Effective June 15, 2016
IN THESE TERMS AND CONDITIONS, “WE,” “US,” “ITS,” AND “OUR” REFER TO DIYthemes (“DIYthemes”), AND “YOU,” “YOUR,” AND “MEMBER” REFER TO YOU. Before using DIYthemes.com (“DIYthemes Websites”), please read this agreement relating to your use of this website carefully.
1. ACCEPTANCE OF TERMS
By using the DIYthemes Websites, you agree to be bound by these terms and conditions of use (“Terms”). If you do not agree to these Terms, please do not use the DIYthemes Websites. DIYthemes provides the information and services on the DIYthemes Websites to you, the user, conditioned upon your acceptance, without modification, of the Terms contained herein. Your use of the DIYthemes Websites constitutes your agreement with such Terms.
We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms periodically. Such modifications shall be effective immediately upon posting of the modified Terms to the DIYthemes Websites. Your continued use of the DIYthemes Websites following the posting of changes to these Terms will mean that you accept those changes.
In addition, each user’s use of a particular DIYthemes Website service (“Service”) may be subject to specific guidelines, rules, or additional licenses (“Service-specific Rules”) posted from time to time and incorporated by this reference into the Terms. Use of the DIYthemes Websites and/or its Services constitutes full acceptance of and agreement to the Terms; if a user does not accept our Terms, he or she is not granted rights to use the DIYthemes Websites or any of its Services, as defined herein, and should refrain from accessing the DIYthemes Websites and its Services.
To update the Terms, we will post the changed version and its effective date on this Terms of Service Agreement page. If we change any Service-specific Rules, we will post the changed version on the location where those Service-specific Rules normally appear, reference the change on the primary page for that Service and include a link to the previous version of the terms or rules. DIYthemes reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the DIYthemes Websites or any Service thereon (or any part thereof). DIYthemes shall not be liable to any user or other third party for any such modification, suspension or discontinuance except as expressly provided herein.
2. NO UNLAWFUL OR PROHIBITED USE
By using the DIYthemes Websites, you warrant to DIYthemes that you will not use the DIYthemes Websites, or any of the content obtained from the DIYthemes Websites, for any purpose that is unlawful or prohibited by these Terms. If you violate any of these Terms, your permission to use the DIYthemes Websites automatically terminates. Do not attempt to gain unauthorized access to the Websites or Services, other accounts, computer systems or networks connected to the DIYthemes Websites or Services, through hacking, password mining, or any other means, or interfere or attempt to interfere with the proper working of the DIYthemes Websites or Services or any activities conducted through the Websites or Services.
3. WEBSITE CONDUCT
Be civil and considerate when making use of the DIYthemes forums (or other areas the user is allowed to provide Content or input), as bad behavior is also grounds for termination of your membership. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any DIYthemes customer, employee, member, or officer will result in immediate account termination regardless of whether it occurs on the DIYthemes Website or not.
4. DESCRIPTION OF SERVICE AND CONTENT LICENSE GRANTS
The DIYthemes Websites are owned and operated by DIYthemes for the purpose of fostering information related to the creation of themes and websites (the “Purpose”). The DIYthemes Websites also promote and distribute software related to (and including) products at the DIYthemes Store.
Your rights to access, download, and use any software made available for download from the DIYthemes Websites will be subject to the terms and conditions of the software license agreement identified on the site and/or in the software as applicable to each particular software package, and you agree to comply with those terms and conditions.
If you post any information, tags, comments, or other content (your “Contributions”) to the DIYthemes Websites or otherwise provide any Contributions to DIYthemes you hereby grant to DIYthemes a perpetual, irrevocable, world-wide, royalty free license to use, make, have made, offer for sale, sell, copy, distribute, perform, display, and transmit such Contributions, and to grant to others rights to do any of the foregoing.
No Content submitted by You shall contain any content that is obscene, libelous, slanderous or otherwise defamatory, false or misleading or which violates any copyright, right of privacy or publicity or other right of any person, and the Member Content will not contain any viruses, scripts, macros, or programs or links to macros, scripts, programs, or any code that alters, destroys or inhibits the operation of, or infiltrates, computer systems or data run through such computer systems. Member shall indemnify and hold harmless DIYthemes, its affiliates and agents, and those licensed or otherwise authorized by DIYthemes to process, transmit, or distribute Member Content from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorney’s fees) arising out of or relating to any breach by Member of the foregoing representations and warranties or otherwise arising out of or relating to the contents or nature of the Member Content.
5. REGISTRATION OBLIGATIONS
If required by DIYthemes, each user must: (a) provide true, accurate, current and complete information on the Service’s registration form (collectively, the “Registration Data”) and (b) maintain and promptly update the Registration Data as necessary. If, after investigation, we have reasonable grounds to suspect that any user’s information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate that user’s account and prohibit any and all current or future use of the Services (or any portion thereof) by that user other than as expressly provided herein.
Each user will receive a password and account designation upon completing DIYthemes registration process and is wholly responsible for maintaining the confidentiality thereof and wholly liable for all activities occurring thereunder. DIYthemes cannot and will not be liable for any loss or damage arising from a user’s failure to comply with this Section, including any loss or damage arising from any user’s failure to (a) immediately notify DIYthemes of any unauthorized use of his or her password or account or any other breach of security and (b) ensure that he or she exits from his or her account at the end of each session.
Your right to access your account with the Service (including, without limitation, any login or other access information) is personal to you, non-transferable and non-assignable, and is subject to any limits established by DIYthemes. You agree that you will not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access or manage your account with the Service or to monitor or copy the Service websites or the content contained therein except those automated means expressly made available by DIYthemes, if any, or authorized in advance and in writing by DIYthemes (for example, DIYthemes-approved third party tools and services). Without limitation to the foregoing, you further agree that you will not take any action that imposes an unreasonable or disproportionately large load on the Service as determined by DIYthemes.
The DIYthemes Websites handle user Registration Data in accordance with the DIYthemes Websites Privacy Statement.
DIYthemes will not pre-screen or review Content, but DIYthemes reserves the right to refuse or delete any Content of which it becomes aware that it reasonably deems not to fulfill the Purpose. In addition, DIYthemes shall have the right (but not the obligation) in its sole discretion to refuse or delete any Content that it reasonably considers to violate the Terms or be otherwise illegal.
DIYthemes does not control the Content posted via the Services and, as such, does not guarantee the accuracy, integrity or quality of such Content. Under no circumstances will DIYthemes be liable in any way for any Content, including, but not limited to, liability for any errors or omissions in any Content or for any loss or damage of any kind incurred as a result of the use of any Content posted, emailed or otherwise transmitted via the DIYthemes Websites or any Services thereon.
Each user, by using the DIYthemes Websites or any Services, may be exposed to Content that is offensive, indecent or objectionable. Each user must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
7. TERM AND TERMINATION
Term of this Agreement is perpetual from date of purchase as long as Member continues to use DIYthemes Services, or until such time as either party notifies the other to terminate with or without cause. The term for a specific software or service will be determined by the applicable software license.
We may terminate a DIYthemes Website user’s account in our absolute discretion and for any reason. We are especially likely to terminate for reasons that include, but are not limited to, the following: 1.) violation of these Terms; 2.) abuse of site resources or attempt to gain unauthorized entry to the site or site resources; 3.) use the DIYthemes Websites Services in a manner inconsistent with the Purpose; 4.) a user’s request for such termination; and 5.) requirement of applicable law, regulation, court or governing agency order.
Our termination of any user’s access to the DIYthemes Websites or any Services hereunder may be effected without notice and, on such termination, we may immediately deactivate or delete user’s account and/or bar any further access to such files. DIYthemes shall not be liable to any DIYthemes Website user or other third party for any termination of that user’s DIYthemes Website access or account hereunder.
8. MAINTENANCE AND SUPPORT
DIYthemes offers the Thesis software and associated Extensions “as is” and with no implied meaning that they will function exactly as you would like or will be compatible with all 3rd party components and WordPress Plugins.
In addition, we do not offer support via email or otherwise support WordPress or other WordPress Themes or Plugins that we have not developed.
Technical support is available in the Customer Support Center (http://diythemes.com/support/). If you need to contact us for a non-support inquiry, please email our representatives at email@example.com.
DIYthemes does not warrant any support or maintenance information found in the members-only community forums, and you use that information at your own risk.
9. PAYMENTS AND REFUNDS
Unless otherwise agreed to in writing by DIYthemes, an online payment will be required for software purchases. A valid credit card or PayPal account is required for purchasing the Software, upgrades or additional products or services. In certain cases, an auto renewal will occur at the end of Your term (“Renewal Date”), unless you terminate prior to the Renewal date, and in accordance with these Terms and Conditions, as well as any other related DIYthemes agreements. The specifics of your payment plan in regards to software, services, and purchase will be outlined in the applicable license agreement.
Prices of all Services, including but not limited to upgrade packages and software fees, are subject to change at any time.
Thesis Basic, Thesis Basic Plus, and Thesis Professional licenses are subject to the terms of the Thesis Refund Policy.
Thesis Skins, Boxes, and Client Site Options are subject to the terms of the Refund Policy for Thesis Extensions.
DIYthemes, any Service, or a third party may provide links to other websites. DIYthemes exercises no control whatsoever over such other non-DIYthemes websites and web-based resources and is not responsible or liable for the availability thereof or the content, advertising, products, or other materials thereon. DIYthemes shall not be responsible or liable, directly or indirectly, for any damage or loss incurred or suffered by any user in connection therewith. Your access and use of websites linked to the DIYthemes Websites, including information, material, products and services therein, is solely at your own risk.
The DIYthemes Websites privacy statement is applicable only when you are on the DIYthemes Websites. Once you choose to link to another website, you should read that website’s privacy statement before disclosing any personal information.
Each user shall indemnify, defend, and hold harmless DIYthemes, LLC, subsidiaries and affiliates and their respective officers, employees and agents, and each of DIYthemes’s website partners from any and all claims, demands, damages, costs, and liabilities, including reasonable attorneys’ fees, made by any third party due to or arising out of that user’s acts or omissions, including claims arising out of that user’s use of the DIYthemes Websites; his or her submission, posting, or transmission of Content, or his or her violation of the Terms.
12. DISCLAIMER OF WARRANTIES
EACH USER’S USE OF THE DIYTHEMES WEBSITES AND THE DIYTHEMES WEBSITES SERVICES IS AT HIS OR HER SOLE RISK. DIYTHEMES AND THE DIYTHEMES WEBSITE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND DIYTHEMES, LLC ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY USER COMMUNICATIONS OR PERSONALIZATION SETTINGS. EACH DIYTHEMES WEBSITE USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO HIS OR HER COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. DIYTHEMES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SPECIFICALLY, DIYTHEMES MAKES NO WARRANTY THAT (I) THE DIYTHEMES WEBSITES OR ANY DIYTHEMES SERVICE WILL MEET YOUR REQUIREMENTS, (II) ANY USER ACCESS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE QUALITY OF ANY CONTENT, PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY ANY USER WILL MEET HIS OR HER EXPECTATIONS, AND (IV) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED. EXCLUDING ONLY DAMAGES ARISING OUT OF DIYTHEMES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, DIYTHEMES SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF DIYTHEMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM ANY USER’S USE OR INABILITY TO USE THE DIYTHEMES WEBSITES OR ANY SERVICE; THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE DIYTHEMES WEBSITES OR ANY SERVICE; OR ANY OTHER MATTER RELATING TO THE DIYTHEMES WEBSITES OR ANY SERVICE. NOTHING HEREIN SHALL BE DEEMED TO CREATE AN AGENCY, PARTNERSHIP, JOINT VENTURE, EMPLOYEE-EMPLOYER, OR FRANCHISOR-FRANCHISEE RELATIONSHIP OF ANY KIND BETWEEN DIYTHEMES AND ANY USER OR OTHER PERSON OR ENTITY, NOR DO THESE TERMS OF SERVICE EXTEND RIGHTS TO ANY THIRD PARTY. AS NOTED ABOVE, DIYTHEMES DOES NOT AND CANNOT CONTROL THE ACTIONS OF DIYTHEMES WEBSITE USERS, VISITORS, OR LINKED THIRD PARTIES. WE RESERVE THE RIGHT TO REPORT ANY MALFEASANCE THAT COMES TO OUR ATTENTION TO THE APPROPRIATE AUTHORITIES. WE DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE DIYTHEMES WEBSITES OR ANY SERVICES. OPERATION OF THE DIYTHEMES WEBSITE MAY BE SUBJECT TO INTERFERENCE FROM NUMEROUS FACTORS OUTSIDE OUR CONTROL. FURTHER, SCHEDULED AND PREVENTIVE MAINTENANCE AS WELL AS REQUIRED AND EMERGENCY MAINTENANCE WORK MAY TEMPORARILY INTERRUPT SERVICES OR ACCESS TO THE WEBSITES. THE DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY APPLY, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY CAUSED BY THE FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT, OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF OR USE OF ANY ASSET, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORTIOUS BEHAVIOUR, NEGLIGENCE, OR ANY OTHER COURSE OF ACTION BY DIYTHEMES.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL DIYTHEMES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DIYTHEMES WEBSITES, OUR SERVICES, OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $1000. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
In the event that you have a dispute with one or more DIYthemes Website users, you release DIYthemes, LLC. (and our officers, directors, agents, subsidiaries, parent corporation, joint ventures, and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Without limiting any other remedies, DIYthemes, LLC may suspend or terminate your DIYthemes Website account if we suspect that you have engaged in fraudulent activity in connection with the DIYthemes Websites or any DIYthemes Service.
16. LEGAL COMPLIANCE
You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the DIYthemes Websites and all of its Services.
17. NO AGENCY
You and DIYthemes, LLC are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms.
DIYthemes respects the intellectual property rights of others and requires that the people who use the DIYthemes Websites do the same. It is our policy to respond promptly to claims of intellectual property misuse.
If you believe that your work has been copied and is accessible on this site in a way that constitutes copyright infringement, you may notify us by providing our copyright agent with the following information in writing:
- the electronic or physical signature of the owner of the copyright or the person authorized to act on the owner’s behalf;
- identification of the copyrighted work that you claim has been infringed;
- identification of the material that is claimed to be infringing and information reasonably sufficient to permit DIYthemes to locate the material;
- your name, address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.
If DIYthemes receives such a claim, DIYthemes reserves the right to refuse or delete Content as described under Section 5 hereto, or to terminate a user’s account in accordance with Section 9.
Our designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act of 1998 (“DMCA”) is:
PO Box 5429
Austin, TX 78763, USA
After receiving a claim of infringement, DIYthemes will process and investigate notices of alleged infringement and will take appropriate actions under the DMCA and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, DIYthemes will act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity, and will act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. DIYthemes will take reasonable steps promptly to notify the subscriber that it has removed or disabled access to such material.
Upon receipt of a proper counter notification under the DMCA, DIYthemes will promptly provide the person who provided the initial notification of claimed infringement with a copy of the counter notification and inform that person that it will replace the removed material or cease disabling access to it in ten business days. Additionally, DIYthemes will replace the removed material and cease disabling access to it not less than 10, nor more than 14 business days following receipt of the counter notice, unless DIYthemes’s designated agent first receives notice from the person who submitted the initial notification that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the DIYthemes Websites system or network.
You may provide us with a Counter Notification by providing our copyright agent the following information in writing:
- your physical or electronic signature;
- identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which DIYthemes may be found and that you will accept service of process from the person who provided the initial notification of infringement.
Any notices or communications under the agreement shall be by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the addresses specified below. If to DIYthemes, such notices shall be addressed to firstname.lastname@example.org or to DIYthemes, LLC, PO Box 5429, Austin, TX 78763, USA. If to Member, such notices shall be addressed to the electronic or mailing address specified in Members’s service registration form, or such other address as either party may give the other by notice as provided in this section. It is the applicant’s responsibility to provide an accurate address and to ensure that the Service is notified of any changes to applicant’s address as specified in this section.
20. GENERAL INFORMATION
The Terms constitute the entire agreement between each user and DIYthemes, LLC and govern each user’s use of the DIYthemes Websites and DIYthemes Services, superseding any prior agreements. Each user may be subject to additional terms and conditions that may apply when that user uses affiliate services, third party content, or third party software. The Terms and the relationship between each user and DIYthemes shall be governed by the laws of the State of Texas without regard to its conflict of law provisions, and each party shall submit to the personal and exclusive jurisdiction of the courts located within the county of Austin, Texas. If any provision of the this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
21. VIOLATIONS OF TERMS
Please report any violations of the Terms to the DIYthemes Websites Support Manager at email@example.com.