THIS DIYTHEMES SOFTWARE LICENSE AGREEMENT ("AGREEMENT") GOVERNS THE INSTALLATION AND USE OF THE DIYTHEMES SOFTWARE DESCRIBED HEREIN. THE INSTALLATION AND USE OF THE DIYTHEMES SOFTWARE WILL BE SUBJECT TO THE ORDER DOCUMENT(S).

YOU WILL BE REQUIRED TO INDICATE YOUR AGREEMENT TO THESE TERMS AND CONDITIONS IN ORDER TO DOWNLOAD THE SOFTWARE, REGISTER THE SOFTWARE WITH DIYTHEMES AND OBTAIN LICENSE KEYS (WHEN APPLICABLE) NECESSARY TO COMPLETE THE INSTALLATION PROCESS FOR THE SOFTWARE.  BY CLICKING ON THE "YES" BUTTON OR OTHER BUTTON OR MECHANISM DESIGNED TO ACKNOWLEDGE AGREEMENT TO THE TERMS OF AN ELECTRONIC COPY OF THIS AGREEMENT,OR DOWNLOADING OR INSTALLING THE SOFTWARE, OR USING ANY MEDIA THAT CONTAINS THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE. THIS AGREEMENT IS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SOFTWARE AND ANY PERSON OR ENTITY THAT USES THE SOFTWARE ON ANOTHER PERSON'S OR ENTITY'S BEHALF. YOU AGREE THAT THIS AGREEMENT IS EQUIVALENT TO ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.  IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS OR A GOVERNMENT AGENCY, DEPARTMENT OR INSTRUMENTALITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS.
THIS SOFTWARE IS BEING LICENSED AND NOT SOLD TO YOU.  DIYTHEMES PERMITS YOU TO DOWNLOAD, INSTALL AND USE THE FUNCTIONALITY OR FEATURES OF THE SOFTWARE ONLY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

1.     DEFINITIONS.   Capitalized terms not otherwise defined herein can be found in Exhibit A.
2.     SOFTWARE PACKAGES. This Agreement will be in effect for the following term, unless earlier terminated as provided herein (the "Term") and with the following features and functionality:
2.1    Thesis Basic: twelve (12) month license; with no add-ons; 
2.2    Thesis Basic Plus: twelve (12) month license; with two (2) free approved skins;   
2.3    Thesis Professsional: perpetual license; with two (2) free approved skins, free add-ons (as listed in the Order Document(s)) and updates for Thesis for WordPress platform.
	
3.     LICENSE GRANTS.  Subject to your compliance with the terms and conditions of this Agreement, including (as applicable) your timely payment of license fees set forth in the applicable Order Document (the "License Fees"), DIYthemes grants to you the following nonexclusive, worldwide, nontransferable, nonsublicensable, revocable, limited licenses during the Term (or such other period of time provided in your Order Document) to use:
3.1     the Purchased Software solely for your Internal Business Purpose
3.2     DIYthemes Extensions solely for use with the Software for your Internal Business Purpose; and
3.3     the DIYthemes API solely for the purpose of developing Extensions for use with the Software for your Internal Business Purpose (collectively, "Your Extensions"). You agree to assume full responsibility for the performance of Your Extensions, and shall indemnify, hold harmless, and defend DIYthemes (including all of its officers, employees, directors, subsidiaries, representatives, Affiliates and agents) and DIYthemes's licensors and suppliers from and against any claims or lawsuits, including attorney's fees and expenses that arise or result from Your Extensions. You retain title to and copyright for Your Extensions, subject to DIYthemes's title to and copyright for the DIYthemes Materials as specified in the Ownership section below.
5.     SOFTWARE RESTRICTIONS. You agree not to (a) use the DIYthemes Materials or Your Extensions except as expressly authorized in this Agreement and your Order Document; (b) copy the Software (except as required to run the Software and for reasonable backup purposes); (c) modify, adapt, or create derivative works of the Software; (d) rent, lease, loan, resell, transfer, sublicense (including but not limited to offering any of the functionality of the DIYthemes Materials or Your Extensions on a service provider, hosted or time sharing basis) or distribute the DIYthemes Materials or Your Extensions to any third party; (e) decompile, disassemble or reverse-engineer the Software or otherwise attempt to derive the Software source code; (f) disclose to any third party the results of any benchmark tests or other evaluation of the Software, or (g) authorize any third parties to do any of the above.  Any consultant, contractor, or agent hired to perform services for you may operate the Software on your behalf under these terms and conditions, provided that: (v) you are responsible for ensuring that any such third party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to you; (x) such use is only in connection with your Internal Business Purpose; (y) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (z) you remain fully liable for any and all acts or omissions by such third parties related to this Agreement. Any violation of this Section shall be a material breach of this Agreement subject to immediate termination of this Agreement for which no notice from DIYthemes shall be required.
6.     OWNERSHIP. DIYthemes, its suppliers and/or its licensors own all worldwide right, title and interest in and to the DIYthemes Materials, including all worldwide patent rights (including patent applications and disclosures); copyright rights (including copyrights, copyright registration and copy rights with respect to computer software, software design, software code, software architecture, firmware, programming tools, graphic user interfaces, reports, dashboard, business rules, use cases, screens, alerts, notifications, drawings, specifications and databases); moral rights; trade secrets and other rights with respect to confidential or proprietary information; know-how; other rights with respect to inventions, discoveries, ideas, improvements, techniques, formulae, algorithms, processes, schematics, testing procedures, technical information and other technology; and any other intellectual and industrial property rights, whether or not subject to registration or protection; and all rights under any license or other arrangement with respect to the foregoing. Except as expressly stated in this Agreement, DIYthemes does not grant you any intellectual property rights in the DIYthemes Materials, and all right, title, and interest in and to all copies of the DIYthemes Materials not expressly granted remain with DIYthemes, its suppliers and/or its licensors. The DIYthemes Materials are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. You may not remove or obscure any copyright, trademark, and/or any other intellectual property or proprietary notices from the DIYthemes Materials.
7.     PURCHASED SOFTWARE LICENSE AND FEES. In order to access and use the Purchased Software, you are required to pay to DIYthemes the license fees set forth in your Order Document (the "License Fees"). The License Fees will be due and payable in accordance with the terms set forth in your Order Document. Any failure to pay the License Fees in accordance with an Order Document may result in automatic revocation and termination of this Agreement and all rights and licenses granted hereunder in DIYthemes's sole discretion. All License Fees are non-refundable once paid.  Any fees and payment terms for DIYthemes Extensions will be identified on your Order Document or on www.DIYthemes Store.com.
8.     MAINTENANCE AND SUPPORT. Subject to your payment of the applicable annual maintenance and support fees set forth in your Order Document (the "Support Fees"), DIYthemes will provide the level of support for the Purchased Software identified in your Order Document. Currently, Technical support is only available via the support forum, and can be reached at support@diythemes.com.
10.     PURCHASED SOFTWARE REFUND. DIYthemes will for a period of thirty (30) days after the earlier of delivery or registration of the Purchased Software with DIYthemes, refund the payment for the Purchased Software.  You acknowledge that the Purchased Software is provided on an "as is" basis, and DIYthemes disclaims any warranty or liability obligations to you of any kind with respect to the Purchased Software.
11.     WARRANTY DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 10 ABOVE, DIYTHEMES, ITS AFFILIATES, LICENSORS AND SUPPLIERS PROVIDE THE DIYTHEMES MATERIALS AS-IS AND EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, INTEGRATION AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. YOU AGREE THAT, AS BETWEEN YOU AND DIYTHEMES, YOU ARE RESPONSIBLE FOR THE ACCURACY AND QUALITY OF YOUR DATA INPUT INTO ANY DIYTHEMES MATERIALS.  BECAUSE THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME STATES OR JURISDICTIONS, THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. 
12.     LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, DIYTHEMES'S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID BY YOU TO DIYTHEMES UNDER THE APPLICABLE ORDER DOCUMENT GIVING RISE TO SUCH LIABILITY IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL DIYTHEMES BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE DIYTHEMES MATERIALS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE DIYTHEMES MATERIALS, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT DIYTHEMES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. WITHOUT LIMITING THE FOREGOING, DIYTHEMES WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OF THE LICENSE RIGHTS GRANTED HEREIN AND ANY ASSOCIATED CESSATION OF THE FUNCTIONS OF THE DIYTHEMES MATERIALS. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. DIYTHEMES IS ACTING ON BEHALF OF ITS AFFILIATES, LICENSORS AND SUPPLIERS FOR THE PURPOSE OF DISCLAIMING, EXCLUDING AND LIMITING OBLIGATIONS, WARRANTIES AND LIABILITY, BUT IN NO OTHER RESPECTS AND FOR NO OTHER PURPOSES.
14.     TERMINATION. DIYthemes may terminate this Agreement (and your license rights) upon notice in the event that you breach any provision of this Agreement and have not cured the breach during such notice period. Notwithstanding the foregoing, a material breach of any license granted to you shall be grounds for immediate termination. Upon any expiration or termination of this Agreement, the rights and licenses granted hereunder will automatically terminate, and you agree to immediately cease using the DIYthemes Materials and to return or destroy all copies of the DIYthemes Materials, including any documentation, and other DIYthemes proprietary or confidential information in your possession or control and certify in writing the completion of such return or destruction. In the event of termination of this Agreement, DIYthemes will have no obligation to refund any License Fees, Support Fees, or other fees received from you during the Term. Section 1 (Definitions), Section 3.3 (solely with respect to indemnity), Section 6 (Ownership), Section 11 (Warranty Disclaimer), Section 12 (Limitation of Liability), Section 13 (Purchased Software Indemnity), Section 14 (Termination) and Sections 15(Severability) through 21 (General) shall survive termination of this Agreement 
15.     SEVERABILITY. Unless otherwise provided herein, all rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. The terms and conditions stated herein are declared to be severable. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
18.     PUBLICITY.  You agree that DIYthemes may publish a brief description highlighting your deployment of the Software, identify you as a DIYthemes customer on any of DIYthemes's websites, client lists, press releases, and/or other marketing materials. 
19.     THIRD PARTY CONTENT DISCLAIMER. Most of the DIYthemes Extensions and content ("Third-Party Content") on DIYthemes Store are submitted by third parties. Such Third-Party Content is the sole responsibility of the originator of that Third-Party Content. DIYthemes is not responsible for any Third-Party Content, whether or not DIYthemes reviewed or moderated such Third Party Content. You agree that you bear all risks associated with using or relying on the Third Party Content.  DIYthemes does not in any way warrant the accuracy, reliability, completeness, usefulness, non-infringement, or quality of any Third-Party Content, regardless of who originated that content (including our employees, partners, Affiliates or moderators), and even if an application is designated as "DIYthemes Approved". DIYthemes hereby disclaim all warranties, including but not limited to any implied warranties of merchantability, quiet enjoyment, integration or fitness for a particular purpose, relating to Third Party Content.  DIYthemes shall not be liable or responsible in any way for any loss or damage of any kind, including but not limited to lost profits, loss of use, data, business interruption, costs of procuring substitute software or other indirect or consequential damages, relating to your use of or reliance upon any Third Party Content.
20.     CHOICE OF LAW AND DISPUTES.  This Agreement will be considered as having been entered into in the State of Texas, and will be interpreted exclusively in accordance with the laws of the State of Texas.  The parties to this Agreement irrevocably and unconditionally consent to the exclusive jurisdiction and venue of the state and Federal courts located in Travis County, Texas in connection with any action related to this Agreement. 
21.     GENERAL. All notices required or permitted under this Agreement or any Exhibit hereto will be in writing and delivered in person, by confirmed facsimile transmission, by overnight delivery service, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt.  All communications will be sent to the addresses set forth in the applicable Order Document(s) or to such other address as may be specified by either party to the other party in accordance with this Section. You may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise.  DIYthemes may assign this Agreement in whole or in part to (i) an Affiliate, upon written notice to you (such notice to be delivered electronically or otherwise) or (ii) in connection with an internal reorganization or in connection with a merger, acquisition, or sale of all or substantially all of DIYthemes's assets. Any attempt to assign this Agreement other than as permitted herein will be null and void; provided, however, DIYthemes may assign its rights to receive payment due as a result of performance of this Agreement. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties' permitted successors and assigns.  This Agreement along with any additional terms incorporated herein by reference, including any Order Documents and any Exhibits hereto, constitute the complete and exclusive understanding and agreement between the parties and supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.  Any terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement shall be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the preceding sentence.
 
EXHIBIT A
DEFINITIONS
1.     "Affiliate" means, with respect to any person or entity, any other person or entity that directly or indirectly Controls or is Controlled by such person or entity, from time to time, but only for so long as such Control exists. "Control" and its grammatical variants means (i) a general partnership interest in a partnership, or (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors.
2.     "Enhancements" means any updates, upgrades, releases, fixes, enhancements or modifications to the Software, DIYthemes Developer API or DIYthemes Extensions.
3.     "Extensions" mean any separate downloadable suite, add-on, command, function, or application, including any example module, which extend the Software.
4.     "Internal Business Purpose" means the use of any of the DIYthemes Materials, as applicable, only for Your internal business use with Your systems, networks, devices and data.  Such use does not include use of Your systems, networks or devices as part of services You provide for a third party's benefit.
5.     "Order Document(s)" mean the purchase order or any equivalent ordering document and the order confirmation that detail the components, solutions, and quantities of your purchase of the Software. 
6.     "Purchased Software" means Software purchased through DIYthemes.
7.     "Software" means the software components listed in the Order Document(s) which have a valid license. 
8.     "DIYthemes" means DIYthemes Inc., a Texas Limited Liability Company, located in Austin, Texas with a PO box of 5429, Austin, TX 78763.
9.     "DIYthemes API" means the documentation and functionality included with the Software which enable the creation of Extensions. 
10.     "DIYthemes Extensions" mean any Extensions downloadable through DIYthemes's online store.
11.     "DIYthemes Materials" mean the Software, DIYthemes Developer API, the DIYthemes Extensions and/or the Enhancements and any derivatives to any of them.