SPIRIT OF MUTUAL COOPERATION TO NEGOTIATE AN
AMICABLE RESOLUTION OF THE DISPUTE FOR A 30-DAY PERIOD OR A MUTUALLY-AGREED
EXTENSION OF TIME (THE "NEGOTIATING PERIOD").
ANY DISPUTE NOT RESOLVED DURING
THE NEGOTIATING PERIOD SHALL BE SUBMITTED TO A SINGLE NEUTRAL ARBITRATOR CHOSEN
BY MUTUAL AGREEMENT OF THE PARTIES, TO RESOLVE IN ACCORDANCE WITH THE RULES OF
THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT UPON THE AWARD RENDERED BY
THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
THE
PARTIES SHALL EQUALLY SHARE THE COST OF THE CHOSEN ARBITRATOR.
THE PARTY FIRST
INVOKING ARBITRATION SHALL DO SO BY SENDING NOTICE IN ACCORDANCE WITH THIS
AGREEMENT.
THE ARBITRATOR SHALL MAKE EVERY EFFORT TO COMPLETE THE ARBITRATION
WITHIN NINETY (90) DAYS FROM THE INITIAL DEMAND FOR ARBITRATION. THE AWARD
RENDERED BY THE ARBITRATOR SHALL BE BINDING UPON THE PARTIES, BUT MAY BE
APPEALED TO ANY COURT HAVING JURISDICTION THEREOF BY EITHER OF THE PARTIES.
THE
PROVISIONS HEREOF SHALL BE A COMPLETE DEFENSE TO ANY SUIT, ACTION OR PROCEEDING
INSTITUTED IN ANY STATE, FEDERAL OR LOCAL COURT, OR ADMINISTRATIVE TRIBUNAL,
OTHER THAN AS EXPRESSLY PERMITTED HEREIN.
ANY DISPUTE RESOLUTION WHICH TAKES
PLACE PURSUANT TO THIS AGREEMENT SHALL BE CONFIDENTIAL AND SHALL BE TREATED AS A
COMPROMISE AND SETTLEMENT NEGOTIATION FOR PURPOSES OF THE FEDERAL RULES OF
EVIDENCE AND STATE RULES OF EVIDENCE.
17.03
INJUNCTION.
NOTHING IN THIS AGREEMENT SHALL PREVENT EITHER PARTY
FROM RESORTING TO JUDICIAL PROCEEDINGS FOR THE LIMITED PURPOSE OF SEEKING A
PRELIMINARY INJUNCTION OR TO AVOID THE
25
BARRING OF THE CLAIM UNDER THE APPLICABLE STATUTE OF LIMITATIONS.
IN ADDITION,
RESORT BY EITHER PARTY TO NEGOTIATION OR ARBITRATION PURSUANT TO THIS AGREEMENT
SHALL NOT BE CONSTRUED UNDER THE DOCTRINES OF LACHES, WAIVER OR ESTOPPEL TO
AFFECT ADVERSELY THE RIGHTS OF EITHER PARTY TO PURSUE ANY SUCH JUDICIAL RELIEF;
PROVIDED, HOWEVER, THAT IRRESPECTIVE OF THE FILING OF ANY SUCH REQUEST FOR
JUDICIAL RELIEF THE PARTIES SHALL CONTINUE TO PARTICIPATE IN THE DISPUTE
RESOLUTION PROCEEDINGS REQUIRED BY SECTION 17.02.
17.04
STATUS OF PARTIES.
NOTHING HEREIN SHALL CREATE, BE DEEMED TO CREATE
OR BE CONSTRUED AS CREATING ANY PARTNERSHIP, EMPLOYER-EMPLOYEE, JOINT VENTURE,
FRANCHISE OR AGENCY RELATIONSHIP BETWEEN THE PARTIES HERETO OR SHALL BE DEEMED
TO RENDER ANY PARTY TO THIS AGREEMENT LIABLE FOR ANY OF THE DEBTS OR OBLIGATIONS
OF ANOTHER.
NEITHER PARTY TO THIS AGREEMENT SHALL, BY VIRTUE OF THIS AGREEMENT,
IN ANY WAY BE CONSIDERED AN AGENT OR REPRESENTATIVE OF THE OTHER PARTY IN ANY
DEALINGS WITH ANY THIRD PARTY, AND NO PARTY HERETO NOR ANY OF ITS EMPLOYEES OR
AGENTS SHALL HAVE THE POWER OR AUTHORITY TO BIND OR OBLIGATE THE OTHER PARTY BY
VIRTUE OF THIS AGREEMENT.
17.05
ENTIRETY OF AGREEMENT.
THIS AGREEMENT AND ALL SCHEDULES AND
EXHIBITS ATTACHED HERETO (WHICH ARE DEEMED INCORPORATED INTO THIS AGREEMENT),
AND THE SUPPLIER BUYING AGREEMENT REFERENCED IN SECTION 6.09 (SUBJECT TO THE
LIMITATIONS OF SECTION 6.09), REFLECT THE ENTIRE AGREEMENT OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND ALL PRIOR ORAL OR WRITTEN
COMMUNICATIONS, AGREEMENTS AND UNDERTAKINGS ARE