Terms of Service And End-User Service Agreement For MVPD Notification Services
DTVNotification is a service provided to television stations to notify cable television and other Multichannel Video Program Distributors (MVPD) of their new RF channel and other transmitter or technical facility changes in accordance with the rules of the Federal Communications Commission regarding channel sharing and station cessation of operations as well as initiation of ATSC 3 (NextGen TV) broadcasts. By providing notifications to local cable providers as well as other MVPD’s as required by the FCC, DTVNotification enables stations to comply FCC rules regarding advance notification of RF channel changes and other technical facility changes that may potentially impact the ability of an MVPD to receive and distribute the station’s signals.
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 DTVNotification MVPD 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 DTVNotification’s MVPD 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-User Station have any questions concerning this agreement, contact the DTVNotification service provider 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-User”) by Potomac Colorado Digital, LLC, (known as “Provider”) for use only under the following terms. Provider reserves any right not expressly granted to the Station and End-user. Provider retains ownership of all data, cable and MPVD providers 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 MVPD notification letters to be generated and mailed to cable and MVPD providers with the End-User Station provided transmitter and technical facility information in compliance with FCC notification rules. It is End-User’s responsibility to ensure that any services provided by Provider comply with any local, state, federal, or other laws, rules, regulations, or any other legal requirements with which the End-User must comply. Provider does not warrant that its services are in compliance with the laws that govern End-User.
Upon receipt of payment, Provider will identify cable and other MVPD providers within the End-User’s Station’s coverage area for which MVPD Notifications shall be provided. And, Provider will send appropriate notices to identified cable providers of the transmitter and technical facility changes of End-User Station. Such notifications will contain the technical facility parameters, transport stream information, and technical contact information to be provided by the End-User.
B. Provider shall provide the MVPD Notification service to End-User in good faith, using its best efforts. MVPD 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 Provider 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. Provider does not guarantee that all MVPD’s will receive the notification and, therefore, the End-User releases Provider of all liability associated with any MVPD not receiving notification. MVPD notifications will be sent via First Class United States Postal Service (USPS) mail. End-User agrees that Providers shall not be liable for non-delivery by the USPS or any other postal service error in the delivery of the MVPD Notifications.
C. Provider shall provide a document to End-User certifying that the MVPD notifications have been sent to the identified cable and MVPD providers within the End-User Station’s coverage area for inclusion in End-User Station’s FCC Public File as required by the rules of the Federal Communications Commission. The Provider does not send or upload 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 EndUser’s responsibility to notify Provider if it has not received the above document within 10 days of mailing of the notifications.
2. RESTRICTIONS. End-User and the End-User Station may NOT assign, or distribute any rights or passwords to the service and associated websites 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 website 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, website content, databases, or create derivative works based upon the software, website, database or any part thereof, except as expressly provided herein.
3. PROTECTION AND SECURITY. End-User agrees to use their best efforts and to take all reasonable steps to safeguard the associated websites to ensure that no unauthorized person shall have access to and that no unauthorized copy, publication, disclosure, or distribution or use in whole or in part, in any form, shall be made. EndUser 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 Provider. End-User and the End-User Station agree 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 Provider. This Agreement will terminate immediately without notice from Provider if End-User or the End-User Station fail 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 services not utilized by End-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 Provider 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 MVPD notifications. End-User must provide appropriate technical information regarding the transport stream data values for channel sharing stations.
6. ENHANCEMENTS. From time to time Provider may, in its sole discretion, advise End-User and the End-User Station 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 Provider from time to time. All such Enhancements to the service provided to End-User and the End-User Station shall also be governed by the terms of this Agreement.
7. LIMITED WARRANTY. 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 Station shall promptly notify Provider and Provider’s only obligation shall be, at 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 Station agree that the foregoing constitutes End-User’s and the End-User Station’s sole and exclusive remedy for breach by 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 Provider. 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 cable or MVPD providers furnished by Provider. No oral or written information or advice given by 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 PROVIDER, PUBLISHER, PROGRAMMER, NETWORK, 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 PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETWORK’S AND 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 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 Provider’s service. Provider is providing the Services hereunder 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 cable or other MVPD providers. 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 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 Provider 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. Provider does not guarantee that every and all cable and MVPD’s will receive the notification and, therefore, the End-User releases DTV of all liability associated with any MVPD 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 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 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.