DTV Terms Of Service End-User Service Agreement
DTVNotification is a service provided to television stations to notify medical facilities of their new RF channel and other transmitter facility changes in accordance with the conditions of their Federal Communications Commission Construction Permit. By providing notifications to local medical facilities as required by the FCC, DTV Notification enables stations to comply with this FCC construction requirement.
This is a legally binding agreement between Station (or its agent), the End-User, and Potomac Colorado Digital, LLC doing business as DTVNotification.com (“DTV”). Carefully read this service agreement prior to use of the DTV Notification Medical Facility Notification service. Use of the service indicates End-User’s Station’s acceptance of the terms and conditions of this service agreement. If End-User Station does not agree to the terms and conditions of this service agreement, it agrees to not utilize the DTV Notification service.
By using this Service or accessing any associated web sites, the End-User (User) acknowledges that it has read this agreement, understands it, and agrees to be bound by its terms and conditions. Should End-UserStation have any questions concerning this agreement, contact the service DTVprovider at [email protected] prior to use.
The associated web sites and the accompanying documentation are provided to the End-User Station and End-User (combined or individually known as “End-UserUser”) by DTV Potomac Colorado Digital, LLC, (known as “Provider”) for use only under the following terms. DTV Provider reserves any right not expressly granted to the Station and End-user. DTV Provider retains ownership of all data, medical facilities lists, databases, and associated web sites. The Station and End-User assumes sole responsibility for the use and results obtained from use of the service.
1. AGREEMENT. The following services will be provided to Station and End-User which Agree to the following:
A. Access to the associated web sites for the purpose of ordering medical facility notification letters to be generated and mailed to medical facilities with the End-User Station provided transmitter facility information in compliance with the condition on the End-User Station’s FCC Construction Permit. It is End-User’s responsibility to ensure that any Services provided by DTV comply with any local, state, federal, or other laws, rules, regulations, or any other legal requirements that End-User must comply with. DTV does not warrant that its Services are in compliance with the laws that govern End-User.
Upon receipt of payment, DTV Provider will identify medical facilities within the End-User’s Station’s coverage area for which DTV Medical Notifications shall be provided. And, DTV Provider will send appropriate notices to identified medical facilities of the transmitter facility changes of End-User Station. Such notifications will contain the technical facility parameters and technical contact information to be provided by the End-User User.
B. DTV Provider shall provide the Medical Facility Notification service to End-User User in good faith, using its best efforts. DTV Provider does not and cannot guarantee or warrant that notifications to all potentially affected facilities will be provided. End-User agrees to indemnify, defend, protect, and hold DTV harmless for any and all lawsuits and costs of every kind pertaining to the End-User’s use of these Services including reasonable legal fees due to any act or failure to act. DTV does not guarantee that every and all medical facility will receive the notification and, therefore, the End-User releases DTV of all liability associated with any medical facility not receiving notification.
C. DTV Provider shall provide a document to End-User certifying that the medical facility notifications have been sent to the identified medical facilities within the End-User Station’s coverage area for inclusion in End-User Station’s FCC Public File as required by the Federal Communications Commission. DTV does not send this document to the FCC on behalf of the End-User. It is the End-User’s responsibility to provide this document to the appropriate organizations. It is the End-User’s responsibility to notify DTV if it has not received the above document.
D. DTV Provider shall provide a document certifying that the medical facility notifications have been sent to the identified medical facilities within the End-UserStation’s coverage area for use as an exhibit to the End-User Station’s FCC License Application. DTV does not send this document to the FCC on behalf of the End-User. It is the End-User’s responsibility to provide this document to the appropriate organizations. It is the End-User’s responsibility to notify DTV if it has not received the above document.
2. RESTRICTIONS. End-User and the End-User may NOT sub-Agreement, assign, or distribute any rights or passwords to the Service and associated websitesWeb Sites to others. The Software and its associated web sites contain trade secrets. End-User may NOT decompile, reverse engineer, disassemble, or otherwise reduce the Software or websiteWeb Site to a human readable form. End-User may not modify, adapt, translate, rent, lease, loan, resell for profit, distribute, or otherwise assign or transfer the software, web site content, databases, or create derivative works based upon the software, web site, database or any part thereof, except as expressly provided herein.
3. PROTECTION AND SECURITY. End-User agrees to use itstheir best efforts and to take all reasonable steps to safeguard the associated websites to ensure that no unauthorized person shall have access thereto and that no unauthorized copy, publication, disclosure, or distribution or use in whole or in part, in any form, shall be made. End-User acknowledges that the Software and associated web site contains valuable confidential information and trade secrets and that unauthorized use and/or copying is harmful to DTV Provider. End-User and the End-User agrees not to attempt to tamper with any software locking mechanism in order to obtain access to the software and associated web sites.
4. TERMINATION. This Agreement is effective until terminated by DTV Provider. This Agreement will terminate immediately without notice from DTV Provider if End-User and the End-User fails to comply with any of the provisions of this Agreement or are in arrears on payment more than thirty (30) days. No refunds will be given for any notification not utilized by End-User User. End-User may terminate this Agreement by sending a written termination, via certified mail to the following address: POTOMAC COLORADO DIGITAL, LLC, ℅ Ryan Murphy, 2068 McCulloch Blvd., Lake Havasu City, AZ 86403. The termination must be received at least thirty (30) days prior to the date that DTV notifications are mailed. Any funds paid to DTV shall be non-refundable, regardless of the when the termination is received.
5. End-User must provide a technical contact person and contact information to be provided with the medical notifications.
6. ENHANCEMENTS. From time to time DTV Provider may, in its sole discretion, advise End-User and the End-User of updates, upgrades, enhancements, or improvements to its services (collectively, “Enhancements”), and may provide to End-User such Enhancements upon payment as may be established by Network and DTV Provider from time to time. All such Enhancements to the service provided to End-User and the End-User shall also be governed by the terms of this Agreement.
7. LIMITED WARRANTY. DTV Provider warrants that, the software, service, and associated web sites will operate substantially in accordance with the published functional specifications current at the time of agreement. If a defect appears, End-User and the End-User shall promptly notify DTV Provider and DTV Provider’s only obligation shall be, at DTV Provider’s election, to repair the defective service or refund the fee for the service in which the defect was noted. End-User and the End-User agree that the foregoing constitutes End-User and the End-User’s sole and exclusive remedy for breach by DTV Provider under any warranties made under this Agreement. This warranty does not cover any service or documents that have been altered or changed in any way by anyone other than DTV Provider. DTV Provider is not responsible for problems associated with or caused by United States Postal Service, internet connections, software or equipment, or for problems in the notification of medical facilities furnished by DTV Provider. No oral or written information or advice given by DTV Provider or consultants, employees, principals, or agents shall in any way extend, modify or add to the foregoing warranty.
THE END-USER ASSUMES ALL RISK AS TO THE SUITABILITY, QUALITY, AND PERFORMANCE OF THE SERVICE AND SOFTWARE. IN NO EVENT WILL SERVICE DTV PROVIDER, PUBLISHER, PROGRAMMER, NETWORK, DTV PROVIDER, OR ITS MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, OR AFFILIATES, BE LIABLE TO END-USER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF SERVICE OR ANY ACCOMPANYING WRITTEN MATERIALS, EVEN IF NETWORK AND DTV PROVIDER HAVES BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETWORK’S AND DTV PROVIDER’S LIABILITY TO THE END-USER (IF ANY) FOR MONETARY DAMAGES FOR ANY CAUSE WHATSOEVER, UNDER ANY THEORY OF LAW, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO, AND IN NO EVENT SHALL EXCEED, THE AMOUNT ORIGINALLY PAID TO DTV PROVIDER FOR THE USE OF THE SERVICE AND ASSOCIATED WEBSITES.
8. LIMITATION OF LIABILITY. End-User assumes all risks, liability, and damages from use of the DTV Providers service. DTV Provider is providing the Services here under on its good faith best efforts and is not liable for any damages that may occur as a result of notifications being received or not received by medical facilities. DTV Provider assumes no liability for damages for any interference or other harmful acts that may occur from End-User’s operations. Furthermore, End-User agrees to hold DTV Provider harmless for any liability, damages, injury or other acts in the course of providing services to User. End-User agrees to indemnify, defend, protect, and hold DTV harmless for any and all lawsuits and costs of every kind pertaining to the End-User’s use of these Services including reasonable legal fees due to any act or failure to act. DTV does not guarantee that every and all medical facility will receive the notification and, therefore, the End-User releases DTV of all liability associated with any medical facility not receiving notification.
9. MANDATORY ARBITRATION, ENFORCEMENT, DAMAGES. This agreement shall be construed under the laws of the State of Arizona, and is enforceable only in Lake Havasu City in Mohave County. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable to any extent under applicable law, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Any dispute relating to interpretation or performance of this agreement shall be resolved at the request of either party through binding arbitration. Arbitration shall be conducted in Lake Havasu City, Mohave County, Arizona, in accordance with the then-existing rules of the American Arbitration Association. Judgment upon any award by the arbitrators may be entered by the state or federal court having jurisdiction. The parties intend that this agreement to arbitrate be irrevocable. In any action or request for arbitration brought by End-User for alleged damages suffered by End-User under any theory of law, End-User agrees that Network’s and DTV Provider’s maximum liability under all laws or causes of action shall not exceed the total fee actually paid by End-User. In the event any dispute between the parties results in litigation or other proceeding, the prevailing party shall be reimbursed by the party not prevailing for all reasonable costs and expenses, including, without limitation, reasonable attorneys’ and experts’ fees and costs incurred by the prevailing party in connection with such litigation or other proceeding, and any appeal thereof. Such costs, expenses and fees shall be included in and made a part of the judgment recovered by the prevailing party, if any. Any notices or other communications to be sent to DTV Provider must be mailed first class, postage prepaid, to the following address: POTOMAC COLORADO DIGITAL, LLC, ℅ Ryan Murphy, 2068 McCulloch Blvd., Lake Havasu City, AZ 86403.
10. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and all prior proposals, agreements, representations, statements and undertakings are hereby expressly cancelled and superseded. This Agreement may not be changed or amended except by a written instrument executed by a duly authorized officer of DTV.