50%) OF THE COSTS AND FEES OF THE ARBITRATION.
NOTWITHSTANDING THE FOREGOING, THE PREVAILING PARTY IN SUCH ARBITRATION, AS
DETERMINED BY THE ARBITRATOR, AND IN ANY ENFORCEMENT OR OTHER COURT PROCEEDINGS,
SHALL BE ENTITLED, TO THE EXTENT PERMITTED BY LAW, TO REIMBURSEMENT FROM THE
OTHER PARTY FOR ALL OF THE PREVAILING PARTY'S COSTS (INCLUDING BUT NOT LIMITED
TO THE ARBITRATOR'S COMPENSATION), EXPENSES, AND ATTORNEYS' FEES.
5.12.5
AWARD FINAL AND BINDING.
THE ARBITRATOR SHALL RENDER AN
AWARD AND WRITTEN OPINION, AND THE AWARD SHALL BE FINAL AND BINDING UPON THE
PARTIES.
IF ANY OF THE PROVISIONS OF THIS PARAGRAPH, OR OF THIS AGREEMENT, ARE
DETERMINED TO BE UNLAWFUL OR OTHERWISE UNENFORCEABLE, IN WHOLE OR IN PART, SUCH
DETERMINATION SHALL NOT AFFECT THE VALIDITY OF THE REMAINDER OF THIS AGREEMENT,
AND THIS AGREEMENT SHALL BE REFORMED TO THE EXTENT
6
NECESSARY TO CARRY OUT ITS PROVISIONS TO THE GREATEST EXTENT POSSIBLE AND TO
INSURE THAT THE RESOLUTION OF ALL CONFLICTS BETWEEN THE PARTIES, INCLUDING THOSE
ARISING OUT OF STATUTORY CLAIMS, SHALL BE RESOLVED BY NEUTRAL, BINDING
ARBITRATION.
IF A COURT SHOULD FIND THAT THE ARBITRATION PROVISIONS OF THIS
AGREEMENT ARE NOT ABSOLUTELY BINDING, THEN THE PARTIES INTEND ANY ARBITRATION
DECISION AND AWARD TO BE FULLY ADMISSIBLE IN EVIDENCE IN ANY SUBSEQUENT ACTION,
GIVEN GREAT WEIGHT BY ANY FINDER OF FACT, AND TREATED AS DETERMINATIVE TO THE
MAXIMUM EXTENT PERMITTED BY LAW.
5.13
HEADINGS.
THE SECTION HEADINGS IN THIS AGREEMENT
ARE INSERTED ONLY AS A MATTER OF CONVENIENCE, AND IN NO WAY DEFINE, LIMIT,
EXTEND OR INTERPRET THE SCOPE OF THIS AGREEMENT OR OF ANY PARTICULAR SECTION.
5.14
NUMBER AND GENDER.
THROUGHOUT THIS AGREEMENT, AS
THE CONTEXT MAY REQUIRE, (A) THE MASCULINE GENDER INCLUDES THE FEMININE AND THE
NEUTER GENDER INCLUDES THE MASCULINE AND THE FEMININE; (B) THE SINGULAR TENSE
AND NUMBER INCLUDES THE PLURAL, AND THE PLURAL TENSE AND NUMBER INCLUDES THE
SINGULAR; (C) THE PAST TENSE INCLUDES THE PRESENT, AND THE PRESENT TENSE
INCLUDES THE PAST; (D) REFERENCES TO PARTIES, SECTIONS, PARAGRAPHS AND EXHIBITS
MEAN THE PARTIES, SECTIONS, PARAGRAPHS AND EXHIBITS OF AND TO THIS AGREEMENT;
AND (E) PERIODS OF DAYS, WEEKS OR MONTHS MEAN CALENDAR DAYS, WEEKS OR MONTHS.
5.15
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED
SIMULTANEOUSLY IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN
ORIGINAL, BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
5.16
COMPLETE AGREEMENT.
THIS AGREEMENT AND THE PLAN
CONSTITUTE THE PARTIES' ENTIRE AGREEMENT WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ALL AGREEMENTS, REPRESENTATIONS, WARRANTIES, STATEMENTS,
PROMISES AND UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
5.17
WAIVER OF JURY TRIAL.
TO THE EXTENT EITHER PARTY
INITIATES LITIGATION INVOLVING THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP
BETWEEN US (EVEN IF OTHER PARTIES OR OTHER CLAIMS ARE INCLUDED IN SUCH
LITIGATION), ALL THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY.
THIS WAIVER
WILL APPLY TO ALL CAUSES OF ACTION THAT ARE OR MIGHT BE INCLUDED IN SUCH ACTION,
INCLUDING CLAIMS