NO WAY BE AFFECTED, IMPAIRED OR INVALIDATED, AND TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY SUCH PROVISION WILL BE RESTRICTED IN
APPLICABILITY OR REFORMED TO THE MINIMUM EXTENT REQUIRED FOR SUCH PROVISION TO
BE ENFORCEABLE.
THIS PROVISION WILL BE INTERPRETED AND ENFORCED TO GIVE EFFECT
TO THE ORIGINAL WRITTEN INTENT OF THE PARTIES PRIOR TO THE DETERMINATION OF SUCH
INVALIDITY OR UNENFORCEABILITY.
9.12
ARBITRATION.
ANY DISPUTE BETWEEN THE PARTIES HERETO WITH RESPECT
TO ANY CLAIM FOR INDEMNIFICATION OR OTHERWISE ARISING UNDER THIS AGREEMENT SHALL
BE RESOLVED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FOLLOWING PROVISIONS,
PROVIDED, HOWEVER, THAT EITHER PARTY MAY SEEK INJUNCTIVE RELIEF OR OTHER
EQUITABLE RELIEF TO PRESERVE THE STATUS QUO PENDING ARBITRATION.
(A)
EITHER PARTY TO THIS AGREEMENT MAY SUBMIT ANY DISPUTE THAT IS
SUBJECT TO ARBITRATION BY GIVING WRITTEN NOTICE TO THE OTHER PARTY HERETO.
WITHIN 30 DAYS AFTER RECEIPT OF SUCH NOTICE BY SUCH OTHER PARTY, THE PARTIES
HERETO SHALL MUTUALLY SELECT AN ARBITRATOR.
IF THE PARTIES ARE UNABLE TO AGREE
UPON SUCH SELECTION WITHIN SUCH 30 DAYS, THEN EITHER PARTY MAY, UPON AT LEAST
FIVE DAYS PRIOR WRITTEN NOTICE TO THE OTHER PARTY, REQUEST THE AMERICAN
ARBITRATION ASSOCIATION TO APPOINT THE ARBITRATOR.
THE AMERICAN ARBITRATION
ASSOCIATION MAY THEREUPON APPOINT THE ARBITRATOR.
THE ARBITRATOR SHALL BE
IMPARTIAL AND UNRELATED, DIRECTLY OR INDIRECTLY, SO FAR AS RENDERING OF SERVICES
IS CONCERNED TO EITHER OF THE PARTIES OR ANY OF THEIR RESPECTIVE AFFILIATES.
THE ARBITRATION SHALL BE CONDUCTED IN HOUSTON, TEXAS IN ACCORDANCE WITH THE
COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AS THEN IN
EFFECT, EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 9.12, AND THE ARBITRATOR
SHALL BE PAID ON AN HOURLY BASIS, EXCEPT AS OTHERWISE MUTUALLY AGREED.
(B)
THE ARBITRATOR SHALL INVESTIGATE THE FACTS AND MAY, IN HIS OR HER
DISCRETION, HOLD HEARINGS, AT WHICH THE PARTIES HERETO MAY PRESENT EVIDENCE AND
ARGUMENTS, BE REPRESENTED BY COUNSEL AND CONDUCT CROSS-EXAMINATION.
THE
ARBITRATOR SHALL RENDER A WRITTEN DECISION ON THE MATTER PRESENTED AS SOON AS
PRACTICABLE AFTER HIS OR HER APPOINTMENT AND IN ANY EVENT NOT MORE THAN 90 DAYS
AFTER SUCH APPOINTMENT.
THE DECISION OF THE ARBITRATOR, WHICH MAY INCLUDE
EQUITABLE RELIEF, SHALL BE FINAL AND BINDING
39
ON THE PARTIES HERETO, AND JUDGMENT UPON THE DECISION MAY BE ENTERED IN ANY
COURT HAVING JURISDICTION THEREOF.
IF THE ARBITRATOR SHALL FAIL TO RENDER A
DECISION WITHIN SUCH 90 DAY PERIOD, EITHER PARTY MAY INSTITUTE SUCH ACTION OR
PROCEEDING IN SUCH COURT AS SHALL BE APPROPRIATE IN THE CIRCUMSTANCES AND UPON
THE INSTITUTION OF SUCH ACTION, THE ARBITRATION PROCEEDING SHALL BE TERMINATED
AND SHALL BE OF NO FURTHER FORCE AND EFFECT.
THE PREVAILING PARTY SHALL BE
AWARDED REASONABLE ATTORNEYS' FEES, EXPERT AND NON-EXPERT WITNESS COSTS AND
EXPENSES INCURRED IN CONNECTION WITH THE ARBITRATION, AND THE FEES AND COSTS OF
THE ARBITRATOR SHALL BE BORNE BY THE NONPREVAILING PARTY UNLESS, IN EITHER CASE,
THE ARBITRATOR FOR GOOD CAUSE DETERMINES OTHERWISE.
IN RESOLVING ANY DISPUTE,
THE ARBITRATOR SHALL APPLY THE PROVISIONS OF THIS AGREEMENT AND