Terms of Use Agreement
The terms of use of this agreement (this “Agreement”) govern the relationship between you and Brand Thunder, LLC (“Brand Thunder”), creators & distributors of Firefox Themes, Chrome Themes and Internet Explorer Browser Themes, regarding your use of the Brand Thunder websites, www.brandthunder.com, www.thunderthemes.com, and www.bt-engage.com (the “Sites”) and their related services (collectively, with the Sites, the “Service”). By using the Service, you are agreeing to comply with and be bound by the following terms of this Agreement.
The term “Brand Thunder” or “us” or “we” or “our” refers to Brand Thunder, LLC, the owner of the Service. One such service offered by us is BT:Engage, a feature that allows Users to generate a customized browser theme (a “Theme”) using logos, photographs and other design elements submitted by the User, to download and install that theme on their computer, and to share that Theme with others. In this agreement, the term “Publisher” refers to users of BT:Engage specifically, and the term “you” or “User” refers to the user or viewer of the Service, including without limitation, Publishers.
- Acceptance of Agreement.
- Copyright.
- Your Limited License of Your User Content to Brand Thunder
- Our Limited Licenses to You
- Restrictions and Prohibitions on Use.
- Linking to the Service.
- Promotion and Marketing.
- Registration.
- Errors, Corrections and Changes.
- Third Party Content; Advertising.
- Unlawful or Unauthorized Activity.
- Indemnification.
- Nontransferable.
- Disclaimer.
- Limitation of Liability
- Use of Information.
- Third-Party Services.
- Privacy Policy.
- Inactive Accounts; Cancellation; Termination of Agreement
- Miscellaneous.
- Questions and Comments.
Please read these Terms carefully before using the Service. By accessing or using the Service, you agree to be legally bound by this Agreement and all terms, policies and guidelines incorporated by reference in these Terms. If you do not agree with these Terms in their entirety, you may not use the Service.
You understand and agree that you are entering into this Agreement electronically, which will have the same force and effect as an agreement in writing. We reserve the right to modify the terms in this Agreement at any time. If we do so, we will notify you by (a) posting such notice on the Service or (b) by sending you e-mail to the e-mail address that you provided to us. You may always review the most current version of this Agreement by clicking on the “Terms” or “Terms of Use” link on the home page of the Service. If you do not agree with the changes, you can cancel your account with us without further obligation.
In this Agreement the content of the Service, including all information, data, logos, marks, designs, graphics, pictures, sound files, other files, and their selection and arrangement, is called “Content”. Content provided by Users is called “User Content”. User Content includes, but it is not limited to, (a) logos, pictures, artwork, names and other trademarks, and user-chosen selections and arrangements of web elements that Publishers may submit, and (b) descriptions and reviews of Themes.
User Content is that User’s property. Brand Thunder’s only right to that User Content is the limited licenses to it granted in this Agreement. Those licenses are described in Section 3 and Section 16 of this Agreement.
Other than the User Content, the Service, all Content and all software available on the Service or used to create and operate the Service is the property of Brand Thunder or its licensors, and is protected by domestic and international copyright laws, and all rights to the Service, such Content and such software are expressly reserved. All trademarks, registered trademarks, product names and company names or logos mentioned in the Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof by Brand Thunder.
Your User Content is your responsibility. We have no responsibility or liability for it, or for any loss or damage your User Content may cause to other people. Although we have no obligation to do so and have no intention of doing so, we have the absolute discretion to remove, screen or edit without notice any User Content posted or stored on the Service, and we may do this at any time and for any reason. You are solely responsible for maintaining copies of and replacing any User Content you post or store on the Service.
We do not claim any ownership interest in your User Content, but we do need the right to use your User Content to the extent necessary to operate the Service now and in the future. In particular, we need the right to use User Content provided by Publishers to make available Themes for download by that Publisher and, with the Publisher’s permission, by other Users.
Therefore, by posting or distributing User Content to or through the Service, you (a) represent and warrant that (i) you own and control all of the rights to the User Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute that User Content, to or through the Service; and (ii) the use and posting or other transmission of such User Content does not violate this Agreement and will not violate any rights of or cause injury to any person or entity; and (b) grant Brand Thunder and its affiliates and subsidiaries a worldwide, non-exclusive, royalty-free, transferable right to use, display, perform, reproduce, distribute, publish, modify, adapt, translate, and create derivative works from such User Content on the Service, in the manner in and for the purposes for which the Service from time to time uses such User Content.
If your User Content is intended for the use of other Users, such as when you use BT:Engage to generate a Theme available for other to download, you also grant us and our affiliates and subsidiaries a worldwide non-exclusive, royalty-free, transferable right to sublicense such User Content to such Users for their use in connection with their use of the Service or Theme.
These licenses from you are non-exclusive because you have the right to use your User Content elsewhere. They are royalty-free because we are not required to pay you for the use of your User Content on the Service. And they are transferable because we need the right to transfer these licenses to any successor operator of the Service. Our rights to “modify, adapt, translate, and create derivative works from” are necessary because the normal operation of the Service does this to your User Content when it processes it for use in the Service.
Except as expressly granted in this Agreement, Publishers retains all right, title and interest in and to their User Content, their trademarks and any Intellectual Property Rights therein.
(a) General. Brand Thunder grants you a limited, revocable, non-exclusive, non-sublicensable license to access the Service, to use BT:Engage to generate a Theme based on your User Content, and to view, copy and print the portions of the Content available to you on the Service. Such license is subject to this Agreement, and specifically conditioned upon your compliance with the this Agreement, including without limitation, the Restrictions and Prohibitions set forth in Section 5. Except as expressly permitted above, any use of any portion of the Content without the prior written permission of its owner is strictly prohibited and will terminate the license granted in this Section, this Agreement and your account with us. Any such unauthorized use may also violate applicable laws, including without limitation copyright and trademark laws. Unless explicitly stated herein, nothing in this Agreement may be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. The license in this Section is revocable by Brand Thunder at any time.
(b) Themes. If you download and/or install a Theme, including any that you have used the Services to generate using your User Content, your use of that Theme is permissible pursuant to, and subject to the restrictions set forth in, the Brand Thunder Theme License Agreement, accessible here.
(c) Our Proprietary Rights. Use of the Services to generate a Theme does not create nor imply that you have created or obtained any intellectual property or other rights in that Theme other than the rights in your User Content. Except as expressly granted in this Agreement, Brand Thunder retains all right, title and interest in and to the Services, including without limitation BT:Engage, its trademarks and any Themes (except for the User Content) including any Intellectual Property Rights therein. Publisher will not earn or acquire any rights or licenses in any of the Services on account of this Agreement or Publisher’s performance under this Agreement except as expressly set forth in the limited license grants set forth herein. Publisher will retain and reproduce any copyright, disclaimers and other proprietary notices in full and as they appear in or on the Services or any Themes.
(a) Restrictions applicable to all Users. Your license for access and use of the Service and any information, materials or documents (collectively defined as “Content and Materials”) therein are subject to the following restrictions and prohibitions on use: You may not (1) copy, print (except for the express limited purpose permitted by Section 4 above), republish, display, distribute, transmit, sell, rent, lease, loan or otherwise make available in any form or by any means all or any portion of the Service or any Content and Materials retrieved therefrom; (2) use the Service or any materials obtained from the Service to develop, of as a component of, any information, storage and retrieval system, database, information base, or similar resource (in any media now existing or hereafter developed), that is offered for commercial distribution of any kind, including through sale, license, lease, rental, subscription, or any other commercial distribution mechanism; (3) create compilations or derivative works of any Content and Materials from the Service; (4) use any Content and Materials from the Service in any manner that may infringe any copyright, intellectual property right, proprietary right, or property right of us or any third parties; (5) remove, change or obscure any copyright notice or other proprietary notice or terms of use contained in the Service; (6) make any portion of the Service available to others through any timesharing system, service bureau, the Internet or any other technology now existing or developed in the future; (7) interfere with, disrupt, remove, decompile, disassemble or reverse engineer any Service software or use any network monitoring or discovery software to determine the Service architecture; (8) use any automatic or manual process to harvest information from the Service; (9) use the Service for the purpose of gathering information for or transmitting (A) unsolicited commercial email; (B) email that makes use of headers, invalid or nonexistent domain names, or other means of deceptive addressing; and C) unsolicited telephone calls or facsimile transmissions; (10) use the Service in a manner that violates any state or federal law regulating email, facsimile transmissions or telephone solicitations; or (11) export or re-export the Service or any portion thereof, or any software available on or through the Service, in violation of the export control laws or regulations of the United States.
(b) Restrictions applicable to Publishers.
1) Brand Thunder retains the exclusive right to determine and set the default provider of any web search services, functionality or feature (“Web Search Feature”) that may be available in a Theme, including, without limitation, the right to change any definitions that may be required as part of the setting of such default Web Search Feature. Publishers will not: (A) modify, remove or interfere with the default Web Search Feature provided in or made available in any Application or the definitions related thereto; (B) provide, make available or link to any Web Search Feature, including without limitation references or advertisements to Web Search Features, that compete with or are similar to the default Web Search Feature provided in or made available in any Application; (C) provide, make available or link to any Web Search Feature in any Application that does not provide or makes available any Web Search Feature; or (D) permit, authorize or encourage a third party to engage in the prohibited activity set forth in (A) through (C). In the event that Brand Thunder offers certain unique features or functionality such as, video search or music features as part of the Brand Thunder Technology (each a “Unique Feature”), Publishers shall not modify, remove or interfere with Unique Features including, but not limited to the default settings and/or the definitions thereof.
2) Publishers shall use the Services to generate a Theme that in anyway enables, constitutes or performs a Prohibited Activity and shall not use in connection with an Theme or the Services any content generated by any third party which is engaged in any Prohibited Activity. The term “Prohibited Activity” means: (a) activity or use of content (including, without limitation, signs, images, or texts) that (i) violates any applicable law, regulation or order of any court or tribunal including, but not limited to, collecting personal information from any individuals under the age of 13 in violation of the Children’s Online Privacy Protection Act of 1998; (ii) violates, misappropriates, or infringes any third party (including, without limitation, Users) Intellectual Property Rights, rights of privacy and publicity, or other proprietary or legal rights; (iii) materially interferes with Web navigation or browsing; or (iv) creates or poses any kind of security threat or breach to any User or any other third party (b) usage which adversely affects public or private infrastructure or equipment; (c) installations of an Application that are generated without an accurate and conspicuous disclosure and without informed and active consent; (d) fraudulent activity of any kind; (e) use of content or content which: (i) is, promotes or advocates pornographic, obscene, excessively profane, racial, libelous, gambling-related, discriminatory, offensive or deceptive material or any type of malware; (ii) promotes, advocates or facilitates terrorism, terrorist-related activities or violence; or (iii) contains excessive or inappropriate advertisements as determined by Brand Thunder in its sole discretion; (f) using an Theme or the Services in order to offer, distribute or promote any web browser application that is substantially similar to that generated by the Services; (g) redirect traffic or replace web pages available within a Theme to web pages which promote content or products which may adversely effect use of the Theme or the Services; (h) generate or using a Theme in a manner that violates, or enables the violation of, the Privacy Policies, Terms of Service, or License Agreement applicable to Themes and the Brand Thunder Services; (i)
You may provide links to the Service, provided (a) that you do not remove or obscure, by framing or otherwise, advertisements, the copyright notice, or other notices on the Service, (b) your site does not engage in illegal or pornographic activities, and (c) you discontinue providing links to the Service immediately upon request by us.
(a) A Publisher may not issue any press release or any other marketing regarding this Agreement without Brand Thunder’s prior written approval. A Publisher may advertise and promote a Theme from the Publisher website and may, in addition, advertise and promote a Theme from Publisher’s other online or offline properties (“Publisher Promotion”). The Publisher Promotion from the Publisher website shall include a link to the Theme download page. In the event that a Theme does not automatically include the notice “Powered by Brand Thunder” (“Brand Thunder Notice”), Publishers shall provide the Brand Thunder Notice in a prominent and visible format in connection with any Publisher Promotion and where provided via a web page, Publishers will include a link to http://brandthunder.com in the Publisher Promotion. As an example, Publishers may satisfy the requirements of this Section using the following wording: “[Theme Name] Powered by Brand Thunder”.
(b) Publishers agree that Brand Thunder may: (i) feature a Theme in different marketing outlets and/or collateral, including without limitation newsletters, case studies, email or ad campaigns and web pages; (ii) indentify Publishers as a user of the Brand Thunder Technology on Brand Thunder websites, client lists, press releases, and in other marketing; and (iii) publish a brief description and/or case study highlighting Publishers’ deployment of an Application and use of the Brand Thunder Technology (each a “Brand Thunder Promotion”). In the event that a Publisher wishes to be excluded from a specific Brand Thunder Promotion, Publisher shall notify Brand Thunder in writing via the “Contact Us” link, which is available on the Brand Thunder website. Unless otherwise agreed by parties, Publishers shall not be entitled to any compensation as a result of any Brand Thunder Promotion.
(c) Subject to the terms and conditions of this Agreement, each party grants to the other party a limited, worldwide, non-assignable, non-sublicensable, non-exclusive license to use the other party’s Marks solely to engage in the marketing and promotional activities set forth in this Agreement. “Marks” mean a party’s trademarks, service marks, trade names and associated logos that a party may provide to the other party in connection with this Agreement. Any use by one party of a Mark of the other party must be in accordance with applicable law and with respect to Brand Thunder, solely in accordance with Brand Thunder’s Trademark Policy, as may be amended from time to time. Each party acknowledges and agrees that any and all goodwill and other proprietary rights that are created by or that result from such party’s use of a Mark of the other party as permitted hereunder will inure solely to the benefit of the other party.
Certain sections of, or offerings from, the Service may require you to register. If registration is requested, you agree to provide us with accurate, complete registration information. You must be at least 13 years old to use the Service. Your registration must be done using your real name and accurate information. Each registration is for your personal use only and not on behalf of any other person or entity. We do not permit (a) any other person using the registered sections under your name; or (b) access through a single name being made available to multiple users on a network. You are responsible for preventing such unauthorized use, and you agree to accept all risks of unauthorized access to your registration data and your User Content.
We do not represent or warrant that the Service will be error-free, free of viruses or other harmful components, or that defects will be corrected. We do not represent or warrant that the information available on or through the Service will be correct, accurate, timely or otherwise reliable. We may make changes to the features, functionality or content of the Service at any time. We reserve the right in our sole discretion to edit or delete any documents, information or other content appearing on the Service.
Third party content may appear on the Service or may be accessible via links from the Service. We are not responsible for and assume no liability for any mistakes, misstatements of law, defamation, omissions, falsehood, obscenity, pornography or profanity in the statements, opinions, representations or any other form of content on the Service. You understand that the information and opinions in the third party content represent solely the thoughts of the author and is neither endorsed by nor does it necessarily reflect our belief.
The Service may contain advertising and sponsorships. Advertisers and sponsors are responsible for ensuring that material submitted for inclusion on the Service is accurate and complies with applicable laws. We are not responsible for the illegality or any error, inaccuracy or problem in the advertiser’s or sponsor’s materials.
(a) We reserve the right to investigate complaints or reported violations of this Agreement and to take any action we deem appropriate, including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to your profile, email addresses, usage history, posted materials, IP addresses and traffic information.
(b) In the event a Publisher identifies or is made aware that a Theme they have generated using the Services in any way violates this Agreement, applicable privacy policies, the rights of any third party, or applicable law, the Publisher shall immediately notify Brand Thunder, take all steps necessary to remove, fix or resolve such matters, and to the extent required by applicable law or requested by Brand Thunder, to notify all Users who have downloaded such theme.
You agree to indemnify, defend and hold us and our partners, agents, officers, directors, employees, subcontractors, successors, assigns, third party suppliers of information and documents, attorneys, advertisers, product and service providers, and affiliates (collectively, “Affiliated Parties”) harmless from any liability, loss, claim and expense, including reasonable attorney’s fees, related to your violation of this Agreement or use of the Service.
Your right to use the Service is not transferable or assignable. Any password or right given to you to obtain information or documents is not transferable or assignable.
THE SERVICE, AND THE INFORMATION, CONTENT AND DOCUMENTS FROM OR THROUGH THE SERVICE ARE PROVIDED “AS-IS,” “AS AVAILABLE,” WITH “ALL FAULTS”, AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO THE DISCLAIMER OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE). THE INFORMATION AND SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. WE AND OUR AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF ANY INFORMATION OR SERVICE, EXCEPT AS PROVIDED IN SECTION 15. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, WE AND OUR AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION AND LIMITATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN US AND YOU. THIS SERVICE AND THE PRODUCTS, SERVICES, DOCUMENTS AND INFORMATION PRESENTED WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SERVICE OR OTHERWISE SHALL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.
ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN THE ELECTRONIC FILE CONTAINING A FORM OR DOCUMENT IS DISCLAIMED.
We and any Affiliated Party shall not be liable for any loss, injury, claim, liability, or damage of any kind resulting in any way from (a) any errors in or omissions from the Service or any services or products obtainable therefrom, (b) the unavailability or interruption of the Service or any features thereof, (c) your use of the Service, (d) the content contained on the Service, or (e) the failure of the site to preserve User Content.
THE AGGREGATE LIABILITY OF US AND THE AFFILIATED PARTIES IN CONNECTION WITH ANY CLAIM ARISING OUT OF OR RELATING TO THE SITE AND/OR THE PRODUCTS, INFORMATION, DOCUMENTS AND SERVICES PROVIDED HEREIN OR HEREBY SHALL NOT EXCEED $100 AND THAT AMOUNT SHALL BE IN LIEU OF ALL OTHER REMEDIES WHICH YOU MAY HAVE AGAINST US AND ANY AFFILIATED PARTY.
We reserve the right, and you authorize us, to the use and assignment of all information regarding Service uses by you and all information provided by you in any manner consistent with our Privacy Policy. All remarks, suggestions, ideas, graphics, or other information communicated by you to us (collectively, a “Submission”) will forever be our property. We will not be required to treat any Submission as confidential, and will not be liable for any ideas (including without limitation, product, service or advertising ideas) and will not incur any liability as a result of any similarities that may appear in our future products, services or operations. Without limitation, we will have exclusive ownership of all present and future existing rights to the Submission of every kind and nature everywhere. We will be entitled to use the Submission for any commercial or other purpose whatsoever, without compensation to you or any other person sending the Submission. You acknowledge that you are responsible for whatever material you submit, and you, not us, have full responsibility for the message, including its legality, reliability, appropriateness, originality, and copyright.
We may allow access to or advertise certain third-party product or service providers (“Merchants”) from which you may purchase certain goods or services. You understand that we do not operate or control the products or services offered by Merchants. Merchants are responsible for all aspects of order processing, fulfillment, billing and customer service. We are not a party to the transactions entered into between you and Merchants. You agree that use of or purchase from such Merchants is AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY US, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES ARE WE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SERVICE.
All rules, policies (including privacy policies) and operating procedures of Merchants will apply to you while on any Merchant sites. We are not responsible for information provided by you to Merchants. We and the Merchants are independent contractors and neither party has authority to make any representations or commitments on behalf of the other.
Our Privacy Policy, as it may change from time to time, is a part of this Agreement. You must review this Privacy Policy by clicking on this link.
This Agreement shall remain effective until terminated by either party. You and/or Brand Thunder may terminate this Agreement and your use of the Service at any time. Specifically, we reserve the right to terminate your User account and your use of the Service without prior notice (a) if we believe in our discretion that you have violated or acted inconsistently with this Agreement or (b) if we determine in our sole discretion to terminate the Service with you or any other User. When your account is terminated, your User Content will, shortly thereafter, not appear on the Service, except for User Content submitted to our forum or comments on our blog, which may remain on the Service after termination. We may also retain an archival copy of your User Content after termination, provided, however, that we make no guaranties that we will do so. You hereby grant us a non-exclusive, perpetual, irrevocable license to maintain such archival copy for our internal business purposes.
Upon termination of this Agreement for any reason, we will no longer allow Users to download any themes that you have created using your User Content. However, the termination of this Agreement shall in no way affect the rights of any other User who has, prior to such termination, obtained the right to use any such Theme by downloading it from the Service or otherwise. Brand Thunder will not be liable to Publisher or any third party for termination of this Agreement or termination of Publisher’s access to the Brand Thunder Technology or an Application.
You and we are independent contractors, and nothing in this Agreement creates a partnership, employment relationship or agency. There are no third-party beneficiaries of this Agreement. You may not assign this Agreement, in whole or in part, to any third party without our prior, written consent, and any attempt by you to do so will be invalid.
This Agreement shall be treated as though it were executed and performed in Columbus, Ohio, and shall be governed by and construed in accordance with the laws of the State of Ohio (without regard to conflict of law principles). Any cause of action by you with respect to the Service (and/or any information, products or services related thereto) must be instituted within one (1) year after the cause of action arose or be forever waived and barred. All actions shall be subject to the limitations set forth in Section 14 and Section 15. The language in this Agreement shall be interpreted as to its fair meaning and not strictly for or against any party. This Agreement and all incorporated agreements and your information may be automatically assigned by us in our sole discretion to a third party in the event of an acquisition, sale or merger. Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Service is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under this Agreement shall survive any termination of this Agreement.
If you have any questions regarding this Agreement or your use of the site please contact us here:
Brand Thunder, LLC.
PO BOX 111
Columbus, Ohio 43002
Email: info@brandthunder.com
Last Updated: August, 2011
