MANDATORY MEDIATION AND ARBITRATION. (i) Notwithstanding any other provision of this Agreement, all disputes, claims, or controversies arising out of or relating to this Agreement, or the negotiation, validity or performance hereof, that are not resolved by mutual agreement of the Parties first shall be submitted to a mandatory, non-binding mediation proceeding (“Mandatory Mediation”) held in Boston, Massachusetts, which Mandatory Mediation shall be conducted before a single mediator selected by Purchaser. The Parties covenant and agree that they will submit to and participate in such Mandatory Mediation in good faith prior to instituting arbitration pursuant to Section 12.11(f)(ii) with respect to any indemnification claim or other legal proceeding against any other Party. Unless otherwise agreed to by the Parties, all costs of the Mandatory Mediation shall be shared equally by the Sellers, on the one hand, and Purchaser, on the other. The “costs of the Mandatory Mediation” shall mean solely those fees and costs charged for the mediation proceeding and/or by the mediator. (ii) Notwithstanding any other provision of this Agreement, in the event of any controversy between the Parties hereto arising out of, or relating to, this Agreement, including any controversy concerning the negotiation, validity or enforceability of this Agreement and any dispute as to whether a particular controversy is subject to arbitration, but excluding any Patent Dispute (which shall be resolved as set forth in Section 8.2), which cannot be settled amicably by the Parties, such controversy or dispute shall be finally, exclusively and conclusively settled by mandatory arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (the “Rules”); provided that (A) notwithstanding the foregoing each Party hereto shall be entitled to seek a temporary restraining order and any other emergency injunctive relief, from a court of competent jurisdiction, restraining another Party from committing or continuing any violation of the provisions hereof until such time as the controversy is adjudicated in arbitration, and each Party waives any defense that a remedy at law would be adequate in any action or proceeding for specific performance or injunctive relief; and (B) monetary damages for any breach of this Agreement shall be determined pursuant to this Section 12.11(f). The controversy or dispute shall heard and determined by one independent arbitrator approved by the Sellers and Purchaser; provided that if the Parties have not selected an arbitrator within 30 days after the demand for arbitration is filed with the AAA, the arbitrator shall be appointed in accordance with the Rules. Either the Sellers or Purchaser may institute such arbitration proceeding by filing the required documents with the AAA and giving written notice to the other Party. A hearing shall be held by the arbitrator within 30 days of his or her appointment either remotely or at a location in Boston, Massachusetts that is mutually acceptable to the Parties. The decision of the arbitrator shall be final and binding upon all Parties hereto and shall be rendered pursuant to a written decision that contains a detailed recital of the arbitrator’s legal reasoning. Such written decision shall remain confidential among the Parties hereto, and the arbitrator may issue orders to protect the confidentiality of the proprietary information, trade secrets and other confidential information of the parties hereto. The prevailing party in any controversy or dispute shall be entitled to recover all reasonable costs relating thereto, including, without limitation, reasonable attorney’s fees and costs, administrative fees of the AAA and compensation and expenses of the arbitrator. Judgment upon the award rendered may be entered in any court having jurisdiction thereof pursuant to the Federal Arbitration Act, 9 U.S.C. § 1, et seq.
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