D&E COMMUNICATIONS TERMS AND CONDITIONS
D&E JAZZD PHONE SERVICE FOR BROADBAND
These Terms and Conditions
constitute the agreement ("Agreement") between D&E Communications
d/b/a D&E Networks, Inc. and its affiliates and the user (“you”,
"user" or "Customer") of D&E Communication's enhanced
communications Services and any related products or Services
("Service"). This Agreement
governs both the Service and any devices, such as an IP phone, Multimedia
Terminal Adapter, Phone Adapter, Analog Telephone Adapter or any other IP
connection device, (all such devices or equipment furnished by D&E
Communications at any time during the term of this agreement shall hereinafter
be referred to as “Device" or "Equipment") used in conjunction
with the Service. By establishing,
activating, using, and/or paying for the Service, Customer acknowledges that
they have read and understood, and agree, to the terms and conditions of this
Agreement, and Customer represents that they are of legal age to enter this
Agreement and become bound by its terms.
This Agreement governs the Service and any device, website, or software
used in conjunction with the Service.
1. SERVICE
1.1 Service Term;
Service is offered on a
monthly basis for a period that begins on the date that D&E Communications
activates Service and ends on the day before the same date in the following
month. This Agreement automatically
renews for subsequent monthly terms without further action by you unless you
give D&E Communications written notice of non-renewal at least ten days
before the end of the then-current monthly term. Expiration of the term or cancellation of the Service does not
excuse you from paying all unpaid, accrued charges due in relation to the
Agreement.
1.2 Service Requirements:
The Service requires a
telephone adapter (Jazzd Phone Adapter) obtained through D&E Communications
that allows you to place and receive calls through a regular telephone by using
your high-speed or broadband Internet connection, which you need to supply at
your own expense. We recommend that
your high-speed connection have a capacity of at least 90 Kbps upstream and
downstream. By
activating and paying for the Service, you acknowledge that the Service depends
on your high-speed or broadband Internet connection, the correct configuration
of the Telephone Adapter, and an adequate power supply, and D&E
Communications does NOT guarantee continuous access or availability. You acknowledge and understand that the
service will NOT function in the
absence of electrical power or if there is an interruption of your high-speed
or broadband Internet connection. If a
power failure occurs, you may be required to reset or reconfigure equipment in
order to restore the Service.
1.3 Service Limitations:
By activating and paying for
the Service, you acknowledge and accept that the Service may not be compatible
will all non-voice communications equipment, including but not limited to fax
machines, home security systems, medical monitoring equipment, satellite
television systems, computer modems and some analog or rotor type
telephones. You waive any claim against
D&E Communications for interference, damage to, or disruption of such
services or equipment.
1.4 Your Responsibility for
Using the Service:
You acknowledge and agree you
are fully responsible for ALL use
on your account, you accept full liability and responsibility for the actions
of anyone who uses the Service via your account with or without your
permission. You are responsible for
safeguarding your usernames and password, as well as the identifier of the
telephone adapter (referred to as the “MAC Address”), which D&E
Communications uses to authenticate usage on your account. Some of your calls may be transmitted over
the public Internet, and you are aware that the Internet is NOT a secure
network, and that third parties may be able to intercept, monitor, or corrupt
information you transmit over the Internet.
You waive any claim against D&E Communications for damage or losses
caused by third parties intercepting, monitoring, or corrupting information or
calls made using the Service.
1.5 Use of Service and
Device:
Unless otherwise indicated,
the use of Service is restricted to Customer, his agents and representatives,
and members of his business or household.
Customer shall not use the Service or permit others to use it in such
manner as to interfere with the Service of other subscribers. This also means that Customer is not to
resell or transfer the Service or the Device to any other person for any
purpose, or make any charge for the use of the Service, without express written
permission from D&E Communications in advance. Customer agrees to use the Service and Device only for lawful
purposes. This means that Customer
agrees not to use them for transmitting or receiving any communication or
material: of any kind when, in D&E Communication's sole judgment, the
transmission, receipt or possession of such communication or material (i) would
constitute a criminal offense, give rise to a civil liability, or otherwise
violate any applicable local, state, national or international law or (ii)
encourages conduct that would constitute a criminal offense, give rise to a
civil liability, or otherwise violate any applicable local, state, national or
international law. D&E
Communications reserves the right to terminate Service immediately and without
advance notice if D&E Communications, in its sole judgment and discretion,
believes that Customer has violated the above restrictions. Customer is liable for all charges for use
of the Service and/or Device by any person making use of the Service or Device
provided to Customer and agrees to indemnify and hold harmless D&E
Communications against any and all liability for any such use. If D&E Communications, in its sole
discretion, believes that Customer has violated the above restrictions, D&E
Communications may forward the objectionable material as well as Customer’s
communications with D&E Communications and any personally identifiable
information, to the appropriate authorities for investigation and prosecution,
and Customer hereby consents to such forwarding.
While D&E Communications
encourages use of the Service within the United States, D&E Communications
does not presently offer or support the Service to customers located in other
countries. If Customer removes the
Device to a country other than the United States and uses the Service from
there, Customer does so at his/her own sole risk, including the risk that such
activity violates local laws. Customer is liable for any and all such use of
the Service and/or Device by any person and shall indemnify and hold harmless
D&E Communications against any and all liability for any such use. D&E
Communications reserves the right to terminate Service immediately and without
advance notice if it determines that Customer is using the Device or Service
outside the United States.
1.6 Prohibited Uses of
Service:
You are expressly prohibited
from reselling or transmitting the Service or Jazzd Phone for Broadband
Equipment to any other person for any purpose, without express written
permission from D&E Communications in advance. In addition, you are prohibited from using the service for
auto-dialing, continuous or extensive call forwarding, telemarketing, fax broadcasting
or fax blasting, or for uses that result in excessive usage inconsistent with
normal residential or home office usage patterns. In addition, connection of your Service to a device, which
converts use of the Service to an outbound trunkline by more than one
individual, is prohibited. If D&E
Communications determines, in its sole discretion, that you are reselling or
transferring the Service or that your Service is being used for any of the
aforementioned activities, D&E Communications reserves the right, without
advance notice, to immediately terminate or modify the Service, or to change
your calling plan to a different offer on a prospective basis, and in addition,
to assess additional charges for each month in which excessive usage
occurred. If you subscribe to a calling
plan which includes unlimited calling of any type, unless otherwise specified
by your specific plan in marketing materials associated therewith, any usage in
excess of 5,000 aggregate minutes per month (or 7,500 minutes for small office
home office plans (SOHO Plans), taking into account all types of calling in
your plan which are provided on an unlimited basis, shall be presumed to be
inconsistent with these restrictions and shall be subject to the conditions
above. D&E Communications also
reserves the right to impose usage caps on second lines offered as part of a
Service offer or plan.
1.7 Loss of Service:
Customer understands that the
Service does NOT function in the
event of power failure. Customer also
understands that the Service requires a fully functional broadband connection
to the Internet and that, accordingly, in the event of an outage of, or
termination of Service with or by, the Internet Service provider
("ISP") and/or broadband provider, the Service will not function. Notwithstanding the occurrence of any such
event, Customer shall be obligated to pay for and will continue to be billed
for the Service until Customer or D&E Communications terminates the Service
in accordance with this Agreement.
Power disruptions or failures
or ISP outages will also prevent dialing to emergency service numbers including
911. Should D&E Communications
suspend or terminate Service, the Service will not function until such time as
D&E Communications restores Service.
1.8 Copyright / Trademark:
The Service and Device and any
firmware or software used to provide the Service or provided in conjunction
with providing the Service, or embedded in the Device, and all Services,
information, documents and materials on D&E Communication's website(s) are
protected by trademark, copyright or other intellectual property laws and
international treaty provisions. All
websites, corporate names, service Marks, trademarks, trade names, logos and
domain names (collectively "the Marks") of D&E Communications are
and shall remain the exclusive property of D&E Communications, and nothing
in this Agreement shall grant the right or license to use any of the
Marks. Customer acknowledges that
he/she is not given any license to use the firmware or software used to provide
the Service or provided in conjunction with providing the Service, or embedded
in the Device, other than a nontransferable, revocable license to use such
firmware or software in object code form (without making any modification
thereto) strictly in accordance with the terms and conditions of this
Agreement.
1.9 Tampering with the
Device or Service:
Customer agrees not to change
the electronic serial number or equipment identifier of the Device, or to
perform a factory reset of the Device, without express permission from D&E
Communications, which permission, in each instance, D&E Communications may
deny at its sole discretion. D&E
Communications reserves the right to terminate Service should customer tamper
with the Device. Customer agrees not to
hack or disrupt the Service or to make any use of the Service that is
inconsistent with its intended purpose or to attempt to do so.
1.10 Theft of Service:
Customer shall bear all risk
of loss of, theft of, casualty to or damage to the Device, from the time it is
shipped until the time (if any) when it is returned and has been received by
D&E Communications. Customer agrees
to notify D&E Communications immediately, in writing or by calling the
D&E Communications Customer Service, if the Device is stolen or if customer
becomes aware at any time that his/her Service is being stolen or fraudulently
used. When customer calls or writes,
customer must provide his/her account number and a detailed description of the
circumstances of the Device theft or fraudulent use of Service. Failure to do so in a timely manner may
result in the termination of Service and additional charges to customer. Until such time as D&E Communications
receives notice of the theft or fraudulent use, customer will be liable for all
use of the Service using a stolen Device and any and all stolen Service or
fraudulent use of the Service.
1.11 0+ Calling and X11 Number Calling:
D&E Communication’s
Service does not support 0+ calling (including without limitation collect,
third party billing or calling card calling).
D&E Communication’s Service does not support X11 (such as 211, 311
and 411) Services other than 911 (see below) in one or more (or all) Service
areas.
1.12 Local Number
Portability, Telephone Numbers, and 911/E911 Services for Number Changes,
Adding Additional Numbers and Porting of New Numbers:
If you would like to transfer
an existing phone number which is currently subscribed to a carrier other than
D&E Communications for local, local toll, and/or long distance
telecommunications services, the following terms and conditions apply:
(1)
You
hereby authorize D&E Communications to process your order for Jazzd Phone
Service for Broadband and to notify your current local telephone company of
your decision to switch local, local toll, and long distance services to
D&E Communications, and represent that you are authorized to take this
action;
(2)
You
acknowledge and agree that you must successfully install and activate the
Device supplied by D&E Communications prior to the date that the number
switch becomes effective (“Number Porting Effective Date”). You will only be able to make outgoing calls
only over the phone you have connected to the Device. In such event, you should keep another phone connected to an
existing phone extension at your service location to receive incoming calls
until the Number Porting Effective Date, after which you will be able to make
and receive calls using the Device with the Service; and
(3)
You
agree and acknowledge that if your Device is not installed or activated prior
to the Number Porting Effective Date, your existing phone service for the
number you are transferring will be disconnected
and you will have no service on that line.
Therefore, to avoid an interruption in your phone service, IT IS EXTREMELY IMPORTANT THAT YOU INSTALL AND ACTIVATE THE
DEVICE AND SERVICE PRIOR TO, OR ON, THE NUMBER PORTING EFFECTIVE DATE. D&E Communications,
following your completion of the ordering process, will send an estimate of the
Number Porting Effective Date to you via email.
(4)
You
agree and acknowledge that D&E Communications has the right to refuse to
import, transfer, and/or port a number if, in its sole discretion, it does not
have the infrastructure to support the number, or does not have interconnection
agreements with your local telephone company to port your number, and/or if
porting your number would cause you to lose your broadband or high-speed
Internet connection because the phone number you wish to port or transfer is
tied to that broadband or high-speed Internet connection.
(5)
You
may not sell any telephone number assigned by D&E Communications
(“Number”).
(6)
Upon
termination of the Service, D&E Communications may, in its sole discretion,
release a Number that was ported in from a previous service provider to D&E
Communications by you and used in connection with the Service provisioned by
D&E Communications to your new service provider, if such new service
provider is able to accept such a Number, provided that your entire account has
been terminated, you have returned all the equipment supplied to you by D&E
Communication in connection to the Service, that you have paid all charges due
to D&E Communications, and that you request the transfer upon terminating
your account.
(7) You acknowledge, agree, and
understand that 911 dialing does not function if you change phone numbers or
(for such newly added or ported numbers) if you add or port new numbers to your
account, unless and until you have successfully activated Enhanced 911 (E911)
information for your changed, newly added or newly ported number by following
the instructions from the 911/E911 Emergency Services section in “My Assistant”
web portal and have received a confirmation email
from D&E Communications that the activation of Enhanced 911 (E911)
information was successful. Although
you may have activated Enhanced 911 (E911) information with your former D&E
Communications’ Jazzd Phone Service for Broadband phone number, you MUST separately request to activate Enhanced
911 (E911) information for any and all changed or newly added or ported numbers
and receive a confirmation email
from D&E Communications that the activation of Enhanced 911 (E911)
information was successful. (Please refer to
Section 2. Emergency Services – 911 Dialing for more information on 911/E911
Emergency Services)
1.13 Audit and Law Enforcement:
2.
EMERGENCY SERVICES- 911 and Enhanced 911 (E911) DIALING
2.1 PLEASE READ THIS
INFORMATION REGARDING 911 and Enhanced 911 (E911) VERY CAREFULLY. BY ACTIVATING, USING, AND PAYING FOR THE SERVICE,
YOU ACKNOWLEDGE AND AGREE TO THE LIMITIONS OF D&E COMMUNICATIONS 911
EMERGENCY DIALING SERVICE, AND UNDERSTAND THE DISTINCTIONS BETWEEN SUCH SERVICE
AND TRADITIONAL 911 OR E911 CALLS.
2.2 Emergency Services:
Customer acknowledges and
understands that the Service does NOT
support traditional 911 or E911 access to emergency Services. D&E Communications does offer a limited
911-type Service available only on D&E Communications Devices or
Equipment and subject to
limitations as further described herein.
Limited 911-type service is only available in selected service areas as identified on D&E’s customer web portal and website (www.jazzdphone.com). Even if the limited 911-type Service is available
in Customer’s service area, customer acknowledges and understands that
911-type dialing is NOT
automatically available, that the customer must separately take affirmative
steps, as described in this Agreement and on D&E Communication’s website,
to activate such 911-type dialing capabilities and that such 911-type dialing
is different in a number of important ways from traditional 911 Service. D&E Communications 911 dialing is only
available on D&E Communications-certified Devices or Equipment in selected
service areas. Customers should consult
www.jazzdphone.com and/or D&E’s customer web portal
called “My Assistant” and under 911/E911 Emergency Service to determine if
D&E Communications 911 dialing is available in his or her area. Whether or not D&E 911 dialing is activated
through the Service, Customer should always have an alternative means of
accessing traditional 911 and/or E911 Services. Customer acknowledges and understands that the Service does NOT support 911 dialing via a Soft Phone
application.
The 911-type dialing Service
offered by D&E Communications in the U.S. is different in a number of
important ways from traditional 911 Service.
Customer must successfully activate the 911-dialing feature by supplying
correct and complete Physical Address and/or Registered Location of the D&E
Communications Equipment at the time of sign up and must following the instructions
located on-line at D&E Communication’s customer web portal called “My
Assistant” and under 911/E911 Emergency Services to update the Physical
Address and/or Registered Location of the D&E Communications Equipment if
customer moves. Customer acknowledges and understands that
he/she cannot dial 911 from this line until he/she has received a confirming email. Once the Customer has received a confirming email that Enhanced
911 (E911) Information has been successfully activated, the Customer may dial
911 as needed, but only from the specific physical address or registered location provided to D&E at
the time of sign up or on
the supplemental 911 form filled out on D&E’s website; use of the Service
to dial 911 from any other physical location will result in a failure of 911
service to identify Customer and Customer’s location accurately. If the Customer activates D&E
Communications 911-type dialing Service, the Customer agrees to inform any
household residents, guests and other third persons who may be present at the
physical location where the Service is utilized about the important differences
and limitations of D&E Communications 911 dialing Service as compared with
traditional 911 or E911 dialing that are set forth in this Agreement. If the Customer desires to use this service
at a different physical address or update their registered location of
the D&E Communications Equipment, the Customer MUST
go on-line, fill out a new request to active Enhanced 911 (E911) Information
service request form and receive a confirming
email before 911 service can be transferred to the new physical location. Failure to do so will terminate immediately
any liability on the part of D&E for provision of 911 services. Neither D&E Communications nor its
officers or employees shall be liable for any claim, damage, or loss, and
customer hereby waives any and all such claims or causes of action, arising
from or relating to 911 dialing unless it is proven that the act or omission
proximately causing the claim, damage, or loss constitutes gross negligence,
recklessness, or intentional misconduct on the part of D&E Communications.
Customer acknowledges, agrees, and understands that 911 dialing does not
function if Customer change phone numbers or (for such newly added or ported
numbers) if Customer adds or ports new numbers to Customers account, unless and
until Customer has successfully activated Enhanced 911 (E911) information for
Customers’ changed, newly added or newly ported number by following the
instructions from the 911/E911 Emergency Services section in “My Assistant” web
portal and has received a confirmation email
from D&E Communications that the activation of Enhanced 911 (E911)
information was successful. Although
Customer may have activated Enhanced 911 (E911) information with Customers’
former D&E Communications’ Jazzd Phone Service for Broadband phone number,
Customer MUST separately request
to activate Enhanced 911 (E911) information for any and all changed or newly
added or ported numbers and receive a confirmation
email from D&E Communications that the activation of
Enhanced 911 (E911) information was successful. Customer agrees to indemnify and hold harmless D&E
Communications from any claim or action arising out of misroutes of 911 calls,
including but not limited to Customer’s failure to follow correct activation
procedures for 911 calling or Customer’s provision to D&E Communications of
incorrect information in connection therewith.
Customer understands that suspension or termination of service by its
broadband provider and/or ISP or by D&E Communications will prevent ALL
Service, including 911 dialing.
Customer understands that Service outages due to suspension of account
as a result of billing issues will prevent ALL Service, including 911
dialing. Customer understands that a
power outage will prevent ALL Service, including 911 dialing.
2.3 Power Outage:
You acknowledge and understand that 911 dialing does not function in the event of a power
failure. Should there be an
interruption in the power supply, neither the Service nor 911 dialing will
function until power is restored. A
power failure or disruption may require the Customer to reset or reconfigure
equipment prior to utilizing the Service or 911 dialing.
2.4 Requires Activation:
You acknowledge and understand that 911 dialing does not function until you have successfully
activated the 911 dialing feature by providing your current and correct
physical address and registered location of the D&E Communications
equipment at the time of sign up and following
the instructions from the 911/E911 Emergency Services link on D&E
Communication’s customer web portal (www.jazzdphone.com)
if you move or relocate the D&E Communications equipment, and until such
later date that such activation has been confirmed to you through a confirming email. You acknowledge and understand that you cannot dial 911 from this
Service unless and until you have received a confirming
email.
2.5 Failure to Designate the Correct Physical Address and
Registered Location When Requesting to Activating Enhanced 911 (E911)
Information:
Failure to provide the current and correct physical address
and location of your D&E Communications equipment will result in any 911
call you may make being routed to the incorrect local emergency service
provider and will result in an incorrect address being provided for dispatch of
emergency personnel.
2.6 Requires Re-Activation if You Change Your Number:
You acknowledge and understand that 911 dialing does not function if you change your phone
number unless and until you have successfully activated the 911 dialing feature
following the instructions from the 911/E911 Emergency Services link on D&E
Communication’s customer web portal called “My Assistant” for that new
location, and until such later date that such activation has been confirmed to you through a confirming email. Although you may have activated Enhanced 911
(E911) Information with your former D&E Communications phone number, you
must separately request to activate Enhanced 911 (E911) Information for any new
number and receive a confirmation email
that your enhanced 911 (E911) information has been successfully activated on
you new number.
2.7 Change of Physical Address or Registered Location of
D&E Communications Equipment:
You acknowledge and understand that 911 dialing does not function properly or may not function
at all if you take your D&E Communications equipment with you away from the
physical address or registered location that you have designated.
2.8 Requires Re-Activation or Updating of Your Physical
Address or Registered Location if You Move:
You acknowledge and understand that 911 dialing does not function properly or at all if you
move or change the physical address or registered location of your D&E
Communications equipment to a different street address, unless and until you
have successfully activated or updated your physical address and/or registered
location with correct and complete Enhanced 911 (E911) Information by following
the instructions from the 911/E911 Emergency Services link on D&E
Communication’s customer web portal called “My assistant” at
(www.jazzdphone.com), and until such later date that such activation has been
confirmed to you through a confirming email. Although you may have activated Enhanced 911
(E911) Information using your former address, you must separately request to
activate Enhanced 911 (E911) Information for any new physical address. Failure to provide
the current and correct physical address and location of your D&E
Communications equipment will result in any 911 call you may make being routed
to the incorrect local emergency service provider and will result in an
incorrect address being provided for dispatch of emergency personnel.
2.9 Possibility of Network Congestion and/or Reduced Speed
for Routing 911 Calls:
Due to the manner in which it is technically possible to
provide the 911 dialing feature for D&E Communications calls at this time,
you acknowledge and understand that there is a greater possibility of network
congestion and/or reduced speed in the routing of a 911 call made utilizing
your D&E Communications equipment as compared to traditional 911 dialing
over traditional public telephone networks.
2.10 Automated Number Identification (“Basic 911”):
Basic 911 Dialing is only available for the counties
identified on the D&E customer website (www.jazzdphone.com)
and/or web portal called “My Assistant”; and if it has been properly activated
configured for service and you have received a confirmation
email. D&E
Communication’s 911 Dialing service is configured to send automated number
identification information upon activation of the service and receipt by the
user of a confirmation email
acknowledging its registration with the Public Service Answering Point (PSAP)
to which the service has been enabled.
However, the phone system that transmits the call to the PSAP and the
PSAP itself must be able to receive the information and pass it along properly,
and they are not yet always technically capable of doing so. You acknowledge and understand that PSAP and
emergency personnel may or may not be able to identify your phone number in
order to call you back if the call is unable to be completed, is dropped or
disconnected, if you are unable to speak to tell them your phone number and/or
for a variety of reasons, including those listed in the Limitation of Liability
Section below.
2.11 Automated Location Identification (“E911”):
E911 Dialing is only available for the counties identified
on the D&E customer website (www.jazzdphone.com)
and/or web portal called “My Assistant” and if it has been properly activated,
configured for service and you have received a confirmation
email. D&E will deliver the physical address or registered
location information supplied by you on activation of the service to the Public
Service Answering Point (PSAP) for E911 Dialing. However, the phone system that transmits the call to the PSAP and
the PSAP itself must be able to receive the information and pass it along
properly, and they are not yet always technically capable of doing so. If the physical address or registered
location information you supplied at sign up or updated when your physical
address changes and is not correct, the emergency call placed may be directed
to the incorrect PSAP, resulting in the possible inability of emergency
responders to provide the needed help and assistance. You acknowledge and understand that you will need to state the
nature of your emergency promptly and clearly, including your location, as PSAP
personnel will only have the physical address information you supplied on
activation of the service. You
acknowledge and understand that the PSAP and emergency personnel will not be
able to find your location if the call is unable to be completed, is dropped or
disconnected, if you are unable to speak to tell them your location and/or for
a variety of reasons, including those listed in the Limitation of Liability
Section below.
2.12 General Limitations of Liability:
D&E Communications shall not be liable for any failure
to provide the 911 dialing service.
D&E Communications shall not be liable for any failure
to provide the Service at any time or from time to time, or any degradation of
voice quality, that is caused by any of the following:
- act or omission of an underlying
carrier;
- equipment, network or facility
failure;
- equipment, network or facility
upgrade or modification;
- force majeure events such as
(but not limited to) acts of god; strikes; fire; war; riot; government actions;
- equipment, network or facility
shortage;
- equipment or facility
relocation; or
- any other cause that is beyond
D&E Communication's control, including without limitation the failure of an
incoming or outgoing call to be connected or completed, including a 9-1-1
emergency call, or degradation of voice quality.
D&E Communication's liability
for any failure or mistake shall in no event exceed Service charges on account
of the affected time period. D&E
Communications is not liable for incidental or consequential damages of any
type.
3.
CHANGES TO THIS AGREEMENT
3.1 Changes to This
Agreement
D&E Communications may change
the terms and conditions of this Agreement from time to time. Notices will be considered given and
effective on the date posted on D&E Communication’s website (currently
located at http://www.jazzdphone.com). Such changes will become binding on
Customer, on the date posted to the website and no further notice by D&E
Communications is required. Notice will
be considered received by you and any such changes will become binding and
effective on the date the changes are posted to the D&E Communications
Jazzd Phone Service for Broadband website.
IF YOU CONTINUE TO BE ENROLLED IN, USE, OR PAY FOR THE SERVICE AFTER
ANY AND CHANGES IN THE PRICE OR TERMS AND CONDITIONS, SUCH USE OR PAYMENT WILL
CONSTITUTE YOUR AGREEMENT TO THE CHANGES.
This Agreement as posted supersedes all previously agreed to electronic
and written terms and conditions.
4.
CHARGES / PAYMENTS / DISPUTES / TAXES / TERMINATION
4.1 Billing
Customer must provide a valid
credit card number (Visa, MasterCard, and Discover are accepted by D&E
Communications) when the Service is activated.
D&E Communications reserves the right to stop accepting credit cards
from one or more issuers. If the card
expires, Customer closes his/her account, Customer’s billing address changes,
or the card is cancelled and/or replaced owing to loss or theft, and Customer
must immediately advise D&E Communications. D&E Communications will bill all charges, applicable taxes
and surcharges monthly on the first billing cycle of each month. Charges will be billed in advance except for
usage-based charges and any other charges that D&E Communications bills
monthly in arrears. Charges will be prorated
for the period Service was initiated to the date of the first billing cycle. Credits will be prorated for the period
Service was disconnected to the end of the billing cycle. Any usage charges will be billed in
increments that are rounded up to the nearest minute.
4.2 Billing Disputes
Customer must notify D&E
Communications in writing or by calling D&E Communications Customer Service
within 10 days after receiving their credit card statement if they dispute any
D&E Communications charges on that statement or such dispute will be deemed
waived. Disputes must identify the
specific charge in question. Only the
specific disputed amount will be considered refundable and the Customer cannot
dispute the entire bill. If D&E
Communications determines that the disputed charge is not proper in whole or in
part, D&E Communications will issue a credit to the Customer’s credit card
account and will notify the Customer via email or telephone. Billing disputes should be sent to the
following address:
Customer
Service
P.O.
Box 458
4139
Oregon Pike
Ephrata,
PA 17522-0458
1-800-321-6112
custservderes@decommunications.com
The Customer must
provide the date of the bill; the specific item(s) in dispute; a description of
why the Customer disputes the charge; his or her name, address, telephone
number and email address; and any other pertinent information the Customer
deems important to substantiate and process the billing dispute. Failure to provide this information will
render a dispute invalid and no credit will be provided.
4.3 Payment:
D&E Communications accepts
payments only by credit card as set forth in Section 4.1.
4.4
Termination/Discontinuance of Service:
Customer MUST
call or email D&E Communication’s Customer Service to cancel service. When canceling Service, Customer MUST
obtain from D&E Communications a “Return Material Authorization” (RMA)
number to return the Device. There is a
disconnect fee of $100.00 per voice line that will be credited if the Device is
returned within 15 Business days from the day the RMA was
issued; in its original packaging, including all associated parts,
accessories, documentation, packaging materials, a completed Equipment Return
Form and the RMA number written on the outside of the return packaging to the
address supplied by D&E Communications. Returns must be shipped to the address
provided by D&E Communications. Customer is responsible for the cost and
risk of return shipping. CREDIT WILL
NOT BE ISSUED FOR EQUIPMENT THAT DOES NOT HAVE A VALID RMA NUMBER, COMPLETED
EQUIPMENT RETURN FORM, MISSING OR DAMAGED EQUIPMENT, AND/OR IS RETURNED AFTER
15 BUSINESS DAYS FROM THE DATE THE RMA IS ISSUED. D&E Communications reserves the right to suspend or
discontinue providing the Service generally, or to terminate Service at any
time at its sole discretion. If D&E
Communications discontinues providing the Service generally, or terminates
Service at its discretion without a stated reason, Customer will only be
responsible for charges accrued through the date of termination, including a
pro-rated portion of the final month's charges. If Service is terminated for any stated reason, including,
without limitation, Customer’s violation of this Agreement, or any improper use
of the Service or Device, Customer will be responsible for the full month's
charges to the end of the current term including, without limitation, unbilled
charges, all of which immediately become due and payable.
4.5 Taxes:
Customer is responsible for,
and shall pay, any applicable federal, state, provincial, municipal, local or
other governmental sales, use, excise, value-added, personal property, public
utility or other taxes, fees or charges now in force or enacted in the future,
that arise from or as a result of Customer’s subscription or use or payment for
the Service or a Device. Such amounts
are in addition to payment for the Service or Devices and will be billed to
Customer’s credit card as set forth in this Agreement. If Customer is exempt from payment of such
taxes, Customer shall provide D&E Communications with an original certificate
that satisfies applicable legal requirements attesting to tax-exempt
status. Tax exemption will only apply
from and after the date D&E Communications receives such certificate.
4.6 Commitment to Quality
Guarantee; Limitations and Conditions:
The Commitment to Quality
Guarantee applies to the installation and provision of Service. Under this program, a refund of charges will
be awarded to Customer if Customer terminates Service within 30 days of the
start of service date. Requests must be
made by contacting D&E Communication’s Customer Service via telephone or by
email.
4.7 Payphone Charges:
If Customer makes use of any
toll free feature that may be offered by D&E Communications in the future,
Customer agrees that D&E Communications is entitled to recover from
Customer any charges imposed on D&E Communications by payphone owners or
operators, either directly or indirectly through D&E Communication’s
suppliers, in connection with toll free calls made to Customer’s number, or any
charges imposed on D&E Communications by its suppliers to recover such
costs. D&E Communications may
recover these amounts by means of a per-call charge, rounded up to the next
cent, or in such other fashion, as D&E Communications deems appropriate for
the recovery of these costs.
5.
WARRANTY and LIABILITY LIMITATIONS / INDEMNIFICATION
5.1 Limitation of Liability:
D&E Communications shall
not be liable for any delay or failure to provide the Service, including 911
dialing, at any time or from time to time, or any interruption or degradation
of voice quality that is caused by any of the following:
1) act or omission of an underlying carrier,
service provider, vendor or other third party;
2) equipment, network or facility failure;
3) equipment, network or facility upgrade or
modification;
4) force majeure events such as (but not limited to) acts of god;
strikes; fire; war; riot; government actions;
5) equipment, network or facility shortage;
6) equipment or facility relocation;
7) Service, equipment, network or facility
failure caused by the loss of power to Customer;
8) outage of Customer’s ISP or broadband service
provider;
9) act or omission of Customer or any person using the Service or
Device provided to Customer; or
10)
any
other cause that is beyond D&E Communication's control, including without
limitation a failure of or defect in any Device, the failure of an incoming or
outgoing communication, the inability of communications (including without
limitation 911 dialing) to be connected or completed, or degradation of voice
quality.
D&E Communication's aggregate liability for (i)
any failure or mistake; (ii) any claim with respect to D&E Communication’s
performance or nonperformance hereunder or (iii) any D&E Communications act
or omission in connection with the subject matter hereof shall in no event
exceed Service charges with respect to the affected time period.
5.2 Disclaimer of Damages:
IN NO EVENT SHALL D&E
COMMUNICATIONS, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES OR AGENTS OR ANY
OTHER SERVICE PROVIDER WHO FURNISHES SERVICES TO CUSTOMER IN CONNECTION WITH
THIS AGREEMENT OR THE SERVICE BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT,
SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER
DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOSS OF REVENUE OR PROFITS,
OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE
SERVICE, INCLUDING INABILITY TO BE ABLE TO DIAL 911 OR TO ACCESS EMERGENCY
SERVICE PERSONNEL THROUGH THE SERVICE.
THE LIMITATIONS SET FORTH HEREIN APPLY TO CLAIMS FOUNDED IN BREACH OF
CONTRACT, BREACH OF WARRANTY, PRODUCT LIABILITY, TORT AND ANY AND ALL OTHER
THEORIES OF LIABILITY AND APPLY WHETHER OR NOT D&E COMMUNICATIONS WAS
INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES.
5.3 Indemnification:
Customer agrees to defend, indemnify,
and hold harmless D&E Communications, its officers, directors, employees,
affiliates and agents and any other service provider who furnishes services to
Customer in connection with this Agreement or the Service, from any and all
claims, losses, damages, fines, penalties, costs and expenses (including,
without limitation, reasonable attorneys fees) by, or on behalf of, Customer or
any third party or user of Customer's Service, relating to this Agreement, the
Services, including 911dialing, or a Device.
This paragraph shall survive termination of this Agreement.
5.4 No Warranties on
Service:
D&E COMMUNICATIONS MAKES
NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS OF THE SERVICE FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF
DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE SERVICE WILL MEET
CUSTOMER’S REQUIREMENTS. WITHOUT LIMITING
THE FOREGOING, D&E COMMUNICATIONS DOES NOT WARRANT THAT THE SERVICE WILL BE
WITHOUT FAILURE, DELAY, INTERRUPTION, ERROR, and DEGRADATION OF VOICE QUALITY
OR LOSS OF CONTENT, DATA OR INFORMATION.
NEITHER D&E COMMUNICATIONS NOR ITS OFFICERS, DIRECTORS, EMPLOYEES,
AFFILIATES OR AGENTS OR ANY OTHER SERVICE PROVIDER OR VENDOR WHO FURNISHES
SERVICES OR PRODUCTS TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR THE
SERVICE WILL BE LIABLE FOR UNAUTHORIZED ACCESS TO D&E COMMUNICATIONS'S OR
CUSTOMER'S TRANSMISSION FACILITIES OR PREMISES EQUIPMENT OR FOR UNAUTHORIZED
ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF, CUSTOMER'S DATA FILES,
PROGRAMS, PROCEDURES OR INFORMATION THROUGH ACCIDENT, FRAUDULENT MEANS OR
DEVICES OR ANY OTHER METHOD, REGARDLESS OF WHETHER SUCH DAMAGE OCCURS AS A
RESULT OF D&E COMMUNICATIONS'S OR ITS SERVICE PROVIDER'S OR VENDORS'
NEGLIGENCE. STATEMENTS AND DESCRIPTIONS
CONCERNING THE SERVICE OR DEVICE, IF ANY, BY D&E COMMUNICATIONS OR D&E
COMMUNICATIONS'S AGENTS OR INSTALLERS ARE INFORMATIONAL AND ARE NOT GIVEN AS A
WARRANTY OF ANY KIND.
5.5 No Warranties, or
Limited Warranties, for Devices:
D&E Communications does
not provide any warranty with respect to any Device or equipment. The sole and exclusive warranty provided for
a Device or equipment is the warranty provided by the original manufacturer of
the Device or equipment. If Customer's
Device did not include a limited warranty at the time of receipt, Customer
agrees that it accepts its Device "as is" and that Customer is not
entitled to replacement or refund from D&E Communications in the event of
any defect.
D&E COMMUNICATIONS MAKES
NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY, FITNESS OF THE DEVICE FOR A PARTICULAR PURPOSE,
TITLE OR NON-INFRINGEMENT OR ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF
DEALING OR COURSE OF PERFORMANCE OR ANY WARRANTY THAT THE DEVICE OR ANY
FIRMWARE OR SOFTWARE IS "ERROR FREE" OR WILL MEET CUSTOMER’S
REQUIREMENTS.
5.6 No Third Party
Beneficiaries:
No provision of this Agreement
provides any person or entity not a party to this Agreement with any remedy,
claim, liability, reimbursement, or cause of action or creates any other third
party beneficiary rights.
5.7 Content:
Customer is solely liable for
any and all liability that may arise out of the content transmitted by Customer
using the Services. Customer’s use of
the Services and content will at all times comply with all applicable laws,
regulations and written and electronic instructions for use. D&E
Communications reserves the right at its sole discretion to terminate or
suspend affected Services, and/or remove Customer’s content from the Services,
if D&E Communications determines in its sole discretion that such use or
content does not conform with the requirements set forth in this Agreement or
interferes with D&E Communication's ability to provide Services to others
or receives notice from anyone that Customer’s use or content may violate any
laws or regulations. D&E Communication's actions or inaction under this
Section shall not constitute review or approval of Customer’s use or
content. In this section, Customer
means any person, whether authorized or unauthorized, using the Service and/or
Device provided.
6.
GOVERNING LAW / RESOLUTION OF DISPUTES
6.1 Mandatory Arbitration:
Any dispute or claim between
Customer and D&E Communications arising out of or relating to the Service
or Device provided in connection with this Agreement shall be resolved by
arbitration before a single arbitrator administered by the American Arbitration
Association in accordance with its Commercial Arbitration Rules. The arbitration shall take place in
Harrisburg, Pennsylvania, and shall be conducted in English. The arbitrator's decision shall follow the
plain meaning of the relevant documents, and shall be final and binding.
Without limiting the foregoing, the parties agree that no arbitrator has the
authority to: (i) award relief in excess of what this Agreement provides; or
(ii) award punitive or exemplary damages.
Judgment on the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof. All
claims shall be arbitrated individually and Customer will not bring, or join
any class action of any kind in court or in arbitration or seek to consolidate
or bring previously consolidated claims in arbitration. CUSTOMER ACKNOWLEDGES THAT THIS
ARBITRATION PROVISION CONSTITUTES A WAIVER OF ANY RIGHT TO A JURY TRIAL.
6.2 Governing Law:
The Agreement and the
relationship between Customer and D&E Communications shall be governed by
the laws of the Commonwealth of Pennsylvania without regard to its conflict of
law provisions. To the extent court
action is initiated to enforce an arbitration award or for any other reason
consistent with Section 6.1, Customer and D&E Communications agree to
submit to the personal and exclusive jurisdiction of the courts located within
Lancaster County, Pennsylvania, and waive any objection as to venue or
inconvenient forum. The failure of
D&E Communications to exercise or enforce any right or provision of this
Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found
by a court of competent jurisdiction to be invalid, the parties nevertheless
agree that the court should endeavor to give effect to the parties' intentions
as reflected in the provision, and the other provisions of the Agreement remain
in full force and effect. Customer
agrees that regardless of any statute or law to the contrary, any claim or
cause of action arising out of or related to use of the Service and/or Device
or this Agreement must be filed within one (1) year after such claim or cause
of action arose or be forever barred.
6.3 Entire Agreement:
This Agreement and the rates
for Services found on D&E Communication's website constitute the entire
agreement between Customer and D&E Communications and govern the use of the
Service, superseding any prior agreements between Customer and D&E
Communications and any and all prior or contemporaneous statements, understandings,
writings, commitments, or representations concerning its subject matter. No amendment to this Agreement shall be
binding upon D&E Communications unless and until posted in accordance with
Section 3 hereof.
7.
PRIVACY
D&E
Communications Service utilizes, in whole or in part, the public Internet and
other relevant networks to transmit various informational communications. D&E Communications is not liable for any
lack of privacy that may be experienced with regard to the Service.
Version
3.0 Effective Date: 3/31/06