ThemeKings Custom Designs General Terms of Use
Published October 6th, 2022. October 6th, 2022. These General Terms of Use replace and supersede all prior versions.
THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 14 (DISPUTE RESOLUTION, CLASS ACTION WAIVER, ARBITRATION AGREEMENT) BELOW GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THESE TERMS (AS DEFINED BELOW), INCLUDING THE MANDATORY ARBITRATION PROVISION (IF YOU HAVE NOT OPTED OUT AS ALLOWED HEREIN) AND CLASS ACTION WAIVER, PLEASE DO NOT USE THE SERVICES OR SOFTWARE.
These General Terms of Use (“General Terms”), along with any applicable Additional Terms (see section 1.2 (Additional Terms) below) (collectively, the “Terms”) govern your use of and access to our websites, web-based applications and products, customer support, discussion forums or other interactive areas or services, and your installation and use of any software that we include as part of the Services, including, without limitation, mobile and desktop applications, Sample Files and Content Files (defined below), scripts, instruction sets, and related documentation (collectively, the “Software”).
BY USING THE SERVICES OR THE SOFTWARE, YOU AFFIRM THAT YOU ARE OF LEGAL AGE TO ENTER INTO THE TERMS, OR, IF YOU ARE NOT, THAT YOU HAVE OBTAINED PARENTAL OR GUARDIAN CONSENT TO ENTER INTO THE TERMS.
You must be 18 or older to make purchases on this website. (ThemeKngs.net)
1. Your Agreement with ThemeKings Custom Designs. (Individual)
1.1 Choice of Law and Contracting Entity. If you reside in North America (inclusive of the United States, Canada, Mexico, United States territories and possessions, and United States military bases, wherever located), your relationship is with ThemeKings Custom Designs, (aka: Todd Swift, Independent Graphic Designer), and the Terms are governed by, and construed and interpreted in accordance with, the laws of the State of Ohio, U.S.A., unless preempted by U.S. federal law, without regard to conflict of law rules. If you reside outside of North America, your relationship is with ThemeKings Custom Designs, and the Terms are governed by, and construed and interpreted in accordance with Federal Laws of the United States of America, unless preempted by local law.
1.2 Additional Terms. A standard license apply to all of our digital assets. No additional terms or licenses apply at this time.
1.3 Updates to Terms. We may make changes to the Terms from time to time, and if we do, we will notify you by revising the date at the top of the Terms and, in some cases, we may provide you with additional notice. Any such changes will not apply to any dispute between you and ThemeKings Custom Designs arising prior to the date on which we posted the revised Terms incorporating such changes, or when the Terms otherwise become effective. You should look at the Terms regularly. Unless otherwise noted, the amended Terms will be effective immediately, and your continued use of our Services and Software confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services and Software and, if applicable, cancel your subscription.
1.4 Updates to Terms. We may make changes to the Terms from time to time, and if we do, we will notify you by revising the date at the top of the Terms and, in some cases, we may provide you with additional notice. Any such changes will not apply to any dispute between you and ThemeKings Custom Designs arising prior to the date on which we posted the revised Terms incorporating such changes, or when the Terms otherwise become effective. You should look at the Terms regularly. Unless otherwise noted, the amended Terms will be effective immediately, and your continued use of our Services and Software confirm your acceptance of the changes. If you do not agree to the amended Terms, you must stop using our Services and Software and, if applicable, cancel any subscription that you may have entered into if ever offered.
2. Privacy.
2.1 Privacy. For information about how we collect, use, share, or otherwise process information about you and your use of our Services and Software, please see our Privacy Policy.
2.2 Sensitive Personal Information. You agree not to collect, process, or store any Sensitive Personal Information (as defined below) using the Services and Software, except as (A) directly authorized by ThemeKings Custom Designs, (B) intended by the Services and Software, or (C) governed by the Additional Terms, as applicable. You agree not to transmit, disclose, or make available Sensitive Personal Information to ThemeKings Custom Designs or ThemeKings Custom Designs third-party providers. “Sensitive Personal Information” means an individual’s financial information, data concerning an individual’s sexual behavior or sexual orientation, medical, or health information protected under any health data protection laws, biometric data, personal information of children protected under any child data protection laws (such as the personal information defined under the U.S. Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws. If you are a Business, you also agree to ensure Business Users’ compliance with this section 2.2 (Sensitive Personal Information).
3. Use of Services and Software.
3.1 License. Subject to your compliance with the Terms and applicable law, we hereby grant you a non-exclusive, limited, revocable right for you to install, access and use the Services and Assets that we make available to you, and that you license from us. Each license is to be used by only one (1) person and cannot be shared unless otherwise stated. At the end of your license term if a term exists, your license(s) will expire as set forth in your order document(s), or the Subscription and Cancellation Terms. The version(s) of the Services and Software available at your renewal date may be different from the version(s) available when you first licensed them from ThemeKings Custom Designs. The versions of the Services and Assets that ThemeKings Custom Designs supports can be found here on our website. (ThemeKings.net) You agree that your decision to use, access, or license the Services and Assets is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.
3.2 ThemeKings Custom Designs Intellectual Property. We (and our licensors, as applicable) remain the sole owner of all right, title, and interest in the Services, Software, and other Assets offered for sale here within. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Services, Software, or Assets. This means you may not use our trade names, trademarks, service marks or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. We reserve all rights not granted under the Terms.
3.3 Storage. We recommend that you back up your Content regularly, even if the Services provide storage and this functionality is enabled by the applicable Services. We may create reasonable technical limits, such as limits on file size, storage space, processing capacity, and other attributes. We may suspend the Services until you are within the storage space limit associated with your account. At the end of your license term, we will use commercially reasonable efforts to allow you to transition your Content out of the Services. The transition must be completed within thirty (30) days from the date of the termination or expiration of your license term. At the end of this 30-day transition period, we reserve the right to delete your Content. You should download any Content that you have stored in the Services before your license or account ends.
3.4 Sample Files. “Sample Files” means ThemeKings Custom Designs provided audio, visual, video, or other content files for use in tutorials, demonstrations, and for other trial purposes, which may be identified as sample files. Sample Files cannot be used for any other purpose than for which they were provided. You cannot distribute Sample Files in any way that allows a third party to use, download, extract, or access the Sample Files as a stand-alone file, and you cannot claim any rights in the Sample Files.
3.5 Content Files. “Content Files” means ThemeKings Custom Designs assets provided as part of the Services and Software. Unless documentation or specific licenses (including but not limited to Additional Terms) state otherwise, we grant you a personal, non-exclusive, non-sublicensable (except if you are a Business, then sublicensable only to your Business Users), and non-transferable license to use the Content Files to create your end use (i.e., the derivative application or product authored by you) into which the Content Files, or derivations thereof, are embedded for your use (“End Use”). You may modify the Content Files prior to embedding them in the End Use. You may reproduce and distribute Content Files only in connection with your End Use, however, under no circumstances can you distribute the Content Files on a stand-alone basis, outside of the End Use.
3.6 Third-Party Services and Software. ThemeKings Custom Designs may make third-party software and services (including plug-ins and extensions) available to you through the Services and Software as a convenience. Third-party software and services are not Services and Software as defined in the Terms and your acquisition and use of such third-party software and services is solely between you and the third party. You are responsible for complying with all applicable third-party terms.
4. Your Content.
4.1 Content. “Content” means any text, information, communication, or material, such as audio files, video files, electronic documents, or images, that you upload, import into, embed for use by, or create using the Services and Software. We reserve the right (but do not have the obligation) to remove Content or restrict access to Content, Services, and Software if any of your Content is found to be in violation of the Terms. We do not review all Content uploaded to the Services and Software, but we may use available technologies, vendors, or processes to screen for certain types of illegal content (for example, child pornography) or other abusive content or behavior (for example, patterns of activity that indicate spam or phishing, or keywords that indicate adult content has been posted outside of the adult wall).
4.2 Ownership. As between you and ThemeKings Custom Designs, you (as a Business User or a Personal User, as applicable) retain all rights and ownership of your Content (or where applicable, you must ensure that you or the Business (as applicable) have a valid license to the Content). We do not claim any ownership rights to your Content.
5. Your Account.
5.1 Account Information. You, as a Personal User or a Business User, are responsible for all activity that occurs via your account even if that activity is not by you or is without your knowledge or consent. You may not (A) share your account information (except with an authorized account administrator), whether intentionally or unintentionally; or (B) use another person’s account. Your account administrator may use your account information to manage your use and access to the Services and Software.
5.2 Account Security. You are responsible for taking reasonable steps to maintain the security and control of your ThemeKings Custom Designs Account. ThemeKings Custom Designs may require you to enable multi-factor authentication and provide a phone number or an alternate email for security purposes. ThemeKings Custom Designs assumes no responsibility for any loss that you may sustain due to a compromise of your account login credentials, or your failure to follow or act on any notices or alerts that we may send to your email address or telephone number. You are responsible for keeping your email address and telephone number up to date in order to receive any notices or alerts that we may send you, and you are also responsible for carefully reviewing any messages purporting to be from ThemeKings Custom Designs to ensure they are legitimate. We assume no responsibility if you are unable to access your ThemeKings Custom Designs Account because you cannot provide the appropriate login credentials, such as a password, email address, or telephone number. If you suspect that your ThemeKings Custom Designs Account or any of your security details have been compromised, please contact ThemeKings Custom Designs.
5.3 Free Account Inactivity. You are responsible for keeping your account active, which means you must sign in periodically to avoid any disruption or loss of access to the Services and Software, or termination of your account. If you don’t sign into your account periodically, we reserve the right to assume your account is inactive, and you agree that we may close it for you. You understand that you will lose access to any Content stored in your account upon closure. Prior to closing your account for inactivity, we will attempt to provide notice to you. For the avoidance of doubt, this section 5.3 (Free Account Inactivity) does not apply to paid accounts in good standing.
6. User Conduct. You must use the Services and Software responsibly and not misuse the Services and Software. For example, you must not:
6.1 use the Services and Software without, or in violation of, a written license or agreement with ThemeKings Custom Designs;
6.2 copy, modify, host, stream, sublicense, or resell the Services, Software and/or Assets;
6.3 enable or allow others to use the Services and Software using your account information;
6.4 offer, use, or permit the use of or access to the Services, Software and/or Assets in a computer services business, third-party outsourcing service, on a membership or subscription basis, on a service bureau basis, on a time sharing basis, as a part of a hosted service, or on behalf of any third party;
6.5 construct a database or dataset using, including, or comprised of the Content Files;
6.6 access or attempt to access the Services and Software by any means other than the interface we provide or authorize;
6.7 circumvent any access or use restrictions put into place to prevent certain uses of the Services, Software and/or Assets;
6.8 Share Content, or otherwise engage in behavior that violates anyone’s Intellectual Property Rights. “Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights;
6.9 Share any Content or engage in behavior that is unlawful, harmful, threatening, obscene, violent, abusive, tortious, defamatory, libelous, vulgar, lewd, invasive of another’s privacy, hateful, or otherwise objectionable;
6.10 Share any Content that sexualizes minors or that is intended to facilitate inappropriate interactions with minors, other ThemeKings Custom Designs users, or the public;
6.11 impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including not disclosing an applicable sponsorship or endorsement relationship when you leave a review;
6.12 attempt to disable, impair, or destroy the Services, Software and/or Assets;
6.13 upload, transmit, store, or make available any Content, including code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Services, Software and/or Assets;
6.14 disrupt, interfere with, or inhibit any other user from using the Services, Software, or Assets (such as stalking, intimidation, harassment, or incitement or promotion of violence or self-harm);
6.15 engage in chain letters, junk mail, pyramid schemes, phishing, spamming, or other unsolicited messages;
6.16 engage in fraudulent activities, such as payment and refund fraud;
6.17 place an advertisement of any products or services in the Services except with our prior written approval;
6.18 use any data mining or similar data gathering and extraction methods in connection with the Services, Software and/or Assets, including data scraping for machine learning or other purposes;
6.19 artificially manipulate or disrupt the Services, Software and/or Assets (such as manipulating appreciations on Behance or driving users to third-party sites);
6.20 create ThemeKings Custom Designs accounts for the purpose of violating the Terms or our policies (or other types of actions taken by ThemeKings Custom Designs), including, but not limited to, creating fake accounts, or for circumventing account termination;
6.21 manipulate or otherwise display the Services, Software and/or Assets by using framing or similar navigational technology; or
6.22 violate applicable law.
7. Fees and Payment.
7.1 Taxes and Third-Party Fees. You must pay (if requested at checkout) any applicable taxes and third-party fees (including, for example, telephone toll charges, mobile carrier fees, ISP charges, data plan charges, credit card fees, VAT, foreign exchange fees, and foreign transaction fees). We are not responsible for these fees UNLESS we did not apply a tax at checkout. Contact your financial institution with questions about fees.
7.2 Credit Card Information. You authorize us or our authorized vendor(s) to store your payment method and use it in connection with your use of the Services and Software as described in your Subscription and Cancellation Terms. To avoid interruption of your service, we may participate in programs supported by your card provider to try to update your payment information. You authorize us or our authorized vendor(s) to continue billing and charging your account for amounts owed with the information that we obtain if this was part of our original agreement. As of now, all charges are a one time fee and no reoccurring charges will ever apply unless clearly stated on our products or services.
8. Your Warranty and Indemnification Obligations.
8.1 Warranty. You must have: (A) all necessary licenses and permissions to use and Share your Content; and (B) the rights necessary to grant the licenses in the Terms.
8.2 Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim(s), demand(s), loss(es), or damage(s), including reasonable attorneys’ fees , arising out of, or related to your Content, including, but not limited to use of the Services, Software and/or Assets (as applicable), your interactions with any other users (including Third-Party Entitlement Holders), or your violation of the Terms (“Matter”). We have the right to control the defense of any
Matter subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any Matter.
9. DISCLAIMERS OF WARRANTIES.
9.1 Unless stated in the Additional Terms, the Services, Software and/or Assets are provided “AS-IS.” To the maximum extent permitted by law, ThemeKings Custom Designs, its affiliates, and third-party providers (“Covered Parties”) disclaim all warranties, express or implied, including the implied warranties of non-infringement, merchantability, and fitness for a particular purpose. The Covered Parties make no commitments about the content within the Services. The Covered Parties further disclaim any warranty that (A) theServices, Software and/or Assets will meet your requirements or will be constantly available, uninterrupted, timely, secure, or error-free; (B) the results obtained from the use of the Services, Software and/or Assets will be effective, accurate, or reliable; (C) the quality of the Services, Software and/or Assets will meet your expectations; or (D) any errors or defects in the Services, Software and/or Assets will be corrected.
9.2 The Covered Parties specifically disclaim all liability for any actions resulting from your use of any Services, Software and/or Assets. You may use and access the Services, Software and/or Assets at your own discretion and risk, and you are solely responsible for any damage to your computer system or loss of data that results from the use of and access to any Services, Software and/or Assets.
9.3 If you post your Content on our servers to publicly Share through the Services, the Covered Parties are not responsible for: (A) any loss, corruption, or damage to your Content; (B) the deletion of Content by anyone other than ThemeKings Custom Designs; or (C) the inclusion of your Content by third parties on other websites or in other media.
10. LIMITATION OF LIABILITY.
10.1 Unless stated in the Additional Terms, in no event shall the Covered Parties be liable to you or anyone else for any special, incidental, indirect, consequential, moral, exemplary or punitive damages whatsoever, regardless of cause, including losses and damages (A) resulting from loss of use, data, reputation, revenue, or profits; (B) based on any theory of liability, including breach of contract or warranty, negligence, or other tortious action; or (C) arising out of or in connection with your use of or access to the Services, Software and/or Assets. Nothing in the Terms limits or excludes our liability for gross negligence, intentional misconduct of ThemeKings Custom Designs or its employees, death, or personal injury.
10.2 Our total liability in any matter arising out of or related to the Terms is limited to the greater of (A) US $100; or (B) the aggregate amount that you paid for access to the Services, Software and/or Assets during the three-month period preceding the event giving rise to the liability. Our suppliers will have no liability in any matter arising out of or related to the Terms.
10.3 These limitations and exclusions in this section 10 (Limitation of Liability) apply to the maximum extent permitted by law even if (A) a remedy does not fully compensate you for any losses or fails of its essential purpose; or (B) the Covered Parties knew or should have known about the possibility of damages.
10.4 The Terms set forth the entire liability of the Covered Parties as well as your exclusive remedy with respect to access and use of the Services, Software and/or Assets.
11. Termination.
11.1 Termination by You. You may cancel your subscription and terminate your use of the Services, Software and/or Assets at any time. Cancellation or termination of your account does not relieve you of any obligation to pay any outstanding fees associated with your subscription, including, but not limited to early cancellation fees if applicable.
11.2 Termination by Us. Unless stated in the Additional Terms, we may at any time immediately terminate or suspend your right to use and access the Services, Software and/or Assets, without refunds for any pre-paid fees, if in ThemeKings Custom Designs sole discretion:
(A) you breach any provision of the Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);
(B) you fail to make the timely payment of fees for the Services, Software and/or Assets, if any;
(C) you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the Services, Software and/or Assets);
(D) you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Services, Software and/or Assets);
(E) continuing to provide the Services, Software and/or Assets to you would violate any applicable law;
(F) we elect to discontinue the Services, Software and/or Assets, in whole or in part if it becomes impractical for us to continue offering Services in your region due to change of law, or other reason; or
(G) there has been an extended period of inactivity in your free account
If we terminate the Terms, or your use of the Services, Software and/or Assets for reasons other than for cause, as listed above, we will make reasonable efforts to notify you via the email address you provide to us, at least thirty (30) days prior to termination, with instructions on how to retrieve your Content. Upon termination by us, you may lose access to your Content.
If you believe your ThemeKings Custom Designs Account has been deactivated in error, you may submit an appeal by following the process outlined when you attempt to log into your account. If you have any related questions, please contact ThemeKings Custom Designs Customer Care.
11.3 Survival. Upon the expiration or termination of the Terms, some or all of the Services, Software and/or Assets may cease to operate without prior notice. Your indemnification obligations, our warranty disclaimers and limitations of liabilities, and the dispute resolution provisions stated in the Terms will survive.
14. Dispute Resolution, Class Action Waiver, Arbitration Agreement
ThemeKings Custom Designs Customer Care is available to address most concerns that you may have regarding our Services, Software and/or Assets. Contact ThemeKings Custom Designs Customer Care.
14.1 Notice of Claim and Required Information Dispute Resolution Process. If you have any concern or dispute that ThemeKings Custom Designs Customer Care is unable to resolve (“Claim”), you agree to first try to resolve the dispute informally and in good faith by contacting us and providing a written Notice of Claim to the address provided in section 18.2 (Notice to ThemeKings Custom Designs). The Notice of Claim must provide ThemeKings Custom Designs with fair notice of your identity, a description of the nature and basis of your Claim, and the relief you are seeking, including the specific amount of any monetary relief you are seeking, and cannot be combined with a Notice of Claim for other individuals. If any dispute related to your Claim is not resolved within 60 days of receipt, any resulting legal actions must be resolved through either small claims court or final and binding arbitration, including any dispute about whether arbitration is required for the dispute, subject to the exceptions set forth below. Neither party shall initiate legal action until 60 days after the Notice of Claim is received. This agreement to arbitrate shall apply, without limitation, to all claims that arose or were asserted before the effective date of the Terms. The arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability or enforceability of the Terms or formation of the Terms, including whether any dispute between us is subject to arbitration (i.e., the arbitrator will decide the arbitrability of any dispute) and whether all or any part of these Terms are void or voidable. Claims related to the Terms, Services, or Software are permanently barred if not brought within one year of the event resulting in the Claim.
14.2 No Class Actions. You may only resolve disputes with us on an individual basis, and you may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Nonetheless, if any portion of this class action waiver is deemed unenforceable or invalid as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
14.3 Arbitration Rules. If you reside in the Americas, we will administer the arbitration in Franklin County Court, Columbus OH USA, pursuant to its Streamlined Arbitration Rules and Procedures. If you reside in Australia, New Zealand, Japan, mainland China, Hong Kong, Macau, Taiwan, South Korea, India, Sri Lanka, Bangladesh, Nepal, or a member state of the Association of Southeast Asian Nations (ASEAN), then the Singapore International Arbitration Centre (SIAC) will administer the arbitration in Singapore under its Rules of Arbitration, which rules are deemed to be incorporated by reference in this section. Otherwise, the London Court of International Arbitration (LCIA) will administer the arbitration in London, UK under the LCIA Arbitration Rules. There will be one arbitrator that you and ThemeKings Custom Designs mutually select. The arbitration will be conducted in the English language, but any witness whose native language is not English may give testimony in the witness’ native language, with simultaneous translation into English (at the expense of the party presenting the witness). Judgment upon the award rendered may be entered and will be enforceable in any court of competent jurisdiction having jurisdiction over you and us. In the event of a conflict between the rules of the arbitration provider and the Terms, including with respect to the assessment of the fees and costs of arbitration, the Terms will govern.
14.4 Arbitration Fees and Costs. Payment of all filing, administration, and arbitrator fees and costs of arbitration will be governed by the rules of the arbitration provider, except that to the extent that you bring a Claim as part of a Coordinated Action, we agree that the parties will equally share all of the fees and costs of arbitration (to the extent that allocation is not already required under applicable rules). For purposes of this section, a “Coordinated Action” is any action in which you are represented by a law firm or collection of law firms that has filed numerous coordinated individual arbitration demands of the same or similar nature against ThemeKings Custom Designs within a short time. Notwithstanding the above, if you are unable to afford fees or costs of arbitration, ThemeKings Custom Designs will pay them. If the arbitrator finds that either the substance of a Claim or the relief sought in arbitration was frivolous, or a Claim was brought for an improper purpose, the parties may seek to re-allocate the fees and costs of arbitration, according to the rules of the arbitration provider.
14.5 Exceptions to Arbitration – Small Claims and Injunctive Relief. Notwithstanding the foregoing, either party may elect to have any Claim that is subject to the jurisdiction of small claims court decided in small claims court in Franklin County Court, Columbus OH USA, or the county of your residence. If either party files a Claim in arbitration that could have been brought in small claims court, the other party may provide notice that it wants the case decided in small claims court before the appointment of an arbitrator, and the arbitrator shall administratively close the case before assessing any fees, and the party bringing the Claim must proceed in small claims court in lieu of arbitration. Any dispute about whether a Claim qualifies for small claims court shall be resolved by that court, not by an arbitrator. In the event of any such dispute, the arbitration proceeding shall remain closed unless and until a decision by the small claims court that the Claim should proceed in arbitration. Additionally, either party shall be entitled to apply for preliminary injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, such as in the event of your or others’ unauthorized access to or use of the Services, Software and/or Assets in violation of the Terms. If a party has a dispute in which they seek to obtain both preliminary injunctive relief and other forms of relief, the party may go to court to seek preliminary injunctive relief but must arbitrate its claims or seek relief in small claims court for all other forms of relief.
14.6 Acceptance of Arbitration and Right to Opt Out. Within the first ten (10) days of your use of the Services, Software and/or Assets or the date of the last update to section 14 (Dispute Resolution, Class Action Waiver, Arbitration Agreement) of the Terms, whichever is later, you have the right to opt out of the arbitration and class action waiver provisions of section 14 (Dispute Resolution, Class Action Waiver, Arbitration Agreement) by sending us written notice of your decision at the address set forth in section 18.2 (Notice to ThemeKings Custom Designs). If you opt out of these provisions, ThemeKings Custom Designs will also not be bound by them.
15. Audit Rights.
If you are a Business, then we may, no more than once every twelve (12) months, upon at least seven (7) days’ prior notice to you, appoint our personnel or an independent third-party auditor who is obliged to maintain confidentiality, to inspect (including manual inspection, electronic methods, or both) your records, systems, and facilities to verify that your installation and use of Services, Software and/or Assets comply with our Terms. Additionally, you will provide us with all records and information requested by us within thirty (30) days of our request in order for us to verify that the installation and use of any and all Services, Software and/or Assets is in conformity with your valid licenses. If the verification discloses a shortfall in conformity with the licenses for the Services, Software and/or Assets, you will immediately acquire any necessary licenses, subscriptions, and applicable back maintenance and support or other applicable action in order to remedy any such non-conformity(ies).
16. Updates to Services, Software and/or Assets and Availability.
16.1 Updates to the Services, Software and/or Assets. We may modify, update, or discontinue the Services, Software and/or Assets (including any portions or features), which modifications, updates or discontinuations may, for clarity, be detrimental or result in a diminishment of value to you, at any time, without liability to you or anyone else. For changes to paid offerings that, in ThemeKings Custom Designs reasonable discretion, are detrimental or result in a material diminishment of value to you, we will make reasonable commercial efforts to notify you of such modification, update, or discontinuation. If we discontinue the Services, Software and/or Assets in its entirety, we will use reasonable commercial efforts to allow you to transition your Content, and we may provide you with a pro rata refund for any unused fees for that Services, Software and/or Assets that you prepaid.
16.2 Availability. Our webpages may be accessible worldwide, but this does not mean all Services, Software and/or Assets are available in your country or that user-generated content available via the Services, Software and/or Assets is legal or available in your country. Access to certain Services (or certain Service features) Software and Assets in certain countries may be blocked by us or foreign governments. It is your responsibility to make sure your use of the Services, Software and/or Assets is legal or available where you use them. Services, Software and/or Assets are not available in all languages.
17. No Modifications, Reverse Engineering, Artificial Intelligence/Machine Learning (AI/ML).
Certain elements of the Services, Software and/or Assets constitute our (or our licensors’) confidential information. Except as expressly permitted in the Terms, you may not (and will not allow third parties to) (A) modify, port, adapt, or translate any portion of the Services, Software and/or Assets; (B) reverse engineer (including but not limited to monitoring or tracking the inputs and outputs flowing through a system or an application in order to recreate that system), decompile, disassemble, or otherwise attempt to discover, within any Services, Software and/or Assets, the source code, data representations or underlying algorithms, processes, methods, and any other portion of such Services, Software and/or Assets; or (C) use, or allow third parties to use, the Services, Software and/or Assets (or any content, data, output, or other information received or derived from the Services, Software and/or Assets) to directly or indirectly create, train, test, or otherwise improve any machine learning algorithms or artificial intelligence systems contained within the Services, Software and/or Assets, including any architectures, models, or weights (which is considered ThemeKings Custom Designs confidential and proprietary information). If the laws of your jurisdiction give you the right to decompile the Services, Software and/or Assets to obtain information necessary to render the licensed portions of the Services, Software and/or Assets interoperable with other software, you must first request such information from us. We may, in our discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on your decompilation of the Services, Software and/or Assets to ensure that our and our licensors’ and suppliers’ proprietary rights in the Services, Software and/or Assets are protected.
18. Miscellaneous.
18.1 English Version. The English version of the Terms will be the version used when interpreting or construing the Terms.
18.2 Notice to ThemeKings Custom Designs. You may send notices to us at the following address: 6991 Haffy Court Canal Winchester OH 43110 ATTN: Todd Swift of ThemeKings Custom Designs
18.3 Notice to You. We may notify you by your email or postal mail associated with your account, postings within the Services, or other legally accepted means. It is your responsibility to keep your account information current to receive notifications.
18.4 Non-Assignment. You may not assign or otherwise transfer the Terms or your rights and obligations under the Terms, in whole or in part, without our written consent, and any such attempt will be void. We may assign or transfer our rights under the Terms to a third party without your consent.
18.5 Government Terms. If you are a U.S. government entity, or if the Terms are or become subject to the Federal Acquisition Regulations (FAR), then the Services, Software and/or Assets, provided under the Terms are “Commercial Product(s) or Commercial Service(s)”, as those terms are defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” and services related thereto, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Federal Government End Users (A) only as Commercial Products and Services; and (B) with only those rights as are granted to all other end users pursuant to the Terms. Unpublished rights are reserved under the laws of the United States.
18.6 Headings. Headings used in the Terms are provided for convenience only and will not be used to construe meaning or intent.
18.7 Severability. If any provision of the Terms is held invalid or unenforceable for any reason, the remainder of the Terms will continue in full force and effect and such provision shall be ineffective only to the extent of such invalidity or unenforceability.
18.8 No Waiver. Our failure to enforce or exercise any provision of the Terms is not a waiver of that provision.
18.9 Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation (other than your payment obligations to ThemeKings Custom Designs) under the Terms if the delay or failure is due to unforeseen events, which occur after the effectiveness of the Terms and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
19. DMCA.
We respect the Intellectual Property Rights of others, and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”).
ThemeKings Custom Designs:
Todd Swift (Individual/Designer/Developer)
6991 Haffy Court
Canal Winchester, OH 43110
614-743-1212
