Single User Standard License
This agreement ("Agreement") is binding upon Themler.com and any member ("you") who downloads theme, control, plugin or other work ('Work') from the Themler.com websites: themler.com
, which documents are incorporated herein and made a part hereof by this reference. Themler.com reserves the right to change any of the terms of this agreement at any time, and you agree to be bound by such changes. Please note that Work downloaded as part of your Standard License subscription may only be used in compliance with these Standard License of Service even in case you also subscribe to the Extended License service.
Your rights to use any Work are subject to this license agreement and are conditioned upon your payment to Themler.com for your use of the Work. If you fail to make any payment to Themler.com when due, or if any check is dishonored or credit card charge refused or charged back, your account will be deemed delinquent. If your account becomes delinquent, your right to use any Work downloaded at any time shall automatically terminate unless all payments together with any interest thereon and Themler.com's costs of collection, bank charges and credit card processing fees are received by Themler.com no later than fifteen (15) days from the date that your account became delinquent.
You acknowledge, agree and warrant you shall not:
- Use an Work other than as specified in the Limited License section above.
- Resell, redistribute, provide access to, share or transfer any Work except as specifically provided herein.
- Use an Work together with pornographic, defamatory, or otherwise unlawful or immoral content, or that would be reasonably likely to bring any person or property reflected in the Work into disrepute.
- Use an Work in such a manner that it violates upon any third party's trademark or intellectual property.
- Post an Work online in downloadable format, post an Work on an electronic bulletin board, or enable an Work to be distributed via mobile telephone devices.
- Use any of the Work as part of a trade-mark, design-mark, trade-name, business name, service mark, or logo.
- Sub-license, re-sell, rent, lend, assign, gift or otherwise transfer or distribute the Work(s) or the rights granted under these Terms.
- Download or store the Work on more than one computer at the same time, or post a copy of an Work on a network server or web server for use by other users, or share in any peer-to-peer or similar file sharing arrangement; except that you may make a single backup copy to be stored on media separate from the single permitted computer.
- Remove any notice of copyright, trade-mark or other proprietary right from any place where it is on or embedded in the Work.
- Use Work(s) identified as 'Editorial Use Only', for any commercial, promotional, endorsement, advertising or merchandising use. In this Agreement 'Editorial Use Only' of an Work means use relating to events that are newsworthy or of general interest and expressly excludes any advertorial sections, for example, sections or supplements featuring brand and/or product names.
- Use or display an Work in such a manner that gives the impression that the Work was created by you or a person other than the copyright holder of that Work.
- Represent yourself as an agent, employee, designee, or affiliate of Themler.com for any purpose.
- Use any programs, bots or the like to access the Themler.com websites or any content on these websites for any purpose.
- Themler.com is under no obligation to refund your subscription fee under any circumstances. In case Themler.com determines that you are entitled to a refund of all or part of your subscription fee, such refund shall only be made to the credit card account originally used by you to purchase your subscription. If your subscription was paid by check, your refund will be made by check.
- "Non-transferable" as used herein means that except as specifically provided in this Agreement, you may not sell, rent, load, give, sublicense, or otherwise transfer to anyone, the Work or the right to use the Work. However the work you produce with the Work must be used for yourself, your direct employer, client, or customer, who must be the end user of your work. You agree to take all commercially responsible steps to prevent third parties from duplicating any Work. If you become aware of any unauthorized duplication of any Themler.com Work(s) please notify us via Support.
- You agree that you will not share your username and password combination. Your Themler.com username and password are to be used only by you. Each person that desires to access the Themler.com site must have his/her own username and password and must purchase a subscription. You may use your subscription on ONE COMPUTER at any one time. If any two users on two separate computers are using the same username and password, we reserve the right to terminate that subscriber's account without refund or prior notice. Customized subscriptions with multiple points of access are available from Themler.com. Please contact Support for details.
- You agree to indemnify and hold Themler.com, its officers, employees, shareholders, directors, managers, members and suppliers, harmless against any damages or liability of any kind arising from any use of the Work other than the uses expressly permitted by this Agreement. You further agree to indemnify Themler.com for all costs and expenses that Themler.com incurs in the event that you breach any of the terms of this or any other agreement with Themler.com.
- Themler.com warrants and represents that: (a) except in respect of Work identified as 'Editorial Use Only', your use of the Work in accordance with this Agreement and in the form delivered by Themler.com will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; (b) Unaltered Work do not and will not: \(i) violate any law, statute, ordinance, or regulation; (ii) be defamatory or libelous; or (iii) be pornographic or obscene. (c) While Themler.com makes commercially reasonable efforts to ensure the accuracy of Work keywords and descriptions, as well as the integrity of our Editorial Work, Themler.com makes no warranties and/or representations regarding such keywords, Work descriptions or integrity.
- Themler.com shall defend, indemnify, and hold you harmless up to the "Limits of Liability". (a) Subject to the terms and conditions contained in this Agreement, including without limitation the provisions relating to limitation of liability in this section, Themler.com hereby represents and warrants that the utilization by you of an unaltered Paid-for Work (as defined below) pursuant to the terms of this Agreement shall not infringe or violate the intellectual property rights, publicity rights or privacy rights of any third party, and that all necessary model and property releases have been properly obtained in respect of such unaltered Paid-for Work. 'Paid-for Work' means any Work downloaded from Themler.com's website, apart from any Work which \(i) is a part of Themler.com's collection of free Work, and/or (ii) otherwise can be downloaded without payment of credits or monetary compensation. (b) Subject to subsections (c), (d) and (e) below, Themler.com agrees to indemnify, defend and hold harmless you from and against all damages, liabilities and expenses (including reasonable attorney fees) arising directly from any actual or threatened lawsuit, claim or legal proceeding (collectively, a 'Claim') commenced by a third party against you, where such Claim alleges that you's utilization of the unaltered Paid-for Work pursuant to the terms of this Agreement is in breach of the representations and warranties set forth in subsection (a) above; conditioned upon and provided that you gives Themler.com \(i) prompt written notice of any threatened Claim known to you or any suit or proceeding actually initiated against you, (ii) full information, assistance and cooperation for the defense or settlement thereof, and (iii) at Themler.com's option, sole control of any defense, settlement or action related thereto; and further provided that the use and/or distribution by you of the unaltered Paid-for Work has been at all times in accordance with the terms and conditions of this Agreement and that you is not otherwise in breach of this Agreement. (c) Themler.com shall have no liability for, and Themler.com's obligations under subsection (b) above shall not apply to: \(i) any damages, liabilities or expenses incurred by you prior to its notification of the Claim to Themler.com; and/or (ii) any Claim based on or arising out of: (1) the modification by you of the Paid-for Work; (2) the combination of the Paid-for Work with any other work(s); and/or (3) the context in which the Paid-for Work has been used by you. (d) Notwithstanding anything to the contrary contained in this Agreement or in any other agreement between Themler.com and you, the total maximum aggregate liability of Themler.com with respect to any Paid-for Work downloaded or licensed by you shall in no event exceed US $10,000 (ten thousand US dollars) per Paid-for Work, irrespective of the number of times the Paid-for Work is downloaded or licensed. Themler.com shall not be liable under this Section 8B in respect of any Work which is not a Paid-for Work. (e) The foregoing states the entire liability and obligation of Themler.com, and the sole and exclusive remedy of you, with respect to any breach of the representations and warranties contained in subsection (a) above.
- Notwithstanding anything to the contrary contained herein, Themler.com shall not be liable for any damages, costs or losses arising as a result of modifications made to Work or the context in which the Work are used by you.
- Themler.com's total maximum aggregate obligation and liability to any one subscriber for all claims shall be limited to Ten Thousand United States Dollars - US$10,000.00 (the "Limits of Liability").
- This contract is governed by and shall be construed in accordance with the laws of the State of New York. The United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect this Agreement. You hereby consent to the personal jurisdiction of the courts. All actions, controversies and disputes arising from or relating to this agreement shall be heard and decided exclusively before the courts located within the State, County and City of New York and not elsewhere. You agree that service of process in any actions, controversies and disputes arising from or relating to this Agreement may be effected by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, to the other party however, nothing herein shall affect the right to effect service of process in any other manner permitted by law. This agreement shall be construed neither against nor in favor of any party, but rather in accordance with the fair meaning of the language hereof. The invalidity or unenforceability of any part of this agreement shall not affect the validity or enforceability of the balance hereof.
- If you are entering into this agreement on behalf of your employer or other entity, you warrant and represent that you have the full right and authority to do so. In the event that you do not have such authority, you agree that you will be personally liable to Themler.com for any breaches of the terms of this agreement.
- The number of Work downloads available to you is determined by the Subscription you purchase. For the purposes of this agreement, a day is defined as the twenty four (24) hour period beginning at the time your subscription is purchased. A month is defined as thirty (30) consecutive days beginning on and including the date that you purchase your subscription.
IN THE EVENT THAT YOU BREACH ANY OF THE TERMS OF THIS OR ANY OTHER AGREEMENT WITH Themler.com, Themler.com SHALL HAVE THE RIGHT TO TERMINATE YOUR ACCOUNT WITHOUT FURTHER NOTICE. SUCH TERMINATION SHALL BE IN ADDITION TO Themler.com'S OTHER RIGHTS AT LAW AND/OR EQUITY. Themler.com SHALL BE UNDER NO OBLIGATION TO REFUND ANY FEES PAID BY YOU IN THE EVENT THAT YOUR ACCOUNT IS TERMINATED BY REASON OF A BREACH ANY SUCH BREACH OR BREACHES.
THE WORK AND OTHER CONTENT IS PROVIDED 'AS IS' WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. Themler.com DOES NOT REPRESENT OR WARRANT THAT THE CONTENT WILL MEET YOUR REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CONTENT IS WITH YOU. SHOULD THE CONTENT PROVE DEFECTIVE, YOU (AND NOT Themler.com) ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
Themler.com GRANTS NO RIGHTS AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE USE OF ANY NAMES, TRADEMARKS, SERVICE MARK, LOGOTYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY WORK. IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS, OR PERMISSIONS THAT MAY BE REQUIRED FOR YOUR USE OF ANY WORK ARE OBTAINED. Themler.com SUBMITTERS UPLOAD WORK TO THE Themler.com WEBSITE AND WARRANT THAT THEY HAVE ALL RIGHTS REQUIRED TO DO SO AND TO ENABLE Themler.com TO GRANT THE RIGHTS IT GRANTS IN THIS AGREEMENT.
YOU UNDERSTAND THAT YOU SHOULD SEEK COMPETENT COUNSEL BEFORE USING WORK ON OR IN CONNECTION WITH ANY GOODS OR SERVICES OR FOR ANY OTHER COMMERCIAL PURPOSES.
EXCEPT AS SPECIFICALLY PROVIDED IN PARAGRAPH 26 HEREOF, IN NO EVENT, SHALL Themler.com'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE Themler.com WEBSITE AND/OR WORK(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE MONETARY AMOUNT ACTUALLY RECEIVED BY Themler.com FROM YOU FOR YOUR USE OF THE APPLICABLE WORK(S). NEITHER Themler.com NOR ANY OF ITS OFFICERS, EMPLOYEES MANAGERS, MEMBERS, SHAREHOLDERS, DIRECTORS OR SUPPLIERS SHALL BE LIABLE TO YOU OR TO ANY OTHER PERSON OR ENTITY FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR LOST PROFITS OR ANY OTHER DAMAGES, COSTS OR LOSSES ARISING OUT OF YOUR USE OF THE WORK(S), Themler.com'S BREACH OF THIS AGREEMENT, OR OTHERWISE, UNLESS EXPRESSLY PROVIDED FOR HEREIN, EVEN IF Themler.com HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, COSTS OR LOSSES. IN NO EVENT, SHALL Themler.com'S TOTAL AGGREGATE LIABILITY TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE Themler.com WEBSITE AND/OR WORK(S) CONTAINED THEREON (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE LIMITS OF LIABILITY.
IN THE EVENT THAT YOU USE FRAUDULENT CREDIT CARD INFORMATION TO OPEN AN ACCOUNT OR OTHERWISE ENGAGE IN ANY CRIMINAL ACTIVITY AFFECTING Themler.com, Themler.com WILL PROMPTLY FILE A COMPLAINT WITH www.ic3.gov, THE INTERNET CRIME COMPLAINT CENTER, A PARTNERSHIP BETWEEN THEFEDERAL BUREAU OF INVESTIGATION (FBI) AND THE NATIONAL WHITE COLLAR CRIME CENTER.