Milkshake User Terms

1. Hi, we’re Codelbee Pty Ltd (we, us, Milkshake) and welcome to Milkshake! This new product enables you to create a mobile friendly website using the templates offered in our Milkshake mobile apps. Together, our website, Milkshake mobile apps, platform, templates, tools, website hosting service and other content are called our Service.
2. These terms, together with our Acceptable Use Policy, govern your access to and use of the Service and form a legally binding and enforceable agreement between us. You may only access, browse our website and use this Service if you accept these terms. If you don’t accept these terms, then we’re sorry but you must not use the Service or browse our website.
3. You need to be 13 years or over to browse the Milkshake site. We don’t knowingly collect any information from anyone aged 13 or under.
4. You must be 13 years or over to create a Milkshake account. If you are under 18 years of age, you will need the permission of a parent or legal guardian (who is at least 18 years of age) to create a Milkshake account.

What you get with Milkshake

5. The Service provides tools for creation of a website (your Milkshake Website).
6. To access the Service, you must register and create an account with Milkshake. Your access to the Service (including access to your Milkshake Website) is only available for the life of your Milkshake account.
7. We reserve the right to change or discontinue the Milkshake mobile apps, templates, functionality or the entire Service at our discretion, without notice to you.
8. You are not permitted to export your Milkshake Website or copy it for use elsewhere, including when you cancel your Milkshake account.
9. We may impose limits on the way that our customers use the Service, including in relation to the amount of data that can be transmitted to and from our servers over a particular length of time, to ensure that all of our customers have fair and reasonable access to our services.
10. As part of the Service, we may provide you with aggregated statistics and insights that help you to understand how people are engaging with your Milkshake Website.
11. You acknowledge that we’re still developing and building the Service so we’ll be changing it from time to time (or may even cancel your use and recall the Service completely), and errors and faults are possible. You also agree to follow our guidance on the use of our products from time to time.

Paid Features

12. Paid features are available on our Service on a monthly subscription basis.
13. You can purchase paid features by paying the monthly subscription fee in advance.
14. You acknowledge and agree that by accepting these Terms, the subscription fee shall automatically renew at the end of each month unless you cancel before the end of the then-current subscription period. The cancellation will take effect at the end of the current subscription period, and you will be downgraded from any paid features.
15. If Milkshake fails to collect the monthly subscription fee owed by you, we reserve the right, at our sole discretion, to attempt to charge again at a later time, and/or suspend or cancel the Service, without prior notice.
16. You may cancel the monthly subscription directly through Google or Apple. Please refer to the below links for instructions:
    1. Apple: https://support.apple.com/billing
    2. Google: https://support.google.com/googleplay/answer/7018481

Third Party Rights and Service Providers

17. We may engage other companies to provide services for Milkshake, including but not limited to hosting and payment processing. Please see our Privacy Policy for further information.
18. We may provide access to or make available additional third party software or services. We do not make any representations or warranties, express or implied, regarding any third party software or service. They are provided only as a convenience to you and Milkshake does not endorse and is not affiliated with any third party software or service. You agree that any use of third party software or service is at your risk and subject to the terms applicable to that third party software or service.
19. We may make third party login options available. If you create an account using a third party login provider, such as Google or Facebook, we will receive data from that third party when you connect your accounts. Please see our Privacy Policy for more information.
20. This Agreement is between you and Codelbee only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service.
21. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund any applicable purchase price for the mobile app to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.
22. This site may contain links to other third party sites. We have no control or responsibility over anything on those sites, and do not endorse or sponsor those sites.
23. You hereby represent and warrant that:
    1. you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and
    2. you are not listed on any U.S. Government list of prohibited or restricted parties.
24. If you have any questions, complaints or claims with respect to the Service, they should be directed to Milkshake via help [at] milkshake.app.

Ownership of IP

25. We or our licensors own the following:

    1. the copyright subsisting in the code in the underlying system that runs the Service (including the Milkshake mobile app, platform and tools), the content published on the Milkshake site, as well as the design, layout, compilation and look and feel of the Milkshake site;
    2. the copyright subsisting in all of the templates in the template library made available to you as part of the Milkshake services, including templates as modified; and
    3. all trademarks or registered trademarks used in connection with Milkshake.

    (collectively referred to as “Our IP”).

26. You acknowledge and agree that these terms do not transfer or assign any of Our IP to you.

27. You may not copy, distribute, modify, publish, exploit, transmit or make derivative works of any of Our IP in any way not expressly authorised by these terms or for any commercial purpose.

28. All rights not expressly granted under the terms are reserved.

Your content

29. In this section, “Your Content” means all content (such as words, videos, music, designs, audio files, fonts, logos, databases, illustrations, usernames, or pictures) that you create, upload or make public to your Milkshake Website.
30. You warrant that:
    1. you own all rights, title, and interest in Your Content, or otherwise have obtained all necessary licences, consents, and permissions required to use Your Content in connection with the Services;
    2. you agree and acknowledge that we are not the publisher of Your Content;
    3. Your Content will not breach any applicable laws;
    4. you will comply with our Acceptable Use Policy at all times in relation to your Milkshake Website and content;
    5. you will not act in a way which may bring Milkshake into disrepute or harm;
    6. you will not use any illegal or unlawful action to collect login data or passwords for other websites, third-party or software services;
    7. Your Content does not and will not infringe any third-party intellectual property rights; and
    8. Your Content will comply with our Privacy Policy at all times in relation to your Milkshake Website and content.
31. We do not claim ownership of Your Content that you post on or through the Service. Instead, when you upload content to your Milkshake Website, you hereby grant to us a non-exclusive, royalty-free, transferable, sub-licensable, worldwide license to host, use, distribute, modify, run, copy, publicly perform or display, translate, and create derivative works of Your Content. You also agree that we can utilise Your Content in marketing and promotions about the Service.
32. You agree that we may immediately terminate, remove or disable access to your Milkshake Website or any of Your Content for any reason at our discretion. This might be because:
    1. we receive a copyright takedown notice or other complaint about your Milkshake Website or content; or
    2. we are of the view that your Milkshake Website or content breaches our terms or any applicable laws, Acceptable Use Policy or is otherwise unsuitable for hosting by us.
33. You are responsible for maintaining your own backups of your content. We do not provide backup services and we exclude liability for any lost content.
34. You are solely responsible and liable for any activity that occurs on your website including your relationship with your own customers and compliance with applicable laws and Your Content in connection with the Service.

Termination and Refunds

35. We may remove your Milkshake website or cancel your Milkshake account at any time for any reason (acting reasonably of course), including if you:
    1. breach these terms or any terms applicable to any of your other Milkshake accounts;
    2. breach any of our policies (or policies of any other Codelbee Company);
    3. act in a way that does not align with the values of Milkshake or our community;
    4. act in a way that could or may cause us or members harm; or
    5. failure to pay any Fees for our Service.
36. If we decide to permanently remove your Milkshake Website or cancel your Milkshake account, you must not republish your Milkshake Website, or apply for a new account. Any new account application will be denied by Milkshake.
37. We may also cancel your Milkshake account if we decide to discontinue the Milkshake service (which we may do at our discretion).
38. Once your Milkshake account has been cancelled, we will stop hosting your Milkshake Website publicly. However, we have no responsibility for either the permanent removal of your content, nor for providing you with access to your content once your Milkshake account has been cancelled. You should take steps to backup your content before cancellation. Milkshake will not be responsible or liable whatsoever for any loss relating to Your Content.
39. Given the nature of digital content, we do not generally offer a refund or credit on a purchased paid feature subscription except as required under Australian consumer law or other applicable consumer protection laws.

Termination by You

40. You may terminate your subscription at any time. Please refer to the below links for instructions:
    1. Apple: https://support.apple.com/billing
    2. Google: https://support.google.com/googleplay/answer/7018481

Responsibility for end users

41. Your Milkshake Website may have its own visitors and customers (“End Users”). The way in which the End Users use and interact with your Milkshake Website and your content (as distinct from our obligations to you in these terms of service in respect of the Service itself) is solely your responsibility. This responsibility includes compliance with all laws and regulations in relation to End Users, and the supply of digital products and/or services (if any) to End Users.
42. Milkshake will have no liability or responsibility in relation to or in connection with your End Users and your Milkshake Website.

Liability and Indemnity

43. You indemnify Milkshake and hold Milkshake harmless against any claim, action, damage, losses, costs (including legal costs on a full indemnity basis), expenses, demands, fines, penalties, assessments, compensation, liability or any payment whatsoever that we incur arising out of, or in connection with:
    1. a third-party claim against us relating to your use of Milkshake (including any claim against us relating to your Milkshake Website, content or the supply of services and/or products). For clarity, this includes any claim arising from or relating to:
       1. any sale made through your Milkshake Website, including the product, its description, its delivery, its quality or any refund handling;
       2. chargebacks, fraud losses, payment-network rule breaches or any Stripe or other payment-provider penalty, fine, assessment or fee arising from your activity;
       3. tax in any jurisdiction in respect of your sales or your relationship with us;
       4. consumer-protection or advertising-law claims in any jurisdiction in which you sell;
       5. any third-party intellectual-property, privacy, confidential information, publicity or moral-rights claim relating to anything you offer for sale;
       6. any claim relating to buyer data you have collected or processed, or any unauthorised access; and
       7. any claim relating to personal injury including sickness and death.
    2. A breach of these terms by you.
44. Subject to clause 71, the Service (including Milkshake website, tools, statistics and insights) is made available to you on an “AS IS” basis. To the extent permitted by law, we disclaim all warranties, express or implied, including the implied warranties of non-infringement.
45. Our liability to you in connection with Milkshake or these terms, in contract, tort (including negligence) or otherwise, is limited as follows:
    1. To the maximum extent permitted by applicable laws, we exclude liability for any of these things incurred by you: loss of revenue, loss of profit, loss of goodwill, loss of customers, loss of capital, damage to reputation, loss in connection with any other contract, loss of data, or indirect, consequential or special loss, damage or expense; and
    2. If we cannot exclude liability, then Milkshake’s total liability to you arising out of these terms or the Service for any claims or losses will be limited to $10 USD.
    3. Nothing in this clause 45 limits your obligation to pay amounts owed to us, your responsibility for refunds, chargebacks, disputes, taxes or payment-provider fees in respect of your sales, or your indemnity obligations under these terms.
46. If an indemnity, limitation or disclaimer of liability, warranty or release (a ‘benefit’) is given in our favour in these terms, we hold that benefit on trust for the other Codelbee companies. We may enforce that benefit as trustee for and on behalf of the other Codelbee companies as beneficiaries under that trust.

Intellectual Property Policy

47. We respect the intellectual property rights of others. There are two main ways for rights holders to let us know if they think their content is being used without permission. For copyright owners – the DMCA takedown notice process is described below for U.S. and Australia. For other IP rights owners, including trademark owners – you can contact us at help [at] milkshake.app.

DMCA Takedown Notice

48. If you’re a copyright owner you can send a signed, dated DMCA takedown notice to us. We will send this DMCA takedown notice to the Milkshake Website customer, which means your details will be passed to them. The Milkshake Website customer can submit a DMCA counter-notification if they disagree with your DMCA takedown notice and they may contact you directly using your contact details. The quickest way is to send it to our support team at help [at] milkshake.app. The notice must:
    1. Tell us about the content that you claim infringes your copyright, including a description and where we can find it – include the URL;
    2. Tell us about your copyrighted content and let us know where we can see this published – include the URL;
    3. Give us a detailed explanation about how you believe the content violates your copyright;
    4. Include your full name and contact details, including your address, phone number and email address;
    5. Include the date and your signature; and
    6. Include the following two statements:
       • “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.”
       • “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

Takedown Notice Australia

49. If you reside in Australia or a website is hosted on a computer server located in Australia, the takedown notice must comply with the Copyright Regulations 2017 (“Copyright Regulations”).
50. Prior to a takedown notice being sent, it is important that you identify the organisation that is hosting the infringing website. This can be done via whois.com.au.
51. A takedown notice must be sent to the organisation’s ‘designated representative’. A designated representative is the person who is authorised to receive notices and notifications under the Copyright Regulations.
52. The takedown notice must be in accordance with the form set out in Part 6 of Schedule 2 of the Copyright Regulations.
53. There are various different notices that may apply to you under the Copyright Regulations. You should carefully review each of the notices set out in Part 6 of Schedule 2 and determine which one is more appropriate to you.
54. All notices should be addressed to the Codelbee Copyright Agent at email to help [at] milkshake.app.

Selling via Milkshake

55. Eligibility for commerce features. To use our payment features you must be at least 18 years old, reside in a country that Stripe supports for Connect Standard accounts and maintain a Stripe account in good standing. The general age requirements for using Milkshake (clauses 3–4) do not, on their own, qualify you to use the payment features.

56. Payment features and Stripe.

    1. Our payment features let you sell digital files, text notes and links, and accept tips, from End Users via your published Milkshake Website. These features use a Stripe Standard connected account in your name with Stripe, Inc. (“Stripe”).
    2. When you onboard through our app, you enter into a direct relationship with Stripe under Stripe’s Services Agreement, Connected Account Agreement and any other Stripe terms applicable in your country.
    3. Your agreement with Stripe (which Stripe may update from time to time) governs that relationship, and Milkshake is not a party to it. Access to the payment features is conditional on you successfully completing Stripe’s identity, business and compliance checks.
    4. Milkshake does not hold or handle your sales funds — they flow from your End User into your Stripe account, and Stripe deducts our platform fee (which you authorise via Stripe’s application fee mechanism) before payout to you on Stripe’s schedule.
    5. We do not control Stripe’s payout timing, holds, reserves, payout failures, or any decision Stripe makes about your account; if Stripe is unable to pay out to you for any reason, that is a matter between you and Stripe.

57. Your authorisation for Stripe Connect activity. You authorise us to provide platform services in connection with your Stripe connected account, including to:

    1. create and manage checkout sessions, payments, refunds and related payment activity on your behalf;
    2. calculate, apply and collect our platform fees via Stripe’s application fee mechanism;
    3. receive and use account, transaction, dispute, refund, payout and compliance information from Stripe;
    4. provide Stripe with information about you, your Milkshake account, your Milkshake Website, your items, your buyers and your transactions to the extent reasonably necessary to provide the payment features; and
    5. take other actions reasonably necessary to provide, secure, support and enforce the payment features.

    You are responsible for ensuring that the information you provide to us and to Stripe is true, complete and kept up to date.

58. You are the seller. Each sale is between you and your End User. You are the seller of record. Milkshake is a technology provider only — we are not the seller, the merchant of record, your agent or a party to the transaction. We do not warrant or guarantee anything you offer; and we are not involved in disputes between you and your End Users. You may use the payment features only to sell the categories of items we make available (currently digital files, text notes, links and tips), and only to sell items consistent with the business and nature of products you described to Stripe during your Stripe onboarding. You must not use them for anything outside that scope, including physical goods, services, subscriptions, or anything appearing on Stripe’s list of restricted businesses. You must comply with our Acceptable Use Policy and all applicable laws, including in respect of any link you sell, regardless of where the linked content is hosted.

59. Purchases by End Users. If you are an End User who buys an item, accesses paid content or sends a tip through a Milkshake Website, you are transacting directly with the seller identified on that Milkshake Website or in the checkout flow. Milkshake is not the seller and is not responsible for the item, file, link, content, description, delivery, quality, availability, legality, customer support, refunds, chargebacks, disputes, tax invoices, or statements made by the seller. You should contact the seller first about any purchase, delivery or refund issue. Where a problem with a purchase is caused by a failure of the Milkshake Service itself (rather than the seller), our liability is governed by clause 45 and any non-excludable consumer guarantees that apply to you. You can also report suspected abuse or policy violations to us at help [at] milkshake.app.

60. Your obligations as a seller. You are responsible for:

    1. accurately describing each item, including format, what the buyer receives and any limitations or exclusions;
    2. delivering the item to each paying buyer;
    3. providing all customer support, complaints handling and queries from your End Users — Milkshake will not mediate;
    4. publishing and honouring a clear refund and cancellation policy on your Milkshake Website that complies with all consumer-protection laws applicable to your buyers (including any cooling-off, statutory guarantee, distance-selling or similar rights);
    5. holding all licences, rights and consents necessary to sell what you sell; and
    6. providing true and current information to Stripe and keeping it up to date.

61. Platform fee. We charge a platform fee on each successful sale. The fee is a percentage of the transaction total and depends on your Milkshake subscription plan. The current fee schedule is shown in the app and may change from time to time on reasonable notice. If a sale is refunded by you, the platform fee on the refunded portion is returned in line with Stripe’s standard refund flow.

62. Refunds, chargebacks and disputes. Refunds, chargebacks, disputes and reversals are between you, your End User and Stripe. We may make tools available that let you issue refunds on your sales, but in the ordinary course we do not decide whether a sale is refunded, fund any refund, chargeback or dispute outcome, or mediate, intervene in or provide evidence in disputes between you and your End Users. However, where we reasonably believe a sale, item or your activity breaches these terms, our Acceptable Use Policy, applicable law, payment-network rules or Stripe’s terms, or where we are required to do so by a court, regulator or payment provider, we may, in our sole discretion, issue (or cause Stripe to issue) refunds to your End Users on your behalf, and you authorise us to take that action on your Stripe connected account without further consent. For any refund we issue under this clause, we may at our discretion retain the platform fee on the refunded sale (in whole or in part). You bear the cost of any refund, chargeback, dispute, reversal and any related Stripe fees in respect of your sales, including any refund we issue under this clause.

63. Tax. You are solely responsible for determining, collecting, reporting and remitting any tax on your sales (including sales tax, GST, VAT, digital services taxes and income tax) in every jurisdiction where you have a tax obligation, and for issuing invoices or receipts that meet local requirements. Milkshake does not provide tax advice. Unless we expressly state otherwise or are required by law, we do not collect or remit tax on your behalf in relation to your sales or tips. If Milkshake or Stripe is required to issue tax forms or report transaction data to a tax authority (for example U.S. 1099-K, EU DAC7 or Australian Taxation Office reporting), you authorise that reporting and you are responsible for the accuracy of the information you have provided. Milkshake’s fees may attract GST, VAT or similar tax depending on your location.

64. Buyer data and privacy. You are the controller of any personal data you collect from or about your buyers under applicable privacy and data-protection laws (including the Privacy Act 1988 (Cth) which includes the Australian Privacy Principles, the GDPR and the CCPA/CPRA, as relevant). You must publish a clear and accurate privacy policy on your Milkshake Website before checkout, comply with all applicable anti-spam and direct-marketing laws (including obtaining any required consents) and use buyer data only for the purpose of fulfilling the sale and any consents you have separately obtained.

65. Suspension, Stripe decisions and survival. We may pause, restrict or remove your access to the payment features at any time, with or without closing your Milkshake account, including if Stripe restricts your connected account, if you disconnect your Stripe account from Milkshake, if we suspect a breach of these terms or our Acceptable Use Policy, if we receive a complaint about you or your items, if we identify a high chargeback rate or suspected fraud or transaction laundering, or if we are required to by law. Stripe may also hold funds, request information, impose reserves or close your connected account under its own terms — these are Stripe’s decisions and we have no control over them. If your Milkshake account ends or you disconnect your Stripe account from Milkshake, your Stripe account itself is unaffected (it is yours), but you lose access to our selling tools and any subscription fees you owe remain owing. Your obligations under this section relating to refunds, chargebacks, taxes, indemnification, IP warranties and buyer-data protection survive termination of your Milkshake account or the payment features.

Housekeeping

66. Account information: You warrant that the information you give us is true, accurate and complete and that you will keep your login information up-to-date (including a working email address). Your login is not transferable. You are responsible for any use of Milkshake services that occurs in conjunction with your login details. If you realise there’s any unauthorised use of your password or any breach of security, you need to let us know immediately. You must not use a virtual private network or VPN or any other means to avoid compliance with these terms, or for any fraudulent or illegal reasons.
67. Feedback: You agree to answer any of our questions as best you can, and to let us gather information on your use and participation. We may keep and use this information for our own internal purposes. If you want to know more about how we treat your identifying information, see our Privacy Policy. Your ideas and feedback can be used in our products and marketing.
68. Privacy: We respect your privacy and process your personal information in accordance with our Privacy Policy. Our Privacy Policy explains how we deal with your information.
69. Security: We value your information and take reasonable precautions to protect it.
70. Acceptance on behalf of someone else: If you’re agreeing to these terms on behalf of someone else (like your employer), then you’re promising to us that you have full legal authority to bind that third party. Remember that only real persons can create Milkshake accounts.
71. Consumer laws: The consumer law provides certain non-excludable consumer guarantees. To the extent permitted by law, our liability for breach of a non-excludable consumer guarantee is limited, at our option, to replacing or paying the cost of replacing the relevant item or service, (unless the non-excludable consumer guarantee says otherwise).
72. Blocking a user, disabling an account or restricting transactions: We may block you, terminate your account, remove or disable content or an item, restrict access to payment features, or refuse, delay, cancel or restrict a transaction through the Service if we reasonably believe there is a risk associated with you, your account, your Milkshake Website, your content, an item, a buyer, a seller, a payment or a transaction. This includes if we believe it breaches a law, regulation, payment-provider rule, card-network rule, these terms or our policies; involves a sanctioned person, country or territory; creates legal, regulatory, security, privacy, fraud, chargeback, reputational or loss risk; or could cause harm to us, our users, End Users, our payment providers or others. Examples include transactions where the payment is from or to a person or country sanctioned by an authority (like the United Nations, the United States government or the Australian government). You warrant that you are not located in a sanctioned country and are not on a sanctioned persons list. We may take any of the actions stated in this clause without notice.
73. US-specific controls: Milkshake is not available to anyone located in any U.S. sanctioned countries or to anyone on the U.S. Treasury Department’s Specially Designated Nationals List (SDN list). You must not use your Milkshake Website to provide services to any person located in a U.S. sanctioned country or to anyone on the SDN list.

General

74. Changes to these terms: We may change these terms at any time and, if we make changes, we will take reasonable steps to let you know about the changes. You can also keep track of whether changes have been made to our terms by referring to the version and effective date at the footer of the terms. If you continue to use Milkshake after the changes are made, then you will be agreeing to the changes regardless of the amount of time that has elapsed.
75. Notices: Any notice you send us must be submitted via a help request. Any notice we send to you will be emailed to the email address you provided to us.
76. Applicable Laws: We control and operate Milkshake from our offices in Australia. The laws of the State of Victoria and the Commonwealth of Australia govern these terms, and you submit to the exclusive jurisdiction of the courts of Victoria and the Commonwealth of Australia.
77. Relationship between the parties: Nothing in these terms is to be construed as constituting a partnership, joint venture, employment or agency relationship between you and us.
78. Entire Agreement: These terms, Milkshake’s policies and procedures contain the entire agreement between the parties.
79. Partial Invalidity: In the event of the invalidity of any part or provision of these Terms such invalidity must not affect the enforceability of any other part or provision of these Terms.