Hawaii OnLine - Terms of Service

Terms of Service

Agreement - This Agreement, by and between Wavecom Solutions, Inc./Hawaii Online ("HOL"), and the Customer of HOL consumer Internet services ("Customer"), sets forth the Terms & Conditions under which certain Internet-related telecommunications services are provided to Customer by HOL.
Description of Services - These Terms and Conditions cover the provision by HOL, and acceptance and use by Customer, of any one or more of the following Internet services ("Service" or "Services"): (1) Dialup modem access to the Internet, (2) DSL access to the Internet, (3) POP/IMAP/Web Email services, (4) Virtual Web & Email hosting and (5) Domain Name Hosting and Domain Name Services (DNS). A full description and current pricing of these products can be found at the HOL website, http://www.aloha.net.
Commencement and Term - This Agreement becomes legally binding upon the date of Service activation, which is the day on which HOL notifies Customer that the Service is available for use. The term of Service shall be month-to-month unless otherwise stated in writing
Contract- The reading and acknowledgement of these Terms and Conditions will constitute a binding agreement by and between Customer and HOL. Acknowledgement may be effected in any of the following manners:
1. by Customer's dated signature on a paper copy of same,
2. by electronic agreement via clicking the "I Agree" button on an HTML representation of this document on any of the HOL websites, or
3. by actual use of the specified Service, as indicated by HOL records and logs.
Termination by HOL - HOL may terminate this Agreement or suspend Services with prior written notice, upon: (a) Customer's failure to pay any amounts as provided in this Agreement, (b) Customer's breach of any provision of this Agreement or any law, rule, or regulation governing the Services, (c) any insolvency, bankruptcy, assignment for the benefit of creditors, appointment of trustee or receiver or similar event with respect to Customer; or (d) any governmental prohibition or required alteration of the Services. HOL may terminate or suspend Services without notice, if: (a) necessary to protect HOL's network, (b) HOL has reasonable evidence of Customer's fraudulent or illegal use of the Services or breach of Section 3, or (c) required by legal or regulatory authority. Any termination shall not relieve Customer of the obligation to pay any charges incurred hereunder prior to such termination or for unaffected Services.
Termination by Customer - This is a month-to-month agreement and Customer may cancel at any time, with obligation to pay only through the end of the month in which cancellation occurs. Cancellation Policy: To cancel your Service with HOL, call the number on your billing statement. You will be given a confirmation number. Your cancellation is not valid without a confirmation number. For security reasons we must confirm the identity of those requesting cancellations. DO NOT SEND E-MAIL. Upon cancellation, your account will be terminated at the end of your monthly billing cycle. You are still responsible for usage and other surcharges incurred until the account is terminated. Prepaid monthly fees are not refundable.

General

Assignment - Neither party may assign this Agreement without the written consent of the other party, except that HOL may assign its rights and/or obligations: (a) to any subsidiary, parent company or affiliate of HOL; (b) pursuant to any sale or transfer of substantially all its assets, (c) pursuant to any financing, merger or reorganization of HOL.
Confidentiality - Each party agrees to maintain in strict confidence all plans, designs, drawings, trade secrets, and other proprietary information of the other party which is disclosed pursuant to this Agreement. Neither party shall use the other's name, trademark or service mark in press releases or marketing collateral without the prior written consent of the other party.
Disclaimer - OTHER THAN AS SPECIFICALLY STATED IN THIS AGREEMENT, THERE ARE NO WARRANTIES, REPRESENTATIONS OR AGREEMENTS, EXPRESSED OR IMPLIED EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability - HOL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF, OR RELATED TO, THE PROVISION OF SERVICES UNDER OR OTHERWISE ARISING OUT OF THIS AGREEMENT, INCLUDING ANY CLAIMS MADE BY OR THROUGH THIRD PARTIES, EVEN IF HOL IS INFORMED OF THEIR POSSIBILITY. UNDER NO CIRCUMSTANCES SHALL HOL'S LIABILITY OF ANY KIND EXCEED THE CHARGE FOR ONE MONTH OF SERVICE.
Indemnification - Customer shall indemnify, defend and hold HOL harmless from, and against, all losses or damages arising from, or related to, injury to persons and property arising from Customer's, or its employees', agents' or contractors' negligence, willful misconduct, or breach of this Agreement including, but not limited to, violations or infringements of copyrights, or other intellectual property rights of third parties.
Governing Law - This Agreement shall be governed by the laws of the State of Hawaii, and any and all disputes arising from this Agreement shall be brought solely within the City and County of Honolulu, Hawaii, except as to claims properly brought before the FCC or a state regulatory authority.
Severability - If any provision of this Agreement is held by a court or other governmental entity to be invalid, void, or unenforceable, the remainder of this Agreement nevertheless shall remain unimpaired and in effect.
Entire Agreement - This Agreement sets forth the full agreement of the parties with respect to the subject matter of this Agreement, and supersedes any prior agreement or understanding.
Notice - Whenever written notice is required to be provided by this Agreement, HOL shall provide such notice to the Customer's billing address or email address and Customer shall provide such notice to HOL at 737 Bishop St. Suite 1900, Honolulu, HI 96813, Attn: Manager
Software and Licenses - No licenses or property interests, including, but not limited to, intellectual property interests, express or implied, are granted by HOL pursuant to this Agreement. HOL is not responsible for the installation, maintenance, compatibility or performance of software used in conjunction with the Services. HOL may require Customer to sign a separate license agreement for any software which may be provided by HOL. HOL does not warrant that the software and/or Service will meet Customer's requirements, that operation of the software and/or Service will be uninterrupted or error-free, or that the software and/or Service will be restored. HOL is not responsible for problems caused by changes in the operating characteristics of computer hardware or computer operating systems. HOL has no responsibility to replace or refund the license fee or purchase price of media damaged by accident, abuse, or misapplication.

Acceptable Use Policy

Customer shall not abuse the Service or the Internet in any way or conduct any illegal or inappropriate activities with Customer's account, including but not limited to, spamming, harassment, hacking, violation of intellectual property rights laws, libel laws, slander laws, obscenity laws, pornography laws, invasion of privacy laws or indecency laws. Customer's account may be terminated immediately without notice by HOL personnel if such violations are detected. Customer is solely responsible for any works (writings, files, pictures, or any other work) that Customer posts or transmits using any of HOL's services: email, conferencing, the World Wide Web, USENET, FTP transfer, instant messaging, MUSE, MUD or any similar interactive environment or any other service that allows interaction or dissemination of information. For example, if Customer desires to post, transmit or store a copyrighted work, Customer is responsible for obtaining, monitoring and enforcing the copyright holder's permission.

Customer agrees to provide his/her actual, legal name when signing up for service, whether by telephone, web form or paper/fax form. HOL does not permit anonymous accounts. Customer also agrees that he/she may not transmit any message under a false name or by means of any other person's email address. Users may not store files outside of their designated directories. Users are strictly prohibited from any activity that compromises the security of HOL's facilities. Users may not run IRC "bots" or any other scripts or programs not provided by HOL. Users are responsible for knowing and following acceptable Internet use policies. Dial-up connections may be dropped for inactivity or excessive duration, but can be immediately re-established.

HOL reserves the right to refuse to provide a Service to anyone, with or without cause. If Customer is a merchant, an Internet Service Provider, or any business providing access to end-users, Customer shall be responsible for its end-users who use the Services and shall be required to immediately terminate Service to any end-user who violates any provision of this Agreement. It is Customer's sole responsibility to inform its end-users of their obligations in using the Services. HOL may terminate Services to Customer if Customer fails to terminate Service with its end-user(s) who have violated this Agreement after notification by HOL.

HOL reserves the right to monitor Customer actions when necessary to help Customer or to protect itself or other users or systems. Any use of the Service that disturbs the normal use of the system by HOL or by other HOL customers or consumes excessive amounts of memory or CPU cycles for long periods of time may result in termination pursuant to Section 1 of this Agreement.

Customer shall not engage in the origination or transmission of Unsolicited Commercial Email (UCE) or spam. Spamming means any instance where Customer or other user of Customer's access account sends one or more postings, messages, emails, or any other digital or electronic communication to one or more unsolicited recipients. Customer agrees that spamming causes HOL and the recipient to incur unintended extra costs for network services and may violate laws and regulations. Customer shall not cause, release or perpetuate the existence of any virus or similar contaminating or destructive device in any form.

HOL is not responsible for Internet content, activity, or availability of specific resources. Some materials may be offensive to some Customers. Customer expressly agrees that any use of Customer's account by an individual younger than eighteen (18) years shall be solely the responsibility of Customer. HOL and Customer agree that the terms and conditions of this Acceptable Use Policy are reasonable and necessary for HOL to be able to provide Services and to protect the proper, efficient functioning of the Internet. In all instances, HOL's interpretation of the Acceptable Use Policy terms and conditions shall control.

Payment and Billing

Customer agrees to the following terms and conditions:

General - (i) To pay the charges that appear on Customer’s credit card, direct debit account, or invoice based on the pricing plan Customer has selected within the payment terms of HOL; (ii) to pay all surcharges for usage-based services such as, but not limited to nationwide 800 dial-up access, web site traffic surcharges (if any), disk space surcharges (if any), or any other surcharged service; (iii) that the monthly Service fee is billed monthly in advance regardless of usage; (iv) that the Service fees are not refundable; (v) to pay all fees regardless of the ability of HOL to bill and/or collect; (vi) that after any trial period, Customer will notify HOL in writing or by calling the sales department during business hours at least 24 hours prior to the end of the trial period if Customer does not wish to continue Service; (vii) to notify HOL within 60 days of any billing discrepancy and agrees to be responsible for all billed fees if Customer fails to notify HOL within 60 days that a discrepancy exists.
Payment- Recurring charges will be invoiced monthly, in advance. Billing for recurring charges will begin on the date of Service activation. Non-recurring charges, if any, will be invoiced prior to initiating Service. HOL reserves the right to conduct credit verification or require a deposit at any time. The monthly and non-recurring charges do not include applicable taxes, fees and/or surcharges. Such taxes, fees and/or surcharges will appear on Customer's invoice and will be due in the same manner as all other amounts owed.
All amounts owed are due and payable upon receipt of the invoice, regardless of whether or not Customer uses the Service. HOL reserves the right to charge a Late Payment Charge of $5.00, or the highest rate allowed by law, on all past due amounts. Past due amounts are those amounts not paid within twenty (20) calendar days of the invoice date, unless otherwise provided by state law. A charge of $25 will apply to a returned check or not sufficient funds check. If Customer suspects an error in the invoice, Customer must notify HOL within sixty (60) days of the invoice date, unless otherwise permitted by state law. Customer authorizes HOL to charge any amounts due from or to Customer in connection with purchases or sales to the registered credit card identified by Customer at the time such purchase or sale is ordered, subject to the terms and conditions of the agreement between Customer and the credit card issuer. Customer's right to use the Services provided under this Agreement is subject to any limits established by Customer's credit card issuer.
Credits - A credit allowance may be made when a Service interruption occurs because of a failure of any facilities, equipment or personnel furnished by HOL, subject to the following conditions. A Service interruption will be deemed to have occurred only where the interruption is not the result of: (i) the act of, or failure to act by, Customer or its agents; (ii) the failure or malfunction of non-HOL equipment or systems, including the negligent acts of other common carriers; or (iii) a Service interruption caused by Service maintenance, alteration or implementation requested by Customer. In no event shall such credit amount to more than the charge for one month of Services. The foregoing states Customer's sole remedy for Service interruption under this Agreement.
Additional Billing Information- To obtain billing information on your account, please call the number on your billing statement or write:
Wavecom Solutions, Inc./Hawaii Online
Attn: HOL Billing
1132 Bishop St. Suite 800
Honolulu, HI 96813
Change of Customer Information - Customer agrees to inform HOL promptly if there is any change in the information that Customer provides to HOL, including change of address and any credit, debit, or charge card numbers and expiration dates. Customer shall remain responsible for any unauthorized use of the Services occurring on Customer's account.

Additional provisions for specific products/services

DSL Service- The following terms and conditions apply to DSL Service:
1. HOL DSL Service uses DSL transport services provided by the local Hawaiian Telcom telephone company. Customer will be billed with a single bill by HOL for both the Hawaiian Telcom DSL conditioning and the HOL Internet access. However, Customer is still responsible directly to Hawaiian Telcom for payment of the monthly charges for the basic residential or business telephone line itself. If Customer makes any changes (such as a cancel or move order) through Hawaiian Telcom to the telephone line/number on which the DSL transport is provided, DSL capability will be automatically terminated and cannot be reinstated without a new order.
2. A business DSL Customer may not resell the DSL Service, use it for high volume purposes, or engage in similar activities that constitute resale (commercial or non-commercial), as determined solely by HOL.
3. Multiple computers/devices may be connected within a single home or office location to the DSL modem and/or router to access the Service, but only through a single DSL account and a single IP address obtained from HOL.
4. HOL will provide a suitable DSL modem free of charge if available and requested by Customer, subject to the return policy stipulated in subparagraph viii below. Alternatively, Customer may pay for a DSL modem and not be under any obligation to return such modem upon early termination of service. In addition, Customer is solely responsible for obtaining, installing, configuring, and maintaining all other required hardware and software, including any necessary system or software upgrades, patches or other fixes, which are or may become necessary to access the Service and to operate Customer's computer.
5. A residential DSL Customer has no static public IP addresses and will depend on the Dynamic Host Control Protocol (DHCP) for its IP addressing needs. A business DSL Customer will receive a minimum of one static public IP address for its system. Business DSL Customers may also purchase the use of additional public IP addresses (in blocks of 5, 13 or 29 only) for an additional monthly fee.
6. DSL bandwidth is provided on a per-line basis and the speed and bandwidth available to each computer or device connected to the network will vary depending upon the number, types and configuration of devices using the Service and the type of use (e.g., streaming media or downloading large files, etc.), network or Internet congestion, and/or the condition of Customers telephone line and the wiring inside Customers location, among other factors. Use of the DSL Service to host a dedicated or commercial server (such as a mail server or web server) will be at Customer own risk. HOL cannot guarantee any specific bandwidth or throughput in excess of the advertised Committed Information Rate (CIR) for the bandwidth provided, which is a fixed amount governed by the local DSL transport provider.
7. DSL Service provides only for packet data transport, and specifically does not include any additional Internet services such as mail hosting, SMTP service, web hosting, domain name hosting, DNS services. These additional Internet services may be included within a "DSL package" at full charge, a discounted charge, or no charge for billing purposes, but they are not functionally a part of DSL Service.
8. If DSL Service is terminated by Customer prior to the end of one year of Service and Customer received a DSL modem at no charge from HOL, Customer will be required to return the DSL modem to HOL. HOL will provide Customer with a pre-paid mailing label and instructions for the return of the DSL modem. Failure to do so will result in an additional equipment charge. This additional charge will be the unamortized value of the modem calculated as follows: original retail cost of the modem plus HOLs cost of shipping it to Customer, divided by 12 months, times 12 minus the number of months already used since inception of DSL Service. DSL modem costs vary but, as an example, if the original cost of the modem was $100 and the HOL shipping cost was $5.00 and the DSL was in service for 7 months, then the additional equipment charge upon early cancellation would be: ($100 + $5) /12 x (12mo - 7mo) = $8.75 x 5 = $43.75.
Website Hosting, Storage and Data Transfer - Web hosting, storage and data transfer (web traffic), or any related service is provided according to the rates published on the applicable website (http://www.aloha.net, http://mahiai.aloha.net). HOL provides two types of web hosting: (i) personal webpage hosting is provided at no extra charge to every customer who maintains a dialup access account. Storage space is limited to 20 Mb, the URL for this type of web hosting is, by definition, http://www.aloha.net/~username, and there is no linkage of a domain name; (ii) virtual web and email hosting is provided for other customers who require more robust web services. HOL will not be responsible for maintenance of any content, which will be provided and maintained solely by Customer. HOL reserves the right to disable and/or cancel any website at its sole discretion. Customer shall remain responsible for the security of all accounts of its customers, including, without limitation, credit card, financial, and related information. HOL advises Customer to secure its computer equipment and access its account so that only authorized users can gain access to its account. Customer agrees to pay any and all charges incurred by Customer or its clients for any purchase or sale made through use of the Services and all applicable taxes relating to the use of Services by Customer and its clients. Customer understands that HOL does not guarantee or warrant in any way any products and services that may be purchased from third parties using Service provided under this Agreement , or that files available for downloading will be free from infective viruses, worms, Trojan horses or other code containing contaminating and destructive properties. Customer is responsible for implementing sufficient procedures and checkpoints to satisfy its particular requirements for accuracy of data input and output, and for maintaining a means external to the Services provided under this Agreement for the reconstruction of any lost data. Customer understands and agrees that HOL is providing only a mechanism by which credit cards are processed, and does not actually process credit card transactions.
Domain Name Hosting and DNS Services - HOL may assist, when requested by Customer, in registering a domain name with a recognized domain name registrar (such as Network Solutions, Inc. or other official IACC-sanctioned registrar) but in no event will HOL actually register a domain name in behalf of Customer. Customer understands and agrees that HOL is not responsible for the availability (current or future) of any domain name, and that any fees for establishing and maintaining domain name registration will be billed directly to Customer by the domain name agency (Network Solutions, Inc. or other official domain registrar). It is Customers sole responsibility to pay all fees relating to the registration and maintenance of domain names and to maintain records of the expiration of domain name registration. Customer further agrees to be bound by the terms and conditions of the domain name registration agency. HOL will host a Customers domain name on its nameservers and provide normal DNS services for web hosting and mail services in accordance with the product definition and pricing information found at http://www.aloha.net and http://mahiai.aloha.net. In no event will DNS be provided to link a domain name to a personal website on aloha.net, nor to link a second domain name to a page subsidiary to the main index page of a primary domain name.

Internet Usage

Customer agrees that, except for information, products, services or information clearly identified as being supplied by HOL, HOL does not supply, control or endorse any products, services or information that may be offered on the Internet or accessed using the Services purchased under this Agreement in any way. HOL assumes no liability for any products or Services that may be purchased or sold by means of the Services provided under this Agreement or for any information that may be contained in the websites on which such products or services may be offered. Any questions, comments or complaints regarding any products or services that are purchased by means of the Services provided under this Agreement should be directed to Customer as the seller of the product or service, and not to HOL.