|
<br />
<br />Rev. 06022016 6 of 13
<br />Ellensburg, WA 98926 Canton, Ohio 44718
<br />
<br />g. The parties will seek a fair and prompt negotiated resolution within ten (10) days of the
<br />initial notice of the dispute (“Dispute”). If the Dispute has not been resolved after such
<br />time, the parties will escalate the issue to more senior levels. If the parties are unable to
<br />resolve any dispute at the senior management level, then any controversy, claim or
<br />Dispute arising out of or relating to this Agreement shall be resolved by binding arbitration
<br />in accordance with the Commercial Arbitration Rules of the American Arbitration
<br />Association then in effect. Before commencing any such arbitration, the parties agree to
<br />enter into negotiations to resolve the Dispute. If the parties are unable to resolve the
<br />Dispute by good faith negotiation, either party may refer the matter to arbitration . The
<br />arbitrator(s) shall be bound to follow the provisions of this Agreement in resolving the
<br />Dispute, and may not award any damages excluded by this Agreement . The decision of
<br />the arbitrator(s) shall be final and binding on the parties, and any award of the
<br />arbitrator(s) may be entered or enforced in any court of competent jurisdiction . The
<br />prevailing party will be entitled to recover its reasonable attorneys' fees and costs, in
<br />addition to any other relief ordered by the arbitrator(s). Such fees and costs will include
<br />those incurred in connection with the enforcement of any resulting judgment or order,
<br />and any post judgment order will provide for the right to receive such attorneys' fees and
<br />costs. Any request for arbitration of a claim by either party against the other relating to
<br />this Agreement must be filed no later than six (6) months after the date on which
<br />concludes performance under this Agreement.
<br />
<br />Nothing herein shall prevent either party from seeking a preliminary or permanent
<br />injunction to preserve the status quo or prevent irreparable harm during the arbitration
<br />process.
<br />
<br />h. Neither party shall be liable for any failure of or delay in performance of its obligations
<br />(except for payment obligations) under this Agreement to the extent such failure or delay
<br />is due to acts of God, acts of a public enemy, fires, floods, power outages, wars, civil
<br />disturbances, epidemics, pandemics, sabotage, terrorism, accidents, insurrections,
<br />blockades, embargoes, storms, explosions, labor disputes (whether or not the
<br />employees' demands are reasonable and/or within the party's power to satisfy), failure
<br />of common carriers, Internet Service Provide rs, or other communication devices, acts of
<br />cyber criminals, terrorists or other criminals, acts of any governmental body (whether civil
<br />or military, foreign or domestic), failure or delay of third parties or governmental bodies
<br />from whom a party is obtaining or must obtain approvals, authorizations, license s,
<br />franchises or permits, inability to obtain labor, materials, power, equipment, or
<br />transportation, or other circumstances beyond its reasonable control (collectively
<br />referred to herein as "Force Majeure Occurrences"). Any such delays shall not be a
<br />breach of or failure to perform this Agreement or any part thereof and the date on which
<br />the obligations hereunder are due to be fulfilled shall be extended for a period equal to
<br />the time lost as a result of such delays.
<br />
<br />i. This Agreement and any Schedules or Exhibits attached thereto contain the entire
<br />agreement and understanding between the parties with respect to the subject matter
<br />hereof and supersedes any and all prior or contemporaneous proposals, discussions,
<br />agreements, Customer issued purchase order or d ocument of like intent or purpose,
<br />understandings, commitments, representations of any kind, whether oral or written,
<br />relating to the subject matter hereof. It is expressly agreed that if Customer issues a
<br />purchase order or other document for the services provided under this Agreement, such
<br />instrument will be deemed for Customer’s internal use only, and no terms, conditions or
<br />provisions contained therein shall have any effect on the rights, duties or obligations of
<br />the parties under, or in any way modify, this Agreement, regardless of any failure by
<br /> to object to such terms, conditions or provisions. This Agreement sets forth
|