Terms of Service

ARCHIVED 2021-11-02, DATE APPROXIMATE · VERSION 20211102_rev01 · COMPARED WITH 20190818_rev01

Full text changes — 20190818_rev01 to 20211102_rev01

COLOUR MARKS THE SEVERITY OF A FLAGGED CLAUSE · + AND − MARK ADDED AND REMOVED

 - 6\. A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
 ## 4\. Acceptable Use Policy
 The following is a partial list of the kinds of activities that are prohibited on or through the Service: (a) submitting Materials that are patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) engaging in activities or submitting Materials that could be harmful to minors; (c) engaging in activity or submitting Materials that harasses or advocates harassment of another person; (d) engaging in activity that involves the transmission of "junk mail" or unsolicited mass mailing or "spam" or harvesting or otherwise collecting personally identifiable information about Service users, including names, phone numbers, addresses, email addresses, (collectively, "User Data") without their consent; (e) engaging in activity, or submitting Materials, or promoting information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (f) submitting Materials that contain restricted or password only access pages, or hidden pages or images; (g) submitting Materials that displays pornographic or sexually explicit material of any kind; (h) submitting Materials that provide instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (i) submitting Materials that contain viruses, Trojan horses, worms, or any other similar forms of malware, (j) engaging in activities or submitting Materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (k) engaging in unauthorized commercial activities and/or sales without our prior written consent such as advertising, solicitations, contests, sweepstakes, barter, and pyramid schemes; (l) using any robot, spider, other automatic device, or manual process to monitor, copy, or "scrape" web pages or the content contained in the ThemeIsle website or for any other unauthorized purpose without our prior written consent; (m) using any device, software, or routine to interfere or attempt to interfere with the proper working of the Service; (n) decompiling, reverse engineering, or disassembling the software or attempting to do so; or (o) taking any action that imposes an unreasonable or disproportionately large load on the Service or our hardware and software infrastructure or that of any of our Licensors or Suppliers. In addition, you covenant and represent that you will not use the Service in violation of the law or these Terms of Service.
+## 5\. Forums
+## 5\. Fair Usage Policy
+Your license key is for your own usage _\[Personal, Business, Developer packages\]_ and for the usage of the websites that you build for your clients _\[Agency packages\]_. We expect you to don't abuse the Services.
+We have a list of "**don'ts**" it is not finite and could be supplemented.
+- **Don't** allow anyone else to utilize your account or license by selling, licensing, leasing, assigning, transferring, pledging, or engaging in any other activity that could be construed as sharing or transmitting ownership in your account.
+- **Don't** use our website or Services to conduct any illegal activity, or transmit any transmit, or upload any viruses, spyware, or other harmful, infringing, illegal, disruptive, or destructive content or files.
+- **Don't** reverse engineer or decompile our website, or engage in any other action that may divulge confidential data.
+## 6\. Forums
 The Service may offer forums, blogs, comments areas, bulletin boards and chat rooms (collectively, "Forums") that are intended to provide users 18 years of age and older an interesting and stimulating forum in which they can express their opinions and share their ideas. ThemeIsle does not endorse the accuracy or reliability of any advice, opinion, statement or information posted on these Forums. Please use your best judgment, and be respectful of other individuals using these Forums. Do not use vulgar, abusive or hateful language. Uploading copyrighted or other proprietary material of any kind on the Service without the express permission of the owner of that material is prohibited and may result in civil and/or criminal liability. Any information you disclose when posting a message in these Forums may become public. You should not include any information in your posting that you do not want other parties to see or use and you hereby agree that you will not hold ThemeIsle responsible for any third party's use of information contained in such posting. To maintain a positive, creative environment in which Users may share and display Materials, we ask that you only use the Service in a manner that is consistent with our **Acceptable Use Policy**.You agree not to use user names or Forum titles that are offensive, obscene, or harassing to others. We reserve the right to require you to change your user name or the title of your Forum at any time and for any reason in our sole discretion.
+## 6\. Use of Third Party Services
+## 7\. Use of Third Party Services
 As a part of our Service, we may offer links to websites operated by various third parties and are not responsible or liable for any acts or omissions created or performed by these third parties. We provide such links for your convenience and reference only. ThemeIsle does not operate or control in any way any information, software, products or services available on such web sites. Our inclusion of a link to a website does not imply any endorsement of the services or the site, its contents, or its sponsoring organization.
+## 7\. Representations and Warranties and Indemnification
+## 8\. Representations and Warranties and Indemnification
 You hereby represent and warrant that: (a) you have all necessary authority, rights and permissions to submit the Materials and grant the licenses described in these Terms of Service, (b) the Materials are accurate, current and complete, (c) the Materials and your use of the Service shall not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other third party rights, including, without limitation, any rights of privacy or publicity or any contractual rights, (d) the Materials and your use of the Service shall not violate any applicable law or regulation or cause injury to any person; (e) your use of the Service shall not violate any agreements between you and a third party.You agree to indemnify, defend and hold harmless ThemeIsle, and its officers, directors, employees, agents, and contractors from and against any and all claims, costs, demands, damages, liabilities, or expenses, including, without limitation, reasonable attorneys' fees, arising from or related to: (a) the Materials you provide or approve for publication, (b) your use of the Service, (c) your breach of these Terms of Service, or (d) any actual, prospective, completed or terminated service between you and a third party.
+## 8\. Disclaimers and Limitations
+## 9\. Disclaimers and Limitations
 ThemeIsle intends that the information contained in its Service be accurate and reliable; however, errors sometimes occur. In addition, ThemeIsle may make changes and improvements to the information provided herein at any time. THE SERVICE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED "AS IS." ThemeIsle AND/OR ITS SUPPLIERS, PARTNERS AND AFFILIATES DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE SERVICE AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF ThemeIsle' SERVICE IS AT YOUR OWN RISK. ThemeIsle AND/OR ITS SUPPLIERS, ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF ThemeIsle' WEBSITE OR SERVICE OR WITH THE DELAY OR INABILITY TO USE THE SERVICE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH ThemeIsle, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF ThemeIsle AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.**LIMITATION OF LIABILITY**
 IN NO EVENT SHALL ThemeIsle OR ITS SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. ThemeIsle' LIABILITY, AND THE LIABILITY OF ThemeIsle' SUPPLIERS AND AFFILIATES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, SHALL NOT EXCEED THE TOTAL SUM OF $500.00. THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE CONTRACT BETWEEN ThemeIsle AND YOU. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.
 For Jurisdictions that do not allow us to limit our liability: Notwithstanding any provision of these Terms, if your jurisdiction has provisions specific to waiver or liability that conflict with the above then our liability is limited to the smallest extent possible by law. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (a) death or personal injury caused by its negligence or that of any of its officers, employees or agents; or (b) fraudulent misrepresentation; or (c) any liability which it is not lawful to exclude either now or in the future.
 IF YOU ARE A RESIDENT OF A JURISDICTION THAT REQUIRES A SPECIFIC STATEMENT REGARDING RELEASE THEN THE FOLLOWING APPLIES. FOR EXAMPLE, CALIFORNIA RESIDENTS MUST, AS A CONDITION OF THIS AGREEMENT, WAIVE THE APPLICABILITY OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU HEREBY WAIVE THIS SECTION OF THE CALIFORNIA CIVIL CODE. YOU HEREBY WAIVE ANY SIMILAR PROVISION IN LAW, REGULATION, OR CODE THAT HAS THE SAME INTENT OR EFFECT AS THE AFOREMENTIONED RELEASE.
 **ERRORS AND DELAYS**
 ThemeIsle is not responsible for any errors or delays caused by an incorrect e-mail address provided by you or any other technical problems.
+## 9\. Subscriptions and Payment
+## 10\. Subscriptions and Payment
 After browsing our web site you may be interested in purchasing some of our ThemeIsle designs. You will be required to submit payment information to do so. To process our payments we use PayPal or 2Checkout. You must agree with their terms and conditions before paying for any of our products.ThemeIsle offers various subscription packages. This subscription will automatically renew at the end of the year, and you will be automatically billed at the end of your term for the next year if your subscription is still active. You can, however, cancel your subscription at any time from within your PayPal control panel (if PayPal was used to make your purchase). You can also request a cancellation from within the ThemeIsle account manager if PayPal was not used to make your purchase. If you do not cancel by the end of the year, you will be automatically billed for the next year.
 Upon receipt of your order, you will either be prompted to begin your download immediately or you will receive an e-mail from us with instructions to complete your download. If you are prompted to begin your download immediately, your completion of the download will constitute delivery to you of the item(s) you purchased. If you receive an e-mail from us with instructions to complete your download, the receipt by you of the e-mail will constitute delivery by us to you of the item(s) you purchased. In case you are unable to download the item(s) you purchase or you do not receive an e-mail from us with instructions to complete your download, you must contact us within 5 days from the date of your order. If you do not contact us within 5 days from the date of your order, the item(s) you purchased will be considered received, downloaded and delivered to you.
 **Refund Policy:** We offer refunds to any unsatisfied customer up to thirty (30) days after the purchase was made. If you would like your money back, simply send us an email at friends@themeisle.com with a description of your problem and request for a refund.
 **Taxes:** You are solely responsible for any applicable state, federal or provincial taxes. Although you may not be charged taxes by us, you agree that you will pay any applicable taxes or fees to your local or state tax agency for any purchases. We are not responsible for collecting, transmitting, or advising on taxes, duties, or other levies by the government regarding your purchases.
+## 10\. Termination
+## 11\. Termination
 ThemeIsle reserves the right in its sole discretion, and without any prior notice, to terminate your access to the Service for any or no reason, including your breach of these Terms of Service, the terms and conditions of any service for which you may have registered, or a violation of the rights of another user or the law. You may unsubscribe from any further communication from ThemeIsle at any time by delivering a written notice addressed to friends@themeisle.com. You shall be responsible for ensuring delivery of the notice to ThemeIsle. You may also unsubscribe by clicking the Email Preferences link or the opt-out link in any of the ThemeIsle emails.ThemeIsle reserves the right with or without notice to you at any time to change, modify or discontinue any service or a portion or attribute thereof, or the offering of any information, good, content, product or service. ThemeIsle shall have no liability to you or any third party should ThemeIsle modify or discontinue any service or an aspect thereof.
+## 11\. Dispute Resolution
+## 12\. Dispute Resolution
 Any claim or controversy arising out of or relating to the use of ThemeIsle' Service, to the goods or services provided by ThemeIsle, or to any acts or omissions for which you may contend ThemeIsle is liable, including but not limited to any claim or controversy ("Dispute"), shall be finally, and exclusively, settled by arbitration in Bucharest, Romania, from which arbitration there shall be no appeal. The arbitration shall be held before one arbitrator under the Commercial Arbitration rules of the American Arbitration Association ("AAA") in force at that time. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of Romania, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act. To begin the arbitration process, a party must make a written demand therefore. Each part shall bear its own costs and attorneys' fees. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in Romania. The arbitrator shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND ThemeIsle WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOU ACKNOWLEDGE AND AGREE THAT YOU AND ThemeIsle ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and ThemeIsle otherwise agree, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
+## 12\. Class Action/Jury Trial Waiver
+## 13\. Class Action/Jury Trial Waiver
 WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
+## 13\. General
+## 14\. General
 You agree that: (i) the Service shall be deemed solely based in Romania; and (ii) this Service shall be deemed a passive website and service that does not give rise to personal jurisdiction over ThemeIsle, either specific or general, in jurisdictions other than Romania. These Terms of Service shall be governed by the internal substantive laws of the Romania, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. We each agree to submit to the personal jurisdiction of a state court located in Romania, for any actions for which either party retains the right to seek injunctive or other equitable relief, as further described in the Arbitration provision above. These Terms of Service, together with the Privacy Policy and any other legal notices published by us on the Service, shall constitute the entire agreement between you and us concerning this Service and supersedes any prior written or oral representations. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and our failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. YOU AND ThemeIsle AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. These Terms of Service may not be transferred or assigned by you, but may be assigned by ThemeIsle without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved to ThemeIsle.
+## 14\. Copyright and Trade Mark Notices
+## 15\. Copyright and Trade Mark Notices
 All contents of the Service are copyrighted © 2015 Vertigo Studio SRL. All rights reserved. You may not claim intellectual or exclusive ownership to any of our products, modified or unmodified. All products are property of ThemeIsle, Inc. Other product and company names may be trademarks or service marks of their respective owners. IF YOU DO NOT AGREE TO THE TERMS STATED ABOVE OR TO ANY CHANGES MADE IN THESE TERMS, PLEASE EXIT THIS WEBSITE AND SERVICE IMMEDIATELY.
+## 14\. GPL License
+## 16\. GPL License
 Themes available for download on this site are licensed GPL v2 or later (or GPL v3 or later). What this means to the user is that they can modify, change the code, and redistribute the code in unmodified or modified form, as long as the original license remains in the format presented by the author.