Terms of Service

Application

The following Terms and Conditions ("Terms") are applicable to all websites previously, currently or that may in the future be operated by or on behalf of Creative Shake, a registered business name for WebAffairs Inc. All references to Creative Shake shall include WebAffairs Inc. The Creativeshake.com website and any predecessor or successor websites are referred to generically herein as the "Website". The services provided by Creative Shake via the Website (other than third party websites accessible via the Website) are subject to these Terms and any policies that may be published by Creative Shake from time to time. The Terms and any applicable policies comprise the entire agreement between you and Creative Shake and supersede all prior agreements regarding the subject matter contained herein.  
 

Acceptance of Terms

BY USING THE WEBSITE, YOU AGREE TO BE BOUND BY THE TERMS. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS, IMMEDIATELY DISCONTINUE USING THIS WEBSITE.   
 

Description of Service

Creative Shake makes various services available on the Website including, but not limited to, the capability to create, post and exchange digital files. Fees for the various services are set out in the Service Fees and/or FAQ on the Website. You are solely responsible for providing, at your own expense: (i) all equipment, including a computer and modem; and (ii) your own Internet access.

In order to access some of the services, you will require a separate account and password which can be obtained by completing the online registration form ("Registration Data") and maintaining and updating your Registration Data as required.

YOU GRANT CREATIVE SHAKE THE RIGHT TO DISCLOSE TO THIRD PARTIES CERTAIN REGISTRATION DATA ABOUT YOU, WHICH DISCLOSURE IS MORE FULLY DESCRIBED IN AND GOVERNED BY THE PRIVACY POLICY. WE ASK THAT YOU PLEASE READ OUR PRIVACY POLICY SET FORTH BELOW AND ON THE WEBSITE, BECAUSE IT CONTAINS THE TERMS AND CONDITIONS OF OUR PERSONAL INFORMATION HANDLING PRACTICES. IN ADDITION, OUR PRIVACY POLICY IS INCORPORATED INTO, AND FORMS A PART OF, THESE TERMS AND YOU WILL THEREFORE BE SUBJECT TO THE PROVISIONS CONTAINED IN OUR PRIVACY POLICY.

YOU AGREE NOT TO HOLD CREATIVE SHAKE LIABLE FOR ANY DAMAGE TO, ANY DELETION OF OR ANY FAILURE TO STORE YOUR FILES, DATA OR REGISTRATION DATA. You further acknowledge that Creative Shake has a fixed upper limit on the amount of disk space that you may use, which limits are set out in the FAQ and administration sections of the Website.   

Grant of Limited License

Subject to the license granted herein, you retain all rights in and to any of your material you upload to the Website. In order to enable Creative Shake to provide the Website, you grant Creative Shake and its designated licensees a non-exclusive, royalty free, worldwide right to copy, distribute, use in connection with the operation of the Website, such material, regardless of the medium, technology, or form in which it is used. Such use by Creative Shake may include, but will not be limited to, use of any information or images posted to the Website to be included as part of a screen option, demonstration or brochure for the purpose of promoting your material or the Website.

You acknowledge that Creative Shake may be required to compress or perform other technical processing of your uploaded files due to technical limitations on the Website.   

Backup Copies of Images

The Website is not designed or intended to be used as a disaster recovery facility or as an emergency data storage facility. Although Creative Shake takes what we believe to be reasonable precautions to preserve and protect the material you upload to the Website, you should not rely on the Website as your only storage facility. You should preserve copies of your film negatives or slides, and backup copies of any digital data or information that you have uploaded.  

Security of Your Account 

You are solely responsible for maintaining the confidentiality of your password and account and for any and all activities which occur under your account. You agree to immediately notify Creative Shake of any unauthorized use of your account.   
 

Your Conduct

(a) Your use of the Website is subject to all applicable laws and regulations, including Netiquette.

(b) You agree not to upload or otherwise transmit through the Website any unlawful, harassing, libelous, abusive, profane, threatening, harmful, vulgar, obscene, sexually explicit, pornographic, illegal or otherwise objectionable material of any kind or nature.

(c) You further agree not to gain or attempt to gain unauthorized access to other computer systems via the Website.

(d) You agree not to upload or otherwise transmit through the Website any material that: (i) infringes on any third party rights; and (ii) contains any virus or other harmful code that may change or disrupt the Website or any other user's equipment or software.

(e) Your right to use the Website is personal to you. You agree not to resell or make any commercial use of the Website or transfer your rights herein, without the express written consent of Creative Shake, which consent shall be at Creativ's sole discretion.

(f) You agree not to make any use of the Website related to marketing a product or service to the individuals and companies listed on the Website or to download, copy, reproduce or distribute by electronic means or otherwise a list of individuals or companies listed on the Website. Any such use is unauthorized and strictly prohibited. This prohibition extends to all individuals and companies, regardless of membership status on Creative Shake. You agree that by violating these terms, damages will be suffered by Creative Shake, the exact amount of damages being difficult or impractical to establish. As such, for any violation of these terms, you agree to pay liquidated damages to Creative Shake in the sum of $50 for each member record that is viewed or obtained for unauthorized purposes as a genuine estimate of damages.

Content

Creative Shake neither endorses or assumes any liability for the contents of any material uploaded or submitted by third party users of the Website. The Website acts only as a passive conduit for online storage of materials uploaded or submitted to the Website. Creative Shake retains the right to delete content that it deems in its sole discretion to be objectionable, but makes no claim to ensure that all objectionable or illegal content will be removed from the Website. You hereby consent to such removal and waive any claim against Creative Shake arising out of such file removal.

You acknowledge and agree that, during the course of providing the Website, Creative Shake may be required to grant access to a third party and/or decrypt files in response to a court order or in response to a request from law enforcement or other government authority. You hereby consent to such legal production and waive any claim against Creative Shake arising out of such court order.   

Copyright 

The entire content of the Website in aggregate is owned by Creative Shake, and protected as a collective work under United States, Canadian, and international intellectual property laws, treaties and conventions, including the Berne Convention for the Protection of Literary and Artistic Works. Portions of the Website are provided to Creative Shake under license. The copying, reproduction, or publication of any part of the Website is prohibited, unless expressly authorized in writing by Creative Shake.

No copyrighted material may be uploaded or submitted to any Website by anyone without the permission of the copyright owner or persons authorized by the copyright owner. You are solely responsible for obtaining all such necessary permission at your sole cost and expense before uploading any such material to the Website.

You acknowledge that content, including but not limited to text, music, sound, photographs, video, graphics or other material contained on the Website ("Content") is owned or licensed by Creative Shake and other third parties and is protected by copyrights, trade-marks and/or other rights and laws. You may download the material available on the Website for your personal, non-commercial use only. Except as may be permitted by copyright law, you are responsible for obtaining permission from the copyright owner before reusing any copyrighted material that is on the Website. In the event of any permitted copying, redistribution or publication of copyrighted material from the Website, no changes in or deletion of author attribution, trade-mark legend or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material from the Website.  

Notice 

All notices to you may be given by any means including, but not limited to: (a) email; (b) conventional mail; (c) notices or messages posted on the Website; or (d) any other means by which you obtain notice thereof.    

Access to Third Party Websites 

Creative Shake is not responsible for the content of any third party website which you access through the Website. If you decide to access any such third party website, you do so entirely at your own risk.

From time-to-time, Creative Shake may enter into strategic relationships with third party websites whereby content uploaded to the Website by you will be visible through those third party websites. You agree that the services purchased by you, whether purchased through Creative Shake directly or via an access or offer on or in connection with a third party website, shall be deemed to have been purchased from Creative Shake for services offered directly on the Website. You also acknowledge that Creative Shake may terminate any or all of such strategic relationship at any time without notice to you. If any or all of such strategic relationships are terminated, your sole recourse is to terminate your relationship with Creative Shake in accordance with the termination policy below, but in any event without any entitlement to refund in whole or in part.   
 

Modifications to Terms and Privacy Policy  

Creative Shake reserves the right to change the Terms and Privacy Policy from time to time. Such changes, modifications, additions or deletions shall be effective immediately, and Creative Shake will make reasonable efforts to notify you of such modifications by email to the address listed by the registered user, posting a notice that modifications have been made on the top or this page or on the Website home page, or other means that Creative Shake believes is reasonable in the circumstances. You acknowledge and agree that it is your responsibility to maintain a valid email address as a registered user, review this Website and these Terms and the Privacy Policy periodically and to be aware of any modifications. Creative Shake shall not be liable to you or any third party should Creative Shake exercise such right. Your continued use of the Website after such modifications will constitute your: (a) acknowledgement of the modified Terms and Privacy Policy; and (b) agreement to abide and be bound by the modified Terms and Privacy Policy.   

Modifications to Websites and Services 

Creative Shake reserves the sole right to either modify or discontinue the Website, including any features therein at any time with or without notice to you. Without limiting the foregoing, Creative Shake may, from time to time as it reasonably determines, change the attributes to various levels of "portfolio service" or any other service selected by visitors or users of the Website, change the pricing structure, add or remove non-fee and fee based services, or change its limitation on allowable file size; provided however, that Creative Shake will not retroactively make such changes which have been previously paid for by you. Creative Shake shall not be liable to you or any third party should Creative Shake exercise such right. Creative Shake will make reasonable efforts to notify you of such changes by way of email or posting a notice of such change on its Website and you acknowledge and agree that these are appropriate and reasonable methods of notifying me of such modifications. Please ensure that you attend to your email periodically and visit the Website periodically to check whether any modifications have been made.   

Indemnification 

You agree to indemnify and hold Creative Shake, its subsidiaries, affiliates, directors, officers and employees, harmless from any claim or demand, including reasonable legal fees and expenses, due to or arising out of your use of the Website, which cause direct or indirect damage or harm to a third party.   

Termination 

Either you or Creative Shake may terminate your relationship with or without cause at any time. You agree that Creative Shake may, in its sole discretion, terminate or suspend your access to all or part of the Website for any reason, including, without limitation, breach of the Terms. If Creative Shake reasonably suspects fraudulent, abusive or illegal activity, it will terminate your relationship with Creative Shake and we may refer such suspicions to appropriate law enforcement authorities.

Should you object to the Terms or Privacy Policy or any subsequent modifications thereto or become dissatisfied with the Website in any way, your only recourse is to immediately: (a) discontinue use of the Website; (b) terminate your membership; and (c) notify Creative Shake of your termination.

Creative Shake shall not be liable to you or any third party for any claims or damages whatsoever, in law or in equity, arising out of any termination or suspension or your use of the Website.    

Disclaimer of Warranties 

YOU EXPRESSLY AGREE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK. THE WEBSITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. CREATIVE SHAKE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

CREATIVE SHAKE MAKES NO WARRANTY THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES CREATIVE SHAKE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE WEBSITE.

YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM UPLOADING AND/OR DOWNLOADING SUCH MATERIAL AND/OR DATA. CREATIVE SHAKE MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE WEBSITE.   

Limitation of Liability   

CREATIVE SHAKE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE WEBSITE INCLUDING ANY DAMAGE THAT RESULTS FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF CREATIVE SHAKE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR AN AMOUNT GREATER THAN THE AGGREGATE AMOUNT YOU PAID TO CREATIVE SHAKE IN THE SIX MONTHS IMMEDIATELY PRECEDING THE CAUSE OF ACTION.  

General  

The Terms shall be governed by and construed in accordance with the laws of the jurisdictions in which we operate and you agree to submit to the exclusive jurisdiction of the courts of the City of Toronto, Canada.

If any provision(s) of the Terms or the Privacy Policy is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Creative Shake's failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision unless agreed to by Creative Shake in writing.

You agree that any cause of action arising out of or related to your use of the Website must commence within one (1) year after the cause of action arose.

The section titles in the Terms are solely used for the convenience of the parties and have no legal or contractual significance.

These Terms are binding upon and shall enure to the benefit of both parties and their respective successors, heirs, executors, administrators, personal represenand permitted assigns. You shall not assign or transfer your rights or obligations hereunder or otherwise without Creative Shake's prior written consent. Creative Shake shall be permitted to assign or transfer the Terms and its rights and/or obligations hereunder, including but not limited to the provision of services for which you subscribed on the Website or a future website substituted therefor, in connection with a sale, transfer, assignment or license of all or substantially all the assets of Creative Shake or a change in control of Creative Shake.   

Billing & Service Fees  

All fees will be charged directly to your credit card account and are due in advance of the service period. After the initial signup period for which you were initially charged, your account will be automatically charged every 30 days unless you explicitly ask for the account to be terminated. Creative Shake does not provide refunds of any amount for any termination requests received after the monthly billing period has passed. Annual customers will be contacted prior to expiry of their memberships and will be given the opportunity to renew their accounts. As detailed above, Creative Shake reserves the right to change its fees in accordance with the section above entitled "Modification To Website And Service".   

Termination and Refund Policy 

All termination requests are to be made to our Customer Service department by email (customerservice@creativeshake.com). This will be confirmed with a return telephone call or email from a Customer Service Representative.   

Upon Termination

(i) Fees prepaid for unused periods remaining are non-refundable;
(ii) Your portfolio will be terminated or converted to a free Basic portfolio.