Actimator's Terms of Use

If you are under the age of 18, please review Actimator’s Terms of Use with your parent or guardian to make sure that you and your parent or guardian understand them. For purposes of this agreement, “Parent” or “Guardian” shall refer to any legal parent or guardian, or any educator offering an Actimator course to his or her students within an educational program, school, or other class. If you are age 13 or younger please click here.

The following Terms of Use is an agreement (“Agreement”) between Actimator LLC (“Actimator”, “us”, “our”, and “we”), a Colorado Limited Liability Company, and any person or other legal entity, (“you”, “your” or “account holder”) who wishes to use the Actimator Website (the “Site”, and together with the services provided on the Site, the “Service”), whether as the holder of an account on the Site (“Member”) or merely to browse the Site (Members and other users of the Site are collectively described in this agreement as “Users”). Actimator and Users shall be collectively referred to as “the Parties.”

This Agreement consists of these terms and conditions, and any other terms incorporated in these terms and conditions by reference, and any information that you provide to us as part of our registration processes. Please read this Agreement carefully. By using the Site in any way, you affirm that you have read, understood, and accepted the terms and conditions in the Agreement. Feel free to look around, get started, and build some games. If you do not agree with any of these conditions, please do not use the Site or its Services.

Your privacy is very important to us. Please read our Privacy Policy, which identifies how Actimator uses, collects, and stores information it collects through the Service. By using Actimator, you additionally agree to the terms and conditions covered in Actimator’s Privacy Policy.

Sometimes change is necessary. Actimator may change this Agreement from time to time. You can always find the latest version of this Agreement at https://www.actimator.com/terms-of-use. The date of the most recent revisions will appear at the bottom of this page. Your continued use of the Site and its Services constitutes your acceptance of any changes to or revisions of the Agreement.

User Accounts

In order to use all of Actimator’s Services, you will need to create a Member account. Every User will be required to have a personal account in order to use the Site effectively and efficiently and to ease the development process of User Content. To create an account, you will be required to submit certain requested information to Actimator, including a correct email address. The information you provide must be true, accurate, current, and complete.

Please keep in mind that you are responsible for any activity and charges that occur under your username and Member account. You may not transfer your Actimator account or use another person’s account without permission from that person. Please keep your Member password secure and notify Actimator immediately of any breach of security or unauthorized use of your Member account. You are solely responsible for any use of your account, even if your account is used by another person. Please also be aware that if any use of your account violates the Agreement, your account may be suspended or deleted.

Users must maintain the confidentiality of any personal or personally identifiable data the User uploads and stores on the Site and Users are responsible for complying with all applicable laws governing collection, storage, processing, use and transfer of such information. International Users are welcome, and must agree to comply with all local laws regarding online conduct and acceptable content. Users are solely responsible for their conduct on the Site and use of the Service, and for any content, including but not limited to designs, text, graphics, pictures, video, information, applications, software, music, sound and other files (collectively, “Content”), that the User contributes to the Site. In order to provide a pleasant experience to all members of the Actimator community, do not abuse, harass, threaten, impersonate or intimidate other Users of the Service. The Service may not be used for any illegal or unauthorized purpose. We’re here to help you and your friends play and build games, so let’s just keep it at that.

We welcome and encourage all Users to take our trial version. It’s available for [how long?] and, as a guest, you can access services available on the Site including [what can you access]. If you are under 13 years old or younger we ask that you not take the Actimator trial version until after your parent or guardian has read these Terms of Use and our Privacy Policy. Please see the Privacy Policy for more information regarding the information Actimator collects from Users in order to offer the trial version [link].

User Communications, Content, and Conduct

Actimator asks that Users respect other Users whenever they use Actimator Services. Do not create or submit unwanted email or other messages to any Users of the Site. You may not collect or harvest any personally identifiable information, including account names, from the Site. You may not use the Service to upload, transmit or link to Prohibited Content. Generally, Prohibited Content includes Content or other material that Actimator believes:

  • is abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, encourages conduct that would violate or violates any law, or is harassing, hateful, racially or ethnically offensive, or otherwise inappropriate;
  • •comprises material that is copyrighted or protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless express written permission of the owner is obtained to use the material and to grant all of the license rights granted herein;
  • violates or otherwise encroaches on the rights of others;
  • contains viruses, worms, corrupt files, Trojan horses or other forms of corruptive code, or any other content which may compromise the Service;
  • advocates illegal activity;
  • harms anyone, including minors; or
  • provides a link to any of the above.
  • Actimator has the sole discretion to determine whether Content is Prohibited Content, and any Content submitted to the Service may be subject to examination from time to time. Actimator strives to respect the creative content of all Users, but we also want to provide an enjoyable educational experience. To that end, although Actimator does not and will not examine or otherwise review all Content submitted or transmitted to the Service, Actimator may delete, move, and edit Content for any reason, at any time, without notice. Actimator in no way guarantees the accuracy, non-infringement, quality or appropriateness of Content available through the Service.

    Feel free to help us maintain an innovative, friendly, and respectful community. You may contact Actimator if you believe or find Content to violate the guidelines set forth above. Actimator will review such complaints and determine in its discretion if Content must be deleted, moved, or otherwise edited. However, those making complaints must understand that Actimator respects the creative choices of its Users and cannot guarantee that remedial actions will be taken. Although Actimator requires all users to comply with this Agreement, some inappropriate user-generated content may unfortunately be submitted and displayed on the Site. You understand that when you use Actimator you may be exposed to user-generated content that you find objectionable or offensive. Let us know, though! If you believe any content may violate these guidelines, please let us know by sending an email to [email protected] You only need to make a report once. The Actimator team reviews reported content in a timely manner.

    You may not use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Service in a manner that sends more request messages to the Actimator servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser in ordinary and customary usage.

    Any breach or non-compliance of any of these User Conduct terms will entitle Actimator to immediately and without notice (i) terminate any Member account, which could result in the permanent loss of any data in the account and any User Content of the Member, and (ii) block you from any further use of the Site and Service.

    In addition to reviewing reported user-generated content, Actimator reserves the right, but is not obligated, to monitor all uses of the Site and Service. Actimator may edit, move, or delete any content that violates the Agreement, without notice.

    All user-generated content is provided as-is. Actimator makes no warranties about the accuracy or reliability of any user-generated content available through the Site or Service.

    Actimator does not endorse any views, opinions, or advice expressed in user-generated content. You agree to relieve Actimator of any and all liability arising from user-generated content.

    Educators: Actimator Courses

    Actimator is available as an educational platform you can use in your classes. If you’re an educator and would like to set up such an arrangement, please follow the instructions available on the Actimator Site. The educator will create an online class and Actimator will provide the educator with a code for his or her class. The educator then shares the code with his or her students who can use it to enroll in the educator’s class. In other words, the educator controls the class and who may enroll in it. If you have any questions about this process or the types of services Actimator has available for educators, please contact Actimator at [email protected]

    Suspension and Termination of Accounts

    Actimator has the right to suspend your account for violations of the Terms of Use or Community Guidelines, or for interfering with Actimator’s Privacy Policy. Repeat violators may have their account deleted. The Actimator Team reserves the sole right to determine what constitutes a violation of the Terms of Use or Community Guidelines. Actimator also reserves the right to terminate any account used to circumvent prior enforcement of the Terms of Use.

    If you want to delete or temporarily disable your account, please email [email protected]

    User-Created Content: Proprietary Rights

    As you’ve probably already figured out, Users can create computer games by using Actimator’s Services and share it on the Site. The Site allows Members to create their own games by assembling Content that is available on the Site, or by uploading Content, including but not limited to images and audio files, and to share those games through the Site with other Users. The Site also allows members to work collaboratively. In order for Activator to make the Content provided by Users (“User Content”) available on the Site for such purposes, and to operate, market and promote the Service, we need the right to make use of such User Content in accordance with and subject to this Agreement.

    In order to share and promote the games created on the Site, any game created through Actimator is automatically licensed to Actimator. Therefore, unless otherwise agreed to in writing by both the User and Actimator, by contributing User Content to the Site or creating it on the Site you automatically grant to us an irrevocable and perpetual, non-exclusive, transferable, fully-paid, royalty-free, worldwide license, by ourselves or with others, to use, copy, distribute, publicly perform, publicly display, print, publish, republish, excerpt (in whole or in part), reformat, translate, modify, revise and incorporate into other works, that User Content and any works derived from that User Content, in any form of media or expression, in the manner in which the Service permits User Content to be used, and to license or permit others to do so.

    To further enable sharing and collaboration among users, the license grants sublicensing the games to a user or third-party organization, however Actimator deems appropriate. This license also grants us the right to sublicense that User Content to other Users to permit their use of that User Content in a manner in which the Service permits User Content to be used.

    We may from time to time change the manner in which User Content can be used by the Service, and if we do so any license you have granted to us shall automatically be extended to new uses permitted by the Service. If you contribute User Content to the Site, it is your responsibility to check the Site to review how we permit User Content to be used.

    To discuss proprietary rights to User Content and other Content on the site, we encourage Users to contact us [email protected] In certain circumstances Actimator may be interested in and willing to come to some other written agreement with a User regarding intellectual property and intellectual property rights. Actimator’s goal is to help its Users learn to create games in an enjoyable way. With that goal in mind, Actimator certainly would not want to obstruct or hinder any real opportunities for the User.

    Actimator reserves the right to remove Content from the Site at any time, without notice, for any reason, or for no reason, in its sole discretion.

    You represent and warrant to Actimator that (a) you are the sole owner, author and copyright owner of User Content you contribute to the Site or you have written permission from the author, owner or copyright owner to make such User Content available to the Service as “User Content”, and (b) such User Content does not infringe upon any third party rights (including but not limited to any copyright, patent, trademark, trade secret, other intellectual property rights, moral rights, privacy rights or publicity rights); (c) such User Content complies with this Agreement and does not contain any defamatory, libelous or obscene material; (d) such User Content does not violate any applicable laws, regulations, or contain any false statements or misrepresentations; and (e) you have the written consent, release, and/or permission of each and every identifiable individual person, or the owner/author of any objects or work in such User Content to use the name or likeness of each and every such identifiable individual person, object or work, to enable inclusion and use of such User Content in the manner contemplated by the Service and this Agreement. As Actimator allows multiple users to create a game collaboratively, for the content that is used in a game, the owner of that game, i.e., the creator of the project is held responsible for maintaining the copyrights and being able to demonstrate them if and when requested by the Site or a third-party at any time.

    Use of Embedded Google Images Search Actimator’s game design environment provides a feature to search Google Images for an image using a name and immediately save it into the assets section of a game project. This service is provided by Google Website to third party Websites such as Actimator and Actimator will continue to offer it as long as the service is offered by Google or until Actimator decides to. The embedded Google Images Search is provided to users for convenience and rapid prototyping, for educational purposes, to allow learners to focus on their game design and programming, rather than searching for image assets. However, Actimator cannot guarantee that the images saved to a game project comply with this Agreement. Even without this feature, a member is capable of achieving the same result by searching an image online or using image search engines to locate an image, save it to their desktop, and upload it to their games. As a member, you are obliged to use the content that you have the rights to use and comply to this Agreement. If you are using the embedded Google Images Search, you are responsible for acquiring the right to use the images you save into your project and determining for yourself whether you are required to do so.

    Please Read Google's Privacy Policy and Terms of Service.

    Digital Millennium Copyright Act (DMCA)

    If you are a copyright holder and believe that content on Actimator Site violates your rights, you may send a DMCA notification to [email protected] For more information, including the information that must be included in a DMCA notification, see our full DMCA Policy and the text of the DMCA, 17 U.S.C. § 512. If you are an Actimator User and you believe that your content did not constitute a copyright violation and was taken down in error, you may send a notification to [email protected] Please include:
  • Your Actimator username and email address
  • The specific content you believe was taken down in error
  • A brief statement of why you believe there was no copyright violation (e.g., the content was not copyrighted, you had permission to use the content, or your use of the content was a “fair use”).
  • Actimator’s Intellectual Property

    Except as otherwise expressly indicated, the Site, and all text, images, marks, logos and other content contained therein, including, without limitation, our logo and all designs, text, graphics, pictures, information, data, software, sound files, other files, Content and the selection and arrangement thereof are the proprietary property of Actimator or its licensors and are protected by the United States and international copyright laws. All rights to the Content are expressly reserved, and except for licenses expressly granted in this Agreement no right to any Content on the Site is granted to you. You have a limited right, for the term of and subject to this Agreement, to use Content provided on the Site (i) only in connection with and during your use of the Site in accordance with this Agreement, (ii) only for the purpose for which, and in the manner in which, the Site makes such Content available (e.g., building games on your own or with others and discussing them and other gaming topics) and, unless the Site expressly permits other uses, only for personal, non-commercial use, and (iii) only on payment therefor as required by the Site. This right is not exclusive or transferable, and may be terminated at any time by Actimator.

    Payments

    Basic use of the Service is free. Certain products and services are available through the Service on payment of a fee or fees. You agree that you will pay for all products and services you purchase through the Service, and that we may charge your credit card or other form of payment for any products and services purchased and for any additional amounts (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account. Payments are handled through third-service providers [which ones?]. You are responsible for the timely payment of all fees and for providing us with a valid credit card (or other form of payment accepted on the Site) for payment of all fees. All fees will be billed to the credit card or other form of payment you designate during the registration or payment process. If a payment is not received or payment method is declined, the User attempting to make such a payment forfeits the ownership of any items purchased. If Actimator does not receive the required payment from a User, purchased services will be canceled. Your total price will include the price of the product or service plus any applicable sales tax; such sales tax is based on the bill-to address and the sales tax rate in effect at the time you purchase the product. Prices offered via the Service may change at any time, and the Service does not provide price protection or refunds in the event of a price reduction or promotional offering. Refund Policy. For the courses organized and offered by Actimator directly to users under the Learner plan, the User has the right to cancel participation in the course and receive full refund until 5 days after the first day of the class. In any other cases, all sales are final and non-refundable, including in the event of termination of your account on the Site as covered in this Agreement.

    Third Party Websites

    Content on Actimator, including user-generated content, may include links to third party websites. Actimator is not capable of reviewing or managing third party websites, and assumes no responsibility for the privacy practices, content, or functionality of third party websites. Actimator makes no guarantees about the accuracy, currency, suitability, or quality of such Content. Actimator assumes no responsibility for unintended, objectionable, infringing, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, and third parties. You agree to relieve Actimator of any and all liability arising from third party websites.

    Responsibility. Your interactions with other Users or third parties, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the other User or third party. The foregoing also applies to any interaction between Members (including the contribution and/or receipt of any Content) in the course of using the Site. You agree that Actimator will not be responsible for any loss or damage incurred as the result of any such interactions and dealings listed in this section or with respect to any other User’s use or disclosure of your personally identifiable information. If there is a dispute between you and any third party (including any User) in relation to the use of the Site, we are under no obligation to become involved; however, Actimator reserves the right to monitor disputes between you and other Users. You hereby release Actimator, its directors, officers, employees, agents and shareholders (the “Actimator Parties”) from all claims, demands, losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that are either directly or indirectly related to or arise from any interactions with other Users or their Content or any third party through or in relation to the Site or the Service.

    Third-Party Links.

    The provision of links to other websites or locations is for your convenience and does not signify our endorsement of these other websites or locations, or their content. Other Users within the Actimator community may also post links to other Websites or locations. Actimator has no control over and does not review and cannot be responsible for these outside websites or their content. Please be aware that the terms of our Privacy Policy do not apply to these outside websites.

    We urge Users to use caution when using links to third-party sites and to read the Terms of Use and Privacy Policies provided by those sites. If you believe a link posted to the Site or made available through User Content violates the terms of this Agreement, please contact Actimator at [email protected] Please provide information that will allow Actimator to locate the link and review it.

    Indemnification and Liability Disclaimers

    THE INFORMATION, SOFTWARE, PRODUCTS, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. CHANGES ARE PERIODICALLY MADE TO THE INFORMATION HEREIN. ACTIMATOR AND/OR ITS SUPPLIERS MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE SITE AT ANY TIME.

    ACTIMATOR AND/OR ITS SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND ACCURACY OF THE INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS CONTAINED ON THE SITE FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL SUCH INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. ACTIMATOR AND/OR ITS SUPPLIERS DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THIS INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS OF A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACTIMATOR, AND/OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE SITE, WITH THE DELAY OR INABILITY TO USE THE SITE OR RELATED SERVICES. THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES AND RELATED GRAPHICS OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ACTIMATOR OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SITE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SITE.

    You agree to indemnify Actimator and all its affiliates, employees, representatives, third party service providers, and members of their governing boards (all of which are “Actimator Parties”), and to defend and hold each of them harmless, from any and all claims and liabilities (including attorneys’ fees) arising out of or related to your breach of the Terms of Use or your use of Actimator’s Site or Services.

    The Actimator Parties shall not be liable to you or any third parties for any direct, indirect, special, consequential or punitive damages of any kind, regardless of the type of claim or the nature of the cause of action, even if the Actimator Team has been advised of the possibility of such damages.

    Disclaimer of Warranty

    Actimator is provided “as is,” and the Actimator entities hereby expressly disclaim any and all warranties, express and implied, including but not limited to any warranties of accuracy, reliability, title, merchantability, non-infringement, fitness for a particular purpose or any other warranty, condition, guarantee or representation, whether oral, in writing or in electronic form, including but not limited to the accuracy or completeness of any information contained therein or provided by Actimator. The Actimator team, and their third party service providers do not represent or warrant that access to Actimator will be uninterrupted or that there will be no failures, errors or omissions or loss of transmitted information, or that no viruses will be transmitted through Actimator services.

    Dispute Resolution

    Mediation.

    Parties shall first attempt to resolve any dispute related to this Agreement or its Terms together and in an amicable manner. If unable to come to an agreement, the parties shall then attempt to resolve any dispute related to this agreement by mediation. If a dispute arises and both parties agree to mediation, the parties shall arrange to meet on a specified date in order to obtain a mutually agreed upon mediator. If unable to agree upon an acceptable mediator, either party may a reasonable notice to the other party of their intent to ask a mediation service to appoint a neutral mediator. The other party shall have 30 days to respond before the mediation service is used to select a neutral mediator. The mediation shall be conducted under the mediation rules of the selected mediation service.

    Arbitration.

    Any disputes remaining unresolved after mediation shall be settled by arbitration conducted in Denver County, Colorado utilizing a mutually agreed arbitrator or arbitration service. The parties shall arrange to meet on a specified date in order to obtain a mutually agreed upon arbitrator. If unable to agree upon an acceptable arbitrator, either party may notify the other party of their intent to ask an arbitration service to appoint a neutral arbitrator. The other party shall have 30 days to respond before the arbitration service is used to select a neutral arbitrator. The arbitration shall be conducted under the arbitration rules of the selected arbitrator or arbitration service. Both parties shall be entitled in any arbitration to conduct reasonable discovery, including document production and a reasonable number of depositions not to exceed five per party. The prevailing party shall be entitled to recover its costs and reasonable attorney's fees, as determined by the arbitrator. The arbitrator shall be required to follow the law and act in the best interest of all parties. Any arbitration decision or judgment is not automatically binding upon the parties unless otherwise agreed to in writing by all parties before the decision or judgment is made.

    Choice of Law, Venue, and Jurisdiction

    You agree that these Terms of Use, for all purposes, shall be governed and construed in accordance with the laws of the State of Colorado. Any action based on, relating to, or alleging a breach of the Terms of Use must be brought in a state or federal court in Denver County, Colorado. In addition, both parties agree to submit to the exclusive personal jurisdiction and venue of such courts. Actimator is offered by the Actimator Team from its facilities in the United States. The Actimator Team makes no representations that Actimator is appropriate or available for use in other locations. Those who access or use Actimator are responsible for compliance with local law.

    Choice of Language

    Actimator intends that this Agreement and other communications made by Actimator are interpreted and understood by their natural English reading. If the Actimator Team provides you with a translation of the English language version of these Terms of Use, the Privacy Policy, or any other policy, then you agree that the translation is provided for informational purposes only and does not modify the English language version. In the event of a conflict between a translation and the English version, the English version will govern.

    No Waiver

    No waiver of any term or provision of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and the Actimator Team’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

    Entire Agreement

    This document constitutes the entire Terms of Use and supersedes all previous agreements with the Actimator Team relating to the use of Actimator.

    Contact Actimator

    Actimator welcomes your questions or comments regarding the Terms or Use or anything else you wish to ask about. Please email us at [email protected] If you are an Educator or Educational Institution that would like to discuss using Actimator’s Services, please contact us.

    This document was last modified on October 8, 2014 and is effective as of this date.