Otso Media TERMS OF SERVICE
This Talent Terms of Service Agreement (“Terms”) governs your use as a talent user of the Otso Media offered by Pinecone Media Ltd, doing business as Otso Media (“we”, “us”, or “Otso Media”), including our website (otsomeida.com), and services we provide (collectively, the website, and services referred to as our “Site”). “You” and “Talent User” refer to you as a talent user of the Site.
These Terms apply solely to Talent Users of our Site.
PLEASE READ THESE TERMS CAREFULLY. By using our Site as a Talent User or otherwise indicating your acceptance (for example, by agreeing when creating or logging into your account, clicking “I Agree,” etc.), you represent and warrant that you have read, understand, and agree to be bound by these Terms. If you do not agree, do not access or use our Site as a Talent User.
ARBITRATION NOTICE: These Terms contain provisions governing how claims that you and Otso Media have against each other are resolved, including any claims that arose or were asserted prior to the “Last Updated” date at the top of these Terms. It contains an arbitration agreement that will, with limited exceptions, require disputes between you and Otso Media to be submitted to binding and final arbitration. Unless you opt out of the arbitration agreement you may pursue claims and seek relief against us only on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding; and (2) you waive your right to seek relief in a court of law and to have a jury trial on your claims.
1. PARTICIPATION IN THE OTSO MEDIA PLATFORM
Registration: In order to participate on our Site, you must register. By registering, you agree to provide true, accurate, current, and complete information about yourself as prompted by our registration form, as well as any other information reasonably requested by us (collectively, “Registration Data”), and maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. If you do not do so or we reasonably believe that you have not done so, we have the right to suspend or terminate your Site account and your use of our Site. You agree not to create a Site account using a false identity or providing false information, on behalf of another person (except as outlined below for a parent or legal guardian and Organisations), or if you (and your parent or legal guardian, or an Organisation, if applicable) have previously been removed or banned from our Site. You are responsible for maintaining the confidentiality of your Site account information, including your username and password. You are responsible for all activities that occur on or in connection with your Site account and you agree to notify us immediately of any unauthorised access or use of your Site account. You acknowledge and agree that we are not responsible or liable for any damages, losses, costs, expenses, or liabilities related to any unauthorised access to or use of your Site account.
Talent User aged 16 or older: Talent Users who are at least 16 years old may register directly. By registering, you represent and warrant that:
(A) You are at least 16 years old (and, if between 16 and 18 years old, are registering with the supervision and with the consent of your parent or legal guardian, who also agrees to these Terms).
(B) You are of legal age to form a binding contract.
(C) You are (and if you are between 16 and 18 years old, your parent or legal guardian is) not barred from using our Site under the laws of the United States, your place of residence (and if you are between 16 and 18 years old, the place of residence of your parent or legal guardian), or any other applicable jurisdiction; and
(D) You are (and if you are between 16 and 18 years old, your parent or legal guardian is) responsible for complying with all applicable laws and regulations relating to Talent User’s participation on our Site and will fully indemnify the Otso Media Parties (defined below) for any failure to do so.
Parent or Legal Guardian of Talent User, under age 16: Talent Users who are under 16 years old, may register only through a parent or legal guardian who, by registering, represents and warrants that:
(A) he or she is the parent or legal guardian of the Talent User and agrees to these Terms.
(B) neither the parent or legal guardian nor the Talent User is barred from using our Site under the laws of the United States, the place of residence of the parent, legal guardian, or Talent User, or any other applicable jurisdiction; and
(C) he or she is responsible for complying with all applicable laws and regulations relating to Talent User’s participation on our Site and will fully indemnify the Otso Media Parties for any failure to do so.
Organisations: A management company, manager, agency, agent, publicist, or other individual or Organisation (each, an “Organisation”) may register a Talent User (“Affiliated Talent”). By registering, the Organisation represents and warrants for itself and each Affiliated Talent that:
(A) Organisation is the authorised representative of the Affiliated Talent (and, if the Affiliated Talent is below the age of 18, is registering with any consent required of the Affiliated Talent’s parent or legal guardian as set forth in Sections 1. an (i) and 1. an (ii)) and agrees to these Terms.
(B) neither the Organisation nor the Affiliated Talent is barred from using our Site under the laws of the United States, the place of residence of the Organisation or any Affiliated Talent, or any other applicable jurisdiction; and
(C) Organisation is responsible for complying with all applicable laws and regulations relating to Affiliated Talent’s participation on our Site under these Terms and will fully indemnify the Otso Media Parties for any failure to do so. To register Affiliated Talent as an Organisation, please contact firstname.lastname@example.org.
2. OTSO MEDIA CONTENT
From time to time, a user of our Site (“User”) may request one or more video recordings (each, a “Otso Media Video”) from you through our Site.
While we hope you will fulfill a request within 72 hours of receiving it, you may have up to seven days (at Otso Media’s sole discretion) to complete and upload the Otso Media Video. If you do not either:
(i) Accept the request and upload the Otso Media Video; or
(ii) decline the request; the request will expire and can no longer be fulfilled (except that you may fulfill the expired request at no cost to the User and with no payment due from us). You may decline a request or otherwise refuse, at your discretion, to create or upload an Otso Media Video if a user’s request is objectionable or otherwise offensive to you. If you accept a request, you agree to record and upload the required deliverables.
Otso Media retains the right, in its sole discretion, to cancel any request from a User. No payment will be made to you for any declined, canceled, or unfulfilled Otso Media Video request.
Each Otso Media Video will follow the general directions and requests of the User. If you complete a Otso Media Video but do not follow the general directions and requests of the User, we will discuss with you an appropriate adjustment of the payment made to you.
3. FEES & PAYMENT
Booking Fee: The Booking Fee is agreed between the Talent User and Otso Media and excludes any service, transaction, or processing fees paid to Otso Media. Any Sales Tax Otso Media collects will be remitted to the applicable tax authority and will not be included in the Booking Fee. Fees and Payment Representations and Warranties: You represent and warrant that: (i) Otso Media Videos are not, and are not intended to be, covered by any guild, union, collective bargaining, management, agency, or similar agreement and there will be no residual or any other type of payment due from Otso Media to you, to any third party, guild, union, management, or agent, or pursuant to any collective bargaining agreement, in connection with any Otso Media Video, payment from us to you, or our Site; (ii) Otso Media is not responsible for, and will not make any deduction to payments made to you for any fees, commissions, costs, expenses, or payments of any kind to or with respect to any third party, including any manager, agent, attorney, representative, or service provider, in connection with any revenue earned by or payments made to you in connection with our Site; and (iii) Otso Media is not responsible for any contributions, payments, taxes, or deductions for Social Security, retirement benefits, unemployment insurance, annuities, or pension or welfare fund payments required by law or any labour union, or any withholding or taxes (other than Sales Tax Otso Media collects in relation to a purchase).
Currency: Payments via the payment provider are in either U.S. dollars or GB pounds sterling unless the payment provider permits you to choose another currency and you do so.
Talent Content Representations and Warranties: You represent and warrant to Otso Media and the User that:
you own all rights in and to your Talent Content and Feedback (defined below) and you have the right to grant the rights described in these Terms.
you have paid and will pay in full any fees, royalties, or other payments that are due or may become due in connection with any use of your Talent Content and Feedback by us, Users, or third parties (including Recipients) as described in these Terms.
your agreement to, and provision of services under, these Terms does not violate any agreement that you may have with any third party.
any statements that you make in connection with the Business are factually correct and not misleading, are not disparaging or defamatory, and represent your true opinion; and
you will comply with all applicable laws, rules, and regulations, including the Federal Trade Commission "Guides Concerning the Use of Endorsements and Testimonials in Advertising," which may require adding an appropriate hashtag (e.g., #ad, #sponsored) or other disclosure to the Otso Media Video.
your Talent Content and Feedback does not infringe, misappropriate, or otherwise use without necessary authorization, any intellectual property, privacy, publicity, moral, or other rights of any third party, or violate any law, regulation, or court order.
Age: You must be at least 13 years old (or, outside of the United States, the applicable legal age to enter into a contract) to use our Site. If you are a minor or under the age of majority in your state of residence, your parent or legal guardian must agree to these Terms on your behalf, and you may access and use our Site only with permission from your parent or legal guardian.
National College Athletic Association (“NCAA”) and Other Amateur Organisations: If you are or may become subject to NCAA rules and regulations or those of any other association, group, authority or Organisation, you represent and warrant that you have checked the rules and regulations to verify and confirm that your participation on our Site does not or will not affect your current or future eligibility with respect to any such association, group, authority or Organisation.
Eligibility Representations and Warranties: You represent and warrant that:
you have not been prohibited from using or accessing any aspect of our Site by us or pursuant to any applicable law or regulation.
you will comply with all applicable terms of any third-party payment provider we select, and you are not on a prohibited list of that payment provider.
if you include an animal in any Otso Media Video, you will cause no harm to the animal and will comply with all applicable laws and regulations.
you (and any Site account that you created or control) have not been previously banned or removed from our Site for any reason, and
you are not a convicted sex offender.
6. BUSINESS RELATIONSHIP WITH OTSO MEDIA
You and Otso Media agree and declare you and Otso Media are in a direct business relationship and the relationship between the parties, including these Terms, is solely an independent contractor relationship. It is the parties’ express intent that their relationship be interpreted and held to be that of an independent contractor for all purposes. You acknowledge and agree that you are not a joint venture, franchisee, partner, agent, or employee of Otso Media, and will not represent yourself as such. As an independent contractor using our platform to provide marketing, artistic, writing, and photography services to Users, you are solely and exclusively responsible for determining the manner, method, details, and means of your performance under these Terms and you acknowledge and agree that we do not control those elements of your performance. You also retain the option to accept, decline, or ignore any User request. We have no right to, and will not, control the manner or determine the method of accomplishing your performance. You represent and warrant that you are customarily engaged in an independently established trade, occupation, or business.
You represent and warrant that as between Otso Media and you (whether a Talent User, parent or legal guardian of a Talent User, an Organisation, Affiliated Talent, Otso Media Partner, or otherwise), you assume sole liability for and will pay or cause to be paid all applicable contributions, payments, taxes, and deductions for Social Security, retirement or other benefits, healthcare insurance, unemployment insurance, annuities, pension and welfare fund payments required by law, regulation, or any labor union, and all withholding and income taxes, and make any reports required as a result of participation on our Site under these Terms.
You will use your own equipment to perform your obligations under these Terms.
You are solely responsible for making any disclosure required by any applicable law, regulation, court order, or any agreement you may have with any third parties to any person or entity regarding your performance under these Terms.
Your relationship with Otso Media is non-exclusive, meaning that you may provide similar services to third parties, including Otso Media’s competitors, and you may engage in other business or employment activities. Similarly, we can and do engage third parties to provide services similar to those that you may provide under these Terms.
7. CHANGES TO OUR SITE
You acknowledge and agree we may change or discontinue any aspect of our Site at any time, without notice to you. You acknowledge and agree we may change or discontinue any aspect of our Site at any time, without notice to you.
8. TERMINATION AND RESERVATION OF RIGHTS
You may cancel your Site account at any time by contacting a member of the Otso Media team at email@example.com. We reserve the right to terminate access to our Site to any person, including you, at any time, for any reason, in our sole discretion. If you violate any of these Terms, your permission to use our Site automatically terminates.
9. DISCLAIMERS AND LIMITATIONS ON OUR LIABILITY
You acknowledge and agree that your use of our Site is at your own risk and that our Site is provided on an “as is” and “as available” basis. To the extent permitted by applicable law, the Otso Media Parties disclaim all warranties, conditions, and representations of any kind, whether express, implied, statutory, or otherwise, including those related to merchantability, fitness for a particular purpose, non-infringement, and arising out of course of dealing or usage of trade. In particular, the Otso Media Parties make no representations or warranties about the accuracy or completeness of content available on or through our Site or the content of any social media platform or third-party website linked to or integrated with our Site. You acknowledge and agree that the Otso Media Parties will have no liability for any: (i) errors, mistakes, or inaccuracies of content; (ii) personal injury, property damage, or other harm resulting from your access to or use of our Site; (iii) any unauthorised access to or use of our servers, any personal information, or user data; (iv) any interruption of transmission to or from our Site; (v) any bugs, viruses, trojan horses, or the like that may be transmitted on or through our Site; or (vi) any damages, losses, costs, expenses, or liabilities of any kind incurred as a result of any content or the use of any content posted or shared through our Site.
You acknowledge and agree that any material or information downloaded or otherwise obtained through our Site, including a User request, is done at your own risk and that you will be solely responsible for any damages, losses, costs, expenses, or liabilities arising from or in connection with doing so. No advice or information, whether oral or written, obtained by you from us or through our Site, including through an Otso Media Video, will create any warranty not expressly made by us.
You acknowledge and agree that when using our Site, you will be exposed to content from a variety of sources, and that Otso Media is not responsible for the accuracy, usefulness, safety, legality, or intellectual property rights of or relating to any such content. You further understand and acknowledge that you may be exposed to content that is inaccurate, offensive, indecent, objectionable, or harassing, and you agree to waive and do hereby waive, any legal or equitable rights or remedies you have or may have against any Otso Media Party with respect thereto.
To the fullest extent permitted by applicable law, you acknowledge and agree that in no event will any Otso Media Party be liable to you or to any third party for any indirect, special, incidental, punitive, or consequential damages (including for loss of profits, revenue, or data) or for the cost of obtaining substitute products, arising out of or in connection with these Terms, however caused, whether such liability arises from any claim based upon contract, warranty, tort (including negligence), strict liability or otherwise, and whether or not Otso Media has been advised of the possibility of such damages.
To the maximum extent permitted by applicable law, our total cumulative liability to you or any third party under these Terms, including from all causes of action and all theories of liability, will be limited to and will not exceed the fees actually received by Otso Media from you during the 12 months preceding the claim giving rise to such liability.
Certain jurisdictions do not allow the exclusion or limitation of certain damages. If those laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.
You agree that the limitations of damages set forth above are fundamental elements of the basis of the bargain between Otso Media and you.
You agree to indemnify, defend, and hold harmless Otso Media and its parents, subsidiaries, affiliates, officers, employees, directors, shareholders, agents, partners, and licensors (each, an “Otso Media Party, “ and collectively, “Otso Media Parties”) from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including reasonable attorneys’ fees and costs) of any kind or nature, arising from, out of, in connection with, or relating to: (a) these Terms; (b) use of our Site; (c) your negligence, misconduct, or fraud; (d) any action or inaction by you or anyone acting on your behalf; (e) any Organisation or Affiliated Talent; (f) any Charity; (g) your status as a parent or legal guardian of a Talent User; (h) Talent Content; (i) Feedback; (j) your eligibility with the NCAA or any other association, group, authority, or Organisation referenced in Section 9. b; or (k) your participation in the Referral Program. Otso Media may select counsel and control the defense of any claim that you are indemnifying. You will reasonably cooperate with us in connection with any claim.
11. ARBITRATION AGREEMENT AND WAIVER OF CERTAIN RIGHTS
Arbitration: You and Otso Media agree to resolve any disputes between you and Otso Media through binding and final arbitration instead of through court proceedings. You and Otso Media each hereby waive any right to a jury trial of any controversy, claim, counterclaim, or other dispute arising between you and Otso Media relating to these Terms or our Site (each a “Claim,” and collectively, “Claims”). Any Claim will be submitted for binding arbitration in accordance with the Rules of the LCIA (formerly known as the London Court of International Arbitration). The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision will be in writing, will include the arbitrator’s reasons for the decision, will be final and binding upon the parties, and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including any pleadings, briefs, or other documents submitted or exchanged, any testimony or other oral submissions, and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration or by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
Costs and Fees: If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Otso Media will pay as much of the administrative costs and arbitrator’s fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive. In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate.
No Preclusions: This arbitration agreement does not preclude you or Otso Media from seeking action by federal, state, or local government agencies. You and Otso Media each also have the right to bring any qualifying Claim in small claims court. In addition, you and Otso Media each retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed to be either incompatible with these Terms or a waiver of the right to have disputes submitted to arbitration as provided in these Terms.
No Class Representative or Private Attorney General: Each of you and Otso Media agree that with respect to any Claim, neither may: (i) act as a class representative or private attorney general; or (ii) participate as a member of a class of claimants. You agree that no Claim may be arbitrated on a class or representative basis. The arbitrator can decide only individual Claims (whether brought by you or Otso Media). The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.
Severability/No Waiver/Survival: If any provision of this Section is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed and the remainder of this Section will continue in full force and effect. No waiver of any provision of this Section will be effective or enforceable unless recorded in writing and signed by the party waiving such a right or requirement. Such a waiver will not waive or affect any other provision of these Terms. This Section will survive the termination of your relationship with Otso Media.
12. OTHER PROVISIONS
Force Majeure: Under no circumstances will any Otso Media Party be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, etc.), epidemics, natural disasters, unavoidable accidents, cybersecurity incidents, internet or communication service interruptions, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, embargoes, strikes, or any other event or cause beyond the reasonable control of any Otso Media Party.
Choice of Law and Jurisdiction: These Terms will be governed by and construed in accordance with the laws of the UK, without giving effect to any conflict of laws rules or provisions. You agree that any action of whatever nature arising from or relating to these Terms, or our Site will be filed only in the state or federal courts located in Massachusetts. You consent and submit to the personal jurisdiction of such courts for the purposes of any such action. Severability: If any provision of these Terms is found to be invalid or unenforceable, that provision will be deemed appropriately modified to give effect to the intent of the provision or, if modification is not possible, will be severed from these Terms and will not affect the enforceability of any other provision. No Waiver or Amendment: The failure by Otso Media to enforce any right or provision of these Terms will not prevent Otso Media from enforcing such right or provision in the future and will not be deemed to modify these Terms. Assignment: Otso Media may, at any time, assign its rights and obligations under these Terms, including to an affiliated entity or in connection with a sale of assets, merger, acquisition, reorganisation, bankruptcy, other transaction, or by operation of law. Miscellaneous: The term “including” in these Terms will be interpreted broadly and will mean “including, without limitation.” Titles are for convenience only and will not be considered when interpreting these Terms.
13. CHANGES TO THESE TERMS
We may change these Terms. If we do, we will post the revised Terms on our Site and update the “Last Updated” date at the top of these Terms. The revised Terms will be effective immediately if you accept them (for example, by agreeing when you create an account or log in to an existing account or using or continuing to use our Site after the revised Terms have been posted); otherwise, they will be effective 30 days after posting.