ACTually, Inc. ("ACTually," "us," "we," or "our") operates a service (the "Service") that may, among other things, allow users to create a user account to access the site located at www.actually.tv or the ACTually app, create a user profile, record and submit videos and other content, connect with other users of the Service, and watch/"applaud" videos and content posted by others.
Apple Inc. is not in any way affiliated with ACTually or its Service.
These ACTually Terms of Service and additional terms and conditions that we post on the Service from time-to-time (collectively, "Terms of Service") set forth the terms and conditions under which you may access and use the Service.
The Terms of Service apply to any user of the Service ("you"), including any registered user (each a "Registered User") of an account (each a "User Account") issued for the Service.
BY ACCESSING, REGISTERING WITH OR USING THE SERVICE, YOU AGREE TO THE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE (WITHOUT MODIFICATION), YOU ARE NOT AUTHORIZED TO ACCESS, REGISTER WITH, OR USE THE SERVICE.
ACTually reserves the right to modify or change the Terms of Service at any time without prior notice to you. If ACTually modifies or changes the Terms of Service, it will also revise the "Effective Date" at the top of this page. The most current version of the ACTually Terms of Service can be reviewed by clicking on the "Terms of Service" link located on the Service. Your continued access to and/or use of the Service after ACTually posts any revised Terms of Service constitutes your agreement to any such revised Terms of Service.
PLEASE NOTE THAT THE SERVICE IS PROVIDED WITHOUT ANY WARRANTIES AND SUBJECT TO LIMITATIONS ON ACTUALLY'S LIABILITY. THESE TERMS ARE CONTAINED IN SECTIONS 8 AND 9 BELOW, provided, however, that any limitations of these terms and conditions are applied only as broad and inclusive as is permitted by law in the state of New Jersey, or any other state that restricts disclaimers, limitations of liability and/or remedies, and similar provisions.
Conditioned upon and subject to your strict compliance with the Terms of Service, ACTually grants you a personal, non-exclusive, non-transferable, revocable, limited license to access and use the Service to obtain additional information regarding ACTually, to view the content posted on the publicly-available portion of the Service, to share and display such content as permitted via the Service, and for other purposes permitted by us. If you are a Registered User, ACTually also grants you a personal, non-exclusive, non-transferable, revocable, limited license to access and use the features of the Service that ACTually makes available for your User Account, and to use the scripts and other content provided via the Service for the purposes of making videos using the Service and for any other purposes expressly set forth on the Service.
You agree not to enter or use the Service for any purpose that is not expressly permitted by the Terms of Service, or is otherwise unlawful. You further agree to comply with all applicable laws, statutes, ordinances, regulations, contracts and licenses regarding your use of the Service including, without limitation, those applicable to the Internet, e-mail, privacy, copyrights, trademarks and data.
If you provide any information to us, you agree to provide only true, accurate, current and complete information. If you provide information to us about any third party, including, but not limited to, personally identifiable information, you represent and warrant that you are specifically authorized to provide such information to us so that we may use, process and transfer such personally identifiable information, and you assume all responsibility for dissemination and use of the information provided.
You agree not to, without first obtaining ACTually's express written permission, (a) use any of its trademarks as metatags on other websites; (b) use the Service in any manner that is illegal or impairs the operation of the Service or its availability or usage by others; and/or (c) display any part of the Service in frames (or any content via in-line links). You further agree not to decompile, reverse engineer or disassemble any software or other products or processes accessible through the Service, and not to insert any code or product or manipulate the Service in any way that affects the user's experience including, without limitation, taking any action that imposes, or may impose, an unreasonable or disproportionately large load on the Service. You further agree not to use any data mining, web crawlers, robots, cancelbots, spiders, Trojan horses, or any data gathering or extraction method in connection with your use of the Service except for customary search engines used in accordance with automated instructions directed to search engines and available on the Service.
The service is only for individuals who are 13 years of age or older. IF YOU ARE UNDER 13 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME. If you are 13-17 years old, you shall not access or use the Service unless you have been authorized by your parent or legal guardian.
Among other things, the Service is intended to provide a means to create and share videos. The Service does not offer any contests, and ACTually will not award any prizes. Registered Users may be able to "applaud" User Content that is made available for viewing by ACTually or other users for exhibition purposes only.
Portions of the Service available to different users may vary. No user (other than certain ACTually employees acting in their capacity as such) has access to all portions of the Service. You agree not to use or access, or attempt to use or access, any portion of the Service for which you are not intentionally given access to by us. For example, Registered Users will have access to portions and features of the Service not available to other users of the Service.
You may create a User Account only for yourself, and may not create a User Account for any other person.
A Registered User may not authorize any other person to enter and/or use his/her User Account. Accordingly, if you are a Registered User, you agree to protect your username and password by, among other things, keeping your username and password confidential. Please select a strong password to protect against unauthorized access to your User Account. If, notwithstanding the foregoing obligation, you allow another party to use your username and/or password to access your User Account, you will be responsible for all use by that party using your User Account. You agree to (a) immediately notify ACTually of any unauthorized use of your password or any other breach of security, and (b) ensure that you exit from your User Account at the end of each session.
Any exchange of data or other interaction between you and any other Registered User is solely between you and such other Registered User. ACTually does not provide any warranties or guaranties regarding any other Registered Users, shall have no duties to you in connection with any such Registered Users, and, to the extent that any such duties are now or hereafter implied by these Terms or otherwise by law, such duties shall be deemed waived by you.
Information transmitted on the Internet and/or stored on systems attached to the Internet such as ours is not 100% secure. As a result, we do not ensure, warrant or guarantee the security or integrity of such information. We will not be responsible for disclosure of any information due to errors in transmission or the unauthorized acts of third parties.
"User Content" means any content uploaded or otherwise submitted to the Service by Registered Users. User Content includes all videos and other content submitted by any user of the Service and personal information submitted by Registered Users and any other user of the Service.
By uploading or otherwise submitting any User Content to the Service, you shall be deemed to grant to ACTually (a) a perpetual, royalty-free, assignable, sub-licensable, and non-exclusive right to use, reproduce, prepare derivative works of, distribute, perform, and/or display any User Content in any form or format and for any purpose (e.g., both on the Service and elsewhere, including social media and other websites; in advertising and to otherwise promote the Service; to provide the Service), and (b) the right to use your likeness, image, voice, words, and/or actions in connection with your User Content for any purpose (including without limitation for advertising, publicity, or trade), all without notice or compensation to you.
By uploading or otherwise submitting any User Content to the Service, you (w) acknowledge that the User Content may be, among other things, used in electronic media, such as posting in digital format on the internet (including, for example, social media websites such as Facebook and Twitter), (x) grant to other users of the Service the right to view, distribute (e.g., by sharing online) and display your User Content, (y) waive the opportunity and right to inspect, preview or approve the editing of User Content, or any use to which it may be put, and grant to ACTually the right to crop, edit and otherwise alter any such User Content and combine it with other text, images, graphic elements, and/or other materials (e.g., by inserting commercials into the videos that you create), and (z) release ACTually from all claims and liabilities of any kind arising out of or in connection with the making or use of such the User Content.
You represent and warrant to ACTually that you have the right to upload or otherwise submit such User Content to us and to grant ACTually the license and other rights, as applicable, granted in this section; that, excluding scripts and other content provided by ACTually, you own all right, title and interest in and to such User Content; and that such User Content (excluding any script or other content provided by ACTually) does not infringe, misappropriate or otherwise violate a privacy right or copyright, trademark, or any other intellectual property right of another.
The Service may allow you to (a) save User Content locally, (b) upload your User Content to third party websites (e.g., social media platforms), (c) share your User Content with third parties (e.g., via email or other messaging services), and (d) publicly display and perform your User Content. You are solely responsible for any User Content or other information that you submit to the Service, and any and all use of the User Content. We shall not be liable for the use or misuse of any such User Content or information, including without limitation any videos of you or personally identifiable information. You acknowledge that we have no obligation to screen User Content uploaded to the Service. Notwithstanding the foregoing, ACTually may refuse, remove or disable any content, including User Content that is available via the Service. Without limiting the generality of the foregoing, we may remove any User Content submitted to the Service that you opt to display publicly and that ACTually, in its sole discretion, deems abusive, defamatory, obscene, unlawful or otherwise unacceptable.
You agree not to post any User Content to the Service that (a) is unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane, false, hateful, indecent or otherwise objectionable to ACTually in its sole and absolute discretion, (b) contains false, fraudulent, deceptive or misleading statements, (c) infringes, misappropriates or otherwise violates a copyright or trademark, or any other intellectual property right of another, (d) violates the privacy rights of another, or (e) violates any applicable law, rule, regulation or ordinance, or attempts to encourage such violation. We want the Service to provide a safe and welcoming environment, and thus encourage users to notify us at firstname.lastname@example.org if others are acting inappropriately or otherwise violating our Terms of Service.
You may view the User Content that we intentionally make available to you, may export certain User Content to your electronic device if the Service provides the functionality to do so, and may share such User Content as permitted via the Service. Except as expressly provided in these Terms of Service or on the Service, you may not otherwise copy, distribute, create derivative works from, or display any User Content of any third party, or copy, distribute, create derivative works from, or display any User Content that that is based upon or incorporates a script (or any portion of a script) provided by ACTually.
If you no longer wish to use the Service, and would like to terminate your license to do so, delete the ACTually app from your mobile devices, and terminate all other uses of the Service. If you wish to delete any of your User Content from the Service, you may be able to do so using the permitted functionalities of the app, but these Terms will remain in effect, and the deletion of your User Content will not affect User Content that has been shared outside of your User Account (e.g., videos that you have shared on social media). If you wish to delete your profile, please contact us by sending an email (from the email address associated with your User Account) to us at email@example.com; please be sure to include your user name in the email.
ACTually may, in its sole discretion, terminate a User Account, at any time, with or without notice and for any reason (or no reason), or if we believe that you are infringing, or have infringed, the intellectual property rights of others or are aiding or threatening, or have aided or threatened, such infringement. Any termination by us shall be effective on the date specified in such notice or, if no date is provided, shall be effective immediately. You agree that, if your User Account is terminated, you will not thereafter enter, or attempt to enter, the Service, directly or indirectly.
Upon termination or cancellation of a User Account, (a) the user loses access to certain features of the Service made available through such User Account, and (b) ACTually may, in its sole discretion, delete all information and content (including without limitation User Content) in the User Account. Notwithstanding the foregoing, ACTually reserves the right to retain and use such information and content for its business purposes (including data analysis) and as necessary to comply with its legal obligations, resolve disputes and enforce the Terms of Service. Additionally, such information and content may persist and appear within the Service and elsewhere if it was previously uploaded/shared on the Service or elsewhere.
ACTually may provide hyperlinks to other websites and Internet resources operated by parties other than ACTually. ACTually has no control over such sites and resources or their privacy policies. Such hyperlinks are provided for your reference only. The inclusion of hyperlinks to such websites does not imply any sponsorship, affiliation or endorsement of the material on such websites or with their operators.
Subject to the further provisions of this Section 5.2, ACTually welcomes links to the Service from other websites. If ACTually demands that you not link to the Service, or any portion of the Service, you agree that you will not, directly or indirectly, link to the Service or such portion of the Service as directed in our demand, at any time after such demand is made.
Except for content that is in the public domain and personal information submitted by users of the Service, the Service and all content, as well as the selection and arrangement of the content, is owned by (or licensed to) ACTually or its suppliers and is protected by copyright, trade dress, trademark, unfair competition, and/or other laws and may not be used, copied or imitated in whole or in part except as expressly provided herein. For the avoidance of doubt, ACTually retains all right, title and interest in and to the scripts and other content that it provides in connection with the Services; you are authorized to use such scripts and other content only as expressly permitted in these Terms of Service or on the Service. Subject to the licenses granted in these Terms of Service, you retain ownership of any rights you may have in your User Content, but acknowledge and agree that no User Content that incorporates a script provided by ACTually will be considered a separate copyrightable work. Except as otherwise expressly provided in the Terms of Service, all rights in and to the Service and content are expressly reserved by ACTually.
ACTUALLY, MAKE A SCENE and the related logos are trademarks of ACTually, and may not be copied, imitated or used, in whole or in part, without ACTually's prior written permission. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks and/or trade dress of ACTually or its licensors and may not be copied, imitated, or used, in whole or in part, without ACTually's prior written permission.
ACTually respects the intellectual property rights of others. If you believe that your work has been copied and is accessible on the Service in a way that constitutes copyright infringement, you may notify our agent as provided in this Section 6.3 and in accordance with the Digital Millenium Copyright Act, Title 17, United States Code, Section 512(c)(2) (“DMCA”). Pursuant to the DMCA, ACTually designates Copyright Agent as its agent designated to receive notification of claimed copyright infringement ("Designated Agent "). The address of the Designated Agent is 2660 Townsgate Rd. #250, Westlake Village, CA. 91361. The telephone number of the Designated Agent is 805.242.6860. The email address of the Designated Agent is firstname.lastname@example.org. We reserve the right share any notice of infringement and/or any response to a notice of infringement (including any personal information contained therein) with third parties (e.g., any user who posted the content to which you objected, any user who objected to your content, and with others).
We may terminate your use and access to the Service (including your User Account) if we believe that you are infringing the intellectual property rights of others or are aiding or threatening such infringement.
You hereby agree to indemnify and hold harmless ACTually and its affiliates, officers, members, directors, employees, shareholders, information providers, suppliers and licensees (collectively, "Indemnified Parties") from and against any and all liability and costs, including, without limitation, reasonable attorney's fees, incurred by any Indemnified Party in connection with any claim arising out of (a) any claim that any User Content misappropriates, infringes or otherwise violates any privacy or trademark, copyright, or other intellectual property right of any third party (unless the claim is based on a script that ACTually provided to you), and/or (b) any breach, or alleged breach, of any of the Terms of Service by you.
You expressly acknowledge and agree that your use of the Service is at your sole risk. The Service is provided on an "AS IS", "WITH ALL FAULTS", and "AS AVAILABLE" basis. ACTually makes no representations or warranties relating to the Service including, without limitation, representations or warranties that (a) the Service shall meet your requirements, (b) the operation of the Service will be uninterrupted or error free, (c) the Service will be secure; or (d) any defects in the Service will be corrected. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTUALLY HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND/OR REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT ACTUALLY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), IN EACH INSTANCE WITH RESPECT TO THE SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ACTUALLY FURTHER DISCLAIMS ANY AND ALL WARRANTIES, AND/OR REPRESENTATIONS OF QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
IN NO EVENT SHALL ACTUALLY OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THE TERMS OF SERVICE AND/OR THE SERVICE, WHETHER FOR BREACH OF CONTRACT, IN TORT OR OTHERWISE, EVEN IF ACTUALLY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT SUCH DAMAGES ARE A REASONABLY FORESEEABLE CONSEQUENCE OF A BREACH OF THIS AGREEMENT OR A TORT THAT FALLS WITHIN THE SCOPE OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall ACTually's total liability to you for any damages arising out of or in any way connected with the Terms of Service or the Service, whether for breach of contract, in tort or otherwise, exceed ten dollars ($10).
The limitations of this Section 9 do not apply to New Jersey residents.
For the avoidance of doubt, ACTually may modify, suspend, discontinue and/or restrict the use of all or any portion of the Service at any time for any reason (or for no reason) and without notice or liability.
The Service is hosted on servers located in the United States. The Terms of Service, and all matters arising out of or relating to the Terms of Service, shall be governed by the federal laws of the United States and the laws of the State of California, without giving effect to the conflict of law provisions thereof and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
In the event that you have a dispute arising from your use of the Service with any other Registered User, you release ACTually (and its officers, directors, agents, affiliates, suppliers, employees and shareholders) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." Whether or not you are a California resident, you waive and relinquish all rights and benefits under any legal principle with the similar effect of California Civil Code §1542 in any jurisdiction with respect to the release granted above in this Section 11.
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Any dispute arising out of or connected with this website and/or these terms and conditions not resolved amicably between you and ACTually shall be resolved exclusively by binding arbitration as follows. You agree to give up your right to go to court to sue or seek relief from us.
PLEASE READ THIS SECTION CAREFULLY - IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
You agree that you will resolve any disputes or claim with ACTually on an individual basis, and that any claims arising out of or in connection with the website and/or terms and conditions will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. You further agree not to participate in any consolidated, class or representative proceeding brought by any third party arising out of or in connection with the website and/or terms and conditions.
If any court or arbitrator determines that the preceding waiver is void or unenforceable or that arbitration can proceed on a class basis, then the dispute or claim will not be subject to arbitration.
For any dispute or claim that is not subject to arbitration, you consent to exclusive jurisdiction and venue in the federal courts sitting in the Los Angeles County, California, unless no federal subject matter jurisdiction exists, in which case you consent to exclusive jurisdiction and venue in the state courts sitting in Los Angeles County, California. You hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which you may now or hereafter have to the laying of venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
The Terms of Service constitute the entire agreement between the parties with respect to the use of the Service and supersede all prior and contemporaneous agreements and understandings regarding such subject matter. If any provision of the Terms of Service is declared or found to be illegal, unenforceable or void, then the invalid or unenforceable portion shall be modified in accordance with the applicable law as nearly as possible to reflect the original intention of the applicable provision, and the remaining sections of the Terms of Service shall remain in full force and effect. No right or remedy conferred by the Terms of Service is exclusive of any other right or remedy conferred herein or by law or in equity; rather, all of such rights and remedies are cumulative of every other such right or remedy and may be exercised concurrently or separately from time-to-time. ACTually may provide notice to you relating to the Terms of Service by sending an e-mail to your last known e-mail address, if any, your last known postal address, if any, or posting a notice on the Service, and any such notice shall be deemed given and received on the earlier of the day it is sent to you or the day it is posted on the Service. A printed version of the Terms of Service and of any notices given to you in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The failure of ACTually to insist upon or enforce strict performance by you of any provision of the Terms of Service shall not be construed as a waiver of any provision or right. If ACTually brings any suit against you to enforce the Terms of Service or otherwise in connection with your use of the Service, you agree that if ACTually prevails in such suit ACTually shall be entitled to recover all costs and expenses incurred in such suit including reasonable attorneys' fees. Use of the Service is unauthorized in any jurisdiction that does not give effect to all provisions of the Terms of Service.