Terms and Conditions of Use Agreement
CELLFISH MEDIA LLC Websites and Services:
Last Updated: February 27 2007
Subject to the terms and conditions set forth in this Agreement, CELLFISH grants you a non-exclusive, non-transferable, limited right to access, view, use and display the CELLFISH Web Sites and CELLFISH Services and the materials thereon on your computer, mobile phone, or other internet compatible or mobile device, provided that you comply fully with the terms and conditions of this Agreement. The CELLFISH Web Site and the CELLFISH Services are for your personal, internal and noncommercial use only (except where specifically and expressly permitted and/or stated otherwise in connection with a particular Service).
As between you and CELLFISH, CELLFISH owns, solely and exclusively, all rights, title and interest in and to the Site and Services, all material and content thereon (other than that which users may submit or provide to us), including without limitation text, images, software, games, audio and video clips, illustrations, graphics, other visuals, code, data and materials thereon, the look and feel, design and organization of the Site and Services, and the compilation of the content, code, data and materials on the Site and Services (collectively the "Content"), including but not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. For the avoidance of doubt, the CELLFISH Web Site and Services and the Content are protected by U.S. copyright laws, international conventions, and other laws. You agree to abide by all restrictions displayed on the CELLFISH Web Site and Services. Your use of the Site or Services does not grant to you ownership of any Content you may access or use on or through the Site or the Services.
Except as expressly set forth herein or expressly permitted in connection with a particular Service, you may not download, display, copy, reproduce, create derivative works from, transmit, sell, distribute, publish, broadcast or in any way otherwise exploit the CELLFISH Web Site or the CELLFISH Services or any Content thereon for any public or commercial use without the express written permission of CELLFISH or the applicable rights holder. You may view and download single copies only of Content from the CELLFISH Web Site or Service (unless otherwise specifically indicated) for your personal, non-commercial use only, provided that you maintain all copyright and other notices as they are contained and displayed therein. CELLFISH will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution. You may obtain more information on the copyrights, trademarks, and service marks of CELLFISH and its affiliates by viewing the copyright and trademark notices posted on the CELLFISH Web Site, the CELLFISH Services and the Content.
Prohibited User Conduct
You warrant and agree that, while using the Site and Services and the various features offered on or through the Site and Services, you shall not: (a) impersonate any person or entity or misrepresent your affiliation with any person or entity; (b) insert your own or a third party's advertising, branding or other promotional content into any of the Content or Services (for example, without limitation, in a feature, download, product or service downloaded from CELLFISH or otherwise through the Services), or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes (except as expressly permitted in connection with a particular Service); or (c) attempt to gain unauthorized access to other computer systems through the Site or Service. You shall not: (i) engage in spidering, "screen scraping," "database scraping," harvesting of e-mail addresses or other personal information, or any other automatic means of obtaining lists of users or other information from or through the CELLFISH Web Site or the CELLFISH Services, including without limitation any information residing on any server or database connected to the CELLFISH Web Site or Service; (ii) obtain or attempt to obtain unauthorized access to computer systems, materials or information through any means; (iii) use the CELLFISH Web Site or the CELLFISH Services in any manner with the intent to interrupt, damage, disable, overburden, or impair the CELLFISH Web Site or the Services (including, without limitation, sending mass unsolicited messages or "flooding" servers with requests); (iv) use the Site or the Services or features in violation of CELLFISH's or any third party's intellectual property or other proprietary or legal rights; or (v) use the Site or the Services in violation of any applicable law.
General Rules Applicable to Use of All CELLFISH Services
The CELLFISH Services (including, without limitation, all Downloads Services, Chat Services, Information/Advice Services and Social Networking Services) (each as defined below) may enable you to send messages, content and information to, and receive messages, content and information from, the Service, CELLFISH operators and other wireless device users or other members of the Services. You may use the Services only in accordance with the terms and conditions of this Agreement (including any amendments or revisions thereto) and any additional terms that may be presented in connection with a particular service or feature or function of a Service. You represent that you are the owner or authorized user of the wireless device you use to sign up for and receive the Services, and that you are authorized to approve any applicable carrier and premium charges in connection with your use of the Services.
To use the Chat Services, you must be 18 years of age or older, and to use the other CELLFISH Services, you must be 13 years of age or older, depending upon which Service you choose and your carrier restrictions, if any). To use the Services, you must reside in the United States (including its territories, commonwealths and possessions). If you are a user between the ages of 13 and 18, please review these Terms and Conditions with your parent or guardian. Your parent or guardian should agree to these Terms and Conditions on your behalf. Parental discretion is advised for all users under 18.
The CELLFISH Services are compatible only with the wireless carriers listed on the particular Site in connection with the particular Service, which lists may change from time to time. You must first register and provide all required information, which may include your name, address, telephone number, wireless carrier, wireless phone number, SMS address, email address and billing information (either your credit card information or mobile service carrier information if applicable fees will be billed through your carrier, depending on the Service you subscribe to), user name and passwords (collectively, "Account Information"). You agree to update your Account Information as necessary to insure that it is current, accurate and complete. We may also obtain the date, time and content of your messages and other mobile transactions ("Transactional Information") in the course of your use of the CELLFISH Services. We may also access the content of your wireless account with your carrier for the purpose of identifying and resolving technical problems and/or service-related complaints.
Certain Content may be made available for streaming only. ("Streaming" content, for example a musical sound recording, is initiated by selecting content while you are online, at which time an encrypted file will be transmitted to your computer for a contemporaneous performance of the recording which does not create a download or residual copy or file on your computer other than as temporarily required to render that performance as in the form of a buffer copy.) You are prohibited from using such "streaming" content in a manner that exceeds the permitted uses described above (for example, and without limitation, by downloading or otherwise copying streaming-only content).
You understand and acknowledge that your wireless carrier may suspend or delay the Services (including, for example, without limitation, the shortcode for certain Services) at any time. CELLFISH will not be liable for lack of availability, any delays, downtime, shortcode downtime, or failures in or discontinuance of your receipt of any messages, Content or any other aspects of our Services, as delivery is subject to effective transmission from your network operator and/or carrier as well as effective processing by your mobile device.
Privacy and Security of Your Account Information
REMEMBER WHEN YOU USE THE SERVICES, MAKE UP A USER NAME THAT DOES NOT DISCLOSE YOUR PERSONAL IDENTITY. DO NOT DISCLOSE YOUR PERSONAL INFORMATION (SUCH AS YOUR REAL NAME, PHONE NUMBER, ADDRESS OR OTHER INFORMATION THAT WOULD ENABLE OTHERS TO IDENTIFY OR LOCATE YOU). WHENEVER YOU DO SO, ALL OF THAT INFORMATION CAN BE COLLECTED AND USED BY OTHERS.
You agree that you will not allow others to use your user name, "nickname," "digital locker," password or other Account Information and you agree to indemnify and hold CELLFISH, its partners, parents, subsidiaries, agents, affiliates and licensors, and your carrier, (and their respective officers, directors and employees) harmless from and against any improper, unauthorized or illegal uses of your account.
Additional Rules for CELLFISH Text Chat Services (collectively, the "Chat Services")
If you elect to participate in a Chat Service that enables you to correspond with other participants of the Chat Service, some of your Account Information and other materials that you provide, such as your "nickname," wireless address, age, gender, profile, photograph, audio and video, may be shared with other participants of the Chat Service who may send messages to your wireless device. Premium and carrier charges apply to messages received by you even if you do not reply to them. You may continue to receive messages until you opt-out of the Service. You alone are responsible for the content and consequences of any of your messages or other materials submitted to the Site or through the Chat Services.
CELLFISH makes available certain Chat Services that are populated by public users (and which do not employ any "animators"). CELLFISH also may offer certain Chat Services that employ operators (also known as "animators") who are paid by CELLFISH (or our partners or affiliates) to participate in chat with users. Not all of CELLFISH's Chat Services are animated. The fact that a particular Chat Service is "animated" will be disclosed to you in the terms and conditions that are displayed on or in connection with the advertising for such Chat Service.
Additional Rules for CELLFISH Services Offering Psychic or Other Information or Advice (collectively, the "Information/Advice Services")
CELLFISH makes available certain Information/Advice Services, whether Psychic-related or otherwise, by which users may be able to obtain certain information or advice via wireless and/or SMS communication with individuals operating the Service, who are employed for such purposes ("animators"). Information/Advice Services are intended for entertainment purposes only. Information or advice provided by animators is not to be relied upon in making important decisions, and is not intended to replace nutritional, medical, psychological, financial, legal or other professional advice or counsel that may be appropriate in your particular case. CELLFISH makes no representations as to the quality, relevancy or appropriateness of any information or advice supplied by this service as applied to your individual circumstances and expressly disclaims any liability for any monetary or other injury or loss you may suffer in reliance upon such information or advice. You should not rely on any information or advice contained in messages received from animators through your use of Information/Advice Services and such messages or comments should not replace consultations, if necessary or appropriate, with qualified professionals, to meet your individual needs. The opinions and other information or advice obtained via Information/Advice Services do not reflect the opinions or positions of CELLFISH. Premium and carrier charges apply to messages received by you even if you do not reply to them. You may continue to receive messages until you opt-out of the Service.
Additional Rules for CELLFISH Services Offering Downloadable Products or Services (collectively, the "Downloads Services") CELLFISH makes available certain Downloads Services, through which certain products or services are available for purchase and download onto your mobile or wireless device. Examples include wallpapers, ringtones and games. You may use such products and services for your own personal, non-commercial use only, and you may not further distribute such products or services except as expressly permitted by CELLFISH. Products and services are provided "AS IS," without warranty of any kind.
Additional Rules for CELLFISH Services Offering Social Networking, Social Commerce and Content Sharing Services (collectively, the "Social Networking Services") CELLFISH makes available certain Social Networking Service(s), which may combine social networking features with content sharing features and social commerce and economic incentives. By registering to become a "Member" of such a Social Networking Service, you agree to at all times abide by all of the rules set forth in this section, as well as all of the other terms and conditions set forth elsewhere throughout this Agreement or displayed in connection with a particular feature of the Service. The Social Networking Service(s) may enable you to share, promote and generate Earnings (as defined below) for content and material that you may upload to the social networking and content-sharing online and mobile community (the "Network") via a web page or your mobile device, as well as third party content found elsewhere on the Network (either provided by other Members of the Social Networking Service, by CELLFISH itself or by brand owners with whom CELLFISH has contracted) (collectively, the "Network Content"). The Network Content may consist of images, music, videos, games and text (e.g., text in the form of blog posts and comments). In addition, you may be able to create your own "profiles" with Network Content that you upload and/or gather from elsewhere on the Network.
The Social Networking Service is designed to function as a social networking community in which users may share their own, original, user-created content, and make recommendations of legitimate purchases of third party copyrighted (or otherwise protected) content from authorized sources. Any use of the Social Networking Services that does not, in CELLFISH's sole discretion, conform to the foregoing, will constitute a violation of this Agreement that may result in the suspension or termination of your membership with the Service. In the event that you upload, post, transmit or otherwise submit any Network Content, which, in CELLFISH's sole discretion, violates any of the terms and conditions of this Agreement (including, for example and without limitation, that which infringes on the intellectual property rights of others), your membership may be subject to suspension or termination by CELLFISH, in our sole discretion, without further notice.
"Digital Locker" and Streaming-Only Content
The Social Networking Service(s) may enable you to obtain a "digital locker" that will automatically store Network Content that you purchase or download from, or upload to, the Network. All Network Content stored in the "digital locker" may be available for you to access either via the Site or your mobile device. When Network Content is accessed via the Site it will be "streamed" only (except for games and pictures, which cannot be streamed, but instead will be only described or watermarked, respectively), and when it is accessed via a mobile device it may be downloaded to that device or browsed using a WAP (Wireless Application Protocol) application. There is no guarantee that the Network Content in your "digital locker" will at all times remain on the Network. All Network Content may be removed or taken down by the content provider or owner, for any reason, at any time. For example, upon the termination, cancellation or expiration of your membership with the Social Networking Service, the contents of your digital locker will no longer be available to you.
Messaging and Promotional Activities
As part of the Social Networking Service, you may have the opportunity to send messages to other Members, your friends, family members or other contacts or social networks outside of the Network, which messages may promote or market your profile(s) and/or the Network Content thereon (whether created and provided by you, or by third parties). You may receive such messages from CELLFISH and other Members as well. You may also be able to interact with other Members via the Network through SMS and e-mail messaging and by uploading, gathering and sharing Network Content with other Members. Premium and carrier charges may apply to SMS messages and other messages sent to wireless devices received by you or received by the individual to whom you sent such messages.
You may not engage in any means of promotional marketing or communication that could in any way violate applicable law governing commercial and promotional communications (for example, without limitation, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (Pub. L. No. 108-187, codified at 15 U.S.C. § 7701 et seq) and the regulations promulgated thereunder (collectively, the "CAN SPAM Act," which is the federal law governing commercial e-mail), and the Telephone Consumer Protection Act, codified at 47 U.S.C. § 227, et. seq. (the "TCPA"), which the federal law governing, among other things, commercial SMS messages). For example, and without limitation of other legal requirements, all promotional e-mails that you send to others must: (i) be clearly and conspicuously identified as an advertisement (unless the recipient has expressly opted-in to receive the message), (ii) contain a physical postal address of CELLFISH, and (iii) contain a clear and conspicuous opt-out notice and Internet-based opt-out mechanism, enabling the recipient to opt-out of future promotional messages from you or CELLFISH. Also, you may not send messages to any individual who has opted out of receiving messages from either you or CELLFISH. Similarly, you may only send promotional messages to wireless e-mail addresses or SMS addresses to recipients who have expressly opted-in to receive them, in compliance with applicable law. When you send messages to other Members using the feature provided for such purpose on the Social Networking Service, CELLFISH has already obtained the necessary consents for you to send promotional messages to such Members via that means. However, you are responsible for complying with applicable law with respect to any other messaging activities you engage in.
Also, with respect to any marketing, promotional or advertising activities in which you may be permitted to engage in connection with your membership or participation in a Social Networking Service, you may not conduct such activities in any manner that constitutes, or could be perceived as, false, misleading or deceptive. For example, without limitation, you may not deceptively or falsely advertise the pricing or other terms applicable to the Network Content, products or services made available on or through CELLFISH and/or the Social Networking Services. You also are prohibited from using unlawful adware, spyware or similar deceptive means to promote the Network Content, or other products or services made available on other through the Social Networking Service. Furthermore, you may not post, upload or otherwise transmit Network Content that may contain or link to viruses, adware, spyware or other malware or malicious or corrupt code.
You are prohibited from selling or otherwise distributing Network Content via means other than the tools, interfaces, or other features that the Social Networking Service specifically makes available for such purposes. You may only use such CELLFISH-provided means to distribute or sell any Network Content.
CELLFISH reserves the right, but has no obligation, to promote your profile and/or the Network Content thereon.
Linking (in connection with the Social Networking Services)
Through the Social Networking Service, you may also have the opportunity to include links and pointers to other Web sites and content on your "profiles," blog(s) or other areas of the Network. You may not create such links from the Network to Web sites maintained by third parties, nor may you frame third-party sites, in any manner that would constitute an endorsement by CELLFISH of such third party resources or their contents or in any manner that would violate the terms and conditions applicable to such Web sites. Likewise, you may not create links, pointers or frames in any manner that implies that CELLFISH sponsors, is affiliated or associated with, or otherwise recommends, certifies or endorses the third party site or any content thereon, or that any such site is authorized to use any trademark, trade name or logo of CELLFISH. You may also have the opportunity to "export" some Network Content from your profile to other web sites, blogs, etc. (so as to cause the selected Network Content to be displayed on such other site or location) and can generate Earnings (as defined below) from sales generated from the exported location. You shall not do so in any manner that would violate the terms and conditions applicable to such Web site, blog or other location. CELLFISH, in its sole discretion, may prohibit you from linking your profile or Network Content to any web sites or content that, if used or displayed in connection with the Social Networking Service or the Network, would violate any of CELLFISH's agreements or policies, or any applicable law, rule or regulation.
Earnings and Credits for Sales and Purchases of Network Content
Unlike Earnings, Credits that you purchase or otherwise receive cannot be converted into cash and may only be used for and applied towards additional purchases of Network Content. Credits can be purchased in numerous ways, including a la carte purchases and monthly subscriptions. Your monthly subscriptions will automatically renew unless you take actions to prevent such renewal. The Credits you purchase through such monthly subscriptions may expire at the end of each month and may not rollover into the following months when automatically renewed. Specific policies regarding the expiration of Credits will be conveyed to you when you purchase such Credits. Any Credits in your account will expire upon the termination of your membership.
Rating and Ranking Network Content
Additionally, as part of the Social Networking Services, you may be able to comment on, rank and rate certain Network Content. You are prohibited from falsely or fraudulently influencing the ratings and/or rankings of certain Network Content (for example, without limitation, by rating a particular piece of Network Content multiple times for the purpose of fraudulently affecting its ranking). In the event that CELLFISH determines, in its sole discretion, that you have engaged in such illegitimate or fraudulent activity, your membership may be subject to immediate suspension or termination by CELLFISH without notice or further liability to you.
Software License for the Downloadable Mobile Studio Application
CELLFISH may make available a downloadable Java mobile device application that would allow you to transfer Network Content from your mobile device (e.g., a cell phone) to your "digital locker" (such application referred to in these Terms and Conditions as the "Mobile Studio Application"). Subject to the terms and conditions set forth in this Agreement, CELLFISH grants you a limited, revocable, non-exclusive, non-sublicensable, non-assignable and non-transferable license to install and operate the Software, solely for your Authorized Use, as defined below (the "License"). "Software" shall mean the Mobile Studio Application software, as downloaded and installed pursuant to this Agreement, in machine-executable form only, and any related documentation. "Authorized Use" shall mean internal use only on one (1) device, for personal non-commercial purposes only and not in any way to provide, or as part of, any commercial service or application, and not for the benefit of any other person or entity. You may only make one copy of the Software as necessary for bona fide backup or archival purposes. No identifying marks, copyright or proprietary rights notices may be deleted from any copies of the Software made by you. You shall not rent, lease, sell, transfer, distribute, disclose to third parties or use the Software in a service bureau, time-sharing or outsourcing service. You shall not modify, translate or decompile the Software, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code supplied hereunder, or adapt the Software, or any portion thereof, in any way or use it to create a derivative work. You agree and acknowledge that CELLFISH retains title to the Software and any copies thereof. You are not purchasing title to the Software or copies thereof, but rather are being granted only a license to use the Software. All rights not granted to you herein are reserved to CELLFISH. THIS LICENSE IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT, REEXPORT OR IMPORT OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA OR ANY OTHER GOVERNMENT. YOU SHALL NOT EXPORT, REEXPORT OR IMPORT THE SOFTWARE, RELATED DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE OR RELATED DOCUMENTATION WITHOUT THE WRITTEN CONSENT OF CELLFISH AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. The Software (including any related documentation) is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the United States government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraph (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19 as amended, or any successor regulations thereto.
By signing up for the CELLFISH Services, you consent to receiving, from time to time, to the extent permitted by applicable law, further messages which may include news, promotions and offers from us, our affiliates and partners, and perhaps other members of certain of the Services, and you consent to our sharing of your Account Information with such parties for such purposes. You can unsubscribe from receiving messages from us at any time by texting "STOP" to number provided in the particular message, or by following any other instructions set forth in the particular message or provided on the Site. Please follow the instructions provided to you by such third parties to unsubscribe from their messages.
Fees and Other Charges
CELLFISH may impose premium fees ("Pricing") for certain features of the CELLFISH Services and any applicable taxes. By completing the registration process, you authorize CELLFISH to charge the appropriate fees and taxes for the CELLFISH Services to your designated credit card or directly to your wireless account invoice (or deducted from your pre-paid balance). (If fees are charged to your wireless account invoice, we may provide your carrier with your applicable Account Information and Transactional Information in connection therewith.)
If you select a subscription plan, you authorize us to continue billing you each month in accordance with the plan until you cancel the subscription. Cancellations may take from twenty-four (24) hours to ten (10) days to become effective.
In addition to any applicable subscription or other fee for the CELLFISH Services charged by CELLFISH, your wireless carrier's messaging service rates apply to your outgoing messages, our confirmation messages and all subsequent correspondence. Your carrier's fees also apply to the messages sent between you and CELLFISH as part of the sign-up, HELP and opt-out processes. You agree to pay all charges incurred by you (or any user of your wireless device) in connection with the CELLFISH Services at the rates in effect when such charges are incurred. If CELLFISH does not receive payment from your designated payment method, you agree to pay all amounts due upon demand by CELLFISH, carriers or other entities operating on its behalf to provide the Services. Your carrier may impose message or charge limitations on your account that are outside our control. Please contact your wireless carrier for information about your account. If any of your billing information changes, it is your responsibility to update your Account Information.
Termination or Cancellation of Account
If you cancel your account for any reason, or if your account is terminated due to the termination or lapse of your wireless service or because of your breach of contract, CELLFISH will not refund any of your fees paid to date. To cancel your subscription or your account, send a text message with the text "STOP" to the number provided in a particular message at anytime, or follow any other instructions set forth in the particular message or provided on the Site.
With respect to your membership on a Social Networking Service, if your membership is cancelled, expired or terminated for whatever reason, and you still have outstanding Earnings (as defined above) which have not yet been paid out, you may only be able to retrieve such final payout by using PayPal (through the PayPal account you already will have established as part of your membership with the Social Networking Service). Otherwise, you may forfeit such final payout. Upon cancellation, expiration or termination of your membership with a Social Networking Service for whatever reason, any outstanding Credits in your account, which have not at that time been specifically applied towards purchases, will no longer be accessible to or usable by you for any purpose. Also, in the event of a termination of your membership account on a Social Networking Service, CELLFISH may, in its sole discretion: (i) delete any Network Content or materials relating to your use of the Service, and CELLFISH will have no liability to you or any third party for doing so and (ii) not allow you to access your profile or "digital locker," or to create, produce, market or sell any network Content or materials whatsoever. If you terminate your membership, you must immediately remove all links to the Site or the Service or the Network from any other Web sites you may operate, and you must cease representing yourself as a Member of the Social Networking Service.
Billing Disputes and Refunds
If you have a complaint or dispute about a certain charge, or about a certain feature or product of the Service (including, for example, any Content, as defined above), you must notify CELLFISH's customer service (and not your wireless carrier) of such complaint or dispute. CELLFISH may issue refunds for certain corrupt or defective Content (or other products or services offered or made available on or through the Services). However, if you repeatedly request refunds, which in our sole discretion are illegitimate, your use of the Service(s) may be subject to suspension or termination, without further notice to you.
You must notify CELLFISH's customer service about any billing problems or discrepancies within ninety (90) days after they first appear on your account statement. If you do not bring them to CELLFISH's attention within such ninety (90) days, you agree that you waive your right to dispute such problems or discrepancies. Fees charged for certain subscription plans are due in advance unless provided otherwise in your subscription plan, and are nonrefundable. You understand that CELLFISH's right to make certain services available to you may expire, in which case CELLFISH may cease delivering the services to you.
All fees for the CELLFISH Services or Content are subject to change. CELLFISH will provide you with reasonable notice of such changes in the "Pricing" section of the Site. (It is up to your wireless carrier to notify you if there are any changes to its rates.) You will be automatically unsubscribed from the service and will have to register and optin again.
Additional Rules for Chat and Information/Advice Services, Social Networking Services, Chat Rooms, Forums, and Other User-Submitted Content In addition to any other rules or regulations that we may post in connection with a particular Service, you agree that you shall not upload, post or transmit to or distribute or otherwise publish through the CELLFISH Web Site or any Service or feature made available on or through the Site or Services, any materials or content (including any Submitted Materials, as defined below) which (i) restrict or inhibit any other user from using and enjoying the CELLFISH Web Site or the CELLFISH Services, (ii) are fraudulent, unlawful, threatening, abusive, libelous, defamatory, racially, ethically or otherwise objectionable, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent, (iii) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law, (iv) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right, (v) contain a virus, spyware or other harmful component, (vi) contain embedded links, advertising, chain letters or pyramid schemes of any kind (except as expressly allowed by the terms and conditions applicable to the particular Service(s)), or (vii) constitute or contain false or misleading indications of origin or statements of fact. You further agree not to impersonate any other person or entity, whether actual or fictitious, including anyone from this Site or CELLFISH. You alone are responsible for the content and consequences of any of your activities.
Private or Sensitive Information on Public Forums
It is important to remember that materials or comments submitted to a public forum may be recorded and stored in multiple places, both on the CELLFISH Site and elsewhere on the Internet, which are likely to be accessible for a long time and you have no control over who will read them eventually. It is therefore important that you are careful and selective about the personal information that you disclose about yourself and others, and in particular, you should not disclose sensitive, proprietary or confidential information in your materials or comments to our public forums.
Copyright Act Agent
CELLFISH respects the intellectual property rights of others, and requires that the people who use the Site and the Services do the same. CELLFISH maintains a policy of termination in appropriate circumstances of users who use the CELLFISH Web Sites or Services for repeat infringements. If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
- Your address, telephone number, and email address;
- A description of the copyrighted work that you claim has been infringed;
- A description of where the alleged infringing material is located;
- A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- A statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Copyright Agent: Legal Department
Director, Legal & Business Affairs
CELLFISH MEDIA LLC
215 Lexington Avenue, 18th Fl.
New York, NY 10016
Review and Disclosure of User Material
CELLFISH reserves the right, but does not have an obligation, to monitor and review all materials posted to the CELLFISH Web Site or Service by users, and CELLFISH is not responsible for any such materials posted by users. However, CELLFISH reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in CELLFISH's sole discretion are objectionable or in violation of this Agreement, CELLFISH's policies or applicable law.
CELLFISH Rights to Content and Materials Provided by Users
No Responsibility for Transmitted Material
You acknowledge that material transmitted to and from the Site or Services are not confidential and your Submitted Materials may be read or intercepted by others. You acknowledge that by submitting Submitted Materials to CELLFISH or the Site or Services, no confidential, fiduciary, contractually implied or other relationship is created between you and CELLFISH other than pursuant to this Agreement. CELLFISH shall not be responsible for the payment of any monies to any party in connection with CELLFISH's use of Submitted Materials submitted by you to the CELLFISH Web Site or Services.
Links to Other Web Sites and Content
The CELLFISH Web Site or Services may contain links and pointers and sometimes may frame other Web sites, resources, and sponsors of the CELLFISH Web Site. Links from the CELLFISH Web Site or Services to Web sites maintained by third parties and the framing of third-party sites do not constitute an endorsement by CELLFISH of such third party resources or their contents. Links, pointers and frames also do not imply that CELLFISH sponsors, is affiliated or associated with, or otherwise recommends, certifies or endorses the third party site, or that any such site is authorized to use any trademark, tradename or logo of CELLFISH. You should direct any concerns regarding any external link to its site administrator or webmaster. CELLFISH does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed or distributed through the CELLFISH Web Site or Services. You acknowledge that any reliance upon any such opinion, advice, statement, memorandum, or information shall be at your sole risk. CELLFISH reserves the right, in its sole discretion, to correct any errors or omissions in any portion of the CELLFISH Web Site or Services.
Linking to the Web Site
You agree that if you include a link from any other web site to this Web Site, such link shall link to the full version of an HTML formatted page of this Web Site. You agree not to link from any other web site to this Web Site in any manner such that the Web Site, or any page of the Web Site, is "framed," surrounded or obfuscated by any third party content, materials or branding (other than as expressly permitted in connection with a particular Service). We reserve all of our rights under the law to insist that any link to the Web Site be discontinued, and to revoke your right to link to the Web Site from any other web site at any time upon written notice to you.
Third Party Services
You may order services or merchandise through the CELLFISH Web Site or CELLFISH Services offered by other persons or companies not affiliated with CELLFISH ("Sellers"). All issues and concerns pertaining to merchandise and services sought or purchased from Sellers, including but not limited to purchase terms, payment terms, guarantees, warranties, delivery, maintenance, etc., are solely between you and the Seller. You will not consider CELLFISH, nor will CELLFISH be deemed, a party to such transactions, whether or not CELLFISH may have received some form of revenue or other compensation in connection with the transaction, nor shall CELLFISH be liable for any costs or damages you or anyone else incurs as a result of the transaction, irrespective of whether these damages or costs arise directly or indirectly from the transaction. CELLFISH MAKES NO WARRANTY CONCERNING ANY MERCHANDISE OR SERVICES OF SELLERS PURCHASED ON OR OBTAINED THROUGH A CELLFISH WEB SITE OR SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH A CELLFISH WEB SITE OR SERVICE. YOUR PURCHASE OF ANY MERCHANDISE OR SERVICES FROM SELLERS OR PARTICIPATION IN ANY TRANSACTION WITH SELLERS IS SOLELY AT YOUR OWN RISK.
You agree to indemnify, defend and hold CELLFISH, and all its officers, directors, owners, agents, employees, information providers, affiliates, licensors and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liability and costs incurred by the Indemnified Parties in connection with any claim arising out of your use of the CELLFISH Web Site or CELLFISH Services, or any of the Content or other downloadables (including, for example and without limitation, the downloadable "Mobile Studio Application" for the Social Networking Service) or any breach by you of this Agreement or the foregoing representations, warranties and covenants, including, without limitation, attorneys' fees and costs. You shall cooperate as fully as reasonably required in the defense of any claim. CELLFISH reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without the written consent of CELLFISH.
Disclaimer of Warranties
THE CELLFISH WEB SITE AND SERVICES (INCLUDING ALL CONTENT, FUNCTIONS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE CELLFISH WEB SITE OR SERVICES SUCH AS MESSAGES AND MATERIALS SENT VIA THE SERVICES AND DOWNLOADABLES PROVIDED VIA THE SERVICES, FOR EXAMPLE, THE "MOBILE STUDIO APPLICATION" FOR THE SOCIAL NETWORKING SERVICE) ARE PROVIDED "AS IS," "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND CELLFISH HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. ADDITIONALLY, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, CELLFISH DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND WHATSOEVER FOR THE CELLFISH WEB SITE AND SERVICES, INLCUDING, WITHOUT LIMITATION, THAT THE CELLFISH WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE, OR THE SERVICES, CONTENT OR DOWNLOADABLES (INCLUDING, FOR EXAMPLE, THE "MOBILE STUDIO APPLICATION" FOR THE SOCIAL NETWORKING SERVICE), WILL BE FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITATION OF THE ABOVE IN THIS SECTION, CELLFISH AND ITS SUBSIDIARIES, SUPPLIERS, LICENSORS AND AFFILIATES MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SITE OR THE SERVICES, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS AND OTHERWISE ON THE SITE OR IN CORRESPONDENCE WITH CELLFISH OR ITS AGENTS. CELLFISH MAKES NO WARRANTY THAT THE SITE OR THE SERVICES WILL MEET USERS' REQUIREMENTS.
YOU UNDERSTAND THAT WHEN USING THE WEB SITE OR ANY OF THE SERVICES (INCLUDING, FOR EXAMPLE, THE SOCIAL NETWORKING SERVICES) YOU MAY BE EXPOSED TO CONTENT AND USER-SUBMITTED MATERIALS FROM A VARIETY OF SOURCES, AND THAT CELLFISH IS NOT RESPONSIBLE FOR THE ACCURACY, USEFULNESS, SAFETY OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH CONTENT OR SUBMITTED MATERIALS. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT OR SUBMITTED MATERIALS THAT ARE INACCURATE, OFFENSIVE, INDECENT OR OBJECTIONABLE, AND YOU AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST CELLFISH WITH RESPECT THERETO.
NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM CELLFISH OR THROUGH THE SITE OR THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. CELLFISH ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT, WIRELESS DEVICE OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITE OR SERVICES OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, SOFTWARE APPLICATIONS (INCLUDING, FOR EXAMPLE, THE "MOBILE STUDIO APPLICATION" FOR THE SOCIAL NETWORKING SERVICE) OR AUDIO FROM THE SITE OR SERVICES OR YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SITE OR ANY OF THE SERVICES. IF YOU ARE DISSATISFIED WITH THE SITE AND/OR ANY OF THE CELLFISH SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND/OR SERVICE.
Limitation of Liability
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL CELLFISH OR ITS SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE CONTENT, MATERIALS AND FUNCTIONS IN THE CELLFISH WEB SITE OR SERVICES OR ANY OF THE DOWNLOADABLES (INCLUDING, FOR EXAMPLE AND WITHOUT LIMITATION, THE "MOBILE STUDIO APPLICATION" FOR THE SOCIAL NETWORKING SERVICE) EVEN IF CELLFISH OR ITS SUBSIDIARIES OR AFFILIATES OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL CELLFISH'S OR ITS SUBSIDIARIES' OR AFFILIATES' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OF YOUR USE OF THE SITE OR SERVICES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO CELLFISH FOR YOUR USE OF THE PARTICULAR SERVICES TO WHICH THE APPLICABLE CLAIM OR DAMAGE RELATES DURING THE CALENDAR QUARTER DURING WHICH THE CLAIM AROSE.
Changes to Agreement
CELLFISH reserves the right, at its sole discretion, to change, modify, add or remove any portion of this Agreement, in whole or in part, at any time by posting an amended version of the Agreement on the Site. Changes in this Agreement will be effective when posted. Your continued use of the Site or Services after any changes to this Agreement are posted will be considered acceptance of those changes.
CELLFISH may terminate, change, suspend, impose limits on, or discontinue any aspect of the CELLFISH Web Site or the CELLFISH Services or certain features thereof at any time, without notice or liability. CELLFISH maintains a policy that provides for the termination in appropriate circumstances of the Web Site use privileges of users who are repeat infringers of intellectual property rights.
THIS AGREEMENT AND THE RELATIONSHIP BETWEEN YOU AND CELLFISH SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PROVISIONS. SOLE AND EXCLUSIVE JURISDICTION FOR ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL BE IN AN APPROPRIATE STATE OR FEDERAL COURT LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND YOU AGREE TO SUBMIT TO SUCH JURISDICTION.
We control and operate the CELLFISH Web Site from our offices in the United States of America. We do not represent that materials on the CELLFISH Web Site are appropriate or available for use in other locations. Persons who choose to access the CELLFISH Web Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. If for any reason a court of competent jurisdiction finds any provision of the Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of this Agreement shall continue in full force and effect.
If you have a question or complaint about the CELLFISH Sites or Services, please contact us at:
Cellfish Media LLC
Attention: Customer Care
215 Lexington Avenue, 18th Floor
New York, NY 10016
Copyright © CELLFISH MEDIA LLC
All rights reserved.
The trademarks, logos, service marks and trade names (collectively the "Trademarks") displayed on the Site or the Services are registered and unregistered Trademarks of CELLFISH and others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits their rights holders. All Trademarks not owned by CELLFISH that appear on the Site, if any, are the property of their respective owners. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site or Services without the written permission of CELLFISH or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on the Site or Services is strictly prohibited. CELLFISH will aggressively enforce its Trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.