within thirty (30) days after the
expiration or termination of this Agreement.
25
9.7
Disputed Charges.
(A)
HAWAIIAN TELCOM MAY, SUBJECT TO THE
NOTIFICATION REQUIREMENT BELOW AND SECTION 9.7(B), WITHHOLD PAYMENT OF
PARTICULAR CHARGES THAT HAWAIIAN TELCOM REASONABLY AND IN GOOD FAITH DISPUTES
(OR, IF IT HAS ALREADY PAID SUCH CHARGES, HAWAIIAN TELCOM MAY WITHHOLD AN
EQUIVALENT AMOUNT FROM PAYMENT TO BE MADE DURING THE IMMEDIATELY SUBSEQUENT
MONTH).
ANY AMOUNTS (OR PORTIONS THEREOF) NOT SO DISPUTED OTHERWISE SHALL BE
PAID BY THE APPLICABLE PAYMENT DUE DATE, AS DETERMINED PURSUANT TO SECTION
9.4(B).
HAWAIIAN TELCOM SHALL NOTIFY ACCENTURE IN WRITING ON OR BEFORE THE
PAYMENT DUE DATE OF ANY DISPUTED CHARGES FOR WHICH HAWAIIAN TELCOM IS
WITHHOLDING PAYMENT AND DESCRIBE, IN REASONABLE DETAIL, THE REASON FOR SUCH
WITHHOLDING.
HAWAIIAN TELCOM AND ACCENTURE SHALL DILIGENTLY PURSUE AN EXPEDITED
RESOLUTION OF SUCH DISPUTE.
(B)
NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN,
HAWAIIAN TELCOM MAY NOT WITHHOLD AT ANY POINT IN TIME IN THE AGGREGATE
AN AMOUNT GREATER THAN ONE (1) MONTH'S FEES (FOR DISPUTED AMOUNTS RELATED TO THE
FIRST TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE) OR FIFTY PERCENT (50%) OF
ONE MONTH'S FEES FOLLOWING THE TWELVE (12) MONTH ANNIVERSARY OF THE EFFECTIVE
DATE.
IN LIEU OF MAKING SUCH PAYMENT TO ACCENTURE, IF THE DISPUTED AMOUNTS
EXCEED SUCH THRESHOLDS, BUT ARE LESS THAN THE DISPUTED THRESHOLD AMOUNT,
HAWAIIAN TELCOM SHALL HAVE THE OPTION OF PLACING THE AMOUNT IN DISPUTE WHICH
EXCEEDS SUCH THRESHOLD INTO AN INTEREST BEARING ESCROW ACCOUNT, AT HAWAIIAN
TELCOM'S EXPENSE.
TO THE EXTENT THAT THE DISPUTED AMOUNT PLACED IN ESCROW WOULD
EXCEED THE DISPUTED THRESHOLD AMOUNT, HAWAIIAN TELCOM SHALL PAY ACCENTURE THE
AMOUNT BY WHICH THE DISPUTED AMOUNT EXCEEDS SUCH THRESHOLD.
(C)
TO THE EXTENT HAWAIIAN TELCOM PREVAILS IN
ANY DISPUTE OVER CHARGES FOR WHICH HAWAIIAN TELCOM PAID ACCENTURE PURSUANT TO
SECTION 9.7(B), HAWAIIAN TELCOM IS ENTITLED TO THE DISPUTED PAYMENT AS WELL AS
INTEREST ON THE DISPUTED PAID AMOUNT (PAID BY HAWAIIAN TELCOM TO ACCENTURE) AT
THE RATE PRESCRIBED IN SECTION 9.4(C) FROM THE TIME THE DISPUTED AMOUNT WAS PAID
BY HAWAIIAN TELCOM UNTIL THE TIME THE REFUND IS REMITTED BY ACCENTURE.
TO THE
EXTENT ACCENTURE PREVAILS IN ANY DISPUTE OVER CHARGES, ACCENTURE IS ENTITLED TO
THE DISPUTED PAYMENT AS WELL AS INTEREST ON THE WITHHELD AMOUNT AT THE RATE
PRESCRIBED IN SECTION 9.4(C) FROM THE TIME THE DISPUTED AMOUNT WAS DUE UNTIL
PAID BY HAWAIIAN TELCOM.
(D)
TO THE EXTENT A DISPUTE IS RESOLVED IN FAVOR
OF ACCENTURE, ACCENTURE SHALL NOT BE ENTITLED TO REVOKE THE LICENSES GRANTED IN
SECTIONS 6.5(C)(II) AND 12.1(A), UNLESS HAWAIIAN TELCOM HAS FAILED TO PAY THE
DISPUTED AMOUNT WITHIN THIRTY (30) DAYS FOLLOWING RESOLUTION OF THE DISPUTE.
9.8
Taxes.
References in this Section 9.8 to
Accenture or Hawaiian Telcom shall, as relevant, be deemed to include any
Affiliates of such Party that are paying or receiving any of the Charges or
otherwise incurring any taxes in relation to the performance or receipt of the
Services (including any charges for software or equipment, as