDING UPON, AND SHALL INURE TO THE BENEFIT OF, THE PARTIES
AND THEIR RESPECTIVE LEGAL REPRESENTATIVES, SUCCESSORS AND PERMITTED ASSIGNS.
16.4
INDEPENDENT CONTRACTOR STATUS.
THE RELATIONSHIP OF THE PARTIES
HERETO IS THAT OF INDEPENDENT CONTRACTORS.
NOTHING IN THIS AGREEMENT WILL BE
CONSTRUED TO CONSTITUTE, CREATE, GIVE EFFECT OR OTHERWISE IMPLY A JOINT VENTURE,
AGENCY, PARTNERSHIP OR OTHER FORMAL BUSINESS ORGANIZATION OR ANY
EMPLOYER/EMPLOYEE RELATIONSHIP OF ANY KIND BETWEEN THE PARTIES.
16.5
NOTICES.
ALL NOTICES, REQUESTS AND OTHER