TERMS OF SERVICE
LAST UPDATE: MARCH 2015
THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU AND APPTATION INC. (THE “APPLICATION PROVIDER”, or “us”) STATING THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF “THE SERVICE” or “THE SERVICES” (AS DEFINED BELOW). PLEASE READ THIS AGREEMENT CAREFULLY. BY PURCHASING, DOWNLOADING, INSTALLING AND/OR USING THE SERVICE, YOU ARE INDICATING THAT YOU AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OR UNDERSTAND THESE TERMS AND CONDITIONS, DO NOT PURCHASE, DOWNLOAD, INSTALL AND/OR USE THE SERVICE.
1.0. The Service
The Service consists of, together:
a. the Animate Me mobile application (the “App”); and
b. the Animate Me web uploader tool, available at http://www.animatemeapp.com/sounds (the “Website”).
2.0. Scope of License: The Service is licensed, not sold, to You for use only under the terms of this license. The Application Provider reserves all rights not expressly granted to You. This license granted to You for the Service by the Application Provider govern your access to and use of The Service and any sound recordings, videos, information, text, graphics or other content materials uploaded, downloaded or appearing on the Service, and is limited to a non-exclusive, non-transferable license to use The Service. You may not rent, lease, lend, sell, redistribute or sublicense The Service. You may not copy, except as expressly permitted by this license, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with The Service. Any attempt to do so is a violation of the rights of the Application Provider and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Application Provider that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
3. Access/Use of the Service
3.1. You can access the Service either:
a. via the App, by downloading the App, creating an account, either selecting a sound recording from the Animate Me catalogue or uploading a sound recording through The Website, and then recording a video with that sound recording. This will result in the sound recording being combined with the video, creating an “Animation”. Animations are stored in your device’s local memory and can be shared with your contacts via third party services, such as Facebook, Facebook Messenger, iMessage, Instagram or Vine.
3.2. To use the service you must be eighteen (18) years old or older. By using the Service you agree to the Application Provider that you accept these Terms and that: (a) you are 18 years of age or over, or (b) you are 13 years of age or over and have permission to use the Service from your parent or legal guardian. If we reasonably believe that you do not sufficiently fulfil these criteria, we may suspend your use of the Service until you have provided us with acceptable proof of age.
3.3. You will need to register with the Application Provider to access certain functions fn the Service. To register, you must provide the Application Provider with your email address, username and password of your choosing. Your username will appear alongside any content you upload to the Service. You are responsible for all content on The System that is associated with your username. You must make sure that your username complies with these Terms.
3.4. We advise parents that the content made available on the Service is user-generated and may not be suitable for children under 18.
3.5. You are responsible for your account with The Application Provider and any activity that takes place on your account, whether or not such activity was authorised by you. You must ensure that the details you provide are correct and kept up to date and that your password is, and remains, secure and confidential. You must inform us of any changes to the details you provided when registering with us.
3.6. You may encounter user generated content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search may automatically and unintentionally result in objectionable material. Nevertheless, You agree to use The Services at Your sole risk and that the Application Provider shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable.
3.7. We reserve the right to suspend or remove your account, cancel, reassign or disable your username or password and/or prohibit your use of the Service, without prior notice, if we believe there may have been a breach of security or if activities occur on your account that we believe breach these Terms.
3.8. Access to and use of the Service requires a compatible device and internet connection. We cannot guarantee that the Service will work with all devices or areas.
4. User-Generated Content
4.1. You are solely responsible for your use of the Service and any sound recordings (“Sound Recordings”), Animations, videos, words, quotes, information, messages and any other content that you upload to or create via the Service, whether privately transmitted or made publicly available (together, “User Content”). You retain ownership of your User Content.
4.2. Sound Recordings that you upload to the Service are made public to other users of the Service. By uploading Sound Recordings, you understand and agree that your username will be made public in relation to each Sound Recording and that you grant the Application Provider and the Application Providers affiliates the right to display and otherwise use your user name in connection with the Sound Recordings.
4.3. Any Animations or videos that you record with The Application in connection with the Service are stored locally and are not uploaded to the Service.
4.4. You understand and agree to comply with all applicable laws in relation to your use of the Service and User Content.
4.5. You shall at all times ensure that your User Content does not:
a. contain any content, information or material that infringes the rights of any third party including copyright, trade mark rights, confidential information or rights of privacy;
b. violate any applicable laws;
c. contain any content or material that is offensive, abusive, defamatory, libellous, derogatory, bullying, discriminatory, obscene, violent, sexually explicit, indecent, which promotes or encourages violence, terrorism or any other illegal acts or which is likely to harass, upset, embarrass, alarm, inconvenience or annoy any person;
d. in any way promote or incite anyone to commit or assist in any unlawful or criminal activity or anti-social behaviour, or encourage activities which could endanger the safety or wellbeing of others;
e. identify any person without their consent, or the consent of their parent or legal guardian if they are under 18 years of age;
f. disclose anyone’s personal contact details or invade their privacy;
g. contain any viruses or other malicious or harmful programs; or
h. include any advertising or promotional messages.
4.6. Furthermore, you understand and agree that you will not do or attempt to do, or cause any third party to do or attempt to do, any of the following in connection with your use of the Service:
a. Use the Service or User Content available on the Service other than as expressly permitted by these Terms and the normal functionality of the Service;
b. transmit other people’s personal and/or confidential information, such as credit card numbers, account passwords etc.;
c. use the Service for any illegal purpose, in an unlawful manner or in any manner inconsistent with these Terms;
d. impersonate or pretend to be anyone else through your use of the Service;
e. use the Service in a way that could damage, disable, overburden, impair or compromise the Service, our systems or security or interfere with other users;
f. use any programme or other means, including but not limited to scripts, spiders and robots, whether manually or automatically, to extract, download, index, mine, scrape, reproduce or circumvent the presentation, operation or intended use of the Service or any features or functions of it;
g. copy, modify, decompile or otherwise interfere with any part of the Service;
h. make alterations to, or modifications of, the whole or part of the Service, or permit the Service or any part of it to be combined with, or become incorporated in, any other programs;
i. hack into, or insert malicious code, including viruses, or harmful data, into, the Service; or
j. infringe our intellectual property in relation to your use of the Service.
4.7. You acknowledge and agree that we are merely a passive conduit and hosting service for User Content and that we play no active role in the distribution or presentation of User Content.
4.8. We are under no obligation to monitor User Content posted on the Service and we cannot and do not take any responsibility for such User Content, nor do we endorse, support or guarantee the completeness, accuracy or reliability of any User Content or communications posted via the Services or opinions expressed therein. Use of or reliance on any User Content or materials posted via the Service or obtained by you through the Service is at your own risk.
4.9. The Application Provider shall not be liable in any way for User Content, including, but not limited to, any errors or omissions contained therein, or any loss or damage of any kind incurred as a result of the use of any User Content posted, emailed, transmitted or otherwise made available via the Service or broadcast elsewhere.
4.10. If we, in our sole discretion, believe that there has been a breach of these Terms, or we have reasonable grounds to believe that you are likely to breach these Terms, we may take any action we think is necessary to protect the Service and its users. We may withdraw your right to use the Service, remove your User Content from the service, take legal proceedings against you (for example, if we have had to pay damages because of your User Content, we will claim to get that amount back) and other action we deem appropriate.
6. Third Party Materials. The Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge and agree that the Application Provider is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. The Application Provider does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You.
7. Copyright, Reporting and Notice & Takedown Policy
7.1. The Application Provider respects the intellectual property rights of others and expects users of the Service to do the same.
7.2. If you discover any Content using the Service that you believe infringes your copyright, please report this to us in writing including the following information:
a. a statement that you have identified Content on the Platform that infringes your copyright or the copyright of a third party on whose behalf you are entitled to act;
b. a description of the copyright work that you claim has been infringed;
c. a description of the Content that you claim is infringing and details of where on the Platform the Content that you claim is infringing may be found;
d. your contact information including your full name, address and telephone number and a valid email address on which you can be contacted;
e. a statement by you that you have a good faith belief that the disputed use of the material is not authorized by the copyright owner, its agent, or the law; and
f. a statement by you that the information in your notice is accurate and that you are authorised to act on behalf of the owner of the exclusive right that is allegedly infringed.
g. In addition, if you wish for your notice to be considered as a notice pursuant to the United States Digital Millennium Copyright Act 17 U.S.C. §512(c), please also include the following:
h. a declaration, under penalty of perjury, that you are the owner or authorised to act on behalf of the owner of the exclusive copyright that is allegedly infringed; and
i. your electronic or physical signature (which may be a scanned copy).
7.3. Your notice should be sent to us or our designated copyright agent by email to firstname.lastname@example.org or by mail to the following address:
2298 Wagner Cres.
Burlington, Ontario. Canada. L7R1S9
Attn: Copyright Team
9.0. Termination. The license is effective until terminated by the Application Provider. Your rights under this license will terminate automatically without notice from the Application Provider if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Service, and destroy all copies, full or partial, of the Service.
11.0. Intellectual Property. You agree that the Service contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use. No portion of the Service may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Service, in any manner. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that the Application Provider or Service provider is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services.
12.0. Amendment. The Application Provider reserves the right to change, suspend, remove, or disable access to any part of its services at any time without notice. In no event will the Application Provider be liable for the removal of or disabling of access to any such services. The Application Provider may also impose limits on the use of or access to certain services, in any case and without notice or liability.
13.0. NO WARRANTY. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED "AS IS" AND “AS AVAILABLE”, AND WITHOUT WARRANTY OF ANY KIND, AND THE APPLICATION PROVIDER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. APPLICATION PROVIDER DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED OR PROVIDED BY, THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY APPLICATION PROVIDER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE SERVICES PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. 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.
14.0. LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE APPLICATION PROVIDER BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF THE APPLICATION PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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 Application Provider’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations shall be deemed to be commercially necessary and voluntary allocation of liability and will apply even if the above stated remedy fails of its essential purpose.
15.0. Indemnification. You agree to indemnify, defend, and hold the Application provider, its affiliates and their respective successors and assigns, officers, directors, employees, agents, licensors, representatives, advertisers, service providers, and suppliers harmless against any and all claims, demands, actions, losses, damages, costs and expenses (including reasonable attorneys’ fees), arising out of or relating to your (a) breach or violation of this Agreement, (b) infringement, misappropriation or any violation of the rights of any other party, (c) violation or non-compliance with any applicable law, rule or regulation, and (d) use, alteration or export of the Services (or any component thereof) in violation of this Agreement. Application provider reserves the right to assume the exclusive defense and control of any claims or actions subject to indemnification by you and all negotiations for its settlement or compromise, and you agree to fully cooperate with us upon our request.
16.0. Support. The Application Provider is solely responsible for any and all product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Service to conform to any applicable warranty, You may notify Apple, and Apple may refund the purchase price for the Services to You; and that, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Services, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the Application Provider's sole responsibility. You acknowledge that the Application Provider, not Apple, is responsible for addressing any of Your claims or any third party relating to the Services or Your possession and/or use of that Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Any of Your questions, complaints or claims with respect to the Services should be directed to Application provider's support resources.
17.0. Availability. The Application Provider reserves the right to modify, update, supplement, limit, discontinue, remove or disable access to the Services without notice to you and neither the Application Provider, its affiliates nor any of their respective licensors shall be liable to you or any third party should it exercise such rights. From time to time, the Application Provider may make available updates or upgrades to the Services via software download or other means. Such download may occur automatically without the need for any act on your part, or it may require you to manually download an update or upgrade through the same source from which the Services was originally downloaded. Certain functions of the Services may be modified or discontinued as a result of any such update or upgrade, or may not be available if you have not downloaded all updates and upgrades made available by the Application Provider or otherwise.
18.0. Export. You may not use or otherwise export or re-export the Services except as authorized by United States law and the laws of the jurisdiction in which the Services was obtained. In particular, but without limitation, you warrant that You are npt and that You will not export the Services (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law.
19.0. Choice of Law and Forum. It is agreed that the terms and operation of this licence shall be governed and construed by and enforced in accordance with the laws of the Province of Ontario, without regard to the terms of any long-arm statute, and any disputes concerning this Agreement shall be heard at Toronto, Ontario. Your use of the Services may also be subject to other local, state, national, or international laws.
Effective: March 2015
Last Update: March 2015