Ookla^® Terms Of Use

Effective September 27, 2023

PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY BECAUSE THEY DESCRIBE YOUR RIGHTS AND RESPONSIBILITIES AND, TOGETHER WITH ALL THE OTHER TERMS AND CONDITIONS REFERRED TO BELOW, FORM A LEGALLY BINDING AGREEMENT BETWEEN YOU AND US REGARDING YOUR USE OF OUR WEBSITE(S) AND OTHER SERVICES.

THESE TERMS CONTAIN A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER.

SECTION 17 CONTAINS AN IMPORTANT NOTE TO NEW JERSEY CONSUMERS.

IF FOR ANY REASON, YOU ARE UNABLE OR UNWILLING TO AGREE TO ALL OUR TERMS OF USE, PLEASE IMMEDIATELY STOP USING OR ATTEMPTING TO USE OUR WEBSITE AND OTHER SERVICES, BECAUSE IF YOU CONTINUE, YOU WILL BE AGREEING TO EVERYTHING IN OUR TERMS OF USE.

1. General.

   These Terms govern your use of the interactive websites, mobile and connected applications, software, and all other online interactive features and services, including, but not limited to, emails, newsletters, forums, communities, sweepstakes and contests (collectively, the “Services”) operated by Ookla, LLC, a subsidiary of Ziff Davis, LLC (“Ziff Davis” “Ookla” “we” “us” or “our”). Additional terms and conditions of use applicable to specific areas of the Services may also be posted in such areas and, together with these Terms, govern your use of those areas and are referred to collectively as the “Agreement.”

   We reserve the right, in our discretion, to change or modify all or any part of the Agreement at any time, effective immediately upon notice published on this page. Your use of the Services constitutes your binding acceptance of these terms and conditions, including any changes or modifications made by Ookla as permitted above. Please be sure to review the Agreement periodically to ensure familiarity with the most current version. If at any time the terms and conditions of the Agreement are no longer acceptable to you, you should immediately cease all use of the Services. It is your responsibility to refer to the Agreement upon accessing the Services.

   COPPA: The Services are directed to teenagers and adults and are not directed to children under the age of 13. You must be 13 years of age or older to use the Services outside of the European Union and European Economic Area, and 16 years of age or older in the European Union and European Economic Area. Ookla complies with the Children’s Online Privacy Protection Act and does not permit registration by, and will not knowingly collect personally identifiable information from, anyone under 13. By registering for any Service, you represent and warrant that you are 13 years of age or older or, if you reside in the European Union or European Economic Area, 16 years of age or older. Additionally, you must provide true, accurate and complete registration information to become a member of the Services (“Member”). Creating a Member account if you are under the age of 13 outside of the European Union and European Economic Area or 16 in the European Union and European Economic Area, under automated means or under false or fraudulent pretenses constitutes unauthorized use of the Services, and such accounts will be deleted by Ookla.

   As part of the registration process, you may be asked to select a username and password and you will be responsible for all activities occurring under your username and for keeping your password secure. We may refuse to grant you a username that impersonates someone else, violates or infringes on the trademark or proprietary rights of a third party, or is vulgar, offensive, or otherwise inappropriate, as determined by us in our sole discretion. You agree that your username and password is personal to you and should not be used to provide access to the Services to any other person or entity.

   By using the Services, you agree to: (a) provide accurate and complete information about yourself as prompted by the registration form for a Service (“Registration Data”), (b) maintain and promptly update the Registration Data to keep it accurate and complete, and (c) maintain the security of your password. In the event you compose a profile upon registering for the Services (a “Member Profile”), such profile must describe you, an individual person. Examples of inappropriate profiles include, but are not limited to, profiles that purport to represent an animal, place, inanimate object, fictional character, or real individual who is not you.

2. Your Use of Content.

   You acknowledge that the Services contain information, software, articles, reviews, content, photographs, audio and video clips, graphics, links, logos, trademarks, the “look and feel” of our websites, applications and software and other material (collectively, the “Content”) that are protected by copyright, trademark and/or other proprietary rights of Ookla or third parties. All Content on the Services is protected by applicable copyright and other intellectual property laws. You agree to comply with all copyright laws and any copyright notices, information, or restrictions contained in any Content available on or accessed through the Services. Users of the Services may use the Content only for their personal, noncommercial use. You further acknowledge that the Content may be subject to certain restrictions and limitations set forth in certain license agreements to which Ookla is subject ("Third Party Licenses"). Ookla reserves the right, at any time, to add additional restrictions required under any Third Party Licenses. Businesses, organizations or other legal entities may not become Members, and are not permitted to use the Services for any purpose, including but not limited to collecting usernames and/or email addresses of Members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of, or linking to, the Services or users on the Services. Please refer to our Linking Policy for more information on linking and use of Content.

   Except as expressly permitted, you may not (i) modify, publish, transmit, reproduce, create derivative works from, distribute, perform, display, adapt, aggregate, sell, transfer or in any way exploit any of the Content, code or Material (defined below), in whole or in part, or (ii) use any robot, spider, site search and/or retrieval application, or other device to crawl, scrape, database scrape, screen scrape, harvest, gather, extract, retrieve or index any portion of the Services, or (iii) use any text, code, image, audio, video, or other content from any portion of the Services (a) for data set creation, analysis, or manipulation (including activities sometimes called “data mining,” “text and data mining,” or “TDM”) and/or (b) in connection with the development or operation of any software program, including but not limited to any artificial intelligence or machine learning model, software, or process (such as training, fine-tuning, embedding, and the like), either directly or indirectly, including through a third party (including use of a third-party dataset created in any part by prohibited means). Content consisting of downloadable or web-based software may not be reverse engineered unless specifically authorized by the owner of the software’s patent and/or copyright. You also agree not to circumvent, disable or otherwise interfere with any security related features of the Services or the Content, including features that prevent or restrict use or copying, or that enforce limitations on use.

   You may post on the Services only content owned by you (such as your original statements or video clips), content for which you have received express written permission from the owner and content in the public domain (collectively, the “Material”). You assume all risk and responsibility for determining whether any Material is in the public domain. You hereby grant, transfer and assign to Ookla and its affiliates, successors, assigns and licensees (collectively, “Licensee”) a fully-paid, royalty-free, irrevocable, perpetual, worldwide right and license to publish, distribute, reproduce, transmit, use, translate, display, perform, modify, revise, create derivative works of and archive the Material, in any form or media now known or hereafter developed (including without limitation in print, magnetic or electronic form) including, but not limited to, as part of the Services or in support of the Services through advertising or marketing, on any number of occasions in any form, and to sublicense third parties (including other users of the Services) to do any of the foregoing with further right of sublicense (the “License”), without credit, payment or compensation to you and without seeking further permission from you. You represent and warrant that you are authorized to grant all rights set forth in the preceding sentence and that the exercise by Licensee of Licensee’s rights under the License shall not violate any laws, defame or libel any person, invade any person’s right of privacy or publicity or otherwise violate, misappropriate or infringe the rights of any person (including but not limited to any copyright or moral right). You agree that you are solely responsible for the Material that you post on the Services or transmit to others and agree that you will not hold Company responsible or liable for any materials or content you access or receive from other users of the Services.

   You may download, copy and make any personal, non-commercial use of the Content and use that is expressly permitted by the United States Copyright Act of 1976, as amended (“Copyright Act”) and not prohibited by any section of the Copyright Act or by any other applicable law, rule or regulation; provided, however, that you maintain all copyright and other notices contained in such Content; and provided further that you shall not store electronically any significant portion of any Content.

   To the extent that you provide us with any suggestions, feedback or other information relating to our business or the Services (including, but not limited to, suggested new products or services or improvements to existing products and services), such information is provided to us on a non-confidential and unrestricted basis, and you hereby grant to the Licensee (as defined above) a non-exclusive, worldwide, perpetual, royalty-free, fully transferable and sublicensable right and license to reproduce, display, distribute, use and fully exploit such suggestions, feedback and information.

   For questions regarding use of Content please email [email protected].

3. Rules of Conduct.

   Ookla has the right, but not the obligation, to investigate any illegal and/or unauthorized use of the Services and appropriate legal action may be taken, including without limitation, civil, and injunctive relief. While utilizing the Services, you may not:

   Use the Services for any commercial purpose, to distribute any advertising or solicitation of funds or goods and services, or to solicit users to join competitive online services;

   Post on the Services any links to any external Internet sites that are obscene or pornographic, or display pornographic or sexually explicit material of any kind as determined by Ookla;

   Post or transmit through the Services any Material that violates or infringes another person’s intellectual property rights (including, but not limited to, third party music, videos, photos or other materials where you do not have written authority from the owner to post or transmit such materials);

   Post or transmit any Material that contains any advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes” or any other form of solicitation as determined by Ookla;

   Reformat, frame or mirror any portion of any web page that is part of the Services;

   Post Material containing restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);

   Submit any Material impersonates a person or entity, that falsely implies sponsorship or endorsement of that Material by the Services, Ookla and/or any third party, falsify or delete any author attributions in any Material, or promote any information that you know is false or misleading;

   Transmit any viruses, worms, defects, Trojan horses or other items of a contaminating or destructive nature through the Services or otherwise attempt to interfere with the proper working of the Service or the use and enjoyment of the Services by other users;

   Promote an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or videos or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;

   Submit Material, or engage in any activity, that is libelous, defamatory, obscene, pornographic, abusive, harassing, threatening, unlawful, or violates the rights of any third party (including their rights of privacy or publicity) or that promotes or encourages illegal activity, racism, bigotry, hatred, physical harm or discrimination of any kind against any group or individual; or

   Harvest or collect email addresses or other contact information of other users by electronic or other means.

   The above is not a complete list of illegal and/or prohibited uses of the Services.

   Use of the Services is subject to existing laws and legal processes. Nothing contained in the Agreement shall limit our right to comply with governmental, court, and law-enforcement requests or requirements relating to your use of the Services.

4. Managing Content.

   Despite our rights outlined herein, you shall remain solely responsible for all Material you post. Ookla has no obligation to evaluate, pre-screen and/or monitor the Material you post, however Ookla reserves the right to edit or remove any Content or Material on the Services, in whole or in part, and to disclose any information or take any action necessary to satisfy any applicable law, regulation, legal process or governmental request or to protect the rights, property or safety of Ookla, its users and the public. You understand and agree that you may be exposed to such matters and that you further waive your right to any damages (from any party) related to such exposure.

   Ookla has the right, but not the obligation, to take any of the following actions in our sole discretion at any time and for any reason without giving you any prior notice:

   • Restrict, suspend, or terminate your access to all or any part of our Services;
   • Change, suspend, or discontinue all or any part of our Services;
   • Refuse, move, edit or remove any Material for any reason;
   • Refuse, move, edit or remove any Content that is available on the Services;
   • Deactivate or delete your account(s) and all related information and files in your account(s);
   • Disclose your identity or other information about you to any third party who claims that Material posted by you violates their legal rights, including, but not limited to, their intellectual property rights or their rights of privacy or publicity;
   • Disclose your identity or other information about you to law enforcement officials upon request if Ookla determines in its sole discretion that such disclosure is in the interest of protecting its users or the public;
   • Establish general practices and limits concerning use of our sites and Services.

   You agree that Ookla will not be liable to you or any third party for taking any of these actions. You understand and agree that our Services may include communications such as advertisements, service announcements and administrative messages from us or from our partners, and that these are considered part of the Services.

5. Endorsements.

   OOKLA MAY RECEIVE A COMMISSION, FEE AND/OR OTHER COMPENSATION ON SOME CLICKS OR PURCHASES MADE ON, THROUGH OR LINKED FROM THE SERVICES.

   THIS MEANS OOKLA MAY RECEIVE SOME FORM OF COMPENSATION THROUGH AN ARRANGEMENT IT HAS WITH A THIRD PARTY IF YOU (i) CLICK ON CERTAIN ADS OR LINKS ON OUR WEBSITES, EMAILS OR NEWSLETTERS, OR (ii) PURCHASE A PRODUCT OR SERVICE AFTER CLICKING A LINK.

   Ookla does not represent or endorse the accuracy or reliability of any Content or other material posted on any interactive area or elsewhere on the Services and you acknowledge that any reliance upon such Content or other material shall be at your sole risk. Any Content or other material placed on any interactive area by users represents the views of the user posting the statement, and does not represent the views of Ookla.

   The Services may contain links to sites on the Internet which are owned and operated by third parties (the “External Site(s)”). You acknowledge that Ookla is not responsible for the availability of, or the content located on or through, any External Site, and that your use of such External Sites may be subject to a third party’s terms and conditions and/or privacy policy. Any third-party content or a link to a third-party site is not an endorsement of that content or third-party site. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or the content located on such External Sites.

   Typically, we do not directly sell, resell, or license any of the products or the services that we review, list, or advertise on our sites, and we disclaim any responsibility for or liability related to them. Your correspondence or related activities with third parties, including payment transactions and goods-delivery transactions, are solely between you and that third party. All product and deal information such as discount, price and availability are believed to be accurate as of the time of publication and are subject to change. Please verify these details with the merchant site and check the merchant’s terms and conditions before you buy. You agree that we will not be responsible or liable for any loss or damage of any sort incurred as the result of any of your transactions with third parties. Any questions, complaints, or claims related to any product or service should be directed to the appropriate vendor. However, in the event we do sell, resell, or license products or services, any terms and conditions related to your purchase or license of such products and services from us or any affiliates will be accessible on the applicable site page.

   Please note that we may allow certain manufacturers to license, use and/or reprint an Ookla or Ziff Davis trademark, logo, or a review in whole or in part, in its own marketing materials and advertisements in exchange for a license fee.

6. Indemnification.

   You agree to indemnify, defend and hold Ookla and its affiliates, and their respective officers, directors, owners, agents, information providers and licensors (collectively, the “Ookla Parties”) harmless from and against any and all claims, liability, losses, damages, costs and expenses (including attorneys’ fees) incurred by any Ookla Party in connection with:

   • Your use of, or connection to, our Services;
   • Any use or alleged use of your accounts or your passwords by any person, whether or not authorized by you;
   • The content, the quality, or the performance of Material that you submit;
   • Your violation of the Agreement or the Ookla Privacy Policy; or
   • Your violation of the rights of any other person or entity.
   • Your violation of any applicable laws, rules or regulations.

   Ookla reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Ookla’s defense of such claim.

7. Termination of Services.

   Ookla reserves the right, in its sole discretion, to restrict, suspend or terminate your access to all or any part of the Services, including the discussion areas, at any time for any reason without prior notice or liability. Conversely, you may terminate your access to the Services at any time by immediately ceasing use of the Services. If you would like to delete a particular account on the Services, please review the What Can I Do to Control My Information? section of the Privacy Policy and use the contact instructions for the particular property where you registered with to delete your account. Once your access terminates, you will have no right to use the Services. The terms of the Agreement shall survive any termination of your access. Ookla may change, suspend or discontinue all or any aspect of the Services at any time, including the availability of any feature, database, or Content (including the discussion areas), without prior notice or liability.

8. Copyright Policy.

   You may not post, distribute, perform, display, transmit or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. Ookla has registered a designated agent with the Copyright Office pursuant to 17 U.S.C. §512(c). If you believe that your work has been copied and posted on the Services in a way that constitutes copyright or trademark infringement, please notify the designated agent, Ziff Davis, LLC at 114 5th Avenue, 15th Floor, New York, New York 10011, Attn: Legal Department, fax: (212) 503-5136, or by email [email protected] and insert “Terms of Use” in the subject line.

   A notification of claimed infringement must include the following:

   1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or trademark interest;
   2. a description of the copyrighted work(s) or trademark(s) that you claim has been infringed;
   3. a description of where the material that you claim is infringing is located on the Services (including any additional identifying information such as URLs and post numbers to assist us in identifying the allegedly infringing material);
   4. your address, telephone number, and email address;
   5. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or trademark owner, its agent, or the law; and
   6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or trademark owner or authorized to act on the copyright or trademark owner’s behalf.

   If materials you have posted on the Services have been removed due to alleged infringement of a third party’s intellectual property rights, Ookla will notify you. If you believe your materials have been wrongly removed, you may file a counter-notification containing the following:

   1. an electronic or physical signature of the person authorized to act on your behalf;
   2. a description of the material that has been removed or to which access has been disabled and where the material was located online before it was removed or access to it was disabled;
   3. a written statement by you that under penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
   4. your address, telephone number, and email address; and
   5. a statement that you consent to the jurisdiction of federal district court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which the service provider may be found, and that you will accept service of process from the person who provided notification under DMCA 512 subsection (c)(1)(c) or an agent of such person.

   Upon Ookla’s receipt of such counter-notice, Ookla will provide the complainant with your contact information so that you have the ability to resolve the issue. Please note that when we forward the counter-notification, it includes your personal information. If you are concerned about protecting your anonymity, please consult with an attorney about other options. If the matter has been resolved or the complainant does not seek a court order within the statutory time period, we generally will re-post the material.

   Ookla reserves the right to remove any materials or content alleged to be infringing without prior notice, at Ookla’s sole discretion, and without liability to you.

   In appropriate circumstances, Ookla will also terminate your account if you are determined to be a repeat infringer.

   Any person who knowingly misrepresents that material is infringing or that material was removed or disabled by mistake or misidentification may be subject to liability.

9. Disclaimer of Warranties; Limitation of Liability.

   The Services and the Content are distributed on an “as is, as available” basis. None of Ookla, third party vendors or content providers or their respective agents makes any warranties of any kind, either express or implied, including, without limitation, warranties of title or implied warranties of merchantability or fitness for a particular purpose, with respect to the Services, any Content or any products or services sold through the Services. Neither Ookla nor any third party content provider warrants that any files available for downloading through the Services will be free of viruses or similar contamination or destructive features. Neither Ookla nor any third party content provider warrants that any of the goods or services linked to or advertised in the Services comply with data protection or other relevant legislation and Ookla accepts no liability whatsoever for any claim arising from such goods or services.

   Downdetector obtains certain information from social media content created by third parties, including users of social media platforms. Ookla makes no warranties of any kind, either express or implied, regarding this information, including warranties of its accuracy. Downdetector does not control services that it monitors, and it is unable to resolve problems users have with those services.

   You expressly agree that the entire risk as to the quality and performance of the Services and the accuracy or completeness of the Content is assumed solely by you and Ookla cannot guarantee the continued availability of any particular component of the Services. You specifically acknowledge that Ookla is not responsible or liable for any unauthorized access to or alteration of your materials, data or other transmissions entered into through the Services or for any threatening, defamatory, obscene, offensive or illegal Content or for conduct of any other party or for any infringement of another’s rights.

   OOKLA SPECIFICALLY DISCLAIMS ANY LIABILITY, WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. OOKLA, ANY THIRD PARTY CONTENT PROVIDER AND THEIR RESPECTIVE AGENTS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, LOSS OR CORRUPTION OF INFORMATION OR DATA, LOSS OF BUSINESS OR LOST PROFITS, LOSS OF REPUTATION OR GOODWILL, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF, NOTWITHSTANDING THE OTHER PROVISIONS OF THIS AGREEMENT, OOKLA IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS WHICH ARISES OUT OF OR IS ANY WAY CONNECTED TO YOUR USE OF THE SERVICES, LIABILITY OF OOKLA SHALL IN NO EVENT EXCEED THE GREATER OF (I) THE TOTAL OF ANY SUBSCRIPTION OR SIMILAR FEES WITH RESPECT TO ANY SERVICE OR FEATURE OF THE SERVICES PAID IN THE SIX MONTHS PRIOR TO THE DATE OF THE INITIAL CLAIM MADE AGAINST OOKLA, OR (II) ONE HUNDRED U.S. DOLLARS ($100.00).

   IN THE EVENT THAT YOU HAVE A DISPUTE WITH ANOTHER USER RELATED TO, ARISING FROM, OR IN ANY WAY CONNECTED WITH YOUR USE OF A SITE, YOU RELEASE OOKLA FROM ANY CLAIMS, DEMANDS, AND DAMAGES OF EVERY KIND AND NATURE ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH A DISPUTE, AND AGREE TO HOLD OOKLA HARMLESS IN CONNECTION WITH ANY SUCH DISPUTE.

   Some jurisdictions do not allow exclusion of implied warranties or certain limitations of liability, including for incidental or consequential damages, punitive or exemplary damages, bodily or moral (reputational) damages, gross negligence, death or personal injury caused by negligence, personal injury or loss of or damage to property caused by defective products, fraud and/or fraudulent misrepresentation, or recklessness, so the above limitations or exclusions may not apply to you. In such jurisdictions, the liability of OOKLA, third party content providers and their respective agents shall be limited to the greatest extent permitted by applicable law.

10. Member Disputes.

    You are solely responsible for your interactions with other Members of the Services. Ookla reserves the right, but has no obligation, to monitor disputes between you and other Members and to take action (e.g., account deletion or removal of content posted by a user) if Ookla determines that there has been a violation of the Agreement or if such action is otherwise necessary or desirable, in its sole discretion.

11. International Use.

    We make no claims that any Material, Services or any Content is appropriate or may be downloaded outside of the United States or outside the country where such Material, Services or any Content was produced. Access to the Material, Services or any Content may not be legal in certain countries or for certain persons. If you access any Material, Services or Content from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. You agree to comply with: (i) all local rules regarding user conduct on the Internet and acceptable content; and (ii) all applicable laws regarding the downloading and/or transmission of technical data and other material from or to the United States and the country in which you are located.

12. No Submission of Unsolicited Ideas.

    Ookla does not accept unsolicited ideas of any kind, including ideas for: advertising; promotions; new products, technologies, processes, or materials; marketing plans; or product names. Please do not send us any such ideas or materials relating to such ideas. This is to avoid any potential misunderstanding or dispute should our products or marketing strategies seem similar to unsolicited ideas submitted to us. If, despite this request, you do send us any unsolicited ideas or materials, we make no assurances that such ideas or materials will be treated as confidential or proprietary.

13. Dispute Resolution.

    In the unlikely event that you're not satisfied with customer service's solution, and you and Ziff Davis are unable to resolve a dispute through the Informal Dispute Resolution Procedures below, we each agree to resolve the dispute through binding arbitration or small claims court instead of in courts of general jurisdiction.

    Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Unless expressly limited by this arbitration provision, arbitrators can award the same damages and relief that a court can award. Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted. In arbitration you may be entitled to recover attorneys' fees from us to the same extent as you would be in court.

    ARBITRATION AGREEMENT

    1. Claims Subject to Arbitration: To the fullest extent permitted by applicable law, Ziff Davis and you agree to arbitrate all disputes and claims between us, except for claims arising from bodily injury or that pertain to enforcing, protecting, or the validity of your or our intellectual property rights (or the intellectual property rights of any of our licensors, affiliates and partners). This Arbitration Agreement is intended to be broadly interpreted. It includes, but is not limited to:

       • claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, fraud, misrepresentation or any other statutory or common-law legal theory;

       • claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising);

       • claims for mental or emotional distress or injury not arising out of physical bodily injury;

       • claims that are currently the subject of purported class action litigation in which you are not a current member of a certified class; and

       • claims that may arise after the termination of this Agreement.

       References to "Ziff Davis," "you," "we" and "us" in this Arbitration Agreement include our respective predecessors in interest, successors, and assigns, as well as our respective past, present, and future parents, subsidiaries and affiliates (including Ziff Davis, Inc., Ziff Davis, LLC, Ookla, LLC and their affiliates); those entities and our respective agents, employees, licensees, licensors, and providers of content as of the time your or our claim arises; and all authorized or unauthorized users or beneficiaries of Services under this or prior Agreements between us. Notwithstanding the foregoing, either party may elect to have claims heard in small claims court seeking only individualized relief, so long as the action is not removed or appealed to a court of general jurisdiction. This Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies. You agree that, by entering into this Agreement, you and we are each waiving the right to participate in a class action and to a trial by jury to the fullest extent permitted by applicable law. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (9 U.S.C. §§ 1-16) governs the interpretation and enforcement of this arbitration provision. This Arbitration Agreement shall survive termination of this Agreement.

    2. Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures: You and we agree that good-faith, informal efforts to resolve disputes often can result in a prompt, cost-effective and mutually beneficial outcome. Therefore, a party who intends to initiate arbitration or file a claim in small claims court must first send to the other a written Notice of Dispute ("Notice"). A Notice from you to Ziff Davis must be emailed to [email protected] ("Notice Address").

       Any Notice must include (i) the claimant's name, address, and email address; (ii) a description of the nature and basis of the claim or dispute; (iii) if you are submitting the Notice, any relevant facts regarding your use of the Sites, including whether you have created an account with or receive any newsletters associated with any of the Sites; (iv) a description of the nature and basis of the specific relief sought, including the damages sought, if any, and a detailed calculation for them; and (v) a personally signed statement from the claimant (and not their counsel) verifying the accuracy of the contents of the Notice. The Notice must be individualized, meaning it can concern only your dispute and no other person's dispute.

       After receipt of a completed Notice, the parties shall engage in a good faith effort to resolve the dispute for a period of 60 days (which can be extended by agreement). You and we agree that, after receipt of the completed Notice, the recipient may request an individualized video settlement conference (which can be held after the 60-day period) and both parties will personally attend (with counsel, if represented). If you are unable to participate in the settlement conference by video, you may attend telephonically upon showing of good cause or extraordinary circumstances warranting telephonic participation (e.g., inability to afford equipment or sufficient Wi-Fi due to indigent circumstances). You and we agree that the parties (and counsel, if represented) shall work cooperatively to schedule the conference at the earliest mutually convenient time and to seek to reach a resolution. If we and you do not reach an agreement to resolve the issues identified in the Notice within 60 days after the completed Notice is received (or a longer time if agreed to by the parties), you or we may commence an arbitration proceeding or a small claims court proceeding (if permitted by small claims court rules).

       Compliance with this Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures section is a condition precedent to initiating arbitration. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution procedures set forth in this Section 13(2). All of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are essential so that you and Ziff Davis have a meaningful opportunity to resolve disputes informally. If any aspect of these requirements has not been met, a court of competent jurisdiction may enjoin the filing or prosecution of an arbitration. In addition, unless prohibited by law, the arbitration administrator may not accept, administer, assess, or demand fees in connection with an arbitration that has been initiated without completion of the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures. If the arbitration is already pending, it shall be administratively closed. Nothing in this paragraph limits the right of a party to seek damages for non-compliance with these Procedures in arbitration.

    3. Arbitration Procedure: The arbitration will be governed by applicable rules of National Arbitration & Mediation ("NAM") (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) ("NAM Rules"), as modified by this Arbitration Agreement, and will be administered by NAM. (If NAM is unavailable or unwilling to do so, another arbitration provider shall be selected by the parties that will do so, or if the parties are unable to agree on an alternative administrator, by the court pursuant to 9 U.S.C. §5.) The NAM Rules are available online at www.namadr.com or by requesting them in writing at the Notice Address. You may obtain a form to initiate arbitration at: https://www.namadr.com/content/uploads/2020/09/Comprehensive-Demand-for-Arb-revised-9.18.19.pdf or by contacting NAM.

       You and we agree that the party initiating arbitration must submit a certification that they have complied with and completed the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures requirements referenced in Section 13(2) and that they are a party to the Arbitration Agreement enclosed with or attached to the demand for arbitration. The demand for arbitration and certification must be personally signed by the party initiating arbitration (and their counsel, if represented).

       All issues are for the arbitrator to decide, except as otherwise expressly provided herein. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers.

       Unless we and you agree otherwise, or the applicable NAM Rules dictate otherwise, any arbitration hearings will take place in the county (or parish) of your billing address and you and a Ziff Davis representative will be required to attend in person. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator's decision is binding only between you and Ziff Davis and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator's award that has been fully satisfied shall not be entered in any court.

       As in court, you and Ziff Davis agree that any counsel representing a party in arbitration certifies when initiating and proceeding in arbitration that they are complying with the requirements of Federal Rule of Civil Procedure 11(b), including certification that the claim or relief sought is neither frivolous nor brought for an improper purpose.

       The arbitrator is authorized to impose any sanctions under the NAM Rules, Federal Rule of Civil Procedure 11, or applicable federal or state law, against all appropriate represented parties and counsel.

       Except as expressly provided in the Arbitration Agreement, the arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorneys' fees and costs, in accordance with applicable law. Unless otherwise provided by applicable law, the parties shall bear their own attorneys' fees and costs in arbitration unless the arbitrator awards sanctions or finds that either the substance of the claim, the defense, or the relief sought is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11 (b)).

    4. Arbitration Fees: The payment of arbitration fees (the fees imposed by the arbitration administrator including filing, arbitrator, and hearing fees) will be governed by the applicable NAM Rules, unless you qualify for a fee waiver under applicable law. If after exhausting any potentially available fee waivers, the arbitrator finds that the arbitration fees will be prohibitive for you as compared to litigation, we will pay as much of your filing, arbitrator, and hearing fees in the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the arbitration, unless the arbitrator determines that your claim(s) were frivolous or brought for an improper purpose or asserted in bad faith. You and we agree that arbitration should be cost-effective for all parties and that any party may engage with NAM to address the reduction or deferral of fees.

    5. Confidentiality: Upon either party's request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted court filing of confidential information must be done under seal to the furthest extent permitted by law.

    6. Offer of Settlement: In any arbitration between you and Ziff Davis, the defending party may, but is not obligated to, make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If the award is issued in the other party's favor and is less than the defending party's settlement offer or if the award is in the defending party's favor, the other party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the claim may be entitled for the cause of action under which it is suing.

    7. Requirement of Individualized Relief: The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND WE AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative, class, or private attorney general proceeding. If, after exhaustion of all appeals, any of these prohibitions on non-individualized declaratory or injunctive relief; class, representative, and private attorney general claims; and consolidation are found to be unenforceable with respect to a particular claim or with respect to a particular request for relief (such as a request for injunctive relief sought with respect to a particular claim), then the parties agree such a claim or request for relief shall be decided by a court of competent jurisdiction, after all other arbitrable claims and requests for relief are arbitrated. You agree that any arbitrations between you and Ziff Davis will be subject to this Section 13 and not to any prior arbitration agreement you had with Ziff Davis, and, notwithstanding any provision in this Agreement to the contrary, you agree that this Section 13 amends any prior arbitration agreement you had with Ziff Davis, including with respect to claims that arose before this or any prior arbitration agreement.

    8. Opt Out of Future Changes: Notwithstanding any provision to the contrary, if Ziff Davis makes any future change to this Arbitration Agreement (other than a change to the Notice Address), you may reject any such change by sending Ziff Davis an email to [email protected] within 30 days of the posting of the amended arbitration agreement that provides: (i) your full legal name, (ii) your complete mailing address, (iii) your phone number, (iv) if applicable, the username or email address associated with any potential account or newsletter; (v) the relevant Site; and (vi) the approximate date of your initial use of the relevant Site. Such an opt-out email must be sent by you personally, and not by your agent, attorney, or anyone else purporting to act on your behalf. It must include a statement, personally signed by you, that you wish to reject the change to the Arbitration Agreement. This is not an opt out of arbitration altogether.

    9. Mass Filing:

       If, at any time, 25 or more claimants (including you) submit Notices or seek to file demands for arbitration raising similar claims against the other party or related parties by the same or coordinated counsel or entities, consistent with the definition and criteria of Mass Filings ("Mass Filing") set forth in NAM's Mass Filing Supplemental Dispute Resolution Rules and Procedures ("NAM's Mass Filing Rules," available at https://www.namadr.com/resources/rules-fees-forms/), you and we agree that the additional procedures set forth below shall apply. The parties agree that throughout this process, their counsel shall meet and confer to discuss modifications to these procedures based on the particular needs of the Mass Filing. The parties acknowledge and agree that by electing to participate in a Mass Filing, the adjudication of their dispute might be delayed. Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Pre-Arbitration Notice and Informal Dispute Resolution Procedures are initiated, so long as the pre-arbitration Notice complies with the requirements in Section 13(2), until your claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.

       Stage One: Counsel for the claimants and counsel for Ziff Davis shall each select 25 claims per side (50 claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Ziff Davis shall pay the mediator's fee.

       Stage Two: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Ziff Davis shall each select 50 claims per side (100 claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless the parties agree otherwise in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this second set of staged proceedings is completed, the parties shall promptly engage in a global mediation session of all remaining claims with a retired federal or state court judge and Ziff Davis shall pay the mediator's fee.

       Stage Three: If the remaining claims are not resolved at this time, counsel for the claimants and counsel for Ziff Davis shall each select 100 claims per side (200 claims total) to be filed and to proceed in individual arbitrations as part of a third staged process, subject to any procedural changes the parties agreed to in writing. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. Following this third set of staged proceedings, counsel for claimants may elect to have the parties participate in a global mediation session of all remaining claims with a retired federal or state court judge.

       Stage Four: If your claim is not resolved at this time, then you agree that your claim will be resolved as part of continuing, staged individual arbitration proceedings as set forth below. Assuming the number of remaining claims exceeds 100, then 100 claims shall be randomly selected (or selected through a process agreed to by counsel for the parties) to be filed and to proceed in individual arbitrations as part of a staged process. If the number of remaining claims is fewer than 100, then all of those claims shall be filed and proceed in individual arbitrations. Any remaining claims shall not be filed or be deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After each set of 100 claims are adjudicated, settled, withdrawn, or otherwise resolved, this process shall repeat consistent with these parameters. Counsel for the parties are encouraged to meet and confer, participate in mediation, and engage with each other and with NAM (including through a Procedural Arbitrator) to explore ways to streamline the adjudication of claims, increase the number of claims to proceed at any given time, promote efficiencies, conserve resources, and resolve the remaining claims.

       A court of competent jurisdiction shall have the authority to enforce these Mass Filing provisions and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the assessment of arbitration fees. If these additional procedures apply to your claim, and a court of competent jurisdiction determines that they are not enforceable as to your claim, then your claim shall proceed in a court of competent jurisdiction consistent with this Agreement.

       You and Ziff Davis agree that we each value the integrity and efficiency of arbitration and wish to employ the process for the fair resolution of genuine and sincere disputes between us. You and Ziff Davis acknowledge and agree to act in good faith to ensure the processes set forth herein are followed. The parties further agree that application of these Mass Filing procedures have been reasonably designed to result in an efficient and fair adjudication of such cases.

    10. Severability: If any portion of this Arbitration Agreement is found to be void, invalid, or otherwise unenforceable, then that portion shall be deemed to be severable and, if possible, superseded by a valid, enforceable provision, or portion thereof, that matches the intent of the original provision, or portion thereof, as closely as possible. The remainder of this Arbitration Agreement shall continue to be enforceable and valid according to the terms contained herein.

14. Class Action and Jury Trial Waiver.

    You and Ziff Davis agree that, to the fullest extent permitted by law, each party may bring claims (whether in court or in arbitration) against the other only in an individual capacity, and not participate as a plaintiff, claimant, or class member in any class, collective, consolidated, private attorney general, or representative proceeding. This means that you and Ziff Davis may not bring a claim on behalf of a class or group and may not bring a claim on behalf of any other person unless doing so as a parent, guardian, or ward of a minor or in another similar capacity for an individual who cannot otherwise bring their own individual claim. This also means that you and Ziff Davis may not participate in any class, collective, consolidated, private attorney general, or representative proceeding brought by any third party. Notwithstanding the foregoing, you or Ziff Davis may participate in a class-wide settlement. To the fullest extent permitted by law, you and Ziff Davis waive any right to a jury trial.

15. Limitation Period for Claims.

    You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of our sites or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

16. Miscellaneous.

    We may be required by international, state or federal law to notify you of certain events. You hereby acknowledge and consent that such notices will be effective upon our posting them on our sites or delivering them to you through e-mail. Subject to the arbitration provision above and for all purposes of this Agreement, this Agreement shall be construed in accordance with the laws of the State of New York, without reference to principles of choice of law. You and Ookla each irrevocably consent to the personal jurisdiction of the federal or state courts located in New York, New York, the Borough of Manhattan (the “Courts”) with respect to any action, suit or proceeding arising out of or related to this Agreement or to the Services (including without limitation any Content) and waive any objection to venue in any of the Courts for such an action, suit or proceeding (whether based on forum non conveniens or otherwise); additionally, you agree that you will not bring any such action, suit or proceeding in any court other than the Courts.

    This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. If any inconsistency exists between the terms of this Agreement and any additional terms and conditions posted on the Services, such terms shall be interpreted as to eliminate any inconsistency, if possible, and otherwise, the additional terms and conditions shall control. If any provision of this Agreement is held invalid, illegal or unenforceable in any respect, (i) such provision shall be interpreted in such a manner as to preserve, to the maximum extent possible, the intent of the parties, (ii) the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and (iii) such decision shall not affect the validity, legality or enforceability of such provision under other circumstances. Ookla’s failure to enforce any term of this Agreement shall not constitute a waiver of that provision. No waiver shall be binding unless in writing and signed by Ookla, and such waiver shall not be construed as Ookla’s waiver of any other or subsequent breach.

17. New Jersey Residents.

    If, and to the extent that New Jersey law applies, with respect to residents of New Jersey, the terms in Sections 6 (insofar as any claims may arise from, or relate to, consumer protection or fraud and/or misrepresentation, or result in attorney’s fees), 9 and 14 do not limit any rights you may have as a consumer under New Jersey law and are intended to be only as broad and inclusive as permitted by the laws of the state of your residence. Subject to the foregoing, Ookla, third party content providers, and their respective agents reserve all rights, defenses, and permissible limitations under New Jersey law. Nothing in this Section shall modify the binding arbitration clause and waiver for class action and jury trial in Section 13.

18. Australia Residents.

    Nothing in these Terms (including in Sections 6, 9 and 15) limits, excludes or modifies any rights you may have under any law, including under the Australian Consumer Law (the “ACL”) and consumer guarantees under the ACL, which may not be limited, excluded or modified by agreement (including where such exclusion, restriction or modification would be illegal or void under such law).

19. Privacy Policy.

    The Ookla Privacy Policy will be made available on the property from which you accessed these Terms. Such Privacy Policy is incorporated by reference into these Terms.

QUESTIONS? Please contact [email protected] and insert “Terms of Use” in the subject line if you have any questions or comments about the Agreement, or to report user conduct violating the Agreement.