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These Terms of Service (the "Agreement") are an agreement between Hostgator.com LLC doing business as ThemeCloud (“ThemeCloud”) and you ("Customer," "you" or "your"). This Agreement sets forth the general terms and conditions of your purchase and use of the products and services provided by ThemeCloud and of the ThemeCloud website (collectively, the "Services"). By purchasing and/or using the Services, you agree to be bound by this Agreement.
We may change or modify this Agreement at any time. We will post a notice of any significant changes to this Agreement on the ThemeCloud website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date these terms were last revised. Any changes or modifications to this Agreement shall be effective and binding on you as of the date indicated in a notice posted on this page. If no date is specified, your use of the Services after such changes or modifications shall constitute your acceptance of the Agreement as modified. If you do not agree to abide by this Agreement, you are not authorized to use or access the Services.
Use of the Services is also governed by the following policies, which form part of this Agreement. By using the Services, you are also agreeing to the terms of the following policies:
b. Acceptable Use Policy
c. DMCA Policy
Additional terms may apply to certain Services you purchase or receive through ThemeCloud including services provided by a third party. Such additional or third party terms may be separately provided to you.
We treat the individual or entity named in our records as the primary billing contact is the owner of the account.
The Services offered by ThemeCloud are hosted on servers located in the United States (U.S.) unless otherwise expressly provided. By using the Services, you freely and specifically give ThemeCloud your consent to export your information and data to the U.S. You understand that data stored in the U.S. may be subject to lawful requests by the courts or law enforcement authorities in the U.S.
Any features and details of the Services may be described on the web pages setting out the particular Services you have purchased. ThemeCloud may modify, change or discontinue any aspect of the Services at any time.
Certain Services are provided by third parties and may be subject to such third parties’ terms and conditions.
The initial term of the Services you purchase shall be for the period set forth in the registration form presented to you when you order the Services (the "Initial Term"). Unless you cancel prior to the end of the Initial Term, the Services will automatically renew for periods of equal length as the Initial Term (each a “Renewal Term”) unless otherwise provided. The Initial Term and all Renewal Terms, if any, shall be collectively referred to as the “Term”.
Unless otherwise provided, ThemeCloud will automatically bill your payment method on file as follows: (i) up to fifteen (15) days prior to the end of your current Term for all Services on a one (1) year plan or longer; (ii) , up to five (5) days prior to the end of your current Term for plans of less than one (1) year. You expressly acknowledge, agree, and authorize us to automatically bill the applicable fee and/or charge your credit card or other payment method on file for each Renewal Term, unless you terminate or cancel the Services prior to such charge as provided in this section. All fees are billed in United States Dollars (“USD”) and are subject to change with prior notice to you. We will provide you with at least thirty (30) days’ notice before charging you with any price change on any annual or longer term plans.
As a customer of ThemeCloud, it is your responsibility to ensure that all billing information on file with ThemeCloud is accurate, and that any credit card or other automated payment method on file has sufficient funds for processing. You are solely responsible for any and all fees charged to your payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees. ThemeCloud screens all orders for fraud In certain cases, if your account is flagged for fraud, your order will not be processed. ThemeCloud has no liability for the failure to provide Services, including third party services, if your account fails the fraud screen.
Any account not paid in full by the end of the Term will be given a seven (7) day grace period. If payment is not made within the seven (7) day grace period, ThemeCloud reserves the right to suspend your Services with ThemeCloud and to charge a ten dollar ($10) late fee for reinstating the Services. ThemeCloud reserves the right to terminate Services fourteen (14) days following suspension of Services for non-payment.
ThemeCloud is not responsible for any damages or losses as a result of suspension or termination for non-payment of your account. In addition, ThemeCloud reserves the right to refuse to re-activate your Services until any and all outstanding invoices have been paid in full.
ThemeCloud offers a thirty (30) day money back guarantee on all basic hosting and support fees paid for the theme (the “Money-back Guarantee Refund”) if you cancel within the first thirty (30) days of the Initial Term (the “Money-back Guarantee Period”), provided that such Money-back Guarantee Refund shall be due to you only upon your compliance with, and subject in all respects to, the terms and conditions of this Section 6. Requests for a refund must be submitted in writing to our Support Team (email@example.com) (the “Refund Request”) within sixty (60) days of your termination or cancellation of the account (the “Notice Period”). Money-back Guarantee Refunds will not accrue, and shall not be paid under any circumstances, if you do not provide the applicable Refund Request within the Notice Period. Money-back Guarantee Refunds only apply to hosting services and support fees and will not include domain registration fees, setup fees, or any fees for additional Services.
Refunds will be provided for add on products or services only within forty eight (48) hours following your purchase. Domain registration and renewal fees are final and are not eligible for a refund.
Only first-time accounts are eligible for the Money Back Guarantee Refund. For example, if you previously had or still have an account with ThemeCloud and you canceled and signed up again for a new account, you will not be eligible for a refund. In addition, refunds are not offered for accounts that are suspended or terminated for violating this Agreement.
Refunds will be issued only to the payment method used for the purchase, and may take up to one (1) week to process.
ThemeCloud will not process new orders or provide additional Services to customers who have an outstanding balance with ThemeCloud.
Exchange rate fluctuations for international payments are constant and unavoidable. Like all payments, all refunds are processed in U.S. dollars, and will reflect the exchange rate in effect on the date of the refund. ThemeCloud is not responsible for any change in exchange rates between the time of payment and time of refund.
If you believe there is an error in ThemeCloud's billing, you must contact ThemeCloud about it, in writing (firstname.lastname@example.org), within thirty (30) days of the date you are billed or charged. ThemeCloud's obligation to consider your claim is contingent on you providing ThemeCloud with sufficient facts to investigate your claims. You waive your right to dispute any charges or fees if you fail to notify ThemeCloud in writing within thirty (30) days. If ThemeCloud determines that your claim is valid, ThemeCloud agrees to credit your account on your next billing date. This provision does not apply to third party fees, which are final.
If you have a billing issue, please contact ThemeCloud to address and resolve the issue. If ThemeCloud receives a chargeback or payment dispute from a credit card company, or bank, your Services may be suspended without notice. A fifty dollar ($50) reinstatement fee plus any outstanding balances accrued as a result of the chargeback(s), must be paid in full before Services will be restored.
You may terminate the Services by submitting a cancellation request to customer support at ThemeCloud Support Center. In the event that you are unable to log in to your account with ThemeCloud, please contact our billing department via email and we will assist you.
Cancellations must be requested via the form indicated above at least forty-eight (48) hours or more prior to the Service's renewal date. If a cancellation notice is not received within the required time frame, you will be billed for the next billing term and are responsible for payment as set forth above.
ThemeCloud may terminate this Agreement at any time without notice. Should ThemeCloud terminate this Agreement for any reason other than a breach of this Agreement or a violation of the Acceptable Use Policy, all prepaid fees shall be refunded.
ThemeCloud reserves the right to refuse Services to anyone at any time. Any material that, in ThemeCloud's judgment, is obscene, threatening, illegal, or violates this Agreement in any manner may be removed from ThemeCloud's servers (or otherwise disabled), with or without notice.
If any manner of communication with ThemeCloud's staff could be construed as belligerent, vulgar (curse words), highly rude, threatening, or abusive, you will be issued one warning. If the communication continues, your account may be suspended or terminated without refund.
ThemeCloud happily accepts orders from outside the United States, but may limit accounts from certain countries with a high fraud rate. To help protect ThemeCloud and its customers from fraud, ThemeCloud may ask you to provide a copy of a government issued identification and/or a scan of the credit card used for the purchase. If you fail to satisfy these requests, the order may be considered fraudulent and denied.
Certain entities and individuals are prohibited from registering for and using the Services pursuant to export control laws and trade and economic sanctions imposed by the U.S. or other governments, as applicable. The U.S. Department of the Treasury, through the Office of Foreign Assets Control (“OFAC”), prohibits U.S. companies from engaging in all or certain commercial activities with certain sanctioned countries or regions (each a “Sanctioned Country/Region”) and certain individuals, organizations or entities, listed by OFAC and “Specially Designated Nationals” (“SDN”). By using the Services you represent and warrant that you are not located in a Sanctioned Country/Region or listed as an SDN. Unless otherwise provided with explicit written permission, ThemeCloud does not register, and prohibits the use of any Services in connection with any Country-Code Top Level Domain Name (“ccTLD”) for any Sanctioned Country/Region.
ThemeCloud reserves the right to suspend or terminate Services on any account that, in its sole discretion, is abusing server resources or is in violation of ThemeCloud’s Acceptable Use Policy. Such suspension or termination can occur at any time without prior notice.
Enforced resource limits for hosting services are set forth here on the web pages setting out the particular hosting plans which may be changed from time to time.
You are allocated a monthly bandwidth allowance. Should your account exceed the allocated amount, ThemeCloud reserves the right to: (i) suspend your account until the start of the next allocation; (ii) suspend the account until more bandwidth is purchased for an additional fee or you upgrade to a higher package level, and/or (iii) charge you an additional fee for the overages.
Unused bandwidth in one month cannot be carried over to the next month and bandwidth is not pooled among multiple servers or accounts.
ThemeCloud allows you to upload, publish, display and distribute information, text, photos, videos and other content on or through the Services (referred to as “User Content”). User Content includes any content posted by you and users of any of your websites created or hosted through the Services. You are solely responsible for any and all User Content and any transactions or other activities conducted on or through your websites. By posting or distributing User Content on or through the Services, you represent and warrant to ThemeCloud that (a) you have all necessary rights to post or distribute such User Content, and (b) your posting or distribution of such User Content does not infringe or violate the rights of any third party.
You acknowledge and agree that ThemeCloud may, but is not obligated to, monitor User Content and may immediately take any corrective action in ThemeCloud’s sole discretion, including without limitation, removal of all or a portion of the User Content, and terminating any and all Services without a refund of any pre-paid fees. You hereby agree that ThemeCloud shall have no liability due to any corrective action that ThemeCloud may take, including without limitation suspension or termination of the Services.
ThemeCloud grants you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by ThemeCloud solely to access and use the Services. This license terminates on the expiration or termination of the Term, unless earlier terminated as provided herein. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in ThemeCloud's technology shall remain with ThemeCloud, or its licensors. You are not permitted to circumvent any devices designed to protect ThemeCloud, or its licensor's ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology. All themes provided in connection with the Services are distributed pursuant to the General Public License (“GPL”) and the terms thereof.
Solely for the purpose of providing the Services, you grant ThemeCloud, or any third parties used by ThemeCloud to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free, license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your end users, in conjunction with the Services, including without limitation User Content. This license terminates on the expiration or termination of the Term, unless earlier terminated as provided herein. All right, title and interest in your technology shall remain with you, or your licensors.
ThemeCloud reserves the right to modify, change or discontinue any aspect of the Services at any time. ThemeCloud is not responsible for any damages or loss of data resulting from such action.
ThemeCloud guarantees that your shared server will be accessible 99.9% of the time in any given calendar month. The uptime of the server is defined as the reported uptime from the operating system and the web server which may differ from the uptime reported by other individual services. If ThemeCloud fails to meet its uptime guarantee, you may request a credit equivalent to one (1) day of service per forty five (45) minutes of downtime. The first forty five (45) minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of Services.
Credits are only available for future Services and cannot be issued as refunds. All credit requests must be sent via email to ThemeCloud's billing department no later than the tenth (10th) day of the month following the event giving rise to such request. Credits are issued based on the uptime for the previous calendar month only and requests not submitted within the required time frame will not be approved. For example, if you experienced less than 99.9% uptime in the month of November, you would need to submit your request for credit no later than December 10th.
The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: scheduled maintenance, DDoS or similar attack, hardware failure, third-party software failure, customer maxing its resource container, issues resulting from errors or omissions by the customer, issues relating to the customer's ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control. All credits are issued at the discretion of ThemeCloud, based on its investigation of any issue that is covered by this section.
If ThemeCloud provides a service level agreement for a particular Service, a credit shall be your sole and exclusive remedy for defects in, or issues with, such Service.
ThemeCloud shall provide a reasonable level of email-based support for the purpose of assisting with basic questions regarding the Services. ThemeCloud may provide support via telephone and chat at its sole discretion.
Your use of the Services is at your sole risk. ThemeCloud is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all backup of User Content stored on ThemeCloud's servers including without limitation your website files.
Any dedicated IP order, in addition to what is provided with a hosting package, may be subject to IP justification. Justification practices are subject to change to remain in conformity with the policies of American Registry for Internet Numbers ("ARIN"). ThemeCloud reserves the right to deny any dedicated IP request based on insufficient justification or current IP utilization.
You represent and warrant to ThemeCloud that you: (i) will use the Services in compliance with all applicable laws, rules, and regulations including without limitation with respect to your websites and any User Content; and (ii) you are be solely responsible for all activities conducted on or through any website on your account, including any transactions or interactions with end users of your website.
You acknowledge and agree that any use of the Services, including any information or content obtained through the Services, is at your own risk. ThemeCloud disclaims any warranty of merchantability or fitness for a particular purpose, including loss of data resulting from delays, delivery failures, wrong deliveries, and any and all interruptions to the Services caused by ThemeCloud or our employees. You further acknowledge and agree that ThemeCloud exercises no control over, and accepts no responsibility for, the content of the information passing through ThemeCloud’s host computers, network hubs and points of presence or the Internet.
IN NO EVENT WILL THEMECLOUD OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SERVICES, OR ANY USER CONTENT, USER WEBSITES OR OTHER MATERIALS ACCESSED OR DOWNLOADED THROUGH THE SERVICES, EVEN IF THEMECLOUD IS AWARE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THEMECLOUD’S LIABILITY TO YOU OR ANY PARTY CLAIMING THROUGH YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, IS LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THEMECLOUD FOR THE SERVICES IN THE ONE (1) MONTH PRIOR TO THE INITIAL ACTION GIVING RISE TO LIABILITY. THIS IS AN AGGREGATE LIMIT. THE EXISTENCE OF MORE THAN ONE CLAIM HEREUNDER WILL NOT INCREASE THIS LIMIT.
You agree to indemnify, defend and hold harmless ThemeCloud, its affiliates, and their respective officers, directors, employees and agents ( collectively, the "Indemnified Parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorney's fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of or relating to (i) your use of the Services, (ii) any breach or violation by you of this Agreement; or (iii) any of your acts or omissions. The terms of this section shall survive any termination of this Agreement.
This agreement shall be governed by the laws of the State of Texas, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Exclusive venue for all disputes arising out of or relating to this Agreement shall be the state and federal courts in Texas, and each party agrees not to dispute such personal jurisdiction and waives all objections thereto.
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect.
ThemeCloud may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without your consent. You may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of ThemeCloud. Any attempted assignment in violation of this section shall be null and void and of no force or effect whatsoever. This Agreement shall bind and inure to the benefit of the parties respective successors and permitted assigns.
Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party's reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
All provisions that by their very nature are intended to survive the termination of this Agreement shall survive termination of this Agreement, including without limitation Sections 22 through 25, and 30.
We are not compliant with the requirements of the federal Health Insurance Portability and Accountability Act ("HIPAA"). Users are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Users acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. ThemeCloud does not control or monitor the information or data you store on, or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with HIPAA. Customers requiring secure storage of "protected health information" under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to "protected health information," as defined under HIPAA is a material violation of this User Agreement, and grounds for immediate account termination. We do not sign "Business Associate Agreements" and you agree that ThemeCloud is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact customer support.
ThemeCloud complies with the Payment Card Industry Security Standard (“PCI Standard”) in connection with the collection and processing of our customer’s data and billing information. However, you are solely responsible for the security of the data and billing information on your website. ThemeCloud does not monitor user websites for compliance and we are not able to verify whether a user website does comply with the PCI Standard.
Last modified on November 6, 2015