USE THEIR GOOD FAITH
EFFORTS TO MUTUALLY AGREE UPON THE RESOLUTION OF THE DISPUTE, CONTROVERSY OR
CLAIM.
IF ANY DISPUTE, CONTROVERSY OR CLAIM IS NOT RESOLVED BY THE DESIGNATED
OFFICERS OF THE PARTIES (OR THEIR DESIGNEES) WITHIN 30 DAYS AFTER SUCH DISPUTE
IS REFERRED TO THEM, THEN THE PARTIES AGREE THAT SUCH DISPUTE WILL BE REFERRED
TO MEDIATION, AND IF THE DISPUTE REMAINS UNRESOLVED AFTER MEDIATION, EITHER
PARTY WILL HAVE THE RIGHT TO ARBITRATE SUCH DISPUTE IN ACCORDANCE WITH SECTION
14.4.3; PROVIDED, HOWEVER, THAT ANY DISPUTE RELATING TO THE CONSTRUCTION OR
VALIDITY OF ANY PATENT WILL NOT BE SUBJECT TO ARBITRATION.
14.4.2
MEDIATION.
IF THE PARTIES PURSUE MEDIATION PROCEEDINGS THE PARTIES
WILL ATTEMPT TO RESOLVE SUCH DISPUTE IN ACCORDANCE WITH THE COMMERCIAL MEDIATION
PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA"), BEFORE RESORTING TO
ARBITRATION IN ACCORDANCE WITH SECTION 14.4.3 BELOW.
THE MEDIATION WILL BE
CONDUCTED BY A SINGLE MEDIATOR EXPERIENCED IN THE BUSINESS AND TECHNOLOGY THAT
IS THE SUBJECT OF THIS AGREEMENT.
THE PLACE OF MEDIATION WILL BE IN NEW YORK,
NY, USA.
EITHER PARTY MAY APPLY TO THE MEDIATOR OR TO A COURT FOR INTERIM
INJUNCTIVE RELIEF UNTIL THE MEDIATION DECISION IS RENDERED OR THE DISPUTE,
CONTROVERSY OR CLAIM IS OTHERWISE RESOLVED.
14.4.3
ARBITRATION. IF THE PARTIES DO NOT FULLY SETTLE ANY DISPUTE,
CONTROVERSY OR CLAIM PURSUANT TO SECTION 14.4.1 OR 14.4.2 AND A PARTY WISHES TO
PURSUE THE MATTER FURTHER, EACH SUCH DISPUTE, CONTROVERSY OR CLAIM WILL BE
FINALLY RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL
ARBITRATION RULES OF THE AAA, AND JUDGMENT ON THE ARBITRATION AWARD MAY BE
ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATION WILL BE
CONDUCTED BY A SINGLE ARBITRATOR AGREEABLE BY THE PARTIES, IF THE PARTIES CANNOT
AGREE UPON AN ARBITRATOR, THE ARBITRATOR WILL BE APPOINTED BY THE AAA. NO
INDIVIDUAL WILL BE APPOINTED TO ARBITRATE A DISPUTE PURSUANT TO THIS AGREEMENT
UNLESS HE OR SHE AGREES IN WRITING TO BE BOUND BY THE PROVISIONS OF THIS SECTION
14.4.
THE PLACE OF ARBITRATION WILL BE NEW YORK, NY, USA. EITHER PARTY MAY
APPLY TO THE ARBITRATOR FOR INTERIM INJUNCTIVE RELIEF UNTIL THE ARBITRATION
AWARD IS RENDERED OR THE CONTROVERSY IS OTHERWISE RESOLVED.
14.4.4
DISPUTES REGARDING MATERIAL BREACH.
IF THE PARTIES ARE IN DISPUTE AS
TO WHETHER ONE PARTY IS IN MATERIAL BREACH OF THIS AGREEMENT, THEN THE MEDIATOR
OR ARBITRATORS WILL FIRST DETERMINE IF MATERIAL BREACH HAS IN FACT OCCURRED, AND
IF SO, WILL GRANT THE DEFAULTING PARTY THE CURE PERIOD PROVIDED PURSUANT TO
SECTION 10.3.
IF THE MATERIAL BREACH IS NOT CURED WITHIN THE TIME PERIOD
PROVIDED PURSUANT TO SECTION 10.3, THE MEDIATION OR ARBITRATION WILL CONTINUE
AND THE MEDIATOR OR ARBITRATORS WILL, AS PART OF THE SAME MEDIATION OR
ARBITRATION, AWARD ACTUAL DIRECT DAMAGES TO THE NON-DEFAULTING PARTY.
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14.4.5
COSTS AND EXPENSES.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, EACH PARTY
WILL BEAR ITS OWN COSTS AND EXPENSES AND ATTORNEYS' FEES AND AN EQUAL SHARE OF
THE MEDIATOR'S AND/OR ARBITRATORS' AND ANY ADMINISTRATIVE FEES OF MEDIATION AND
ARBITRATION.