Terms of Service
Effective Date: March 3, 2014
OurWitness Terms of Service
Welcome to our website located at www.ourwitness.com (the “Site”). The Site is provided to you by OurWitness (referred to in these Terms of Service as “OurWitness,” “we,” “us” and “our”). We refer to individuals who access the Site either as “Reporters” or “Readers.” “Reporters” are individuals who have set up an account through the Site. “Readers” are individuals who access the Site but have not set up an account through the Site and are therefore not able to post content to the Site. We prepared these OurWitness Terms of Service (these “Terms of Service”) to help explain the terms that apply to your use of the Site.
Notice Regarding Dispute Resolution: These Terms of Service contain provisions that govern how claims you and we may have against each other are resolved (see Section 11 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 11(E). Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. Updates to these Terms of Service. We may modify these Terms of Service from time to time. We will notify you of material changes to these Terms of Service by posting the amended terms on the Site at least thirty (30) days before the effective date of the changes. If you are a registered user of the Site, we will notify you of material changes to these Terms of Service by email at least thirty (30) days before the effective date of the changes. It is therefore very important that you make sure we have a current email address for you on file so that you will receive notice of any material changes. In addition, you will be required to affirmatively accept the new Terms of Service the first time you visit the Site and log in to your user account after the new Terms of Service take effect. If you do not agree with the proposed changes, you should discontinue your use of the Site prior to the time the new Terms of Service take effect. If you continue using the Site after the new terms take effect, you will be bound by the modified Terms of Service.
3. Affirmative Representations Regarding Your Use of the Site. When you use the Site, you represent that: (a) the information you submit is truthful and accurate; (b) your use of the Site and your use of services available on the Site do not violate any applicable law or regulation; (c) you are 13 years of age or older; and (d) you are of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
4. Accounts and Registration.
5. Rules Governing User Contributions; Prohibited Activities.
A. User Contributions. If you register as a Reporter on the Site and you are logged in to the Site, you may be able to submit comments, stories and content to the Site (collectively, “Contributions”). You are entirely responsible for the content of, and any harm resulting from, any Contributions that you post on or through the Site. When you create or make available a Contribution on or through the Site, you represent and warrant that you:
(1) own or have sufficient rights to post your Contributions on or through the Site;
(2) will not post Contributions that violate our or any other person’s privacy rights, publicity rights, intellectual property rights (including without limitation copyrights) or contract rights;
(3) have fully complied with any third-party licenses relating to Contributions and shall pay all royalties, fees and any other monies required to be paid in connection with Contributions that you post on or through the Site;
(4) will not post Contributions that: (i) are defamatory, damaging, disruptive, unlawful, inappropriate, offensive, inaccurate, pornographic, vulgar, indecent, profane, hateful, racially or ethnically offensive, obscene, lewd, lascivious, filthy, threatening, excessively violent, harassing, or otherwise objectionable; (ii) incite, encourage or threaten immediate physical harm against another, including but not limited to, Contributions that promote racism, bigotry, sexism, religious intolerance or harm against any group or individual; or (iii) contain material that solicits personal information from anyone under 13 or exploits anyone in a sexual or violent manner;
(5) will not post Contributions that contain advertisements or solicit any person to buy or sell products or services; and
(6) will not post Contributions that constitute, contain, install or attempt to install or promote spyware, malware or other computer code, whether on our or others’ computers or equipment, designated to enable you or others to gather information about or monitor the on-line or other activities of another party.
B. Prohibited Activities. In addition to the obligations described in Section 5(A), you agree that you in connection with your use of the Site, you will not:
(1) use the Site for any unauthorized purpose including collecting usernames and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Site without our express written consent;
(2) transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site, including without limitation, hacking into the Site, or using the system to send unsolicited or commercial emails, bulletins, comments or other communications;
(3) impersonate any other person or entity, sell or let others use your profile or password, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
(4) post jobs for modeling or talent or talent scouting positions on the Site;
(5) post on the Site any franchise, pyramid scheme, “club membership,” distributorship or sales representative agency arrangement or other business opportunity which requires an up-front or periodic payment, pays commissions only, or requires recruitment of other members, sub-distributors or sub-agents;
(6) decompile, disassemble, modify, translate, adapt, reverse engineer, create derivative works from or sublicense the Site, or any portion thereof; or
(7) circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Materials (as defined in Section 7) or enforce limitations on use of the Site or the Materials on the Site.
6. Rights in Contributions
A. Ownership of Contributions. We do not claim any ownership rights in the Contributions that you post on or through the Site. After posting your Contributions on the Site, you continue to retain any rights you may have in your Contributions, including any intellectual property rights or other proprietary rights associated with your Contributions, subject to the license you grant to us below.
B. Grant of License to Us for Contributions. By making a Contribution to the Site, you grant us a perpetual, non-exclusive (meaning you are free to license your Contribution to anyone else in addition to us), fully-paid, royalty-free (meaning that we are not required to pay you to use your Contribution), sublicensable (so that we can use affiliates, subcontractors and other partners such as wireless carriers and hosted service providers to make the Site available to you) and worldwide (because the Internet is global in reach) license to use, modify, create derivative works of, publicly perform, publicly display, reproduce and distribute the Contribution in connection with the Site, our business or the promotion thereof in any media formats and through any media channels now known or subsequently created. This license does not grant us the right to sell your Contributions. If you remove your Contributions from the Site, we will cease use of your Contributions as soon as practicable; however, you understand and agree that we may retain archived copies of your Contributions.
7. Our Intellectual Property Rights. Except for your Contributions and the Contributions of other Reporters, all of the content on the Site (“Materials”) and the trademarks, service marks, and logos contained on the Site, are owned by or licensed to us and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. The Site and the Materials are for your information and personal use only and not for commercial exploitation. We reserve all rights in and to the Site and the Materials. If you download or print a copy of the Materials for your own personal use, you must retain all trademark, copyright and other proprietary notices contained in and on the Materials. You further agree not to access the Site by any means other than through the interface that we provide, unless otherwise specifically authorized by us in a separate written agreement.
8. Our Management of the Site; User Misconduct
A. Our Right to Manage the Site. We reserve the right, but do not undertake the obligation to: (i) monitor or review the Site for violations of these Terms of Service and for compliance with our policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (iii) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Contribution or any portion thereof; (iv) manage the Site in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Site; (v) screen our users or members, or attempt to verify the statements of our users or members and/or (vi) monitor disputes between you and other users or to termination or block you and other users for violating these Terms of Service.
B. Interactions with other Users. You are solely responsible for your interactions with other users of the Site. Please note that there are risks that may arise when dealing with strangers, including persons who may be acting under false pretenses. Please choose carefully the information you post on the Site and that you give to other users of the Site. You are discouraged from publicly posting your telephone number or street address on the Site. Information posted to the Site by other users of the Site may be offensive, harmful or inaccurate, and in some cases may be mislabeled or deceptively labeled. You assume all risks associated with dealing with other users with whom you come in contact through the Site. Opinions and other statements included in users’ Contributions do not represent the opinions or statements of OurWitness and the posting of a Contribution on the Site does not constitute OurWitnesses’ support or endorsement of any opinions or statements expressed in the applicable Contribution.
C. Our Right to Terminate Users. WITHOUT LIMITING ANY OTHER PROVISION OF these Terms of Service, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF the Site TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN these Terms of Service, OR OF ANY APPLICABLE LAW OR REGULATION.
9. Copyright Policy. We consider the protection of copyright of utmost importance. We follow the provisions of the Digital Millennium Copyright Act (the “DMCA”), and, in addition to following the notice and take down provisions of the DMCA, we may terminate the account and access rights of any repeat infringer in appropriate circumstances. If you are a copyright owner or the legal agent of a copyright owner, and you believe that any user Contribution on the Site infringes upon your copyrights, you may submit a notification pursuant to our DMCA Policy http://ourwitness.com/dmca-policy/.
11. Legal Disputes and Arbitration Agreement.
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
A. Initial Dispute Resolution. We are available by email at [email protected] to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. Each of you and OurWitness agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
B. Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to section 11(A) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Site shall be finally settled by binding arbitration administered on a confidential basis by the American Arbitration Association held in Los Angeles, California in accordance with the provisions of its Commercial Arbitration Rules and the supplementary procedures for consumer related disputes of the American Arbitration Association (the “AAA”), excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to AAA. If the arbitrator finds the arbitration to be non-frivolous, we will pay all of the actual filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. The arbitration rules also permit you to recover attorney’s fees in certain circumstances.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
C. Class Action and Class Arbitration Waiver. You and OurWitness each further agree that any arbitration shall be conducted in their respective individual capacities only and not as a class action or other representative action, and you and OurWitness each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 11(B) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
D. Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
E. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 11(B), 11(C), and 11(D) by sending written notice of your decision to opt-out to the following address: 4470 W. Sunset Blvd., Suite 120, Los Angeles, CA 90027. The notice must be sent within thirty (30) days of registering to use the Site, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
F. Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 11(B) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Los Angeles, California (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in California for any litigation other than small claims court actions.
G. Applicable Law. You agree that federal laws and the laws of the State of California, without regard to principles of conflict of laws, will govern these Terms of Service and any claim or dispute that has arisen or may arise between you and OurWitness.
12. Warranty Disclaimer; Limitation on Liability.
A. Disclaimer of Warranties
(i) ALL Materials, CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS PROVIDED THROUGH the Site ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OR CONDITIONS OF ANY KIND. BY OPERATING the Site, WE DO NOT REPRESENT OR IMPLY THAT WE ENDORSE ANY CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS AVAILABLE ON OR LINKED TO BY the Site, INCLUDING WITHOUT LIMITATION, CONTENT HOSTED ON THIRD PARTY SITES, OR THAT WE BELIEVE CONTRIBUTIONS OR ANY OTHER MATERIALS OR ITEMS TO BE ACCURATE, USEFUL OR NON-HARMFUL. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF the Site. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN these Terms of SErvice. YOU AGREE THAT YOUR USE OF The Site WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE AND EACH OF OUR ADVERTISERS, LICENSORS, SUPPLIERS, OFFICERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS AND OTHER CONTRACTORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH the Site AND YOUR USE THEREOF.
(ii) WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF the Site’s CONTENT, THE CONTENT OF ANY SITE LINKED TO the Site, CONTRIBUTIONS, INFORMATION OR ANY OTHER ITEMS OR MATERIALS ON the site OR LINKED TO BY the Site. WE ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF the site OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM the site, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH the site BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA the Site.
B. Limited Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF the Site, CONTRIBUTIONS, MATERIALS OR ANY OTHER CONTENT THEREIN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN These Terms of SErvice, OUR LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH These Terms of Service, WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED $50.
C. Exceptions to Disclaimers and Liability Limitations. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS in Sections 12(a) and 12(B) MAY NOT APPLY TO YOU.
13. Indemnity. You agree to indemnify and hold us, our affiliates, and licensors and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Site or any Materials in violation of these Terms of Service or applicable law, or otherwise in connection with the Contributions you submit to the Site, and/or any breach of your representations and warranties set forth above.
14. Independent Contractors. Nothing in these Terms of Service shall be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between us and any user.
15. Non-Waiver. Our failure to exercise or enforce any right or provision of these Terms of Service shall not operate as a waiver of the applicable right or provision.
16. Severability. These Terms of Service operate to the fullest extent permissible by law. If any provision or part of a provision of these Terms of Service is unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms of Service and shall not affect the validity and enforceability of any remaining provisions.
17. Assignment. We may assign our rights under these Terms of Service without your approval.
18. No Modifications by Our Employees. If any of our employees offers to modify the terms of these Terms of Service, he or she is not acting as an agent for us or speaking on our behalf. You may not rely, and should not act in reliance on, any statement or communication from our employees or anyone else purporting to act on our behalf.
19. Contact Information. If you have any questions about these Terms of Service or your account, please contact us at a[email protected].