Thank you for visiting the MyWitness Website ("Site") which is operated by MyWitness Pty Ltd (ACN 155 401 460) ("MyWitness").
Access and use of this Site
Except as otherwise expressly stated on this Site and to the full extent permitted by law, this Site and all information contained within it regarding or relating to MyWitness and its related entities, products and services is provided "as is" and on an "as available" basis without any representation or endorsement made and without warranty of any kind, whether expressed or implied.
Access to and use of the Application
Access to and use of the Application is provided strictly subject to the MyWitness Subscription Terms. Please review these carefully before using or installing the Application. MyWitness will only provide you with these services if you accept the Subscription Terms.
Consumer protection legislation [including the Australian Consumer Law] may confer rights and remedies on you which cannot be excluded, restricted or modified ("Non-excludable Rights"). Nothing in these Website Terms is intended to exclude restrict or modify your Non-excludable Rights.
However, where it is permitted to do so, MyWitness makes no representations or warranties, express or implied, whatsoever as to any matter. In particular, MyWitness does not guarantee that the functions contained on this Site will be uninterrupted or error free and does not warrant that this Site or its server is free of computer viruses, bugs or other harmful components or that defects will be corrected even if MyWitness is aware of them.
Furthermore, to the extent permitted by law, neither MyWitness nor any party involved in creating, producing or delivering this Site accepts any liability for the accuracy, timeliness or completeness of the information contained on this Site or any responsibility for any errors or omissions in the content on this Site whether or not MyWitness is aware of such errors or omissions nor do they accept any liability for any direct, incidental, consequential, indirect, special, punitive or exemplary damages or any loss of business, interest, goodwill, revenue of profit, or loss or corruption of data arising out of your access to, or use of, or inability to use or access this Site, whether arising in tort or contract.
Modification of Website Terms
MyWitness reserves the right to change, modify, add or remove sections of the Website Terms and to add to, change or discontinue the information contained in, or any other aspect of, this Site at any time and without liability. We will notify you of such changes by posting an updated version of the Website Terms on our Site. Please check this Site regularly for changes as your continued use of this Site signifies your acceptance of any changed Website Terms.
Unless otherwise noted, all materials on this Site are protected as copyright, trade names, trade marks or are other intellectual property owned by MyWitness and/or its affiliates or by other parties that have licensed their material to MyWitness. Other than viewing and downloading content from this Site for purposes permitted on this Site, you do not have the rights to use these intellectual property rights without the written permission of their owner. You agree that you will not use this Site for any unlawful purpose. You will not violate or attempt to violate the security of this Site. All rights not expressly granted are reserved[, and all powers (if any) conferred on you by section 26 of the Australian Trade Marks Act 1995 are expressly excluded].
Restrictions on use
Your use of the materials on this Site is only for informational purposes. You agree you will not distribute (including, without limitation, making available on-line, electronically transmitting or otherwise communicating to the public), publish, transmit, modify, display or create derivative works from or exploit the contents of this Site in any way. You agree to be responsible for any losses incurred by MyWitness as a result of any and all unauthorised uses you may make of any materials on this Site. You acknowledge the unauthorised use of the contents could cause irreparable harm to MyWitness and that in the event of unauthorised use, MyWitness shall be entitled to an injunction in addition to any other remedies available at law or in equity.
Links to external sites
These Website Terms will be governed by the laws of New South Wales, Australia, and shall be subject to the non-exclusive jurisdiction of the courts of New South Wales, Australia. In the event that any of the Website Terms are found to be unenforceable under New South Wales law, this will not affect the remainder of these Website Terms.
Effective from: 1 January 2013
You must be aged 18 or over to install or use the Application, or have the permission of your parent or guardian to do so. Where a person obtains a Subscription for a User under 18, that person is responsible for the User's compliance with these Terms.
Please read all of these Terms carefully before clicking on the "I Accept" button below or downloading, installing, accessing or using the Application. If you have any questions, please contact MyWitness prior to agreeing. By downloading, installing, accessing or using the Application, or clicking on the "I Accept" button , you agree to these Terms which will bind you. If you do not agree to these Terms, you must discontinue the installing the Application.
Capitalised terms used in these Terms are defined at the end of the Terms.
.1.1 Your Subscription commences when we activate your account after you have clicked "I Accept" and continues for either 6 months or one year from commencement, unless and until terminated earlier by you or MyWitness in accordance with these Terms ("Subscription Period").
.1.2 Shortly before the end of your Subscription Period, MyWitness may / will contact you to ask whether you would like to renew your Subscription. When your Subscription Period ends, your Subscription will expire and you will no longer be able to use the Application, unless you renew your Subscription before this time. All renewals will be on MyWitness's then current Terms.
2 The Application
.2.2 The Application is a personal distress and safety application for Android and Apple iOS smartphones, which is intended to, when activated:
(a) provide a User with a digital witness to any Incident;
(b) automatically record and upload GPS information, and video and audio recordings made by the User, of the Incident to MyWitness's cloud storage area;
(c) allow Users the option to make Emergency Notifications;
(d) send an alert to a User's Personal Response Team via email, SMS, or in-Application messaging in the event of an Emergency Notification; and
(e) allow Personal Response Team members to view video and audio files related to an Emergency Notification and to track the GPS location of the Device owned by the User who sent it.
3 Right to Use the Application
.3.1 In exchange for you agreeing to comply with these Terms and pay the Charges, MyWitness grants to each User a limited, non-transferable, and non-exclusive licence to use the Application and the Documentation for your Subscription Period strictly in accordance with these Terms.
.3.2 The Application and Documentation are licensed to each User and not sold to you. Except for the limited licence granted in these Terms, you acknowledge and agree that all intellectual property rights in the Application and Documentation throughout the world (the Application Rights) belong to MyWitness or its suppliers or affiliates and you have no rights in, or to, the Application or the Documentation other than the right to use them in accordance with these Terms. The Application Rights are protected by national and international laws, and all rights not expressly granted to you are reserved by MyWitness.
4 Proper Use of the Application
.4.1 The Application is first and foremost a personal distress and safety application, and is not intended for social or frivolous use. You must:
(a) only activate Emergency Notifications when you believe in good faith that your or another person's personal safety is or may be in jeopardy;
(b) cancel Alert Mode within the Deactivation Period to notify MyWitness of a false alarm if you activate an Emergency Notification in error or you realise within the Deactivation Period that your or another person's personal safety is not or is no longer in jeopardy;
(c) explain the purpose and Permitted Use of the Application to your Personal Response Team, and ensure they understand that contacting the emergency services will not always be the appropriate response when they are alerted to an Emergency Notification; and
(d) only use the Application and Content captured by the Application in line with the Permitted Use and applicable law and regulations.
.5.1 Except as expressly set out in these Terms or as permitted by any non-excludable applicable law, you agree that you will:
(a) not use the Application or the Documentation for commercial purposes;
(b) not rent, lease, loan, merge, adapt, vary or modify the Application or the Documentation;
(c) not make alterations to, or modifications of, the whole or any part of the Application or permit the Application or any part of it to be combined with, or become incorporated in, any other program;
(d) not disassemble, decompile, reverse engineer or create derivative works based on the whole or any part of the Application;
(e) replace the current version of the Application with any updated or upgraded version or new release made available by MyWitness under these Terms promptly on receipt of notification of such version or release;
(f) not use the Application or Documentation to perform any unauthorised transfer of information or for any unlawful purpose or in an unlawful manner;
(g) not publish Content captured by the Application which may be regarded as defamatory or offensive; and
(h) not remove, deface or destroy any copyright notice, patent notice, trade mark or other proprietary marking of MyWitness placed on or within the Application or any part of it.
.6.1 The Application requires a Device with a minimum amount of 60MB of available storage, the Android operating system version 4.1 and up or Apple iOS version 6.1 and up, and internet access. GPS location services are required to be enabled for accurate location tracking.
7 Security of your Device and MyWitness Account Details
.7.1 It is your responsibility to ensure the safety and security of your Device and your MyWitness user account. You must not tell anyone the password or PIN to your user account or allow any other person to access your user account. You must take care not to leave your password or PIN and account details where someone else could find them. You will be solely responsible and liable for all activity that occurs under your user account.
.7.2 MyWitness may provide facilities for username and password or PIN recovery, we cannot guarantee that this will be effective to recover access to your account. If you lose your account details, you may not be able to access your Content.
8 Charges and Data Allowances
.8.1 You are required to pay for your Subscription for the Subscription Period up-front on an annual basis (the "Charges"). The Charges for your Subscription are listed here. MyWitness will accept payment via Visa, Mastercard, Amex, Google Play account or Apple iTunes account or such other payment method as MyWitness may specify from time to time. We will only charge you for one Subscription Period at a time.
.8.2 The Charges cover, during your Subscription Period:
(a) up to 1GB of Content storage at any one time;
(b)up to 10GB Content retrieval ; (together, your "Data Allowances").
Unused Data Allowances from one Subscription Period cannot be carried forward to a subsequent Subscription Period.
.8.3 We recommend that you remain aware of your account usage and remaining Data Allowances at all times. We will notify you via email and/or SMS (at our option) if you have reached or are within 10% of reaching any of your Data Allowances for storage, upload and/or retrieval.
.8.4 The Charges (and, where applicable, the charges for Additional Data Allowances) do not cover SMS, data, network or other charges imposed by your mobile network operator or internet service provider ("Data Costs") in connection with your use of the Application. You acknowledge and agree that:
(a) ordinary use of the Application may involve a significant amount of data upload and download,
(b) you will incur Data Costs when using the Application. These may be additionally subject to roaming Data Costs which will be higher if you use the Application while "roaming" outside your usual country of residence; and
(c) these Data Costs are your sole responsibility.
.8.5 By accepting these Terms, you authorise MyWitness to charge the current applicable Charges for the Subscription Period. The Charges may be subject to change from time to time. If we change the Charges for the Data Allowances during your Subscription Period, these changes will not apply until you renew your Subscription. However, any Additional Data Allowances purchased by you during your Subscription Period will be charged at MyWitness's currently applicable prices specified at the time of purchase.
9 Your Content
.9.1 You grant MyWitness a limited, transferable, sub-licensable, non-exclusive right to use your Content as reasonably required in connection with your use of the Application as contemplated by these Terms or as otherwise agreed with you.
.9.2 You acknowledge and agree that you, and not MyWitness, are responsible for ensuring the lawfulness of the Content and obtaining any and all necessary rights and consents to upload, store and access any Content to, in or from the Application. It is your responsibility to ensure that:
(a) your Content does not infringe any intellectual property rights, privacy rights or any other rights of any person; and
(b) your use of the Application does not breach any obligations of confidentiality to any person.
.9.3 Content uploaded during an Emergency Notification will be retained by MyWitness for a minimum of 3 months to ensure that a User cannot be forced to delete Content under duress, and also to provide a User and that User's Personal Response Team (and in some cases law enforcement authorities) with assistance in investigating and/or evidencing an Incident. You acknowledge and agree that during this period you will not under any circumstances be able to permanently delete or modify such Content.
.9.4 In order to preserve older Content from Emergency Notifications and ensure storage capacity for new Emergency Notifications, older Content uploaded during an Emergency Notification may be automatically moved into backup storage if your Data Allowance for storage has been reached when a new Emergency Notification is received. This data will be retained for at least 3 months, after which it may be permanently deleted.
10 Privacy and Use of data
11 Consumer Rights and Limitations
.11.1 As a consumer, you have certain rights under consumer protection legislation, [including the Australian Consumer Law] (Consumer Rights), which cannot be excluded or limited by MyWitness. Your Consumer Rights may include statutory guarantees or other non-excludable protections. Nothing in these Terms is intended to exclude, restrict or modify your Consumer Rights. However, to the extent that it is permitted by law to do so, and except as contained in your Consumer Rights, MyWitness makes no representations or warranties, express or implied, whatsoever as to any matter including, without limitation, with respect to the non-infringement of third party rights, or the availability, performance, security, characteristics, fitness for any particular purpose or operation of the Application.
.11.2 The Application is provided on an "as available", "as is" basis. You acknowledge and agree that:
(a) the Application has not been developed to meet your individual requirements and it is your responsibility to ensure that its facilities and functions as described in the Documentation meet your requirements;
(b) it is your responsibility to select appropriate and reliable persons to act as your Personal Response Team and to give them instructions on actions you wish them to take in their role as your Personal Response Team. Although the Application provides functionality to allow members of a Personal Response Team to call the emergency services, MyWitness does not advocate calling the emergency services in all circumstances. It is the Personal Response Team member's responsibility to determine what action is appropriate, having reviewed the Content uploaded during the Emergency Notification;
(c) MyWitness makes no warranty or representation that Your Content will be accepted by law enforcement or other authorities as evidence (including, in particular, courts of law in Australia or elsewhere) of any fact (including the occurrence of an Incident), nor that use of the Application will improve or ensure any User's personal safety;
(d) the installation and use of the Application, and the creation of Content using it, are your responsibility;
(e) the Application relies on you maintaining a good and consistent data connection between your Device and your mobile network and/or GPS satellites. The Application will not function effectively, Notifications may not be sent and Content may not be recorded or uploaded if you have a poor data connection, or no data connection at all;
(f) MyWitness cannot guarantee that locations and times recorded by the Application will be accurate, as this information is determined by data received from third party GPS services, which in turn depend upon your phone making a connection to GPS and mobile network services; and
(g) the Application may not be free of bugs or errors or interruptions or other failures, and these bugs, errors, interruptions and/or failures will not always amount to a breach of these Terms.
.11.3 While MyWitness will endeavour to ensure that new Emergency Notifications are sent and Content is stored for accounts which have reached or exceeded any or all of their Data Allowances, we cannot guarantee that the Application will send Emergency Notifications, nor that your Content will be uploaded, stored or retrieved, until you have purchased sufficient Additional Data Allowances.
.12.1 As mentioned above in clause 11, certain legislation applicable in your jurisdiction may imply consumer guarantees or provide you with rights that cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to a limited extent. These Terms are not intended to and do not reduce any rights you are given under these statutory provisions.
.12.2 However, to the extent permitted by law, under no circumstances will MyWitness be liable for any indirect, incidental or consequential loss, damage or injury, any loss of profits, any loss of income, and any loss of data suffered by you arising out of or in connection with your use of the Application, whether arising in contract, tort (including negligence), statute, or otherwise.
.12.3 Neither you nor MyWitness will be liable for any delay in performing or failure to perform any of our obligations under these Terms if that delay or failure is due to an Intervening Event. A party affected by an Intervening Event will be temporarily excused from performing its obligations for the resulting period of delay, provided that the delaying party promptly notifies the other party in writing of the reasons for the delay or failure to perform those obligations.
13 Suspension, Termination and Cancellation
.13.1 MyWitness may suspend your access to and/or use of the Application immediately (or at a later time) by giving written notice to you if you breach these Terms and, in MyWitness's reasonable opinion:
(a) your breach is significant or serious; and
(b) suspension of access is justified by your breach.
.13.2 MyWitness may terminate your Subscription and your access to and/or use of the Application immediately by giving written notice to you if:
(a) you breach these Terms and, if your breach can be remedied, you do not remedy the breach within fourteen (14) days of MyWitness contacting you in writing asking you to remedy the breach; and
(b) in MyWitness's reasonable opinion:
(i) your breach is significant or serious; and
(ii) termination is justified by your breach.
.13.3 You may terminate (cancel) your Subscription by notifying MyWitness in writing at any time via email@example.com . In limited circumstances you may be entitled to a refund of the Charges. Please see our Refund and Cancellation Policy for further details.
.13.4 You or MyWitness may terminate your Subscription by giving notice to the other if a Intervening Event occurs and continues for more than 30 days.
.13.5 Upon termination of these Terms for any reason:
(a) all rights granted to you under these Terms will cease;
(b) you must immediately delete or remove the Application from all Devices in your possession, custody or control and, if required by MyWitness certify in writing that you have done so; and
(c) the rights and responsibilities of both you and MyWitness which by their nature survive termination or expiration of the Terms, remain in full force and effect. These include but are not limited to [those concerning the licence you granted to MyWitness, liability, warranties, governing law and jurisdiction].
.13.6 Upon or at any time after termination of your Subscription for any reason, MyWitness may delete your Content but is not obliged to do so and the licence in clause .9.1 shall continue for the longer of the period:
(a) for which MyWitness reasonably requires your Content in connection with its obligations under your Agreement,
(b) MyWitness is required to retain it by law, or
(c) for which you consent for MyWitness to retain or use it.
.13.7 [It is your responsibility to ensure that you have stored your Content elsewhere prior to cancelling or terminating your Subscription. MyWitness has no obligation to provide you with a copy of your Content and may remove and discard any data from the date your Subscription Period ends, unless you renew your Subscription prior to this date.
14 No Transfer of Subscription
.14.1 Your Subscription is personal to you. You may not transfer your Subscription, or any of your rights or responsibilities arising under these Terms, without MyWitness's prior written consent. However, MyWitness may transfer its rights and/or responsibilities under these Terms at any time without prior notice to you or asking for your consent, where MyWitness sells its business or is acquired by a third party, or has another good reason for transferring its rights and/or responsibilities.
.15.1 These Terms constitute the complete and exclusive agreement between you and MyWitness about the Application. These Terms supersede any and all prior agreements and/or agreements made at the same time as you accepted these Terms, whether oral or in writing, with respect to the Application.
.15.2 These Terms are governed by the laws of New South Wales. You and MyWitness irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of that New South Wales. If any provision of these Terms is found to be unenforceable under New South Wales law, this will not affect the remainder of the provisions of these Terms, which will remain in full force and effect.
.15.3 The failure by MyWitness to enforce any right or provision of these Terms will not restrict MyWitness from enforcing that right or provision now or in future.
.15.4 We may change these Terms at any time. Notice of changes and their effective date will be published on the MyWitness website and notified to you by email. If you do not agree to these changes and they are detrimental to you, you may cancel your Subscription in accordance with clause .13.3. All renewals of Subscriptions will be on MyWitness's current Terms as at the date the new Subscription Period commences.
.15.5 Your use of the MyWitness website is governed by the MyWitness Website Terms which are separate from these Subscription Terms.
For the purposes of these Terms, references to:
Charges means the annual charges for your Subscription to the Application detailed in clause 8.
Content means any and all data, images, audio and/or video files uploaded by a User to MyWitness's cloud storage using the Application.
Device means a mobile phone or other portable electronic device on which you install and/or use the Application.
Emergency Notification means an alert sent by the Application when activated by a User to signify an Incident is occurring or has occurred.
Incident means an event, circumstance or interaction which leads a User to reasonably fear for that User's or another person's personal safety or the safety of property belonging to that User or another person.
Intervening Event means any circumstance or event beyond the control of you or MyWitness which prevents or hinders in any material way the carrying out by either of us of our obligations under the Terms (other than an obligation to pay money), including: civil disturbance, war or hostilities; strike, industrial actions or revolution; act of God or epidemic; failure of or disruption to telecommunications networks or satellites; failure of any electrical power supply, air-conditioning or humidity control, the change or introduction of any law, regulation or decree, or change in policy of government; an act or omission of any third party or any failure of any equipment owned or operated by any third party; or any other circumstance or event which is not within the reasonable control of the party whose performance of its obligations under these Terms is affected by the circumstance or event.
Notifications means Emergency Notifications.
Permitted Use means the use of the Application for personal safety and distress notification purposes, as further described in clause .2.2.
Personal Response Team means the single person or group of up to five (5) persons nominated by each User, who consent to receive details of your Emergency Notifications via email, SMS and/ or in-Application messaging, subject to these Terms.
PIN means the numerical password issued to you by MyWitness or later defined by you which can be used to access your account and to cancel an Emergency Notification if entered into your Device within a specified period of time after the Emergency Notification is made.
Password means the alphanumerical password issued to you by MyWitness or later defined by you which can be used to access your account and to cancel an Emergency Notification if entered into your Device within a specified period of time after the Emergency Notification is made.
User(s) means you and/or any persons covered by your Subscription.
Ultimately, with increased public awareness of MyWitness, we aim to act as a strong deterrent to crime by ensuring that criminals are aware that citizens can now protect themselves swiftly and non-violently with a digital witness system which cannot be intimidated or destroyed.