IN ORDER THAT EACH OF THE
PARTIES MAY BE FULLY ADVISED OF THE OTHER'S POSITION.
(E)
PREREQUISITE TO FORMAL PROCEEDINGS.
FORMAL
PROCEEDINGS FOR THE RESOLUTION OF A DISPUTE MAY NOT BE COMMENCED UNTIL THE
EARLIER OF (I) THE DESIGNATED SENIOR CORPORATE EXECUTIVES UNDER PARAGRAPH
(B) ABOVE CONCLUDING IN GOOD FAITH THAT AMICABLE RESOLUTION THROUGH CONTINUED
NEGOTIATION OF THE MATTER DOES NOT APPEAR LIKELY; (II) 90 DAYS AFTER THE NOTICE
UNDER PARAGRAPH (A) ABOVE REFERRING THE DISPUTE TO DESIGNATED SENIOR CORPORATE
EXECUTIVES; OR (III) THE MEDIATION REFERENCED IN PARAGRAPH (C) HAS NEITHER
COMMENCED NOR BEEN RESOLVED WITHIN 60 DAYS FOLLOWING REFUSAL BY THE PARTIES.
THE TIME PERIODS SPECIFIED IN THIS SECTION 19.1 SHALL NOT BE CONSTRUED TO
PREVENT A PARTY FROM INSTITUTING, AND A PARTY IS AUTHORIZED TO INSTITUTE, FORMAL
PROCEEDINGS EARLIER TO (A) AVOID THE EXPIRATION OF ANY APPLICABLE LIMITATIONS
PERIOD, (B) PRESERVE A SUPERIOR POSITION WITH RESPECT TO OTHER CREDITORS,
(C) SEEK IMMEDIATE INJUNCTIVE RELIEF TO AVOID IRREPARABLE HARM, OR (D) ADDRESS A
CLAIM ARISING OUT OF THE BREACH OF A PARTY'S OBLIGATIONS UNDER ARTICLE XII OR A
DISPUTE SUBJECT TO SECTION 18.12.
THE PARTY FILING A PLEADING SEEKING IMMEDIATE
INJUNCTIVE RELIEF, WHICH IS NOT AWARDED IN SUBSTANTIAL PART, SHALL PAY ALL
REASONABLE COSTS AND ATTORNEYS' FEES OF THE OTHER PARTY IN CONNECTION WITH SUCH
PLEADING.
(F)
USE OF PROPOSALS AND INFORMATION.
PROPOSALS AND INFORMATION EXCHANGED DURING THE INFORMAL PROCEEDINGS DESCRIBED IN
THIS SECTION 19.1 SHALL BE PRIVILEGED, CONFIDENTIAL AND WITHOUT PREJUDICE TO A
PARTY'S LEGAL POSITION IN ANY FORMAL PROCEEDINGS.
ALL SUCH PROPOSALS AND
INFORMATION, AS WELL AS ANY CONDUCT DURING SUCH PROCEEDINGS, SHALL BE CONSIDERED
SETTLEMENT DISCUSSIONS AND PROPOSALS, AND SHALL BE INADMISSIBLE IN ANY
SUBSEQUENT PROCEEDINGS.
19.2.
CONTINUED PERFORMANCE.
(A)
GENERAL.
PROVIDER ACKNOWLEDGES THAT THE
TIMELY AND COMPLETE PERFORMANCE OF ITS OBLIGATIONS PURSUANT TO THE AGREEMENT IS
CRITICAL TO THE BUSINESS AND OPERATIONS OF IDEARC.
EACH PARTY AGREES THAT IT
SHALL, UNLESS OTHERWISE DIRECTED BY THE OTHER PARTY, CONTINUE PERFORMING ITS
OBLIGATIONS UNDER THE AGREEMENT WHILE ANY DISPUTE
85
IS BEING RESOLVED.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PENDING
RESOLUTION OF ANY DISPUTE, PROVIDER SHALL NOT DENY, WITHDRAW, OR SUSPEND
PROVIDER'S PROVISION OF THE SERVICES TO IDEARC UNDER THE AGREEMENT.
THIS
SECTION 19.2 SHALL NOT OPERATE OR BE CONSTRUED AS EXTENDING THE TERM OR
PROHIBITING OR DELAYING A PARTY'S EXERCISE OF ANY RIGHT IT MAY HAVE TO TERMINATE
THE AGREEMENT IN ACCORDANCE WITH ARTICLE XVIII.
FOR THE AVOIDANCE OF DOUBT,
PROVIDER SHALL NOT WITHHOLD ANY IDEARC DATA PENDING THE RESOLUTION OF ANY
DISPUTE.
(B)
NON-INTERRUPTION OF SERVICE.
PROVIDER
ACKNOWLEDGES AND AGREES THAT ANY INTERRUPTION TO THE SERVICE WILL CAUSE
IRREPARABLE HARM TO IDEARC, IN WHICH CASE AN ADEQUATE REMEDY AT LAW WOULD NOT BE
AVAILABLE.
PROVIDER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, PENDING RESOLUTION
OF ANY DISPUTE OR CONTROVERSY, IT SHALL NOT DENY, WITHDRAW, OR OTHERWISE
RESTRICT PROVIDER'S PROVISION OF THE SERVICES TO IDEARC UNDER THE AGREEMENT,
EXCEPT AS SPECIFICALLY AND EXPRESSLY AGREED IN WRITING BY IDEARC AND PROVIDER.
19.3.
BINDING ARBITRATION.
(A)
THE PARTIES