Purchase Order Terms & Conditions

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Purchase Order Terms and Conditions

STANDARD TERMS & CONDITIONS
FOR GOODS AND SERVICES
FOR HAWAIIAN AIRLINES, INC.

DEFINITIONS. Whenever used herein:
1. "HAWAIIAN" means Hawaiian Airlines, Inc., a Delaware corporation, with 3375 Koapaka St., Ste. G350, Honolulu, HI 96819 as its mailing address.
2. "CONTRACT" means these Standard Terms & Conditions, the Statement of Work or “SOW,” any Purchase Order or “PO” (if applicable), and any written modifications covering the specifications, scope of work, performance of the services, or providing the goods.
3. “HAWAIIAN REPRESENTATIVE” means an authorized representative for Hawaiian, including, but not limited to the Vice President and/or director(s) of Hawaiian or its designated representative requesting or ordering the goods or services specified under the Contract.
4. "CONTRACTOR" means the individual or entity duly entering into the Contract with Hawaiian in connection with these Standard Terms & Conditions.
5. "COMMENCEMENT DATE" means the commencement date for work or delivery designated in the SOW or a PO issued by Hawaiian, after execution of the Contract by a Hawaiian Representative.
6. “PURCHASE ORDER” or “PO” means the written authorization requesting a Contractor to furnish goods or services to Hawaiian as specifically provided therein.
STANDARD TERMS & CONDITIONS INTENDED TO COVER. These Standard Terms & Conditions are intended to cover the furnishing and paying for goods and/or services called for in the Contract. Whenever separate writings executed by the parties are referenced or attached hereto, they shall be considered a part of the Contract as if contained and incorporated herein.
CONFLICT. If there is any conflict in provisions, the order of priority as to which provision governs is as follows: (a) the SOW, (b) the PO, and (c) these Standard Terms and Conditions.
ACKNOWLEDGEMENT AND ACCEPTANCE. The offer contemplated by the Contract is not binding on Hawaiian until Contractor executes the Contract or starts to perform in accordance to the Contract. The offer will lapse if, within seven (7) days after receiving the offer, Contractor does not execute the Contract or provide written notice that it has commenced performance. Hawaiian may withdraw the offer any time before it is accepted by Contractor.
COMMENCEMENT DATE. Unless otherwise agreed to in the SOW, after the Contract is signed by a Hawaiian Representative, Hawaiian will issue to Contractor a written PO or SOW establishing the Commencement Date. Should the Contractor begin work prior to the Commencement Date, such work shall be considered as having been done at the Contractor's own risk and expense as a volunteer and no payment will be owed to the Contractor for such advance work under the Contract or in quantum meruit (unjust enrichment). Payments for such advance work will only be made if authorized in writing by a Hawaiian Representative.
ACCEPTANCE OF DELIVERABLES. The goods or services, shall be performed, completed or delivered at such particular location designated and in the manner directed on or before the due date specified by Hawaiian in the Contract. Subject to any act or omission on the part of Contractor or for such reasons listed in the Force Majeure provision of the Contract, Hawaiian shall, in its sole discretion, have the right to cancel, reduce the quantity of its goods, or extend the due date of the Contract. To request an extension, Contractor shall provide a written request for extension of time before the expiration of the due date and include other documents substantiating the causes of such delay. Such extension, if granted under the sole discretion of Hawaiian, shall not be deemed a waiver of the right to terminate the Contract for other or additional delays not covered by the specific terms of such extensions(s).
INVOICES. Each invoice must show Hawaiian's PO number, any other pertinent information (including taxes), and, if applicable, financial incentives and penalties due based upon Contractor’s performance under the Contract. All invoices must be submitted within thirty (30) days of delivery or completion of service or shall be void at Hawaiian’s discretion and subject to non-payment. Hawaiian will pay invoices that are properly presented and not subject to dispute, within thirty (30) days after receiving an invoice. Invoices that are in dispute and later resolved between the parties shall be paid within thirty (30) days from the date of resolution. Invoices shall be sent and addressed or e-mailed as follows:

Address:
Hawaiian Airlines, Inc.
Attention: Accounts Payable
P.O. Box 29906
Honolulu, HI 96820

Email:
AP.Invoices@hawaiianair.com

Invoices may also be completed by an agreed upon e-billing process.
RECEIVING INSPECTION. All goods or services received by Hawaiian are subject to inspection and acceptance or rejection. Hawaiian shall not be deemed to have accepted any goods or performances of any service until Hawaiian has had a reasonable time to inspect the goods or services. Unless Hawaiian has given notice of Termination for Cause pursuant to the Contract, following the notification of any rejected goods or services, Contractor shall promptly replace or correct, at its option and expense, the goods or services rejected with goods or services of suitable quality within a reasonable time.
RISK OF LOSS. All goods shall be properly packed and secured to reach their destination in good condition. Risk of damage to or loss of the goods shall pass to Hawaiian only on acceptance by Hawaiian that the goods are in accordance with the Contract and provided that such goods are in the possession of Hawaiian.
REPRESENTATION. Contractor represents and warrants that (a) Contractor has the right to enter into this Contract to fully perform its obligations, (b) Contractor is not a party to, and is not bound or subject to, any instrument that would be breached as a result of execution or performance of the Contract, and (b) Contractor has the necessary skills, knowledge, and experience to provide the services and/or goods described in the Contract.
WARRANTY.
1. Contractor warrants that the goods and/or services as applicable will (i) conform to the quantity and quality in the Contract, (ii) be free from defects in material, workmanship and design, (iii) be performed in strict compliance with the requirements of the Contract, (iv) be performed in a good, safe, competent, timely, and workmanlike manner and in conformity with the highest industry standards, methods and practices, (v) be fit for the particular purpose of Hawaiian and if applicable will conform to any sample or specification furnished or adopted by Hawaiian, (vi) be free from all liens and encumbrances, (vii) be merchantable; (viii) be free of any claim of infringement, misappropriation or other violation of patent, trademark, copyright, trade secret, privacy, publicity right, or other intellectual property rights, including (without limitation) claims of lack of adequate permissions, releases or licenses, and lack of payment of royalties or residuals; (ix) be free of any claim of libel, slander, pornography, or other objectionable content.
2. Contractor will assign to Hawaiian any manufacturers’ or other warranties applicable to the goods or services and will cooperate with Hawaiian in enforcing such warranties.
3. If Contractor is providing software, Contractor warrants that (i) all software materials, items or equipment will function in accordance with documentation, and (ii) all software maintenance services will result in performance in accordance with documentation.
4. If Contractor is providing equipment maintenance, that all equipment maintenance services will result in performance in accordance with factory specifications.
5. All warranties shall survive any inspection, test, acceptance, payment of, or use of the materials, items or equipment or services and shall run to Hawaiian and to all persons to whom the materials, items or equipment or services may be resold.
6. The provisions of this Section shall survive the termination of the Contract.
BREACH OF WARRANTY. The breach of any of the warranties herein shall entitle Hawaiian to elect, at its option, repair, replacement or payment of the materials, items or equipment or services, or to a refund of all amounts paid therefor. If repair or replacement is chosen by Hawaiian, Contractor shall, at its sole cost and expense, correct, replace, repair or otherwise remedy, as directed by Hawaiian, any services, equipment or materials that fail to conform to the foregoing warranty and any resulting damage and/or required corrective services caused thereby. The remedies hereunder shall not constitute Hawaiian’s exclusive remedies, but shall be in addition to any rights or remedies hereunder and under the applicable law.
RELATIONSHIP OF THE PARTIES. Contractor is an independent contractor and has no relationship with Hawaiian other than a vendor/vendee relationship. The employees of the Contractor or its subcontractors performing the services to Hawaiian remain the employees of the Contractor or its subcontractors, as applicable. There is no association, partnership, joint venture, employee, agency, employment, fiduciary, or joint employer relationship. No agent, employee or servant of Contractor shall be or shall be deemed to be the employee, agent or servant of Hawaiian. None of the benefits provided by Hawaiian to its employees (including, but not limited to, compensation, insurance, vacation pay, sick leave, pension, profit sharing, health, insurance and workers' compensation insurance) shall be available to Contractor or any agent, employee or servant of Contractor. Contractor is solely and exclusively responsible for the hiring and supervision of its employees or subcontractors in the performance of its services or providing of the goods, regardless of the ownership or management of the premises on which the services are performed or goods are delivered. Contractor will determine the method, detail, and means of performing the services or providing the goods; provided, however, such goods and services must meet the approval of Hawaiian as stated herein. Contractor agrees to indemnify and hold harmless Hawaiian from and against any and all liabilities, claims, demands, costs, fees and expenses (including attorneys’ fees) by any agent, employee or servant of Contractor, or anyone acting on behalf of such agent, employee or servant, against Hawaiian. The provisions of this Section shall survive the termination of this Contract.
NOTIFICATION OF SIMILAR SERVICES. In the event that Contractor provides services involving the confidential information of Hawaiian, Contractor shall first notify Hawaiian not less than thirty (30) days prior to commencing similar services for another airline client. Thereafter, Hawaiian shall have the right to immediately terminate the Contract.
INSPECTION OF WORK. Hawaiian shall have the right to inspect the manufacture of the goods or the performance of the services required under the terms and specifications of the Contract, including at Contractor’s (and sub-contractor’s) facilities during reasonable business hours.
RIGHT TO AUDIT. Hawaiian shall have the right to audit or appoint a third party to audit the Contractor in regards to its performance under the Contract.
TAXES.
1. Payment and Report of Taxes. Contractor agrees to pay any and all taxes imposed by law upon or on account of the goods or services ordered hereunder unless otherwise agreed to in writing. Contractor agrees to report all payments made hereunder as income for federal and state tax purposes and to indemnify, defend and hold harmless Hawaiian for any claim for taxes, penalties or interest claimed to be owed as a result of the payments made to Contractor hereunder.
2. Non-U.S. Contractor Providing Services in U.S.. Non-U.S. Contractors providing services in the U.S. must provide IRS (Internal Revenue Service) mandated documents to Hawaiian in order to claim a “reduced rate of U.S. withholding tax”. If no such document is provided, payments for services provided in the U.S. will be subjected to a 30% U.S. tax withholding. To claim a “reduced rate of U.S. withholding tax” the Contractor may be (i) A foreign entity but has a U.S. taxpayer identification number already and files U.S. tax returns to report income effectively connected with a trade or business in the U.S. This type of Contractor must provide HA with a completed Form W-8ECI, or (ii) a foreign entity qualifying for a lower rate of U.S. withholding taxes under their country’s tax treaty with the U.S. This type of Contractor must provide HA with a completed IRS Form W-8BEN (Form 8233 for an individual) with a valid U.S. taxpayer identification number.
3. Non-U.S. Contractor Providing Services Outside of U.S. For a foreign Contractor strictly providing services outside of the U.S., Contractor is required to fill out IRS Form W-8BEN (Parts I and IV) and a signed statement stating that Contractor only provides services outside of the U.S.
4. The provisions of this Section shall survive the termination of the Contract.
INDEMNIFICATION.
1. Indemnification by Contractor. Contractor will defend, indemnify, and hold harmless Hawaiian and its directors, officers, employees, agents, and assigns (collectively, the “Hawaiian Indemnified Parties”) against and from any and all liabilities, claims, suits, judgments, losses, damages, penalties, assessments and actions, including but not limited to all fees, fines, costs, reasonable attorneys’ and experts’ fees and expenses incidental thereto, that may be charged to, asserted against or incurred by any Hawaiian Indemnified Party to the extent that they arise directly or indirectly out of (i) the provision of any goods and/or services by Contractor or any Contractor personnel under the Contract, (ii) any failure of supervision, negligence, or willful misconduct of the Contractor or Contractor’s personnel under the Contract, or (iii) any marketing event, including, but not limited to a promotion, sweepstakes or similar event administered by Contractor, all except to the extent caused by the gross negligence or willful misconduct of any of the Hawaiian Indemnified Parties.
2. Cooperation. Contractor shall cooperate with and assist Hawaiian in the defense of any action of whatever kind brought against any Hawaiian Indemnified Party in connection with the Contract, except to the extent such cooperation or assistance precludes or jeopardizes any claims or defenses of Contractor in connection with any such action.
3. Survival. These indemnification provisions shall survive any termination of the Contract and shall not be limited by any insurance requirements contained herein or any insurance available, required or provided hereunder.
INSURANCE. Contractor shall, during the term of the Contract, maintain, at all relevant times the following insurance coverages:
1. Insurance Coverage.
  1. Worker’s Compensation insurance as specified by law at statutory limits and Employers Liability insurance at limits of $1,000,000;
  2. Automobile Liability Insurance with minimum limits of $1,000,000 per accident (such insurance shall cover liability arising out of any auto, including owned, hired, and non-owned autos); and
  3. Commercial General Liability insurance (including bodily injury and property damage) in an amount of not less than $1,000,000 for each occurrence and $2,000,000 in the aggregate, insuring against any and all liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, and any liability arising out of or based upon Contractor’s indemnification obligations under the Contract.
  4. Contractor waives all rights against Hawaiian and its agents, officers, directors and employees for recovery of damages to the extent these damages are covered by any Workers’ Compensation, Automobile Liability or General Liability insurance policies maintained pursuant to the Contract.
    
    Contractor shall cause the insurance policies to (a) name Hawaiian as an additional insured and loss payee (except under Workers’ Compensation Policy), (b) waive insurers rights of subrogation against Hawaiian, (c) make Contractor’s insurance primary without right of contribution from Hawaiian’s insurance policies, (d) if applicable based on the services/goods provided, require Environmental (Pollution) Liability, Network Security and Privacy (Cyber Liability), or Professional Liability Insurance coverage, (e) provide Certificates of Insurance evidencing the insurance requirements in this Section, and other insurance coverage as may be required by Hawaiian under the Contract, and (f) be placed with insurers licensed to do business in the State of Hawaii with an AM Best's rating of no less than A- VII unless written approval has been granted by Hawaiian.
2. Change in Coverage. Contractor is obligated to provide Hawaiian thirty (30) days prior written notice if their insurance coverage will be materially altered or cancelled. However, such notice does not absolve Contractor of its duty to maintain the insurance coverage herein.
3. Subcontractor Insurance. Contractor shall cause each of its subcontractors to purchase and maintain insurance of the type specified herein. When requested by Hawaiian, Contractor shall furnish Certificates of Insurance evidencing the insurance requirements in this Section.
4. No Representation of Coverage Adequacy. By requiring insurance herein, Hawaiian does not represent that coverage and limits will necessarily be adequate to protect Contractor, and such coverage and limits shall not be deemed as a limitation of Contractor’s liability under the indemnities granted to Hawaiian in this contract.
SETOFF. Contractor authorizes Hawaiian to charge or set off any and all claims which Hawaiian may have against Contractor, including any and all sums due and owing by Hawaiian to Contractor, and against any and all accounts Contractor has or may have in the future with Hawaiian.
ASSIGNMENT/SUBCONTRACTING. Contractor will not assign, subcontract, or transfer any of its interest in the Contract without obtaining prior written approval by Hawaiian, whose consent may be withheld in its sole discretion. As a condition to requesting prior written approval, Contractor must provide a written copy of any such proposed assignment or subcontract to Hawaiian. Hawaiian’s consent to the assignment, subcontract, or transfer shall not, under any circumstance, relieve the Contractor of the Contractor's obligation and liability under the Contract. Any assignment or subcontract in contravention of this Section will be null and void. In addition, all goods and/or services subcontracted shall be at the same standard as provided by Contractor, and at Hawaiian’s sole discretion, Hawaiian reserves the right to terminate any work subcontracted by Contractor and request Contractor to either perform the work directly or find a suitable replacement to provide similar goods or services for which Hawaiian originally contracted. Hawaiian reserves the right to freely assign all or part of the Contract to any subsidiary, affiliate, or successor in interest. The provisions of this Section shall survive termination of the Contract.
CHANGE OF CONTROL. Contractor shall provide Hawaiian with written notice in the event of a change of ownership or control of Contractor. A change of ownership or control shall mean, with respect to Contractor, a change in the ability to determine the outcome of decisions about the Contractor’s financial and operating policies and shall include, but not be limited to, a change in the majority or controlling shareholders or a merger (where Contractor is not the surviving entity). Hawaiian reserves the right to terminate the Contract upon a change of control.
INTELLECTUAL PROPERTY PROTECTION. Contractor shall indemnify, defend, and hold harmless the Hawaiian Indemnified Parties against all claims arising from the actual or alleged infringement, misappropriation or other violation of any patent, copyright, trademark, trade name, trade dress, trade secret, privacy, publicity right or other intellectual property rights (and any claims of libel, slander, pornography or other objectionable content) with respect to the goods or services provided hereunder (except for goods manufactured to Hawaiian’s design or use of Hawaiian’s trademarks or trade names pursuant to Hawaiian’s direction) and will, at Contractor’s expense, defend any action, suit or claim in which such infringement, misappropriation or other violation is alleged. In the event goods or services are held in any such action, suit or claim to be infringing, misappropriating or violating (or containing such objectionable content), and their use is enjoined or limited in any manner, Contractor shall, at Contractor’s own expense, and at Hawaiian’s option within a reasonable time, either (a) acquire for Hawaiian the right to continue use of such goods or services, (b) replace the same with non-infringing goods or services satisfactory to Hawaiian in its sole discretion, (c) modify the goods or services so they become non-infringing, without any loss of functionality, as determined by Hawaiian, in its sole discretion, or (d) remove such goods or services and refund the full purchase price and other costs incurred by Hawaiian. The provisions of this Section shall survive termination of the Contract.
OWNERSHIP OF WORK PRODUCT
All work product of Contractor that results from the Contract (“Work Product”) is the exclusive property of Hawaiian. Hawaiian and Contractor intend that such Work Product be deemed "work made for hire" of which Hawaiian will be deemed the author. If for any reason the Work Product is not deemed "work made for hire," Contractor by the Contract irrevocably assigns to Hawaiian all its right, title, and interest in and to any and all of the Work Product, whether arising from copyright, patent, trademark, trade secret, privacy, publicity right or any other State, federal or non-US intellectual property law or doctrine. At no cost, Contractor will execute such further documents and instruments as Hawaiian may reasonably request in order to fully vest such rights in Hawaiian. Contractor forever waives any and all rights relating to the Work Product, including without limitation, any and all rights arising under 17 USC 106A or any other rights of identification of authorship or rights of approval, restriction, or limitation on use or subsequent modification. If the Work Product includes content (such as photographs of persons or identifiable personal property, or music) that requires releases, permissions or licenses from, and/or payments to, third parties (such as music licensing royalties or union residuals), Contractor shall deliver to Hawaiian, together with the Work Product, all such releases, permissions and licenses, and shall make all such payments, necessary for Hawaiian to use the Work Product to the full extent of the Contract, for the full term of the Contract. If the Work Product involves a source code essential for the purpose of the Contract, such source code shall be delivered to Hawaiian with the Work Product, or deposited with a source code escrow, to be provided to Hawaiian upon bankruptcy, change of control, failure to provide timely technical support, or termination of the Contract. The provisions of this Section shall survive termination of the Contract.
CONFIDENTIAL/NONDISCLOSURE, PROPRIETARY INFORMATION.
1. Contractor acknowledges that, in connection with its performance hereunder, it may access or receive business information that is proprietary to Hawaiian, confidential or competitively sensitive, and/or information, materials, or documents that are proprietary to third parties. Contractor acknowledges that all such information and programs, including the financial terms of the Contract, constitute “Confidential and Proprietary Information” which is highly confidential, proprietary and sensitive, and understands that any Confidential and Proprietary Information shall be disclosed and made available to Contractor for the sole and exclusive purpose of performing the services or supplying the goods required by the Contract. Contractor shall (i) treat all Confidential and Proprietary Information as privileged, confidential, and proprietary; (ii) retain the same in the strictest confidence; (iii) use the utmost diligence to guard and protect such Confidential and Proprietary Information; (iv) not divulge, copy, disclose or use same, in whole or in part, for any purpose other than for the performance of the services or supplying the goods subject to the Contract; and (v) not duplicate or use any Confidential and Proprietary Information, in whole or in part, for itself or third parties, except with the express written consent of Hawaiian and, if applicable, the third party owner; provided, however, that Confidential and Proprietary Information shall not mean or include:
  1. any information which is publicly known or becomes publicly available, unless due to any unauthorized act or omission on the part of Contractor or any other party;
  2. any information which becomes rightfully known to the Contractor from a third party not bound by any restriction of non-disclosure;
  3. any information which is expressly authorized to be disclosed by Hawaiian in writing; or
  4. any information sought pursuant to any subpoena or court order; provided, however, that, in such event, Contractor will immediately notify Hawaiian and afford to Hawaiian such opportunity as is feasible under the circumstances to permit Hawaiian to object to, challenge or resist the disclosure.
  Contractor understands and acknowledges that disclosure of the Confidential and Proprietary Information may give rise to an irreparable injury to Hawaiian, its parent company and/or their respective subsidiaries or affiliates, and remedies available at law would be inadequate to compensate for that injury, so that, considering the balance of hardships, a remedy in equity would be warranted. Accordingly, Contractor agrees that Hawaiian or the affected entity may terminate the Contract immediately and seek, in addition to any legal remedies available to it and without the posting of any bond or other security, temporary, preliminary, head start, permanent and other injunctive relief against the breach or threatened breach of any of the foregoing undertakings. The public interest shall be deemed not to be disserved in any such proceeding in which Hawaiian seeks such injunctive relief. The provisions of this Section shall survive the termination of the Contract.
26. PUBLICITY. Contractor shall not use or refer to the Contract or Hawaiian in any form of publicity or advertising (including any Hawaiian trademark, trade name or service mark) directed at the public at large absent the express prior written consent of Hawaiian.
TERMINATION FOR CAUSE.
1. Hawaiian shall have the right to terminate the Contract for “cause” if Contractor violates or breaches any provision of the Contract and fails to cure within three (3) days’ of prior written notice to the Contractor; provided, however, Hawaiian shall have the right to extend the cure period in its sole discretion.
2. Hawaiian shall have the right to terminate the Contract immediately for “cause” upon (i) violation by Contractor of Hawaiian’s confidential information and/or intellectual property rights hereunder, (ii) Contractor becoming subject to voluntary or involuntary bankruptcy, insolvency, receivership, conservatorship or like proceedings, or ceases to conduct its normal and customary business operations, or generally does not pay its debts as they becomes due, or makes a general assignment for the benefit of creditors, (iii) change of control of Contractor, or (iv) providing similar services for another airline if the services include Confidential and Proprietary Information.
TERMINATION FOR CONVENIENCE. Notwithstanding anything to the contrary, Hawaiian may terminate the Contract, in whole or in part, for the convenience of Hawaiian by providing thirty (30) days’ written notice of the termination to the Contractor.
IN THE EVENT OF TERMINATION.
1. Hawaiian’s Obligations. In the event of any termination, Hawaiian’s only obligation to Contractor shall be the payment to Contractor for services properly rendered, and pre-authorized out-of-pocket expenses incurred, up to the time of termination, subject, however, to Hawaiian’s right to withhold payments or portions thereof to compensate and make Hawaiian whole for any loss resulting from Contractor’s breach of the Contract.
2. Contractor's Obligations. Upon termination, the Contractor shall (a) immediately return to Hawaiian (or destroy with written confirmation to Hawaiian) all Confidential and Proprietary Information (as defined above) and all Hawaiian property, materials or documents in Contractor’s possession, (b) protect and preserve property in the possession of Contractor in which Hawaiian has an interest, (c) terminate outstanding orders and subcontracts, (d) settle any liabilities and claims arising out of the termination of subcontracts and orders subject to Hawaiian's approval, (e) stop work to the extent specified on the dates set forth in the notice of termination, and (f) return all payments received from Hawaiian and material which are the subject of the termination, including transferring title to all goods, materials and equipment purchased by or belonging to Hawaiian; provided, however, Hawaiian may direct the Contractor to assign the Contractor's right, title, and interest under terminated orders or subcontracts to Hawaiian or use Contractor’s best efforts to sell such goods, materials or equipment for the benefit of Hawaiian. For the work not terminated by the notice of termination, the Contractor shall be obligated to complete the work and shall incur such obligations as are necessary to do so.
3. The rights and remedies provided in this clause are in addition to any other rights and remedies provided by law or under the Contract
4. The provisions of this Section shall survive termination of the Contract.
DISPUTES. The Parties agree that in the event of a dispute or alleged breach, if feasible, they will initially attempt to resolve the matter internally by escalating it to higher levels of management. Failing resolution, each party is free to pursue such remedies available to it in the courts of law identified in the next section.
GOVERNING LAW, STIPULATION OF FORUM. The Contract and any dispute arising under or in connection with the Contract, including any action in tort, will be governed, construed, interpreted and enforced in accordance with the laws of the State of Hawaii, without regard to any conflicts of laws principles. The courts of the State of Hawaii and the United States District Court for the District of Hawaii will have exclusive jurisdiction to resolve any dispute arising out of or related to the Contract, and all parties consent to such jurisdiction. The provisions of this Section shall survive the termination of the Contract.
COMPLIANCE WITH LAW, HAWAIIAN’S INSTRUCTIONS AND PROCEDURES, AND PAYMENT CARD SECURITY REQUIREMENTS.
1. Compliance with Law. Each party to the Contract shall comply with all applicable federal, state and local laws and regulations with respect to its performance under the Contract and the conduct of its business, including, all legal requirements relating to safety or otherwise that are subject to the jurisdiction of the Federal Aviation Administration and the Department of Transportation.
2. Compliance with Hawaiian’s Safety and Security Procedures. Contractor shall at all times comply with all safety, security and health regulations in effect at Hawaiian’s facilities and in accordance with Hawaiian’s operations.
3. Permits. Contractor shall be responsible for obtaining, and all costs related to, all applicable governmental or regulatory licenses, authorizations, and permits required in connection with its performance of the services or providing of goods under the Contract.
4. Payment Card Security Requirements. Contractor hereby acknowledges and agrees that to the extent Contractor stores, transmits, processes or otherwise deals in credit, debit, or similar confidential payment card information of Hawaiian’s customers, Contractor shall be responsible for the security of any cardholder data in its possession and shall maintain such cardholder information in a secure manner that is compliant with the then in effect Payment Card Industry Data Security Standards (PCI DSS) so as to protect such cardholders from fraud and identity theft. All cardholder data is owned by the cardholder and/or Hawaiian and not the Contractor. Contractor may only use such confidential cardholder data for assisting Hawaiian and its customers in completing a transaction, supporting a loyalty program, providing fraud control services, or such other uses specifically required by law. Contractor shall institute and maintain business continuity contingency plans in the event of a major disruption, disaster or failure so as to prevent the unauthorized disclosure of confidential cardholder data. Contractor agrees to allow any representative or agent of the Payment Card Industry to access and/or audit the security measures of Contractor so as to validate Contractor’s compliance with the then in effect PCI DSS for protecting cardholder data. Upon termination of the Contract, at Hawaiian’s discretion, Contractor shall return all confidential cardholder data in its possession to Hawaiian, destroy the same in a secure manner, or continue to maintain the confidentiality and security of any cardholder data that Contractor is permitted to retain.
SECURITY INCIDENT
1. DUTY TO NOTIFY HAWAIIAN.Contractor shall notify Hawaiian immediately if it knows, suspects or should reasonably know or suspect that cardholder data, personally identifiable information (including without limitation, HawaiianMiles mileage program account and member numbers and/or other Confidential and Proprietary Information) within Contractor’s (or any of Contractor’s directors, officers, employees, subcontractors, agents or affiliates) possession or control, has been accessed or used without authorization, or used other than in accordance with the Contract (a “Security Incident”). Further, Contractor shall, at its sole cost, promptly provide to Hawaiian all cardholder account numbers and any other information requested by Hawaiian as affected (either directly, indirectly, or potentially) by the Security Incident.
2. AUDIT. Contractor shall, at its sole cost, engage an independent forensic investigator of Hawaiian’s choosing to conduct an audit of the Security Incident, and shall provide Hawaiian with the resulting audit report of the Security Incident. Alternatively, and at Hawaiian’s sole election and at Contractor’s sole expense, Contractor shall provide (and obtain any waivers necessary to so provide) to Hawaiian and its forensic investigators and auditors, on request and at Contractor’s sole cost, full cooperation and access to conduct an audit of such Security Incident. Audits shall, at a minimum, include forensic reviews and reports on compliance, any information related to the Security Incident, and shall identify the cause of the Security Incident and confirm whether Contractor was in compliancewith applicable PCI requirements and standards (including, without limitation, those requirements and standards set forth herein) at the time of the Security Incident.
3. NOTIFICATION, MITIGATION, MONITORING, COMPLIANCE. Contractor acknowledges and agrees that (i) at no cost to Hawaiian, if required by applicable law, Contractor shall notify the individuals whose information was or likely might have been subject to a Security Incident that a Security Incident has occurred, including, but not limited to a multi-part print mailer; (ii) Contractor agrees that it will not notify the individuals who may be affected by the Security Incident unless legally required or consistent with industry best practice, as determined in such party’s sole discretion, and if permitted by applicable law, until Contractor first consults with Hawaiian and Hawaiian has had an opportunity to review any such notice; and (iii) in addition to the audit requirements provided above, and at no cost to Hawaiian, Contractor shall start and complete all necessary forensic analysis, investigations and recovery to Hawaiian’s reasonable satisfaction; (iv) at no cost to Hawaiian, Contractor agrees to provide up to twelve (12) months of credit monitoring services (including identity theft insurance) and card re-issuance to such affected individuals as conducted by a credit monitoring service reasonably acceptable to Hawaiian; (v) Contractor shall reimburse Hawaiian for reasonable incidental fees (including attorneys’ fees) for consultations; (vi) Contractor shall reimburse Hawaiian for all reasonable call center costs associated with managing affected individual inquiries; (vii) Contractor shall be responsible for all fraudulent charges related to or arising from the Security Incident and (viii) Contractor shall comply with all applicable laws and regulations relating to such Security Incident and will provide reasonable cooperation to Hawaiian in carrying out its legal obligations under applicable law and regulations relating to the Security Incident. The obligations set forth in this paragraph shall be perpetual and shall survive expiration or termination of this Contract.
EXPENSE REIMBURSEMENT. If Hawaiian provides prior written authorization to Contractor to travel on behalf of Hawaiian, all travel and expenses shall be done in accordance with Hawaiian’s Travel Policy subject to change at any time in Hawaiian’s sole discretion. Any travel or expenses prior to Hawaiian’s written authorization shall be borne by Contractor.
EQUAL EMPLOYMENT. Hawaiian, Contractor and its subcontractor, if any, shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
NO EXCLUSIVITY. Contractor shall act as a non-exclusive provider of the service and/or goods and nothing in the Contract shall preclude Hawaiian from obtaining any or all of the services or goods from a third party or providing them itself internally.
CONFLICT OF INTEREST. In the event that Contractor has a conflict of interest between its obligations to Hawaiian under the Contract and its obligations to a third party, Contractor will use any means necessary to resolve the situation in Hawaiian’s favor.
MOST FAVORED CUSTOMER. Contractor represents that all of the prices, warranties, benefits, and other terms set forth hereunder are equivalent to or no less favorable than the terms being offered by Contractor to its other customers of similar goods or services. If, during the term of the Contract or any renewal hereof, Contractor enters into an agreement with any other customer that contains more favorable terms than are provided hereunder, then the Contract shall be deemed appropriately amended to provide such more favorable terms to Hawaiian on a going-forward basis.
MISCELLANEOUS. The provisions of this Section shall survive the termination of the Contract.
1. NONWAIVER. No waiver by either party of any breach or any of the terms or conditions, or any payment by Hawaiian relating to the goods or services, of the Contract shall be construed as a waiver of any subsequent breach, whether of the same or any other term or condition of the Contract.
2. CONSTRUCTION, HEADINGS. The Contract will be construed as if both parties jointly and equally contributed to its formation and negotiation, and no uncertainty or ambiguity will be interpreted against any one party. The headings and titles are for convenience and reference only, and are not intended to define, alter or limit the scope of any provision of the Contract. The terms importing the singular will be deemed also to mean and refer to the plural and vice versa. The phrase "and/or" means that any one of the referenced alternatives or combination thereof will suffice or may be applicable. The words "include" or "including" will not be construed as words of limitation, but will be construed as if followed, in each instances, by the phrase “but not limited to”. The term "person" will include corporations, partnerships, limited liability companies, firms, associations, trusts, governmental entities and other legal entities, as well as natural persons. Verbs used in the present tense will include the future tense, all as the context may require. All references herein to “days” shall mean calendar days except if specified otherwise.
3. ENTIRE AGREEMENT. The Contract and all exhibits and attachments constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, or any prior or contemporaneous agreements, whether written or oral, between the parties. No other terms and conditions shall apply, including any terms or conditions contained in any Contractor quotation, acknowledgment, response hereto, or other form which is in addition to or different than the terms and conditions contained herein. No amendments to the Contract shall be effective unless evidenced in writing and signed by both parties.
4. SEVERABILITY. Should any term or provision or any part of any term or provision of the Contract be found invalid, illegal or unenforceable in any respect, the remainder of the Contract will continue to remain valid, legal and enforceable unless the term or provision in its modified state would materially and adversely affect the essence of the Contract. The invalid, illegal or unenforceable term or provision will be deemed modified to the limited extent required to permit its enforcement in a manner which comes as close as possible to achieving the intended result of the original provision.
5. FORCE MAJEURE. Without prejudice to Hawaiian’s rights of termination set forth in the Contract, neither party will be deemed to be in default or breach of the Contract, in the event and to the extent that its delay or failure to perform as required under the Contract is prevented, delayed, or made impossible or impracticable as a result of any act of God, war, insurrection, riot, terrorist attack, civil disorder, unrest or disturbance, martial law or other governmental restrictions, including rationing, epidemics, fire, flood, earthquake or other casualty, failure of facilities or systems, any natural or man-made disaster or other cause of like nature that is beyond the reasonable control of such party, other than labor unrest of Contractor’s employees, insolvency, lack or insufficiency of funds or unavailability of credit.
6. DISCLAIMER OF INDIRECT AND CONSEQUENTIAL DAMAGES. Hawaiian and its directors, officers, employees, agents, and assigns shall not be liable to Contractor for, and Contractor waives and releases Hawaiian from and against, any claims for any incidental, indirect, collateral, consequential, and exemplary or punitive damages, including, loss of profit, loss of opportunity, loss of production or loss of use.
7. TIME OF THE ESSENCE. Contractor acknowledges that time is of the essence in the performance of each and every covenant, performance, requirement and condition of the Contract.
8. NOTICES. To be binding on the addressee, each notice of communication given pursuant to the Contract will be in writing, and will be either (i) delivered by electronic mail with an acknowledgement of receipt, (ii) in person to the party to whom it is addressed, or (iii) sent by (a) United States registered or certified mail, return receipt requested; or (b) an internationally recognized overnight courier service. Mailed notices will be postage prepaid, and all notices will be addressed as follows:
  
  To Hawaiian:
  
  If sent by electronic mail:
  Name: Contracts Administrator
  Email Address: haprocurement@hawaiianair.com
  
  If sent by U.S. Mail:
  Hawaiian Airlines, Inc.
  Attn: Originating Department
  P.O. Box 30008
  Honolulu, HI 96820
  
  With a copy made to:
  Hawaiian Airlines, Inc.
  P.O. Box 30008
  Honolulu, HI 96820
  Attention: Sr. Vice President, General Counsel & Corporate Secretary
  
  If sent by overnight courier or delivered by messenger:
  Hawaiian Airlines, Inc.
  Attn: Originating Department
  3375 Koapaka St. Ste G350
  Honolulu, HI 96819
  
  With a copy made to:
  Hawaiian Airlines, Inc.
  3375 Koapaka St. Ste G350
  Honolulu, HI 96819
  Attention: Sr. Vice President – General Counsel and Corporate Secretary
  
  To Contractor:
  
  To the address and contact listed in the SOW and/or PO, as applicable.
  
  Notices shall be effective if by mail: upon receipt, or upon attempted delivery where delivery is refused or mail is unclaimed (refused or unclaimed by parties), or if by electronic-mail: upon read receipt or confirmation from recipient.
9. ATTORNEYS’ FEES. In the event any dispute between or among the parties hereto, each party or parties shall be responsible for all reasonable costs incurred and their own attorneys’ fees.
10. COUNTERPARTS. The Contract may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
11. ELECTRONIC SIGNATURES. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Contract are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or e-mail electronic signatures.
12. EXECUTION OF CONTRACT. The Contract shall not be considered binding upon Hawaiian until the Contract has been fully and properly executed by all the parties hereto.

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