Terms and Conditions
Terms and Conditions
These terms of use ("Terms of Use") regulate the rules and conditions subject and according to which you may access and make use of the website or WAP site www.thecellfreak.com (the “Website” or "TheCellFreak"), a website operated by S.M.B.P Igloo Ltd. (the "Company").
BY VISITING THECELLFREAK AND SPECIFICALLY BY USING ANY OF THE PRODUCTS, SERVICES, CONTENT, APPLICATIONS OR OTHER FEATURES THAT MAY BE AVAILABLE FROM TIME TO TIME ON OR VIA THE WEBSITE OR RELATED WEBSITES (TOGETHER, THE “SERVICE”) YOU AGREE TO BE BOUND BY BOTH THESE TERMS OF USE AND THECELLFREAK PRIVACY POLICY [hyperlink], WHICH IS INCORPORATED HERE BY REFERENCE. THESE TERMS OF USE APPLY TO ALL USERS OF THECELLFREAK, WHETHER MEMBER, USER OR VISITOR. EACH TIME YOU USE OR ACCESS THECELLFREAK YOU ARE RESPONSIBLE FOR BEING FAMILIAR WITH ANY CHANGES OR MODIFICATIONS TO THESE TERMS OF USE, WHICH MAY OCCUR FROM TIME TO TIME.
THE SERVICE IS OFFERED TO YOU FREE OF CHARGE. HOWEVER, OTHER CHARGES MAY APPLY, SUCH AS MESSAGING, DATA, AIRTIME AND OTHER SERVICE FEES TO YOUR MOBILE PHONE CARRIER. YOU ARE SOLELY RESPONSIBLE TO CHECK, ARRANGE AND PAY FOR ANY SERVICE FEES ASSOCIATED WITH YOUR ABILITY TO ACCESS THECELLFREAK AS WELL AS ANY OTHER EQUIPMENT NECESSARY TO CONNECT TO ANY SERVICE OFFERED BY THECELLFREAK. IN ADDITION, ALTHOUGH THE THECELLFREAK SERVICE IS FREE, OUR ADVERTISERS' SERVICES MAY NOT BE.
YOU UNDERSTAND AND AGREE THAT THE SERVICE MAY INCLUDE ADVERTISEMENTS AND THAT SUCH ADVERTISEMENTS ARE NECESSARY FOR THECELLFREAK TO PROVIDE THE SERVICE. YOU UNDERSTAND AND AGREE THAT THE WEBSITE AND ANY CONTENT AND MESSAGES SENT TO OR FROM YOUR MOBILE PHONE INCLUDE SUCH ADVERTISEMENTS AND THAT SUCH COMMUNICATIONS ARE CONSIDERED PART OF THE SERVICE. THECELLFREAK WILL NOT SEND YOU UNSOLICITED ADVERTISING MESSAGES. ANY ADVERTISEMENTS YOU RECEIVE WILL BE ATTACHED TO CONTENT YOU DOWNLOAD FROM THE WEBSITE.
YOU CAN TERMINATE THE SERVICE, STOP RECEIVING MESSAGES FROM THECELLFREAK, AND DELETE YOUR MEMBERSHIP AT ANY TIME BY CLICKING HERE
1. ELIGIBILITY, MEMBERSHIP AND TERMINATION
1.1. In order to use TheCellFreak you must affirm that (i) you are able to understand and accept these Terms of Use and abide by their terms; (ii) should you decided to register and become a member, all registration information you provide will be accurate and truthful and you agree to timely maintain this information; (iii) you are at least 13 years of age or older; and (iv) if you are not yet at least 18 years of age you are an emancipated minor or have consent of your parent or legal guardian.
1.2. IF YOU ARE NOT AT LEAST 13 YEARS OF AGE, UNFORTUNATELY YOU CANNOT USE THECELLFREAK.
1.3. You are responsible for ensuring that your equipment, software and use do not disturb or interfere with our operation of the Service. In the sole discretion of TheCellFreak, any equipment, software or usage that may cause any interference with the Service may result in immediate disconnection from TheCellFreak.
1.4. Downloading, installing, or using certain services may be prohibited or restricted by your mobile phone carrier, and not all services may work with all mobile phone carriers or devices. Therefore, you should check with your mobile phone carrier to find out if the Service is available for your mobile devices, and what restrictions, if any, may be applicable to your use of the Service.
1.5. You are entirely responsible for maintaining the security and confidentiality of your information and password. You agree that you will immediately notify TheCellFreak should your password or any of your information be compromised and of any such unauthorized use. Any information provided by you or gathered by TheCellFreak or third parties during any use of TheCellFreak shall be subject to TheCellFreak Privacy Policy[hyperlink].
1.6. Should you violate or breach these Terms of Use or make any use of TheCellFreak which, at TheCellFreak's sole and exclusive discretion, is unacceptable to it, TheCellFreak reserves the right, at its sole discretion and without notice, to suspend or terminate your membership or forbid you from further access to TheCellFreak, and remove any and all content and information you may have provided to or stored on TheCellFreak. Even after termination of these Terms of Use, the provisions of Sections 4 and 6-11 shall remain in effect.
2. DESCRIPTION OF THE SERVICE
2.1. TheCellFreak provides an advertisement supported mobile content and internet community based service through the Website. The Service enables you to create, edit, upload, download and share content through the Website and/or via your mobile phone. In addition, TheCellFreak provides a service of free text messaging to mobile phones through the Website.
2.2. You understand and agree that the Service may include certain communications from TheCellFreak or other third parties, such as advertisements, service announcements and administrative messages, and that these communications are considered part of the Service. By using the Service, you agree that we may communicate with you regarding TheCellFreak by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Service may be communicated to us. You will not be able to opt out of receiving such communications unless you specifically request to opt out.
2.3 TheCellFreak may contain links to third party websites that are not owned or controlled by the Company. TheCellFreak has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party websites. In addition, TheCellFreak will not and cannot censor or edit the content of any third party site. By using TheCellFreak, you expressly relieve the Company from any and all liability arising from your use of any third party website.
3. USE OF THECELLFREAK
3.1. You alone are responsible for your conduct on TheCellFreak and for all the content you provide or download for use.
3.2. TheCellFreak may include content, software, scripts, text, images, graphics, audio, video, digital files and other materials in any form, provided by TheCellFreak itself (including any vendors, suppliers, licensors and other third parties) ("TheCellFreak Content") or provided by members, users or visitors of TheCellFreak ("Submissions") (together, “Content”). TheCellFreak does not endorse any Submissions and makes no warranties, express or implied, as to their accuracy and reliability. TheCellFreak expressly disclaims any and all liability in connection with any and all Submissions.
3.3. If you are 18 years or older, or are an emancipated minor, you alone are responsible for your physical and financial safety when you post information about yourself on TheCellFreak, communicate with other members of the TheCellFreak community or otherwise access the Service. If you are under 18 years old and not an emancipated minor, both you and your parents or legal guardian are responsible for your physical and financial safety when you post information about yourself on TheCellFreak, communicate with other members of the TheCellFreak community, or otherwise access the Service.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. You understand and agree that all Content is provided to you solely on an AS IS basis. You further understand and agree that all Content may be used by you only for your personal use and may not be copied, reproduced, distributed, broadcast, displayed, sold, licensed or otherwise used or exploited for any purpose and in any manner without the prior written consent of TheCellFreak or its respective owners. TheCellFreak reserves all rights not expressly granted to you.
4.2. TheCellFreak Content is protected by copyrights, trade or service marks, patents or other proprietary rights and are owned by or licensed to the Company or its respective owners, subject to intellectual property rights under United States and international laws and conventions. If you download, print or display any TheCellFreak Content for personal use, you must retain all copyright and other proprietary notices.
4.3. When you provide Submissions to TheCellFreak, you retain all of your rights of ownership in your Submissions. However, by uploading, posting or otherwise transmitting your Submissions, you grant TheCellFreak (and its successors) a royalty-free, perpetual, irrevocable, transferable, worldwide, non-exclusive right (including any moral rights) and license to use, sublicense, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, including by allowing download to mobile phones or other mobile communication media and products, derive revenue or other remuneration from, communicate to the public, perform and display your Submissions (in whole or in part) and/or to incorporate your Submissions in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in such content. You also grant each member, user or visitor of TheCellFreak a non-exclusive right (including any moral rights) and license to access your Submissions, and to use, reproduce, distribute, display and perform your Submissions as permitted through the functionality of TheCellFreak and by these Terms of Use.
5. SUBMISSIONS AND WEBSITE POLICIES
5.1. When you provide any Submissions to TheCellFreak, you understand and accept complete responsibility for your Submissions, including any and all consequences that may arise. As such, you represent and warrant that you: (i) own or have secured all necessary licenses, rights, consents and permissions to use and authorize TheCellFreak to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Submissions to enable inclusion and use of your Submissions in the manner contemplated by these Terms of Use, and (ii) have explicit permission, such as a signed, written consent and/or release of every person that may appear within your Submissions for TheCellFreak to use your Submissions, including the names and likeness of such persons and including audio or visual features or images, in the manner contemplated by these Terms of Use.
5.2 You agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant TheCellFreak all of the license rights granted herein.
5.3. TheCellFreak does not endorse any Submission or any opinion, recommendation, or advice expressed therein, and TheCellFreak expressly disclaims any and all liability in connection with Submissions. TheCellFreak does not permit copyright infringing activities and infringement of intellectual property rights, and it will remove any Content if properly notified that such Content infringes on another's intellectual property rights. TheCellFreak reserves the right to remove Content without prior notice.
5.4 You may not create a user name, or post, upload, email or otherwise transmit to TheCellFreak Submissions of any kind that are, within the sole discretion of TheCellFreak, determined to be (i) unlawful or illegal, criminal or tortious in nature, (ii) infringing upon or promoting infringement of any rights of third parties, including but not limited to copyrights, trademarks, patents, trade secret, design rights, moral rights or other third party proprietary rights, including privacy and publicity rights, (iii) offensive, abusive, threatening, harassing, stalking, promoting violence or racism or harm or hatred or bigotry against any group or individual, (iv) libelous or defamatory or promoting information that you know is false or illegal, (v) violating the privacy of others, (vi) pornographic, sexually explicit or containing nudity; (vii) containing software viruses or any other malicious computer code, files or programs designed to interrupt, destroy or alter the functionality of any computer software or hardware or telecommunications equipment owned by another party, (viii) an advertisement, a marketing initiative, solicitation of a business, or otherwise significantly connected with any commercial purpose; (ix) involving the transmission of any unsolicited mass mailing including but not limited to “junk mail,” “chain letters” and “spam,” (x) disparaging to TheCellFreak or any third party, (xi) otherwise objectionable material or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. In addition and without derogating from the aforesaid, TheCellFreak, at its sole and absolute discretion, has full authority, power and right to reject any Submission for any reason whatsoever, such as length or size of the Submission, non-conformity with other Content, pornography, obscene or defamatory material, or any other reason. No rights, authority or power of TheCellFreak specified in these Terms of Use, including any use or non-use by TheCellFreak of any of its rights, authorities or powers, shall be deemed to relieve you in any way from your representations, warranties and undertakings as set forth in these Terms of Use.
5.5. In addition, you must agree to adhere to all of the following guidelines and requirements:
5.5.1. The Service is only for personal use of its members, users and visitors, and may not be used in connection with any commercial endeavors unless explicitly approved by TheCellFreak. TheCellFreak itself may make any use of its websites and Content therein, including all Submissions, for any and all purposes, including commercial and advertising programs.
5.5.2. You may not perform or cause to be performed any automated system, including but not limited to “robots,” “spiders,” “offline browsers” or any other data harvesting activity or screen scraping, nor may you cause more requests to be made of the Service than could reasonably be made by a human manually operating a web browser.
5.5.3. You may not post, upload, email or otherwise transmit to or otherwise cause TheCellFreak to email, transmit or otherwise distribute chain letters, surveys or studies, solicitations, junk mail, pyramid schemes, incentives (monetary or click-based), spimming or spamming, or bulk communications of any kind, whether or not for commercial or non-commercial purposes;
5.5.4. You may not in any way (i) manipulate identifiers or forge headers in order to disguise the origin of any content or digital media transmitted through or by TheCellFreak, (ii) obscure, cover or otherwise conceal any advertisements served by or for TheCellFreak that may appear on your personal member page or any page on TheCellFreak via HTML, CSS, JavaScript or any other means, (iii) circumvent, disable or otherwise interfere with any security measures which may limit, restrict or prevent use or copying of any Submissions or enforce limitations on the use of the Service, or (iv) deceptively manipulate content, such as to improve page rank in search engines, include excessive, repetitive, or irrelevant keywords in the content or code of web pages, etc.
5.5.5. You may not use TheCellFreak in connection with any effort to solicit passwords or personal information from any member, user or visitor of TheCellFreak under the age of 18, or to obtain such user’s telephone number, street address, last name, URL or email address.
5.5.6.You may not impersonate any other person or entity (whether actual or fictitious), otherwise create a profile that provides any fictitious or false information, including but not limited to false age, or falsely represent an association with another person or entity without the explicit authorization of such person or entity.
5.5.7. You may not sell or otherwise transfer your profile.
5.5.8. Should you wish to link to TheCellFreak, you (i) will not replicate TheCellFreak content; (ii) will not frame or border environment around any TheCellFreak content; (iii) will not misrepresent any relationship with TheCellFreak or imply that TheCellFreak is connected to or endorses your products, services or other offering; (iv) will not have disparaging content or misinformation about TheCellFreak on the linking website or source; (v) will ensure the linking website will not contain any content that would not have been allowed to be submitted to TheCellFreak.
5.6 You acknowledge that despite the prohibitions specified herein, Submissions and/or websites that may be linked to TheCellFreak by members, users or visitors of TheCellFreak may violate these Terms of Use, and TheCellFreak assumes no responsibility or liability in connection therewith. If you become aware of such Submissions or links, please contact TheCellFreak to inform it of such violations.
6. VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS AND TERMS OF USE
Provided proper notification, TheCellFreak will remove Submissions that infringe upon the intellectual property rights of another and reserves the right to remove Submissions without prior notice. TheCellFreak assumes no responsibility for monitoring all content and actions of members, users or visitors of TheCellFreak. Even in the event it chooses to do so at its discretion, TheCellFreak assumes no responsibility for Submissions or any obligation to remove any inappropriate Submissions or any responsibility for the conduct of a member, user or visitor submitting inappropriate Submissions. At its sole discretion, TheCellFreak may remove any Submission and/or terminate a member’s account for violating any of these Terms of Use at any time and without notice. TheCellFreak reserves the right, but not the obligation, to take appropriate legal action against any illegal or unauthorized use of TheCellFreak or violation of these Terms of Use.
7. CLAIMS OF COPYRIGHT INFRINGEMENT
7.1. If you are a copyright owner or an agent thereof and believe that any Submission or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, email; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7.2 TheCellFreak’s designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, 3, Ha'sadnaot St, P.O.B 4010, Herzeliya Pituach 46140, Israel, Email: copyright@thecellfreak.com, Fax: +972-9-9567481. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to TheCellFreak customer service through support@thecellfreak.com. You acknowledge that if you fail to comply with all of the requirements of this Section 7, your DMCA notice may not be valid.
7.3 If you believe that your Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your Submission, you may send a counter-notice containing the following information to the Copyright Agent: (i) your physical or electronic signature; (ii) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (iii) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (iv) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the United States District Court for the Southern District of New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, TheCellFreak may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, user, or visitor, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at TheCellFreak's sole discretion.
8. DISCLAIMER OF WARRANTIES
8.1. YOU EXPRESSLY AGREE THAT USE OF ANY AND ALL SERVICES OFFERED BY THECELLFREAK IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THECELLFREAK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (HEREINAFTER "THECELLFREAK GROUP") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
8.2. THE THECELLFREAK GROUP MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED ON OR VIA THECELLFREAK, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, OMISSIONS OR INACCURACIES OF CONTENT OR SUBMISSIONS, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR ACCESS TO AND USE OF THECELLFREAK, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THECELLFREAK'S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION THAT MAY BE CONTAINED THEREIN, (IV) ANY DELETION OF DATA OR INTERRUPTION OR DISCONTINUENCE OF TRANSMISSION TO OR FROM OR THROUGH THECELLFREAK, (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALICIOUS CODE OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THECELLFREAK BY ANY MEMBER, USER, VISITOR OR THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR SUBMISSIONS THAT MAY BE UPLOADED TO OR OTHERWISE MADE AVAILABLE THROUGH THECELLFREAK.
8.3. THE THECELLFREAK GROUP IS NOT RESPONSIBLE FOR ANY CONTENT OR TRANSACTIONS THAT IS CONTAINED OR MAY BE AVAILABLE OUTSIDE THE SERVICE OR WEBSITE. THE THECELLFREAK GROUP MAKES NO REPRESENTATIONS, WARRANTEES, GUARANTEES OR ANY ENDORSEMENTS AS TO THE QUALITY, SUITABILITY, FUNCTIONALITY OR LEGALITY OF ANY PRODUCS, SERVICES OR OTHER OFFERINGS THAT MAY BE ADVERTISED OR MADE AVAILABLE BY A THIRD PARTY THROUGH THE SERVICE OR WEBSITE OR WHICH MAY BE LINKED TO THECELLFREAK SUCH AS IN ADVERTISING OR A SUBMISSION. ACCORDINGLY, THE THECELLFREAK GROUP WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR ANY TRANSACTION THAT MAY OCCUR BETWEEN YOU AND SUCH THIRD PARTIES AND YOU SHOULD ALWAYS USE PRUDENT JUDGMENT AND READ THE TERMS OF USE AND PRIVACY POLICIES ON WEBSITES OF SUCH THIRD PARTIES.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE THECELLFREAK GROUP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, ARISING FROM YOUR USE OF THE SERVICE AND/OR THECELLFREAK IN ANY MANNER, EVEN IF THE THECELLFREAK GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND, REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THECELLFREAK FOR THE SERVICE DURING THE TERM OF MEMBERSHIP. YOU SPECFICALLY AGREE AND UNDERSTAND THAT THE THECELLFREAK GROUP IS NOT LIABLE TO YOU FOR ANY SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT YOU ALONE ACCEPT SUCH RISK OF HARM.
10. INDEMNIFICATION
You agree to defend, indemnify and hold harmless the TheCellFreak Group from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service and/or the Website; (ii) your violation of any term of these Terms of Use; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that any of your Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your cessation of use of the Service and the Website.
11. GENERAL AND MISCELLANEOUS
You agree that the Service shall be deemed solely provided and based in the State of New York, USA, and that TheCellFreak shall be deemed a passive online site that does not give rise to personal jurisdiction over TheCellFreak, either specific or general, in jurisdictions other than the State of New York. Any dispute that arises between you and TheCellFreak shall be governed by the laws of the State of New York, without regard to conflict of law provisions, and you agree to exclusive personal jurisdiction and venue in the United States District Court for the Southern District of New York located in Manhattan. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TheCellFreak without restriction. Should any provision of these Terms of Use be invalidated by any court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No presumptions shall be made against the drafter of these Terms of Use. These Terms of Use, together with the TheCellFreak Privacy Notice [hyperlink] and any other legal notices published by TheCellFreak, shall constitute the entire agreement between you and TheCellFreak regarding the Service. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and TheCellFreak's failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. YOU AND THECELLFREAK AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
TheCellFreak reserves the full authority and right to amend these Terms of Use at any time at its sole and exclusive discretion, and the posting on the Website of amended Terms of Use shall bind all members, users and visitors of TheCellFreak as of the time of posting of such amended Terms of Use. Upon any use of or access to TheCellFreak, you should review these Terms of Use and ensure your agreement to comply therewith. IF YOU CANNOT AGREE WITH ANY OF THESE TERMS OF USE, PLEASE DO NOT USE OR ACCESS THECELLFREAK.
TheCellFreak Terms of Use Version 1.0
August 14, 2008
BY VISITING THECELLFREAK AND SPECIFICALLY BY USING ANY OF THE PRODUCTS, SERVICES, CONTENT, APPLICATIONS OR OTHER FEATURES THAT MAY BE AVAILABLE FROM TIME TO TIME ON OR VIA THE WEBSITE OR RELATED WEBSITES (TOGETHER, THE “SERVICE”) YOU AGREE TO BE BOUND BY BOTH THESE TERMS OF USE AND THECELLFREAK PRIVACY POLICY [hyperlink], WHICH IS INCORPORATED HERE BY REFERENCE. THESE TERMS OF USE APPLY TO ALL USERS OF THECELLFREAK, WHETHER MEMBER, USER OR VISITOR. EACH TIME YOU USE OR ACCESS THECELLFREAK YOU ARE RESPONSIBLE FOR BEING FAMILIAR WITH ANY CHANGES OR MODIFICATIONS TO THESE TERMS OF USE, WHICH MAY OCCUR FROM TIME TO TIME.
THE SERVICE IS OFFERED TO YOU FREE OF CHARGE. HOWEVER, OTHER CHARGES MAY APPLY, SUCH AS MESSAGING, DATA, AIRTIME AND OTHER SERVICE FEES TO YOUR MOBILE PHONE CARRIER. YOU ARE SOLELY RESPONSIBLE TO CHECK, ARRANGE AND PAY FOR ANY SERVICE FEES ASSOCIATED WITH YOUR ABILITY TO ACCESS THECELLFREAK AS WELL AS ANY OTHER EQUIPMENT NECESSARY TO CONNECT TO ANY SERVICE OFFERED BY THECELLFREAK. IN ADDITION, ALTHOUGH THE THECELLFREAK SERVICE IS FREE, OUR ADVERTISERS' SERVICES MAY NOT BE.
YOU UNDERSTAND AND AGREE THAT THE SERVICE MAY INCLUDE ADVERTISEMENTS AND THAT SUCH ADVERTISEMENTS ARE NECESSARY FOR THECELLFREAK TO PROVIDE THE SERVICE. YOU UNDERSTAND AND AGREE THAT THE WEBSITE AND ANY CONTENT AND MESSAGES SENT TO OR FROM YOUR MOBILE PHONE INCLUDE SUCH ADVERTISEMENTS AND THAT SUCH COMMUNICATIONS ARE CONSIDERED PART OF THE SERVICE. THECELLFREAK WILL NOT SEND YOU UNSOLICITED ADVERTISING MESSAGES. ANY ADVERTISEMENTS YOU RECEIVE WILL BE ATTACHED TO CONTENT YOU DOWNLOAD FROM THE WEBSITE.
YOU CAN TERMINATE THE SERVICE, STOP RECEIVING MESSAGES FROM THECELLFREAK, AND DELETE YOUR MEMBERSHIP AT ANY TIME BY CLICKING HERE
1. ELIGIBILITY, MEMBERSHIP AND TERMINATION
1.1. In order to use TheCellFreak you must affirm that (i) you are able to understand and accept these Terms of Use and abide by their terms; (ii) should you decided to register and become a member, all registration information you provide will be accurate and truthful and you agree to timely maintain this information; (iii) you are at least 13 years of age or older; and (iv) if you are not yet at least 18 years of age you are an emancipated minor or have consent of your parent or legal guardian.
1.2. IF YOU ARE NOT AT LEAST 13 YEARS OF AGE, UNFORTUNATELY YOU CANNOT USE THECELLFREAK.
1.3. You are responsible for ensuring that your equipment, software and use do not disturb or interfere with our operation of the Service. In the sole discretion of TheCellFreak, any equipment, software or usage that may cause any interference with the Service may result in immediate disconnection from TheCellFreak.
1.4. Downloading, installing, or using certain services may be prohibited or restricted by your mobile phone carrier, and not all services may work with all mobile phone carriers or devices. Therefore, you should check with your mobile phone carrier to find out if the Service is available for your mobile devices, and what restrictions, if any, may be applicable to your use of the Service.
1.5. You are entirely responsible for maintaining the security and confidentiality of your information and password. You agree that you will immediately notify TheCellFreak should your password or any of your information be compromised and of any such unauthorized use. Any information provided by you or gathered by TheCellFreak or third parties during any use of TheCellFreak shall be subject to TheCellFreak Privacy Policy[hyperlink].
1.6. Should you violate or breach these Terms of Use or make any use of TheCellFreak which, at TheCellFreak's sole and exclusive discretion, is unacceptable to it, TheCellFreak reserves the right, at its sole discretion and without notice, to suspend or terminate your membership or forbid you from further access to TheCellFreak, and remove any and all content and information you may have provided to or stored on TheCellFreak. Even after termination of these Terms of Use, the provisions of Sections 4 and 6-11 shall remain in effect.
2. DESCRIPTION OF THE SERVICE
2.1. TheCellFreak provides an advertisement supported mobile content and internet community based service through the Website. The Service enables you to create, edit, upload, download and share content through the Website and/or via your mobile phone. In addition, TheCellFreak provides a service of free text messaging to mobile phones through the Website.
2.2. You understand and agree that the Service may include certain communications from TheCellFreak or other third parties, such as advertisements, service announcements and administrative messages, and that these communications are considered part of the Service. By using the Service, you agree that we may communicate with you regarding TheCellFreak by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Service may be communicated to us. You will not be able to opt out of receiving such communications unless you specifically request to opt out.
2.3 TheCellFreak may contain links to third party websites that are not owned or controlled by the Company. TheCellFreak has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third party websites. In addition, TheCellFreak will not and cannot censor or edit the content of any third party site. By using TheCellFreak, you expressly relieve the Company from any and all liability arising from your use of any third party website.
3. USE OF THECELLFREAK
3.1. You alone are responsible for your conduct on TheCellFreak and for all the content you provide or download for use.
3.2. TheCellFreak may include content, software, scripts, text, images, graphics, audio, video, digital files and other materials in any form, provided by TheCellFreak itself (including any vendors, suppliers, licensors and other third parties) ("TheCellFreak Content") or provided by members, users or visitors of TheCellFreak ("Submissions") (together, “Content”). TheCellFreak does not endorse any Submissions and makes no warranties, express or implied, as to their accuracy and reliability. TheCellFreak expressly disclaims any and all liability in connection with any and all Submissions.
3.3. If you are 18 years or older, or are an emancipated minor, you alone are responsible for your physical and financial safety when you post information about yourself on TheCellFreak, communicate with other members of the TheCellFreak community or otherwise access the Service. If you are under 18 years old and not an emancipated minor, both you and your parents or legal guardian are responsible for your physical and financial safety when you post information about yourself on TheCellFreak, communicate with other members of the TheCellFreak community, or otherwise access the Service.
4. INTELLECTUAL PROPERTY RIGHTS
4.1. You understand and agree that all Content is provided to you solely on an AS IS basis. You further understand and agree that all Content may be used by you only for your personal use and may not be copied, reproduced, distributed, broadcast, displayed, sold, licensed or otherwise used or exploited for any purpose and in any manner without the prior written consent of TheCellFreak or its respective owners. TheCellFreak reserves all rights not expressly granted to you.
4.2. TheCellFreak Content is protected by copyrights, trade or service marks, patents or other proprietary rights and are owned by or licensed to the Company or its respective owners, subject to intellectual property rights under United States and international laws and conventions. If you download, print or display any TheCellFreak Content for personal use, you must retain all copyright and other proprietary notices.
4.3. When you provide Submissions to TheCellFreak, you retain all of your rights of ownership in your Submissions. However, by uploading, posting or otherwise transmitting your Submissions, you grant TheCellFreak (and its successors) a royalty-free, perpetual, irrevocable, transferable, worldwide, non-exclusive right (including any moral rights) and license to use, sublicense, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, including by allowing download to mobile phones or other mobile communication media and products, derive revenue or other remuneration from, communicate to the public, perform and display your Submissions (in whole or in part) and/or to incorporate your Submissions in other works in any form, media, or technology now known or later developed, for the full term of any rights that may exist in such content. You also grant each member, user or visitor of TheCellFreak a non-exclusive right (including any moral rights) and license to access your Submissions, and to use, reproduce, distribute, display and perform your Submissions as permitted through the functionality of TheCellFreak and by these Terms of Use.
5. SUBMISSIONS AND WEBSITE POLICIES
5.1. When you provide any Submissions to TheCellFreak, you understand and accept complete responsibility for your Submissions, including any and all consequences that may arise. As such, you represent and warrant that you: (i) own or have secured all necessary licenses, rights, consents and permissions to use and authorize TheCellFreak to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Submissions to enable inclusion and use of your Submissions in the manner contemplated by these Terms of Use, and (ii) have explicit permission, such as a signed, written consent and/or release of every person that may appear within your Submissions for TheCellFreak to use your Submissions, including the names and likeness of such persons and including audio or visual features or images, in the manner contemplated by these Terms of Use.
5.2 You agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant TheCellFreak all of the license rights granted herein.
5.3. TheCellFreak does not endorse any Submission or any opinion, recommendation, or advice expressed therein, and TheCellFreak expressly disclaims any and all liability in connection with Submissions. TheCellFreak does not permit copyright infringing activities and infringement of intellectual property rights, and it will remove any Content if properly notified that such Content infringes on another's intellectual property rights. TheCellFreak reserves the right to remove Content without prior notice.
5.4 You may not create a user name, or post, upload, email or otherwise transmit to TheCellFreak Submissions of any kind that are, within the sole discretion of TheCellFreak, determined to be (i) unlawful or illegal, criminal or tortious in nature, (ii) infringing upon or promoting infringement of any rights of third parties, including but not limited to copyrights, trademarks, patents, trade secret, design rights, moral rights or other third party proprietary rights, including privacy and publicity rights, (iii) offensive, abusive, threatening, harassing, stalking, promoting violence or racism or harm or hatred or bigotry against any group or individual, (iv) libelous or defamatory or promoting information that you know is false or illegal, (v) violating the privacy of others, (vi) pornographic, sexually explicit or containing nudity; (vii) containing software viruses or any other malicious computer code, files or programs designed to interrupt, destroy or alter the functionality of any computer software or hardware or telecommunications equipment owned by another party, (viii) an advertisement, a marketing initiative, solicitation of a business, or otherwise significantly connected with any commercial purpose; (ix) involving the transmission of any unsolicited mass mailing including but not limited to “junk mail,” “chain letters” and “spam,” (x) disparaging to TheCellFreak or any third party, (xi) otherwise objectionable material or that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. In addition and without derogating from the aforesaid, TheCellFreak, at its sole and absolute discretion, has full authority, power and right to reject any Submission for any reason whatsoever, such as length or size of the Submission, non-conformity with other Content, pornography, obscene or defamatory material, or any other reason. No rights, authority or power of TheCellFreak specified in these Terms of Use, including any use or non-use by TheCellFreak of any of its rights, authorities or powers, shall be deemed to relieve you in any way from your representations, warranties and undertakings as set forth in these Terms of Use.
5.5. In addition, you must agree to adhere to all of the following guidelines and requirements:
5.5.1. The Service is only for personal use of its members, users and visitors, and may not be used in connection with any commercial endeavors unless explicitly approved by TheCellFreak. TheCellFreak itself may make any use of its websites and Content therein, including all Submissions, for any and all purposes, including commercial and advertising programs.
5.5.2. You may not perform or cause to be performed any automated system, including but not limited to “robots,” “spiders,” “offline browsers” or any other data harvesting activity or screen scraping, nor may you cause more requests to be made of the Service than could reasonably be made by a human manually operating a web browser.
5.5.3. You may not post, upload, email or otherwise transmit to or otherwise cause TheCellFreak to email, transmit or otherwise distribute chain letters, surveys or studies, solicitations, junk mail, pyramid schemes, incentives (monetary or click-based), spimming or spamming, or bulk communications of any kind, whether or not for commercial or non-commercial purposes;
5.5.4. You may not in any way (i) manipulate identifiers or forge headers in order to disguise the origin of any content or digital media transmitted through or by TheCellFreak, (ii) obscure, cover or otherwise conceal any advertisements served by or for TheCellFreak that may appear on your personal member page or any page on TheCellFreak via HTML, CSS, JavaScript or any other means, (iii) circumvent, disable or otherwise interfere with any security measures which may limit, restrict or prevent use or copying of any Submissions or enforce limitations on the use of the Service, or (iv) deceptively manipulate content, such as to improve page rank in search engines, include excessive, repetitive, or irrelevant keywords in the content or code of web pages, etc.
5.5.5. You may not use TheCellFreak in connection with any effort to solicit passwords or personal information from any member, user or visitor of TheCellFreak under the age of 18, or to obtain such user’s telephone number, street address, last name, URL or email address.
5.5.6.You may not impersonate any other person or entity (whether actual or fictitious), otherwise create a profile that provides any fictitious or false information, including but not limited to false age, or falsely represent an association with another person or entity without the explicit authorization of such person or entity.
5.5.7. You may not sell or otherwise transfer your profile.
5.5.8. Should you wish to link to TheCellFreak, you (i) will not replicate TheCellFreak content; (ii) will not frame or border environment around any TheCellFreak content; (iii) will not misrepresent any relationship with TheCellFreak or imply that TheCellFreak is connected to or endorses your products, services or other offering; (iv) will not have disparaging content or misinformation about TheCellFreak on the linking website or source; (v) will ensure the linking website will not contain any content that would not have been allowed to be submitted to TheCellFreak.
5.6 You acknowledge that despite the prohibitions specified herein, Submissions and/or websites that may be linked to TheCellFreak by members, users or visitors of TheCellFreak may violate these Terms of Use, and TheCellFreak assumes no responsibility or liability in connection therewith. If you become aware of such Submissions or links, please contact TheCellFreak to inform it of such violations.
6. VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS AND TERMS OF USE
Provided proper notification, TheCellFreak will remove Submissions that infringe upon the intellectual property rights of another and reserves the right to remove Submissions without prior notice. TheCellFreak assumes no responsibility for monitoring all content and actions of members, users or visitors of TheCellFreak. Even in the event it chooses to do so at its discretion, TheCellFreak assumes no responsibility for Submissions or any obligation to remove any inappropriate Submissions or any responsibility for the conduct of a member, user or visitor submitting inappropriate Submissions. At its sole discretion, TheCellFreak may remove any Submission and/or terminate a member’s account for violating any of these Terms of Use at any time and without notice. TheCellFreak reserves the right, but not the obligation, to take appropriate legal action against any illegal or unauthorized use of TheCellFreak or violation of these Terms of Use.
7. CLAIMS OF COPYRIGHT INFRINGEMENT
7.1. If you are a copyright owner or an agent thereof and believe that any Submission or other Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail): (i) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material; (iv) information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, email; (v) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
7.2 TheCellFreak’s designated Copyright Agent to receive notifications of claimed infringement is: Copyright Agent, 3, Ha'sadnaot St, P.O.B 4010, Herzeliya Pituach 46140, Israel, Email: copyright@thecellfreak.com, Fax: +972-9-9567481. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to TheCellFreak customer service through support@thecellfreak.com. You acknowledge that if you fail to comply with all of the requirements of this Section 7, your DMCA notice may not be valid.
7.3 If you believe that your Submission that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your Submission, you may send a counter-notice containing the following information to the Copyright Agent: (i) your physical or electronic signature; (ii) identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled; (iii) a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and (iv) your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the United States District Court for the Southern District of New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. If a counter-notice is received by the Copyright Agent, TheCellFreak may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member, user, or visitor, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at TheCellFreak's sole discretion.
8. DISCLAIMER OF WARRANTIES
8.1. YOU EXPRESSLY AGREE THAT USE OF ANY AND ALL SERVICES OFFERED BY THECELLFREAK IS AT YOUR SOLE RISK AND THAT THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. THECELLFREAK AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (HEREINAFTER "THECELLFREAK GROUP") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
8.2. THE THECELLFREAK GROUP MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT PROVIDED ON OR VIA THECELLFREAK, AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, OMISSIONS OR INACCURACIES OF CONTENT OR SUBMISSIONS, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR ACCESS TO AND USE OF THECELLFREAK, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THECELLFREAK'S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION THAT MAY BE CONTAINED THEREIN, (IV) ANY DELETION OF DATA OR INTERRUPTION OR DISCONTINUENCE OF TRANSMISSION TO OR FROM OR THROUGH THECELLFREAK, (V) ANY BUGS, VIRUSES, TROJAN HORSES, MALICIOUS CODE OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THECELLFREAK BY ANY MEMBER, USER, VISITOR OR THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR SUBMISSIONS THAT MAY BE UPLOADED TO OR OTHERWISE MADE AVAILABLE THROUGH THECELLFREAK.
8.3. THE THECELLFREAK GROUP IS NOT RESPONSIBLE FOR ANY CONTENT OR TRANSACTIONS THAT IS CONTAINED OR MAY BE AVAILABLE OUTSIDE THE SERVICE OR WEBSITE. THE THECELLFREAK GROUP MAKES NO REPRESENTATIONS, WARRANTEES, GUARANTEES OR ANY ENDORSEMENTS AS TO THE QUALITY, SUITABILITY, FUNCTIONALITY OR LEGALITY OF ANY PRODUCS, SERVICES OR OTHER OFFERINGS THAT MAY BE ADVERTISED OR MADE AVAILABLE BY A THIRD PARTY THROUGH THE SERVICE OR WEBSITE OR WHICH MAY BE LINKED TO THECELLFREAK SUCH AS IN ADVERTISING OR A SUBMISSION. ACCORDINGLY, THE THECELLFREAK GROUP WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR ANY TRANSACTION THAT MAY OCCUR BETWEEN YOU AND SUCH THIRD PARTIES AND YOU SHOULD ALWAYS USE PRUDENT JUDGMENT AND READ THE TERMS OF USE AND PRIVACY POLICIES ON WEBSITES OF SUCH THIRD PARTIES.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL THE THECELLFREAK GROUP BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, ARISING FROM YOUR USE OF THE SERVICE AND/OR THECELLFREAK IN ANY MANNER, EVEN IF THE THECELLFREAK GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION AND, REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THECELLFREAK FOR THE SERVICE DURING THE TERM OF MEMBERSHIP. YOU SPECFICALLY AGREE AND UNDERSTAND THAT THE THECELLFREAK GROUP IS NOT LIABLE TO YOU FOR ANY SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT YOU ALONE ACCEPT SUCH RISK OF HARM.
10. INDEMNIFICATION
You agree to defend, indemnify and hold harmless the TheCellFreak Group from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service and/or the Website; (ii) your violation of any term of these Terms of Use; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that any of your Submissions caused damage to a third party. This defense and indemnification obligation will survive these Terms of Use and your cessation of use of the Service and the Website.
11. GENERAL AND MISCELLANEOUS
You agree that the Service shall be deemed solely provided and based in the State of New York, USA, and that TheCellFreak shall be deemed a passive online site that does not give rise to personal jurisdiction over TheCellFreak, either specific or general, in jurisdictions other than the State of New York. Any dispute that arises between you and TheCellFreak shall be governed by the laws of the State of New York, without regard to conflict of law provisions, and you agree to exclusive personal jurisdiction and venue in the United States District Court for the Southern District of New York located in Manhattan. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TheCellFreak without restriction. Should any provision of these Terms of Use be invalidated by any court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No presumptions shall be made against the drafter of these Terms of Use. These Terms of Use, together with the TheCellFreak Privacy Notice [hyperlink] and any other legal notices published by TheCellFreak, shall constitute the entire agreement between you and TheCellFreak regarding the Service. No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and TheCellFreak's failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision. YOU AND THECELLFREAK AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
TheCellFreak reserves the full authority and right to amend these Terms of Use at any time at its sole and exclusive discretion, and the posting on the Website of amended Terms of Use shall bind all members, users and visitors of TheCellFreak as of the time of posting of such amended Terms of Use. Upon any use of or access to TheCellFreak, you should review these Terms of Use and ensure your agreement to comply therewith. IF YOU CANNOT AGREE WITH ANY OF THESE TERMS OF USE, PLEASE DO NOT USE OR ACCESS THECELLFREAK.
TheCellFreak Terms of Use Version 1.0
August 14, 2008