MANDATORY ARBITRATION OF DISPUTES.
ANY CLAIM, CONTROVERSY OR
DISPUTE OF ANY KIND BETWEEN THE CUSTOMER AND THE COMPANY
AND/OR ANY OF ITS EMPLOYEES, AGENTS, AFFILIATES OR OTHER
REPRESENTATIVES, WHETHER SOUNDING IN CONTRACT, STATUTE, OR TORT,
INCLUDING FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR
ANY OTHER LEGAL OR EQUITABLE THEORY AND REGARDLESS OF THE DATE OF
ACCRUAL OF SUCH CLAIM, CONTROVERSY OR DISPUTE SHALL BE RESOLVED
BY FINAL AND BINDING ARBITRATION AS PRESCRIBED IN THIS SECTION. THE
FEDERAL ARBITRATION ACT, NOT STATE LAW, GOVERNS THE QUESTION OF
WHETHER A CLAIM IS SUBJECT TO ARBITRATION. HOWEVER, NOTHING
CONTAINED IN THIS ARBITRATION PROVISION SHALL PRECLUDE THE
CUSTOMER FROM RESOLVING ANY CLAIM, CONTROVERSY OR DISPUTE IN
SMALL CLAIMS COURT HE OR SHE OTHERWISE WOULD HAVE THE RIGHT TO
PURSUE.
A single arbitrator engaged in the practice of law will conduct the arbitration. The
arbitrator will be selected according to the rules of CPR or, alternatively, may be
selected by agreement of the parties, who shall cooperate in good faith to select the
arbitrator. The arbitration will be conducted by, and under the then-applicable
rules of the CPR Institute for Dispute Resolution. All expedited procedures
prescribed by the applicable rules will apply. Any required hearing fees and costs
shall be paid by the parties as required by the applicable rules or as required by
applicable law, but the arbitrator shall have the power to apportion such costs as
the arbitrator deems appropriate. The arbitrator's decision and award will be final
and binding (subject to the appeal clause below), and judgment on the award
rendered by the arbitrator may be entered in any court with jurisdiction.
An appeal may be taken under the CPR Arbitration Appeal Procedure from any final
award of any arbitral panel in any arbitration arising out of or related to this
agreement that is conducted in accordance with the requirements of such Appeal
Procedure. Unless otherwise agreed by the parties and the appeal tribunal, the
appeal shall be conducted at the place of the original arbitration.
If any party files a judicial or administrative action asserting a claim that is subject to
arbitration and another party successfully stays such action or compels arbitration,
the party filing that action must pay the other party's costs and expenses incurred
in seeking such stay or compelling arbitration, including attorney's fees.
Notices.
You may get our current address for written notice by calling PCS Customer
Service Solutions. Written notice to you is sent to your last known address in our
invoicing records. Written notice is effective three days after deposit in the U.S.
mail, postage prepaid, and properly addressed. Unless required by this Agreement
or Applicable Laws, (1) you may notify us by calling PCS Customer Service Solutions,
and (2) we may notify you by leaving a message for you on your PCS Phone,
answering machine or with your answering service. Notice addresses may be
changed by giving notice as provided in this section.
Terms and Conditions & Warranty Information
167
e) traffic or other accidents, or any health-related claims allegedly arising from the
use of Services, phones, equipment or accessories used in connection with the
Services;
f) the use of Wireless Web Services and PCS Vision applications and services,
including the accuracy or reliability of any information obtained from the Internet
using Wireless Web Services or from Voice Portal Services, PCS Vision wireless
services or Internet services, content or applications not supported by Sprint PCS;
g) any late or failed message delivery;
h) any interruption or failure of 911 or E911 emergency services or identification
of the Number, address or name associated with any person accessing or
attempting to access emergency services from your phone;
i) the installation or repair of any products or equipment by parties who are not
our authorized employees or agents;
j) events due to factors beyond our control, including acts of God (including,
without limitation, weather-related phenomena, fire or earthquake), war, riot,
strike, or orders of governmental authority;
k) any act or omission of any third party or independent contractor that offers
products or services in conjunction with or through the Services; or
l) your negligent or intentional act or omission.
NO CONSEQUENTIAL OR OTHER DAMAGES.
UNDER NO CIRCUMSTANCES ARE WE
LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL
DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF OR IN
CONNECTION WITH PROVIDING OR FAILING TO PROVIDE SERVICES, PHONES
OR OTHER EQUIPMENT USED IN CONNECTION WITH THE SERVICES,
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, OR
COST OF REPLACEMENT PRODUCTS AND SERVICES. THIS SECTION SURVIVES
TERMINATION OF THIS AGREEMENT.
Indemnification.
You indemnify and defend us, our partners, directors, officers,
employees and agents from and against any claim, action, damage, liability and
expense arising out of or in connection with: (1) your acts or omissions that occur
in connection with your use of the Services or equipment used in connection with
the Services, and (2) any communications you make or receive using the Services.
This indemnification extends to and includes any attorney's fees and costs incurred
by us arising from any actions or claims to which this indemnification applies, or
from the contesting of the applicability of this provision. This section survives
termination of this Agreement.
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Terms and Conditions & Warranty Information
