(1) PARTIES. This Agreement (“Agreement”) is between Alaska DigiTel, LLC (“Alaska DigiTel”) and the individual or organization (“Customer”) named on the Service Agreement for the purpose of providing wireless telecommunications services (“Service”).
(2) SERVICE. Service available to Customer’s receiving unit (“Handset”) is subject to transmission limitations caused by atmospheric or topographical conditions and the type and condition of Customer’s Handset. Service may be temporarily unavailable, refused, limited, interrupted, or curtailed due to governmental regulations or orders, system capacity limitations, equipment modifications, upgrades, relocations, repairs, and other activities necessary or appropriate for Service. In those locations where Alaska DigiTel is a reseller of wireless telecommunications services, Alaska DigiTel reserves the right to select or change the network service provider. Alaska DigiTel may impose credit, usage, or Service limits, suspend or terminate Service, or block categories of calls in its sole discretion to protect users and the business of Alaska DigiTel. Any attempt to abuse or to fraudulently use Alaska DigiTel’s Service by the Customer shall be deemed a material breach of this Agreement and may result in the immediate suspension or cancellation of Service.
(3) TELEPHONE ACCESS NUMBERS. Access to Service will be provided by means of a telephone number and/or IP address or email address (“Number”). Customer has no ownership right to, or interest in, a Number assigned to Customer. Alaska DigiTel reserves the right to change Numbers with no less than (10) days written notice to the Customer. Customer may not use or assign its Number to any other telecommunications device. Customer shall not program any other Number into Customer’s Handset(s).
(4) PAYMENT. Customer is responsible for payment of all fees for Service furnished. Customer shall be invoiced on a monthly basis to the address provided under subscriber information and will promptly notify the company in writing of any change of address. If the Customer is paying for Service by credit card, Customer authorizes Alaska DigiTel to charge the credit card for all amounts owed by Customer before and after termination of Service. Any invoice not paid on or before the due date shall be subject to a late payment fee as follows: the amount of any invoice unpaid after the date payment is due shall accrue interest until the date such amount is paid at the rate of 1.5% per month. Payment will be deemed made when received by Alaska DigiTel. If payment is not received in the full amount within five (5) days of the invoice due date, Alaska DigiTel may at its sole discretion and without limiting any other remedy available to it under the law disconnect Customer from Service. Customer may then be required to pay a reconnection fee for Service restoration. Customer shall be liable to Alaska DigiTel for any and all costs and fees, including reasonable attorney’s fees, associated with the collection of Service fees from the Customer. Any applicable sales, use, excise or other taxes, fees, regulatory costs, or fees related to regulatory costs or other costs or charges imposed on Alaska DigiTel or Customer as a result of providing the Service will be added to Customer’s charges. Customer must notify Alaska DigiTel of any disputed charges within sixty (60) days from the date of the first bill that contains the disputed charges or Customer will be deemed to have waived the right to dispute such charges.
(5) DEPOSITS. Alaska DigiTel may at its option require Customer to make a security deposit to be held by Alaska DigiTel as a guarantee of payment of fees for Service. Alaska DigiTel reserves the right to require Customer to make a security deposit at any time for continuation or restoration of Service. Unless prohibited by law, deposits received by Alaska DigiTel may be co-mingled with other funds and will not earn interest. Deposits do not affect Alaska DigiTel’s right to discontinue Customer’s Service for nonpayment of any fees. After discontinuation of Service, the security deposit or any remaining portion thereof will be refunded to Customer within ninety (90) days after payment of Customer’s final billing.
(6) TERM. This Agreement is in effect for the initial term (contract length) as indicated on the front of this Agreement and/or as long as Customer continues Service with Alaska DigiTel. Either Alaska DigiTel or Customer may terminate this Agreement for any reason upon giving written notice to the other party. Termination by Customer must be sent to Alaska DigiTel, P.O. Box 202129, Anchorage, Alaska 99501, effective on the date of receipt unless a later date is specified in the written notice. Termination of this Agreement shall not relieve Customer from the obligation to pay any and all outstanding fees including applicable early termination charges.
(7) CHARGES FOR EARLY TERMINATION OF SERVICE. A customer terminating their contract prior to the end of the fixed term is subject to a ONE HUNDRED SEVENTY FIVE DOLLAR ($175.00) per line early termination fee.
(8) LIMITATION OF LIABILITY AND INDEMNIFICATION. ALASKA DIGITEL MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE SERVICE OR HANDSET OR OTHER GOODS OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT ANY LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, WHETHER WRITTEN OR ORAL. ALASKA DIGITEL DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON BEHALF OF ALASKA DIGITEL. ALASKA DIGITEL SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR INTERRUPTIONS CAUSED BY FAILURE OF EQUIPMENT OR SERVICES INCLUDING WITHOUT LIMITATION THE FAILURE OF AN INCOMING OR OUTGOING CALL, INCLUDING A 911 EMERGENCY CALL TO BE CONNECTED OR COMPLETED OR FOR THE FUNCTIONALITY OF LOCATION SERVICES INCLUDING 911 LOCATION SERVICES; FAILURE OF COMMUNICATIONS, POWER OUTAGES OR OTHER INTERRUPTIONS; NOR SHALL ALASKA DIGITEL BE LIABLE FOR PERFORMANCE DEFICIENCIES CAUSED OR CREATED BY CUSTOMER’S EQUIPMENT. ALASKA DIGITEL SHALL NOT BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM THE USE OF THE SERVICE OR HANDSET. ALASKA DIGITEL IS NOT THE MANUFACTURER OF ANY HANDSET AND CUSTOMER UNDERSTANDS THAT THE ONLY WARRANTIES, IF ANY, RECEIVED BY THE CUSTOMER ARE WARRANTIES FROM HANDSET MANUFACTURERS AND NOT ALASKA DIGITEL. ALASKA DIGITEL SHALL NOT BE LIABLE TO CUSTOMER IF CHANGES IN OPERATION, PROCEDURES, OR SERVICES REQUIRE MODIFICATION OR ALTERATION OF CUSTOMER’S HANDSET. ALASKA DIGITEL SHALL NOT BE LIABLE TO CUSTOMER IF CUSTOMER MODIFIES OR ALTERS HANDSET. ALASKA DIGITEL SHALL NOT BE LIABLE FOR INJURIES TO PERSONS OR PROPERTY ARISING FROM THE INSTALLATION OR REPAIR OF ANY EQUIPMENT OR HANDSET BY ANY PARTIES WHO ARE NOT EMPLOYEES OF ALASKA DIGITEL. ALASKA DIGITEL SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, OR LOSS OF USE. ALASKA DIGITEL’S PERFORMANCE UNDER THIS AGREEMENT SHALL BE EXCUSED BY LABOR DIFFICULTIES, GOVERNMENTAL ORDERS, CIVIL COMMOTIONS, ACTS OF GOD, OR OTHER CONDITIONS OR CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL. THE LIABILITY OF ALASKA DIGITEL FOR ACTUAL PROVEN DAMAGES FOR ANY CAUSE WHATSOEVER WILL NOT EXCEED FEES FOR SERVICE DURING THE AFFECTED PERIOD. THIS PARAGRAPH SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
Customer agrees to defend, indemnify and hold Alaska DigiTel harmless from and against any and all claims, demands, actions, costs or damages arising out of Customer’s use of the Service or Handset in violation of this Agreement and Customer agrees to pay reasonable attorney’s fees and costs arising from any actions or claims arising out of this Agreement.
(9) NOTICES. Written notices to Customer shall be effective three (3) days following the date deposited in the U.S. Mail. Oral notices shall be deemed effective on the date reflected in Alaska DigiTel’s records. Written notices will be addressed to the Customer’s last known address. Customer is responsible for notifying Alaska DigiTel of any changes in address.
(10) AGREEMENT. Alaska DigiTel may modify this Agreement and/or increase the charges for Service (even if Service is paid for in advance) at any time upon notice to Customer. Customer may, upon receipt of such notice, terminate Service without incurring a cancellation fee. Failure to terminate Service within fourteen (14) days after the date of the notice of the modification by Alaska DigiTel will mean Customer agrees to such modification and/or increase. No hand-marked changes or oral changes to this Agreement will be valid unless Alaska DigiTel accepts the changes in writing. If Customer is a company or other entity, the person signing this Agreement acknowledges he is authorized to enter into this Agreement and if payment is not made by Customer on amounts due and owing hereunder, such signer agrees to pay such amounts. The invalidity of any portion hereof shall not affect the remaining portions. The masculine, feminine or neutral gender, and the singular or plural number shall be deemed to include the others wherever the context so indicates. Alaska DigiTel may assign this Agreement without prior notice to Customer and upon such assignment Alaska DigiTel shall be released from all liability hereunder. Customer may assign this Agreement only upon Alaska DigiTel’s prior written consent. The following provisions shall survive any termination of this Agreement: paragraphs 2, 5, 4, 8, 10, and 11.
(11) ARBITRATION. All claims or disputes arising under this Agreement and/or the provision of Handsets and other goods and services shall be submitted to final binding arbitration in accordance with the then prevailing Wireless Industry Arbitration Rules of the American Arbitration Association and Customer waives any right to a jury trial and any right to pursue or participate as a plaintiff or as a class member in claims on a classwide, consolidated, or representative basis.
(12) GOVERNING LAW. This Agreement shall be governed and enforced pursuant to the laws of the State of Alaska.
CUSTOMER ACKNOWLEDGES THAT THIS IS A BINDING AND ENFORCEABLE AGREEMENT, THAT IT IS EXECUTED BY AN AUTHORIZED SIGNATORY OF RECIPIENT AND THAT RECIPIENT HAS RECEIVED A COPY OF THIS AGREEMENT.