HAWAIIAN TELCOM WIRELESS CUSTOMER AGREEMENT Mahalo for choosing Hawaiian Telcom as your wireless services provider. Please carefully read this agreement, including the calling plan or plans you have chosen, before filing it in a safe place.
By utilizing Hawaiian Telcom’s wireless services or otherwise accepting as described below, you are bound by the terms and conditions of this Agreement covering important topics such as how long the Agreement lasts, fees for early termination and late payments, Hawaiian Telcom’s rights to change aspects of your wireless service, limitations of liability, privacy, and settlement of disputes by arbitration, among other terms and conditions. Upon your acceptance, this Agreement shall apply to all wireless services you receive from Hawaiian Telcom, including all of your existing wireless calling plans and other wireless lines in service.
Calling Plans, Features and Services
YOUR CALLING PLANS, THE TERMS AND CONDITIONS OF THEIR INCLUDED FEATURES, AND THE TERMS AND CONDITIONS OF ANY OTHER SERVICES YOU SELECT BECOME PART OF THIS CUSTOMER AGREEMENT. The prices and other fees you pay may depend in part on how long -- the minimum term -- you are agreeing in advance to do business with Hawaiian Telcom. Calling plans describe these prices and your minimum term. To the extent any condition in your calling plan expressly conflicts with this agreement, the condition in your calling plan will govern. If at any time you change your service, you will be subject to any requirements (such as a new minimum term) Hawaiian Telcom applies to that change. Calling plans, as well as the terms and conditions of their included features and the optional services you select, are set forth in Hawaiian Telcom brochures (or other comparable documents) and may also be found on our Web site, www.hawaiiantel.com and select the Wireless option.
Rights to Refuse or Cancel This Agreement
THIS AGREEMENT STARTS WHEN YOU ACCEPT.
Paragraphs marked "♦" continue after this Agreement ends. You accept when you take any of the following actions after an opportunity to review this Agreement:
IF YOU DO NOT WANT TO ACCEPT, DO NOT TAKE ANY OF THE ACTIONS OF ACCEPTANCE LISTED ABOVE.
- Provide a written or electronic signature;
- Communicate orally or electronically that you accept;
- Activate your service through your wireless phone;
- Open a package that says you are accepting by opening it; or
- Use your service.
You may cancel (if you are a new Hawaiian Telcom wireless customer) or revert to your prior service terms (if you are an existing Hawaiian Telcom wireless customer) without additional fees if you inform Hawaiian Telcom (and return in original condition and packaging any wireless phone you received with your new or changed service) WITHIN 14 CALENDAR DAYS
of accepting. You may be charged a restocking fee. You will still be responsible through the date of cancellation for the activation fee and any charges associated with the new or changed service. Any refunds will be made in the same form in which the product was originally paid for.
If you have purchased your equipment via the Hawaiian Telcom website or over the telephone and the equipment is shipped to you, you will receive a copy of your service agreement with the shipment. The same terms of acceptance and cancellation stated in the previous paragraphs apply regardless of how you purchased and received your equipment.
♦ Your Rights to Change or End Your Service; Termination Fees
Except as explicitly permitted by this Agreement, you are agreeing to maintain service with Hawaiian Telcom for your minimum term. Periods of suspension of service do not count towards your minimum term. After completion of the minimum term, you will become a month-to-month customer under this Agreement. YOU WILL BE OBLIGATED TO PAY HAWAIIAN TELCOM up to $200.00 PER WIRELESS PHONE NUMBER AS AN EARLY TERMINATION FEE IF YOU CHOOSE TO END YOUR SERVICE BEFORE BECOMING A MONTH-TO-MONTH CUSTOMER, OR IF WE TERMINATE IT EARLY FOR GOOD CAUSE. This fee applies to the extent permitted by law. If you buy your wireless phone from an agent or third-party vendor, you should check to see if they charge a separate termination fee. This termination fee may be deducted from any deposits or amounts prepaid by you, charged to your credit card, or billed to your account. In addition, the activation fee is non-refundable if you cancel within your minimum term.
For services initiated before May 1, 2009, termination fees are not pro-rated based on the duration of service received. Services initiated on or after May 1, 2009 are subject to Hawaiian Telcom’s prorated termination fee schedule, which is $200.00 through month 5 of term, decreasing $10 per month to a minimum $50 early termination fee. For services initiated on or after September 1, 2010,on Advanced Devices, your early termination fee will be $350 through month 5 of the term, decreasing $10.00 per month thereafter until the end of your agreement. Advanced Devices are defined as Smartphones, PDAs or Android devices and can be referenced at hawaiiantel.com.
Payment of any early termination fee does not satisfy other obligations owed to us, including term commitments with other lines or service/equipment charges.
All terminations during a monthly billing cycle become effective on the last day of that billing cycle. You will remain responsible for all fees and charges incurred until then and will not be entitled to any partial month credits or refunds.
Condition of Returned/Exchanged Items
The returned or exchanged item must be in original condition and packaging, with all included components, accessories, manuals and materials. The UPC code must be uncut from the packaging. You must present the original receipt with a matching ESN if the item is a device. For device exchanges, there is a limit of one exchange per line.
Phone Number Portability
You may be able to take, or "port," your current wireless phone number to another service provider. If you ask your new service provider to port a number from Hawaiian Telcom, and your new service provider notifies Hawaiian Telcom of that request, we will treat the request as notice from you to terminate the Hawaiian Telcom wireless service for your phone number upon successful completion of porting. You may not “port” your current wireless phone number if your account has been cancelled or suspended. You remain liable for charges incurred resulting from your service with us (or service with your former carrier in the event you are porting a phone number to Hawaiian Telcom service), including any termination fees. Once the porting is completed, Hawaiian Telcom service will be discontinued for the ported phone number. You will remain responsible for any early termination fee, and for all fees and charges through the end of that billing cycle, just like any other termination. If you are porting a phone number to Hawaiian Telcom from another company, some services such as 911 location services may not be immediately available. A fee of $25.00 will be charged for porting your wireless phone number from Hawaiian Telcom to another carrier.
Hawaiian Telcom’s Rights to Make Changes
Your service is subject to Hawaiian Telcom’s business policies, practices, and procedures, which we can change without notice to the extent permitted by law. UNLESS OTHERWISE PROHIBITED BY LAW, HAWAIIAN TELCOM CAN ALSO CHANGE PRICES AND ANY OTHER CONDITIONS IN THIS AGREEMENT AT ANY TIME BY SENDING YOU WRITTEN NOTICE PRIOR TO THE BILLING PERIOD IN WHICH THE CHANGES WOULD GO INTO EFFECT. IF YOU CHOOSE TO USE YOUR SERVICE AFTER THAT POINT, YOU ARE ACCEPTING THE CHANGES. IF THE CHANGES HAVE A MATERIAL ADVERSE EFFECT ON YOU, HOWEVER, YOU CAN END THE AFFECTED SERVICE, WITHOUT ANY EARLY TERMINATION FEE, JUST BY CALLING US WITHIN 60 DAYS AFTER WE SEND NOTICE OF THE CHANGE. EXCEPT TO THE EXTENT PROHIBITED BY LAW, CHARGES FOR PRODUCTS, SERVICES, OPTIONAL SERVICES, OR ANY OTHER CHARGES THAT ARE NOT INCLUDED IN YOUR MONTHLY RECURRING ACCESS RATE PLAN (SUCH AS DIRECTORY ASSISTANCE, ROAMING, DOWNLOADS AND THIRD-PARTY CONTENT) ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE, AND IF YOU CONTINUE TO USE THOSE SERVICES, OR YOU OTHERWISE ACCEPT THE CHANGES, THEN YOU AGREE TO THE NEW CHARGES. VISIT OUR WEBSITE OR, RETAIL LOCATIONS, OR CALL CUSTOMER CARE FOR CURRENT CHARGES.
Your Wireless Phone
Your wireless phone is any device you use to receive Hawaiian Telcom wireless voice or data service. It must comply with Federal Communications Commission regulations and be compatible with the network and your calling plan. At times Hawaiian Telcom may change your wireless phone's software or programming remotely and without notice. This could affect data you have stored on, or the way you have programmed, your wireless phone. There may also be times where we may need to reprogram, modify, or even substitute your wireless phone. In those cases, you agree to follow all instructions in delivering your wireless phone to us and accept these possibilities as conditions of receiving service. Your wireless phone may also contain software that prevents it from being used with any other company's wireless service, even if it is no longer used to receive Hawaiian Telcom service.
Your Wireless Phone Number and Caller ID
You do not have any rights in any personal identification number, e-mail address, IP address, or identifier we assign you (Hawaiian Telcom will inform you in the event of a change or reassignment). The same is true of your wireless phone number, except for any right you may have to port it. Your wireless phone number and name may show up when you call someone. You can block this "Caller ID" for most calls by dialing *67 before each call, or by ordering per-line call blocking (dialing *82 to unblock) where it is available. You cannot block Caller ID to some numbers, such as toll-free numbers.
How Service Works and Limits
The wireless service that Hawaiian Telcom provides to you is provisioned from another company with which we have contracted (the “Network Provider”). Wireless phones use radio transmissions, so we cannot provide service when your wireless phone is not in range of one of the transmission sites of the company that has agreed to carry Hawaiian Telcom customers' calls, or if there is not sufficient network capacity available at that moment. There are places, particularly in remote areas, with no service at all. Weather, environmental or atmospheric conditions, topography, buildings, your wireless phone and other conditions we do not control may also cause service to be temporarily interrupted, curtailed or otherwise limited, cause dropped calls or other problems. Coverage maps only approximate the currently available wireless coverage area outdoors; actual service area coverage and quality may vary and change without notice. There may also be gaps in service within the estimated coverage areas shown on coverage maps. HAWAIIAN TELCOM IS NOT LIABLE FOR ANY SERVICE LIMITATIONS, FAILURES OR OUTAGES, INCLUDING WITHOUT LIMIT, THE FAILURE OF ALERTS, 911 EMERGENCY PRIORITY ACCESS OR SECURE SERVICE CALLS TO BE CONNECTED OR COMPLETED, OR THE FAILURE TO PROVIDE ALERTS OR ACCURATELY LOCATE ANY 911 CALL.
Short Messaging Service
Due to the transmission method Hawaiian Telcom utilizes, your wireless phone number or similar identification or information may be transmitted over the Internet when using SMS. In addition, when utilizing text messaging, you agree to comply with all applicable laws and/or government agency regulations.
♦Charges and Fees
You agree to pay all access, usage, and other charges and fees billed by Hawaiian Telcom you or that the user of your wireless phone accepted, even if you were not the user of your wireless phone or did not authorize its use. These include Federal Universal Service Charges and Regulatory Charges, and may include other charges which to recover or defray costs that Hawaiian Telcom incurs in complying with various government regulations and initiatives.Hawaiian Telcom sets these charges. They are not taxes or other government-imposed assessment, are not required by law, are kept and used by Hawaiian Telcom in whole or in part, and are subject to change without notice. Hawaiian Telcom may require you to pay fees to begin service or reconnect suspended service. Usage charges may vary depending on where, when, and how you call. You have a home rate area and a local calling area (which may be different). When you call from inside a local calling area to somewhere outside of it, or call from anywhere outside a local calling area, there may be toll, regional calling, or long distance charges in addition to airtime (Hawaiian Telcom provides or selecst the long distance service for calls on the network). When you make a call inside your local calling area that uses a local phone company's lines (for example, a call to a typical home phone number), Hawaiian Telcom may charge landline or connection fees. Hawaiian Telcom charges airtime for most calls, including toll-free and operator assisted calls. Additional features and services such as operator or directory assistance, call dialing, calling card use, call forwarding, data calls, automatic call delivery, voice mail, text messaging, and wireless Internet access may have additional charges and may incur airtime charges. Features such as call waiting, call forwarding, or 3-way calling involve multiple calls and multiple charges.
♦Taxes, Fees and Surcharges Hawaiian Telcom Does Not Set
You agree to pay all taxes, fees, and surcharges set by the government. Hawaiian Telcom may not always give advance notice of changes to these items. If you are tax-exempt, you must provide your exemption certificates to Hawaiian Telcom and pay for any filings we make.
Roaming and Roaming Charges
You are "roaming" whenever you make or receive a call using a transmission site outside your home rate area or using another company's transmission site. Your wireless phone may sometimes connect to and roam on another company's network even when you are within your home rate area or local calling area. There may be extra charges (including charges for long distance, tolls, or calls that do not connect) and higher rates for roaming calls, depending on your calling plan. Hawaiian Telcom may terminate service if a majority of minutes in a given month is used while roaming off our Network Provider’s network.
International Roaming and International Roaming Charges
Free Nights and Weekends
Before you travel, contact us to see what data services will be available during your travels, as well as the rates and coverage area for these services. Based on your device, you can determine where you can expect to have coverage and the rates for services in each destination. We recommend you contact us before each of your trips as the coverage areas and rates for services are subject to change without notice. Some Services, such as domestic data applications, voice mail or call waiting, may not be available or work as expected while you are travelling. In addition, you should expect a delay in the charge for services while in international destinations. In some instances, this delay can be 60 to 90 days.
Please also note, 3G CDMA devices will have voice and data service when roaming in some destinations. Please be sure to turn data off in your settings menu if you do not plan on using data while roaming as additional charges will apply.
Voice Calls: Your domestic voice minutes do not apply while you are traveling internationally. When you make calls outside of the United States, you will be charged on a per minute basis. Visit hawaiiantel.com for the voice roaming rates for the country you will be traveling to.
Data Roaming: Depending on your device, you may be able to use data roaming while traveling outside of the United States. Your domestic data allowance does not apply while you are travelling outside of the United States. If you are planning to use data services while travelling outside the United States usage will be billed per MB. If you are not planning to use data services while you are traveling, you should turn them off before you travel outside the United States as many devices and applications transmit and receive data without user intervention and can generate unexpected charges. On certain devices you will still be able to make or receive calls, or send or receive messages, even with the data services turned off. You may also avoid data charges by using Wi-Fi service, where available, while you are travelling internationally. In some instances, data roaming charges can apply within your home vicinity if you are using data in a roaming area. Visit hawaiiantel.com for the international data roaming rates.
If your rate plan contains free nights and/or weekends, “night” is defined as the period between 9:01 p.m., and 6:59 a.m., and “weekend” is defined as the period between 9:01 p.m., on Friday and 6:59 a.m., on the following Monday. If you are on a free nights and/or weekends plan, Federal public holidays are also free (beginning the night preceding the holiday at 9:01 p.m., and ending the next day at 6:59 a.m.)
Your bill is Hawaiian Telcom’s notice to you of your fees and charges and other important information. You should read everything in your bill. You agree that Hawaiian Telcom may include charges for both communications-related and non-communications-related products and services on your bill. Hawaiian Telcom bills usage charges after calls are made or received. We bill access fees and certain other charges in advance. You can view your detailed bill online. Hawaiian Telcom will also send you a summary bill without call detail. A fee may apply to bill reprints.
How Your Bill is Calculated
Your bill reflects the fees and charges in effect under your calling plan at the time they are incurred. You may dispute your bill, but only within 60 days of the invoice date of the first bill containing the disputed call or charge. You must still pay any disputed charges until the dispute is resolved. Charges may vary depending on where your wireless phone is when a call starts. If a charge depends on an amount of time used, any fraction of a minute is rounded to the next full minute. Time starts when you first press "SEND" or the call connects to a network on outgoing calls, and when the call connects to a network (which may be before it rings) on incoming calls. Time may end several seconds after you press "END" or the call otherwise disconnects. For calls made on our Network Provider’s network, only calls that connect (which includes calls answered by machines) are billed. Calls you make or receive during a billing cycle are typically included in your bill for that cycle. Billing for airtime (including roaming) and related charges may occasionally be delayed. Delayed airtime may be applied in the month it appears on your bill against airtime included in your calling plan for that month, rather than against the included airtime for the month when you actually made or received the call. This may result in charges higher than you would expect in the later month. Data usage may be calculated on either a per kilobyte basis and rounded up to the next whole kilobyte, or on a per minute basis and rounded up to the next whole minute, or by specific service. Rounding occurs at the end of each session or each clock hour and, at that time, Hawaiian Telcom will deduct accumulated data usage from your plan, or assess overage or casual usage charges. You are responsible for all data activity from and to your phone/device, regardless of who initiates the activity. Estimates of data usage will vary from actual use. In certain instances, we may delete premium and non-premium items downloaded to available storage areas (e.g., personal vault), including any pictures, games, ringers or screen savers. Your invoice will not separately identify the number of kilobytes attributable to your use of specific sites, sessions or services used. Premium services (games, ringers, etc.) will be priced separately.
♦ Payments, Deposits, Credit Cards and Checks
Payment is due in full within 30 (thirty) days after closing the billing cycle, as stated on your bill. IF HAWAIIAN TELCOM DOES NOT RECEIVE PAYMENT IN FULL WHEN DUE, YOU MAY, TO THE EXTENT PERMITTED UNDER LAW, BE CHARGED A LATE FEE OF UP TO 1.5 PERCENT PER MONTH (18 PERCENT ANNUALLY), OR A FLAT $5 A MONTH, WHICHEVER IS GREATER, ON UNPAID BALANCES. HAWAIIAN TELCOM MAY ALSO CHARGE FOR ANY COLLECTION AGENCY FEES BILLED TO US FOR TRYING TO COLLECT FROM YOU. Hawaiian Telcom may require an advance deposit (or an increased deposit) from you, may impose a spending limit on your account or decrease it if your account already has a spending limit, or may change your payment due date based on credit qualifications. Please retain your evidence of deposit. You agree that Hawaiian Telcom can apply deposits, payments, or prepayments in any order to any amounts you owe us on any account. You cannot apply a deposit to pay any bill without the consent of Hawaiian Telcom. Unless otherwise required by law, final credit balances of less than five dollars are only refunded upon request. Hawaiian Telcom will not honor limiting notations you make on or with your checks. We may charge you $25 for any returned check or the highest charged allowed by law, whichever is less. If you wish to dispute a particular charge or call, we must receive notification within 60 days of the first bill containing the disputed item.
Suspension of Service
If you need to temporarily suspend your service, you may do so, up to a maximum of three (3) months at a time. You will be charged $5.95 per month while your phone is suspended, and you will be charged a $15 service fee to reactivate your service at the end of the period of suspension. Unless you are a month-to-month customer at the time you suspend your service, the minimum length of your contract will automatically be extended by the exact length of period of suspension.
Hawaiian Telcom may suspend your account under certain circumstances: (a) if your account spending limit has been reached or (b) if your deposit has been depleted or (c) if you are more than 30 days past due for your service payment (if you are a subscriber without a spending limit or deposit) or (d) if you are more than 5 days past due for your service payment (if you are a subscriber with a spending limit or deposit).
If Hawaiian Telcom suspended your service for reasons of late or non-payment, your service may be reinstated upon full payment of total balance accrued.
Change of Rate Plans
If you upgrade your rate plan (move to a plan with a higher base rate), there is neither a penalty or charge to you, nor an impact on your minimum term. If you wish to downgrade your rate plan (move to a plan with a lower base rate), your minimum term shall thereafter be based on the time remaining on your minimum term or twelve (12) months from the date of downgrade, whichever is greater. The new rate plan will become effective on the next billing cycle.
Lost or Stolen Wireless Phone
If your wireless phone is lost or stolen, you will not be liable for unauthorized airtime charges incurred on the lost or stolen phone if you: (a) notify us immediately; (b) ask us to deactivate the lost or stolen phone; and (c) provide within fourteen (14) days any documentation we request, including a police report. Even if you deactivate the lost or stolen phone, you must still fulfill the remainder of your term by activating a replacement phone (which may be at full price) to avoid early termination fees.
Hawaiian Telcom’s Rights to Limit or End Service or This Agreement
You agree not to resell Hawaiian Telcom’s service to anyone else without Hawaiian Telcom’s prior written permission. You also agree that your wireless phone will not be used for any purpose that is not allowed by this Agreement or that is illegal. TO THE EXTENT PERMITTED BY LAW, HAWAIIAN TELCOM MAY, WITHOUT NOTICE, LIMIT, SUSPEND, OR END YOUR SERVICE OR ANY AGREEMENT WITH YOU FOR ANY GOOD CAUSE, including, but not limited to: (a) paying late more than once in any 12 months; (b) incurring charges larger than a required deposit or account spending limit (even if we have not yet billed the charges); (c) harassing our employees or agents; (d) lying to us; (e) interfering with our operations; (f) becoming insolvent or going bankrupt; (g) breaching this Agreement; (h) "spamming," or other abusive messaging or calling; (i) modifying your wireless phone from its manufacturer's specifications; (j) providing credit information we cannot verify; (k) using your service in a way that adversely affects a network or other customers; or (l) allowing anyone to tamper with your wireless phone or phone number. We can also temporarily limit your service for any operational or governmental reason.
About Data Services & Content
Hawaiian Telcom’s data services and your wireless phone or other device may allow you to access the Internet, text, pictures, video, games, graphics, music, email, sound and other materials (“Data Content”) or send Data Content elsewhere. Some Data Content may be provided by us or our vendors, while other Data Content can be accessed from others (third party websites, games, ringers, etc.). You agree that neither we nor our vendors are responsible for any content, including information, opinions, advice, statements or services that are provided by third parties and accessible through your wireless phone or device. We make no representations or guarantees about accuracy, completeness, or usefulness of the information that may be obtained through your use of the data services. Data Content may be: (1) unsuitable for children/minors; (2) unreliable or inaccurate; or (3) offensive, indecent or objectionable. You are solely responsible for evaluating the Data Content accessed by you or anyone on your account. We strongly recommend you monitor data usage by children/minors. Data Content from third parties may also harm your device or its software. To protect Hawaiian Telcom’s network, services, and other customers, or for other reasons, we may place restrictions on accessing certain Data Content (such as certain websites, applications, etc.), impose separate charges, limit throughput or the amount of data you can transfer, or otherwise limit or terminate services. If Hawaiian Telcom provides storage for Data Content you have purchased, we reserve the right to delete the Data Content with notice or place restrictions/limits on the use of storage areas. You may not be able to make or receive voice calls while using data services.
Specific Terms & Restrictions On Using Data Services
Except where Hawaiian Telcom has specifically identified your selected service or device for the following purposes (for example, wireless routers, Data Link, etc.), you may not use our data services: (1) with server devices or host computer applications, or other systems that drive continuous heavy traffic or data sessions; or (2) as a substitute or backup for private lines or frame relay connections. Hawaiian Telcom reserves the right to limit or suspend any heavy, continuous web or data usage, including unlimited text messaging or other “unlimited” features that adversely impact our network performance or hinders access to our network. If your services include unlimited web or data usage, you also may not use your device as a modem for computers or other equipment, unless we identify the service or device you have selected as specifically intended for that purpose (for example, with “phone as modem” plans, , wireless router plans, etc.). Unlimited web or data usage is defined as 5 GB (5,120 MB) of web or data usage. Web or data usage in excess of this will be billed at the applicable per MB rate.
To the extent that a wireless phone directory is published, Hawaiian Telcom will not intentionally disclose your wireless phone number without your permission.
♦ Your Privacy
We have a duty under federal law to protect the confidentiality of information about the quantity, technical configuration, type, destination, and amount of your use of our service, together with similar information on your bills. This duty does not apply to your name, address, and wireless phone number. Except as provided in this agreement, we will not intentionally share personal information about you without your permission. We may use and share information about you: (a) so we can provide our goods or services; (b) so others can provide goods or services to us, or to you on our behalf; (c) so we or our affiliates can communicate with you about goods or services related to the ones you already receive (although you can call us any time if you do not want us to do this); (d) to protect ourselves; or (e) as required by law, legal process, or exigent circumstances. In addition, you have authorized us to investigate your credit history at any time and to share credit information about you with credit reporting agencies. If you ask, we will tell you the name and address of any credit agency that gives us a credit report about you. It is illegal for unauthorized people to intercept your calls, but such interceptions can occur beyond Hawaiian Telcom’s knowledge or control. For training or quality assurance, we may also monitor or record our calls with you.
We also do not guarantee that your wireless phone calls will be private or secure and we are not liable to you for any lack of privacy or security you may experience. In addition, if you use SMS, your wireless phone number or other similar identification or information may be transmitted over the Internet.
♦ Disclaimer of Warranties
HAWAIIAN TELCOM MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE CONCERNING YOUR SERVICE OR YOUR WIRELESS PHONE. WE CANNOT PROMISE UNINTERRUPTED OR ERROR-FREE SERVICE AND DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTIES ON OUR BEHALF. THIS DOES NOT DEPRIVE YOU OF ANY WARRANTY RIGHTS YOU MAY HAVE AGAINST ANYONE ELSE.
♦ Waivers and Limitations of Liability
UNLESS THE LAW FORBIDS IT IN ANY PARTICULAR CASE, HAWAIIAN TELCOM AND ITS CUSTOMERS EACH AGREE TO LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST THE OTHER TO DIRECT DAMAGES. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, PRODUCTS LIABILITY, OR ANY OTHER THEORY. THIS MEANS THAT NEITHER OF US WILL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. You agree Hawaiian Telcom is not liable for problems caused by you or a third party; by buildings, topography, network congestion, inadequate network coverage, tunnels, weather, or other things we do not control; or by any act of God. You also agree that Hawaiian Telcom is not liable for missed voice mails, or deletions of voice mails from your voice mailbox (if you have one), even if you have saved them. If another wireless carrier is involved in any problem (for example, while you roam), you also agree to any limitations of liability in its favor that it imposes.
♦Dispute Resolution, Mandatory Arbitration, and Class Action/Jury Trial Waiver
ARBITRATION. PLEASE READ THIS PROVISION CAREFULLY. IT MEANS THAT, EXCEPT AS NOTED BELOW, YOU AND HAWAIIAN TELCOM WILL ARBITRATE OUR DISPUTES. ANY CLAIM OR DISPUTE BETWEEN YOU AND HAWAIIAN TELCOM IN ANY WAY RELATED TO OR CONCERNING THIS AGREEMENT, OR THE PROVISION OF SERVICES OR PRODUCTS TO YOU, INCLUDING ANY BILLING DISPUTES ("CLAIM"), SHALL BE SUBMITTED TO FINAL, BINDING ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION ("AAA"). This agreement to arbitrate also requires you to arbitrate claims against other parties relating to services or products provided or billed to you, including suppliers of services and products and our retail dealers, if you also assert Claims against Hawaiian Telcom in the same proceeding. You and Hawaiian Telcom mutually acknowledge that this Agreement affects interstate commerce and that the Federal Arbitration Act and federal arbitration laws apply to arbitrations under the agreement.
BEFORE INSTITUTING ARBITRATION, YOU AGREE TO PROVIDE US WITH AN OPPORTUNITY TO RESOLVE YOUR CLAIM BY SENDING A WRITTEN DESCRIPTION OF YOUR CLAIM TO US AT HAWAIIAN TELCOM, 1177 Bishop St., Honolulu, Hawaii 96813, AND NEGOTIATING WITH US IN GOOD FAITH REGARDING YOUR CLAIM. IF WE ARE NOT ABLE TO RESOLVE YOUR CLAIM WITHIN 30 DAYS OF RECEIPT OF YOUR CLAIM, THEN YOU OR WE, INSTEAD OF SUING IN COURT, MAY INITIATE ARBITRATION PROCEEDINGS WITH THE AAA. YOU MUST SERVE OUR REGISTERED AGENT IN ORDER TO BEGIN ARBITRATION. ARBITRATION WILL BE CONDUCTED UNDER THE AAA'S PUBLISHED WIRELESS INDUSTRY ARBITRATION RULES AND SUPPLEMENTAL PROCEDURES FOR CONSUMER-RELATED DISPUTES, WHICH ARE AVAILABLE BY CALLING THE AAA AT 800-778-7879 OR VISITING ITS WEB SITE AT www.adr.org. The AAA has a fee schedule for arbitrations. You will pay your share of the arbitrator's fees and administrative expenses ("Fees and Expenses") except that: (a) for Claims less than $25, we will pay all Fees and Expenses; and (b) for Claims between $25 and $1,000, you will pay only $25 in Fees and Expenses, or any lesser amount as provided under AAA's Supplemental Procedures for Consumer-Related Disputes. You and Hawaiian Telcom agree to pay our own other fees, costs, and expenses, including those for any attorneys, experts, and witnesses. An arbitrator may only award as much and the type of relief as a court with jurisdiction in the place of arbitration that is consistent with law and this Agreement. An arbitrator may issue injunctive or declaratory relief but only applying to you and not to any other customer or third party. As a limited exception to the agreement to arbitrate, you and Hawaiian Telcom agree that: (a) you may take Claims to small claims court if your Claims qualify for hearing by such court; and (b) if you fail to timely pay amounts due, Hawaiian Telcom may assign your account for collection, and the collection agency may pursue in court claims limited strictly to the collection of the past due debt and any interest or cost of collection permitted by law or the agreement.
CLASS ACTION WAIVER. WHETHER IN COURT, SMALL CLAIMS COURT, OR ARBITRATION YOU AND WE MAY ONLY BRING CLAIMS AGAINST EACH OTHER IN AN INDIVIDUAL CAPACITY AND NOT AS A CLASS REPRESENTATIVE OR A CLASS MEMBER IN A CLASS OR REPRESENTATIVE ACTION. NOTWITHSTANDING THE SEVERABILITY CLAUSE BELOW, IF A COURT OR ARBITRATOR DETERMINES IN A CLAIM BETWEEN YOU AND US THAT YOUR WAIVER OF ANY ABILITY TO PARTICIPATE IN CLASS OR REPRESENTATIVE ACTIONS IS UNENFORCEABLE UNDER APPLICABLE LAW, THE ARBITRATION AGREEMENT WILL NOT APPLY, AND YOU AND WE AGREE THAT SUCH CLAIMS WILL BE RESOLVED BY A COURT OF APPROPRIATE JURISDICTION, OTHER THAN A SMALL CLAIMS COURT.
JURY TRIAL WAIVER. WHETHER ANY CLAIM IS IN ARBITRATION OR IN COURT (AS PROVIDED IN THIS SECTION), YOU AND WE WAIVE ANY RIGHT TO JURY TRIAL INVOLVING ANY CLAIMS OR DISPUTES BETWEEN YOU AND US.
♦ About You
You represent that you are at least 18 years old and have the legal capacity to enter into this agreement. If you are ordering for a company, you are representing that you are authorized to enter into this agreement and bind it, and agree to be personally liable for all accounts if you are not so authorized. Where the context requires, "you" means the company.
♦ About This Agreement
A waiver of any part of this agreement in one instance is not a waiver of any other part or any other instance. You cannot assign this agreement or any of your rights or duties under it without Hawaiian Telcom’s prior written permission. Hawaiian Telcom may assign all or part of this Agreement or your debts without notice, and you agree to make all subsequent payments as instructed. Hawaiian Telcom is then released from liability. NOTICES FROM HAWAIIAN TELCOM ARE CONSIDERED DELIVERED UPON SENDING BY E-MAIL OR FAX TO ANY E-MAIL OR FAX NUMBER YOU HAVE PROVIDED; OR THREE (3) DAYS AFTER MAILING TO THE MOST CURRENT BILLING ADDRESS ON FILE FOR YOU, IF BY US, OR TO THE CUSTOMER SERVICE ADDRESS ON YOUR MOST RECENT BILL, IF BY YOU. If any part of this Agreement, including any part of its arbitration provisions, is held invalid, that part may be severed from this Agreement. This Agreement and the documents to which it refers form the entire Agreement between you and Hawaiian Telcom on their subjects. You cannot rely on any other documents or statements on those subjects by any sales or service representatives, and you have no other rights with respect to service or this Agreement, except as specifically provided by law. This Agreement is not for the benefit of any third party except Hawaiian Telcom’s parents, affiliates, subsidiaries, agents, and predecessors and successors in interest. Except to the extent you and Hawaiian Telcom have agreed otherwise as to late fees and arbitration, this Agreement and disputes covered by it are governed by the laws of the State of Hawaii, without regard to the conflicts of laws rules of this state.