These Terms of Service are incorporated by reference into the License and Lease Agreement (“Agreement”) between Silent Beacon, LLC (“SBL”) and Customer. All terms used herein but not defined herein shall have the meanings set forth in the Agreement.
1. Delivery.
1.1 Delivery of Beacons.
Promptly after the receipt of the Subscription Fees by SBL, SBL shall ship to Customer such number of Beacons set forth in the Order Form for use by the Customer’s Beacon Holders. All Beacons used by Customer for its End Users must be obtained from SBL, and Customer shall not use any third-party device with the System.
1.2 Delivery Schedule; Allocation of Inventory.
SBL will use commercially reasonable efforts to meet the Customer’s requested delivery schedules for Beacons. If Beacons’ inventory is insufficient to support all orders, SBL may allocate its available inventory in its sole and absolute discretion, and without liability to the Customer.
1.3 Additional Beacons.
In the event that Customer wishes to add additional Beacon Holders or Recipients to the System pursuant to Section 3.1 of the Agreement, upon finalization or an updated Order Form and payment of the additional Subscription Fees for such End Users, SBL will ship to Customer the appropriate number of additional Beacons for the additional Beacon Holders.
1.4 Trade-ins.
SBL may permit a trade-in of an older model Beacon for a newer or upgraded model Beacon as it sees fit and in its reasonable discretion.
1.5 Replacement Beacons.
In the event that a Beacon is damaged by the End User which is not normal wear and tear or the Beacon is stolen or lost, the Customer may request a replacement Beacon for a replacement cost equal to the amount set forth in the Order Form.
1.6 No Sales.
Customer shall not sell or transfer to any third–party the Beacons obtained from SBL hereunder.
2. Shipment; Title and Risk of Loss; Return.
2.1 Shipment.
All Beacons shall be suitably packed for shipment in SBL’s standard shipping cartons and delivered to the Customer or its carrier agent F.O.B. SBL’s office. All freight, insurance, and other shipping expenses, as well as any special packing expense, shall be paid by the Customer. SBL may make partial shipments of the Customer’s orders. All Beacons made available by SBL shall be delivered in good repair and operating condition. Customer shall inspect the Beacons upon delivery and immediately notify SBL of any discrepancy between the Beacons and their documentation. Within thirty (30) days of delivery, SBL shall replace any non-working Beacons or Beacons that do not otherwise correspond in substantial part to their documentation.
2.2 Title and Risk of Loss.
Risk of loss of the Beacons will pass to the Customer upon delivery to the carrier. Except for Customer’s rights to use the Beacons during the Term, the Beacons are and shall at all times be and remain the exclusive personal property of SBL and title to the Beacons shall at all times remain with SBL. Customer shall not allow any liens or encumbrances on the Beacons. Customer shall immediately advise SBL regarding any notice of any claim, levy, lien, or legal process issued against the Beacons. The Customer shall have no right, title, or interest in or to the Beacon provided to Customer except as expressly set forth herein. Accordingly, Customer shall: (i) ensure that the Beacons are used carefully and properly, and in compliance with all applicable federal, state, and local laws; (ii) not make any alterations or additions to the Beacons, including, but not limited to the addition of any software, without SBL’s prior written consent; (iii) notify SBL promptly of any loss, theft, damage to, or destruction of any of the Beacons and shall make the Beacon or any wreckage available for disposal; (iv) not assign, sublease, pledge or otherwise transfer the Beacons; (v) not, other than in the exercise of its rights under the Agreement or applicable law, interfere with SBL’s quiet possession of the Beacons; (vi) not suffer or permit the Beacons to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Beacons are so confiscated, seized or taken, Customer (to the extent it is made aware of such confiscation) shall notify SBL and Customer shall at its sole expense use commercially reasonable efforts to procure an immediate release of the Beacons; and (vii) not remove or conceal any Beacon or asset tags or other identifying information on the Beacons.
2.3 Replacement of Beacons.
In the event of damaged, lost, stolen or misused Beacons during the Term of this Agreement, Customer may request a replacement Beacon subject to Customer paying the replacement cost set forth in the Order Form prior to the delivery of the replacement Beacon.
3. Covenants of Customer.
3.1 Compliance with Applicable Law.
Customer is solely responsible for complying with all applicable federal, state, regional, and local laws, rules and regulations in connection with the Agreement and its use of the System, including all such laws, rules and regulations relating to data privacy, geo-location, employment and emergency monitoring/9–1–1 services. Customer acknowledges and agrees that it will familiarize itself with all such laws prior to using the System and that SBL does not represent or warrant that the System complies with or is capable of complying with any such laws. Customer specifically acknowledges that the use of the System may entail the gathering and storage of personally identifiable information, including biometric or geolocation information. Customer shall: (i) collect, store, disclose, protect, and destroy such information pursuant to applicable law; (ii) provide all necessary disclosures and obtain the requisite consents and releases for itself and SBL from all third parties that will utilize the System; and (iii) shall erase any personally identifiable information from Beacons prior to sending such Beacons to SBL for any reason; (iv) shall indemnify, defend and hold SBL harmless from any claims that Customer failed to meet its obligations under applicable law and this Section 3.1.
3.2 Restrictions on Use.
Customer shall not and shall ensure that its End Users shall not: (a) modify or create derivative works of the System, or any portion or component thereof; (b) copy, frame or mirror any features or functionality of the System; (c) reverse engineer any functionality of the System; (d) access the System, or any portion thereof, in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of any module or functionality; (e) use the System to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (f) use the System to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs; (g) interfere with or disrupt the integrity or performance of the System or third-party data contained therein; (h) attempt to gain unauthorized access to the System or its related systems or networks; (i) use the System for timesharing or service bureau purposes or otherwise for the benefit of a third–party, (j) transmit or disseminate unsolicited material, including without limitation, “junk mail” or “unsolicited bulk e-mail”, or other advertising material to End Users that have not specifically agreed to receive such material by either opting or not opting out in a lawful manner; (k) access or use the System for non-emergency communications or other than as expressly provided in the Agreement and in any documentation; or (l) permit any End User or any third–party to do any of the foregoing.
3.3 Passwords and Logins.
Customer agrees to hold all logins and passwords for the System in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied or utilized therein to anyone other than a permitted End User having a need for such disclosure, and then only to allow use of the System as authorized herein. Customer shall: (i) be responsible for ensuring End Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity and legality of all data provided by Customer or any End User and of the means by which it acquired such data; (iii) prevent unauthorized access to or use of the System, and notify SBL promptly of any such unauthorized access or use; and (iv) use the System only in accordance with applicable laws, rules and regulations.
3.4 Insurance.
The Customer shall carry and maintain commercial general liability insurance with the following limits of not less than: (i) two million dollars ($2,000,000) per occurrence and cumulatively two million dollars ($2,000,000) for any and all transactions involving the lease of up to one hundred (100) Beacons (including any and all additional Beacons in any and all amendment(s)); (ii) two million dollars ($2,000,000) per occurrence and cumulatively five million dollars ($5,000,000) for any and all transactions involving the lease of one hundred and one (101) to two hundred fifty (250) Beacons (including any and all additional Beacons in any and all amendment(s)); and (iii) two million dollars ($2,000,000) per occurrence and cumulatively ten million dollars ($10,000,000) for any and all transactions involving the lease of two hundred fifty-one (251) or more Beacons (including any and all additional Beacons in any and all amendment(s)). Such policy shall be issued by a reputable insurance company and shall provide that it is primary to and not contributory with any other insurance. All such policies must be endorsed with a Waiver of Subrogation endorsement. Upon executing the Agreement and at any other time upon request by SBL, the Customer shall deliver to SBL written proof of such insurance.
3.5 Additional Covenants.
Customer will: (i) conduct business in a manner that reflects favorable at all times on the System and Beacons and the good name, good will, and reputation of SBL; (ii) not engage in any deceptive, misleading or unethical practices that are or might be detrimental to SBL, its products or the public; (iii) make no false or misleading representations with regard to SBL or its products; (iv) not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to SBL or its products; (v) make no representations, warranties or guarantees to its End Users with respect to the specifications, features or capabilities of the System that are inconsistent with the literature distributed by SBL; and (vi) not enter into any contract or engage in any practice detrimental to the interests of SBL or its products.
3.6 Customer Operation.
Customer acknowledges and agrees (i) that Customer is responsible for certain aspects of the operation of the System, as set forth in the Documentation, including the related training and supervision of Administrators, Dispatchers and Recipients, and (ii) in no event shall SBL have any liability relating to Customer’s or any Administrators’ failure to operate the System in accordance with the Documentation. Under no circumstances shall Customer be authorized to make any representations, warranties or guarantees with respect to the System, except to the extent expressly set forth in this Agreement. Customer shall be responsible for the compliance by all End Users with all of the terms and conditions of the Agreement, including the Terms of Service.
3.7 Customer Content.
If Customer provides or otherwise makes available any information or any other data collected by Customer or a third–party regarding End Users to SBL or any third–party service provider or emergency service provider in connection with the operation or use of the System (collectively, Customer Content”), Customer represents and warrants that Customer has any and all legal rights in and to such Customer Content, in order to use and disclose, and permit use and disclosure of, the Customer Content in connection with the operation and use of the System as contemplated by the Agreement, including the Terms of Service and the Documentation.
4. Intellectual Property Rights.
SBL retains all ownership of, and all intellectual property rights in, the System, including but not limited to all patents, trademarks, copyrights, trade secrets, and other proprietary or intellectual property rights. Customer shall acquire no rights therein other than those limited rights of use specifically conferred by the license terms of the Agreement. All configurations, customizations, enhancements, and modifications to the System developed by SBL belong solely and exclusively to SBL and shall be deemed to be included in the System. Notwithstanding the above, SBL acknowledges that all information relating to Customer’s End Users shall be owned by Customer.
5. No Warranty; Disclaimers.
5.1 SUBJECT TO THE LIMITED REPLACEMENT WARRANTY, CUSTOMERACCEPTS THE SYSTEM “AS IS, WHERE-IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY OR SUITABILITY FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY DISCLAIMED. CUSTOMER’S USE OF THE SYSTEM IS AT CUSTOMER’S SOLE RISK, AND CUSTOMER ASSUMES ALL LIABILITY ARISING FROM ITS USE OF THE SYSTEM. Notwithstanding the above, in the event that there is a defect in a Beacon’s workmanship or materials, SBL shall replace such Beacon with a working Beacon. The obligation to replace the Beacon shall not apply if any defects or non-conformities are the result of (i) Customer’s or its End Users’ improper use of or damage to the Beacon, other than with respect to ordinary wear and tear; or (ii) modifications of the Beacons, or any portion thereof, other than those performed by SBL or approved by SBL in writing.
5.2 CUSTOMER SHALL ENSURE THAT IT AND ITS END USERS SHALL ONLY BE ABLE TO USE THE BEACONS IN DIRECT CONNECTION WITH THE SYSTEM AND FOR NO OTHER PURPOSE.
5.3 UNLESS CUSTOMER HAS PURCHASED MONITORING SERVICES FROM SBL, CUSTOMER IS SOLELY RESPONSIBLE FOR MONITORING SERVICES, RESPONDING TO CALLS AND ALERTS AND FOR ITS DISPATCHING OPERATION, AND IN NO EVENT SHALL SBL BE LIABLE TO CUSTOMER, ITS END USERS OR ANY THIRD–PARTY FOR ANY FAILURE BY CUSTOMER TO RESPOND TO A BEACONALERT OR FAILURE OF CUSTOMER TO MAINTAIN APPROPRIATE DISPATCHING AND ALERTING FUNCTIONS.
5.4 THE SYSTEM ONLY OPERATES WHEN BEACONS ARE IN OPERATING RANGE OF THE END USERS MOBILE PHONE AND WHERE THE END USER’S MOBILE PHONE HAS NETWORK CONNECTIVITY, BLUETOOTH CONNECTIVITY AND CELLULAR ACCESS. IN ADDITION, THE SYSTEM AND BEACON CONNECTIVITY TO THE SYSTEM MAY BE TEMPORARILY INTERRUPTED, REFUSED, OR LIMITED AT ANY TIME BECAUSE OF TRANSMISSIONS LIMITATIONS CAUSED BY THIRD–PARTY NETWORK, CARRIER, ATMOSPHERIC AND TOPOGRAPHICAL FACTORS OUTSIDE OF SBL’S OR SERVICE PROVIDER’S CONTROL, OR EQUIPMENT MODIFICATIONS, UPGRADES, REPAIRS OR SIMILAR OTHER ACTIVITIES. INDIVIDUAL DATA TRANSMISSIONS MAY BE INVOLUNTARILY DELAYED FOR A VARIETY OF REASONS, INCLUDING THE ABOVE, WEAK BATTERIES, SYSTEM OVER-CAPACITY, AND THE END USER’S MOVEMENT OUTSIDE OF THE CARRIER’S SERVICE AREA.
5.5 SBL MAKES NO REPRESENTATION OR WARRANTY AS TO THE PROMPTNESS OF SBL’S RESPONSE, AND SBL HAS NO CONTROL OVER THE RESPONSE TIME OR CAPABILITY OF ANY AGENCY OR PERSON WHO MAY BE NOTIFIED AS A RESULT OF THE SYSTEM BEING USED. CUSTOMER FURTHER UNDERSTANDS THAT SBL MAY IMPROPERLY PERFORM THE SERVICES, OR MAY FAIL TO PROPERLY RESPOND TO THE RECEIPT OF AN EMERGENCY SIGNAL FROM THE SYSTEM, OR THAT THE SYSTEM MAY FAIL TO FUNCTION PROPERLY.
6. Limitation of Liability.
6.1 THE PARTIES ACKNOWLEDGE THAT (I) THE RISK OF LOSS OR BODILY HARM, INJURY OR DEATH, AND THE POTENTIAL LIABILITY FOR SUCH LOSSES, EXISTS BEFORE, AND IS INDEPENDENT OF, THE PROVISION OF THE SYSTEM AND SERVICES BY SBL TO CUSTOMER, (II) PERSONAL SAFETY AND MONITORING SYSTEMS DO NOT CREATE, NOR DO THEY INCREASE OR DECREASE, THE RISK OR EXTENT OF SUCH LOSSES, (III) SBL DOES NOT AND CANNOT CONTROL THE SITUATIONS OR EVENTS THAT GIVE RISE TO THE OCCURRENCES (MEDICAL EMERGENCIES, FIRES, CRIMINAL ACTIVITY, ETC.) OR THE CONSEQUENCES THEREOF (PROPERTY LOSS, PERSONAL INJURY, ETC.) THAT THE SYSTEM IS INTENDED TO AVERT OR DETECT, AND (IV) BECAUSE OF THE UNIQUE NATURE OF THE SYSTEM, THE PARTIES HAVE AGREED THAT SBL’S LIABILITY SHOULD BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT.
6.2 IN NO EVENT WILL SBL BE LIABLE TO CUSTOMER OR ANY THIRD–PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THE AGREEMENT, THE SYSTEM OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SBL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SBL BE LIABLE TO CUSTOMER, ANY ENDUSER OR ANY THIRD–PARTY FOR ANY LOSS FROM PERSONAL INJURY OR DEATH, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR LOSS OF DATA, ARISING OUT OF CUSTOMER’S OR ANY END USER’S USE OF, OR INABILITY TO USE, THE SYSTEM, OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES.
6.3 SBL’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER AND ANY THIRD–PARTY SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO SBL FOR A BEACON FOR AN END USER UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, EXCLUDING ANY PASS-THROUGH COSTS.
6.4 Customer and SBL specifically understand that (i) SBL, in providing the SBL System, may serve as a conduit for information and services provided by third–parties and that SBL may rely on such information and services, (ii) the System communicates with the SBL monitoring facility over internet (iii) these transmission systems are beyond the control of SBL and are maintained and serviced solely by the applicable network or telecommunications provider, (iv) the transmission systems may not always be reliable, and (v) any changes made to these transmission systems may disrupt communication from the System or between Beacons, without notice from the Customer, SBL will have no way to know of such problem. CUSTOMER UNDERSTANDS THAT SBL WILL NOT RECEIVE SIGNALS FROM THE SYSTEM IF THE CUSTOMER’S TRANSMISSION SYSTEM IS NOT SET UP, NOT WORKING PROPERLY, LOSSES POWER OR CONNECTIVITY OR IF CHANGES IN THE TRANSMISSION SYSTEM PREVENT COMMUNICATION WITH SBL. CUSTOMER IS RESPONSIBLE FOR TESTING THE SYSTEM ON A WEEKLY BASIS, AS WELL AS IMMEDIATELY FOLLOWING ANY CHANGE TO THE TRANSMISSION SYSTEM. Customer will immediately notify SBL and its End Users of any problems with the System or loss of connectivity. SBL assumes no responsibility or liability for the accuracy, completeness, propriety, or legality of information which may be provided, directly or indirectly, by or on behalf of Customer, any End User or any third–party, or of the Services to which such information may relate.
7. Term and Termination.
7.1 Term.
The Agreement shall begin on the Effective Date and continue until the end of the Term, unless sooner terminated as provided herein.
7.2 Termination by SBL.
SBL may terminate the Agreement prior to the expiration of the Term if: the Customer fails to make any payment to SBL as and when required in accordance with the terms hereof; (b) the Customer materially breaches any other provision of the Agreement and fails to remedy such breach within twenty (20) days of receipt of notice from SBL of such breach; or c) it determines to do so, with or without cause, upon thirty (30) days prior notice.
7.3 Termination by the Customer.
The Customer may terminate the Agreement prior to the expiration of the Term if SBL materially breaches any provision of the Agreement and fails to remedy such breach within twenty (20) days of receipt of notice from the Customer of such breach.
7.4 Automatic Termination.
The Agreement will terminate automatically, with no further act or action of either party, if: (i) a receiver or trustee is appointed for either party or its property or either party is adjudged bankrupt or insolvent; (ii) either party makes a general assignment for the benefit of its creditors; (iii) either party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors; (iv) either party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (v) either party is liquidated or dissolved.
7.5 Effect of Termination or Expiration.
Upon termination or expiration of the Agreement: (a) the Customer shall pay all amounts due hereunder within ten (10) days; (b) all outstanding orders shall be automatically canceled; and (c) the Customer shall return all Beacons in the same condition as when delivered subject to normal wear and tear within thirty (30) days after termination or expiration of the Agreement, and if such Beacons are not received by SBL by such date, Customer shall pay to SBL one hundred and twenty dollars ($120) for each non-returned Beacon as liquidated damages (“Liquidated Damages”) within ten (10) days after the thirty (30) day period above. Late payments shall be subject to five percent (5%) interest per month. Customer shall pay or reimburse SBL for all fees and expenses, including attorneys’ fees and collection costs, arising from Customer’s failure to pay any amount when due.
8. Indemnification.
8.1 Indemnification of the Customer by SBL.
SBL shall defend and hold harmless the Customer from and against the amount of, any and all claims, demands, losses, damages, penalties, liabilities, obligations, settlement payments, costs and expenses of every kind whatsoever (including without limitation, costs of investigating, preparing or defending any such claim or proceeding and reasonable legal fees and disbursements) (collectively, “Losses”) incurred or suffered by the Customer arising out of or relating to any claim by a third–party that the System (in the form supplied by SBL) infringes any valid U.S. patent or copyright of any third–party.
8.2 Indemnification of SBL by the Customer.
The Customer shall defend and hold harmless SBL from and against, and will pay to SBL as and when incurred, the amount of all Losses incurred or suffered by SBL arising out of or relating to (i) the Customer’s breach of any provision of the Agreement; (ii) any claims arising from Customer’s, the Call Center’s or any End Users’ use of the System or Beacons, including any claim for death and/or bodily injury; or (iii) Customer’s failure to comply with any applicable law, rule or regulation.
8.3 Defense of Claims.
If a claim for Losses (a “Claim”) is to be made by any party (an “Indemnified Party”), such Indemnified Party shall give notice (a “Claim Notice”) to the other party (the “Indemnifying Party”) as soon as practicable after such Indemnified Party becomes aware of any fact, condition or event which may give rise to Losses for which indemnification may be sought under the Section; provided, however, that the failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent such Indemnified Party is actually prejudiced by such failure (to the extent determined by a court of competent jurisdiction). The Indemnifying Party shall have the right to defend the Indemnified Party with counsel of its choice reasonably satisfactory to the Indemnified Party, so long as: (i) the Indemnifying Party notifies the Indemnified Party in writing within ten (10) days after the Indemnified Party has given the Claim Notice that the Indemnifying Party will indemnify the Indemnified Party from and against the entirety of any Losses the Indemnified Party may suffer resulting from or relating to the Claim; (ii) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have the financial resources to defend against the Proceeding and fulfill its indemnification obligations hereunder; (iii) the Proceeding involves only a claim for money damages and no other relief, and (iv) the Indemnifying Party conducts the defense of the Proceeding actively and diligently. The Indemnifying Party shall not compromise or settle such Proceeding without the written consent of the Indemnified Party. In all other cases the Indemnified Party may defend the Claim with counsel of its choosing at the expense of the Indemnifying Party. The Indemnified Party may, at its own cost, participate in the investigation, trial and defense of any such Claim defended by the Indemnifying Party and any appeal arising therefrom. The parties shall cooperate with each other in connection with any defense in any notifications to insurers. If the Indemnifying Party fails to promptly and diligently assume the defense of such Claim after receipt of a Claim Notice hereunder, then the Indemnified Party against which such Claim has been asserted shall (upon delivering notice to such effect to the Indemnifying Party) have the right to undertake the defense, compromise or settlement of such Claim with counsel of its own choosing at the expense of the Indemnifying Party and the Indemnifying Party shall have the right to participate therein at its own cost.
9. DISPUTE RESOLUTION, MEDIATION, ARBITRATION, COURT OF JURISDICTION.
9.1 GOOD FAITH ATTEMPT TO RESOLVE.
THE PARTIES HEREBY AGREE THAT THEY WILL ATTEMPT IN GOOD FAITH TO RESOLVE ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT PROMPTLY THROUGH THE CHIEF EXECUTIVE OFFICERS OF THE PARTIES. ANY FINAL DECISION MUTUALLY AGREED TO IN WRITING BY SUCH OFFICERS SHALL BE CONCLUSIVE AND BINDING ON THE PARTIES. IF SUCH OFFICERS ARE UNABLE TO RESOLVE THE MATTER THROUGH NEGOTIATIONS WITHIN FOURTEEN (14) DAYS AFTER SUCH MATTER WAS FIRST REFERRED TO THEM, EITHER PARTY MAY SUBMIT THE DISPUTE TO MEDIATION IN ACCORDANCE WITH SECTION 9.2.
9.2 MEDIATION.
IF THE PARTIES HERETO ARE UNABLE TO SATISFACTORILY RESOLVE ANY DISPUTE, EACH PARTY HEREBY AGREES TO SUBMIT TO MEDIATION UNDER THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) MEDIATION RULES THEN IN EFFECT. SUCH MEDIATION SHALL BE CONDUCTED BY A SINGLE MEDIATOR IN ROCKVILLE, MARYLAND AND IF THE DISPUTE REMAINS UNRESOLVED AFTER SUCH MEDIATION, THEN EITHER PARTY MAY SUBMIT THE DISPUTE TO ARBITRATION IN ACCORDANCE WITH SECTION 9.3. THE COST OF THE MEDIATION SHALL BE EQUALLY SHARED BY THE PARTIES.
9.3 ARBITRATION.
IF THE PARTIES HERETO ARE UNABLE TO SATISFACTORILY RESOLVE A DISPUTE, THEN ANY PARTY MAY SUBMIT THE DISPUTE TO BINDING ARBITRATION BEFORE A SINGLE ARBITRATOR SELECTED IN ACCORDANCE WITH THE RULES OF THE AAA UTILIZING THE AAA’S EXPEDITED PROCEDURES AND APPLYING MARYLAND LAW. THE ARBITRATION PROCEEDING SHALL BE CONDUCTED IN ROCKVILLE, MARYLAND. EACH PARTY SHALL SUBMIT ITS OWN WRITTEN SUBMISSION RECOMMENDING IN SUPPORT OF THE POSITION ADVANCED BY IT, SUCH REPORTS TO BE SUBMITTED NO LATER THAN TWENTY (20) DAYS AFTER THE ARBITRATOR HAS BEEN RETAINED. THE PARTIES SHALL PROVIDE THE ARBITRATOR WITH SUCH ADDITIONAL INFORMATION AS THE ARBITRATOR MAY REQUEST IN HIS/HER DISCRETION. NO LATER THAN SIXTY (60) DAYS AFTER THE ARBITRATOR IS RETAINED, HE/SHE SHALL RENDER HIS/HER DECISION IN A WRITTEN REPORT WHICH SHALL BE FINAL, BINDING AND ENFORCEABLE IN A COURT OF LAW HAVING ADEQUATE JURISDICTION AND SHALL NOT BE SUBJECT TO LEGAL CHALLENGE. THE COST OF ARBITRATION SHALL BE BORNE IN SUCH PROPORTION AS THE ARBITRATOR SHALL DECIDE. THE ARBITRATOR MAY AWARD LEGAL FEES AND COSTS TO THE PREVAILING PARTY IF AND WHEN APPROPRIATE.
10. RIGHT TO SEEK INJUNCTIVE RELIEF.
NOTWITHSTANDING THE ABOVE PROVISIONS OF SECTION 9, EITHER PARTY MAY SEEK INJUNCTIVE RELIEF IN ANY COURT OF COMPETENT JURISDICTION AT ANY TIME IN RELATION TO ANY DISPUTE UNDER OR IN CONNECTION WITH THE AGREEMENT.
