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Тестувальник nPerf - Ліцензійна згода

Article 1: definitions

Terms beginning with a capital letter within this End User License Agreement (EULA), including the preamble above, whether used in the singular or the plural, shall have the meaning given to them in this Article.

Premium Subscription: means the paid plan giving access to the Premium Version of the Application for a period of one (1) year.

Application: means the nPerf software applications for mobiles (Android and iOS) and computers (Windows, Mac, and Linux) published and operated by NPERF to allow the User to perform tests of speed, latency, navigation and/or streaming of their Internet connection, the NPERF Test. There is also a web application of the NPERF Test, accessible on the Website.

NPERF Databases: refers to databases made up of Test Data.

User Account: means the account created by the User when registering on the Website/Application, prior to accessing certain Services offered by the NPERF Test.

Contract: means this EULA, accepted by the User, governing the contractual relations between NPERF and the User.

Test Data: refers to data from measurement tests performed by Users via the Application, collected by NPERF.

Personal Data: refers to data that, within the meaning of the Data Protection Act of 6 January 1978, as amended, and the General Data Protection Regulation of 27 April 2016 (GDPR), makes it possible to name or identify, directly or indirectly, a natural person.

Identifier: means the e-mail address or the specific Username by which the User identify themselves to connect to certain NPERF Test Services. The Identifier is always accompanied by a Password.

Password: a secret term specific to the User that must accompany their User Identifier in order to enable them to connect to certain Services. NPERF recommends that the Password should consist of at least eight characters of at least four different types (upper case, lower case, numbers, and special characters).

Services: refers to all services, free or paid, constituting the NPERF Test, defined in Article 3 of this EULA.

Enhanced Services: means all Services available free of charge to Users who have created a User Account.

Free Services: means all Free Services available to any User.

Premium Services: refers to all the Paid Services available to Users who have paid for a Premium Subscription.

Website: means the website accessible at the address www.nperf.com published and operated by NPERF. The Website gives access to the NPERF Test Web Application.

NPERF Test or the Test: refers, in whole or in part, to the test of speed, latency, navigation and/or streaming accessible via the Application.

User: means any natural person using the NPERF Test or one of the Services, as a consumer, namely any natural person making a use of the NPERF Test that does not fall within their business or independent professional activity.

PREMIUM Version: refers to the paid premium version of the Application, which does not contain advertisements and allows access to Premium Services.

ARTICLE 2: ACCEPTANCE OF AND CHANGES TO THE EULA

2.1. Acceptance of the EULA

This EULA constitute a Contract of indefinite duration between NPERF and the User.

By using the Application, the User unreservedly accepts this EULA in its online version on the day of their most recent connection.

2.2. Changes to the EULA

NPERF reserves the right to change this EULA, at any time and without notice, in order to adapt it to changes of the NPERF Test and/or its operation or to legislative or regulatory developments.

The User will be informed of the adoption of each new version of the EULA by an explicit communication (banner, window, notification) during their first connection following the adoption of the modified EULA, inviting them to read the new EULA. Users not accepting the new EULA must stop using the Application.

Any modification of the EULA will come into effect from the date it is posted, once the User has been informed and continues to use the Services.

ARTICLE 3: NPERF TEST SERVICES

The Services, excluding the Premium Services available by paying for a Premium Subscription, are offered free of charge to Users, excluding subscription fees charged by the mobile operator or Internet service provider, excluding connection and service charges for access to the Internet network and any additional costs charged for the consumption of data.

NPERF offers Internet connection speed testing services. Free Services are provided without charge, and without any prior registration requirement on the Website/Application, to any User. Other Services, the Enhanced Services, are provided free of charge, but require the prior registration of the User and the creation of a User Account in accordance with Article 5 of this EULA. Finally, Premium Services require the taking out of a Premium Subscription before being accessible.

The User is informed that the free and unrestricted access to certain NPERF Test Services is financed by the revenues derived from the advertising broadcast and therefore expressly accepts the display of advertisements on the Application.

NPERF is free to sell advertising space to any advertiser.

The User is also informed that the Test Data feed into the Databases and may be the subject of commercial exploitation by NPERF in connection with various products or services intended for its professional third-party customers; access services to test raw data sets, publication of network coverage or flow maps, production of statistical data, publication of barometers.

To learn more about the processing of Test Data implemented by NPERF, please consult the NPERF Privacy Policy

In the event of a change in the free or the nature of the Services offered on the Site and/or the Application, the User will be informed as soon as possible via a banner or a notification on the Site/Application, and, if he has created a User Account, by e-mail to the address provided at the time of registration, and will be free to subscribe or not to subscribe to these new Services and/or to terminate its registration for the modified Services.

3.1. Free Services available to any User

All Users have access to the following Free Services:

• Upload and download speed tests
• Latency tests
• Navigation tests (only on the App for mobile and computers)
• Streaming tests (only on the App for mobile and computers)
• Results of tests performed and additional results subject to express acceptance by the User
• Access to the history of the last 10 tests performed (only on the App for mobile and computers)
• Instant comparison of User test results
• Maps of speeds and mobile network coverages
• Active Mapping (only on the Mobile App)

3.2. Enhanced Services available free of charge to Users who have created a User Account

Any User who have created a User Account will have access, in addition to the Free Services referred to in point 3.1., to the following Enhanced Services:

• Access, only on the Website, to the dashboard of all the tests carried out on the Web Application: details, export and statistics of the tests
• Access, only on the Website, to the dashboard of all the tests carried out on the Application: details and statistics of the last 100 tests carried out
• Backup of Test Data in the nPerf cloud (ability to retrieve them even in the case of a change of terminal), hosted on servers located on French territory

3.3. Premium Services available to Users who have taken out a Premium Subscription

Users who have subscribed to a Premium Subscription will have access, in addition to access to Free Services, and Enhanced Services if they have created a User Account, to the following Premium Services:

• Access to the history of all tests performed (unlimited access)
• Access to the csv download of partial results of the last 100 tests
• Real-time display of the User's geographical location and the network used (technical data depending on the platform on which the User has taken out the Premium Subscription)
• Access to the "test sequence" feature (depending on the platform on which the User has taken out the Premium Subscription)
• Possibility of selecting the number of simultaneous connections (depending on the platform on which the User has taken out the Premium Subscription)

In addition, no advertisements are shown on the Premium Version.

3.4. Geolocation

Some Services require the geolocation of the User.

In all cases, access to the Services requiring such geolocation is subject to the prior express acceptance of the User to be geolocated.

To do this, the User must, if they wish to do so:

• In the Application, allow the Application to use the geolocation feature. This authorisation may, at any time, and without charge, be revoked or granted from the terminal system settings.
• The deactivation of geolocation by the Application and/or of the geolocation feature of the mobile terminal blocks the related Services, namely: the positioning of the tests on the maps, the active mapping.
• On the Website, give their express and prior consent to use the location-sharing feature of their Internet browser. This feature can, at any time, and without charge, be disabled or activated according to the User's browser settings.

ARTICLE 4: OPERATION OF THE NPERF TEST

4.1. Speed measurement

The speed test is based on the downloading of incompressible data with one or more simultaneous connections in order to saturate the User's connection for a few seconds in order to measure its capacity. The peak speed corresponds to the average of the highest 30% of the consecutive samples.

4.2. Measurement of latency

The latency test consists of measuring the time it takes for a small data packet to reach the server and then return to your terminal. It is carried out ten times minimum. The result is a minimum, an average and jitter (maximum variation between measurements).

4.3. Performance in navigation

The navigation test consists of loading different websites and measuring the loading time. The performance index is obtained from the loading time.

4.4. Video performance (streaming test)

The video streaming test involves loading and playing a streaming video and measuring the loading time and any buffering (video pause) of the video. The performance index is the ratio of the video's loading and playing time to its nominal duration.

4.5. Score calculation

The final score is calculated from the results of the various tests listed above, in order to provide a global indicator of the user experience, using an exclusive NPERF algorithm.

ARTICLE 5: ACCESS TO SERVICES - CREATION OF A USER ACCOUNT

The Services are provided as part of a shared infrastructure, using the resources of the hosting subcontractors, subject to the User' compliance with the obligations incumbent on them, in particular as regards the payment of the connection fee to the network without which no access is possible to the Services.

5.1. Technical requirements

To access and use the Application, the User must have a compatible phone or mobile device and access to the Internet. The Application can be downloaded free of charge from the Apple Store and Google Play Store on the following mobile devices:

• Apple iPhone mobile phone with the iOS operating system (iOS 9 and later)
• Mobile phone with Android OS 4.0.3 and later
• PC or Mac computer with a recent 64-bit operating system (2015 or later)
• Internet browser in the most recent version published by the publisher

5.2. User Account

Access to Enhanced Services is subject to the creation of a User Account either via the "Create an Account" tab on the Website or via the "Login" tab in the Application.

Each User agrees to create and use a single account, unless specifically authorised in writing by NPERF.

The creation of a User Account must be done prior to the first use of the Enhanced Services.

Registration via the registration form on the Website/Application requires that the User complete the required fields: their username and a valid e-mail address that belongs to them, to act as their Identifier, together with a Password. The Password, personal to the User, must be confirmed.

Once these fields have been filled in, the User must validate their registration form by clicking on the "Create my account" or "Sign In" button and accept this EULA.

The User will then receive an e-mail confirming the creation of their User Account at the e-mail address they have entered.

They must then definitively activate their account by responding to this confirmation e-mail and will thus have access to all Enhanced Services.

In all cases, access to the Services is reserved for Users who have reached the age of fifteen (15) years and NPERF cannot be held responsible for unknowingly collecting Personal Data relating to a minor younger than this minimum age.

The User expressly undertakes not to communicate false information and not to create an account on behalf of a third party. The User will be solely responsible for the consequences that may result from the communication of false or misleading information.

The User thus enjoys permanent and secure access to their Account from the Website or the Application.

The Password is strictly personal and confidential. The User agrees to keep it secret and not to disclose it in any way and in any form whatsoever to third parties.

The User is solely and entirely responsible for the use and confidentiality of their Identifier and Password as well as the consequences of the use of their Account.

In case of loss or theft of their Password, the User shall inform NPERF without delay by sending a message via the contact page .

NPERF will send them back, to the e-mail address they have provided, the procedure for retrieving a new Password.

The User acknowledges that any connection made using their Identifier and Password will be deemed to have been made by them. In the event that the User becomes aware of access by a third party to their Account, they undertake to immediately notify NPERF by sending a message via the contact page .

Any change in the information provided by the User must result in an online update that will take effect instantly.

ARTICLE 6. INTELLECTUAL PROPERTY

6.1. NPERF TEST/SITE/APPLICATIONS

NPERF is the holder of all the intellectual property rights relating to the NPERF Test, the Website and the Application, as well as their elements (software, graphic charter, tree structure, database structure, graphic interface, logos, etc.), which belong to it, or belong to a third party that has authorised NPERF to use them, for the whole world.

During the term of the Contract, NPERF grants to the User a personal, non-exclusive, non-sublicenseable, non-transferable, worldwide and free right to use the NPERF Test, the Website and the Application, and their elements with the sole and only purpose of allowing the User to use the Services, to the exclusion of any other purpose.

Any use, commercial or otherwise, including any download, copy, reproduction, copyright, transmission, distribution, adaptation, translation or representation, in whole or in part of the NPERF Test, the Website and/or the Application, or their elements, in particular the software, by any current or future means or process, on any current or future support, without the prior written permission of NPERF is prohibited and is likely to give rise to legal proceedings, including in respect of the infringement punished by Articles L. 335-2 and following of the Intellectual Property Code, subject to the application of Article L. 122-5 of the said Code.

The name "NPERF" is a protected trademark of which NPERF is the owner. Except with the express and prior authorisation of NPERF, any use of the mark "NPERF" or a sign identical or similar to this mark, as well as to any other mark appearing on the Website and/or Applications belonging to NPERF or to third parties, makes the User liable to criminal and civil proceedings.

6.2. Database

By using the NPERF Test, the User expressly agrees to contribute to enriching the Databases with their Test Data.

The rights to the Databases belong:

• in respect of their internal and external architecture, to NPERF;
• in respect of their content, protected by the sui generis right to NPERF as the producer of the Databases.

It is therefore forbidden for any User:

• To extract by permanent or temporary transfer all or a qualitatively or quantitatively substantial part of the content of the Databases, by any means and in any form whatsoever;
• To reuse, by making available to the public, all or a qualitatively or quantitatively substantial part of the contents of the Databases, in whatever form;
• To extract or reuse, in a repetitive or systematic manner, qualitatively or quantitatively insubstantial parts of the content of the Databases when these operations clearly exceed the normal Terms of Service of such databases.

The User is authorised to use their Test Data exclusively for private, non-professional, non-commercial and non-profit purposes (advertising etc.). The User will be solely responsible for this use.

ARTICLE 7: PREMIUM SUBSCRIPTION

7.1. Price

The price of the PREMIUM Subscription is around € 2 per year including VAT (depending on the platform and the country). The PREMIUM Subscription is valid for all terminals linked to the same GOOGLE or APPLE STORE account. If the User has terminals belonging to different platforms, they will have to take out a subscription for each platform.

The Premium Version is payable in a secure manner according to the payment terms provided for and required by the Apple App Store or the Android Play Store.

The payment methods registered on the User's Store account, namely the credit card, the mobile network access provider billing, or a PayPal type electronic wallet, may vary according to the Store on which the User has an account and acquires the Premium Version.

The Apple App Store or the Android Play Store are solely responsible for the terms and the payment process in which NPERF does not get involved, in accordance with the terms and conditions imposed by such platforms. Any refund request or enquiry relating to the payment must be addressed to the services of Apple or Android depending on the platform on which the purchase of the Premium Version have been made by the User. The User's banking data is collected by Apple or Google (Android) without the involvement of NPERF. NPERF has no knowledge of the banking data of Users, since this is not communicated to it by the platforms.

7.2. Duration

The term of the Premium Subscription is one (1) year from the date of subscription.

At the end of this period:

• For iOS, the User is notified directly by the Apple Store platform about the forthcoming expiry of their Subscription. The User must then subscribe to a new Subscription if they wish to continue to have access to the Premium Services.
• For Android, the Subscription is tacitly renewed every year on its anniversary date (unless cancelled by the User from the Play Store).

7.3. Right to withdraw

Regarding the terms of application of the right of withdrawal (Articles L. 221-18 and following of the Consumer Code), the User is expressly referred to the terms and conditions of Apple Store or Play Store platforms, depending on the platform on which the purchase of the Premium Version has been made by the User.

ARTICLE 8: USE OF THE SERVICES

8.1. The User undertakes to behave in a proper manner on the Website and/or the Application in the context of the use of the Services.

In particular, the User agrees to a strictly personal, private and non-collective use of the NPERF Test.

Any intensive use, whether individual or collective, manual or robotic, of the NPERF Test, especially in order to influence the statistics and analysis of tests published by NPERF, as well as any exploitation or use for professional purposes, is strictly prohibited.

NPERF sets up filtering systems to identify these types of use and reserves the right to remove from the Database the Test Data generated under such circumstances. The identified devices may then be blacklisted and, therefore, no longer be able to access the Application.

Any commercialisation or other transfer, free of charge or costly, of test results, and therefore of Test Data, is strictly prohibited, except with the prior written consent of NPERF.

8.2. Persons or entities, who wish to make professional use of the NPERF Test, in particular by re-selling/marketing the Test Data, are invited to contact NPERF by e-mail via the contact page in order to conclude a specific contract. This contract may include access to additional features reserved for professional use of the NPERF Test and Test Data.

ARTICLE 9: PERSONAL DATA

NPERF, as data controller, collects certain Personal Data of the User necessary for the registration on the Website and/or on the Application (registration, opening and management of the User Account) and/or on accessing the Services defined in Article 3 of this EULA, namely: a Username (pseudonym), an e-mail address and a Password. This information is required and marked as such. Other optional information may be collected. Failure to answer a required field may prevent the processing of the User's request.

NPERF, as part of the NPERF Test, also collects the IP address of the User, their geographical position as well as the technical telecommunications data. The NPERF Privacy Policy also describes in detail all of the data collected as well as the recipients that can process this data.

ARTICLE 10: LIABILITY - GUARANTEE

10.1. Access to the Website, the Application and/or the Services

NPERF will do its best to ensure that the Website, the Application and/or the Services are accessible 24 hours a day, 7 days a week, except in a case of force majeure, an event beyond the control of NPERF or maintenance and/or update operations necessary for the proper functioning of the Website, the Application and/or the Services.

These maintenance operations may take place without the User having been previously notified.

The User is also informed that the connection to the Website, the Application and/or the Services is via the Internet. He is warned of the technical risks that can affect this network and lead to slowdowns or unavailability making the connection impossible. NPERF is bound by an obligation of due diligence with regard to the accessibility of the NPERF Test and cannot be held responsible for the difficulties of access to the Services due to disturbances of the Internet which are not attributable to it.

NPERF will in no way be held responsible in the event of a difficulty in accessing the NPERF Test and/or the Services that is related to the User's equipment. It is the User' responsibility to take all necessary measures to ensure that the technical characteristics of their computer, tablet or smartphone and/or their computer network allow access to the Website, the Application and/or the Services, in accordance with the recommendations of NPERF stipulated in Article 5.1. of this EULA.

All costs relating to access to the Services and their use, whether for software or Internet access, are exclusively at the User's expense. The User is solely responsible for the proper functioning of their computer equipment as well as their access to the Internet.

It is up to each User to take all appropriate measures to protect themselves against the contamination of their data, software or hardware by any viruses that may possibly be circulating through the Website, the Application or the Services.

In the event of a security breach identified by NPERF that could seriously jeopardise the security of the Website and/or the Application, NPERF may proceed, without notice, to a temporary interruption of the Services in order to remedy the security breach in the area as fast as possible.

10.2. Use of the Services

NPERF makes no express or implied warranties with respect to the Services, including, without limitation, any implied warranties of fitness of the Application or Website for a particular purpose. NPERF does not guarantee the results of the Services.

The connection of the User to the Website or the Application and their use of the Services are under their full responsibility.

10.3. Media malfunction

NPERF cannot be held responsible for any malfunction of any kind whatsoever relating to the User's access media for the NPERF Test, the Website, the Application and/or the Services, i.e. PC/MAC, smartphone, tablet.

10.4. Modification/stop of Services

NPERF reserves the right to modify and/or improve the Services if it deems it appropriate or necessary.

NPERF reserves the right, subject to reasonable notice, to discontinue definitively one or more Services and cannot be held responsible for any damages that may result from this action.

ARTICLE 11: UNSUBSCRIBING - SUSPENSION AND CLOSURE OF THE ACCOUNT

11.1. Unsubscribing

Any User may unsubscribe from the Enhanced Services at any time, without giving a reason, by closing their User Account. This request must be sent to NPERF exclusively via the Internet link: https://www.nperf.com/contact/ and will take effect upon receipt by NPERF. An e-mail confirming the unsubscription/closure of Account will be sent by NPERF to the User at the e-mail address they have provided.

11.2. Temporary or permanent suspension

NPERF reserves the right to suspend at any time, temporarily or permanently, access to the Services and/or the Account of a User who does not comply with all or part of this EULA, including compliance with the provisions relating to the use of the Services (Article 8) and the provisions on intellectual property rights (Article 6).

NPERF will notify the measure to the User, who can provide explanations.

NPERF alone will decide on the possible lifting of the temporary suspension measures put in place.

The closure of a User's Account terminates all Services.

ARTICLE 12: NPERF-USER RELATIONSHIP

For any question relating to this EULA and more generally to the Services, the User may write to NPERF at the following address:

NPERF

87, rue de Sèze

69006 LYON

Alternatively, contact NPERF via the Internet link: https://www.nperf.com/contact/

ARTICLE 13: SEVERABILITY CLAUSE

If any of the provisions of this EULA is found to be void under a rule of law in force or a judicial decision that has become final, then it shall be deemed removed, without causing the invalidity of this EULA or affecting the validity of its other provisions.

ARTICLE 14 - APPLICABLE LAW

This EULA is subject to French law.

ARTICLE 15 - DISPUTES

In case of dispute or a disagreement, the User is recommended to approach NPERF in order to try to find an amicable solution.

The User is informed of the possibility, if they are dissatisfied with the result of their complaint to NPERF or in the absence of a response from the latter within a period of two (2) months, of submitting their dispute with NPERF to a mediator who will attempt in all independence and impartiality, to bring the Parties together to reach an amicable solution.

Concerning a dispute over the Premium Services, there is a complaint form for consumer-type Users available on the website of our mediator, the AMCE (Association for the Mediation of Electronic Communications) .

The Parties remain free to accept or refuse the use of mediation and, in the case of recourse to mediation, to accept or reject the solution proposed by the mediator.

In the absence of an amicable agreement, any dispute about the validity, interpretation or execution of this EULA and/or the Services will be submitted to the competent French Courts.