Last Updated February 22, 2017
Please read these Terms of Service carefully. These Terms of Service create a legally binding agreement between Thea.com “Thea”, a Texas company located at 11704 Lemen’s Spice Cove, Austin, Texas 78750 (“Thea,” “we” or “us”) and you, as an end user (“you” or “User”) of the Service (defined below), whether as an individual or an organization.
Pursuant to this Agreement, Thea offers you certain website design, creation and hosting services (collectively, the “Service”) in connection with the website www.Thea.com, its sub-domains, and any international counterparts, as well as affiliated domains and sub-domains (the “Site”). When you click “Sign Up” to create an account, or by using the Service, you agree, as of such date (the “Effective Date”) on behalf of yourself and, if applicable, your organization, to be bound by this Agreement.
1. The Thea Service
Through the Service, Thea provides varying amounts of website design services (“Design Services”) with Fees that vary based on the Design Services received plus monthly hosting support.
2. Account Creation
A Thea account may only be created and maintained by a User who provides certain valid information about User and its business in the registration process. To maintain an account, User must regularly update such information to assure its accuracy, and User must always comply with this Agreement. You must be at least 18 years of age to create an account and to use the Service. You hereby represent, warrant and covenant to us that you are 18 years of age or over and that the information that you provide to us about you in connection with the Service will be current, true, accurate, supportable and complete.
3. License Grant
(a) Thea hereby grants User, during the Term for which User has paid the applicable Fees, a non-exclusive, non-transferable and revocable license, subject to this Agreement and any qualifications contained herein, to access and use the Service. This license is limited, non-sublicensable and intended solely for the purpose of accessing and using the Service in connection with the creation of User Sites hosted by Thea.
(b) This license is subject to this Agreement and does not include: (i) any resale or distribution of the Service (ii) modifying or making derivative works of the Service, or any portion thereof; (iii) use of any data mining, robots or similar data gathering or extraction methods; (iv) downloading (other than the page caching) of any portion of the Service except as expressly permitted by Thea in writing; or (v) any use of the Service other than for their intended purposes. Any use of the Service other than as specifically authorized herein, without the prior written permission of Thea, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any intellectual property rights, whether by estoppel, implication or otherwise.
(c) You further agree not to store, copy, modify, rent, lease, loan, sell, distribute, transfer, transmit, display, reverse engineer, reverse assemble, or otherwise attempt to discover any programming code or any source code used in or with the Service. You may not sell, assign, sublicense, grant a security interest in or otherwise attempt to transfer any right in the Service or in any manner commercially exploit the Service, in whole or in part, except as provided herein.
(d) In addition, Thea does not allow any of the following:
i. Users may not access the Service through automated methods. Use of robots or other computer code which calls the Service, except where explicitly allowed, is absolutely forbidden.
ii. Users may not send unsolicited messages (also known as junk mail or SPAM) to promote any website published using the Service.
iii. Users are not permitted to knowingly allow another website or hosting server to link to content files stored on Thea’s servers.
iv. Users may not use any robot, spider, other automated device or manual process to monitor or copy any content from the Site or Thea IP.
v. Users may not use any metatags or any other “hidden text” utilizing “Thea” or any other name, trademark or product or service name of Thea without our prior written permission.
4. User Sites
Interactions with Other Users. You understand and acknowledge that your business dealings, correspondence or interactions with third parties through your User Site, or through User Sites owned or maintained by others, and any terms, conditions, warranties or representations associated with such dealings or interactions are solely between you and such third parties. YOU ACKNOWLEDGE AND AGREE THAT THEA IS NOT RESPONSIBLE OR LIABLE IN ANY MANNER FOR, AND MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING, THE CONTENT, FUNCTIONALITY, BUSINESS, LEGALITY, ACCURACY, COMPLETENESS, QUALITY, RELIABILITY, SECURITY, USEFULNESS OR PRACTICES OF ANY USER SITES, FOR ANY INFORMATION COLLECTED IN CONNECTION WITH ANY USER SITE OR FOR ANY DEALINGS WITH OR TRANSACTIONS CONDUCTED ON OR IN CONNECTION WITH ANY USER SITE. YOU USE AND INTERACT WITH THIRD PARTIES THROUGH YOUR USER SITE OR OTHER USER SITES AT YOUR OWN RISK.
(a) User Site Terms of Service. You must include a term of service or similar document that governs the end users’ use of and access to your User Site (“User Terms”), which must include terms that are at least as protective of Thea as the terms of this Agreement, including without limitation the intellectual property, limitation of liability, indemnity and warranty disclaimer provisions of this Agreement. Thea shall be a direct and intended third party beneficiary of the User Terms. The User Terms may reference User’s licensors and vendors generally and do not need to specifically identify Thea.
(a) Content You Provide. By posting any of Your Content on your User Site or providing Content through the Service, you hereby grant to Thea a non-exclusive, fully-paid, royalty-free, fully sublicensable, transferable, irrevocable worldwide license to use, modify, publicly perform, publicly display, reproduce, prepare derivative works of and distribute the same (in whole or in part) solely to provide you with the Service and to host your User Site.
(b) Prohibitions Regarding Content. You may not provide any Content that is malicious, defamatory, obscene, pornographic, abusive or threatening, or that promotes illegal or immoral activities. It is important to us that users do not use the Service to infringe the rights of others. You represent to us that, to your knowledge (a) you have the right to share your Content via the Service, and (b) the posting and sharing of your Content via the Service does not violate the privacy rights, publicity rights, copyrights, trademark rights, contract rights or any other rights of any person or entity. We reserve the right to remove any of the Content from the Service in our sole discretion, including because it does or may infringe another party’s rights. In the event that we discover a violation of this Agreement or any of our other terms or policies, we may remove all or certain of your Content from the Service or your User Site. Repeated violations may result in the termination of your Thea account and your use of the Service.
(c) Content Guidelines. Thea does not allow any of the following Content, or links to such Content, to be published on or through the Service or the Site:
i. Pornographic, sexually explicit, or violent Content.
ii. Illegal Content (including stolen copyrighted material).
iii. Content related to illegal activities or businesses.
iv. Pirated software sites, including cracking programs or cracking program archives.
v. Content with the sole purpose of causing harm or inciting hate, or content that could be reasonably considered as slanderous or libelous.
(d) Users posting any of the above Content on their sites, as determined in Thea’s sole discretion, will be notified using User’s current email address on file with Thea, and, at Thea’s sole discretion, may be given a 24-hour grace period to make any corrective actions. If no corrective actions are taken, Thea will suspend User’s account and access to the Service until a resolution is met between Thea and User. A repeated violation of this Policy may cause cancellation of service without refund of any fees.
(e) THE FINAL CHOICE OF WHETHER AN ACCOUNT IS IN VIOLATION OF ANY TERMS OF THIS AGREEMENT IS AT THE SOLE DISCRETION OF THEA. VIOLATION OF ANY TERMS OF THIS AGREEMENT MAY RESULT IN TRACKING INFORMATION BEING STORED TO IDENTIFY THE OFFENDING USER, AND PERMANENT RESTRICTION FROM HOLDING AN ACCOUNT.
(a) You acknowledge that Thea or its licensors own all right, title, and interest in and to the Site, the Service, the “THEA” trademark, and/or any content on the Site not posted by a Thea User and/or an acknowledged third party, including all intellectual property rights therein (the “Thea IP”). Thea IP is protected by copyright, trade secret, and patent laws, and other proprietary rights and laws. All rights not expressly granted in this Agreement in and to the Thea IP are expressly reserved by Thea.
(b) User shall own all right, title, and interest in and to any data that is collected by Thea from User or your end users in connection with the use of the Service and your User Site (“Data”). User grants to Thea a perpetual, non-exclusive, transferable, sublicensable, royalty-free license to use such Data in order to host the User Site and provide the Service to User, and as necessary to monitor and improve the Service. Additionally, you agree that Thea may use the Data to collect, develop, create, extract or otherwise generate statistics and other information and to otherwise compile, synthesize and analyze such Data (“Blind Data”). Notwithstanding anything in this Agreement to the contrary, to the extent that Thea collects or generates Blind Data, such Blind Data will be owned solely by Thea and may be used for any lawful business purpose without a duty of accounting to User, provided that such Data is not personally identifiable and does not identify the source of such Data. It is User’s sole responsibility to back-up its Data during the Term and you agree and acknowledges that post termination or expiration in may not have access to the Data via the Service.
8. Third-Party Services and Materials.
(a) Third Party Services. The Service may enable access to third-party products and services (collectively and individually, “Third-Party Services”). Use of Third-Party Services may require acceptance of additional terms of service. Examples of Third-Party Services include additional functionality (such as search, email and ecommerce functions) and domain name registration services. You agree to comply with any such terms. Further, information you make available to Third Party Services is subject to the privacy policies of such third parties. You agree that you will use the Third Party Services at your sole risk.
(b) Third Party Materials. As part of the Service, we may display, include, or make available certain content, data, information, applications, or materials from third parties (“Third-Party Materials”), or provide links to third-party websites. Examples of Third-Party Materials include stock photography to include on your User Site. You acknowledge and agree that Thea is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. Thea does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Services, Third-Party Materials or websites.
(a)Fees for Design Services and monthly fees for the use of the website-creation and hosting features of the Service (“Platform Fees”) will be set forth in quote or order form between Thea and User. Thea reserves the right to change the monthly Platform Fees applicable to any Renewal Term.
(b) Payment. Fees for Design Services are payable as per agreement between Thea and User. The Platform Fees are payable each month, in advance, by credit card or such other electronic payment method as may be designated by Thea from time to time (“Payment Method”). User may also elect to prepay the Platform Fees and Design fees for an annual period in exchange for a prepayment discount. All Fees are due and payable in U.S. dollars, are non-refundable and are exclusive of applicable sales, excise, use or similar taxes. User shall pay all such taxes directly or to us, as required by applicable law. If applicable, User authorizes Thea to charge the Payment Method on file with User’s account for all Fees. If payment is not made on the respective due date, Thea may charge User a late fee on the unpaid balance at the lesser of one and one-half percent (1.5%) per month or the maximum lawful rate permitted by applicable law. If you dispute a payment that is found to be valid, Thea has the right, in its sole and absolute discretion, to terminate your account and this Agreement and permanently bar you from use of the Service. Any past due Fees will be sent to collections. If our collection efforts fail, unpaid debts will be reported to all available credit reporting agencies.
(c) Cancellation Fees. If User cancels this Agreement pursuant to Section 11(c) prior to the expiration of the Term, User shall not be entitled to receive any refund.
You acknowledge that the Service, the terms of this Agreement, and any other proprietary or confidential information provided to User by Thea (“Thea Confidential Information”) constitutes valuable proprietary information and trade secrets of Thea. Thea acknowledges that the Data provided to Thea by User (“User Confidential Information”) constitutes valuable proprietary information and trade secrets of User. Each party agrees to preserve the confidential nature of the other party’s Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for its internal use except as provided herein, and by using the same degree of protection that such party uses to protect similar proprietary and confidential information, but in no event less than reasonable care. Each party shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section.
11. Term & Termination
(a) Term. This Agreement will begin on the Effective Date and will continue for a period of 12 months (the “Term”). After the expiration of the initial Term, this Agreement and the Service will automatically renew on a month-to-month basis, unless explicitly cancelled by User prior to the expiration of the then current Term, or otherwise is terminated in accordance with this Section 12; provided that if User elects to undertake a re-design of its User Site upon the expiration of the then current Term, this Agreement will renew for an additional 24-month Term.
(b) Termination for Breach. This Agreement may be terminated by either party upon written notice to the other party if such a party (i) fails to comply with any of the terms and conditions of this Agreement, and (ii) fails to cure such breach within thirty (30) days after receiving written notice of such breach. Either party shall also have the right to terminate this Agreement immediately if the other party files for liquidation under Chapter 7 of U.S. bankruptcy law. Additionally, should Thea be notified or otherwise become aware that you are in violation of any terms or conditions of this Agreement, Thea reserves the right to suspend or terminate your account and this Agreement at any time, with or without notice. Each party’s right to terminate shall be in addition to any equitable remedies available to such party.
(c) Cancellation of Subscription. You may cancel your subscription to the Service at any time via the Thea website. Cancellation and termination of this Agreement will be effective 30 days after receipt of such notice.
(d) Effect of Termination. Upon termination of this Agreement for any reason: (i) User shall discontinue all use of the Service, and (ii) the User Site will be taken down in its entirety. Sections 3(b)-(d), 4, 7, 10, 11(d) and 14-17 of this Agreement shall survive any cancellation or termination of this Agreement for any reason. IT IS USER’S SOLE RESPONSIBILITY TO BACKUP ITS DATA DURING THE TERM, AND USER AGREES AND ACKNOWLEDGES THAT AFTER TERMINATION OF THIS AGREEMENT, USER MAY NOT HAVE ACCESS TO THE DATA VIA THE SERVICE.
12. Privacy Policies.
13. Support and Maintenance.
Thea will offer a commercially reasonable amount of email and online technical support regarding use of the Service. Certain support plans may also include additional phone support. Thea will also provide you with access, during the Term to any applicable user forums. During scheduled system maintenance, the Service may be unavailable. Emergency maintenance may be required in the event of system failure. We make no guarantees about uptime.
14. Indemnification of Thea
15. Disclaimer of Warranties
THEA MAKES NO WARRANTY, EXPRESS OR IMPLIED, THAT THE SITE, THE SERVICE OR ANY USER SITES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. THE SITE, THE SERVICE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE, THE SERVICE IS WITH YOU. SHOULD YOUR USER SITE PROVE DEFECTIVE, YOU (AND NOT THEA, ITS PARENT, SUBSIDIARIES, AFFILIATES OR LICENSORS) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION.
16. Limitation of Liability
(a) Under no circumstances shall Thea (including its subsidiaries, affiliates, clients, officers, directors, agents and employees) or anyone else involved in creating, producing or distributing the Service, the Site be liable for: (i) any indirect, incidental, special or consequential damages in connection with the use of or inability to use the Service, or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, or (ii) total damages in excess of the aggregate dollar amount which User paid directly to Thea during the twelve (12) months preceding the claim.
(b) Such limitations shall apply to Thea total liability, including without limitation any liability for damages caused or allegedly caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation of transmission, communications failure, theft of destruction of or unauthorized access to, alteration of, or use of records, whether for breach of contract, tortuous behavior, negligence, or under any other cause of action. The foregoing limitations apply even if a Thea has been notified of the possibility of such damages and notwithstanding any failure of essential purpose.
(a) Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of Fees, as a result of any delay, failure in performance, or interruption of services resulting directly or indirectly from acts of God, network failures, theft, destruction or unauthorized access to Thea records, programs or services, acts of civil or military authorities, civil disturbances, wars, terrorism, energy crises, fires, transportation contingencies, interruptions in third-party telecommunications or Internet equipment or service, other catastrophes, or any other similar occurrences which are beyond such party’s control.
(b) Assignment. User may not assign this Agreement or any license set forth herein, in whole or in part, without Thea’s prior written consent. Thea may assign the Agreement in its discretion. Any purported assignment in violation of this section shall be null and void. The Agreement shall be binding on all permitted assignees.
(c) Governing Law and Venue. To the maximum extent permitted by law, this Agreement, and all disputes or claims in connection with this Agreement (whether arising in contract, tort or otherwise) are governed by the laws of the State of Texas and the United States of America, and the parties hereby consent to Travis County, Texas being the exclusive jurisdiction and venue of courts for all disputes or claims in connection with this Agreement.
(d) Relationship of the Parties. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Thea as a result of this Agreement or use of the Service and the Site. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, other than as provided herein.
(e) Compliance with Laws. To the extent, you choose to use the Service, you agree to comply with any applicable laws, including but not limited to applicable local laws. You may not use or otherwise export or re-export it except as authorized by United States law and the laws of the jurisdiction in which the Service were accessed. The performance of Thea per this Agreement is subject to existing laws and legal process, and nothing contained in this agreement is in derogation of the right to comply by Thea with governmental, court and law enforcement requests or requirements relating to your use of service or information provided to or gathered by Thea with respect to such use.
(f) Limitations on Availability. The Service may not be available at all times, in all languages or in all geographies. Thea makes no representation will achieve any particular uptime. Use of the Service and the Site is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.
(g) Severability. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect.
(h) Waiver. The failure of either party to enforce at any time the provisions of the Agreement shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the ability of either party to enforce each and every such provision thereafter. The express waiver by either party of any provision, condition or requirement of the Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
(i) Entire Agreement. Unless otherwise specified herein, this Agreement constitutes the entire agreement between User and Thea with respect to the Site, the Service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between User and Thea.
(j) Electronic Versions. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
(k) Modifications. We may change the terms of this Agreement from time to time. If we have made significant changes to this Agreement, we will post a notice on the Thea.com website for at least thirty (30) days after the changes are posted and will indicate at the bottom of this Agreement the date of the last revision. Any revisions to this Agreement will become effective when posted unless otherwise provided. You agree to any modification to this Agreement by continuing to use the Services after the effective date of any such modification.
Last Updated February 22, 2017