ARBITRATION ASSOCIATION.
ALL ARBITRATION PROCEEDINGS SHALL BE BEFORE A BOARD OF
THREE (3) ARBITRATORS, FOR EACH OF WHICH EACH PARTY SHALL SELECT ONE
(1) ARBITRATOR AND THE SELECTED ARBITRATORS SHALL SELECT THE THIRD ARBITRATOR.
THE COSTS OF THE THIRD ARBITRATOR SHALL BE DIVIDED EQUALLY BETWEEN THE PARTIES,
AND EACH PARTY SHALL PAY THE COSTS OF THE ARBITRATOR SELECTED BY IT.
ANY AWARD
OF THE ARBITRATORS SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES TO THIS
AGREEMENT, AND JUDGMENT UPON SUCH AWARD MAY BE ENTERED IN ANY COURT HAVING
JURISDICTION THEREOF.
NOTWITHSTANDING THE FOREGOING, ANY DISPUTE AFFECTING THE
RIGHTS OR PROPERTY OF HHMI SHALL NOT BE SUBJECT TO THE ARBITRATION PROVISIONS
ABOVE.
22.2
EITHER PARTY MAY SEEK INJUNCTIVE RELIEF FOR: (A) VIOLATION BY THE
OTHER PARTY OF THE SECTIONS ENTITLED "REPORTS AND AUDITS," "MARKINGS, TRADEMARKS
AND TRADE NAMES," "CONFIDENTIALITY AND TRADE SECRETS," "INSURANCE" AND "DISPUTE
RESOLUTION"; (B) FOR ENFORCEMENT OF ANY ARBITRATION AWARD; OR (C) FOR
ENFORCEMENT OF ANY NON-ARBITRABLE MATTER.
THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER FROM THE OTHER ALL COSTS, INCLUDING ATTORNEY'S FEES, RELATED
TO THE ACTION FOR INJUNCTIVE RELIEF.
22.3
LICENSEE HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(I)
AGREES THAT ANY LEGAL ACTION, SUIT OR PROCEEDING RELATING TO THE
AGREEMENT AND CONTEMPLATED BY THIS SECTION ENTITLED "DISPUTE RESOLUTION" HEREOF
(COLLECTIVELY, "RELATED LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION SITTING IN CUYAHOGA COUNTY, OHIO, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW AGREES
THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM (BUT NOTHING
HEREIN SHALL AFFECT THE RIGHT OF CASE TO BRING ANY ACTION, SUIT OR PROCEEDING IN
ANY OTHER FORUM);
(II)
WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE LAYING OF
VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT LOCATED IN CUYAHOGA
COUNTY, OHIO, WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY
RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE
JURISDICTION OVER LICENSEE; AND
(III)
CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED MAIL, POSTAGE
PREPAID, TO LICENSEE AT THE ADDRESS FOR NOTICES DESCRIBED IN THE
SECTION ENTITLED "NOTICES" HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE
SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING
HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER
MANNER PERMITTED BY LAW).
PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO THE COMPANY'S APPLICATION REQUESTING
CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE EXCHANGE ACT; [*] DENOTES
OMISSIONS.
13
23.
INFRINGEMENT
23.1
LICENSEE SHALL HAVE THE RIGHT DURING THE TERM OF THIS AGREEMENT TO
COMMENCE AN ACTION FOR INFRINGEMENT OF THE PATENT RIGHTS AGAINST ANY THIRD PARTY
FOR ANY INFRINGEMENT OCCURRING WITHIN THE FIELD OF USE, PROVIDED