SMARTSPEEDTEST TERMS AND CONDITIONS
THESE TERMS AND CONDITIONS INCLUDE A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (DEFINED IN SECTION 5.3) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT-OUT OF THIS MANDATORY ARBITRATION AGREEMENT, SECTION 5.3 DESCRIBES THE PROCEDURES YOU MUST FOLLOW TO DO SO. THE ARBITRATION AGREEMENT ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION.
SECTION ONE - GENERAL INFORMATION; ACCEPTANCE OF TERMS
Welcome to SmartSpeedTest (referred to herein as "SmartSpeedTest", "we", “us”, or “our”). This agreement is between you and SmartSpeedTest. We look forward to your involvement with smartspeedtest.com (the "Site"). Please take a moment to review these “Terms and Conditions”, which represent an agreement between you (also referred to herein as "user") and SmartSpeedTest. It is important that you understand both the benefits we provide, as well as the terms which apply to your use of the Site. Our goal is to make the Site a friendly and fair place for all of our users.
“Content” includes free analysis of Internet access performance metrics, such as connection data rate and latency, that are provided free of charge on the Site. You can install the SmartSpeedTest software or add-on/extension (collectively, the "Extension") via the SmartSpeedTest Extension installation store. The Extension will allow us to display text links, new tabs, push notifications and/or banner advertisements via your browser based on the web content you view. The Extension does not knowingly collect any personally identifiable information. In addition, the Site, Content, and/or Extension may display advertisements from third parties and/or contain links to other websites owned and operated by third parties. All third-party materials, links and advertisements accessible via the Site, Content and/or Extension shall collectively be known as “Third Party Content”.
We use Third Party Content to support SmartSpeedTest and provide its Content to you for free. If you interact with a link provided via Third Party Content and participate in such third parties’ promotions, purchase its goods, or interact with the third parties and its Third Party Content in any other way, you will be interacting with the third party and not SmartSpeedTest. Therefore, you acknowledge and agree that we and our Related Companies (as defined below) are not responsible or liable for the availability of, nor do we or our Related Companies endorse the products or other materials of the Third Party Content. You further acknowledge and agree that we and our Related Companies shall not be responsible or liable, directly or indirectly, for any damage or loss caused by or in connection with your use of or reliance on any Third Party Content. Finally, you acknowledge that if you access the Third Party Content, their terms and conditions and privacy policies apply to your rights and obligations with respect to such access. Accordingly, such third parties may collect personal or non-personal information about you. If you would like to permanently stop receiving all Third Party Content, please uninstall the Extension and do not use this Site. The directions for uninstalling the Extension are set forth below in Section 5.1, entitled "Removal."
SECTION TWO - SPECIFIC CONDITIONS AND OBLIGATIONS
2.1 Eligibility. To use/install the Extension, use the Site and/or access Content on the Site, you must be a natural person and at least 18 years old. If you are located in any jurisdiction which imposes additional restrictions on eligibility, you are bound by those restrictions as well.
2.2 Acknowledgment of Proprietary Rights. By using the Site, accessing Content provided on the Site or using the Extension, you acknowledge that all information, content and materials contained on the Site and through the Extension (in any form or media, the "Site Materials") may be protected by one or more copyrights, patents, trademarks, trade secrets, or other proprietary rights owned by us, our content suppliers or licensors, or by other individuals whose Content have been placed for informational use on the Site. Except for third party materials which are in the public domain, you may not modify, publish, participate in the transfer or sale of, create derivative works from, or in any other way exploit the Site Materials.
The trademarks, logos, and service marks (whether or not registered, collectively the "Trademarks") displayed on the Site, including any images associated with the Content, are Trademarks of SmartSpeedTest and/or third parties. You have no right to use the Trademarks in any way and nothing contained on the Site should be construed as granting to you, by implication, estoppel or otherwise, any license or right to use any Trademark without our written permission or the written permission of the third party that owns the Trademark.
You are hereby advised that SmartSpeedTest is prepared to aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution where appropriate. SmartSpeedTest will also reasonably cooperate with any third party alleging that any Site Material is infringing such party's intellectual property rights and shall take such steps as are required by law or otherwise reasonable and necessary to resolve any such complaint.
2.3 Submissions and Transmissions. Any communication or material you transmit to the Site by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like, is and will be treated as, non-confidential and non-proprietary, including any emails sent to us when you use address. Anything you transmit may be used by us or our affiliates for any purpose, including, but not limited to, reproduction, disclosure, further transmission, publication, broadcast and posting. Furthermore, we are free to use any ideas, concepts, know-how or techniques contained in any communication you send to the Site for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products, without any compensation to you.
2.4 Upgrades. SmartSpeedTest reserves the right to add at any time additional features or functions to, or release new versions of, the Extension (any such new features, functions or versions, are referred to as "Upgrades"). For instance, the Upgrades may help us better administer the Site and Extension and improve your SmartSpeedTest experience. We may automatically make an Upgrade available without notice to you. In addition, the Upgrades may cause the Extension to revert to the default settings of the current version of the Extension. Unless we provide you with express notice to the contrary, an Upgrade will not delete or modify any data that would not have been deleted or modified if you had installed the then current version of the Extension instead of having the Upgrade installed. Finally, although SmartSpeedTest may make Upgrades available to you, you understand and acknowledge that we have no obligation to do so.
SECTION THREE - LIMITATION ON LIABILITY; INDEMNIFICATION
3.1 General Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SmartSpeedTest, ITS PRINCIPALS, EMPLOYEES, CONSULTANTS, OFFICERS, DIRECTORS, MEMBERS, AGENTS, SUBSIDIARIES, OR AFFILIATES, OR ITS PARENT COMPANY AND ITS PRINCIPALS, PARENT COMPANY, EMPLOYEES, OFFICERS, CONSULTANTS, DIRECTORS, MEMBERS, AGENTS, SUBSIDIARIES, OR AFFILIATES (COLLECTIVELY “RELATED COMPANIES”) BE LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND AND BASED ON ANY THEORY OF LAW, EQUITY, CONTRACT, TORT OR OTHERWISE ARISING FROM YOUR USE OR INABILITY TO USE THE SITE, THE CONTENT OR THE EXTENSION, INCLUDING, WITHOUT LIMITATION, DAMAGES TO YOUR SYSTEMS AND/OR YOUR EXTENSION AND/OR DATA, COMPUTER FAILURE OR MALFUNCTION, COMPUTER VIRUS TRANSMISSION, PERFORMANCE DELAYS OR COMMUNICATION FAILURES OR SECURITY BREACHES.
3.2 No Warranty. YOU EXPRESSLY AGREE THAT THE USE OF THE SITE, THE CONTENT AND THE EXTENSION ARE AT YOUR OWN RISK. THE SITE, THE CONTENT AND THE EXTENSION ARE PROVIDED ON AN 'AS-IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF NON-INFRINGEMENT AND FREEDOM FROM VIRUSES, AND ANY WARRANTY IMPLIED THROUGH COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, BUT TO BE CLEAR, SMARTSPEEDTEST NEITHER WARRANTS NOR REPRESENTS THAT YOUR USE OF THE SITE MATERIALS WILL NOT INFRINGE RIGHTS OF THIRD PARTIES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OR ALL OF THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
3.3 Damage Caused by Third Parties. You agree that SmartSpeedTest and its Related Companies are not responsible for, and SmartSpeedTest and its Related Companies expressly disclaim any liability for, any damage, loss, or injury you may incur as a result of actions taken by other parties who access or use the Extension, the Content, Site or Site Materials, including, without limitation, damages resulting from hacking, tampering, cheating, or disseminating malware from the Extension, Content or Site.
3.4 Indemnification. By using the Site (including accessing any Content provided on the Site) or Extension, you hereby agree to indemnify, defend, and hold SmartSpeedTest and its Related Companies harmless from and against any and all losses, damages, liabilities and costs (including, without limitation, settlement costs and any legal or other fees and expenses for investigating or defending any actions or threatened actions) incurred by all or any such parties in connection with any claim arising out of any breach by you of these Terms and Conditions.
3.5 Changes to Site and Extension. You understand that SmartSpeedTest reserves the right to change the content of the Site and Extension at any time, including adding, deleting or modifying Content and you agree that SmartSpeedTest and its Related Companies shall have no liability to you or anyone claiming through you as a result of implementing changes.
SECTION FOUR - HACKING, TAMPERING, OR UNAUTHORIZED ACCESS OR USE
You agreed that you shall not and shall not attempt to:
gain unauthorized access to the Extension’s, Content’s or Site's systems,
interfere with procedures or performance of the Extension, Content or Site,
deliberately damage or undermine the Extension, Content or Site,
access Content on the Site by means of automatic, macro, programmed, or similar methods, or
commit fraud with regard to the Extension, Content or Site.
Your violation of any of the terms of this Section Four may result in your civil and/or criminal prosecution.
SECTION FIVE - MISCELLANEOUS PROVISIONS
5.1 Removal. If you do not agree to accept and comply with any provision of these Terms and Conditions, or any amendment made by SmartSpeedTest to these Terms and Conditions, you must immediately terminate your use of the Site (including to access any Content). If you have installed the Extension, you must immediately uninstall the Extension. You may uninstall the Extension by going to the Uninstall page and following the directions to remove the Extension from your computer.
5.2. Digital Millennium Copyright Act. If you are aware of or believe there is any infringing content or other material on the Site, please notify us. We respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act and other applicable intellectual property laws, which may include removing or disabling access to material claimed to be the subject of infringing activity. For more information, please visit our Copyright Policy.
5.3 Dispute Resolution by Binding Arbitration. Many user concerns can be resolved quickly and to the user's satisfaction by contacting us at the email address below. If, however, there is an issue that needs to be resolved, this Section 5.3 describes how both of us will proceed.
PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO ARBITRATE DISPUTES WITH SMARTSPEEDTEST AND ITS RELATED COMPANIES AND LIMIT THE MANNER IN WHICH YOU CAN SEEK RELIEF. Any claim or dispute between you and SmartSpeedTest or its Related Companies arising out of or relating in any way to the Site (including Content and Site Materials), Extension, these Terms and Conditions, marketing by SmartSpeedTest or Third Party Content, including claims that arise after the termination of these Terms and Conditions, shall be resolved through final, binding arbitration. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. The obligation to arbitrate applies regardless of whether the claim or dispute involves a tort, fraud, breach of contract, misrepresentation, product liability, negligence, violation of a statute, or any other legal or equitable theory.
We each agree that each of us may bring claims against the other only in an individual capacity and not in a class action or representative proceeding, REGARDLESS OF WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT. All arbitrations shall be conducted on an individual (and not a class-wide) basis and an arbitrator shall have no authority to award class-wide relief. You acknowledge and agree that these Terms and Conditions specifically prohibit you from commencing arbitration proceedings as a representative of others or joining in any arbitration proceedings brought by any other person.
A party who intends to proceed with a claim or dispute must first send to the other a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute and setting forth the specific relief sought. All Notices to SmartSpeedTest shall be sent via email to . SmartSpeedTest will send notice to you via email to the email address we have on file for you, if any, or otherwise via a reasonable method. Upon receipt of such Notice, the other party shall have a thirty (30) day period in which it may satisfy the claim against it by fully curing the dispute and/or providing all the relief requested in the Notice. After the expiration of such thirty (30) day cure period, you or SmartSpeedTest may commence an arbitration proceeding if the claim has not been fully satisfied.
The arbitration of any claim or dispute under these Terms and Conditions shall be conducted by one arbitrator exclusively in Orange County, California, and state or federal courts located in Orange County, California shall have exclusive jurisdiction and venue over any appeals of or motions regarding an arbitration award. The arbitrator has the authority to grant any remedy that would be available in court, except that the arbitrator may not issue relief on behalf of a class or otherwise issue class-wide or group relief. You acknowledge and agree that each party shall pay the fees and costs of its own counsel, experts, witnesses, and filing fees and the parties shall split the cost of the arbitrator.
If any aspect or portion of this Section 5.3 is found to be illegal or unenforceable, that aspect or portion will be severed with the remainder of Section 5.3 remaining in full force and effect.
YOU HAVE THE RIGHT TO OPT-OUT OF THIS ARBITRATION PROVISION WITHIN THIRTY (30) DAYS FROM THE DATE YOU FIRST USED THE SITE OR EXTENSION BY SENDING AN EMAIL TO . FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SEND A SIGNED WRITTEN NOTICE AND THE DATE YOU FIRST USED THE SITE OR EXTENSION. UNTIMELY OPT-OUTS WILL NOT BE VALID AND YOU MUST THEN PURSUE YOUR CLAIM THROUGH ARBITRATION PURSUANT TO THESE TERMS.
5.4 Jurisdiction and Venue. You and SmartSpeedTest agree that, as provided in Section 5.3, disputes shall be resolved by binding arbitration. You and SmartSpeedTest also agree that if you or SmartSpeedTest should nonetheless file a lawsuit against the other or SmartSpeedTest’s Related Companies, and regardless of the validity of the suit or whether it can be maintained or is prohibited by Section 5.3, the sole and exclusive forum, jurisdiction, and venue for such lawsuit shall be in courts of competent jurisdiction located in Orange County, California, and you hereby submit to and irrevocably waive all objections to such jurisdiction, forum, and venue.
5.5 Choice of Law. These Terms and Conditions will be governed and construed in accordance with the laws of the State of California, irrespective of any principles of conflicts of law, and the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
5.6 Entire Agreement. These Terms and Conditions, in connection with the other user obligations and rules detailed in writing on the Site, constitute the entire agreement between you and SmartSpeedTest with respect to your use of and access to the Site and Extension, and can only be modified by SmartSpeedTest as set forth above with respect to Amendments.
5.7 Severability. If any portion of these Terms and Conditions is deemed void or unenforceable, then that provision shall be deemed severable from these Terms and Conditions and shall not affect the validity and enforceability of the remaining provisions.
To contact SmartSpeedTest, please email us at .
Updated: May 4, 2020
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