Terms of Service
PERPCAST INC. DBA iWitness
Terms of Service
Last updated: August 28, 2014
These Terms of Service (the “Terms“) are a binding legal agreement between you and iWitness (“iWitness” or “we“, “us“, “our“), regarding your use of our iWitness evidence recordation service (the “Service“) that we provide through our application for the iPhone operating system (the “Application“) and through our consumer Web site at www.iwitness.com (the “Website“). Please read these Terms carefully. These Terms supplement and incorporate our Licensed Application End User License Agreement that you agreed to when you downloaded and installed the Application.
We may periodically make changes to these Terms. By downloading and installing the application or accessing or using the Service, you accept these Terms and any modifications that we may make to the Terms. It is your responsibility to review the most recent version of the Terms frequently and remain informed of any changes to it. If you continue to use the Service after we modify these Terms, you will be deemed to have consented to terms of the modified Terms for your use of the Service as of the date of the modification. If you do not agree to any provision of these Terms, you must not use the Service.
1. The service
The Service allows you to use your smartphone to record video, photo, and audio footage, and to transmit it, together with your location information collected using your smartphone’s global positioning system functionality, to a server where certain law enforcement agencies may access it. You also have the ability to access that recorded information on the iWitness website. The Licensed Application is not a substitute for good judgment and common sense, and it is not a 911 or emergency notification service. The Licensed Application must not be used to improperly stalk or harass anyone, and may not be used to monitor, or record data pertaining to, any person other than in the course of using the Licensed Application for its intended purposes. The Licensed Application is not intended for use by private investigators. The Licensed Application is not intended for use as a standalone self-defense tool, and it should not be relied upon as such. The Licensed Application is only intended for the collection of audio, video, and photographic evidence that may be used by authorized law enforcement personnel in apprehending and prosecuting criminal suspects.
You must be 18 years of age or older to use the Service. Use of the Service is void where prohibited. You represent and warrant that any profile information you submit is true and accurate and that you are 18 years of age or older and are fully able and competent to enter into, and abide by, these Terms. You can only use our Services if it is in fact legal for you to do so as determined by the laws of the country, state, and/or territory in which you live and access the Services.
3. Account Registration
You must log onto the Service via the Application in order to use it. You will be asked to create a user name and to select a password. These credentials are the same credentials that you will use to access any photos, video, and audio that you capture using the Service (collectively, “Captured Content“) on the Website. You will notify us immediately of any unauthorized use of your account or any other breach of security by emailing us at email@example.com.
4. Use Restrictions
You will not: (a) use the Service for any commercial purpose; (b) access, monitor, or copy any content or information on the Service using any robot, spider, scraper, or other automated means or any manual process for any purpose without our express written permission; (c) take any action that imposes, or may impose, in our discretion, an unreasonable or disproportionately large load on our infrastructure; (d) violate any applicable local, state, provincial, national, or international law or regulation in connection with your use of the Service; (e) stalk, harass, monitor, or record data pertaining to, any person other than for the intended purposes of the Application and the Service; (f) capture or submit any Captured Content for any purpose other than the intended purposes of the Application and the Service (including, without limitation, capturing or transmitting any Captured Content that you do not reasonably believe to pertain to a person who is in the process of committing, or recently has committed, a criminal offense; or (g) otherwise misusing the Application or the Service in any manner, as determined by iWitness in its sole discretion.
In the event that we deem in our sole discretion that you have engaged or attempted to engage in fraudulent, unlawful, or improper activity while using the Service, we will be entitled to take such action as we see fit, including immediately blocking access to the Service, terminating your account with us, and taking legal action against you. Further, if you negligently or deliberately engage in any fraudulent, unlawful, or improper activity while using the Service, you may be liable to local and state governments and their subdivisions for their costs incurred in responding to or investigating any individuals or circumstances as a result of your fraudulent, unlawful, or improper activity.
You agree not to post, transmit, distribute, upload, or otherwise disseminate through the Service any of the following: (a) material that you know to be untrue, false, or misleading; (b) material that is unlawful, libelous, defamatory, obscene, pornographic, or involves nudity, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent; (c) material that violates, or that causes us or our affiliates, subsidiaries, or partners to violate, any applicable law, regulation, or order of any governmental authority in any jurisdiction; (d) material that infringes or violates, or that may infringe or violate, any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party, or that you otherwise do not have the right to make available; (e) private or confidential information of any person or entity, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers, credit card numbers, and any trade secrets or information for which you have any obligation of confidentiality or material that impersonates any person or entity, or misrepresents your affiliation with the Service or with any other person or entity; or (g) material that, in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying the Service, or which may expose us or our users to harm or liability of any nature. We takes no responsibility and assume no liability for any material posted, stored, or uploaded by you or any third party, or for any loss or damage thereto.
You agree that we are free to use any photos, videos, comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us via the Service or otherwise transmit to us (each, a “Submission”), without any obligation to provide any further compensation, acknowledgement or payment to you, for the purposes of developing, modifying, and improving the Service and our other products and services. Furthermore, by transmitting any Submission using the Service, you grant us a perpetual, non-exclusive, fully paid, royalty-free, irrevocable, sublicenseable, worldwide license and right to display, use, perform, reproduce, modify, distribute and create derivative works of the Submission or information submitted in any media, software, or technology of any kind now existing or developed in the future.
iWitness, the iWitness logo, and any other product or service name or slogan contained in the Application or otherwise on the Service are our trademarks as well as trademarks of our suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without our prior written permission or permission by the applicable trademark holder. All other trademarks, registered trademarks, product names and company names or logos mentioned in the Application or otherwise on the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise, does not constitute or imply our endorsement, sponsorship, or recommendation thereof, or vice versa.
We, our affiliates, and our suppliers and licensors own all right, title, and interest, including all intellectual property rights, in and to the Application and the Service. Except for those rights expressly granted in these Terms, no other rights are granted, either express or implied, to you.
8. Third-Party Content
The Application and other portions of the Service may contain links to various content provided by one or more third parties (“Third-Party Content”). We do not monitor, endorse, or adopt, or have any control over, any Third-Party Content. We do not undertake any responsibility to update or review any Third Party Content and we do not make any guarantee as to its accuracy or completeness.
Additionally, if you follow a link or otherwise navigate away from the Service, please be aware that these Terms will not govern your activities away from the Service. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content provider to which you navigate from the Service. You access and use Third-Party Content at your own risk.
The Application and other areas of the Service may contain advertisements and promotions of third parties. Your business dealings or correspondence with, or participation in promotions of, advertisers other than us, and any terms, conditions, warranties, or representations associated with such dealings, are solely between you and such third party.
9. Transmission of Data
Use of the Service involves the transmission of data over the Internet to us, and, as discussed in Section 10 below, to our Service Partners, and you may not be notified in each instance of the transmission of information. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SERVICE INVOLVES THE TRANSMISSION OF DATA OVER THE INTERNET TO CERTAIN LAW ENFORCEMENT AGENCIES. BY USING THE APPLICATION, YOU CONSENT TO THE TRANSMISSION OF THIS INFORMATION TO IWITNESS, AND TO IWITNESS’S USE AND DISCLOSURE OF THIS INFORMATION IN ACCORDANCE WITH SECTION 10.
We value your privacy and are dedicated to protecting your information and providing you with notice about our information collection and use practices.
When you register for an account for the Service, you provide us with certain personally identifiable information (“Personal Information”), including, without limitation, your email address, stated name, phone number, mailing address, physical attributes and friend and family information.
We use Personal Information to respond to your inquiries, improve our marketing and promotional efforts, to analyze our application and the Service, and to customize our Service. We may use Personal Information to deliver information to you and to contact you regarding administrative notices. We may also use Personal Information to resolve disputes and troubleshoot problems.
We also collect various categories of non-personally identifiable information, including, but not limited to, information about our users’ hardware, devices, and usage of the Application and Service, such as use data, device ID, device type, application name, and version information. We use this information for purposes such as analyzing device compatibility, understanding trends in use of the Application and Service, and similar purposes. We also may prepare, publish, and disseminate reports, and other non-personally identifiable information derived therefrom to third parties. We and third parties may use non-personally identifiable information for various purposes.
From time to time we provide information about our products and services to our customers in the form of email and/or phone text message. Announcement emails will be emailed directly to the address that you provide when you register or sign into the Service. You may opt-out of receiving promotional emails by clicking on the link in the email, or providing us notice at firstname.lastname@example.org. Even if you opt-out from receiving promotional email from us, you may continue to receive administrative communications from us regarding the Application and the Service.
We may place email links or forms in the Application, the Service, or the Website that allow you to contact us directly. The Personal Information you provide in these links and forms is used to respond directly to your questions or comments. We may also file your comments for use later in improving the application or Service, or our other products or services, or we may review and discard the Personal Information. All information other than Personal Information that you send to us using these email links or forms will not be considered or treated as confidential information. Do not send us any information, ideas, suggestions, proposals, or comments that you consider confidential or that you want to be treated as confidential.
If the email address you provide us is an email address that you access via a wireless device, you understand that your wireless carrier’s standard rates apply to these messages, and that you may change your mind at any time and elect to not receive such messages. You also represent that you are the owner or authorized user of the wireless device on which the messages may be received, and that you understand and are authorized to approve the applicable charges.
You may choose to allow the Service to provide alerts. Should you allow the Service to provide alerts, you understand and agree that this service may be provided using services operated outside of the Service, including, but not limited to, systems such as Apple’s Push Notification Service. You understand and agree that pertinent data needed for such alerts will be transmitted and temporarily be stored on services operated by us, and that at the appropriate time, this alert data will be transmitted via corresponding services, e.g., Apple’s Push Notification Service, for delivery to your device or chosen delivery endpoints. At no time is the Personal Information you provide transmitted via the third-party delivery service unless as required by the nature of the delivery mechanism (electronic mail, for example, requires your name and email address for delivery). Should you disagree with the mechanism of this service, you agree to disable and not use alerts that may be provided in the Service.
We may disclose Personal Information if required to do so by law or in the good-faith belief that such action is necessary to prevent injury or property damage. We will usually attempt to notify you when we are making such a disclosure, but we may not do so in an emergency or when we are prohibited by law or court order from giving such notice.
We do not rent, sell, or share personal information about you with other people or non-affiliated companies without your consent unless we have a good faith belief that disclosure is reasonably necessary to (a) satisfy any law, regulation, legal process or enforceable governmental request, (b) enforce these Terms or any other agreements (including investigation of potential violations thereof), or (c) detect, prevent or otherwise address fraud, security, or technical issues.
We may provide services for the Service through contractual arrangements with affiliates, service providers, and other third parties (“Service Partners”). We and our Service Partners use your Personal Information to operate and deliver such products and services. Unless otherwise agreed by you in a separate agreement, our Service Partners are required to use your Personal Information to operate and deliver such products and services only, and are prohibited from using your Personal Information to inform you of other products or services available from those Service Partners.
The Service may include links to other sites (for example, through advertisements displayed by the Service). Any information you submit to linked sites will be subject to the privacy policies of those sites, if any. You should review those policies carefully before providing any information to these linked sites.
We undertake practical and reasonable steps to protect Personal Information from unauthorized or accidental access, disclosure, misuse or processing, or from alteration, destruction, or loss.
If you have any questions or complaints regarding how your Personal Information is treated under this Policy or generally about the implementation of the principles of this policy, we encourage you to contact us at email@example.com.
You will defend, indemnify and hold harmless us, our subsidiaries, affiliates, and Service Partners, and their respective directors, officers, agents, employees, licensors, and suppliers from and against any costs, damages, expenses, and liabilities (including, but not limited to, reasonable attorneys’ fees) arising out of or related to your use of the Service, your violation of these Terms, or your violation of any rights of a third party.
12. Disclaimer of Warranties
YOUR USE OF THE APPLICATION, THE SERVICE, AND ANY INFORMATION OR CONTENT AVAILABLE ON OR THROUGH THE APPLICATION OR THE SERVICE (COLLECTIVELY, THE “SERVICE CONTENT”), ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
IWITNESS AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IWITNESS AND ITS SUPPLIERS AND LICENSORS DO NOT GUARANTEE THE ACCURACY, COMPLETENESS, TIMELINESS, ADEQUACY, RELIABILITY, OR USEFULNESS OF THE APPLICATION, THE SERVICE, OR THE SERVICE CONTENT.
YOU USE THE APPLICATION AND THE SERVICE AT YOUR OWN RISK. THE APPLICATION AND THE SERVICE ARE SUBJECT TO DELAY AND FAILURE FOR VARIOUS REASONS, INCLUDING BY NOT LIMITED TO THE FAILURE OF GPS, TELECOMMUNICATIONS, AND OTHER SYSTEMS AND NETWORKS TO TRANSMIT, STORE, AND HOST DATA. ANY CAPTURED CONTENT OR OTHER SERVICE CONTENT THAT YOU COLLECT, USE, STORE, OR TRANSMIT USING THE APPLICATION AND THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES OR CLAIMS THAT MAY ARISE FROM YOUR CAPTURE OR USE OF ANY SERVICE CONTENT.
IWITNESS AND ITS SUPPLIERS AND LICENSORS DO NOT WARRANT UNINTERRUPTED USE OR OPERATION OF THE SERVICE OR APPLICATION OR YOUR ACCESS TO ANY SERVICE CONTENT. IWITNESS GIVES NO WARRANTY RELATING TO THE AVAILABILITY, SUITABILITY, OR ACCURACY OF THE APPLICATION OR THE SERVICE, OR THE MAINTENANCE OF THE SYSTEMS OR NETWORKS USED BY THE APPLICATION OR THE SERVICE TO STORE, TRANSMIT, AND SERVE DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE APPLICATION, THE SERVICE, OR FROM IWITNESS WILL CREATE ANY WARRANTY REGARDING THE APPLICATION, THE SERVICE, OR THE SERVICE CONTENT THAT IS NOT EXPRESSLY STATED IN THESE TERMS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
13. Limitation of Liability
NEITHER IWITNESS NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE FOR ANY DAMAGES OR CLAIMS, INCLUDING INJURY OR DEATH, AND ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER LOSSES (EVEN IF IWITNESS OR ANY SUPPLIER OR LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), INCLUDING LOSS OF INCOME, MEDICAL AND OTHER EXPENSES, LOSS OF GUIDANCE, CARE, AND COMPANIONSHIP, ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE APPLICATION, THE SERVICE, OR ANY SERVICE CONTENT, INCLUDING BUT NOT LIMITED TO ANY DELAY IN PROVIDING OR FAILURE TO PROVIDE THE SERVICE.
THE MAXIMUM TOTAL LIABILITY OF IWITNESS AND ITS SUPPLIERS AND LICENSORS TO YOU FOR ALL CLAIMS UNDER THESE TERMS OR OTHERWISE ARISING OUT OF OR RELATING TO YOUR USE OF THE APPLICATION, THE SERVICE, OR ANY SERVICE CONTENT, INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT, IF ANY, THAT YOU HAVE PAID TO IWITNESS FOR YOUR USE OF THE APPLICATION AND THE SERVICE.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THESE LIMITATIONS MAY NOT APPLY TO YOU.
14. Restrictions on Access
Notwithstanding any provision of these Terms, we reserve the right, without notice and in our sole discretion, to terminate your license to use the Service and to block, restrict, and prevent your future access to, and use of, the Service. Additionally, we reserve the right to modify, discontinue, and restrict, temporarily or permanently, all or part of the Service without notice in our sole discretion. Neither we nor our suppliers or licensors will be liable to you or to any third party for any modification, discontinuance, or restriction of the application or Service.
15. Payments and Fees
If you decide to become a paid user, you shall be charged the Services fee (if applicable) in effect on the date you register. iWitness may modify the applicable fees at any time without prior notice. The current Services fees can be accessed on the iWitness web-site. Your payment to iWitness including all fees and any additional applicable charges and taxes, must be made by your valid credit card (or such other form of payment as may be acceptable to iWitness in its sole discretion) and, except as otherwise provided herein, all fees and charges are non-refundable.
16. Consent to Electronic Communications
By using the Service, you consent to receiving electronic communications from us. These communications may include notices about your account and information concerning or related to the application or Service. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
17. General Legal Notices
Our failure to act in a particular circumstance does not waive our ability to act with respect to that circumstance or similar circumstances. Any provision of these Terms that is found to be invalid, unlawful, or unenforceable will be severed from these Terms, and the remaining provisions of these Terms will continue to be in full force and effect. The section headings and titles in these Terms are for convenience only and have no legal or contractual effect. Any provision in these Terms that by its nature should survive the termination of your license to access the Service or any termination of these Terms (including, without limitation, provisions governing indemnification, limitations on liability, disclaimers of warranty, and ownership of intellectual property) will continue to remain in full force and effect after any such termination.
These Terms are governed by the laws of the State of Washington, excluding conflict of laws principles. Any controversy or claim arising out of or relating to the application, the Service, or these Terms must be commenced within one year after the claim arose and will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in King County, Washington, and judgment on the arbitration award may be entered into any court of competent jurisdiction. The award of the arbitrator will be final and binding upon the parties without appeal or review except as permitted by Washington law. Either party may seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.
These Terms, along with the Licensed Application End User License Agreement, constitute the entire agreement between you and us concerning the application and the Service and supersede all prior agreements or communications between you and us regarding the subject matter of these Terms.
18. Additional Terms applicable to Software for Apple Handheld Devices.
(a) Acknowledgement: The Parties acknowledge that this Agreement is concluded between us only, and not with Apple and that Apple has no responsibility for the Software. Further, nothing herein abrogates or reduces Apple’s Usage Rules for the Software or is intended to conflict with, the App Store Terms of Service as of the Effective Date.
(b) Scope of License: The license granted to you for the Software for use on Apple products is limited to a non-transferable license to use the Software on any iPhone or iPod touch that You own or control and as permitted by Apple’s Usage Rules set forth in the App Store Terms of Service.
(c) Maintenance and Support: The parties acknowledge that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Software.
(d) Warranty: In the event of any failure of the Software to conform to the warranty in this Agreement, You may notify Apple, and Apple will refund the purchase price for the Software to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Software, or for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty in this Agreement.
(e) Product Claims: The Parties acknowledge that Apple is not responsible for addressing any claims of You or any third party relating to the Software or Your possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fails to conform to any applicable legal or regulatory requirement; or (iii) claims arising under consumer protection or similar legislation.
(f) Intellectual Property Rights: The Parties acknowledge that, in the event of any third party claim that the Software or Your possession and use of that Software infringes that third party’s intellectual property rights, that Apple will not be responsible for the investigation, defense, settlement or discharge of any such intellectual property infringement claim.
(g) Third Party Beneficiary: The Parties acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and that, upon Your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against You as a third party beneficiary thereof, as it relates to the rights and benefits conferred upon Apple hereunder.
19. Questions & Contact Information
If you have any questions or concerns about the Service, or these Terms, you may contact us through our website by sending an email to firstname.lastname@example.org or write us at: iWitness - Attn: Member Services – 205 Marion Street Seattle, WA 98104