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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.
Choice of Law; Jurisdiction.
This Agreement is governed by and must be
construed under federal law and the laws of the State of Kansas,
without regard to choice of law principles.
General.
If either of us does not enforce any right or remedy available
under this Agreement, that failure is not a waiver of the right or remedy
for any other breach or failure by the other party. Our waiver of any
requirement in any one instance is not a general waiver of that
requirement and does not amend this Agreement. This Agreement is
subject to any applicable federal and state law (collectively, "Applicable
Laws"). If any part of this Agreement is held invalid or unenforceable,
that part is interpreted consistent with Applicable Laws as nearly as
possible to reflect the original intentions of the parties and the rest of
this Agreement remains in full force and effect. Section headings are for
descriptive purposes only and are not used to interpret this Agreement.
You may not assign this Agreement to any other person or entity
without our prior written approval. This Agreement (including any
referenced documents and attachments) makes up the entire
agreement between you and us and replaces all prior written or spoken
agreements, representations, promises or understandings between you
and us. The provisions of this Agreement that are contemplated to be
enforceable after the termination of this Agreement survive
termination of this Agreement. If there is a conflict, the Service Plan
(including any Term Service Plan) controls over the Terms.
Safety/
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indemnification applies, or from the contesting of the applicability of
this provision. This section survives termination of this Agreement.
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.
