10. Dispute Resolution
10.01 Mediation. In the event of any dispute arising between the parties in connection with this Agreement, the construction thereof, or the rights, duties or liabilities of either party, representatives designated by each party will meet at the University or confer by conference call within one week of a written request by either party, and attempt to amicably resolve the dispute. If the dispute is not resolved by such efforts within forty– five (45) days after such written request for a meeting or conference call, the parties will refer the matter to non–binding mediation in Boston, the costs of which will be shared equally. In the event that such dispute is not amicably resolved by such non–binding mediation, then the parties may, at their option, agree to arbitrate or unilaterally employ civil litigation or any other dispute resolution mechanism available to them.
10.02 Injunctive Remedies. Notwithstanding Section 10.01 above, the parties acknowledge and agree that, in the event of a breach or a threatened breach by either party of Section 11.01 or 11.06 hereof, the other party may suffer irreparable damage for which it will have no adequate remedy at law and, accordingly, will be entitled immediately to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without having first complied with the provisions of Section 10.01, and without the necessity of posting any bond or surety, in addition to any other remedy it might have at law or at equity.
10.03 Governing Law. The validity, interpretation, performance and enforcement of this Agreement, and all rights and obligations of the parties will be governed and construed in accordance with the internal laws of the Commonwealth of Massachusetts, without regard to its rules concerning conflicts of laws.
10.04 Exclusive Venue; Consent to Jurisdiction. Except for mediation as stipulated in Section 10.01, any action, suit or other proceeding pursuant to, arising under, or touching or concerning this Agreement or the transactions contemplated hereby, including any challenge to the validity or enforceability of the Patent Rights and/or Copyright [DELETE IF NO COPYRIGHT], will be brought exclusively in any court of competent jurisdiction in Suffolk County, Commonwealth of Massachusetts. The parties agree to take any and all necessary or appropriate action to submit to the exclusive jurisdiction of any such court. In any such action, suit or proceeding, the successful or prevailing party will be entitled to recover its reasonable attorneys’ fees and other costs incurred in connection with that action, suit or proceeding, in addition to any other relief to which such party may be entitled.
10.05 Disputes Regarding a Combination Product. Notwithstanding any contrary provision of this Agreement, in the event that the parties are not able to agree on the values of C (fair market value of the Licensed Product) and D (fair market value of the Independent Subproduct) as provided in Section 4.01(F)(b), the following procedures shall apply:
(A) At the request of either party, the parties shall promptly negotiate in good faith jointly to appoint a mutually acceptable neutral person not affiliated with either party (the “Neutral”). If the parties are not able to agree on an acceptable Neutral within thirty (30) days after such request, the CPR Institute for Dispute Resolution shall be responsible for selecting a qualified, disinterested and conflict–free Neutral within fifteen (15) days of being approached by either party. The Neutral selected pursuant to this Section 10.05(A) shall be a Person who has at least five (5) years of experience negotiating university to industry licensing agreements. The Neutral shall conduct arbitration (the “ADR”) in accordance with the terms and conditions of this Section 10.05 and the fees and costs of the Neutral and the CPR Institute for Dispute Resolution shall be awarded to the prevailing party. The place of arbitration will be Boston, MA, USA and the language will be English.
(B) Within sixty (60) days after such matter is referred to ADR, each party shall provide the Neutral with proposed values of C (fair market value of the Licensed Product) and D (fair market value of the Independent Subproduct), together with a written memorandum in support of such proposed values for C and D, as well as any documentary evidence in support thereof. The written memorandum will not be longer that 5 pages in length using 12–point font and margins of at least one (1) inch on all sides of letter–sized paper. The Neutral shall provide said proposed values to the other party only after it receives the proposed values for C and D from both parties.
(C) Within thirty (30) days after a party submits its proposed values for C and D, the other party shall have the right to respond thereto (but neither party may change its proposed values). The response and any material in support thereof shall be provided to the Neutral and the other party and will not be longer than 5 pages in length using 12–point font and margins of at least one (1) inch on all sides of letter–sized paper.
(D) The Neutral shall have the right to meet with the parties as necessary to inform the Neutral’s determination. Within fifteen (15) days of the receipt by the Neutral of both parties’ responses, the Neutral shall select the values for C and D as proposed by one of the parties that as a whole is the most fair and reasonable to the parties in light of the totality of the circumstances. The Neutral must select the values for C and D as proposed by one or the other of the parties; the Neutral may not combine or otherwise modify the parties’ proposals. The decision of the Neutral will then be final and be applied to the calculation required in Section 4.01(F)(b) under the License Agreement for any applicable time period until such time as either party raises an issue that there is a material change to fair market value of either C (fair market value of the Licensed Product) or D (fair market value of the Independent Subproduct) which the parties are not able to agree on. The Neutral’s decision will also identify the winner of the arbitration and order the loser to pay all of the winner’s attorneys’ fees associated with the resolution of this dispute as well as all fees and costs of the Neutral and the CPR Institute for Dispute Resolution.