Last Updated: November 27, 2012
This Terms of Service Agreement (the “Agreement”) is between you and CELLFISH MEDIA LLC (“CELLFISH”, “we” or “us”), with offices located at 215 Lexington Avenue, 18th Floor, New York, New York 10016. It governs your use of the web and mobile sites, services and applications on which it is posted, linked or referenced (each referred to in this Agreement as the “Service”).
Certain activities (such as contests, sweepstakes and other initiatives) and features (such as widgets, plug-ins, applications, etc.) associated with the service may have additional rules of participation (we collectively refer to these as “Additional Terms”).
This Agreement shall remain in full force and effect while you use the Service. You may terminate your registration and use of the Service at any time and for any reason.
CELLFISH may also terminate your use of and registration for the Service at any time and for any reason.
CELLFISH grants you the right to access and use the Service, but only if you comply fully with this Agreement and any Additional Terms.
The Service is for your personal use only. It cannot be used for commercial purposes unless we expressly say otherwise.
CELLFISH may modify this Agreement at any time and for any reason, without further notice to you. We will post the changes on the Service. If you use the Service after the changes are posted, your use of the Service will signify your agreement to be bound by the changes. We recommend that you check back and review this Agreement regularly so you are aware of the most current rights and obligations that apply to you.
You must be 18 years of age or older to use any adult chat service (such as CELLFLIRT).
You must be 13 years of age or older to sign up for any use any other CELLFISH Service.
Your mobile carrier may have additional rules and restrictions, which you must follow in using the Service.
If you are under 18, please review this Agreement with your parent or guardian, who must agree to it on your behalf. Parental discretion is advised for all users under 18.
As between you and CELLFISH, CELLFISH owns all rights in the Service. This includes all rights in the text, images, software, games, applications, audio and video clips, illustrations, graphics, other visuals, code, data and materials thereon, the look and feel, design and organization of the Service, and the compilation of the content, code, data and materials on the Service (collectively the “Content”). Your use of the Service does not grant to you an ownership interest in any aspect of the Service or in any Content you may access or use through the Service.
The Service 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 Service. CELLFISH will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
You own the rights in any original Content you upload or post on the service, but by posting it you give us the right to display and use it (as described herein), without restriction, in connection with the Service.
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 Service.
In addition to all of the other prohibited conduct described herein:
You may not use the Service or the Content for any commercial purpose unless the Additional Terms of the Service expressly allow it.
You may not impersonate any person or entity or misrepresent your affiliation with any person or entity using the Service.
You may not defame, harass or otherwise violate the rights of any person or entity using the Service.
You may not insert your own (or a third party’s) advertising, branding or other promotional content into the Service or any Content on the Service unless the Additional Terms of the Service expressly allow it.
You may not gain or attempt to gain unauthorized access to other computers or mobile systems through the Service.
You may not 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 Service.
You may not use the Service in any manner with the intent to interrupt, damage, disable, overburden, or impair the Service. This would include, among other things, sending mass unsolicited messages or “flooding” servers with requests.
You may not use the Service in violation of CELLFISH’s or any third party’s intellectual property or other proprietary or legal rights.
You may not use the Service for any other unauthorized or unlawful purpose or in violation of any applicable law.
To use the Service, you must first register and provide all required information. This 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 Service. 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.
If you access the Service via SMS text message or mobile carrier deck, you represent that you are the owner or authorized user of the device, that you have the authority to sign up for and receive the Service, and that you are authorized to approve any applicable carrier and premium charges in connection with your use of the Service.
The Service is compatible only with the wireless carriers listed on the Service. We may change the list from time to time.
Your wireless carrier and other service providers may also collect data about your wireless device usage and their practices are governed by their own policies.
You understand and acknowledge that your wireless carrier may suspend or delay the Service 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 the Service. Delivery is dependent upon effective transmission from your network operator and/or carrier as well as effective processing by your mobile device.
CELLFISH makes available both chat services that allow you to correspond with other public participants and chat services that employ operators (also known as “animators” or “chat jockeys”), who are paid by CELLFISH or our partners or affiliates to participate in chat with users (“Chat Services”).
The fact that a particular Chat Service utilizes chat jockeys will be disclosed to you in the Additional Terms. The nickname of a chat jockey will begin with the letters “CJ” (for “chat jockey”) or as otherwise indicated in the HELP or FAQ sections of the Service.
If you participate in a Chat Service, some of your Account Information and other materials that you provide, such as your “nickname,” wireless address, age, gender, profile, photographs, audio and video, may be shared with other participants of the Chat Service and/or the Chat Jockeys who may send messages to your computer or mobile device.
If you participate in a Chat Service via SMS text message or carrier deck, premium and carrier message and data rates may apply to messages received by you even if you do not reply to them.
You will 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 Chat Service or through the Chat Service.
CELLFISH makes available certain services by which users may be able to obtain certain information or advice (“Information Services”). These Information Services can be accessed via the mobile web and via wireless and/or SMS. They enable communication with individuals operating the Service, who are employed for such purposes (“animators”, “advisors”, “coaches”, psychics”, or other names associated with the Information Service).
Information Services are intended for entertainment purposes only. Information or advice provided by the Information Service 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 the Information 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 the Information 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 the Information Service do not reflect the opinions or positions of CELLFISH.
If you access the services via SMS or carrier deck, premium and carrier message and data rates may apply to messages received by you even if you do not reply to them.
You will continue to receive messages until you opt-out of the Service.
CELLFISH makes available services, through which certain products or services are available for purchase and download onto your computer or mobile or wireless device (“Download Services”). Examples of downloadable products or services include wallpapers, ringtones, games and other applications. Many of the products and services purchased and downloaded through CELLFISH’s Download Services are provided by third parties.
You may use downloaded products and services for your own personal, non-commercial use only. You may not further distribute such products or services unless the Additional Terms say otherwise.
Downloaded products and services are provided “AS IS,” without warranty of any kind.
If you purchase and download games, applications or other products or services through a CELLFISH Download Service and later cancel your participation in the Service, the products and services purchased and downloaded to your computer or device will remain on your computer or device an may continue to send you messages, updates and other notifications until you delete them or change your settings.
CELLFISH makes available certain services, which may combine social networking features with content sharing features and social commerce (“Social Networking Services”).
By registering for a Social Networking Service, you agree to at all times abide by all of the rules set forth in this Agreement and any Additional Terms.
For some Social Networking Services, we may use third party platforms such as iTunes, YouTube, Facebook, Twitter, Last.fm, Pandora, etc. When we do so, you must also agree to abide by the rules of the platform provider, to the extent that they apply, as well.
Some Social Networking Services may enable you to share, promote and sell content and material that you may upload to or link to through the Service. Such 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 content that you upload to or link to through the Social Networking Service.
Additionally, as part of the Social Networking Service, you may be able to comment on, rank and rate certain content, games, applications or other products and services. You are prohibited from falsely or fraudulently influencing the ratings and/or rankings of certain content (for example, without limitation, by rating a particular piece of 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.
CELLFISH’s Social Networking Services are designed to function as a community in which users may share their own, original, user-created content, and make recommendations or legitimate purchases of or links to third party copyrighted (or otherwise protected) content from authorized sources.
In the event that you upload, post, transmit or otherwise submit any content that violates any of the terms of this Agreement or any Additional Terms or otherwise violates or infringes a third party’s rights, the content will be taken down and your membership may be suspended or terminated by CELLFISH, in our sole discretion, without further notice.
You are responsible for complying with all applicable laws with respect to any messaging activities you engage in using a Social Networking Service.
You also are prohibited from using unlawful adware, spyware or similar deceptive means to promote content, or other products or services made available on other through the Service. Furthermore, you may not post, upload or otherwise transmit 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 content via means other than the tools, interfaces, or other features that the Service specifically makes available for such purposes.
CELLFISH reserves the right, but has no obligation, to promote your profile and/or the content thereon.
Through the Service, you may have the opportunity to include links and pointers to other content from your “profiles,” blog(s) or other areas of the Service and other web and mobile sites and social networking platforms.
You may not create links from the Service to third party content, products or services, nor may you frame third-party sites, in any manner that would violate the rights of the third party or the terms and conditions applicable to such third party content, products or services.
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 any third party site or any content, product or service 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 content from your profile to other web sites, blogs, etc. (so as to cause the selected content to be displayed on such other site or 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 content on your profile to any sites or content that, if used or displayed in connection with the Service, would violate any of CELLFISH’s agreements or policies, or any applicable law, rule or regulation.
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 or device for a contemporaneous performance of the recording which does not create a download or residual copy or file on your computer or device other than as temporarily required to render that performance as in the form of a buffer copy.
You are prohibited from using “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).
The Service may enable you to obtain a “digital locker” that will automatically store content that you purchase or download from, or upload to the Service.
There is no guarantee that the content in your “digital locker” will at all times be accessible.
CELLFISH reserves the right to remove content from your locker at any time for any reason.
Upon the termination, cancellation or expiration of your membership with the Service, the contents of your digital locker will no longer be available to you.
Some Services offer credits and bonus offers. To redeem credits and bonus offers, follow the redemption instructions on the Service.
Credits and bonus offers cannot be combined with discounts and cannot be redeemed for cash. Except as otherwise stated, purchases of credits are non-refundable.
When you purchase or receive credits, you do not own the credits. You receive a limited right to use the credits in connection with certain features on the Service.
You will not sell credits to anyone, or transfer them to anyone outside of the Service.
We may change the terms for purchase and use of credits at any time. We also reserve the right to stop issuing credits.
If you leave a balance of credits unused for a period of time (proscribed by applicable unclaimed property laws), or if you delete your account and leave a credit balance, or if we deactivate your account and you do not meet any conditions necessary to reinstate it within 6 months, we may process your credit balance in accordance with our legal obligations, including by submitting funds associated with your credits balance to the appropriate governing body where required by law.
If you receive free or promotional credits, we may expire them at any time without further notice to you.
By signing up for the Service, you consent to receiving further messages which may include news, promotions and offers from us, our affiliates and partners, and perhaps other members of the Service, and you consent to our sharing of your Account Information with such parties for such purposes.
Please follow the instructions provided to you by third parties to unsubscribe from their messages.
When you purchase advertising through the Service, you agree to pay all amounts specified in the order, along with any applicable taxes.
You are responsible for maintaining the security of your advertising account, and you understand that you will be charged for any orders placed on or through your advertising account.
You can cancel an advertising order at any time, but your ads may run for several days after you notify us, and you are still responsible for paying for those ads.
Your order constitutes your written authorization for us to obtain your personal and/or business credit report from a credit bureau. We may obtain your credit report when you place an order, or at any time thereafter.
It is your responsibility to remit any taxes that apply to your transactions. You agree to indemnify and hold us harmless from and against any claim arising out of your failure to do so.
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 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 content, products or services made available on or through the Service.
You may not use the Service to 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 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 (the “TCPA”), which is 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 use the Service to 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.
We try to provide you with services, products and offers customized to your interests. In order to do that, we may use “cookies’ and “locally shared objects” to keep and sometimes track information about you.
CELLFISH may impose premium fees for certain features of the Service. By completing the registration process, you authorize CELLFISH to charge the appropriate fees and any applicable taxes for the Service to your designated credit card or directly to your wireless account invoice or deduct payment 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 Service charged by CELLFISH, your wireless carrier’s messaging and data rates may apply to your outgoing messages, our confirmation messages and all subsequent correspondence.
Your carrier’s messaging and data fees may 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 Service 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 Service.
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.
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, or follow any other instructions set forth in the particular message or provided on the Service.
In the event of a termination of your membership account on a Service, CELLFISH may, in its sole discretion: (i) delete any 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 content or materials whatsoever.
If you terminate your membership, you must immediately remove all links to the Service from any other web or mobile sites or services you may operate, and you must cease representing yourself as a member Service.
When you confirm a transaction on the Service, you agree to be bound by and pay for that transaction. All sales are final.
You may be presented with Additional Terms related to a specific purchase before you confirm the transaction. Those Additional Terms will also govern that transaction.
We allow you to make payments using credit cards, debit cards and a variety of other payment methods, as indicated on the Service.
When you provide a payment to us, you confirm that you are permitted to use that card or other source of payment. You also authorize us to collect and store it, along with other related transaction information.
When you make a payment, you authorize us (and our payment processor) to charge the full amount to the payment source you designate for the transaction. If you pay by credit or debit card we may obtain a pre-approval from the issuer of the card for an amount up to the amount of the purchase. We will bill your card at the time of purchase or shortly thereafter.
If you cancel a transaction before completion, the pre-approval may result in your funds not being immediately available.
If you pay by debit card and your payment results in an overdraft or other fee from your bank, you alone are responsible for that fee.
We may make any inquiries that we consider necessary, either directly or through third parties, concerning your identity and creditworthiness.
We may cancel or delay any transaction or deactivate your account if we believe the transaction violates these Terms of Service, or we believe doing so may prevent financial loss.
We may contact your payment source issuer, law enforcement, or impacted third parties (including other users) and share details of any payments you are associated with if we believe doing so may prevent financial loss or a violation of law.
We may cancel any credits transferred, assigned, or sold in violation of these Terms of Service.
If your payment method fails or your account is past due, we may take steps to collect past due amounts using other collection mechanisms. You agree to pay all expenses associated with such collection, including reasonable attorneys’ fees. Interest will accrue on any past due amounts at the rate of the lesser of 1% per month or the lawful maximum.
WE MAKE NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES SOLD ON OR THROUGH THE SERVICE.
If you have a complaint or dispute about a charge, or about a certain feature or product of the Service, you must notify CELLFISH’s customer service (and not your wireless carrier) of such complaint or dispute immediately.
CELLFISH may issue refunds for certain corrupt or defective Content (or other products or services offered or made available on or through the Service). However, if you repeatedly request refunds, which in our sole discretion are illegitimate, your use of the Service may be subject to suspension or termination, without further notice to you.
If you do not bring billing issues to CELLFISH’s attention within 90 days after they first appear on your bill or statement, 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.
You agree to notify us immediately, if you believe that an unauthorized transaction has taken place on your account so we may take action to prevent financial loss.
You agree to reimburse us for all charges, claims, fees, fines, penalties and other liability incurred by us (including costs and related expenses) arising out of payments that you authorized or accepted.
If you enter into a transaction with a third party and have a dispute over the goods or services you purchased, we have no liability for such goods or services. Our only involvement with regard to such transaction is as a payment agent. We may intervene in disputes between Service users concerning payments but have no obligation to do so. Your only remedy for a technical failure or interruption of service is to request that your transaction be completed at a later time.
To the fullest extent permitted by law, you waive all claims against us related to payments unless you submit the claim to us within 30 days after the charge.
All fees for the Service are subject to change. CELLFISH will provide you with reasonable notice of such changes in the “Pricing” section of the Service. It is up to your wireless carrier to notify you if there are any changes to its rates. If you do not accept CELLFISH’s new fees, you will have ten (10) days from the date of notice to cancel your subscription or your account.
Our mobile services and applications are provided via wireless systems, which use radios (and other means) to transmit communications over complex networks. We do not guarantee that your use of the Service will be private or secure, and we are not liable to you for any lack of privacy or security you may experience.
You are fully responsible for taking precautions and providing security measures best suited for your situation and intended use of the Service.
You agree that you will not allow others to use your user name, “nickname,” “digital locker,” password or other Account Information.
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.
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 Service 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 embarrassing, sensitive, proprietary or confidential information in your materials or comments to our public forums.
REMEMBER WHEN YOU USE A CHAT SERVICE, IT IS A GOOD IDEA TO 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.
CELLFISH respects the intellectual property rights of others, and requires that the people who use the Service do the same.
CELLFISH maintains a policy of termination in appropriate circumstances of users who use the Service 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:
Copyright Agent CELLFISH MEDIA LLC
215 Lexington Avenue, 18th Floor
New York, NY 10016
Tel: 866-235-7909 (Option 3)
CELLFISH reserves the right, but does not have an obligation, to monitor and review all materials posted to the Service by users, and CELLFISH is not responsible for any such materials posted by users.
CELLFISH reserves the right at all times to review and 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.
By submitting or sending User Materials to us, you: (i) represent and warrant that the User Materials, in whole and in part, are original to you, that you own or have the necessary rights, licenses, consents, permissions and approvals to use and authorize CELLFISH and other members of the Service to use, in whole or in part, all User Materials (and you must deliver copies of such approvals and consents immediately to CELLFISH upon CELLFISH’s request), that no other party has any rights thereto (including, without limitation, copyrights, trademark rights, rights of publicity, privacy rights, and other intellectual property rights), that any “moral rights” in User Materials have been waived, and, to the extent legally required under the circumstances, that you have the written consent, release and/or permission of each and every identifiable individual person depicted in any User Materials, if necessary, to enable inclusion and use of such User Materials in the manner contemplated by the Service.
You grant to CELLFISH a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free license to use, copy, license, sublicense, adapt, distribute, display, publicly perform, reproduce, transmit, modify, reformat, edit and otherwise exploit such User Materials and any ideas or original materials contained in such User Materials, in all media now known or hereafter developed. This grant shall include the right to exploit any and all proprietary rights in such User Materials including, without limitation, any and all rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. You waive all rights you may have to inspect and/or approve of any use by CELLFISH of any material or idea submitted by you in any User Materials.
You waive all rights to any claim against CELLFISH for any alleged or actual infringements of any proprietary rights, rights of privacy and publicity, moral rights, and rights of attribution in connection with such User Materials.
You agree and understand that CELLFISH is under no obligation to use any material or ideas submitted by you in any User Materials in any way whatsoever, and CELLFISH is not responsible for maintaining, and may delete at any time, any of your User Materials.
You shall be solely responsible for your own User Materials and the consequences of posting, uploading or otherwise publishing or distributing them.
You acknowledge that User Materials transmitted to and from the Service are not confidential and your User Materials may be read or intercepted by others. You acknowledge that by submitting User Materials to CELLFISH or the Service, 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 User Materials submitted by you to the Service.
The Service may contain links and pointers and sometimes may frame other content, websites, resources, and sponsors of the Service.
Links from the Service to other 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 links to and from the Service. 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 Service.
In some cases, you may order services or merchandise through the Service 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 THESERVICE 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 Service, or any of the Content, downloadables, functionality or other information associated with the 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.
THE SERVICE (INCLUDING ALL CONTENT, FUNCTIONS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICE SUCH AS MESSAGES AND MATERIALS SENT VIA THE SERVICE AND DOWNLOADABLES PROVIDED VIA THE SERVICES 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 SERVICE, INLCUDING, WITHOUT LIMITATION, THAT THE SERVER THAT MAKES IT AVAILABLE, OR THE SERVICES, CONTENT OR DOWNLOADABLES, 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 SERVICE 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 USER-SUBMITTED MATERIALS. YOU FURTHER UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE EXPOSED TO CONTENT OR USER 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 OR AUDIO FROM THE SERVICE OR YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. IF YOU ARE DISSATISFIED WITH THE SERVICE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SERVICE.
UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL CELLFISH OR ITS SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS AND EMPLOYEES (“CELLFISH ENTITIES”) 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 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 THE CELLFISH ENTITIES’ 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 USE OF THESERVICE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO CELLFISH FOR YOUR USE OF THE SERVICE DURING THE CALENDAR QUARTER DURING WHICH THE CLAIM AROSE.
YOU AND CELLFISH AGREE THAT ANY PROCEEDINGS TO RESOLVE ANY DISPUTE BETWEEN US WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER OF US WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, A REPRESENTATIVE ACTION, A COLLECTIVE ACTION, A PRIVATE ATTORNEY-GENERAL ACTION, OR IN ANY PROCEEDING IN WHICH ONE OF US ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY ON BEHALF OF OTHERS. WE FURTHER AGREE THAT NO PROCEEDING WILL BE JOINED, CONSOLIDATED, OR COMBINED WITH ANOTHER PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF ALL OF THE PARTIES.
For purposes of this Agreement, a “Dispute” means any claim, demand, action, proceeding, or other controversy between you and Cellfish concerning the Service and/or our respective rights and obligations under this Agreement, whether based in contract, warranty, tort (including, without limitation, fraud, misrepresentation, fraudulent inducement, concealment, omission, negligence, conversion, trespass, strict liability, and product liability), statute (including, without limitation, consumer protection and unfair competition statutes), regulation, ordinance, or any other legal or equitable basis or theory. “Dispute” will be given the broadest possible meaning allowable under law.
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 DISPUTES SHALL BE IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND YOU AGREE TO SUBMIT TO SUCH JURISDICTION.
The Service is controlled by CELLFISH from its offices in the U.S. CELLFISH makes no representation or warranty that the Services or Content contained on or made available in connection with the Service is legal, appropriate or available for use in other locations. Those who choose to access the Service from other locations do so at their own risk and are responsible for compliance with any and all local laws, rules and regulations, if and to the extent local laws, rules and regulations are applicable.
No software made available in connection with the Service may be downloaded, exported or re-exported into (or to a national or resident of) any countries that are subject to U.S. export restrictions.
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
This Agreement was last modified on the date indicated above and is effective immediately.
Copyright© CELLFISH MEDIA LLC
All rights reserved.
The trademarks, logos, service marks and trade names (collectively the “Trademarks”) displayed on the Service 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 Service, if any, are the property of their respective owners. Nothing contained on the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Service without the written permission of CELLFISH or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on the Service is strictly prohibited. CELLFISH will aggressively enforce its Trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.