This DUO Broadband Subscriber Agreement (the “Agreement”) is made by the individual or authorized person of the individual or organization (the “Customer,” “You,” or “Your”) identified below and Duo County Telephone Cooperative and its affiliates (“DUO Broadband,” “us,” or “we”). DUO Broadband and the Customer agree to the following conditions concerning the Internet Service provided by the DUO Broadband to the Customer.
DUO Broadband manages its network with the goal of delivering a fast, safe, and uncompromised broadband internet experience to all its customers. High-speed bandwidth and network resources are not unlimited. Managing the network is essential for the promotion of the best possible broadband internet experience by all of DUO Broadband’s customers. As used herein, Internet Service is the broadband access to the Internet, DUO Broadband provides to you and is “best efforts” service.
PLEASE READ THIS AGREEMENT CAREFULLY AND ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT REQUIRES THE USE OF ARBITRATION TO RESOLVE ANY DISPUTES RELATED TO THIS AGREEMENT OR THE INTERNET SERVICE, AND YOU WAIVE THE RIGHT TO A JURY TRIAL OR THE ABILITY TO LITIGATE THIS ACTION IN COURT OR AS A CLASS ACTION. SUCH TERMS ARE SET OUT IN SECTION VIII OF THIS AGREEMENT..
I. REGISTRATION
A. To register for the Internet Service, you must be at least 18 years of age, and you hereby represent and certify to DUO Broadband that you are at least 18 years of age.
B. You further represent and warrant that all information provided by you to DUO Broadband in connection with your registration, whether on-line or otherwise, is accurate, complete and current. You further agree to timely notify DUO Broadband of any changes to such information.
C. You agree that you may not, and shall not, transfer your account to another person without the prior written approval from DUO Broadband.
D. You agree to pay DUO Broadband’s current charges in effect for all Internet access through your account, including but not limited to registration or monthly fees, connect time charges, minimum charges and other charges incurred by you or anyone using your password or account (unless we are notified by you pursuant to Section I.B.) at the rates in effect for the billing period in which those charges are incurred, including but not limited to charges for any purchases made through the Internet Service and any surcharges incurred while using any supplemental networks or services other than the Internet Service. You agree to pay all applicable taxes related to use of the Internet Service. You agree that DUO Broadband reserves the right to change all rates or to institute new rates and/or changes at any time. You further agree that you will be liable for all attorneys’ fees and collection fees arising from efforts to collect any unpaid balance on your account(s). Billing will be on a monthly basis, and you agree that DUO Broadband may, in its sole discretion, change or modify the billing period without notice to you.
E. You agree that you are solely responsible for maintaining the confidentiality of all passwords issued to you by DUO Broadband to access the Internet. You are responsible for all charges resulting from the use of your password(s) and account in connection with the Internet Service. If your account or password is accessed or used without your permission, you agree that you remain responsible for all such activities and charges, and that you will immediately DUO Broadband of an unauthorized use of your password and account by calling 270-343-3131.
II. USE OF THE INTERNET
A. You agree that it is your responsibility to provide all telephone and other equipment and services necessary to access the Internet Service.
B. You understand that except for our websites (for example, https://duobroadband.com) DUO Broadband does not operate nor control the contents of the Internet in any way, and that all merchandise, information and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with DUO Broadband.
C. Based upon network availability, the Internet Service is a “best efforts” service, which can provide up and down stream speeds selected by the customer. The actual speed experienced by Customers may vary and depend on several factors including, but not limited to, the Customer’s location, the destination on the Internet, traffic on the Internet, interference with a high frequency spectrum on the customer’s telephone line, and other devices that may be attached to the same cable pair. No minimum level of speed is guaranteed absent a specific agreement.
D. DUO Broadband uses reasonable network management and test practices that are consistent with industry standards. In addition, DUO Broadband is required by the FCC to test a random set of customers for speed and latency periodically during the year. By using this service, the Customer agrees to allow the DUO Broadband to perform these tests.
E. DUO Broadband is not responsible for any external intrusion to the Customer’s network equipment. Because the Internet Service is an “Always On” connection, it is DUO Broadband’s recommendation that each Customer has appropriate firewall protection on their equipment when using the Internet Service, and the customer is solely responsible for providing such firewall protection.
F. DUO Broadband is not responsible for any personal computer or network malfunctions and/or damage to the Customer’s hardware or software.
G. You agree and understand that DUO Broadband collects and uses certain information related to the Customer’s use of the Internet Service. How such information is collected and used is set forth in DUO Broadband’s Privacy Statement, available at https://duobroadband.com/legal-tariff-and-rights-information/privacy-statement/.
H. You agree and understand that DUO Broadband has no obligation to monitor the Internet Service in any way. You further agree that DUO Broadband has a right to monitor the Internet Service electronically and to disclose any information necessary to satisfy any law, regulation, ordinance or other governmental request to operate the Internet Service properly, or to protect itself, its network, or its subscribers. DUO Broadband shall not intentionally monitor or disclose any private electronic mail message unless required by law.
III. YOUR CONDUCT
A. If you are a parent or legal guardian, you may authorize a minor under your control to use your account under your supervision, and you represent and warrant that you will adequately supervise any minor(s) and are responsible for the minor’s use of the Internet Service. You further agree to indemnify and hold harmless DUO Broadband for the minor’s use of the Internet Service. You agree that you are fully responsible for such minor’s conduct while using the Internet Service, and for any consequences if the minor misuses the Internet Service or otherwise violates this Agreement.
B. While using the Internet through the Internet Service, you represent and warrant that you, or any others under your supervision, will not:
C. Unless you receive the prior written approval of DUO Broadband, you agree that you may not, and will not, reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any information, software or other content which you receive through the Internet Service.
D. As set forth in Section VII, you agree to defend, indemnify and hold DUO Broadband and its affiliates harmless from any and all liabilities, costs and expenses attributable to your conduct.
E. You agree that the terms for payment for the Internet Service will be fully met: ten (10) days in the currency in which billed, and if any payment due hereunder is not made by you within thirty (30) days after the invoice date, you agree to pay late charges of five percent (5%) per month with respect to such payment.
IV. DISCLAIMER OF WARRANTIES
A. THE INTERNET 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, NONINFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No advice or information given by DUO Broadband, its affiliates or its contractors or their respective employees shall create a warranty. NEITHER DUO Broadband NOR ITS AFFILIATES WARRANT THAT THE INTERNET SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR that any information, software or other material accessible on the Internet Service is FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, SUCH AS MALWARE.
B. UNDER NO CIRCUMSTANCES SHALL DUO Broadband, ITS AFFILIATES OR ITS CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL damages that result in any way from
your use of or your inability to use the Internet 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 Internet Service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission, or any failure of performance.
C. YOU AGREE THAT YOU ARE TOTALLY RESPONSIBLE AND ASSUME THE RISK FOR YOUR USE OF THE INTERNET SERVICE and the Internet. DUO Broadband and its affiliates make NO EXPRESS OR IMPLIED WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER (including without limitation warranties of title or noninfringement, or the implied warranties of merchantability or fitness for a particular purpose) with regard to any merchandise, information or service provided through any DUO Broadband service 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. YOU FURTHER AGREE THAT IT IS YOUR SOLE RESPONSIBILITY to evaluate the accuracy, completeness and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise, provided to the Internet Service or the Internet generally.
D. YOU UNDERSTAND AND FURTHER ASSUME THE RISK THAT THE INTERNET CONTAINS UNEDITED MATERIALS some of which are sexually explicit or may be offensive to you. YOU AGREE that access to such materials is AT YOUR OWN RISK. DUO Broadband has no control over and ACCEPTS NO RESPONSIBILITY WHATSOEVER FOR SUCH MATERIALS.
E. If you are dissatisfied with the Internet Service, or with any terms, conditions, rules, policies, guidelines or practices of DUO Broadband in operating the Internet Service, your sole and exclusive remedy is to discontinue using the Internet Service.
V. PROPERTY RIGHTS AND COPYRIGHTED MATERIAL
A. You agree that all content accessed through the Internet Service is the property of the applicable content owner and may be protected by applicable copyright law. This Agreement gives you no rights to such content.
B. Except as expressly permitted herein or by applicable law, DUO Broadband and its supplier(s) retain all rights, title and interest in the software utilized to access the Internet Service. This software and source code form contain confidential trade secrets of DUO Broadband and/or its supplier. Except as expressly authorized above, you shall not copy the software, in whole or in part, or modify, reverse compile, reverse assemble or create derivative works of any portion of this software, nor rent, lease, distribute, market or transfer this software to third parties.
C. You agree to abide by the copyright, patent, and trademark laws and all other applicable laws of the United States and its political subdivisions, including, but not limited to, export control laws.
D. It is the policy of DUO Broadband to suspend or terminate, in appropriate circumstances, the Internet Service provided to any subscriber or account holder who is deemed to infringe third-party intellectual property rights, including repeat infringers of intellectual property rights.
E. DUO Broadband expressly reserves the right to suspend, terminate, or take other interim action regarding the Internet Service of any user or account holder if DUO Broadband, in its sole judgment, believes that circumstances relating to an infringement of third-party intellectual property rights warrant such action. These policies are in addition to and do not affect or modify any other rights DUO Broadband may have under law or contract, such as the Digital Millennium Copyright Act (“DMCA”) and other applicable laws or court orders.
F. If you believe that copyrighted material has been used in violation of this policy or otherwise been made available on the Internet Service in a manner that is not authorized by the copyright owner, its agent, or the law, you may contact our Designated Agent, via email:
DMCA Notice
DUO Broadband
P.O. Box 80
Jamestown, KY 42642
DMCA@duobroadband.com
G. We may suspend or terminate your Service if you violate or appear to have violated of any of the terms of this Agreement or the intellectual property rights of any other person or entity, or if you use or attempt to use the Internet Service for any unlawful, harassing, or unwanted purposes or for the transmission or receipt of traffic or data. Further, DUO Broadband reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unlawful, harmful, unwanted, unacceptable, undesirable, or in violation of this Agreement.
VI. BREACH OF THE AGREEMENT
A. DUO Broadband may temporarily or permanently deny you access to all or part of the Internet Service without notice if you engage in any conduct or activities that DUO Broadband, in its sole discretion, believes violates any of the terms and conditions in this Agreement or are in any way inconsistent with the Acceptable Use Policy or other Internet Disclosures and Policies as in effect from time to time and which may be found here: https://duobroadband.com/internet-disclosures-policies. If DUO Broadband denies you access to the Internet Service because of such a violation, you agree that you have no right (1) to access through DUO Broadband any material stored on the Internet, (2) to obtain any credit(s) otherwise due to you, and such credit(s) shall be forfeited, or (3) to access third-party services, merchandise or information on the Internet through DUO Broadband. You agree that DUO Broadband have no responsibility to notify any third-party providers of services, merchandise or information and that DUO Broadband shall not be responsible for any consequences resulting from lack of notification.
VII. INDEMNIFICATION
A. You agree to defend, indemnify and hold DUO Broadband and its affiliates harmless from any and all liabilities, costs and expenses, including reasonable attorney’s fees, related to any violation of this Agreement by you or authorized users of your account, or in connection with the use of the Internet Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you or authorized users of your account.
VIII. ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
A. Customer and DUO Broadband agree that any dispute, controversy, or claim arising out of or relating in any way to the Agreement shall be exclusively resolved by binding individual arbitration administered by the American Arbitration Association under its Consumer Arbitration Rules (the AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879), including without limitation (i) any claims for relief and theories of liability, whether based in contract, negligence, tort, fraud, statute, regulation, ordinance, or otherwise; (ii) any dispute concerning the construction, validity, interpretation, enforceability; or (iii) breach of this Agreement,. Any dispute regarding the applicability of this Arbitration Agreement is expressly delegated to the arbitrator for resolution. The place of arbitration shall be the Russell County, Kentucky, and Kentucky law shall apply to any and all disputes.
B. In the event of a claim arising out of or relating in any way to the Agreement, the complaining party shall notify the other party in writing thereof through a demand for arbitration which shall be made within a reasonable time after the claim has arisen, and in no event shall it be made after two years from when the aggrieved party knew or should have known of the claim. If needed, the AAA provides a form Demand for Arbitration and additional forms at adr.org. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. This arbitration agreement shall also apply to any dispute, controversy, or claim between the Customer and any third party with whom DUO Broadband contracts in order to perform its obligations or exercise its rights under this Agreement.
C. CUSTOMER AND DUO BROADBAND UNDERSTAND AND AGREE THAT THEY ARE EACH WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT, AS WELL AS THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION PROCEEDING.
D. NEITHER THE CUSTOMER NOR DUO BROADBAND SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY ARBITRATION, OR TO INCLUDE IN ANY ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Unless both you and DUO Broadband otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of any class or representative proceeding.
E. This “Arbitration Agreement and Class Action Waiver” will survive any termination of the Agreement.
IX. MISCELLANEOUS
A. You agree that in the event that any portion of this Agreement is held to be unenforceable, the unenforceable portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intention of the parties, and the remainder of the provisions shall remain in full force and effect.
B. DUO Broadband’s failure to insist upon or enforce strict performance of any provision of this Agreement 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.
C. You agree that this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Kentucky, without regard to its conflicts of law provisions. Any cause of action you may have with respect to the Internet Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
D. You agree that this Agreement is personal to you, and you shall not assign your right herein.
E. You agree that upon reasonable notice published over the Internet Service or sent to you, DUO Broadband may modify this Agreement, including but not limited to its prices and charges for the Internet Service, and may discontinue or revise any or all other aspects of the Internet Service at its sole discretion. If you do not cancel Service or continue to use or pay for Internet Service after the notice period expires, you will be deemed to have accepted the modifications or revisions.
F. This Agreement expressly incorporates all other disclosures and information set forth on DUO Broadband’s website, available at https://duobroadband.com/legal-tariff-and-rights-information/. This Agreement may not be changed, modified, or amended except in writing signed by DUO Broadband and the Customer.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING THE INTERNET SERVICE. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, AND DO NOT WISH TO BE BOUND BY THEM, YOU MAY NOT ACCESS OR USE THE INTERNET SERVICE.
