- Hi, we’re Envato Sites Pty Ltd (Envato, 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 iOS mobile app. Together, our website, Milkshake iOS mobile app, platform, templates, tools, website hosting service and other content are called our Service.
- These terms, together with our Acceptable Use Policy, govern your use of Milkshake and form a binding agreement between us. If you don’t accept these terms, then we’re sorry but you must not use the Service or browse our website.
- 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.
- 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.
- Our Service is still in an early access phase. While our intention is to transition to an active product at the end of the early access phase, the Service may not continue after the early access phase is over.
- 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.
What you get with Milkshake
- We agree to provide you with the Service. The Service allows you to create a single website (that can be used for personal or commercial purposes) per Instagram account in accordance with these terms (your Milkshake Website).
- Your access to the Service is only available for the life of your Milkshake account and we may terminate your Milkshake account immediately if you breach any of these terms.
- We reserve the right to change or discontinue the Milkshake iOS mobile app, templates, functionality or the entire Service at our discretion, without notice to you.
- You are not permitted to export your Milkshake Website or copy it for use elsewhere, including when you cancel your Milkshake account.
- 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.
Third Party Rights and Service Providers
- To create a Milkshake account, you acknowledge that you will do so through Instagram as a Third Party Service. We will receive personal data via that Third Party Service but only when you have consented to that Third Party Service sharing your personal data with us.
- If you have downloaded the App from the Apple, Inc. (“Apple”) App Store or if you are using the App on an iOS device, you acknowledge that you have read, understood, and agree to clauses 17 – 22 regarding Apple.
- This Agreement is between you and Envato 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.
- 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 App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service.
- Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including:
- product liability claims;
- any claim that the Service fails to conform to any applicable legal or regulatory requirement; and
- claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party claim that the Service and/or your possession and use of the App infringe that third party’s intellectual property rights.
- You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement, and upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary of this Agreement.
- You hereby represent and warrant that
- 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
- you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Service, they should be directed to Company as follows: Envato Sites Pty Ltd at 121 King Street, Melbourne, Victoria, Australia 3000, or email to [email protected]
Ownership of IP
- We own the following (our IP):
- the copyright subsisting in the code in the underlying system that runs the Service (Milkshake iOS 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;
- 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
- all trademarks used in connection with Milkshake.
- You may not copy, distribute, modify, publish or make derivative works of any of our IP in any way not expressly authorised by these terms.
- In this section, your content means all content (such as words, videos, music or pictures) that you create, upload or make public to your Milkshake Website.
- You warrant that:
- you own or have the right to publish your content (and you agree that we are not the publisher of your content);
- your content will not breach any applicable laws;
- you will comply with our Acceptable Use Policy at all times in relation to your Milkshake Website and content.
- 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.
- You agree that we may remove or disable access to your Milkshake Website or any of your content for any reason at our discretion. This might be because:
- we receive a copyright takedown notice or other complaint about your Milkshake Website or content; or
- we are of the view that your Milkshake Website or content breaches our Acceptable Use Policy or is otherwise unsuitable for hosting by us.
- 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.
- You are solely responsible for any activity that occurs on your website including your relationship with your own customers and compliance with applicable laws.
- Milkshake is an ongoing recurring Service that will remain active until you cancel your Milkshake account. You can cancel your Milkshake account at any time by emailing support at [email protected]
- We may cancel your Milkshake account if you breach any of these terms. We may also cancel your Milkshake account if we decide to discontinue the Milkshake service (which we may do at our discretion).
- 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.
Liability and Indemnity
- You indemnify us against all losses, costs (including legal costs on a full indemnity basis), expenses, demands or liability that we incur arising out of, or in connection with, a third party claim against us relating to your use of Milkshake (including any claim against us relating to your Milkshake Website or content).
- The Service are made available to you on an “AS IS” basis. Subject to clause 35, we disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability and fitness for a particular purpose.
- Our liability to you in connection with Milkshake or these terms, in contract, tort (including negligence) or otherwise, is limited as follows:
- 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
- If we cannot exclude liability, then our total liability to you is limited to $10 USD.
- 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 Envato companies. We may enforce that benefit as trustee for and on behalf of the other Envato companies as beneficiaries under that trust.
Intellectual Property Policy
- 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 other IP rights owners, including trademark owners – you can contact us at [email protected]
- If you’re a copyright owner you’ll need to send a signed, dated DMCA takedown notice to us. We have to 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 might contact you directly using your contact details. The quickest way is to send it to our support team at [email protected] The notice must:
- Tell us about the content that you claim infringes your copyright, including a description and where we can find it – include the URL;
- Tell us about your copyrighted content and let us know where we can see this published – include the URL;
- Give us a detailed explanation about how you believe the content violates your copyright;
- Include your full name and contact details, including your address, phone number and email address;
- Include the date and your signature; and
- 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.”
- Address for notices: All notices should be addressed to the Envato Copyright Agent at PO Box 16122, Collins Street West, Melbourne, Victoria, Australia 8007, email to [email protected]
- 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 unauthorized 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 and conditions, or for any fraudulent or illegal reasons.
- Security: We value your information and take reasonable precautions to protect it.
- 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.
- Consumer laws: In some places there may be non-excludable warranties, guarantees or other rights (‘non-excludable consumer guarantees’). We do not exclude, restrict or modify non-excludable consumer guarantees in these terms. Except for non-excludable consumer guarantees, we are bound only by the express warranties made in these terms. 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).
- 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.
- Blocking a user, disabling an account or refusing to process a payment: We may block you, terminate your account or refuse to process a payment if we reasonably believe there is a risk associated with you, your account, or that payment, including if it breaches a law or regulation. Examples of where we might do this 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); or where we reasonably believe there is a legal or regulatory risk or a risk of loss being suffered by us or our members. 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.
- 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 list of 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.
- 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.
- 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.
Applicable Laws: We control and operate Milkshake from our offices in Australia. The laws of Victoria, Australia govern these user terms, and you submit to the jurisdiction of the courts there.