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8.7 Arbitration. If any dispute arises between the parties to this Agreement, the
parties shall settle the dispute by binding arbitration in Hawaii. All expenses of
the arbitration including the arbitrator’s fee, the costs of a reporter and transcript
and the fees of an arbitration service, will be shared equally by the parties. Each
party shall pay its own attorney and witness fees. The decision of the arbitrator
shall be binding on both parties and no action may be brought in any court in
connection with this decision except as stated in The Federal Arbitration Act, 9
U.S.C., § 1 et seq.
8.8 Entire Agreement. This Agreement along with the signature page, attachments
and Companion Guides constitute the entire agreement between the parties.
8.9 Copyright. If a third party claims that Trading Partner infringes the third party’s
copyright with respect to Trading Partner’s use of an Electronic Data System,
HMSA shall defend Trading Partner against that claim at HMSA’s expense and
pay all costs, damages, and attorney’s fees that a court finally awards, provided
that (a) Trading Partner promptly notifies HMSA in writing of the claim and (b)
Trading Partner allows HMSA to control and cooperates with HMSA in the
defense of the claim and any settlement negotiations related to the claim. This
provision is HMSA’s entire obligation to Trading Partner regarding any claim of
infringement.
8.10 Trade Marks and Service Marks. Neither party grants to the other the right to use
its trademarks, service marks, trade names, or other designations in any promotion
or publication. Notwithstanding the foregoing, this provision does not affect any
rights HMSA may have under an applicable participating provider (or other)
agreement to use Trading Partner’s name, address and telephone number for the
purposes of communicating to HMSA Members, HMSA’s customers and other
parties in connection with the Trading Partner’s relationship with HMSA.
8.11 Assignment. Neither party may assign or otherwise transfer this Agreement
without the prior written consent of the other party and any attempt to do so is
void.
8.12 Governing Law. Except as otherwise indicated herein, this Agreement will be
governed by the laws of the State of Hawaii without reference to its conflicts or
choice of law provisions.
8.13 Force Majeure. Neither party shall be held liable for failure to fulfill its
obligations under the Agreement, if such failure is caused by flood,
communications failure, extreme weather, fire or other natural calamity, acts of
governmental agency, or similar causes beyond the control of such party.
8.14 No Waiver. Failure or delay on the part of either party to exercise any right,
power, privilege, or remedy hereunder shall not constitute a waiver thereof. No
provision of this Agreement may be waived by either party except by a writing
signed by an authorized representative of the party making the waiver.