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.
1. Interpretation
1.1 The following definitions and rules of interpretation apply to these terms and conditions.
Connection Equipment: Your broadband router or cable modem, used to provide Your Connection.
Connection: Your own broadband internet connection, provided by an 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 company providing broadband internet connection to Your during the term of this Program.
Measurement Services / Program: the performance and measurement of certain broadband and Internet services and research program (Broadband Community Panel), as sponsored by the European Commission (EC), in respect of measuring broadband Internet Connections.
Participant's Equipment: any equipment, systems, cabling or facilities provided by Your and used directly or indirectly in support of the Services, excluding the Connection Equipment.
Participant/You/Your: the person who volunteers to participate in the Program, under these terms and conditions. Your must be the named account holder on the Internet service account with the ISP.
Party: one of either You or SamKnows.
Parties: both You and SamKnows.
Requirements: the requirements specified by SamKnows as part of the sign-up process that Your must fulfill 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 25 Harley Street, London W1G 9BR.
Software: the software that has been installed and/or remotely uploaded onto the Whitebox, by SamKnows as updated by SamKnows, from time to time
Test Results: Information concerning Your ISP service results.
Whitebox: the hardware supplied to Your by SamKnows together with the Software.
1.2 Headings in these 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. Our Commitment to You
2.1 Subject to You complying fully with these terms and conditions, We shall use Our reasonable endeavours to:
(a) supply You with a Whitebox and instructions detailing how it should be connected to the Your Connection Equipment; and
(b) provide You with the Measurement Services under these terms and conditions;
(c) comply with all applicable European Union privacy laws and directives, and will use Our best endeavours to access, collect, process and distribute the information according to the following SamKnows Code of Conduct:
A. We will process data fairly and lawfully;
B. We will only access, collect, process, store and distribute data for the purposes and reasons specified in this agreement and not in ways incompatible with those purposes;
C. 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;
D. We will work to ensure that the data we collect is accurate and up-to-date, working with You and Your internet service provider;
(d) We will not maintain any data longer than is necessary for the purposes for which we collect and process the information;
(e) We will collect and process the information associated with the Program 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 You with access to a Program-specific customer support email address, which You may use for questions and to give feedback and comments. Support to be provided in French, German and English;
(b) provide You with a unique login and password in order to access to an online reporting system for access to Your broadband performance statistics.
(c) provide You with a monthly email with their specific data from the Program or notifying You that their individual data is ready for viewing;
(d) provide You with support and troubleshooting services in case of problems or issues with their Whitebox;
(e) notify You of the end of the EC-sponsored Program and 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;
(f) use only data generated by SamKnows through the Whitebox, and not use any of Your data for measuring performance without Your prior written consent; and
(g) not monitor/track Your Internet activity without Your prior written consent.
2.3 While SamKnows will make all reasonable efforts to ensure that the Services cause no disruption to the performance of Your broadband Connection, including only running tests when there is no concurrent network activity generated by users at Your location, You acknowledge that the Services may occasionally impact the performance of the Connection and agree to hold SamKnows and Your ISP harmless for any impact the Services may have on the performance of Your Connection.
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 Your reasonable endeavours to:
(a) connect the Whitebox we send to Your Connection Equipment within 14 days of receiving it;
(b) not to 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 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;
(g) not publish data, give press or other interviews regarding the Program without the prior permission in writing of SamKnows; and
(h) 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 the Whitebox or the Software to any third party, including (without limitation) to any ISP.
3.4 You acknowledge that You are 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 You become one, You will inform SamKnows.
4. Intellectual Property Rights
4.1 Insofar as may reasonably be deemed to be necessary, SamKnows hereby grants You such limited license as may strictly be deemed necessary for You to perform Your obligations under this Agreement.
4.2 Nothing in this Agreement is intended to nor will transfer or create any Intellectual Property Rights.
4.3 For the avoidance of doubt, participation in the Broadband Community Panel 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 is required for the Program.
5. SamKnows' Property
The Whitebox and Software will remain the property of SamKnows. SamKnows may at any time ask You to return the Whitebox, which they must do within 28 days of such a request being sent. SamKnows will arrange for the Whitebox to be returned at SamKnows cost.
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 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 wilful misconduct; or
(b) for any damage or liability incurred by You as a result of fraud or fraudulent misrepresentation by SamKnows; or
(c) for any violations of European consumer protection laws; or
(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, Your 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 You reasonable postage costs).
6.6 You 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 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.
7. Data protection
7.1 You acknowledge and agree that Your 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 Your personal data to any third party without first obtaining Your prior consent. However , for the avoidance of doubt, You acknowledge and agree, subject to the privacy polices discussed below, We may share any data with any third parties as necessary to conduct the Program and all aggregate statistical data produced as a result of the Measurement 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 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 5.00 pm GMT on a working day, but otherwise on the next following working day.
8.3 On termination of the Agreement (for any reason):
(a) SamKnows shall have no further obligation to provide the Services; and
(b) You shall safely return the Whitebox to SamKnows, if requested by SamKnows, (in which case SamKnows shall pay Your 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.
9. Severance
9.1 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 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. Assignment
11.1 You 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. Jurisdiction
14.1 These terms and conditions shall be governed by the laws of England & Wales.
SamKnows will perform tests on Your Connection by using SamKnows’ own data and will not monitor Your 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 European broadband performance.
