SamKnows End User License Agreement test

SAMKNOWS LIMITED TESTS AND MEASURES BROADBAND INTERNET PERFORMANCE. YOU HAVE EXPRESSED A DESIRE TO PARTICIPATE IN THIS PROGRAM AND TO ALLOW SAMKNOWS TO TEST AND MEASURE YOUR BROADBAND INTERNET CONNECTION.

PLEASE READ THESE TERMS CAREFULLY. BY APPLYING TO BECOME A PARTICIPANT IN THE SAMKNOWS COMMUNITY, YOU AGREE TO THESE TERMS.

1. Definitions

1.1 The following definitions apply to these terms and conditions.

ACL: Australian Consumer Law;

ACL Liability: our liability to you under the ACL that cannot be limited, restricted or excluded by these Terms;

Connection Equipment: Your broadband router or cable modem, used by your ISP to provide your Connection;

Connection: Your own broadband internet connection, provided by your ISP;

Data Protection Legislation: information privacy laws that apply to SamKnows from time to time, in relation to the collection and processing of your Personal Information, including the Privacy Act 1988 (Cth);

Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade-marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

ISP: Internet Service Provider; the company providing a broadband internet connection to you during the term of this Program (which for the avoidance of doubt may include NBN Co Ltd);

Measurement Services or Program: The performance, testing and measurement of certain broadband and Internet services and research programs run by SamKnows;

Open Source Software: any software installed in the Whitebox device that is licensed under an open source licence (including the GPL);

Participant/you/your: you, the physical person who volunteers to participate in the Program, under these terms and conditions. You must be the named account holder on the Internet service account with the ISP;

Personal Information: has the same meaning as the Privacy Act 1988 (Cth);

Services: the services we provide under the Terms;

SamKnows/we/us: means Samknows Limited, a company incorporated in England with company number 06510477 and registered address at 2 New Street Square, London, EC4A 3BZ;

Software: the software that has been installed and/or remotely uploaded onto the Whitebox, by SamKnows as updated by SamKnows, from time to time, but not including any Open Source Software;

Test Results: Information SamKnows collects concerning the Measurement Services;

Terms: means these terms and conditions;

Website: means our website at https://www.samknows.com/; and

Whitebox: the hardware supplied to you by SamKnows which incorporates the Software.

1. Our Services

1.1. The Program will:

(a) measure the performance of your Connection and make this information available to you; and

(b) allow us to compare the Test Results and other data with data from other consumers, to create a representative index of broadband performance around the world. We access and use only data generated or collected through the Whitebox, the Software. your ISP or through your location for this comparison.

WE WILL NOT MONITOR OR TRACK YOUR INTERNET ACTIVITY IN ANY WAY, INCLUDING WEBSITES YOU VISIT OR ANY CONTENT OR DATA RELATING TO YOUR INTERNET ACTIVITY.

1.2. We will provide you with the Services and with the Whitebox in accordance with these Terms.

2. Our Commitment to You

2.1. If you are selected by SamKnows and agree to these Terms, we will:

(a) supply you with a Whitebox and instructions detailing how it should be connected to your Connection Equipment;

(b) provide you with the Services under these Terms;

(c) only access, collect, process, store and distribute data for the purposes and reasons specified in these Terms and in our Privacy Policy.

(d) Also, we will provide you with:

(i) access to a Program-specific customer support email address community@samknows.com, which you may use for questions and to give feedback and comments;

(ii) a unique login and password in order to allow you to access an online reporting system to view your broadband performance statistics;

(iii) a monthly email with your specific data from the Program or notifying you that your individual data is ready for viewing; and

(iv) reasonable support and troubleshooting services in case of problems or issues with your Whitebox.

2.2. We will use reasonable endeavours to ensure that the Services cause no disruption to the performance of your Connection. However, you understand and agree that the Measurement Services may occasionally impact the performance of your Connection. If this happens you agree to hold SamKnows and your ISP harmless from any impact the Services may have on the performance of your Connection. If this happens you are entitled to terminate these Terms under clause 8.2 and disconnect the Whitebox and return it to us in accordance with Condition 9.1 below.

3. Your Commitment to Us

3.1. You do not have to pay any fee to participate in the Program or receive the Services unless we have advised you of a fee and you have agreed to pay it.

3.2. You must be the named account holder for the Connection.

3.3. You agree to use the Services in accordance with these Terms and any end-use software licence provided to you with the Whitebox.

3.4. During the Term you shall:

(a) connect the Whitebox we send you, in accordance with our instructions, to your Connection Equipment within 14 days of receiving it;

(b) not unplug or disconnect the Whitebox unless you are away from your home or you need to conduct maintenance on your network, in each case you agree to try to minimise the length of time the Whitebox is disconnected.

(c) not in any way reverse engineer, tamper with, dispose of or damage the Whitebox or the Software (or attempt to do so);

(d) tell us within 7 days if you change your ISP or if you downgrade/upgrade to a different broadband package, by sending us an email to community@samknows.com.

(e) tell us if you change your postal or email address within 7 days;

(f) tell us promptly if you have any issues or problems with your Whitebox by sending us an email to community@samknows.com.

(g) not give or otherwise transfer the Whitebox or the Software to any third party, including (without limitation) to any ISP.

(h) comply with our reasonable instructions;

(i) comply with all applicable laws and regulations with respect to your use of the Services;

(j) be solely responsible for procuring and maintaining your network connections and telecommunications links to access the Services;

(k) not use the Services outside the scope of permitted use under these Terms, nor infringe any Intellectual Property Rights or other rights in or relating to the Services or of any third party; and

(l) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, immediately notify us.

3.5. You acknowledge and agree that we may, at any time and for any reason, upgrade the Whitebox or the Software we have sent you and that this may cause a temporary suspension of the Services.

3.6. You must keep your account details and passwords secure. To help with this:

(a) if you choose, or you are provided with, a user identification code, password or any other piece of information as part of our security procedures, you must treat such information as confidential. You must not disclose it to any third party;

(b) we have the right to disable any user identification code or password, whether chosen by you or allocated by us, at any time, if in our reasonable opinion, you have failed to comply with any of the provisions of these Terms; and

(c) you are responsible for all access and use of our Services by you or anyone using you user names and passwords, and for preventing unauthorised use or disclosure of any of such user name and password. If you believe there has been any breach of security or unauthorised access or disclosure, you must notify us immediately by email to community@samknows.com.

4. Your privacy

4.1. This clause sets out how we will manage your Personal Information which we collect as a result of your participation in the Program.

4.2. We will collect, use, disclose, otherwise process, store and distribute your Personal Information, for the purposes and any other reasons specified in these Terms and in our Privacy Policy in accordance with the Data Protection Legislation and our Privacy Policy.

4.3. In the course of performing the Services and for the purposes of the Program, we will collect your Personal Information. Specifically, we will typically collect:

(a) Your name;

(b) Your email and postal address;

(d) Details of your ISP; and

(e) Your telephone number.

4.4. You acknowledge and agree that we may share some of your Personal Information with third parties, including:

(a) your ISP, and we may request information about you from your ISP so that they may confirm your service tiers and other information relevant to the Program. Accordingly, you hereby expressly consent to any disclosure by us to your ISP, and collection from your ISP to us of your Personal Information for the purposes of the Services;

(b) third parties who have engaged SamKnows to undertake the Measurement Services and/or Program (including the Australia Competition and Consumer Commission (ACCC) if you are a Participant in the Program that is providing independent testing for the ACCC); and

(c) third parties located overseas, including entities located in the United Kingdom, to provide any part of the Services.

4.5. To participate in the Program you must provide us with the Personal Information requested. If you do not, we may be unable to process your registration to participate in the Program or provide the Services.

4.6. By registering for the Services, you consent to us using and/or disclosing your Personal Information for the following purposes:

(a) processing your registration;

(b) providing or arranging for third parties to provide any part of the Services including, without limitation, customer care/help desk facilities which may involve disclosing your information to third parties solely for those purposes);

(c) to inform you about other SamKnows’ products or services, or products and services from our group of companies if you have opted in to this during the application process; and

(d) to disclose all or part of your Personal Information to any regulator (e.g. ACCC), a court, or to a public body to comply with any regulatory, government or legal requirement (including but not limited to prevention and detection of crime and terrorism);

(e) to create aggregated data and statistics about the performance of your Connection which will enable the disclosure of aggregate statistical data or anonymised data produced as a result of the Measurement Services (including the Test Results) or the Services we provide to you.

5. Intellectual Property Rights

5.1. You understand and agree that SamKnows is the owner in all of the Intellectual Property Rights that arise from the Services (including but not limited to the Test Results), the Software, the White Box and in any content we publish. Your participation in the Program or your use of our Services gives you no Intellectual Property Rights in them.

5.2. SamKnows hereby grants to you a non-exclusive, non sub-licensable, royalty free (which means that you do not have to pay for it) right to use the Services and the Whitebox during the term of the program for the sole purpose of receiving the Services and participating in the Program under these Terms.

6. The Whitebox

6.1. Ownership of the Whitebox and the Software does not transfer to you. We may at any time ask you to return the Whitebox at our cost, which you must do in accordance with Condition 9.1 below, within 28 days of such a request being sent. We may also, at any time, disable the Software at our reasonable discretion.

7. Our liability to you

7.1. You have rights and remedies under the ACL that cannot be limited, restricted or excluded by these Terms. We do not exclude or limit in any way our ACL Liability or any other liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation.

7.2. You agree not to use our Services for any commercial or business purposes.

7.3. Except for our ACL Liability, we have no liability to you for any indirect losses including loss of profit, loss of business, business interruption, or loss of business opportunity.

7.4. If we fail to comply with these Terms, we limit our aggregate liability for any loss or damage you suffer that is a reasonably foreseeable result of our breaching these Terms or our failure to use reasonable care and skill to an amount equal to the replacement cost of the Whitebox, but we are not responsible for any loss or damage that is not reasonably foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us when you registered for the Program.

7.5. If defective digital content that we have supplied, damages a device or digital content belonging to you and this is caused by our failure to use due care and skill, we will either repair the damage, pay you compensation or provide another remedy as required under the ACL, at your option. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us, subject to our ACL Liability.

7.6. Except for consumer guarantees under the ACL, all other implied warranties, conditions and other terms implied by statute or other law, including but not limited to non-infringement of third party Intellectual Property Rights are, to the fullest extent permitted by law, waived and excluded from these terms and conditions.

7.7. We do not guarantee that our Services will always be available or be uninterrupted. We may suspend or withdraw or restrict the availability of all or any part of our Services for operational reasons. We will try to give you reasonable notice of any suspension or withdrawal.

7.8. You acknowledge and agree that these limitations of liability are reasonable in all circumstances, particularly given that no fee is being charged by SamKnows for the Services or your participation in the Program.

7.9. It is Your responsibility to timely pay all service and other charges owed to its ISP and to comply with all other ISP applicable terms. You shall ensure that their broadband traffic, including the data pushed by SamKnows during the Program, does not exceed the data allowance included in Your broadband package. If usage allowances are accidentally exceeded and You are billed additional charges from the ISP as a result, SamKnows is not under any obligation to cover these charges although it may choose to do so at its discretion.

8. How long these Terms last for and termination & suspension rights

8.1. These Terms shall continue until terminated in accordance with this clause.

8.2. Each party may terminate these Terms immediately by written notice to the other at any time.

8.3. We shall be entitled to terminate these Terms or suspend the Services immediately if:

(a) you do anything (or allow a third party to do anything) which we reasonably believe could damage or affect the operation of our Services;

(b) you breach any of your obligations under the Terms;

9. What happens if these Terms end?

9.1. If these Terms end (for any reason):

(a) we will have no further obligation to provide the Services;

(b) we may disable the Software and/or the Whitebox;

(d) any rights, remedies, obligations or liabilities that either of us may have before the actual date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before that date shall not be affected or prejudiced;

(e) we may delete all or part of your content and customer data stored in our systems. You are responsible for arranging a back-up of such content and data.

(f) at our request you shall safely return the Whitebox to us following our instructions, (in which case SamKnows shall pay your reasonable postage costs). If you do not return the Whitebox at all then, you shall pay to us an amount equal to the full market replacement value of the Whitebox.

9.2. If any part of these Terms are intended to continue after these Terms end, they shall continue and not be affected by the termination of these Terms.

10. Notices

10.1. Any notices sent by you to us must be sent by email to community@samknows.com. We shall send you notices to the email address specified on your registration form.

10.2. Any communication by email shall be deemed to have been made on the business day on which the notice is first stored in the recipient’s (i.e. ours or yours) electronic mail-box.

11. General matters

11.1. If any provision of these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall no longer be a part of these Terms. However, the other provisions of these Terms shall not be affected by this.

11.2. These Terms constitute the whole agreement between us. If we had any previous agreements between us, these are replaced by these Terms.

11.3. Unless we have agreed in advance you shall not assign, transfer, charge, mortgage, subcontract your rights or obligations under these Terms.

11.4. We may sub-contract, assign, transfer, novate, mortgage, charge or deal in any other manner with any or all of our rights and obligations under these Terms, fully or partially.

11.5. Subject to our ACL Liability, we shall not be liable to you for any failure to deliver the Services or for any breach by us of these Terms, where such failure or breach is outside of our reasonable control. This includes situations such as “acts of God”, reduction or failure of power supply, reductions or failures of other telecommunication operators, internet providers or communication suppliers, physical obstructions, atmospheric conditions and other causes of radio interference, employee dispute or the supply of equipment by third parties.

11.6. We may vary these Terms from time to time. We will notify you of any updates and/or variations of these Terms, by email, through your user account or by posting the new Terms on our Website. If the variation will have a detrimental impact on you, we will ensure that you are notified by email.

11.7. You shall not be entitled to make any variations to these Terms.

11.8. We agree that these Terms shall not be enforceable by any person not a party to these Terms.

11.9. No failure or delay by either of us to take action under these Terms or by law does not mean that we waive our rights to take action at a later date.

12. These Terms are governed under ACT law

12.1. These Terms are governed by the law of the Australian Capital Territory. We both agree that the courts of the Australian Capital Territory will have non-exclusive jurisdiction.