End User License Agreement
1.1 The following definitions apply to these terms and conditions.
Connection Equipment: Your broadband router and/or modem, used to provide your Connection.
Connection: Your own broadband internet connection, provided by your Internet Service Provider ("ISP").
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 right, 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: the internet service provider providing broadband internet connection to you during the term of this program.
Measurement Services/Program: the performance, test and measurement of certain broadband and Internet services and research program, as run by SamKnows.
Open Source Software: the software in the Whitebox device that is licensed under an open source licence (including the General Public License).
Participant/You/Your: the 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.
Program: The Measuring Broadband Canada Program, under which SamKnows is measuring the performance of broadband internet connections in Canada, as sponsored by the Canadian Radio-television and Telecommunications Commission (CRTC).
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 concerning your Connection service results.
Whitebox: the hardware supplied to you by SamKnows which incorporates the Software.
2. Our Commitment to you
2.1 If you are selected, we shall:
(a) supply you with a Whitebox and instructions detailing how it should be connected to your connection equipment;
(b) provide you with the measurement services under these terms and conditions;
2.2 In addition, SamKnows shall:
(a) provide you with access to a program-specific customer support email address, which you may use for questions and to give feedback and comments;
(b) provide you with a unique login identifier and password in order to access an online reporting system for access to your broadband performance statistics;
(c) provide you with a monthly email with your specific data from the Program or notifying you that your individual data is ready for viewing;
(d) provide you with support and troubleshooting services in case of problems or issues with your Whitebox; and
(e) provide a mechanism for you to opt out of any further performance/measuring services and research before collecting any data after termination of the program;
2.3 While SamKnows will make all reasonable efforts to ensure that the Measurement Services cause no disruption to the performance of your connection, you acknowledge that the measurement services may occasionally impact the performance of your connection and agree to hold SamKnows and your ISP harmless for any impact the services may have on the performance of your connection.
2.4 If you are selected to participate In the program, delivery of a Whitebox will be through ordinary postal mail, and will typically take place within 28 days of your acceptance. We will not be responsible for any delays in delivery. We will only ship to a valid mailing address in Canada (as determined by SamKnows in our sole and absolute discretion).
3. Your Commitment to the Program
3.1 You do not have to pay any fee to participate in the program or get the measurement services.
3.2 You agree to use reasonable efforts:
(a) to connect the Whitebox we send to your connection equipment within 14 days of receiving it if selected to participate;
(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 minimize the length of time the Whitebox is disconnected;
(c) not in any way reverse engineer, tamper with, dispose of, transfer or damage the Whitebox (or attempt to do so);
(d) tell us within 7 days if you change your ISP or you downgrade/upgrade to a different broadband package, by using the email address provided by SamKnows;
(e) tell us if you change your postal or email address within 7 days;
(f) acknowledge and agree that we may, at any time and for any reason, upgrade the Whitebox we have sent you; and
(g) tell us if you have any issues or problems with your Whitebox by using the email address provided by SamKnows.
3.3 You will not give or otherwise transfer the Whitebox or the software to any third party, including (without limitation) to any ISP. You may give the open source software to any person in accordance with the terms of the relevant open source licence.
4. Your data
4.1 In the course of performing the measurement services, we will collect certain information about you that could be used to identify you personally ("personal Information, or PI"). Specifically, we will collect:
(a) Your name
(b) Your address and email address
(c) Your IP address
(d) Your telephone number
4.2 Except for your ISP as described below, or as required by applicable law or regulation, we will not provide any PI to any third party without first obtaining your prior consent. We shall comply with all applicable Canadian privacy laws and regulations. In doing so, we will only access, collect, use, process, store, aggregate, distribute and disclose personal information as required by the program and with your consent as provided by you to us when you agree to these terms and conditions. Furthermore, we will not maintain any personal information longer than is necessary for the purposes of the program.
4.3 Not withstanding Section 4.2, you acknowledge and agree that we may share some of your PI with your ISP, and request information about you from your ISP so that they may confirm your service tier and other information relevant to the program. Accordingly, you hereby expressly consent to any such disclosure by us to your ISP, and by your ISP to us, and agree that such disclosure shall not constitute a violation of any applicable privacy laws and regulations.
4.4 In addition to collection of PI, we will also collect non-personally identifiable information/data about your broadband internet performance. You acknowledge and agree that we may share any such non-personally identifiable information/data with any third parties as part of the program. We may also use your PI to generate aggregate statistical data, as well as non-personally identifiable information produced as a result of the measurement services (including the test results) with ISPs, and by agreeing to these terms and conditions, you consent to the use and disclosure of such information/data as described herein.
4.5 SamKnows is located in the United Kingdom. Accordingly, as part of the program, your Personal Information and other information/data will be transferred to, processed in, and stored in the United Kingdom. In addition, to administer the program, SamKnows may use third party service providers in other jurisdictions to process your personal information and other information/data on our behalf and solely for the purposes of the Program. While located in the UK and other foreign jurisdictions, your personal information may be accessible to law enforcement and other authorities in accordance with the laws of those jurisdictions.
4.6 You may withdraw your consent to participation in the program and our further collection, use, processing, disclosure and distribution of your PI at any time, however, such withdrawal of consent will not operate retroactively and may be subject to legal or contractual restrictions.
4.7 The purpose of the measurement services is to measure your connection and compare this data with other consumers to create a representative index of broadband performance around the world. We access and use only data generated through the Whitebox. WE DO NOT AND 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
5. Intellectual Property Rights
5.1 Insofar as may reasonably be deemed to be necessary, SamKnows hereby grants you such limited non-transferable, revocable license as may strictly be deemed necessary for you to perform your obligations under this agreement and participate in the program.
5.2 Nothing in this agreement is intended to nor will transfer or create any Intellectual Property Rights to you.
5.3 For the avoidance of doubt, participation in the program gives you no intellectual property rights in the test results. You hereby acknowledge and agree that SamKnows may make such use of the test results as part of the program, consistent with provisions of Section 4, above.
5.4 You hereby acknowledge that the Whitebox and software are protected by all copyright, trade-mark, and other applicable intellectual property laws. Your use of the Whitebox and software does not grant or transfer to you any ownership or other rights in the Whitebox and software, and except as expressly provided, nothing herein shall be construed as conferring on you or any other person any license under any of SamKnows or any third party’s intellectual property rights. Any rights not expressly granted to you in this agreement are expressly reserved by SamKnows. For greater certainty, you agree that you will not take any action that is inconsistent with SamKnows ownership of the Whitebox and software.
5.5 Certain names, graphics, logos, icons, designs, words, titles or phrases contained within the Whitebox and Software and the Program and any associated materials may constitute trade names, registered or unregistered trade-marks or service marks of SamKnows or other entities. Trade-marks may be registered in Canada and in other countries as applicable. All trade-marks not owned by SamKnows are the property of their respective owners, and, where used by SamKnows are used under license or with permission. All trade-marks are and shall remain the sole and exclusive property of their respective owner(s). Any use of such trade-marks, except as expressly provided for herein, without the express written consent of the applicable owner is strictly prohibited. Nothing contained herein or on the Whitebox and software may be construed as granting, by implication, estoppel, or otherwise, any license to use any trade-mark(s). You agree that you will not take any actions inconsistent with SamKnows ownership of, or any third party’s ownership of, the trade-marks.
6. Limitations of Liability
6.1 This condition 6 sets out the entire financial liability of SamKnows (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to you, including (without limitation) in respect of:
(a) any use made by you of the measurement services, the Whitebox and the software or any part of them; and
(b) any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms and conditions.
6.2 All implied warranties, conditions and other terms implied by statute or other law, including but not limited to merchantability, fitness for a particular use or purpose, and noninfringement of third-party intellectual property rights are, to the fullest extent permitted by law, waived and excluded from these terms and conditions.
6.3 IN NO EVENT WILL SAMKNOWS BE LIABLE TO YOU OR TO ANYONE ELSE UNDER THIS AGREEMENT FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF SAMKNOWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SAMKNOWS' TOTAL LIABILITY IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE ARISING IN CONNECTION WITH THE PERFORMANCE, OR CONTEMPLATED PERFORMANCE, OF THESE TERMS AND CONDITIONS SHALL BE LIMITED TO $100.
6.4 In the event of any defect in the Whitebox, your sole remedy shall be to re-register with SamKnows to receive a replacement device, such replacement device to be provided at the sole discretion of SamKnows.
6.5 You acknowledge and agree that these limitations of liability are reasonable in all the circumstances, particularly given that no fee is being charged by SamKnows for the services or your participation in the program.
6.6 It is your responsibility to pay all service and other charges owed to your ISP in timely fashion 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.
6.7 While SamKnows will make reasonable efforts to ensure that the measurement services cause no disruption to the performance of your connection, including only running tests when there is no concurrent broadband activity generated by users at your location, you acknowledge that the measurement services may occasionally impact the performance of your connection and agree to hold SamKnows and your ISP harmless for any impact the measurement services may have on the performance of your connection.
7. Term and Termination
7.1 These terms and conditions shall continue until terminated in accordance with this clause.
7.2 Each party may terminate this agreement immediately by written notice to the other at any time. Notice of termination may be given by email. Notices sent by email shall be deemed to be served on the day of transmission if transmitted before 5.00pm GMT on a working day, but otherwise on the next following working day.
7.3 On termination of the agreement (for any reason):
(a) SamKnows shall have no further obligation to provide the services;
(b) SamKnows may disable the software and/or the Whitebox; and
(c) You shall safely return the Whitebox to SamKnows, if requested by SamKnows, (in which case SamKnows shall pay your reasonable postage costs).
7.4 Notwithstanding termination of the measurement services and/or these terms and conditions, clauses 1, 3.3 and 4 to 12 (inclusive) shall continue to apply.
8.1 If any provision of these terms and conditions (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, to the extent required, be deemed not to form part of these terms and conditions, and the validity and enforceability of the other provisions in these terms and conditions shall not be affected.
9. Entire Agreement
9.1 These terms and conditions constitute the whole agreement between the parties and replace and supersede any previous agreements or undertakings between the parties.
10.1 You shall not, without the prior written consent of SamKnows, assign, transfer, charge, mortgage, subcontract all or any of your rights or obligations under these terms and conditions.
11. Rights of Third Parties
11.1 Except for the rights and protections conferred under these terms and conditions, a person who is not a party to these terms and conditions shall not have any rights under or in connection with these Terms and Conditions.
12.1 These terms and conditions shall be governed by the laws of the province in which You reside and the laws of Canada applicable therein.
13. Contact Us
13.1. To contact us, please email [email protected], or write us at: The Pavillion, 1 Newham's Row 3rd floor, London SE1 3UZ