MILK BAR TERMS OF USE
Last Updated: December 13, 2018
By using this Website, you agree to be bound by and comply with these Terms of Use and any other guidelines, rules or policies posted to the Website by Milk Bar from time to time. All such guidelines, rules and policies (including, without limitation, Milk Bar’s Privacy Policy) are incorporated into these Terms of Use by reference and are made a part hereof. Please read these Terms of Use carefully. This is a legal document and it contains binding obligations.
Changes to Terms of Use
Milk Bar shall have the right to modify these Terms of Use at any time, which modification shall be effective immediately following Milk Bar’s posting of such change on the Website. We recommend that you check the Website regularly for any such changes. Your use of the Website following such posting shall be deemed to constitute your acceptance of such modification.
Use of this Website
Access, distribution and/or use of this Website is subject to all applicable laws and regulations. To the extent that access, distribution and/or use of this Website would be deemed illegal by applicable law, such access, distribution and/or use is prohibited. You agree to comply with all applicable laws in connection with your use of the Website and your participation in any Milk Bar offerings.
You agree that you will not (i) interfere with the Website and/or the servers or networks connected to same; (ii) “frame” or “mirror” any part of the Website without Milk Bar’s prior written authorization; (iii) use metatags or code or other devices containing any reference to any Milk Bar offerings in order to direct any person to any other website for any purpose; and/or (iv) modify, translate, decompile, disassemble, or reverse engineer any software available through the Website or otherwise used in connection with Milk Bar’s offerings.
Use of Materials
Materials on this Website, including but not limited to sound recordings, videos, images, logos, trademarks and other works (collectively, the “Materials”), are protected under various intellectual property laws and owned or controlled by Milk Bar, or used with permission of the owner(s) of such Materials. The display of Materials on this Website does not imply that a license of any kind has been granted to you. You agree that you will not remove any copyright, trademark or other proprietary rights notices contained on the Website.
Except as otherwise indicated on this Website, copying, reproducing, uploading, downloading, transmitting or any other use of this Website or of any of the Materials, in whole or part, without the express permission of Milk Bar, is prohibited. You may download digital files only where expressly permitted. Any unauthorized access to, use or copying of this Website and/or the Materials may subject you to liability under applicable law, and may result in legal action.
Privacy
Please see Milk Bar’s Privacy Policy for information concerning the collection and use of personal information from this Website.
Promotions, Sweepstakes, Contests
On occasion Milk Bar, or certain advertisers or suppliers, may elect to conduct certain promotions, sweepstakes or contests (collectively, “Promotions”) on this Website. Each such Promotion may have specific rules and regulations which will be made available to users and which shall be deemed incorporated in and become a part of these Terms of Use. By participating in any Promotion, you are deemed to have accepted the rules and regulations for that Promotion, and to have agreed to abide and be bound by them.
Links
From time to time, the Milk Bar Website may contain links to other websites that are not controlled and/or maintained by Milk Bar. Access to and use of such other websites is at your own risk and subject to any terms of use and privacy policies which govern such websites. By providing such links, Milk Bar shall not be deemed to endorse, recommend, approve, guarantee or introduce any third parties or their services or products, or any facts, views, advice, information, promotions and/or products found on such websites. Milk Bar is not responsible for the content contained on any such websites, or for the failure of any product or service offered for sale or advertised on any such websites or for any damages that may result therefrom. Copyrights in the materials or information on the linked websites are owned by other organizations. Moreover, such other websites may have privacy policies or terms of use of use that differ from those of the Milk Bar Website and/or may provide their users with less security than the Milk Bar Website.
Account and Password Responsibility
In order to access some features of the Website, you may have to create an account. When creating an account, you must provide your accurate and complete information and you may not use a fake identity or any other individual’s identity. When you create an account, you will be asked to choose a password which you shall use to access the secure portion of the Website, and which may be required when you are seeking to participate in certain offerings of the Website. You are responsible for maintaining the confidentiality of your password. You agree not to (i) use the account, username or password of any other visitor to the Website at any time, (ii) share your account, or (iii) disclose your password to any third party. You agree to notify Milk Bar immediately if you suspect any unauthorized access to or use of your account or password. You are solely responsible for any and all use of your account and password.
Non-Commercial Use
You may not use this Website or any Materials provided herein in connection with any commercial endeavors except with the express written agreement of Milk Bar.
User Submitted Content
On certain sections of this Website, visitors may be permitted to: post, display and/or publish (“post”) comments, information, creative works (including but not limited to text, images, and/or photos) or other materials (“User Content”). You acknowledge and agree that you are solely responsible for any User Content that you post. You further acknowledge and agree that Milk Bar has no responsibility for, and makes no representations concerning, any User Content posted at this Website and will not be liable for any User Content that is in violation of these Terms of Use. With respect to all User Content that you post, you represent and warrant that: (i) the material is either fully original to you or that you have all necessary rights, licenses and permissions needed to post the material at this Website (including but not limited to all copyright and right of publicity/privacy rights); (ii) such User Content will not infringe or violate the rights of any person or entity, or violate any governmental rule, regulation statute or law, or the Terms of Use; (iii) no money will be owing to any party as a result of the posting or use of the User Content or its use as contemplated by these Terms of Use; and (iv) you will be responsible for all User Content submitted through your account, and for all purposes under these Terms of Use, all User Content submitted from your account shall be deemed to have been submitted by you.
Milk Bar expressly disclaims any and all liability in connection with any User Content. In connection with User Content posted at this Website, in addition to all other rights it has under this Agreement, at law or in equity, Milk Bar reserves the right, in its sole and absolute discretion, to remove without notice, or refuse to post in the first instance, any User Content.
Any private or public communications, including any User Content, sought to be posted at the Website must conform, in the sole and exclusive opinion of Milk Bar, to the following rules and standards. It must: (i) conform to all applicable laws, including intellectual property, privacy and defamation laws, (ii) be appropriate in the context of the general purposes of the Website; (ii) not be vulgar, derogatory, obscene, pornographic, patently offensive, defamatory hateful, abusive or promote racism or discrimination of any kind; (iii) not provide personal information, or solicit such information from any other user of the Website; (iv) not involve or result in the transmission of junk e-mail, unsolicited mass e-mailings, “spamming,” “spimming” or “phishing;” (v) not transmit or distribute any potentially harmful programs such as Trojan horses, worms, viruses, spyware or any malicious software or code; and (vi) not contain any material or images owned by any other person or entity unless you have obtained all necessary rights, licenses and permissions needed to post the material and have it used as contemplated by these Terms of Use.
User Content License
After posting your User Content on or through the Website, you will continue to retain all ownership rights in such User Content except as specifically set forth herein. However, by posting any User Content on or through the Website, you hereby agree to abide by the Terms of Use and grant to Milk Bar a perpetual, irrevocable, nonexclusive, worldwide, royalty-free, fully paid, sublicensable (through multiple tiers) and transferable license to use, modify, publicly perform, publicly display, publish, republish, copy, broadcast, transmit, reproduce, edit, distort, aggregate, translate, reformat, prepare derivative works based upon, distribute and otherwise exploit such User Content, in whole or in part, in connection with the Website and the promotion and marketing of the Website and of Milk Bar and its related entities (collectively, the “Services”), and waive any and all moral rights you may have in such User Content. You also hereby grant each visitor a non-exclusive license to access your User Content through the Website, and to use, reproduce, distribute, display and perform such User Content as permitted by these Terms of Use. Further, you understand and agree that Milk Bar may retain, but not display, distribute or perform, server copies of User Content that has been deleted or removed. You understand that Milk Bar performs technical functions necessary to offer the Website and its Services, including but not limited to transcoding and/or reformatting content to allow its use through the Website. You agree that you will make no commercial use of any User Content obtained through this Site, without the express written agreement of Milk Bar.
Copyright Infringement Policy
Milk Bar values intellectual property and respects the intellectual property rights of others, and will remove materials on its Website that infringe the copyrights of others. If you believe that your copyrighted material has been infringed by material contained on this Website, please contact us at help@milkbarstore.com.
Additional/Different Terms
Certain pages or sections of this Website may contain Terms of Use of use which are in addition to or different from these Terms of Use. In the event that there is a conflict between such additional or different Terms of Use of use and these Terms of Use, the additional or different Terms of Use of use will govern with respect to the specific pages or sections to which they apply.
Limitation of Liability and Use Disclaimer
Milk Bar endeavors to make sure that all information and data it originates on the Website is accurate. However, Milk Bar is not responsible for any damages or loss related to the use of this Website.
THIS WEBSITE, ALL MATERIALS CONTAINED ON THIS WEBSITE, AND ALL LINKS OR OTHER ITEMS RELATED THERETO ARE TRANSMITTED AND DISTRIBUTED “AS IS” AND WITHOUT REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE WEBSITE, ITS FEATURES AND FUNCTIONS WILL BE AVAILABLE FOR USE OR WORK AS DESCRIBED. THERE ARE NO REPRESENTATIONS WARRANTIES AND/OR CONDITIONS REGARDING TITLE, SECURITY, ACCURACY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE WITH RESPECT TO THE WEBSITE OR THE MATERIALS CONTAINED HEREON. ANY INFORMATION CONTAINED WITHIN OR ON THIS WEBSITE IS SUBJECT TO AMENDMENT, REVISION OR UPDATING. MILK BAR RESERVES THE RIGHT TO SUSPEND OR WITHDRAW ACCESS TO THE PAGES OF THIS WEBSITE WITHOUT NOTICE AT ANY TIME AND ACCEPTS NO RESPONSIBILITY FOR THESE PAGES NOT BEING AVAILABLE AT ALL TIMES. MILK BAR SHALL NOT BE LIABLE FOR ANY ALLEGED DAMAGE OR INJURY, INCLUDING BUT NOT LIMITED TO ANY COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT, SPECIAL AND/OR ANY OTHER DAMAGES THAT RESULT FROM YOUR USE OR INABILITY TO USE OR ACCESS THIS WEBSITE OR FROM ANY MATERIALS CONTAINED HEREON OR FROM ANY COMPUTER VIRUS, MALFUNCTION OR OTHER FAILURE. SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES, IN WHICH CASE THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
MILK BAR MAKES NO WARRANTIES OR REPRESENTATIONS OR CONDITIONS ABOUT THE ACCURACY OF THE SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER FROM ACCESS TO, REPRODUCTION, DISTRIBUTION AND/OR USE OF THIS WEBSITE, (III) ANY UNAUTHORIZED ACCESS TO, REPRODUCTION, DISTRIBUTION OR USE OF MILK BAR’S SECURE SERVER AND/OR ANY PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREON, (IV) ANY INTERRUPTION OF OR CESSATION OF THE SITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE WHICH MAY BE TRANSMITTED VIA THE SITE AND/OR BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR ANY LOSS OF TRANSMITTED INFORMATION OR DATA, OR DAMAGE THAT IS THE RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED OR OTHERWISE MADE AVAILABLE BY OR THROUGH THE WEBSITE.
You are responsible for undertaking suitable precautions to scan for computer viruses and maintaining a backup of all data and/or equipment.
Milk Bar is not responsible for any damages or loss related to your reliance on any outdated version of these Terms of Use, including, but not limited, to any outdated version of our Privacy Policy.
Certain jurisdictions prohibit the limitation of liability for certain types of damages or prohibit waivers against future fraud, and accordingly, such limitations or waivers may not apply to you. In such jurisdictions, Milk Bar’s liability is limited to the greatest extent allowable under applicable law.
Indemnity
You will indemnify Milk Bar, and each of its parent, subsidiary and affiliated entities, furnishing entities, officers, directors, members, employees, representatives, licensees, agents, successors, assignees and partners, from and against any and all claims, demands, losses, liabilities, damages, costs and expenses (including but not limited to attorneys’ fees) relating to, or arising from or in connection with: (i) your breach or alleged breach of any of your representations and/or warranties set forth in these Terms of Use; (ii) your use of the Website; and/or (iii) any violation of these Terms of Use. You agree that your representations and warranties, and your obligation to indemnify Milk Bar, shall survive beyond any term that these Terms of Use are in effect.
Electronic Communications
When you communicate with Milk Bar electronically, via email or otherwise, you consent to receive electronic communications from Milk Bar. You agree that all communications (including, but not limited to all notices, agreements and disclosures) provided to you electronically by Milk Bar satisfy any legal requirement that such communication be in writing. Milk Bar encourages you to retain your own copies of relevant information, however, upon your written request, Milk Bar will provide you with a copy of the information you provided to Milk Bar when creating your Member account. To make such a request please contact help@milkbarstore.com.
With respect to all communications you make to or through the Website, including but not limited to feedback, questions, comments, suggestions and the like: (i) you shall have no right to confidentiality in your communications and Milk Bar shall have no obligation to protect your communications from disclosure; (ii) Milk Bar shall be free to reproduce, use, publish, display, disclose and distribute your communications to others without limitation; and (iii) Milk Bar shall be free to use any ideas, concepts, know-how, information, data content or techniques contained in your communications for any purpose whatsoever, including but not limited to the development, production and marketing of products and services that incorporate such information.
Acquisition of Business
In the event that Milk Bar and/or any of its affiliated entities is involved in a merger, acquisition, consolidation, restructuring, reorganization, liquidation, sale or similar transaction relating to any portion of its business and/or assets, you hereby acknowledge and agree that this Website, all data collected on this Website, and all rights of Milk Bar and its affiliated entities hereunder may be included in the assets of, and/or transferred pursuant to, such transaction.
US Export Controls
Software from or related to this Website (the “Software”) may be subject to United States export controls. No Software may be downloaded from the Website or otherwise exported or re-exported in violation of U.S. export laws.
Disputes and Governing Law
Use of this Website and these Terms of Use shall be governed by the laws of the State of New York of the United States of America, without regard to its conflict of law provisions. In the event that any portion of these Terms of Use are deemed unenforceable, unlawful or void by a tribunal of competent jurisdiction, in any jurisdiction for any reason, unless narrowed by construction, such portion of these Terms of Use shall, for purposes of such jurisdiction only, be construed as if such invalid, prohibited or unenforceable portion had been more narrowly constructed so as not to be invalid, prohibited or unenforceable (or if such provision cannot be drawn narrowly enough, the tribunal making any such determination shall have the power to modify, to the extent necessary to make such portion of these Terms of Use enforceable in such jurisdiction, and such portion shall then be applicable in such modified form in such jurisdiction). If, notwithstanding the foregoing, any such portion of these Terms of Use would be held to be invalid, prohibited or unenforceable in any jurisdiction for any reason, such portion, as to such jurisdiction only, shall be ineffective to the extent of such invalidity, prohibition or unenforceability, without invalidating the remaining provisions set forth in these Terms of Use. No narrowed construction, modification or invalidation of any portion of the Terms of Use shall affect the construction, validity or enforceability of such portion in any other jurisdiction. No waiver by Milk Bar of any term or condition of these Terms of Use shall be deemed a further or continuing waiver of such term or condition or of any other term or condition, and Milk Bar’s failure to assert any right or demand compliance with any provision of these Terms of Use shall not be deemed to constitute a waiver of any such right or provision.
Except where prohibited by law, as a condition of accessing and/or using this Website, you agree that (1) any and all disputes and causes of action arising out of or connected with this Website shall be resolved individually, without resort to any form of class action, and exclusively by final and binding arbitration and (i) if the dispute involves a US resident, the dispute shall be submitted to binding arbitration in New York within one (1) year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing rules of the American Arbitration Association, or (ii) if the dispute involves a Canadian resident, the dispute shall be submitted to binding arbitration in Ontario within one (1) year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing rules of the Canadian Arbitration Association; and (2) judgment upon such arbitration award may be entered in any court having jurisdiction. To the fullest extent permitted by law, no arbitration brought pursuant hereto shall be joined to any other action or arbitration.
Under no circumstances will you be permitted to obtain awards for, and by accessing and/or using the site you waive all rights to claim, punitive, incidental or consequential damages, or any other damages, including attorneys’ fees, and you further waive all rights to have damages multiplied or increased. Any and all claims, judgments, and awards shall be limited to your actual out-of-pocket costs incurred, excluding attorneys’ fees and court costs.
Notwithstanding anything to the contrary set forth in these Terms of Use, Milk Bar may at any time seek injunctive or other appropriate relief against you and/or against others, in any state or federal court in the state of New York, or in any province or the federal courts sitting in the province of Ontario, in the event that Milk Bar believes that there is a violation, or a threatened violation, of any of Milk Bar’s intellectual property rights and, in such case, you hereby consent to the exclusive jurisdiction and venue of such court.
Entire Agreement
These Terms of Use, including all documents and policies referenced herein, represent the entire understanding between Milk Bar and you regarding your use of this Website and supersede any prior statements or representations.
Contact Us
If you have any questions concerning this Website or any of the policies set forth in these Terms of Use, please contact us at help@milkbarstore.com.
