Legal
The Agreement between you ("Customer"), and Delmarva WiFi, LLC, ("Delmarva"),
consists of this document and the Service Order (collectively, the "Agreement"). Customer
acknowledges receipt of this Agreement and the Purchase and Service Order. Collectively they
describe: the high speed wireless data communications service to be provided to Customer, (the
"Service"); the address or location to which Service is to be provided; the wireless access
device(s) and any other Equipment that Delmarva is to provide to the Customer; any licensed
software to be loaded on the Equipment supplied by Delmarva (the equipment and software
collectively, the "Equipment"); the cost of the Service; and other terms and conditions of that
Service. The Agreement defines Delmarva's obligations to Customer, and Customer's
obligations to Delmarva. This Agreement governs the entire relationship between Delmarva and
Customer.
SPECIFIC CREDIT CARD TERMS
As a convenience to the Customer, Delmarva accepts one-time and recurring credit card
payments exclusively via its website. The specific terms of credit card acceptance are in this
Customer Service Agreement. The Customer agrees to be bound by the entirety of the following
Agreement specifically but not limited to: Cancellation, Permissions, Replacement Equipment
Cost and Return and Chargebacks/Disputes. Nothing in this paragraph shall be considered an
addition to the entirety of the Agreement except to bring the Customer's attention that such terms
exist in the following paragraphs and to comply with Credit Card Rules. By clicking the "I
Agree" check box under the Payment page on the Delmarva website, Customer agrees to be
expressly bound to the following Terms and Conditions of the Agreement.
CUSTOMER SERVICE AGREEMENT
1. WARRANTY OF LEGAL COMPETENCE. Customer warrants that
Customer is at least eighteen (18) years of age and legally competent to enter into this
Agreement.
2. ACCEPTANCE OF TERMS OF AGREEMENT.Customer shall be
considered to have accepted and be bound by this Agreement if Customer does one or more of
the following:
A. Signature on Purchase Order or Service Order. Provides Delmarva
with a written or electronic signature on a Purchase Order or Service Order;
B. Electronic Signature. Otherwise indicates electronically that Customer
requests Service and accepts this Agreement;
C. Uses Service. Uses Internet Service through the Equipment; or
D. Pays. Pays a Delmarva invoice, or, utilizes the web portal for one-time or
recurring credit card payment.
3. TERM. The term of this Agreement shall be controlled by the provisions of this
Paragraph.
A. Initial Term. The initial minimum Term of this Agreement shall be as set forth on the
Purchase Order or Service Order.
B. Continuing Term. In the event there is no Term set forth on the Purchase Order or Service
Order, or, after expiration of any initial Term, the Term shall be month to month.
C. Commencement of Term. The Term begins upon installation of the Service.
D. Snow Birds. After an initial six (6) month period of Service, Customer may elect to go on
inactive status for up to six (6) months per year at the reduced monthly charge of Fifteen
($15.00) Dollars per month, payable in advance, providing Customer's account has been in good
standing for the previous six (6) months. This option is not available for Extended Network customers.
4. INSTALLATION. Installation of Equipment shall be subject to the following
terms and conditions.
A. Permission. Customer warrants that Customer either own the premises at
the location given in the Purchase Order or Service Order, or, that Customer has received written
permission from the owner of the premises to make any changes to the premises needed,
required, and/or necessary to install and power the Equipment and receive the Service.
B. Apartments. In the case of an apartment, Customer warrants that
Customer has confirmed that placement of an access device, (including antenna, if needed), in a
common area, is not in violation of any terms of Customer's lease, and/or that Customer has
received permission from the building owner, or owner's agent, for installation of Delmarva's
Equipment.
C. Condominiums. In the case of a condominium, Customer warrants that
Customer has confirmed that placement of an access device, (including antenna, if needed), in a
common area, is not in violation of any terms of the covenants or restriction of the condominium
regime and/or by-laws, or that Customer has received permission from the home owners
association or condominium management company for installation of Delmarva's Equipment.
D. Access. Customer hereby authorizes and grants permission to Delmarva,
or its contractors, to install the Equipment necessary to receive the Service. Customer further
grants permission and agrees to allow Delmarva, or its contractors, access to the premises to
install, maintain, repair or repossess the Equipment.
E. Permission Irrevocable. Any permission granted Delmarva pursuant to
this Agreement shall be irrevocable.
F. Custom Installation. Customer agrees that any requested custom
installation, including but not limited to placing cable inside interior walls, under moldings, in
cabinets, under carpets, or connecting any device belonging to Customer, shall result in
additional charges of Eighty-Five ($85.00) Dollars per hour, plus materials.
G. Cable Trenching. Customer agrees that Delmarva, as a courtesy to
Customer, may provide trenching services. Trenching services will be provided on a case-by-
case basis based on the availability of a Delmarva technician, availability of a Delmarva trencher
and environmental conditions. Cable Trenching, if not completed by Delmarva is the sole
responsibility of Customer. Should Delmarva fail to provide trenching services expeditiously,
Customer agrees the only Remedy is to have the trench completed by a third party at the expense
of Customer. Delmarva, as a courtesy to Customer, may provide subsequent trenching services in
the event Delmarva's cable needs to be replaced. Should Delmarva fail to provide trenching
services expeditiously, Customer agrees the only Remedy is to have the trench completed by a
third part at the expense of Customer. Customer agrees that Customer is solely responsible to
contact Miss Utility and further mark any lines that Miss Utility fails to mark. Trenching services
performed by Delmarva are performed on a BEST EFFORT, AS-IS basis.
5. SERVICE. The quality of the Services provided by Delmarva under the terms of
this Agreement shall be subject to the following terms and conditions.
A. Standard Service. Unless specifically provided to the contrary, in a
Purchase Order or Service Order, Customer shall receive Standard Service, which is sufficient
for usual residential use.
B. Upgraded Service. Subject to availability, which is determined by the
use of the tower servicing the Customer, and for additional cost, Delmarva may offer Upgraded
Service that provides faster internet speed.
C. Availability of Upgraded Service. Delmarva will make every effort to
satisfy all Customer requests for Upgraded Service. However, as stated above, Upgraded Service
is subject to availability and may or may not be available to the Customer.
D. Resumption of Upgraded Service After Lapse. In the event Customer
shall elect to suspend Upgraded Service after it is provided, any Customer request for resumption
of Upgraded Service, shall be subject to availability and may or may not be satisfied by
Delmarva.
E. No Warranty of Quality or Availability of Service. Delmarva makes no
warranty or representation of the quality or availability of the WiFi Service provided to the
Customer pursuant to the Service.
F. Interruptions of Service. Delmarva shall not be responsible for
interruption in service resulting from Equipment failures or defects; network problems or
5
deficiencies; problems stemming from unauthorized access to the Service; acts of any
government or adoption of any subsequent law or regulations; fires, rains, floods, or unusually
severe weather conditions; epidemics, quarantine restrictions, hazardous environmental
conditions; strikes, and freight embargoes; inability to obtain materials or services; war, and/or
terrorism; alien invasion, and/or default of Delmarva's Sub-contractors.
G. Limitation on Liability for Disruption of Service. Delmarva's liability
for Service disruption, regardless of cause, is limited to a credit proportional to the charge to the
Customer for the period of Service disruption or other credit specified in a Purchase Order or
Service Order. Such compensation aside, and to the extent permitted by applicable law,
Delmarva shall not be liable for any direct, consequential, incidental, special or other indirect
damages, economic loss, personal injury, or property damages sustained by Customer or any
third parties as a result of any interruption of Service for any reason.
H. In the event Delmarva, by Federal, State, or Local Mandate, Executive Order or other Instruction is unable to suspend or terminate service for non-payment, Delmarva reserves the right to throttle speeds on accounts that are past-due until such time as the Customer brings the account current.
I. Technical Support. Telephone technical support is normally available to Delmarva customers at no additional cost. Telephone technical support is not available to transient hotspot customers. This support is available 24 hours a day 7 days a week on a best-effort basis. Customer expressly understands that to receive this service Customer must A. Be on site at the location of the Delmarva equipment B. Willing to work with Delmarva Representative to troubleshoot and resolve any issue. C. Expressly agrees to wait for a call-back from the Delmarva Representative in the time-frame stated when calling in. and D. In the event the Customer is transferred to a higher tier of support, Customer expressly agrees to use the "callback option" for a returned phone call. Failure to follow these guidelines may result in Customer to lose use of technical support privileges except during normal business hours and on a call-back basis and/or at Delmarva's sole discretion, be charged $15 per phone call for calls that violate the Delmarva guidelines for technical support.
6. CANCELLATION. Cancellation of the service shall be subject to the following
terms and conditions:
A. Delmarva's Right to Terminate. In addition to the bases for termination
by Delmarva for cause, as set forth in Paragraph 26, upon thirty (30) days email notice,
Delmarva may terminate this agreement for any reason Delmarva believes is in Delmarva's best
interest, including, Delmarva's inability to honor Delmarva's obligations under this Agreement.
In the event Delmarva elects to terminate this Agreement, at Delmarva's option, Service shall be
terminated immediately and a prorated invoice or refund issued, or, Service shall be terminated
effective on the last day of the next billing month.
B. Customer's Right to Terminate. Customer shall be permitted to terminate this Agreement upon thirty (30) day's notice to Delmarva by email or certified mail. Any termination by Customer shall become effective upon the last day of the next billing month. In the event Customer elects to terminate this Agreement or request to move service to a different location, within the first three (3) years of service, Customer shall be liable to Delmarva for any installation fees that were waived by Delmarva for promotional, special, or any other reason(s).
C. Customer Abuse. Delmarva reserves the right to special remedies for any instance of Customer Abuse. Customer Abuse is defined as, but not limited to: Threats of Physical Harm or Violence, Inappropriate religious, cultural or racial insults, Homophobic, sexist or other deragtory remakrs, abusive words, including profanity, directed at the person of the Delmarva representative, excessive calls to technical support or any Delmarva representative. Excessive is defined as calling repeatedly without waiting for a Delmarva Representative to call back within the timeframe specified by the representative. First warning: Delmarva will verbally warn Customer to cease the identified form of abuse. Second warning: Delmarva will terminate the phone call or ask Customer to leave the Delmarva premises. Third warning: Delmarva will request all future communications by handled via Email. Delmarva reserves the right, if in Delmarva's opinion, the Customer is excessively abusive, to immediately terminate services without refund.
7. MONTHLY CHARGES FOR SERVICE. The monthly fee for services shall be
set forth on the first Invoice and shall remain in effect for the first year of service.
A. Initial Partial Month Prorated. The charges for the first partial month of
service shall be prorated from the date of activation or installation, whichever shall first occur,
until and through the last day of that month.
B. Modification of Monthly Charges. After the initial term, Delmarva shall have
the right to modify the monthly charges by thirty (30) days notice to the customer. At no time,
and under no circumstances, shall Customer have the authority or right to modify the monthly
charges by any methods or means.
C. Recurring Credit Card Payments: Delmarva processes recurring credit card payments on the 15th of each month at midnight via automated credit card processor. Delmarva reserves the right to charge, without notice, any amount owed by Customer, to the Customer-provided credit card unless otherwise Agreed in a Payment Plan, in writing, between Delmarva and Customer.
8. EQUIPMENT. Customer's use and return of the Equipment shall be subject to,
in accordance with, and in compliance with the following terms and conditions.
A. Ownership. Any and all Equipment supplied by Delmarva at the
commencement of service, or thereafter, under this Agreement is, and shall remain, the exclusive
property of Delmarva.
B. Equipment. By paying the installation charge and/or first invoice,
Customer acknowledges proper, workmanlike, successful installation and initial operation of the
Equipment that is described and set forth on the Purchase Order or Service Order.
C. Care of Equipment. Customer shall use all reasonable and diligent care
to avoid damaging the Equipment. Customer agrees not to alter, modify, sell, license, lend,
assign, encumber, relocate, move, or tamper with the Equipment.
D. Return of Equipment in Working Order. Upon the Termination or
expiration of this Agreement, or the Termination or disconnection of Customer's Service by
Delmarva, it is the responsibility of Customer to return all Equipment to Delmarva in good
working order.
E. Removal and Return of Equipment by Customer. Customer may, at
Customer's option, remove and return the Equipment to Delmarva. The Equipment must be
shipped at the customers expense to Delmarva WiFi, 932 Washington Ave Unit B Chestertown, MD 21620.
F. Removal Of Equipment by Delmarva: In the event of cancellation,
Customer may elect to have Delmarva's contractor or technician remove the Equipment. That
service is provided for a fee of One Hundred Fifty ($150.00) Dollars. That fee is due and
payable prior to cancellation of service and/or removal of Delmarva's Equipment.
G. Failure to Return Equipment. If the Equipment is not returned to
Delmarva within fifteen (15) days after termination or expiration of this Agreement, or, the
disconnection of Customer's Delmarva service, Delmarva may, at its sole discretion, charge
Customer the total replacement cost of Delmarva's Equipment, or, charge the Customer for
removal of the Equipment as agreed in the previous Sub-Paragraph F.
H. Repossessing Agreement. Customer hereby consents irrevocably to
Delmarva's entry upon Customer's premises for purposes of repossessing the Equipment.
Customer agrees to pay charges for repossession of the Equipment as provided in this
Paragraph 8 of this Agreement.
I. Authorization Of Charges. Customer does hereby authorize Delmarva
to charge any amounts imposed under this Paragraph 6, to Customer's credit card or checking
account (ACH). In the event Delmarva does not have Customer's credit card or checking
7
account information on file, Customer agrees to pay Delmarva immediately for the Equipment
once invoiced.
9. REPAIRS AND MAINTENANCE. All repairs and maintenance to Delmarva's
Equipment shall be subject to, in accordance with, and in compliance with the following terms
and conditions.
A. Delmarva-Owned Equipment. In the event Customer has a complaint
requiring a site visit and/or Customer requests on-site maintenance or repair to Delmarva-owned
Equipment, Delmarva, in its sole discretion, reserves the right to impose a site visit service fee to
Customer in the amount of One Hundred ($100.00) Dollars, plus Eighty-Five ($85.00) Dollars
per hour for any time expended by Delmarva on site, plus materials. Whether or not to impose a
service fee shall be decided by Delmarva based on the legitimacy of the complaint, the cause of
any problem, the frequency and legitimacy of prior complaints and/or requests for maintenance
or repair and the length of time following the site visit prior to cancellation of service. Customer hereby consents irrevocably to Delmara's entry upon Customer's premises for purposes of maintaining, repairing, replacing or accessing the equipment.
B. Customer-Owned Equipment. In the event any loss of service is found
to be the fault of Customer, or the fault of Equipment owned or used by Customer, (including,
but not limited to, wireless routers, computers, etc.), Delmarva shall have no responsibility to
repair or correct Equipment not provided by Delmarva. For any service call resulting from or the
fault of Customer or Customer-owned Equipment, a site visit service fee shall be charged to the
Customer in the amount of One Hundred ($100.00) Dollars, plus Eighty-Five ($85.00) Dollars
per hour for any time expended by Delmarva on site, plus materials.
C. Repair to Equipment Not Owned By Delmarva. Delmarva shall have
no obligation to fix Customer-owned Equipment. In the event Delmarva agrees to repair any
Customer-owned Equipment or correct any Customer-caused service outage, a service fee shall
be charged to Customer, in addition to the site visit Service Fee, in the amount of One Hundred
($100.00) Dollars, plus Eighty-Five ($85.00) Dollars per hour for any time expended by
Delmarva on site, plus materials. In the event the Customer has Delmarva fix any Customer-
caused outage, there shall be no warranty as to the work performed by Delmarva.
D. Return Service Calls. Any and all return site visits shall be billed
separately.
10. INTERRUPTION OF SERVICE. Extreme weather and/or other events beyond
Delmarva's control may temporarily affect Customer's internet access and/or use of the Service.
Delmarva does not guarantee or warrant any specific level of the Service. Customer hereby
waives any remedies against Delmarva for disruption of Service unless specified on a Purchase
Order or Service Order, or, expressly set forth in this Agreement. Delmarva, may at its sole
discretion, give credit for or refund payment for any periods when its Service is unavailable to
Customer through failure of Delmarva's network, but Delmarva shall not be required to give any
credit or refund for any lapse of service beyond Delmarva's control.
11. PAYMENT. All payments by Customer shall be subject to, in accordance with,
and in compliance with the following terms and conditions:
A. Payment Due in Advance. Customers shall pay in advance for the
charges for installation and activation of Service, as stated on the Purchase Order or Service
Order.
B. Due Date. All invoices for monthly service shall be due ten (10) days
from the billing date, or, by the last day of the month, whichever is later.
C. Customer Liable for Taxes. In addition to Delmarva's charges,
Customer also agrees to pay any federal, state, or local taxes, usage charges, or other fees
imposed on Customer or Delmarva and directly associated with Customer's Service or
Equipment owned by Delmarva.
D. Method of Payment. Payment shall be made by: check or money order;
preauthorized automatic charge to a credit or debit card; or automatic bank account withdrawal.
Customer shall promptly notify Delmarva of any changes to the credit or debit card or bank
account used for payment.
E. Returned Check Fees. In the event of a returned check, for any reason,
Customer shall be charged a returned check fee of Fifty ($50.00) Dollars.
F. Credit Card Disputes. In the event of a Credit Card Dispute and/or
Chargeback, Customer shall be charged a Dispute fee of Fifty ($50.00) Dollars.
G. Late Fee. If Customer fails to pay when due, Customer shall be charged a
late fee of the greater of Five ($5.00) Dollars or five (5%) percent of the amount due.
H. Suspension of Customer's Service for Non-Payment. If Customer fails to pay by the due date, then Delmarva may suspend Service without notice. To restart Service, Customer must pay all past due amounts, all current billing, and a re-activation fee of Fifteen ($15.00) Dollars unless a service call is required to restore service. If a service call is required to restore service the re-activation fee is Seventy-Five ($75.00). Delmarva reserves the right to require an additional security deposit up to the equivalent of three (3) months service to be paid prior to restoration of service.
I. Repossession of Equipment of Non-Payment. If Customer's account
remains past due for more than thirty (30) days, Delmarva may repossess Delmarva's Equipment
from Customer's premises. Customer hereby irrevocably consents to Delmarva's entry upon
Customer's premises for the purpose of repossessing Delmarva's Equipment. If Delmarva is
required to repossess any of Delmarva's Equipment, Customer shall be charged a repossession
fee of One Hundred Fifty ($150.00) Dollars.
J. Collection and/or Attorney Fees. In the event Delmarva is required to
refer Customer to collections or institute suit to collect money due from Customer, Customer
9
agrees to pay a collection fee and/or attorney fee of $500 or twenty-five (25%) percent of the
balance due, whichever is greater.
K. Services of Process. In any small claim action instituted by Delmarva in
the District Court of Maryland, Customer hereby consents to Service and Service of Process
upon Customer by email.
L. Waiver of Fees. As an accommodation to Customer, Delmarva may at
times waive late fees and/or other charges. Such waivers are based upon Customer's agreement
to comply fully with all future terms of payment, Customer's payment history, previous service
calls, length of service, and the time elapsed between the service call and cancellation of the
Service. Failure to comply fully with any future terms of payment, or, cancellation of the Service
within 36 months of any waived fee or charge may result in the waiver of fees or charges being
fully or partially rescinded and/or revoked, and, some or all of the waived fees or charges being
re-imposed.
M. Billing Questions: Delmarva will handle all billing questions via email to billing@delmarvawifi.com. Telephone assistace will only be available to update an existing credit card on file or for assistance processing payments.
N. Payment Center: Delmarva may elect to have Payment Center(s) available for Customer to drop off payment. This Payment Centers may be at locations not affiliated with Delmarva and are for payment drop-off only.
12. VIRUS PROTECTION AND ENCRYPTION. Virus protection and encryption
of the Service are Customer's responsibility.
A. Virus Protection. To prevent unauthorized persons from gaining access
to Customer's information or illegally gaining access to Customer's Service, which could result
in suspension or termination of Customer's account, Delmarva strongly recommends that
residential and/or business Customers protect all computers and other devices connected to the
Internet with firewalls and virus protection software, and, that those virus protection software
and firewalls be kept up-to-date. Delmarva does not provide such service. Delmarva can
recommend a third-party vendor to provide, install, and maintain such protection for Customer.
In the event Customer elects to use a third party vendor recommended by Delmarva, Delmarva
shall have no liability for any services or equipment provided to Customer by that third party
vendor.
B. Encryption. To prevent unauthorized access to Customer's service,
Delmarva also strongly recommends that in-home or in-office wireless networks be installed and
configured for maximum encryption. Delmarva does not provide such service. Delmarva can
recommend a third-party vendor to provide and install such encryption services. In the event
Customer elects to use a third party vendor recommended by Delmarva, Delmarva shall have no
liability for any services or equipment provided to Customer by that third party vendor.
C. Limitation of Liability. Whether or not Customer elects to install virus
protection and/or encryption software, Delmarva shall not be liable to Customer for any virus,
infections, or unauthorized access to Customer's account.
13. TERMS OF USE. Customer's use of the Equipment and the Service shall be
subject to, in accordance with, and in compliance with the following terms and conditions.
A. Lawful Use. Customer shall use the Equipment and/or Service in
accordance with all federal, state, and local laws, ordinances and regulations. Customer shall not
use the Equipment and/or Service for any unlawful purpose.
B. Detrimental Use. Customer shall not use the Equipment or Service in
any manner that could damage, disable, overburden, impair, or otherwise negatively or
detrimentally effect the operation of Delmarva's Network or Service, or, the WiFi operation and
use of equipment of any other third party individual or entity.
C. Unauthorized Access. Customer shall not attempt to gain unauthorized
access to data, accounts, servers, systems, or networks associated with the Service or services, or
to probe, scan, or test the vulnerability of a system or network associated with the service of any
other third party individual or entity.
D. Interference with Service. Customer shall not interfere with the Service
or services to any user, host, or network including, but not limited to, "mail-bombing,"
"flooding," or attempting to overload the system.
E. False Information. Customer shall not forge or falsify any TCP-IP
packet header or any part of the header or address information in an e-mail or a newsgroup
posting, or, otherwise conceal the sender's or the recipient's identify.
F. Mass E-mailings. Customer shall not use the Service to send or transmit
unsolicited mass e-mailings by, from, or through Delmarva's account or via another service.
G. Violation of the Terms of this Agreement. Customer shall not use the
Service to engage in activities that violate any terms or conditions of this Agreement or the terms
of use of any other network access provider or Internet service provider.
H. Improper Use. Customer shall not use the Service, or any another
service, to upload, post or otherwise distribute or facilitate distribution of any text,
communications, software, images, sounds, data, or any other electronically transmittable
information ("Content"), that, in Delmarva's judgment;
i. Is threatening or abusive; defamatory, libelous or slanderous;
indecent, obscene, or pornographic; fraudulent; or invasive of another's privacy;
ii. Victimizes, harasses, degrades, or intimidates any individual or
group of individuals on the basis of: religion; gender or sexual orientation; race or ethnicity; age
or disability; political views, opinions or affiliation; or any other reasons;
iii. Contains viruses, corrupted files, or any other similar software or
programs that may damage the operation of another's computer or software;
iv. Damages Delmarva's network and Service, including, but not
limited to, overloading servers on the network or causing portions of the network to be blocked
by other network providers.
14. NO RESALE OR JOINT USE. Customer may not resell the Service, retransmit
the Service, or make the Service available to anyone outside Customer's premises, house, and/or
household (i.e., by WiFi or other methods of networking or giving neighbors passwords or
access to Customer's Service). Unless specifically provided in Customer's Purchase or Service
Order, Customer may not use the Service for any commercial or business use or to host any type
of commercial or business server.
15. PROHIBITION ON UNSOLICITED BULK E-MAIL. Delmarva reserves the
right, without notice to Customer, to take all legal and technical steps available to prevent
unsolicited bulk e-mail or other unauthorized e-mail from being sent by, from, or through
Delmarva's Network. The transmission of unsolicited bulk e-mail may result in civil and
criminal penalties against the sender.
16. LIMITATION ON USE. Delmarva establishes Customer's monthly fee based
on the amount of data Customer represents Customer intends to upload and/or download each
month (bandwidth). Delmarva reserves the right to limit Customer's bandwidth based on the
type of Service Customer has requested and the associated price. If Delmarva concludes, in its
sole discretion, that Customer is exceeding what Delmarva considers to be a reasonable use for
the Service Ordered, Delmarva may in its sole discretion, at any time, including the initial term,
change, suspend, or terminate Customer's service.
17. DELMARVA'S RIGHT TO LIMIT CONTENT. Delmarva reserves the right
to monitor Content which is transmitted or accessed through the Service, and to remove Content,
disable sites, or suspend or terminate the Service to Customer if Delmarva determines such
Content or user practices are harmful, offensive, or otherwise in violation of Delmarva's policy.
18. DELMARVA RIGHT TO USE PUBLIC POSTINGS. By posting and/or
submitting Content to any Delmarva website, Customer grants Delmarva the right to use,
reproduce, display, adapt, modify, distribute, and have distributed the Content in any form,
anywhere, and for any purpose.
19. CUSTOMER WARRANTY OF OWNERSHIP OF CONTENT. Customer
also warrants and represents that Customer owns or otherwise controls all of the rights to the
Content of any public posting by Customer, and, that any public posting or use of Content by
Customer through the Service shall not infringe or violate the rights of any third party.
20. PROHIBITION AGAINST COPYRIGHT INFRINGEMENT. Except as
expressly authorized in writing, in advance, Customer may not use the Service in any manner
that would infringe, violate, dilute, misappropriate, or violate any copyrights, trademarks, service
marks, patents, and other proprietary rights, that protect the Content and materials available on
12
any Delmarva website or through the Service. Customer assumes full responsibility for use of
Content in which others have proprietary or intellectual property rights, and agrees not to
reproduce, broadcast, distribute, sell, publish, commercially exploit, or otherwise disseminate
any such Content over the Service without prior written consent from the Content owners or
rights holders. Furthermore, Customer agrees to indemnity and hold Delmarva harmless from
any liability Delmarva may incur as a result of Customer's violation of the terms of this
Paragraph.
21. USE OF DELMARVA'S NAME PROHIBITED. The Delmarva name, logo,
design marks, and trademarks, may not be used without the express written permission of
Delmarva.
22. SALE OF GOODS. The Service Delmarva provides Customer shall for all
purposes be considered, a service, and not a sale of goods.
23. WAIVER OF WARRANTIES. Customer waives any right to any warranty,
express or implied, statutory, regulatory, or common law, specifically including, but not limited
to, any warranty of fitness for a particular purpose.
24. LIMITED LIABILITY. Delmarva shall not be liable for any damages,
including property damages, resulting from installation or use of the Equipment by Customer or
any third party, including Delmarva's contractors.
25. INDEMNITY. Customer shall indemnify, defend, and/or hold Delmarva
harmless from any violation by Customer of any applicable law or regulation. Customer shall
further indemnify Delmarva for any claim or demand, including reasonable attorneys' fees, made
by any third party due to or arising from: Any information or Content that Customer submits,
posts, transmits or makes available through the Service; Customer's use of the Service or
Equipment; Customer's actual or alleged violation of this Agreement; and/or Customer's actual
or alleged violation of any rights of a third party.
26. SUSPENSION OR TERMINATION OF SERVICE FOR CAUSE. Delmarva
may suspend, Terminate, or limit Customer's Service, at any time, without any prior notice to
Customer, if:
A. Failure to Pay. Customer fails to pay any charge to Customer under the
terms of this Agreement;
B. Illegal and/or Prohibited Use. If Customer uses the Service for any
illegal, fraudulent, or any other use prohibited by this Agreement and/or any federal, state,
county, state, or municipal law or regulation.
C. Excessive Use. Customer's use exceeds any limitation on use imposed by
this Agreement or the Purchase Order or Service Order.
D. Violation of Terms of Use. Customer's violates the terms of use as set for
in Paragraph 12 of the Agreement.
27. PROTECTIVE ACTION BY DELMARVA. Delmarva reserves the right to
take any reasonably necessary action to protect any network or rights of Delmarva, any
Customer, and/or any third party.
A. Protective Action Defined. Customer acknowledges that such protective
action may include the use of methods or technologies to filter or block messages sent through
the Service, or, to notify others of attacks or the potential for attacks by viruses or sources of
"spam" from within Delmarva's network, and, that Delmarva specifically reserves the unilateral
right to filter "spam" or prevent "hacking," viruses," or other potential harms.
B. Suspension or Termination. Delmarva may suspend or Terminate
Service to any Customer, without prior notice, if, in Delmarva's sole judgment, such action is
required to protect its network.
C. Customer's Waiver of Liability. Delmarva shall not be liable to
Customer for exercising or failing to exercise any of Delmarva's rights under this Paragraph to
limit, suspend, or terminate the Service to Customer. Customer does hereby waive any claim
against Delmarva for Delmarva's reasonable actions under this Paragraph 27 of this
Agreement.
28. NO WARRANTY OF CONTENT. Customer acknowledges that Delmarva
offers no warranty, guarantee, or assurance regarding, and has no responsibility for, the accuracy,
completeness, appropriateness or utility of documents, graphics, photos, video or audio
streaming, music, and other Content or services provided by Delmarva or third parties over
Delmarva's Service. Customer also acknowledges that Delmarva is not responsible for any
actions of any third parties contacted by Customer over the Service.
29. PRIVACY. Except as may be provided in this Paragraph 29 of this Agreement,
Delmarva shall exercise care to preserve and maintain Customer's private information.
A. Information for Installation. .Delmarva shall take all reasonable
efforts to safeguard any Customer information that it collects in the
course of installation or providing service, except as to authorize
officials or agencies, as required by law.
B. Warranty Against Sale or Use of Private Information. Delmarva
warrants that it shall not sell Customer information. Nor shall
Delmarva share Customer information with third parties, except
Delmarva's contractors, and then only when required for the
performance of the contractor's service.
C. Delmarva Marketing Offers. Delmarva reserves the right to offer
additional services to its Customers, from time to time through
marketing offers. Any Customer may elect not to receive such
marketing offers, by notifying Delmarva by e-mail. In the even Customer fails to notify Delmarva that Customer does not wish to
receive such offers, Customer consents to receiving such offers.
D. Subpoenas, Search Warrants, and Wiretaps. Delmarva shall
honor, without any notice to Customer, any subpoena, search warrant,
and/or wiretap, from any court or law enforcement agency. Customer
waives and releases Delmarva from any liability for acting reasonably
in response to any subpoena, search warrant, or wiretap, and/or for any
failure by Delmarva to notify the Customer.
30. GENERAL DISCLAIMER. Delmarva disclaims, to the maximum extent
permitted by law, all warranties, representations, or other endorsements, express or implied,
without regard to the information accessed from or through the Service, the systems which
provide it, and the Internet, including all warranties of merchantability or fitness for a particular
use or purpose, or non-infringement of any third party rights. Delmarva does not assume any
liability for the completeness, accuracy, or usefulness of any information disclosed or materials
accessed. In no event shall Delmarva (or any persons or entities related thereto) be liable, in any
form of actions, for any special, indirect, or consequential damages associated with or arising
from use of the Service in any way, or, use of any Delmarva websites associated with the
Service, including any loss of use, loss of data, or loss of profits.
31. ENTIRE AGREEMENT. This Agreement and the incorporated Purchase Order
and/or Service Order contain the entire Agreement of the parties. There are no other promises,
conditions, or agreement between the parties, whether oral or written, except as are set forth in
this Agreement.
32. SEVERABILITY. Should any provision of this Agreement be found, held,
deemed, or adjudged, to be unenforceable, void or voidable, or contrary to law or public policy,
under the laws of the State of Maryland, any other state of the United States, the Government of
the United States, or any foreign jurisdiction, the Parties intend that the remaining provisions of
this Agreement shall nevertheless continue in full force and effect, and continue to be binding
upon the Parties, and their successors and assigns.
33. AGREEMENT TO REDACTING. In the event any court shall determine that
any term or terms of this Agreement are unenforceable as written, as being too broad or too
onerous or otherwise, the parties agree and direct that said court shall redact, modify, review,
and/or rewrite said term or terms to such extent that it or they are enforceable, but only to the
least extent possible to make such term or terms enforceable.
34. MODIFICATION OF AGREEMENT. Any Modification to the terms of this
Agreement shall be subject to the provisions of this Paragraph.
A. Not Modifiable by Conduct of the Parties. None of the provisions of
this Agreement shall be in any way altered, changed, canceled, abrogated, or annulled by
the conduct of the Parties.
B. Customer May Not Modify Agreement. Specifically, customer may not
modify the terms of this Agreement by any means, and, any email or other form of
Customer's intention to modify this agreement shall be null and void. Furthermore, the
Parties agree that the terms of this Agreement shall not be modifiable by any court,
except as is otherwise herein provided.
C. Delmarva's Right to Modify Agreement. Except as otherwise provided
herein, Delmarva specifically reserves the right to modify the terms of this Agreement
upon thirty (30) days' notice, by posting a revised Agreement on Delmarva's website.
Customer shall have the obligation to monitor Delmarva's website for any change in the
Agreement.
35. JURISDICTION FOR ENFORCEMENT OF THIS AGREEMENT. The
Parties expressly agree that the jurisdiction for any Court action to enforce the terms of this
Agreement, shall be the District Court of Maryland, without regard to where one or both of the
Parties may reside at the time said action is commenced. Only if the amount in controversy
exceeds the jurisdictional limit of the District Court may an action be filed in the Circuit Court.
36. VENUE FOR ENFORCEMENT OF THIS AGREEMENT. The Parties
expressly agree that the venue for any other Court action to enforce the terms of this Agreement,
shall be Kent County, Maryland, without regard to where one or both of the Parties may reside at
the time said action is commenced.
37. WAIVER OF TRIAL BY JURY. The Parties mutually agree to waive their
right to a trial by jury for any action, proceeding, or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of, or in any way connected with
this Agreement.
38. APPLICABLE LAW FOR ENFORCEMENT OF THIS AGREEMENT. This Agreement, and all the terms hereof, shall be interpreted according to the laws of the State
of Maryland, without regard to where one or both of the Parties may reside at the time of said
interpretation, and, without regard to where the cause of action may be commenced and/or heard.
39. INTERPRETATION OF AGREEMENT. No provision of this Agreement
shall be interpreted for or against any Party hereto by virtue of the fact that said Party, or the
Party's legal representatives, drafted all or any part of this Agreement.
40. BINDING EFFECT ON SUCCESSORS AND HEIRS. The terms of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
41. CAPTIONS AND TITLES. The captions and titles contained in this Agreement
are for reference purposes only and shall have no effect upon the enforceability or interpretation
of the terms of the Agreement.
42. WAIVER. The failure of either party to enforce any provisions of this
Agreement shall not be construed as a waiver or limitation of that party's right to subsequently
enforce and compel strict compliance with every provision of this Agreement. Specifically,
Delmarva may (re)impose any late fees or other charges Delmarva may have previously waived
as an accommodation to Customer, or otherwise.
43. NOTICES. Any notice shall be made as follows:
A. Effective Notice to Customer. Any notice shall be considered effective if
e-mailed, or hand delivered, or mailed first class mail to the address provided by the Customer in
the Purchase Order or Service Order.
B. Effective Notice to Delmarva. Any notice to Delmarva shall be made by
email, or certified mail to the address Delmarva provided above.