FruitThemes Terms of Service
Last Modified: August 9th, 2014
These "Terms” or this "Agreement” are entered into and between FruitThemes ("FruitThemes” or "us” or "we” or "our”) and yourself ("you” or "your” or "user(s)” or "customer(s)”) upon using any of our Themes or Services. These Terms of Service are a contract between you and us, which govern and administer your FruitThemes Theme(s) and Service(s) use. By using our Website, Theme(s) or Service(s) you agree to and are bound by these terms and conditions. If we ever amend these Terms of Service, at anytime, for any reason, you acknowledge and agree for us to do so.
Section 1: Duration of Terms
The Terms of Service will continue to bind you for as long as you use any or all of the following: our Website, Theme(s), or Service(s); along with the cancellation or termination of your FruitThemes account.
Section 2: FruitThemes Services
In our offering of Services, whether:
- Support Services
We are awarding you a limited, non-exclusive, revocable license to use our Services, but only for the purpose in which the Service is intended. You are subject to any other applicable licenses under the GNU or GPL. In the case of any discrepancies between these Terms of Service and the GNU or GPL; the GNU or GPL will serve as precedent over any contradicting term, within the Terms of Service. In the case of contradicting clauses, the contract and Terms of Service will still be enforceable but with the GNU or GPL ruling over and/or without the conflicted Term(s) and/or Clause(s).
We reserve the right to refuse service to anyone, for any reason, at any time.
You agree to use our Theme(s) and Service(s) at your own risk. You are solely responsible for the maintenance, management and security of your own website.
You are not permitted to alter, modify or claim to be your own, any of FruitThemes: copyright notices, trademarks, or other proprietary rights associated with FruitThemes.
Section 3: Themes
FruitThemes offers licensed Themes under the GPL. Some Themes are offered free of charge and others, for a fee. Whether modifications have been made or not, you are never permitted to claim intellectual or exclusive ownership to any of our Themes.
Section 4: Refund Policy
In any condition, no money will be refunded.
Section 5: Payments & Personal Information
You agree for us to collect information from you whenever you: visit and/or register on our Website, place an order, and/or subscribe to our newsletter.
When ordering or registering on our Website, as appropriate, you may be asked to enter your: Name, Email Address, Mailing Address, Phone Number, or Credit Card information. You agree that all information listed in your account is true and you’re required to associate your real identity to any account you create or use. You agree and understand that any fraudulent activity may result in the deactivation of your account. You agree and waive any claims you may have against FruitThemes, our employees or heirs due to your inability: to access, to register an account, or for the termination of your account due to breaching any of the Terms of Service. We reserve the right to refuse Service to anyone.
Your information, whether public or private, will not be sold, exchanged, transferred, or given to any other company for any reason whatsoever, without your consent, other than for the express purpose of delivering or purchasing Theme(s) or Service(s) requested. You must agree to the Terms and Conditions of PayPal in order to complete a purchase. Please refer to the PayPal website to view their Terms and Conditions and Privacy Policies.
Section 6: Security
You are agreeing that the security of your account and password are your responsibility. Through the use of our Website, Service(s) or Theme(s), FruitThemes is not responsible or liable for any damages you may suffer by the compromise of your account.
If you feel your account may have been compromised, you agree to notify support immediately so proper action can be taken.
In the event of your account being compromised, you agree that you may have: restricted, limited, or no access to your account during the ongoing investigation of the fraudulent activity.
Section 7: Maintenance & Unforeseeable Conditions
You acknowledge that FruitThemes Service(s) may be delayed or suspended for cleanup, maintenance, upgrades, or security reasons. You may or may not be notified prior to such an event taking place. Let it be noted that we are not liable for any losses that may construe from the suspension of Service, regardless of the reason for suspension.
You agree and understand that in an event that Service is down due to an unforeseeable condition, FruitThemes holds no liability to any claims in the matter. We will take steps to fix such issues, but if an issue proceeds and has likelihood of not being resolved in a timely manner, you will be notified if accessible. In the event of an unforeseeable condition, you agree to relieve us of our obligations to the Terms of Service in order to fix the issue.
Section 8: Severability
In the case that any court with ruling jurisdiction over these Terms of Service finds any Term or Clause unenforceable, then you and FruitThemes, agree that the remaining Terms and Provisions in the Terms of Service will still be in effect; unless the unenforceable Term or Provision is the fundamental source behind the Terms of Service; then the Terms of Service will be terminated. If provisions of the Terms of Service contradict, FruitThemes will decide which of these Provisions or Terms will be enforced, and will discard the other.
Section 9: Taxes
You agree that you are exclusively liable for paying any appropriate state, federal or provincial taxes assigned to any purchase made from FruitThemes. You agree to give any fees or relevant taxes to your local or state tax agency for any purchases. We are not responsible or accountable for collection, duties, processing, transferring or advising on taxes.
Section 10: Limitation of Liability
In each and every occasion of legal action possible, you do not hold FruitThemes or our affiliates responsible; whether through violation of contract, or under any hypothesis of legal responsibility; including but not limited to: carelessness, failure of service, and/or any other tort law. Your use of FruitThemes website, themes, and/or services is your receipt of responsibility regarding any and all matters of ligation. In no event shall FruitThemes or its affiliates (including officers, employees, directors, heirs, or agents) be liable for any direct, indirect, penalizing, minor, extraordinary, or significant damages that may happen from the use of FruitThemes website, themes or services; including through error, mistake or ambiguous content. You specifically understand and agree that FruitThemes is not responsible for any personal injury or property harm at all through the use of our website, themes, or services; including but not limited to: loss of data, any bugs, viruses, trojan horse, malware, cookies, or any damaging content transmitted through our website, server(s), payment channels, and/or e-mail(s). You understand and agree that FruitThemes and its affiliates are not accountable to any damages of any type for delay of service to or from our server(s), unauthorized access or use of our secure servers, and/or any and all personal information and/or financial information stored therein. Despite of any alertness that FruitThemes may or may not have to any transmittable content that may be damaging to you, your access point, or any associated third party, you agree that FruitThemes is not responsible. In the appropriate jurisdiction, this previous limitation of accountability shall apply to the fullest degree allowed by law. The utmost total of FruitThemes liability for any jurisdiction that does not allow previous restriction of damages that can be awarded to you for all damages and/or losses shall not exceed $50.
Section 11: Additional Liability
You acknowledge and agree that FruitThemes is not liable or responsible for anything that we may otherwise be responsible for that is beyond our control.
You agree to defend, indemnify and hold no liability to: FruitThemes, its employees, directors, agents, officers, affiliates and associates from and against any and all claims of: damages, losses, associated costs or debts, expenses, obligations, and attorney’s fees from your use and access of FruitThemes Service(s) or your violation of any of the Terms or Clauses listed in this Agreement. You agree in any case of litigation raised from you or a Third Party(‘s) using FruitThemes Service(s) to defend us and pay for, all but not limited to: associated costs of a reasonably priced attorney(s) of our choice, court fees, and disbursements. If a settlement arises outside of court through arbitration, mediation or negotiation, you will be solely liable for the total cost of damage and/or loss. You agree we are not responsible for any claims which are a result from you or a Third Party’s negligence, unlawful activities, and/or misconduct.
Section 12: Disclaimer of Warranties
You completely understand and acknowledge that we disclaim all express or implied warranties, regardless of their source of orgin. You are particularly agreeing to the fullest extent of relevant law that you accept all theme(s) and service(s) "as-is” and "as available” without warranty or representation of any kind. Cyberchimps makes no representation to merchantability of our theme(s) or service(s), or fitness for any certain purpose. You completely understand that you are solely responsible for any and all damages that you or orthers may incur from the use of FruitThemes’: website, theme(s), or service(s). You agree to relieve us from any and all liability that we could even potentially be responsible for, including but not limited to: negligence, failure of service, or any other tort. Any warranties not listed in this sections are considered void, unenforcable and/or invalid.
Section 13: Agreement Assignment
Under no circumstances are you allowed to assign your rights or obligations under this Contract to any other: person, organization, or party, without the prior written consent of FruitThemes. You agree to and confirm that we have the right to assign our rights and/or obligations under this Contract to any other: person, organization, or party at our discretion; at any time and/or date, for any reason.
Section 14: Third Parties
Through the use of third party websites, linked to or from FruitThemes Website, you agree and understand that FruitThemes is not liable or responsible for these third party websites and/or their use of your personal information or the reliability, functionality, or security of any of their: Website(s), Theme(s), or Service(s).
FruitThemes themes can be offered through Third Party Service Providers. Some Themes may not be available through or from FruitThemes directly. Third Party Service Providers have their own Service Terms and Privacy Policies. You understand and agree that FruitThemes is not liable for any transaction, distribution or sale of any service or theme when offered by a Third Party Service Provider; whether or not the: origin, activity, or creation of that Theme or Service roots back to, links to, or is from FruitThemes. Any tort that is committed between you and a Third Party Service Provider is not an enforceable litigation towards FruitThemes and/or any of our associates. You willingly acknowledge and confirm that you make all transactions for or with Third Party Service Providers at your own risk. Please refer to the Third Party Service Providers Terms of Service or Terms & Conditions, and their Privacy Policies prior to using their Websites or Services.
Section 15: Governing Law and Jurisdiction
This Contract will be governed by the laws most current in California. The offering and acceptance of this Agreement is deemed to have been arranged in the State of California.
You understand and completely agree that any dispute arising from or relating to this Agreement will be heard solely by a court of competent jurisdiction that is located in, or nearest to San Francisco, California. Any dispute brought about outside or other than in accordance with this section, you agree that we will move to have the case or claim dismissed, and that you accept responsibility for: all court costs and/or fees, disbursements, and our reasonable attorney(s) fees.
Section 16: Cancellation & Termination
If you wish to relieve yourself of the obligation(s) and your right(s) of this Agreement; to terminate this Contract and/or your FruitThemes account, you are solely responsible for following the steps of canceling your account and ceasing the use of FruitThemes Website and/or Service(s).
Please contact us at: http://FruitThemes.com/contact. Provide the reason of the email (example: "terminate my FruitThemes account”) with your account name and password. This may result in the immediate deletion of your account and we are not responsible and/or liable for any and all losses and/or damages that may construe from cancellation. All provisions regarding this Agreement will survive termination of this Contract, including but not limited to: Section 3: Themes, Section 5: Payments & Personal Information, Section 7: Maintenance & Unforeseeable Conditions, Section 10: Limitation of Liability, Section 11: Additional Liability, Section 12: Disclaimer of Warranties, Section 13: Agreement Assignment, Section 14: Third Party’s, and Section 15: Governing Law and Jurisdiction.
Section 17: Photo Copyrights
In the home page at: https://FruitThemes.com/ or any other location on the FruitThemes Website where example photos and/or third party Websites are on display; the photos being shown are only for display purposes and are NOT included in any theme that can be purchased through FruitThemes. Our themes come "As-Is” and we do not represent the themes to come with any such photographs or designs displayed in or on the "showcase” Websites. You understand that the purpose of this is to give you a functional preview of what could be done with the themes once content is added. The photos used in the showcase and other locations of our Website are not to be saved, copied or redistributed in any way. You are responsible for adding your own: images (including thumbnails), photographs, displays, charts, and/or any other content you would like to the Theme(s).
FruitThemes: is also referred to in this contract as: "FruitThemes,” "us,” "we,” or "our.”
You or Yourself: is also referred to in this contract as: "your” or "user(s)” – Any person, company or entity who is using FruitThemes Website, Service(s) or Themes is subject to be referred to as "you.”
FruitThemes Service(s): is referring to all Theme(s), Content and Support Services, whether the use is: individually, collectively, or any combination of them.
Affiliate(s): is referring to any: person, company, party, contractor, agent, director, developer, designer, employee, third party, heir, officer, or associate that is in relation with FruitThemes in anyway.
Associate(s): is referring to any person or entity that is working with or conducting work for FruitThemes; including all personnel, directly or indirectly hired and/or contracted by FruitThemes.
Third Party: is referring to any company, person or entity that is besides the two primary involved in the situation. The two whom are deemed "primarily involved” would be FruitThemes and "you.”