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Terms and Conditions

Updated: November 01, 2010

INTRODUCTION

Welcome to the Web site ("Web Site") of Milkshake, LLC. ("Milkshake", "we," "us" or "our").

These terms of use are a legal agreement between you and Milkshake. Your access to or use of this Web Site or any product or service offered on or through our Web Site (collectively, starting with the phrase "this Web Site" the "Service(s)") is subject to these terms of use. We reserve the right, at our sole discretion, to change, modify or otherwise alter these terms of use at any time. Such changes and/or modifications shall become effective immediately upon the posting thereof. Please review the terms of use page periodically. Your continued use of our Services following the posting of changes and/or modifications shall constitute your acceptance of the revised terms of use. If you do not agree to these terms of use, you may not use this Web Site or any of our other Services.

Please note that special terms may apply to some Services, like rules for particular contests or sweepstakes or other features or activities. These terms will be posted in connection with the applicable Service. Any such terms are in addition to these terms of use, and in the event of a conflict, prevail over these terms of use.

You acknowledge that these terms of use are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of the Services, including, your receipt of daily emails and information available at or through the Web Site.

You must be at least 13 years of age to access and use the Service(s).

1. LICENSE FROM MILKSHAKE

Milkshake grants you a limited license to access and make personal use of its Services and not to download (other than page caching) or modify them, or any portion(s) thereof, except with the prior express written consent of an authorized representative of Milkshake. This license does not include any resale or commercial use of the Services; any collection and use of any product listings, descriptions, or prices; any derivative use of the Services; any downloading or copying of account information for the benefit of another; or any use of data mining, robots, or similar data gathering and extraction tools.

The Services, including any portion(s) thereof, may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without the prior express written consent of an authorized representative of Milkshake. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Milkshake and our partners and affiliates without the respective owner's prior express written consent of an authorized representative.

You may not use any meta tags or any other "hidden text" utilizing Milkshake's name or trademarks and any term or phrase or logo that may infringe or have the likelihood of being considered confusingly similar thereto without the prior express written consent of an authorized representative of Milkshake.

You are granted a limited, revocable, and nonexclusive license to create a hyperlink to the home page of Milkshake.com so long as the link does not portray Milkshake, its advertisers, merchants or partners or any of its/their respective affiliates, or the Services in a false, misleading, derogatory, or otherwise offensive matter. Any permitted links to this Service must comply will all applicable laws, rule and regulations. Unauthorized framing of or linking to Milkshake properties may be investigated, and we reserve the right to take any appropriate legal action, including without limitation, civil, criminal, and injunctive redress. You may not use any Milkshake logo or other proprietary graphic or trademark as part of the link without the prior written permission of an authorized representative of Milkshake. Notwithstanding anything else, Milkshake reserves the right to remove its license to you to create a hyperlink to the Services for no reason, at any time, without notice and without liability. Unless explicitly stated herein, nothing in these terms of use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause without any liability whatsoever to the Milkshake Parties. All rights and licenses not explicitly set forth in these terms of use are reserved.

2. TRADEMARKS

MILKSHAKE™, ALL THAT'S GOOD™ and other Milkshake graphics, logos, designs, page headers, button icons, scripts, domain names and service names are registered trademarks, trademarks or trade dress of Milkshake in the U.S. and other countries. Milkshake's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of an authorized representative of Milkshake.

3. PROPRIETARY RIGHTS

You understand, acknowledge and agree that: (i) Milkshake (or Milkshake's licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist); (ii) the Services may contain information which is designated confidential or proprietary by Milkshake and that you shall not disclose, use or in any way provide such information without prior written consent from an authorized representative of Milkshake; (iii) all trademarks, domain names, and other distinctive brand features appearing on the Services are the exclusive property of their respective owners and these terms of use do not grant you any rights or interest therein; and (iv) you shall not remove, obscure, or alter any proprietary rights notices (including copyright, trademark or other proprietary notices) which may be affixed to or contained within the Services.

4. USER INFORMATION

In the course of your use of the Services, you may be asked to provide certain personalized information to us (such information referred to hereinafter as "User Information"). Milkshake's information collection and use policies with respect to the privacy of such User Information and any other information about Users are set forth in our privacy policy located at www.getmilkshake.com/privacy which is incorporated herein by reference for all purposes. You acknowledge and agree that you are solely responsible for the accuracy and content of your User Information, and you agree to keep it up to date.

5. POSTINGS

To the extent that portions of the Services provide users an opportunity to post and exchange information, ideas and opinions (the "Postings"), please be advised that Postings do not necessarily reflect the views of Milkshake. In no event shall Milkshake assume or have any responsibility or liability for any Postings or for any claims, damages or losses resulting from their use and/or appearance on or through the Services.

You hereby represent and warrant that you have all necessary rights in and to all Postings you provide and all information they contain and that such Postings shall not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information.

You hereby authorize Milkshake to use, and authorize others to use, your Postings in whole or in part, on a royalty-free basis, throughout the universe in perpetuity in any and all media, now known or hereafter devised, alone, or together or as part of other material of any kind or nature. Without limiting the foregoing, Milkshake will have the right to use and change the Postings at any time and in any manner that Milkshake may determine in its sole and absolute discretion. Additionally, Milkshake may sweep its chatrooms and/or message boards periodically in its sole discretion.

Milkshake does not allow Postings which contain:

  • private or personal information which might identify a user
  • profanity or obscenities
  • personal attacks on other individuals
  • materials that would constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law, materials that would violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, trade secret, confidentiality, contract, patent, rights of privacy or publicity or any other proprietary right
  • virus, spyware, or other harmful component
  • embedded links, advertising, chain letters or pyramid schemes of any kind
  • false or misleading indications of origin, endorsement or statements of fact
  • slanderous, defamatory, obscene, pornographic, threatening and harassing comments; and/or other information or material that Milkshake deems in its sole discretion to be inappropriate for this Web Site

You further agree not to impersonate any other person or entity, whether actual or fictitious, including anyone from the Services or Milkshake. You also may not offer to buy or sell any product or service on or through your comments submitted to our forums. Remember that you alone are responsible for the content and consequences of any of your activities and assume all risk of harm associated therewith.

The chatrooms/message boards may be used for noncommercial purposes only. Users may not post any information intended to promote and/or generate revenue for any third party business activity. Although Milkshake periodically monitors the content posted on this Web Site, we cannot be responsible for the views or opinions expressed by third parties. Nonetheless, Milkshake will make commercially reasonable effort to ensure that the chatrooms/message boards best serve the interests of all users and, therefore, Milkshake reserves the right, but does not have an obligation, to refuse to post, edit, or delete messages that violate the above-referenced rules, as well as revoke and limit the privileges of users who do not comply with such rules. Without limiting any of the foregoing, Milkshake reserves the right at all times to disclose any information as necessary to satisfy any law, regulation or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, that in Milkshake's sole discretion are objectionable or in violation of these terms of use, Milkshake's policies or applicable law.

6. SUBMISSIONS

Unless specifically requested, we do not solicit nor do we wish to receive any confidential, secret or proprietary information or other material from you through the Services, by e-mail, telephone or in any other way. Any information, creative works, demos, ideas, suggestions, concepts, methods, systems, designs, plans, techniques or other materials submitted or sent to us (including, for example and without limitation, that which you submit to our chat rooms, message boards, and/or our blogs, or via telephone or e-mail) ("Submitted Materials") will be deemed not to be confidential or secret, and may be used by us in any manner.

By submitting or sending Submitted Materials to us, you: (i) represent and warrant that the Submitted Materials are original to you, that no other party has any rights thereto, and that any "moral rights" in Submitted Materials have been waived, and (ii) you grant us and our affiliates a fully paid, royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sub licensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such material (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed, including for promotional and/or commercial purposes. We cannot be responsible for maintaining any Submitted Material that you provide to us, and we may delete or destroy any such Submitted Material at any time.

We shall not be liable to you or to any person claiming through you for any exploitation, disclosure, deletion or destruction of any Submitted Materials.

7. CONTENT ACCESSIBLE THROUGH LINKS FROM THE SERVICES

You should be aware that when you utilize our Services, including our Web Site and receipt of daily emails, there are links to other Web sites that take you outside of our Service to Web sites that are beyond our control, such as banner advertisements and links from advertisers, sponsors and content partners that may use our logo(s) as part of a co-branding relationship. You acknowledge that when you click on any of the aforementioned links, the Web sites you are taken to are not controlled by us; different terms of use and privacy policy may apply, and we are not responsible for such Web sites. We do not endorse and cannot ensure that you will be satisfied with any products or services that you purchase from a third-party Web site that links to or from our Web Site or third-party Material contained on our Web Site or contained in any communication you receive from, including daily email. We strongly encourage you to make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any third parties. Nor can we be held responsible for the accuracy, relevance, legality or decency of material contained on Web sites retrieved in searches and/or listed in search results or identified on search results pages.

Milkshake will under no circumstances be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, infringement of copyright or other intellectual property rights, caused by the exhibition, distribution or exploitation of any information or content contained within these third party hyperlinked Web sites.

8. CONTESTS, SWEEPSTAKES AND OTHER ACTIVITIES

Milkshake provides rules and/or guidelines ("Rules of Participation") for certain activities on this Service including, without limitation, contests and sweepstakes by Milkshake and in conjunction with third parties. These terms of use are incorporated by reference to the specific Rules of Participation which appear in connection with information about a particular activity. To the extent that any conflict exists between these terms of use and specific Rules of Participation, the Rules of Participation for the activity in which you choose to participate shall govern.

9. PARENTAL PERMISSION

Our Services are not intended to be for children under the age of 13. In addition, some of the available information may concern certain topics that may not be appropriate for minors (as defined by applicable law). Milkshake may, at its discretion, require users under 18 to obtain the consent of a parent or guardian to view certain content, and Milkshake may limit access to certain content to users above a specified age. You agree to abide by any such restrictions, and not to help anyone avoid these restrictions.

10. ADS AND MALWARE

We take great care and pride in creating this Service. We are always on the lookout for technical glitches that effect how the Service works. When we find them on our end, we will use our commercially reasonable efforts to fix them. Unfortunately, your computer may cause some glitches that effect how you see or interact with our Services--and that is beyond our control.

If you experience any unusual behavior, content or ads on the Services, it may be the result of Malware on your computer. Malware--short for Malicious software--is a term used to broadly classify a form of software which is installed in a computer system with malicious intentions, usually without the owner's knowledge or permission. Malware includes computer viruses, key loggers, malicious active content, rogue programs and dialers, among others. While we continuously work closely with our partners to ensure that everything on the Services is working properly, sometimes Malware programs on your personal computer may interfere with your experience on our Services and on other Web sites that you visit.

Please note that we cannot be responsible for the effects of any third-party software including Malware on your computer system. Please make sure to carefully read the Help or Customer Support areas of any software download Web site.

If you do discover any Malware on your system, we also suggest you speak with a qualified computer technician. If, after taking the above actions, you are still experiencing any problems, please feel free to contact us. info@getmilkshake.com

11. DISCLAIMERS

YOU EXPRESSLY UNDERSTAND THAT THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WEB SITE AND ALL SERVICES, PRODUCTS, CONTENT, FUNCTIONS, INFORMATION, DATA, POSTINGS, SUBMISSIONS AND MATERIALS (COLLECTIVELY 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, PLAYABILITY, DISPLAYABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED.

WE DO NOT WARRANT THAT THE SERVICES WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET USERS' REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. MILKSHAKE ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, DOWNLOADING OR BROWSING IN THE SERVICES. IF YOU ARE DISSATISFIED WITH THE SERVICES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SERVICES.

WE TRY TO ENSURE THAT THE INFORMATION CONTAINED IN OR PROVIDED BY THE SERVICES IS CORRECT AND UP-TO-DATE. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE SERVICES, PRODUCTS, CONTENT, FUNCTIONS, POSTINGS, INFORMATION, DATA, SUBMISSIONS AND MATERIALS CONTAINED IN OR PROVIDED BY THE SERVICES AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN OR PROVIDED BY THE SERVICES, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION CONTAINED IN OR PROVIDED BY THE SERVICES.

12. INDEMNIFICATION

You are responsible for maintaining the confidentiality of your username(s) and password(s), as well as all activities that occur under your account(s). You agree to promptly defend, indemnify and hold Milkshake and its directors, officers, employees, representatives, agents, licensors and third party suppliers ("Indemnified Parties") harmless from any and all claims, liabilities, costs and expenses as incurred, including reasonable attorneys' and professional fees, arising in any way from your access to or use of the Services or your breach or violation of the law or of these terms of use. You may not settle any such claim(s) without the prior written consent of an authorized representative of Milkshake. You shall use your best efforts to cooperate with us in the defense of any claim. We reserve the right, at our own expense, to employ separate counsel and assume the exclusive defense and control of any matter otherwise subject to indemnification by you.

13. LIMITATION OF LIABILITY

IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL MILKSHAKE, OR ANY IMDEMNIFIED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SERVICES, YOUR PROVISION OF INFORMATION VIA THE SERVICE OR OTHERWISE, LOST BUSINESS OR LOST SALES, EVEN IF MILKSHAKE OR ANY SUCH INDEMNFIIED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL MILKSHAKE OR THE INDEMNFIED PARTIES BE LIABLE FOR OR IN CONNECTION WITH ANY INFORMATION, MATERIALS OR CONTENT POSTED, TRANSMITTED, POSTED, SUBMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SERVICE OR OTHERWISE. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF MILKSHAKE AND THE INDEMNIFIED PARTIES 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 THESE TERMS OF USE OR YOUR ACCESS TO OR USE OF THE SERVICES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO MILKSHAKE FOR YOUR USE OF THE SERVICES.

NOTHING IN THESE TERMS OF USE, INCLUDING SECTIONS 12 AND 13, SHALL EXCLUDE OR LIMIT MILKSHAKE'S WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

14. TERMINATION

Milkshake may terminate, change, suspend or discontinue any aspect of the Services at any time, with or without notice and without liability. Milkshake may restrict, suspend or terminate your access to the Services if we believe you are in breach of our terms of use or applicable law, or for any other reason without notice or liability.

15. JURISDICTIONAL AND VENUE ISSUES

We control and operate the Services from our offices in the United States of America. You agree that any action at law or in equity arising out of or relating to these terms of use or the Services shall be filed, and that venue properly lies, only in state or federal courts located in the borough of Manhattan, New York, New York, and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available. We make no representation that Services are appropriate or available for use in any particular location. Those who choose to access and/or use our Services do so on their own initiative and are responsible for compliance with all applicable laws including any applicable local laws. All parties to these terms of use waive their respective rights to a trial by jury.

16. AMENDMENT

At any time, we may amend these terms of use (including by modification, deletion and/or addition of any portion thereof). If we make a material amendment to these terms of use, we may notify you of such amendment by sending you an e-mail at the last e-mail address that you provided us, and/or by posting notice of such amendment on the Web Site. Any such amendment to these terms of use will be effective on the earlier of our dispatch of an e-mail notice to you or our posting of notice of the changes on the Web Site. Please note that, at all times, you are responsible for updating your personal information to provide us your current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any other reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of any amendment described in the notice.

17. GENERAL PROVISIONS

These terms of use shall be governed by and construed in accordance with the laws of the State of New York and the laws of the United States, without giving effect to any principles of conflicts of law. If any provision or part thereof of these terms of use shall be unlawful, void or for any reason unenforceable, then that provision or part thereof shall be deemed severable from these terms of use and shall not affect the validity and enforceability of any remaining provisions. No waiver of any provision of these terms of use by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these terms of use shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR THE SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.

Supply of goods, services and software through this Service is subject to United States export control and economic sanctions requirements. By acquiring any such items through this Service, you represent and warrant that your acquisition comports with and your use of the item will comport with those requirements.

18. SURVIVAL

The terms and conditions providing for any activity following the termination or expiration of these terms of use, any warranties, disclaimers, remedies and any indemnification obligations, and any other provision which, by its terms is intended to survive the termination of these terms of use, shall survive the termination or expiration of these terms of use.

19. ENTIRE AGREEMENT

These terms of use contain, and are intended as, a complete statement of the arrangements between you and Milkshake with respect to its subject matter and supersede all prior agreements, whether written or oral, between you and Milkshake, with respect to those matters.

20. CLAIMS OF COPYRIGHT INFRINGEMENT

We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on the Service any materials that violate another party's intellectual property rights. If you believe that any material on the Service infringes upon any copyright which you own or control, you may send a notification of such infringement to Milkshake at: info@getmilkshake.com

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