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Cellware Terms of Service

1. ACCEPTANCE OF TERMS

This Terms Of Service agreement (this “TOS”) is between YOU and Cellware, LLC (“Cellware”), with offices located at 777 East Atlantic Avenue, Suite #312, Delray Beach, FL 33483. Your use of this web site (the “Cellware Web Site”) and any other Web sites made available by Cellware on which this TOS is posted (collectively, the “Sites”), and any services of any kind whatsoever offered or made available thereon or described herein (the “Services”), signifies your agreement to this TOS set forth below. BY USING THE SITES AND/OR THE SERVICES, YOU ACCEPT AND AGREE TO THESE TERMS. Cellware provides its Services to you subject to the following TOS, which may be updated or modified by us from time to time without notice to you. You can review the most current version of the TOS at any time by viewing the TOS page within the Cellware Web Site.

2. DESCRIPTION OF SERVICE

ALTHOUGH CELLWARE’S SERVICES ARE FREE, OUR ADVERTISERS’ SERVICES MAY NOT BE.

Cellware provides a number of mobile content and internet community based services through the Cellware Web Site. One such service enables users to create customized ringtones, wallpapers, videos, games, applications (collectively, “Content”). Cellware users may create, edit, download and share individual Content. Cellware may offer a number of other Services on its Web Sites, such as blogs, forums, messaging and contests which may change from time to time.

You understand and agree that the Services may include advertisements and that these advertisements are necessary for Cellware to provide the Services. You understand and agree that the website includes these advertisements and that these communications are considered part of Cellware membership. You further understand and agree that the Services may include certain communications from Cellware or other third parties, such as advertisements, service announcements and administrative messages, and that these communications are considered part of the Cellware membership and you will not be able to opt out of receiving them unless you specifically request to opt out.

Unless explicitly stated otherwise, any new features that enhance the current Services, including the release of new Cellware properties, shall be subject to the TOS. You understand and agree that the Services are provided ‘AS-IS’ and that Cellware assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any user communications or personalization settings. You are responsible for obtaining access to the Services, and that access may involve third-party fees (such as mobile phone service carrier fees, internet service provider fees or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access the Services.

3. DEALINGS WITH ADVERTISERS

Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the Services or those advertised via an email from Cellware, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such advertiser. You agree that Cellware shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings with advertisers.  These dealings with advertisers may result in you paying for the service that they provide.

4. USER LICENSE

Subject to the TOS set forth in this agreement, Cellware grants you a non-exclusive, non-transferable, limited right to access, view, use and display the Sites, the Services and the materials thereon on your computer, mobile phone, or other internet compatible or mobile device, provided that you comply fully with this TOS.

5. OWNERSHIP RESTRICTIONS

Cellware owns, solely and exclusively, all rights, title and interest in and to the Sites and Services. That includes the rights to all material and content thereon (other than that which users may submit to us), including without limitation audio, video, games, applications, text, code and data. In addition, Cellware owns in the same manner all rights to the feel, look, design and organization of the Sites and the Services. Cellware rights include but are not limited to any copyrights, trademark rights, patent rights, database rights, moral rights, and other intellectual property and proprietary rights therein. You agree to abide by all restrictions displayed on the Sites and in connection with the Services. Your use of the Sites or Services does not grant to you ownership of any Content you may access or use.

6. MEMBER ACCOUNT, PASSWORD AND SECURITY

You will select a user name and password when you sign up for the Services. You are responsible for maintaining the confidentiality of the user name and password and are fully responsible for all activities that occur under your user name and password. You agree to: (a) immediately notify Cellware of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Cellware cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 7.

7. ELIGIBILITY

Cellware will only knowingly provide the Services to parties that can lawfully enter into and form contracts under applicable law. If you are between the ages of 13 and 18 you may use the Services only under the supervision of a parent or legal guardian who agrees to be bound by these TOS. The Services are not intended for children under the age of 13.

8. TERMINATION OR CANCELLATION OF ACCOUNT

If you cancel your account for any reason, or if your account is terminated due to the termination or lapse of your wireless service or because of your breach of contract, Cellware will not refund any of your fees paid to date. To cancel your subscription or your account, email us at support@cellware.com.

9. BILLING DISPUTES & REFUNDS

If you have a complaint or dispute about any purchase, you must notify Cellware’s customer service (and not your wireless carrier) of such complaint or dispute. Cellware may issue refunds for certain corrupt or defective content. However, if you repeatedly request refunds, which in our sole discretion are illegitimate, your use of the Services may be subject to suspension or termination, without further notice to you.

You must notify Cellware’s customer service about any billing problems or discrepancies within ninety (90) days after they first appear on your account statement. If you do not bring them to Cellware’s attention within such ninety (90) days, you agree that you waive your right to dispute such problems or discrepancies. Also, please note that if you have incurred charges from one of our advertisers or sponsors, you will need to edit your subscription preferences with them.

10. FEE CHANGES

All content credit value is subject to change, without further notice to you. It is up to your wireless carrier to notify you if there are any changes to its rates.

11. MEMBER CONDUCT

You understand that except for advertising programs offered by us on the Sites, the Services and the Sites are available for your personal, non-commercial use only. You represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Services will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.

You agree that you must evaluate, and bear all risks associated with, the use of the Services, including any reliance on the accuracy, completeness, or usefulness of the Services. In this regard, you acknowledge that you may not rely on any material and/or Content created or provided by the Services. You acknowledge, consent and agree that Cellware may access, preserve and disclose your account information in its sole discretion subject to its Privacy Policy.

You understand that the technical processing and transmission of the Services may involve (a) transmissions over various networks and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

You understand that the Services and software embodied within the Services may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Cellware and/or content providers who provide content to the Services. You may not attempt to override or circumvent any of the usage rules embedded into the Services. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided as a part of the Services, in whole or in part, is strictly prohibited.

You agree to not:

(a) harvest or collect email addresses or other contact information of other users from the Services or the Sites by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

(b) use the Services or the Sites in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Sites;

(c) use automated scripts to collect information from or otherwise interact with the Services or the Sites;

(d) upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable;

(e) register for more than one user account, register for a user account on behalf of an individual other than yourself, or register for a user account on behalf of any group or entity;

(f) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;

(g) upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation;

(h) upload, post, transmit, share, store or otherwise make publicly available on the Sites any private information of any third party, including, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;

(i) solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;

(j) upload, post, transmit, share or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

(k) intimidate or harass another;

(l) upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;

(m) use or attempt to use another’s account, service or system without authorization from Cellware, or create a false identity on the Sites or in your use of the Services.

(n) upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Company, is objectionable or which restricts or inhibits any other person from using or enjoying the Sites, or which may expose Company or its users to any harm or liability of any type;

(o) interfere with or disrupt the Services, servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;

(p) intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;

(q) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act; ‘Stalk’ or otherwise harass another; and

(r) install or run viruses, cookies, worms, logic bombs, Trojan horses, or similar malicious instructions, techniques, or devices; and /or collect or store personal data about other users.

12. Cellware MOBILE SERVICES

The Services include certain services that are available via your mobile phone, including (i) the ability to upload content to Cellware via your mobile phone (Mobile Uploads), (ii) the ability to receive and reply to Cellware messages, and to write wall posts using text messaging (Mobile Texts), (iii) the ability to browse Cellware from your mobile phone (Mobile Web), and (iv) the ability to access certain Cellware features through a mobile application you have downloaded and installed on your mobile phone (Mobile Client) (collectively the “Mobile Services”). Your carrier’s normal messaging, data and other rates and fees will still apply. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services. By using the Mobile Services, you agree that we may communicate with you regarding Cellware and other entities by SMS, MMS, text message or other electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us.

13. INDEMNITY

YOU AGREE TO INDEMNIFY AND HOLD Cellware AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, PARTNERS AND LICENSORS HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF CONTENT YOU SUBMIT, POST, TRANSMIT OR OTHERWISE MAKE AVAILABLE THROUGH THE SERVICES, YOUR USE OF THE SERVICES, YOUR CONNECTION TO THE SERVICES, YOUR VIOLATION OF THE TOS, OR YOUR VIOLATION OF ANY RIGHTS OF ANOTHER.

14. NO RESALE OF SERVICE

The Sites and the Services are for your personal, internal and noncommercial use only (except where specifically and expressly permitted and/or stated). You may not download, copy, distribute, display, reproduce, create derivative works from, transmit, sell or publish material or content obtained from the Sites or the Services for any public or commercial use without the express written permission of Cellware or the applicable rights holder. You may view and download single copies of Content only for your personal, non-commercial use only, provided that you maintain all copyright and other notices in compliance with the Cellware TOS. Cellware will aggressively enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.

15. GENERAL PRACTICES

You acknowledge that Cellware may establish general practices and limits concerning use of the Services. You acknowledge that Cellware reserves the right to delete accounts that are inactive for an extended period of time. You further acknowledge that Cellware reserves the right to modify these general practices and limits from time to time.

16. MODIFICATIONS TO SERVICES

Cellware reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Cellware shall not be liable to you or to any third party for any such modification or discontinuance of the Services.

17. TERMINATION

You agree that Cellware may, under certain circumstances and without prior notice, immediately terminate your Cellware account, any associated email address, and access to the Serviced. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Serviced (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity and/or (g) engagement by you in fraudulent or illegal activities. Termination of your Cellware account includes removal of access to all offerings within the Serviced and barring of further use of the Services. Further, you agree that all terminations for cause shall be made in Cellware’s sole discretion and that Cellware shall not be liable to you or any third party for any termination of your account or access to the Services.

18. LINKS

The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Cellware has no control over such sites and resources, you acknowledge and agree that Cellware is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Cellware shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, advertising, products or other materials available on or through any such site or resource.

19. Cellware’s PROPRIETARY RIGHTS

You acknowledge and agree that the Services and any necessary software used in connection with the Serviced (collectively, “Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content contained in sponsor advertisements or information presented to you through the Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Cellware or advertisers, you agree not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services or the Software, in whole or in part.

Cellware grants you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work from, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Services. You agree not to access the Services by any means other than through the interface that is provided by Cellware for use in accessing the Services.

20. DISCLAIMER OF WARRANTIES

You expressly understand and agree that: your use of the service is at your sole risk. The service is provided on an ‘as is’ and ‘as available’ basis. Cellware and its subsidiaries, affiliates, officers, employees, agents, partners and licensors expressly disclaim all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement, making no warranty that (a) the service will meet your requirements; (b) the service will be uninterrupted, timely, secure or error-free; (c) the results that may be obtained from the use of the service will be accurate or reliable; (d) the quality of any products, services, information or other material purchased or obtained by you through the service will meet your expectations; and (e) any errors in the software will be corrected. Any material downloaded or otherwise obtained through the use of the service is accessed at your own discretion and risk, and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.

21. LIMITATION OF LIABILITIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT Cellware AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, ADVERTISERS AND LICENSERS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Cellware HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).

22. EXCLUSIONS AND LIMITATIONS

Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of sections 22 and 23 may not apply to you.

23. NO THIRD-PARTY BENEFICIARIES

You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this TOS.

24. NOTICE

Cellware may provide you with notices, including those regarding changes to the TOS, by email, regular mail or postings on the Services.

25. TRADEMARK INFORMATION

Cellware trademarks and service marks and other Cellware logos and product and service names are trademarks of Cellware (the “Cellware Marks”). Without Cellware’s prior permission, you agree not to display or use in any manner the Cellware Marks.

26. GENERAL INFORMATION

Entire Agreement. The TOS constitutes the entire agreement between you and Cellware and governs your use of the Services, superseding any prior agreements between you and Cellware with respect to the Services. You also may be subject to additional TOS that may apply when you use or purchase certain other services, affiliate services, third-party content or third-party software.

Choice of Law and Forum. The TOS and the relationship between you and Cellware shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and Cellware agree to submit to the personal and exclusive jurisdiction of the courts located within the State of Florida.

Waiver of Severability of Terms. The failure of Cellware to exercise or enforce any right or provision of the TOS shall not constitute a waiver of such right or provision. If any provision of the TOS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the TOS remain in full force and effect.

Statute of Limitations. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

Changes In Our Terms of Service Cellware may make changes to its Terms of Service. Cellware will post these changes on the site. Members will be bound by any changes to the Terms of Service when they use the site after those changes have been posted.

Contacting Us – If you have any questions about this Terms of Service, the practices of this site, or your dealings with this Site, please do not hesitate to contact us.

Email / Web: Click Here to Contact Us

Address:

777 Atlantic Ave.

Delray Beach, FL 33483