PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. BY APPLYING TO BECOME A PARTICIPANT IN THE BROADBAND COMMUNITY PANEL AND/OR INSTALLING THE WHITEBOX, YOU ARE AGREEING TO THESE TERMS AND CONDITIONS.
YOUR ATTENTION IS DRAWN PARTICULARLY TO CONDITIONS 3.5 (PERTAINING TO YOUR CONSENT TO YOUR ISPS PROVIDING CERTAIN INFORMATION AND YOUR WAIVER OF CLAIMS), 6 (LIMITATIONS OF LIABILITY) AND 7 (DATA PROTECTION).
1.1.The following definitions and rules of interpretation apply to these terms & conditions.
Connection: the Participant’s own broadband internet connection, provided by an Internet Service Provider (“ISP”).
Connection Equipment: the Participant’s broadband router or cable modem, used to provide the Participant’s Connection.
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 company providing broadband internet connection to the Participant during the term of this Program.
Participant/You/Your: the person who volunteers to participate in the Program, under these terms and conditions. The Participant must be the named account holder on the Internet service account with the ISP.
Open Source Software: the software in the Whitebox device that is licensed under an open source licence (including the GPL).
Participant’s Equipment: any equipment, systems, cabling or facilities provided by the Participant and used directly or indirectly in support of the Services, excluding the Connection Equipment.
Parties: both the Participant and SamKnows.
Party: one of either the Participant or SamKnows.
Requirements: the requirements specified by SamKnows as part of the sign-up process that the Participant must fulfil in order to be selected to receive the Services.
SamKnows/We/Our: the organization providing the Services and conducting the Program, namely:
SamKnows Limited (Co. No. 6510477) of Hill House, 1 Little New Street, London, EC4A 3TR
Services / Program: the performance and measurement of certain broadband and Internet services and research program (Broadband Community Panel), as sponsored by the Federal Communications Committee (FCC), in respect of measuring broadband Internet Connections.
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 the Participant’s ISP service results.
Whitebox: the hardware supplied to the Participant by SamKnows with the Software.
1.2.Headings in these terms and conditions shall not affect their interpretation.
1.3.A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4.The schedules form part of these terms and conditions.
1.5.A reference to writing or written includes faxes and e-mails.
1.6.Any obligation in these terms and conditions on a person not to do something includes, without limitation, an obligation not to agree, allow, permit or acquiesce in that thing being done.
2. SamKnows’ Commitment to You
2.1 Subject to the Participant complying fully with these terms and conditions, SamKnows shall use reasonable care to:
(a) provide the Participant with the Measurement Services under these terms and conditions;
(b) supply the Participant with the Whitebox and instructions detailing how it should be connected to the Participant’s Connection Equipment; and
(c) if requested, SamKnows will provide a pre-paid postage label for the Whitebox to be returned.
(d) comply with all applicable United States, European Union, and United Kingdom privacy laws and directives, and will access, collect, process and distribute the information according to the following principles:
Fairness: We will process data fairly and lawfully;
Specific purpose: We will access, collect, process, store and distribute data for the purposes and reasons specified in this agreement and not in ways incompatible with those purposes;
Restricted: We will restrict our data collection and use practices to those adequate and relevant, and not excessive in relation to the purposes for which we collect the information;
Accurate: We will work to ensure that the data we collect is accurate and up-to-date, working with Participant and his/her ISP;
Destroyed when obsolete: We will not maintain personal data longer than is necessary for the purposes for which we collect and process the information;
Security: We will collect and process the information associated with this trial with adequate security through technical and organizational measures to protect personal data against destruction or loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network.
2.2 In addition, SamKnows shall:
(a) provide Participant with access to a Program-specific customer services email address, which the Participant may use for questions and to give feedback and comments;
(b) provide Participant with a unique login and password in order to access to an online reporting system for access to Participant’s broadband performance statistics.
(c) provide Participant with a monthly email with their specific data from the Program or notifying Participant that their individual data is ready for viewing;
(d) provide Participant with support and troubleshooting services in case of problems or issues with their Whitebox;
(e) notify Participant of the end of the FCC-sponsored Program and provide a mechanism for Participant to opt out of any further performance/measuring services and research before collecting any data after termination of the Program;
(f) use only data generated by SamKnows through the Whitebox, and not use any Participant data for measuring performance without Participant’s prior written consent; and
(g) not monitor/track Participant’s Internet activity without Participant’s prior written consent.
2.3 While SamKnows will make all reasonable efforts to ensure that the Services cause no disruption to the performance of the Participant’s broadband Connection, including only running tests when there is no concurrent network activity generated by users at the Participant’s location. The Participant acknowledges that the Services may occasionally impact the performance of the Connection and agrees to hold SamKnows and their ISP harmless for any impact the Services may have on the performance of their Connection.
3. Participant’s Obligations
3.1 The Participant is not required to pay any fee for the provision of the Services by SamKnows or to participate in the Program.
3.2 The Participant agrees to use reasonable endeavors to:
(a) connect the Whitebox to their Connection Equipment within 14 days of receiving it;
(b) not to unplug or disconnect the Whitebox unless (i) they will be absent from the property in which it is connected for more than 3 days and/or (ii) it is reasonably necessary for maintenance of the Participant’s Equipment and the Participant agrees that they shall use reasonable endeavors to minimize the length of time the Whitebox is unplugged or disconnected;
(c) in no way reverse engineer, tamper with, dispose of or damage the Whitebox, or attempt to do so;
(d) notify SamKnows within 7 days in the event that they change their ISP or their Connection tier or package (for example, downgrading/upgrading to a different broadband package), to the email address provided by SamKnows;
(e) inform SamKnows of a change of postal or email address by email; within 7 days of the change, to the email address provided by SamKnows;
(f) agrees that the Whitebox may be upgraded to incorporate changes to the Software and/or additional tests at the discretion of SamKnows, whether by remote uploads or otherwise;
(g) on completion or termination of the Services, return the Whitebox to SamKnows by mail, if requested by SamKnows. SamKnows will provide a pre-paid postage label for the Whitebox to be returned;
(h) be an active part of the Program and as such will use all reasonable endeavors to complete the market research surveys received within a reasonable period of time;
(i) not publish data, give press or other interviews regarding the Program without the prior written permission of SamKnows; and
(k) contact SamKnows directly, and not your ISP, in the event of any issues or problems with the Whitebox, by using the email address provided by SamKnows.
3.3 You will not give 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.
3.4 The Participant acknowledges that he/she is not an employee or agent of, or relative of, an employee or agent of an ISP or any affiliate of any ISP. In the event that they become one, they will inform SamKnows, who at its complete discretion may ask for the immediate return of the Whitebox.
3.5 THE PARTICIPANT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION. The Participant expressly consents to having their ISP provide to SamKnows and the Federal Communications (FCC) information about the Participant’s broadband service, for example: service address, speed tier, local loop length (for DSL customers), equipment identifiers and other similar information, and hereby waives any claim that its ISPs disclosure of such information to SamKnows or the FCC constitutes a violation of any right or any other right or privilege that the Participant may have under any federal, state or local statute, law, ordinance, court order, administrative rule, order or regulation, or other applicable law, including, without limitation, under 47 U.S.C. §§ 222 and 631 (each a “Privacy Law”). If notwithstanding Participant’s consent under this Section 3.5, Participant, the FCC or any other party brings any claim or action against any ISP under a Privacy Law, upon the applicable ISPs request SamKnows promptly shall cease collecting data from such Participant and remove from its records all data collected with respect to such Participant prior to the date of such request, and shall not provide such data in any form to the FCC. The Participant further consents to transmission of information from this Program Internationally, including the information provided by the Participant’s ISP, specifically the transfer of this information to SamKnows in the United Kingdom, SamKnows’ processing of it there and return to the United States.
4. Intellectual Property Rights
4.1 All Intellectual Property Rights relating to the Whitebox are the property of its manufacturer. The Participant shall use the Whitebox only to allow SamKnows to provide the Services.
4.2 As between SamKnows and the Participant, SamKnows owns all Intellectual Property Rights in the Software. The Participant shall not translate, copy, adapt, vary or alter the Software. The Participant shall use the Software only for the purposes of SamKnows providing the Services and shall not disclose or otherwise use the Software.
4.3 Participation in the Broadband Community Panel gives the participant no Intellectual Property Rights in the Test Results. Ownership of all such rights is governed by Federal Acquisition Regulation Section 52.227-17, which has been incorporated by reference in the relevant contract between SamKnows and the FCC. The Participant hereby acknowledges and agrees that SamKnows may make such use of the Test Results as is required for the Program.
4.4 Certain core testing technology and aspects of the architectures, products and services are developed and maintained directly by SamKnows. SamKnows also implements various technical features of the measurement services using particular technical components from a variety of vendor partners including: NetGear, Measurement Lab, TP-Link.
5. SamKnows’ Property
The Whitebox and Software will remain the property of SamKnows. SamKnows may at any time ask the Participant to return the Whitebox, which they must do within 28 days of such a request being sent. Once SamKnows has safely received the Whitebox, SamKnows will reimburse the Participant’s reasonable postage costs for doing so.
6. Limitations of Liability – THE PARTICIPANT’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
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 the Participant, including and without limitation, in respect of:
(a) any use made by the Participant of the 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 are, to the fullest extent permitted by law, waived and excluded from these terms and conditions.
6.3 Notwithstanding the foregoing, nothing in these terms and conditions limits or excludes the liability of SamKnows:
(a) for death or personal injury resulting from its negligence or willful misconduct;
(b) for any damage or liability incurred by the Participant as a result of fraud or fraudulent misrepresentation by SamKnows;
(c) for any violations of U.S. consumer protection laws;
(d) in relation to any other liabilities which may not be excluded or limited by applicable law.
6.4 Subject to condition 6.2 and condition 6.3, 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.
6.5 In the event of any defect or modification in the Whitebox, the Participant’s sole remedy shall be the repair or replacement of the Whitebox at SamKnows’ reasonable cost, provided that the defective Whitebox is safely returned to SamKnows, in which case SamKnows shall pay the Participant’s reasonable postage costs.
6.6 The Participant acknowledges and agrees 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 participation in the Program.
6.7 It is the Participant’s responsibility to pay all service and other charges owed to its ISP in a timely manner and to comply with all other ISP applicable terms. The Participant shall ensure that their broadband traffic, including the data pushed by SamKnows during the Program, does not exceed the data allowance included in the Participant’s broadband package. If usage allowances are accidentally exceeded and the Participant is 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.
7. Data protection – the participation’s attention is particularly drawn to this condition.
7.1 The Participant acknowledges and agrees that his/her personal data, such as service tier, address and line performance, will be processed by SamKnows in connection with the program.
7.2 Except as required by law or regulation, SamKnows will not provide the Participant’s personal data to any third party without obtaining Participant’s prior consent. However, for the avoidance of doubt, the Participant acknowledges and agrees that subject to the privacy polices discussed below, the specific technical characteristics of tests and other technical features associated with the Internet Protocol environment of architecture, including the client’s IP address, may be shared with third parties as necessary to conduct the Program and all aggregate statistical data produced as a result of the Services (including the Test Results) may be provided to third parties.
7.3 You acknowledge and agree that SamKnows may share some of Your information with Your ISP, and 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 waive claim that any disclosure by Your ISP to SamKnows constitutes a violation of any right or privilege that you may have under any law, wherever it might apply.
8. Term and Termination
8.1 This Agreement shall continue until terminated in accordance with this clause.
8.2 Each party may terminate the Services immediately by written notice to the other party 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 5.00 pm Eastern Time on a working day, but otherwise on the next following working day.
8.3 On termination of the Services for any reason:
(a) SamKnows shall have no further obligation to provide the Services; and
(b) the Participant shall safely return the Whitebox to SamKnows, if requested by SamKnows, in which case SamKnows shall pay the Participant’s reasonable postage costs.
8.4 Notwithstanding termination of the Services and/or these terms and conditions, clauses 1, 3.3 and 4 to 14 (inclusive) shall continue to apply.
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 these terms and conditions shall not be affected.
10. Entire agreement
10.1 These terms and conditions constitute the whole agreement between the parties and replace and supersede any previous agreements or undertakings between the parties.
10.2 Each party acknowledges that, in entering into these terms and conditions, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty.
11.1 The Participant shall not, without the prior written consent of SamKnows, assign, transfer, charge, mortgage, subcontract all or any of its rights or obligations under these terms and conditions.
11.2 Each party that has rights under these terms and conditions acknowledges that they are acting on their own behalf and not for the benefit of another person.
12. No Partnership or Agency
Nothing in these terms and conditions is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor make any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
13. Rights of third parties
Except for the rights and protections conferred on ISPs under these Terms and Conditions which they may defend, 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.
14. Privacy and Paperwork Reduction Acts
14.2 The FCC is soliciting and collecting this information authorized by OMB Control No. 3060-1139 in accordance with the requirements and authority of the Paperwork Reduction Act, Pub. L. No. 96-511, 94 Stat. 2812 (Dec. 11, 1980); the Broadband Data Improvement Act of 2008, Pub. L. No. 110-385, Stat 4096 § 103(c)(1); American Reinvestment and Recovery Act of 2009 (ARRA), Pub. L. No. 111-5, 123 Stat 115 (2009); and Section 154(i) of the Communications Act of 1934, as amended.
14.3 Paperwork Reduction Act of 1995 Notice. We have estimated that each Participant of this study will assume a one hour time burden over the course of the Program. Our estimate includes the time to sign-up online, connect the Whitebox in the home, and periodic validation of the hardware. If you have any comments on this estimate, or on how we can improve the collection and reduce the burden it causes you, please write the Federal Communications Commission, Office of Managing Director, AMD-PERM, Washington, DC 20554, Paperwork Reduction Act Project (3060-1139). We will also accept your comments via the Internet if you send an e-mail to PRA@fcc.gov. Please DO NOT SEND COMPLETED APPLICATION FORMS TO THIS ADDRESS. You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection, unless it displays a currently valid OMB control number and provides you with this notice. This collection has been assigned an OMB control number of 3060-1139. THIS NOTICE IS REQUIRED BY THE PAPERWORK REDUCTION ACT OF 1995, PUBLIC LAW 104-13, OCTOBER 1, 1995, 44 U.S.C. SECTION 3507. This notice may also be found at http://www.testmyisp.com/paperwork.html.
These terms and conditions shall be governed by the laws of the state of New York.
Subject to the Participant complying with its obligations under these terms and conditions, SamKnows shall use reasonable endeavors to test the Connection so that the following information is recorded:
Voice over IP
UDP packet loss
ICMP packet loss
In performing these tests, the Whitebox will require a variable download capacity and upload capacity per month, which will be available to the Participant in motion 2.3. The Participant acknowledges that this may impact on the performance of the Connection.
SamKnows will perform tests on the Participant’s Connection by using SamKnows’ own data and will not monitor the Participant’s content or internet activity. The purpose of this study is to measure the Connection and compare this data with other consumers to create a representative index of US broadband performance.