Last Modified May 22, 2018
1. GENERAL INFORMATION
MANDATORY BINDING ARBITRATION: THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AGREEMENT IN SECTION 15, WHICH MEANS YOU AGREE TO SUBMIT ANY CLAIM YOU HAVE IN CONNECTION WITH THIS AGREEMENT, THE SITE, SOFTWARE, OR THE SERVICES TO INDIVIDUAL ARBITRATION RATHER THAN THROUGH A COURT PROCEEDING. THE ARBITRATION AGREEMENT ALSO REQUIRES THAT YOU BRING ANY CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS PART OF A CLASS ACTION.
AGE REQUIREMENT: IN RESPECT TO ACCESSING THIS SITE, INSTALLING OUR SOFTWARE (DEFINED BELOW), AND/OR USING OUR SERVICES, YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT (ARE AT LEAST 18 YEARS OLD) AND ARE NOT A PERSON BARRED FROM RECEIVING SERVICES UNDER THE LAWS OF THE UNITED STATES OF AMERICA OR OTHER APPLICABLE JURISDICTION. IF YOU ARE UNDER THE AGE OF 18 YEARS OLD OR DO NOT AGREE TO THIS AGREEMENT, YOU ARE PROHIBITED FROM USING THE SITE.
2. USING OUR SERVICES
We provide you with access to the Site and Service, subject to your compliance with this Agreement. Please read this Agreement prior to accessig the Site or using our Services. This Agreement governs your access to and use of the Services, and constitutes a binding legal Agreement between you and us.
YOU ACKNOWLEDGE AND AGREE THAT, BY (1) BY INSTALLING THE OUR BROWSER EXTENSION ("SOFTWARE"), OR (2) ANY OTHER CONDUCT INDICATING YOU ACTIVELY ACCEPT THESE TERMS OF SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT SHALL BECOME EFFECTIVE ON THE DATE ANY OF THE ABOVE EARLIEST EVENT OCCURS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU HAVE NO RIGHT TO ACCESS, OR TO USE THE SITE, SERVICES, AND SOFTWARE. IF YOU HAVE DOWNLOADED THE SOFTWARE, YOU MUST IMMEDIATELY UNINSTALL THE SOFTWARE. YOU MAY UNINSTALL THE SOFTWARE BY GOING TO THE UNINSTALL PAGE ON OUR SITE AND FOLLOWING THE DIRECTIONS TO REMOVE THE SOFTWARE FROM YOUR COMPUTER. IF YOU ACCEPT OR AGREE TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT AND, IN SUCH EVENT, "YOU, "YOUR", AND "END USER" WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY.
NOTWITHSTANDING THE FOREGOING, YOUR ACCESS TO OUR SITE AND SERVICES IS SUBJECT TO OUR RIGHT TO TERMINATE YOUR ACCESS TO THE SITE OR SERVICES IN ITS SOLE DISCRETION, WITHOUT ANY PRIOR NOTICE OR REASON PROVIDED TO YOU FOR THE TERMINATION.
EU Residents – Notwithstanding the foregoing, if you are a current resident of the European Economic Area and subject to the protection of the EU General Data Protection Regulation 2016/679, any modification we make to this Agreement will be posted on the Site, and will become effective after you have been given notice and you have actively consented to the modification. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Site and to uninstall our Software.
5. THIRD PARTY CONTENT
Internet speed test on the Site are free of charge. To see internet speed test on the Site, you must download and install the Software, which is a browser add-on/extension that you can install from the Site. The Software allows us to display third party advertisements, including, but not limited to, popup/unders, text links, applications, and/or banner advertisements on your computer based on the web content you view. We do not collect any personally identifiable information from you. Additionally, the Site and the zodiac readings may display third-party advertisements before, during, or after the reading is shown. All third-party advertisements and applications from the Software, the Site, and the Services are not owned or controlled by us ("Third Party Content").
Clicking on, accessing, purchasing, participating, or any other type of involvement with any Third Party Content is your own risk and we shall have no liability whatsoever to you for any Third Party Content. We are not affiliated and does not endorse any Third Party Content, and is not therefore, not liable for any claims related to Third Party Content, including, but not limited to, the products or services linked to through Third Party Content. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damages or losses 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 click the "uninstall button" on our install/landing page and follow the directions.
6. PROHIBITED CONDUCT
You shall not, and shall not allow anyone acting on your behalf to do or attempt to do any of the following:
7. INTELLECTUAL PROPERTY RIGHTS
The Site is owned and operated by us. The visual interfaces, graphics, design, compilation, information, computer code (including source code or object code), products, software, services, and all other elements of the Site provided by us (the "Materials") are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Site (excluding any Third Party Content) are our property or our affiliated companies and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to us or our affiliates and/or third-party licensors. Except as expressly authorized in writing by us, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials or Intellectual Property of us, our affiliated companies, or our third-party licensors. We reserve all rights not expressly granted in this Agreement.
Any submission to the Site of ideas, comments, suggestions, questions, or data ("Site Submission") is non-proprietary and non-confidential, including, but not limited to any content in any mail, electronic or otherwise, you send to BGN. BGN is free to use Site Submissions for any purpose whatsoever, including, but not limited to, publication, reproduction, broadcasting, and transmissions. BGN is free to use any Site Submission, and any related ideas, concepts, know-how, or techniques for any commercial or non-commercial purpose without any compensation to you.
8. SOFTWARE CHANGES & UPGRADES
We reserve the right in our sole discretion at any time to add additional features or functions to, or release new versions of, the Software (any such new features, functions or versions, are referred to as "Software Upgrades"). We may make changes or upgrades that may help us better administer the Site, Services, or Software, and improve your experience. Any such Software Upgrade may be made automatically without notice to you. Software Upgrades may also cause the Software to revert to the default settings of the current version of the Software. Unless we provide you with express notice to the contrary, a Software 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 Software instead of having the Software Upgrade installed. While we may make Software Upgrades available to you, please be aware that we have no obligations to create Software Upgrades.
9. UNINSTALLING OUR BROWSER ADD-ONS/EXTENSIONS
YOU ARE ABLE TO REMOVE OUR SOFTWARE FOR ANY REASON AT ANYTIME WITHOUT NOTICE. YOU CAN FIND INSTRUCTIONS TO REMOVE OUR SOFTWARE BY CLICKING THE "UNINSTALL" LINK ON OUR INSTALL/LANDING PAGE.
10. DISCLAIMERS; NO WARRANTIES
A. Warranty Disclaimer
YOU EXPRESSLY AGREE THAT USE OF THE SITE, SERVICE, AND SOFTWARE IS AT YOUR SOLE RISK. THE SITE, SERVICES, SOFTWARE, AND ALL OTHER CONTENT, DATA, MATERIALS AND DOCUMENTATION PROVIDED IN CONNECTION WITH THIS AGREEMENT BY US ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE SERVICES WILL BE PROVIDED ERROR-FREE, UNINTERRUPTED, COMPLETELY SECURE OR VIRUS-FREE. NO INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 10, THE TERM US INCLUDES OUR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, LICENSORS AND SUBCONTRACTORS.
B. Use At Your Own Risk
YOU AGREE AND ACKNOWLEDGE THAT YOUR USE AND ACCESS OF THE SITE, SERVICES, AND SOFTWARE IS AT YOUR OWN DISCRETION AND RISK. YOU FURTHER AGREE AND ACKNOWLEDGE THAT WE SHALL NOT BE LIABLE FOR ANY THIRD PARTY CONTENT, INCLUDING, BUT NOT LIMITED TO, THE PRODUCTS AND SERVICSE LINKED TO FROM ANY ADVERTISEMENTS ON THE SITE AND SERVICES.
You agree to indemnify and hold us and our officers, directors, agents, affiliates, licensors and employees harmless from and against any and all claims, actions, liabilities, losses, expenses, damages, and costs (including without limitation reasonable attorneys' fees) whether caused in whole or in part by us arising out of or relating to our active negligence, passive negligence, or gross negligence in (a) your use or misuse of the Site and/or Service, (b) any violation by you of this Agreement, including, but not limited to, any breach of the representations, warranties, and covenants made by you herein, (c) any claims brought by third parties arising out of your Submission(s) on the Site or to us, or (d) any claims based upon or arising out of any actual or alleged fraud, dishonesty, criminal conduct, or any knowingly wrongful, malicious, or intentional acts or omissions by you or anyone acting on behalf of you. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
12. LIMITATION OF LIABILITY
A. Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, ACTIVE, PASSIVE OR GROSS NEGLIGENCE, WILL WE OR OUR AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES, OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO USE THE SERVICE, OR ANY OTHER INTERACTIONS WITH US, EVEN IF WE OR AN AUTHORIZED REPRESENTATIVE OF OURS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
B. Limitation of Damages
TO THE EXTENT RECOVERABLE, IN NO EVENT SHALL ANY LIABILITY OF OURS, OUR INFORMATION PROVIDERS, LICENSORS, LICENSEES, EMPLOYEES, AGENTS, CONSULTANTS OR CONTRACTORS, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR DAMAGES CAUSED OR ALLEGEDLY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, FAILURE OF DELIVERY OF MERCHANDISE OR INFORMATION, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR UNLAWFUL USE OF OUR RECORDS, WHETHER FOR BREACH OF CONTRACT, TORTUOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION, SHALL NOT EXCEED AGGREGATE DAMAGES IN EXCESS OF $100.00 IN UNITED STATES CURRENCY.
13. ALLOCATION OF RISKS
YOU ACKNOWLEDGE AND AGREE THAT (A) THE REMEDIES, EXCLUSIONS, LIMITATIONS OF LIABILITY, AND LIMITATION OF DAMAGES HEREIN, REFLECT A REASONBLE ALLOCATION OF RISKS; (B) THAT YOU AND WE WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE EXCLUSIONS, LIMITATIONS OF LIABILITY, AND ALL OTHER TERMS IN THIS AGREEMENT. YOU ACKOWLEDGE THAT THE TERMS CONTAINED IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS BETWEEN YOU AND US.
14. CHANGES TO SITE AND SERVICE
We reserves the right to change the content of the Software, the Site, and Services at any time without notice to you, including, but not limited to, removing, adding, or modifying any internet speed test or features. You agree we shall have no liability to you or anyone acting on your behalf for any claim brought against us as a result of these changes.
15. BINDING ARBITRATION
A. Dispute Resolution and Binding Arbitration
Any dispute arising from, based upon, related to or in any way connected to this Agreement and the parties to this Agreement, shall be resolved by arbitration before a single arbitrator. Arbitration shall be conducted in accordance with California Code of Civil Procedure section 1280 et. seq. The Parties agree that venue for the arbitration shall be in Los Angeles, California. The Parties unequivocally and without reservation waive any and all right object to personal and subject matter jurisdiction of California. All arbitration-related hearings and all depositions, if any, shall be conducted in Los Angeles, CA. The arbitrator shall be from the Southern California area and the arbitrator will be selected by the mutual agreement of the Parties and/or their respective counsel. If the Parties cannot agree on a single arbitrator, then each Party shall propose three (3) potential arbitrators to the Superior Court of California in Los Angeles - Northwest District (Van Nuys, Ca.) as part of a Petition to the Court that shall be filed jointly by the Parties for the purpose of resolving the sole issue of arbitrator selection. The Superior Court will select the single arbitrator from the potential arbitrators proposed by the Parties. Once selected, the Arbitrator shall be empowered to hear and resolve any and all issues related to the dispute. The Arbitrator shall issue rulings, decisions, orders, judgments and permanent injunctions, without prejudicing a party's right to seek an injunction of any kind from a court of competent jurisdiction as applicable and appropriate. The arbitrator shall award the prevailing party all reasonable attorneys fees and actual costs. If a party to this agreement, after providing in writing 5 calendar days written notice of a request to arbitrate a dispute and said request is either ignored or rejected, then the party who files a petition or motion to compel arbitration and prevails in said motion, shall be entitled to an interim award of reasonable attorneys fees and costs incurred in demanding the arbitration and incurred in the filing, reply to an opposition and appearing at the hearing on said motion.
B. Arbitration Notice; Process
A Party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or in the event that We do not have a physical address on file for you, by electronic mail ("Notice"). Our address for Notice is: Speedtest3, Inc., Attention: Legal, 15445 Ventura Blvd., #318, Sherman Oaks, CA, 91403. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or us may commence an arbitration proceeding.
C. Class Actions
You specifically agree that any claim or cause of action you may have arising out of this Agreement will be brought only in your individual capacity. You agree and acknowledge that you will not be a party, class member, or representative of any class action proceedings against us. Also, an arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
D. Time Limit to File Claims
Any claim or cause of action relating to or pertaining to this Agreement must be arbitrated as set out above within one (1) year of the occurrence giving rise to the claim or cause of action. This time limitation applies to all terms and conditions set out in this Agreement. All claims or causes of action not initiated within the time restriction as set forth in this Section 15(D) are permanently barred.
A. Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the laws of the State of California, notwithstanding the actual state or country of residence or incorporation of the parties. Except with regard to arbitration matters, the Parties consent to the exclusive jurisdiction of the state or federal courts in Los Angeles, California for all actions arising out of or related to this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
Other than as specifically mentioned in this Agreement, any notice or other communication to be given hereunder will be in writing and will be (as elected by the Party giving such notice): (i) personally delivered; (ii) sent by prepaid overnight delivery services such as FedEx or USPS Express Mail, with delivery confirmation and/or return receipt; or (iii) by email, which is effective upon delivery confirmation. Unless otherwise provided herein, all notices will be deemed to have been duly given on the date of receipt (or if delivery is refused, the date of such refusal) if delivered personally.
In the event that any of the provisions of this Agreement are held by to be unenforceable by a court or arbitrator, the remaining portions of the Agreement will remain in full force and effect.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without restriction. Any assignment attempted to be made in violation of this Agreement shall be void.
Upon termination of this Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
E. Independent Contractors
Nothing contained in this Agreement or your use of the Site, and/or any Services provided in connection with the Site, shall be construed to constitute either Party as a partner, joint venturer, employee, or agent of the other Party, nor shall either Party hold itself out as such. Neither Party has any right or authority to incur, assume or create, in writing or otherwise, any warranty, liability or other obligation of any kind, express or implied, in the name of or on behalf of the other Party, it being intended by both Parties that each shall remain independent contractors responsible for its own actions.
F. Export Control
The Services may be subject to export laws and regulations of the United States and other jurisdictions. You represent that you are not named on any U.S. government denied-party list, and you shall not permit third parties to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation.
The failure of us to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by us.
H. Entire Agreement
This Agreement is the complete and exclusive agreement between you and us with respect to the subject matter hereof, superseding and terminating all previous communications, representations, or agreements, whether written or oral between the parties relating to the services provided hereunder.