Commercial Acceptable Use Policy and Customer Agreement
The following Commercial Acceptable Use Policy and Customer Agreement (the “AUP”) applies to any person, entity or business organization (collectively, “you”) who subscribes to or uses or access Hiawatha Broadband Communications, Inc.’s commercial high-speed Internet access service (the “Service”), including access of the Hiawatha Broadband Communications, Inc. network through (“hbci.com”). References to HBC in this AUP include Hiawatha Broadband Communications, Inc. its parent company and its subsidiaries and other affiliates.
Note: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION IN SECTION 22 THAT AFFECTS YOUR RIGHTS UNDER THIS AGREEMENT WITH RESPECT TO ALL SERVICE(S). THE ARBITRATION PROVISION REQUIRES THAT DISPUTES BE RESOLVED IN INDIVIDUAL ARBITRATIONS OR SMALL CLAIMS COURT PROCEEDINGS. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND APPELLATE REVIEW THAN IN COURT.
Collection Costs: If we use a collection agency or attorney to collect money owed by you, you agree to pay the reasonable costs of collection, including, but not limited to, any collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.
By accessing the Service, you agree to be bound by all of the following terms and conditions of this AUP as it may be amended from time to time. If you are dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines, or practices of HBC in operating the Service, your sole and exclusive remedy is to discontinue using the Service.
You must provide and are responsible for all computer hardware and other equipment necessary to access or use the Service (“Customer Equipment”). At a minimum, this includes a DOCSIS 2.0 or higher cable modem (we recommend 3.0), and a computer with a USB port or Ethernet card, meeting the following system requirements:
- Microsoft Windows Server 2008 and above, Windows 7, 8 and 10.
- Mac OS currently supported by Apple, Inc.
You may use your own Customer Equipment or lease equipment, including modems and routers, from us. Customer Equipment is not recommended for use if it does not meet our minimum technical or other specifications including, but not limited to, modems not currently certified by us as compatible with Internet and other Customer Equipment, including, but not limited to: certain makes or models of alarm and security systems or devices, certain medical monitoring devices, personal emergency alert, and home detention devices, certain fax machines, and certain “dial-up” modems, private branch exchange (PBX) equipment, answering machines, and traditional Caller ID units. We reserve the right to deny support for the Service and/or terminate Service if you use a configuration that does not meet our minimum technical or other specifications. If You use your own or non-recommended equipment and it fails to operate and/or causes damage, HBC will not be liable whatsoever for any such damage, failure to operate, or failure to attain advertised Internet speeds. PLEASE BE ADVISED THAT ACTUAL INTERNET SPEEDS MAY VARY BASED ON THE TYPE AND CONDITION OF WIRED CONNECTIONS AND CUSTOMER EQUIPMENT UTILIZED.
We have no responsibility for the operation, support, maintenance or repair of any inside wiring.
We have no responsibility for the operation, support, maintenance or repair of Customer Equipment including, but not limited to, Customer Equipment to which we or a third party has sent software or downloads. You agree that by using the Service, we, or our authorized agents and equipment manufacturers, are authorized to send code updates to the Customer Equipment, including, but not limited to, modems, at any time we determine it is necessary to do so. Such code updates may change, add or remove features or functionality of the Customer Equipment or the Service.
HBC does not provide technical assistance for third-party hardware or software, including but not limited to home networks. Any questions concerning third-party hardware or software should be directed to the manufacturer of that product.
You may not alter, modify or tamper with the Equipment or the Service, or permit any other person to do the same that is not authorized by HBC. You may attach equipment of your choosing to the cable modem outlet that is interoperable with the Equipment and the Service, provided it does not harm the Equipment, Service, or HBC’s network. If you do attach equipment that harms the Equipment, Service, or HBC’s network, you will be subject to liability for damages and/or criminal prosecution.
1. Use of Service
The Service is being provided solely for use in your business and any unauthorized access by a third party to the Internet, or any other function of the Service, relieves HBC of any affirmative obligations it may have, and is in violation of this AUP.
You will not resell or redistribute, nor allow others to resell or redistribute, access to the Service in any manner, except as expressly provided herein. The limitation on resale or redistribution of access includes, but is not limited to, hosting applications such as the provision of email, FTP and Telnet access.
You may provide a wireless network (WiFi) service at your place of business to redistribute HBC’s service to wireless devices. You must adequately secure any such WiFi network in accordance with section 4 below. You are solely responsible for obtaining all required equipment for any such WiFi network and for ensuring that you do not otherwise alter, modify or tamper with the Equipment or the Service. As explained in section 2 below, you are responsible for ensuring that all end users of the Service comply with all terms of this AUP, and that includes all users of any WiFi network you provide. You are solely responsible for obtaining sufficient identification of users of your WiFi network. In addition, you are solely responsible for securing the network in accordance with Section 4 below.
HBC reserves the right to disconnect or reclassify the Service for failure to comply with any portion of this provision or this Policy.
Any violation of these policies may lead to prosecution under state and/or federal law and/or termination of Customer’s Service.
2. End Users
You are responsible for ensuring that all end users of the Service comply with this AUP. HBC may disconnect Service if an end user violates this AUP. You must make contact information publicly available and must respond in a timely manner to any complaints. You are responsible for any and all email addresses associated with your account.
You are responsible for any misuse of the Service, whether by authorized or unauthorized end users. You must take all commercially reasonable steps to ensure that others do not gain unauthorized access to the Service. You are solely responsible for the security of (i) any device you choose to connect to the Service, including any data stored or shared on that device and (ii) any access point to the Service.
If you sell or resell advertising or web space to a third party, then you are responsible for the content of such advertising on such web space and the actions of such third party.
3. Conduct on the Service
You are prohibited from violating or attempting to violate, or allowing others to violate, the security of the Service, or using, or allowing others to use, the Service for illegal purposes. Any violations may result in termination of your account, additional Service fees, prosecution under federal and/or state law and/or civil or criminal penalties to you. HBC will cooperate, to the extent permitted by law, with the appropriate governmental, regulatory, and/or law enforcement agencies if a criminal violation is suspected.
Examples of violations include without limitation, the following:
- Any restriction or inhibition of any other valid HBC subscriber from use of the Service or access to the Hiawatha Broadband Communications, Inc. network;
- Allowing unauthorized access to your account;
- Use of your account in any manner inconsistent with any applicable contract for Service;
- Any download, receipt, upload, post, publication, reproduction, transmission, or other distribution or the facilitation of distribution of any Content that:
- is a web page, website, files transfer protocol server, file server or game server whose daily average data transfer negatively impacts the service;
- contains a virus, bot, trojan horse, worm, constitutes a denial of service attack, or other computer code, file, program or information such as any lock, key, bom, worm, cancelbot, or other harmful feature that is designed or intended to disrupt, damage or limit the functioning of any software, hardware or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party;
- is unlawful, fraudulent, threatening, abusive, harassing, libelous, defamatory, obscene, pornographic, profane, or otherwise objectionable material of any kind, including without limitation any transmissions inciting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or international law (including without limitation the U.S. export control laws and regulations and the Children’s Online Privacy Protection Act);
- creates any type of spam, mass distribution or other unsolicited email, advertisement or newsgroup posting inappropriate to the rules of that newsgroup, for any purpose whatsoever; that circumvents the approval process for posting to a moderated Newsgroup, or that “floods”, “newsbombs” or otherwise disrupts users of Newsgroups by posting a large number of messages to a Newsgroup with the intent to hinder normal discussion, cancel messages of others (except as authorized moderator), send excessive quantities of data to a Newsgroup, post binary files to Newsgroups that do not expressly permit them; or download any Newsgroup in bulk unless expressly permitted;
- infringes the patents, trademarks copyrights, trade secrets or proprietary rights of any other person or entity (including without limitation the digitization of music, movies, photographs or other copyrighted material or software);
- harms minors;
- impersonates any person or entity or falsifies your user name, company name, age or identity; or contains a forgery of anyone else’s digital or manual signature.
- Any post, publication, transmission, reproduction, or distribution that in any way exploits any information, software or other material obtained through the Service for commercial purposes except as expressly permitted by the provider of such information, software or other material;
- Any attempt to disrupt or penetrate the security of the Service or any attached network service or other computer system for any purpose whatsoever;
- Access of any directory structure within the Services file system(s) which is not either the home directory assigned to that user or a temporary directory in the /tmp tree;
- Leaving files within a temporary storage area (i.e. /tmp) for more than 48 hours;
- Any intentional or unintentional violation of any applicable local, state, federal or international law;
- Access of any account which you are not authorized to access; or
- Use of tools designed for compromising network security, such as password-guessing programs, cracking tools, packet sniffers or network probing tools. Participating in, or allow others to participate in, the collection of email addresses, screen names, or other identifiers of others (without their prior express consent), a practice known as spidering or harvesting, or participate in the use of software (including “adware” or “spyware”) designed to facilitate this activity; or
- Forging, altering, or removing electronic mail headers or message header of any other electronic transmission, deceiving any recipient as to the identity of the sender through any process, and referencing, or allowing others to reference HBC or the HBC network (e.g., by including “HBC” or “Hiawatha Broadband” or similar term in the header or by listing an IP address that belongs to HBC) in any unsolicited email even if that email is sent through the HBC network or Service (in addition to the prohibition on sending spam addressed above).
- Participating in or allowing others to participate in chat rooms, bulletin boards, discussion groups or other interactive sections of the Internet (“Chat Rooms”) that you or the person using your service has been banned from using. You will not, nor allow others to violate the Acceptable Use Policy of the server or Chat Room. In addition, you will not, nor allow others to: flood or scroll such Chat Rooms (sending messages or material in quick succession with the intent to disrupt use of such Chat Rooms by others); use automated programs such as “bots” or “clones” to participate in Chat Rooms unless you are physically present at your computer; manipulate any Chat Room server to harass or disconnect other Internet users or to gain privileges that you are not entitled to; send Chat Room messages to recipients who have indicated their desire not to receive such messages; or forge alter, or hide your identity (other than by using a nickname from which HBC may, if necessary, determine your real name).
You acknowledge and agree that when using the Service to access the Internet or any other online network or service, there are certain risks that may enable other Internet users to gain access to or use of your equipment. You are responsible for taking and should take all appropriate security measures when using the Service. This includes but is not limited to procuring and installing patches, any and all anti-virus and firewall software/hardware and operating system patches, updates, or supplements that may be necessary for (i) the protection and maximum functionality of your computer and related equipment and (ii) the protection of HBC’s network and other customers. For purposes of clarification, HBC hereby disclaims any and all responsibility and liability for any damages that may arise from your failure to procure or install the aforementioned security software and/or hardware.
You agree that HBC may block traffic to and from any source, including, without limitation, the deletion of any electronic mail, as it deems necessary to secure its network and/or eliminate Spam. HBC may take other actions to manage or protect its network or to benefit the greatest number of its subscribers, including, but not limited to, traffic prioritization and protocol filtering. In addition, HBC may, without liability, immediately suspend or terminate access by Customer to the network, with or without notice to you, to secure its network. HBC may take these actions in situations including, but not limited to, where your computer becomes infected with any Virus, that HBC believes, in its sole discretion, may harm the HBC network or disrupt the performance of the Service for other users or where You are transmitting or are otherwise connected with what HBC considers in its sole discretion to be spam. You agree that HBC is entitled to damages if you are transmitting or is otherwise connected with spam.
You are solely responsible for the security of any device connected to the Service, including any data stored on that device. HBC recommends that you take appropriate security precautions for any systems connected to the Service. You are responsible for securing any WiFi networks connected to your Act Service. Operating or providing a wireless network installed by you or an HBC representative that is unsecured or “open” and connected to the HBC network is a violation of this AUP and may result in termination of your service.
5. No Excessive Use of Bandwidth
If HBC determines, in HBC’s sole discretion, that you are using an excessive amount of bandwidth over the HBC network infrastructure for Internet access or other functions using public network resources, and which we deem disruptive to or harmful to HBC’s network and other users, we may adjust your Service and/or adjust, suspend or terminate your account at any time and without notice, or require you to upgrade your commercial account service level and pay additional fees in accordance with our then-current, applicable, published rates for such service.
6. Other Service Provider’s Acceptable Use Policies
HBC obtains services from and relies upon many other entities to provide the Service to you. Where you access services of other entities through the Service, you agree to and shall abide by the acceptable use policies of such other entities.
7. International Use
The Internet is global. As such, you agree to comply with all local rules regarding online conduct and acceptable Content, including without limitation, United States export control laws and/or other federal rules and regulations restricting exports.
The Service may provide links to sites operated and controlled by third parties. HBC has no control over such sites and you acknowledge and agree that HBC is not responsible for the availability or content on such sites and does not endorse such sites.
9. Monitoring the Service
For content on HBC’s servers, HBC reserves the right at all times and without notice and you agree that HBC has the right to refuse to post, to remove, restrict access to, or make unavailable any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this AUP, including but not limited to content it considers obscene lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, and to monitor, review, retain and/or disclose any content or other information in HBC’s possession about or related to you, your use of the Services or otherwise as HBC deems necessary to satisfy any law, regulation or other governmental request, to operate the Service properly, or to protect itself or its subscribers.
10. Customer Payment Obligations
10.1. Monthly Service Fees: HBC will bill you a standard monthly fee for the Service. You agree to pay the bill by its due date and to be responsible for any and all charges, damages and costs that you or anyone using your account incurs. If you lease equipment from HBC, additional monthly charges will apply. In addition, you agree to pay all applicable taxes. HBC may also charge a monthly support maintenance fee or a per instance support charge, depending on your location, for technical support services related to the Service including, but not limited to repairs, or for any Service features. HBC may change the amount of the standard monthly fee, the Internet equipment rental fee, or any applicable monthly maintenance fee upon thirty (30) days written notice. HBC will identify any per instance support charges to you prior to providing any technical support that would result in such charge(s).
10.2. Installation Fees: HBC may charge you a one-time installation fee.
10.3. Late Fees, Collections Expenses and Termination for Unpaid Balances: If your payments are not current, HBC may impose a late fee, or the Service may be disconnected without notice, and HBC may remove HBC’s equipment from your premises. You will also be liable to pay HBC for all attorneys’ fees, collection fees or other expenses arising from efforts to collect any unpaid balances on your Account.
11. No Service Warranties
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. HBC DOES NOT WARRANT THAT THE SERVICE (I) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE OR (II) THAT ANY INFORMATION, SOFTWARE OR OTHER MATERIAL ACCESSIBLE ON THE SERVICE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, SPAM, POP-UP ADVERTISING, SPYWARE, ADWARE OR OTHER HARMFUL COMPONENTS EVEN IF COUNTERMEASURES HAVE BEEN DEPLOYED OR (III) THE SERVICE WILL MEET YOUR REQUIREMENTS.
HBC DOES NOT GUARANTEE THAT YOU WILL BE ABLE TO CONNECT AT YOUR MODEM’S MAXIMUM CONNECTION SPEED. YOU UNDERSTAND AND AGREE THAT HBC DOES NOT GUARANTEE THAT ANY PARTICULAR AMOUNT OF BANDWIDTH ON THE HBC NETWORK OR THAT ANY SPEED OR THROUGHPUT OF YOUR CONNECTION TO THE HBC NETWORK WILL BE AVAILABLE TO YOU. You understand and agree that the speed of the Service provided at your site will vary depending upon a number of factors, including your computer system(s) and associated equipment, Internet traffic, and associated equipment, and other factors such as system capacity limitations, governmental actions, events beyond HBC’s control, and System failures, modifications, upgrades and repairs.
NO ADVICE OR INFORMATION GIVEN BY HBC, ITS AFFILIATES, LICENSEES OR CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES OR AGENTS SHALL CREATE A WARRANTY.
You understand further that, except for information, products or services clearly identified as being supplied by HBC, HBC does not operate or control any information, products or services on the Internet in any way. All merchandise, information and services offered or made available or accessible through the Service or on the Internet generally are offered or made available or accessible by third parties who are not affiliated with HBC.
HBC DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO ANY CONTENT OR SERVICE PROVIDED THROUGH THE SERVICE, USE THEREOF OR ON THE INTERNET GENERALLY, AND THEY SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. HBC DOES NOT WARRANT THAT ANY MERCHANDISE, INFORMATION, OR SERVICES OBTAINED BY YOU WILL MEET YOUR EXPECTATIONS.
You acknowledge and understand that HBC utilizes anti-spam software and that such security technology is a feature of the Service that may block incoming and outgoing electronic mail. HBC does not warrant that such feature will block all unwanted mail/Spam. Consistent with other statements set forth in this section, HBC does not warrant that such feature will be error-free.
In addition, in its sole discretion, HBC may make available to your security software, such as anti-virus software, firewall software, “pop-up” advertising blocking software, anti-spyware or anti-adware software for your use on your computer system(s) in conjunction with the Service. Any such security software provided by HBC to you is intended to provide only a minimal level of protection to your computer system(s). YOU UNDERSTAND AND AGREE THAT HBC AND ITS THIRD-PARTY SUPPLIERS OF ANY SUCH SECURITY SOFTWARE DO NOT GUARANTEE ITS ACCURACY, EFFICACY OR PERFORMANCE. YOU UNDERSTAND AND AGREE THAT HBC ITS THIRD-PARTY SUPPLIERS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM(S) OR THE INFORMATION STORED ON IT THAT MAY RESULT FROM THE SECURITY SOFTWARE OR ITS NON-PERFORMANCE.
12. Limitation of Liability
HBC’s entire liability and YOUR exclusive remedy with respect to the use of the Service or its software and equipment or any breach by HBC of any obligation HBC may have under this agreement shall be Your ability to terminate the Service or to obtain the replacement or repair of any defective software or equipment. UNDER NO CIRCUMSTANCES SHALL HBC, ITS AFFILIATES, SUBSIDIARIES AGENTS, LICENSORS OR CONTRACTORS BE OTHERWISE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT RESULT IN ANY WAY FROM YOUR USE OR INABILITY TO USE THE SERVICE OR TO ACCESS THE INTERNET OR ANY PART THEREOF OR YOUR RELIANCE ON OR USE OF INFORMATION, SERVICES OR MERCHANDISE PROVIDED ON OR THROUGH THE SERVICE, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE. THIS LIMITATION APPLIES WHETHER THE ALLEGED CLAIM IS BASED ON TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF HBC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In addition, under no circumstances shall HBC be liable for damages for failure to furnish, or the degradation or interruption of any services, for any lost data or content, identify theft, for any TV, monitor or screen burn-in, pin misalignment, uneven TV, monitor or screen wear, stuck pixels, phosphor burn, files or software damage, regardless of cause. HBC shall not be liable for damage to property or for injury to any person arising from the installation, maintenance or removal of equipment, software, wiring or the provision of services.
Upon the request of HBC, you further agree to defend, indemnify and hold harmless HBC and its employees, agents, contractors, officers and directors from any and all liabilities, claims costs and expenses, including reasonable attorneys’ fees, related to your use of or access to the Service or your violation of any terms and/or conditions of this AUP. HBC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with HBC in asserting any available defenses.
14. Intellectual Property
You acknowledge and agree that the Service and any necessary software used in connection with the Service (“Software”) is protected by copyrights, trademarks and other intellectual property and proprietary rights worldwide, in all media and technologies, and your use of the Service and the materials thereon is subject to HBC or its licensors rights, as well as the terms of this AUP. All rights not expressly granted herein are reserved. You agree to use the Service only for personal and noncommercial purposes and HBC grants you a nonexclusive, nontransferable license to use the Software only for those purposes in connection with the Service.
Your license to use any software provided by HBC and its suppliers and licensors is contingent upon your compliance with all use and other restrictions contained in this agreement and AUP. Except as otherwise expressly provided by law, you will not copy (except for personal and noncommercial use), modify, distribute, transmit, display, perform, license, create derivative works from, reverse engineer, reverse assemble, or otherwise attempt to discover any source code transfer or sell assign, sublicense, grant a security interest in or otherwise transfer any right in the Software any information, trademarks, service marks, software, products or services obtained from the Service. All trademarks, names and logos mentioned herein are the property of their respective owners. HBC’s trademarks may not be used by you without HBC’s written consent.
15. Copyright and Trademark Infringement
HBC is committed to complying with the copyright and trademark laws of the United States. In addition to the restrictions contained in Section 3 prohibiting the infringement of patents, trademarks, copyrights, trade secrets or proprietary rights of any other person or entity (including without limitation the digitization of music, movies, photographs or other copyrighted material or software). You must obtain appropriate authorization from a copyright or trademark holder prior to sending, receiving, storing, hosting, or using any copyright protected materials. You represent and warrant that you are the author and copyright owner and/or authorized licensee with respect to any content hosted by you on your or HBC’s equipment and you further represent and warrant that no hosted content violates the trademark, copyright, domain name or intellectual property rights of any third party. HBC assumes no responsibility, and you assume all risks regarding the determination of whether material is in the public domain or may otherwise be used for such purposes. In addition, you may not store any material or content on, or access, share, display, or disseminate any material or content over, the Service (or any part of the Service) in any manner that constitutes an infringement of third-party intellectual property rights, including rights granted by U.S. copyright and trademark laws.
You agree you will not run aggressive peer-to-peer software programs such as Popcorn Time, Kazaa, BitTorrent, eMule, eDonkey, or other similar software that contributes to a violation of this Agreement and AUP. You agree to not run software that acts like a file server. You agree to not run software that allows others to anonymously connect to your PC or other network appliance on the Service to transmit files like a server. We reserve the right, in our sole discretion, to determine whether such software or signs of software exist.
Under the Digital Millennium Copyright Act of 1988 (“DMCA”), any copyright owner has the right to notify HBC if they believe that you have infringed the copyright owner’s work(s), by sending HBC a notification of alleged or claimed infringement that complies with the DMCA’s requirements to the address listed on our DMCA page.
If HBC receives a notice from a copyright owner alleging your copyright infringement by any means, HBC will forward detailed information to notify you of the alleged infringement. HBC will respond expeditiously to either directly or indirectly (i) remove the allegedly infringing work(s), if applicable or (ii) disable access to the work(s), if applicable. HBC will notify the affected customer or user of the Service of the removal or disabling of access to the work(s). If you believe in good faith that the works are not infringing or have been misidentified, you may send a counter-notification that complies with the DMCA. HBC will provide a copy of the counter notification to the person who sent the original notification of claimed infringement and will follow the DMCA’s procedures with respect to a received counter notification.
If the alleged infringement concerns peer-to-peer or other alleged infringement where the infringing files are stored by You, posted by You, or sent from or received by You over the Service, HBC will expect that You will remove the files, cease alleged infringing activity and/or take steps to ensure Your account and equipment are not used by You and/or others to infringe any copyrights. Please be aware that HBC cannot confirm or deny whether the allegations of P2P infringement are accurate, so You must determine in good faith whether or not any infringements have occurred using Your account and take appropriate measures to cease any such infringing activity immediately and take all reasonable and necessary steps to prevent infringing activity in the future. If you need help in identifying and removing infringing files from your computer or taking other steps to cease or prevent infringing activities, you may call HBC’s Authorized Agent, Subsentio LLC, at (877) 510-4357, Option 4.
In any event, HBC may determine that you are a “repeat infringer” if HBC learns that You have engaged in online or other copyright infringement, settled a claim of copyright infringement, or have been adjudged by a court to have infringed on more than one occasion in violation of HBC’s repeat infringer policy. It is HBC’s policy in accordance with the DMCA and other applicable laws to reserve the right to suspend or terminate the Service provided to any customer or user who is either found to infringe third party copyright or other intellectual property rights, including repeat infringers, or who HBC, in its sole discretion, believes is infringing these rights. HBC reserves the right to terminate the accounts of repeat copyright infringers with or without notice.
16.1. Customer Right to Terminate the Service: You may terminate the Service at any time by calling your local customer service department. Email submissions to HBC shall not constitute effective notice. Upon termination, you agree to pay any outstanding account balance and you will return any leased equipment to HBC within ten (10) days of termination of account. If you do not return leased equipment within ten (10) days of the date of termination of your account, HBC will add a charge to your account balance for the full retail value of the leased equipment, which you failed to return. If YOU cancel the Service for any reason, HBC will not refund to Customer any portion of the monthly charges paid (or to be paid) by YOU for the month in which cancellation occurs.
16.2. HBC’s Right to Suspend/Terminate the Service: The Service and all Service features are subject to availability on an ongoing basis. You understand that HBC may cease to offer the Service or any Service feature at any time. HBC may suspend, disconnect and/or terminate the Service at any time without prior notice if HBC believes in its sole discretion that you have:
- Failed to pay your bill when due;
- Violated the Acceptable Use Policy;
- Violated any other provision of this Service Agreement.
If you are disconnected for any reason, you may be charged a reasonable disconnection and/or a reconnection fee.
HBC may deny you access to all or part of the Service without notice for any reason whatsoever in its sole discretion AUP.
If HBC denies you access to the Service, you shall have no right:
- to access through the Service any materials stored on the Internet;
- to obtain any refund, including any fees paid to HBC; nor
- to obtain any credit(s) otherwise due to you, and such credit(s) will be forfeited;
HBC shall not be responsible
- for the notification of such termination to any third-party providers of services, merchandise or information;
- for any consequences resulting from lack of notification;
- for the return of data stored on HBC’s servers; nor
- for any lost revenues or profits as a result of such termination.
HBC reserves the right to terminate your account following any single AUP violation or multiple violations. If your account is terminated as a result of an AUP violation, you will not be eligible to sign up for another Hiawatha Broadband Communications, Inc. account or utilize the Service at any time.
This AUP constitutes the entire agreement between you and HBC with respect to the Services. In the event that any portion of this AUP is held to be unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties and the remainder of the provisions shall remain in full force and effect.
HBC’s failure to insist upon or enforce strict performance of any provision of this AUP shall not be construed as a waiver of any provision or right. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement.
19. Choice of Law and Forum
This Agreement and AUP shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to its conflicts of law provisions. Any cause of action you may have with respect to the Service must be commenced within one year after the claim or cause of action arises or such claim or cause of action is barred.
20. Changes to the AUP
These terms may be updated, revised or changed from time to time. Notice of modifications to this AUP may be given by posting such changes to HBC’s website at https://www.hbci.com/help/internet-acceptable-use-policy or by electronic mail or by conventional mail, and will be effective immediately upon posting or sending. It is your responsibility to check for periodic changes. Your continued use of the Service following the posting or receiving of any revisions or additions to this Acceptable Use Policy (the “AUP”) constitutes acknowledgment and acceptance of such revised or additional terms.
21. Binding Arbitration
a. Purpose: Any Dispute involving you and us shall be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court.
b. Definitions: This Arbitration Provision shall be broadly interpreted. “Dispute” means any claim or controversy related to us or our relationship, including but not limited to any and all: (1) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (2) claims that arose before this or any prior Agreement; (3) claims that arise after the expiration or termination of this Agreement, and (4) claims that are the subject of purported class action litigation. As used in this Arbitration Provision, “us” means Hiawatha Broadband Communications, Inc. and any of its predecessors, successors, assigns, parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees and agents, and “you” means you and any users or beneficiaries of the [name] Service(s) or Equipment.
c. Exclusions: NOTWITHSTANDING THE FOREGOING, THE FOLLOWING DISPUTES WILL NOT BE SUBJECT TO ARBITRATION: (i) DISPUTES RELATING TO THE SCOPE, VALIDITY, OR ENFORCEABILITY OF THIS ARBITRATION PROVISION; (ii) DISPUTES THAT ARISE BETWEEN US AND ANY STATE OR LOCAL REGULATORY AUTHORITY OR AGENCY THAT IS EMPOWERED BY FEDERAL, STATE, OR LOCAL LAW TO GRANT A FRANCHISE UNDER 47 U.S.C. § 522(9); AND (iii) DISPUTES THAT CAN ONLY BE BROUGHT BEFORE THE LOCAL FRANCHISE AUTHORITY UNDER THE TERMS OF THE FRANCHISE.
d. Right to Opt-Out: IF YOU DO NOT WISH TO ARBITRATE DISPUTES, YOU MAY DECLINE TO HAVE YOUR DISPUTES WITH US ARBITRATED BY NOTIFYING US, WITHIN 30 DAYS OF YOUR FIRST HIAWATHA BROADBAND COMMUNICATIONS, INC. SERVICE ACTIVATION, BY VISITING HBCI.COM, OR IN WRITING BY MAIL TO Hiawatha Broadband Communications, Inc., 58 Johnson Street Winona, Minnesota 55987 U.S.A., ATTN: LEGAL DEPARTMENT/ARBITRATION. YOUR WRITTEN NOTIFICATION TO US MUST INCLUDE YOUR NAME, ADDRESS AND OUR ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR SERVICE(S) PROVIDED BY US. IF YOU HAVE PREVIOUSLY OPTED OUT OF ARBITRATION WITH RESPECT TO THE ACCOUNT GOVERNED BY THIS AGREEMENT, YOU DO NOT NEED TO DO SO AGAIN. YOU MUST SEPARATELY OPT OUT FOR EACH ACCOUNT UNDER WHICH YOU RECEIVE SERVICES. ANY OPTOUTS SUBMITTED AFTER THIS PERIOD WILL NOT BE CONSIDERED EFFECTIVE.
e. Initiation of Arbitration Proceeding/Selection of Arbitrator: The party initiating the arbitration proceeding may open a case with the American Arbitration Association (“AAA”) by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). You may deliver any required or desired notice to us by mail to Hiawatha Broadband Communications, Inc., 58 Johnson Street Winona, Minnesota 55987 U.S.A., ATTN: LEGAL DEPARTMENT/ARBITRATION.
f. Right to Sue in Small Claims Court: Notwithstanding anything in this Arbitration Provision to the contrary, either you or we may elect to have an action heard in a small claims court in the area where you receive(d) Service(s) from us if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
g. Arbitration Procedures: This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by the AAA pursuant to its Consumer Arbitration Rules (the “AAA Rules”) as modified by the version of this Arbitration Provision that is in effect when you notify us about your Dispute. You can obtain the AAA Rules from the AAA by visiting its website (www.adr.org) or calling its toll-free number (1-800-778-7879). If there is a conflict between this Arbitration Provision and the rest of this Agreement, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the AAA rules, this Arbitration Provision shall govern. If the AAA will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the AAA Consumer Arbitration Rules. A single arbitrator will resolve the Dispute. Unless you and we agree otherwise, any arbitration hearing will take place at a location convenient to you in the area where you receive Service(s) from us. If you no longer receive Service(s) from us when you notify us of your Dispute, then any arbitration hearing will take place at a location convenient to you in the county where you reside when you notify us of your Dispute provided that we offer Service(s) in that county, or in the area where you received Service(s) from us at the time of the events giving rise to your Dispute. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
h. Waiver of Class Actions and Collective Relief: THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER SUBSCRIBERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
i. Arbitral Fees and Costs: If your claims seek more than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be governed by the AAA rules. If your claims seek less than $75,000 in the aggregate, the payment of the AAA’s fees and costs will be our responsibility. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the AAA’s fees and costs shall be governed by the AAA Rules and you shall reimburse us for all fees and costs that were your obligation to pay under the AAA Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor. Notwithstanding anything in this Arbitration Provision to the contrary, we will pay all fees and costs that we are required by law to pay
j. Survival: This Arbitration Provision shall survive the termination of your Service(s) with us.
Headings in this document are for convenience only.
Waiver of Jury Trial and Joint or Class Action. WHETHER IN COURT OR IN ARBITRATION, YOU AND WE AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY. YOU MAY NOT BRING YOUR CLAIM AS A CLASS ACTION, OR ON A JOINT OR CONSOLIDATED BASIS.
Any questions regarding the specific terms of this AUP or complaints regarding violations of it by HBC customers should be directed to:
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