1. Definitions

In these Membership Terms:

• Buyer means a Member who buys Products made available for sale on the Sites.
• Exclusive Seller means a Member who makes Products available for sale exclusively on the Sites.
• Member means a person who is registered as a Member by completing and submitting the Membership application, accepts these Membership Terms and that application is accepted by Walmedia, LLC.
• Member Account has the meaning given to that term in clause 2.
• Member Ledger has the meaning given to that term in clause 2.
• Payment Agent means any payment agent approved by Walmedia, LLC from time to time including, but not limited to, PayPal.
• Products mean products available for sale on UpThemes.com including, but not limited to, web templates, Content Management System themes, HTML/CSS/JavaScript components, PSD files.
• Seller means an Exclusive Seller.
• In these Membership Terms, a reference to “we” or “us” means Walmedia, LLC and a reference to “you” or “your” means a Member.

2. Selling Products

As a Member, you may not start selling Products over a Site unless you warrant to Walmedia, LLC and each Buyer that, as a Seller, in relation to each Product that you offer for sale on any of the Sites:

1. you own the intellectual property rights in that Product;
2. that Product does not infringe the intellectual property rights of a third party;
3. that Product is not false, inaccurate or misleading;
4. that Product is not fraudulent, stolen or an unlawful item;
5. that Product does not violate any applicable law, statute, ordinance or regulation (including but not limited to, those governing export control, consumer protection, unfair competition, criminal law, antidiscrimination or trade practices or fair trading laws);
6. that Product is not defamatory, unlawfully threatening or unlawfully harassing;
7. that Product is not obscene and does not contain child pornography and does not constitute or contain material that is adult in nature or harmful to person under the age of 18 years;
8. that Product does not contain any content that may be considered as prohibited or potentially prohibited content for the purposes of the Broadcasting Services Act 1992 (Cth);
9. that Product does not contain viruses or other computer codes, files or programs which are designed to limit or destroy the functionality of other computer software or hardware;
10. that Product would not create liability for Walmedia, LLC or cause us to lose (in whole or in part) the services of its ISP or other suppliers; and
11. that Product would not cause Walmedia, LLC to violate any applicable law, statute, ordinance or regulation by making it available on the Sites.

As a Seller, you must:

1. ensure all copies of your Products bear a notice of ownership of the intellectual property rights in your Products;
2. not offer to or sell to Members any of your Products that have not been approved by Walmedia, LLC in accordance with this clause 2;
3. notify us of any information which may affect or assist in sales of your Product(s);
4. provide us with full and accurate information regarding enhancements and new releases of your Products;
5. act in good faith at all times and provide such assistance and co-operation as we reasonably request; and
6. to the extent practicable, maintain registrations of all relevant intellectual property rights and of all names relating in any way to your Products.

You acknowledge and agree that any Product offered for sale by you on Sites must first be submitted to Walmedia, LLC to enable it to check the quality of the Product and the information provided with the Product.

Walmedia, LLC may refuse, in its sole discretion, to allow you to offer the Product for sale on a Site. Walmedia, LLC is not required to give reasons for refusing to allow you to offer a Product for sale on a Site.

You acknowledge and agree that If Walmedia, LLC determines, in its absolute discretion, or is notified by a third party, that a Product that you offer for sale on a Site does not comply with any applicable laws and/or these Membership Terms, Walmedia, LLC will disable your Member Account and Member Ledger and withhold all amounts that you may have earned from the sale of the relevant Product until the earlier of:

• any dispute in relation to the Product has been resolved to the satisfaction of Walmedia, LLC; and
• the expiry of two years from the date your Member Account and Member Ledger is disabled.

If after two years, the dispute has not been resolved, Walmedia, LLC will pay amounts standing to your credit in your Member Ledger to you via PayPal.

You acknowledge and agreed that Walmedia, LLC will, in its sole discretion, determine the fee payable for each Product on the Sites.

You acknowledge and agree that Walmedia, LLC may, at its sole discretion, elect at any time to remove your Products from a Site without notice to you. Walmedia, LLC is not responsible for any loss that you may suffer as a result a Product being removed from any of the Sites by Walmedia, LLC.

Walmedia, LLC is not liable for any loss suffered by you as a result of a Buyer making use of a Product that you offer for sale on a Site contrary to the conditions on which the Product was sold to the Buyer.

All Sellers on UpThemes.com must be Exclusive Sellers, which means that you agree only to sell your Products through the Sites and not through other web sites or mediums.

You agree that any Product made available for sale on UpThemes.com cannot be removed and will be updated and maintained by Walmedia, LLC. This is to ensure that all purchasers continue to have access to lifetime theme updates, as promoted by UpThemes.com.

As an exclusive seller, you are bound by these Membership Terms including the terms of clause 2 which sets out the obligations of Sellers generally.

You agree and acknowledge that Walmedia, LLC may use your Product (or part of a Product) from time to time to promote the Sites, including on a features page on a Site itself.

3. Commissions

If one or more of your Products is sold over the Sites, Walmedia, LLC will credit your Member Ledger with the balance of the fee received from the Buyer (that is the gross fee less Walmedia, LLC’s commission).

You authorize Walmedia, LLC to collect and distribute such fees and commissions on your behalf.

Walmedia, LLC’s commission for each of your Products that are sold through UpThemes.com will be calculated at a rate of 60%. Member commissions will increase by 1% if Product sales reach at least $4,000 USD over any 3 month period (up to a maximum of 70% Member commission).

You agree that any Product may be offered to Theme Club Members at Walmedia, LLC’s sole discretion and you are not entitled to any commissions from Theme Club Membership fees.

Commission rates may be varied by Walmedia, LLC at its sole discretion, from time to time.

Any changes to the commission rates by Walmedia, LLC will take effect on and from the date on which notice of the variation is posted by Walmedia, LLC on the Sites.

4. Referrals

If you are both an affiliate and a Seller, you are only eligible to receive the exclusive seller commission.

5. Prohibited Conduct

You warrant that while using the Sites and the various services and features offered on or through the Sites, you will not:

1. use a false email address or impersonate any person or entity or misrepresent your affiliation with any other person or entity;
2. insert your own or a third party’s advertising, branding or other promotional content into any of the Site’s content, materials or services or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes; or
3. attempt to gain unauthorized access to other computer systems through the Sites.

You must not:

1. engage in “spidering”, “screen scraping,” “database scraping,” harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of users or other information from or through the Sites or the services offered on or through the Sites, including without limitation any information residing on any server or database connected to the Sites or the services offered on or through the Sites;
2. obtain or attempt to obtain unauthorized access to computer systems, materials or information through the Sites by any means;
3. use the Sites or the services made available on or through the Sites in any manner with the intent to interrupt, damage, disable, overburden, or impair the Sites or such services, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests;
4. use the Sites, content or services offered on the Sites for any purpose or activity of an illegal, fraudulent, obscene, offensive, personally offensive or defamatory nature;
5. use the Sites to distribute or make available any Product whose primary purpose is to facilitate the distribution of Products outside of the Sites;
6. use any mechanism, device software or script to affect the proper functioning of the Sites including taking any action which may infect the Sites with any routine, including (but not limited to) any virus, time bomb, trojan horse, worm, cancelbot or other computer routine that may damage, interfere with, delay, intercept or expropriate any system, data or personal information;
7. take any action which may interfere with, disrupt, manipulate, tamper with or otherwise abuse the Sites or networks connected to the Sites;
8. use the Sites or the Sites’ services or features in violation of Walmedia, LLC’s or any third party’s intellectual property or other proprietary or legal rights; or
9. use the Sites or the Sites’ services in violation of any applicable law.

You further agree that you must not attempt (or encourage or support anyone else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Sites or the Sites’ services, or any content of the Sites or any of its domains, or make any unauthorized use of the Sites or the Sites’ services or any content of the Sites or any of the domains of the Sites.

You agree that you must not use the Sites in any manner that could damage, disable, overburden, or impair the Sites or interfere with any other party’s use and enjoyment of the Sites or any of its services.

You must not obtain or attempt to obtain any materials or information through any means not intentionally made publicly available or provided for through the Sites.

Walmedia, LLC reserves the right, in its absolute discretion, to determine whether or not your use of the Sites or content or services available on the Sites complies with these Membership Terms.

Any commercial or promotional distribution, publishing or exploitation of the Sites, or any content, code, data or materials on the Sites, is strictly prohibited unless you have received the express prior written permission from Walmedia, LLC.

Other than as expressly allowed in these Membership Terms, and unless otherwise indicated in these Membership Terms, you may not download, post, display, publish, copy, reproduce, distribute, transmit, modify, perform, broadcast, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on or made available through the Sites.

6. Indemnification and Release

You are solely responsible (and agree that Walmedia, LLC has no responsibility to you or to any third party for) for, and you agree to indemnify and hold harmless Walmedia, LLC (as well as Walmedia, LLC’s affiliates, directors, officers, employees and agents) from any and all claims, liabilities, costs and expenses (including legal fees) arising in any way from, any of the following matters:

1. your use of the Sites;
2. any Products you sell or buy through the Sites;
3. your placement or transmission of any Product, message, content, information, software or other materials through the Sites;
4. your breach of any applicable related third party contract or terms of service
5. your breach of the law or of these Membership Terms.
6. Walmedia, LLC reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Walmedia, LLC’s defense of such claim.

7. Changes to Membership Terms

Walmedia, LLC may, at its sole discretion, revise or change these Membership Terms (in whole or in part) or the content of the Sites from time to time and at any time without notice to you.

Changes in the Membership Terms will be effective at the time notice of the change is posted by us on the Sites. It is your responsibility to check for these notices.

Your continued use of the Sites and/or the content or services made available on or through the Sites after any changes to the Membership Terms are posted will be considered acceptance of those changes.

8. Relationship between the Parties

Nothing in these Membership Terms:

1. constitutes a partnership between the parties; and
2. except as expressly provided, makes their party an agent of another party for any purpose.

A party cannot in anyway or for any purpose:

1. bind another party; or
2. contract in the name of another party.

If a party must fulfill an obligation and that party is dependent on another party, then that other party must do each thing reasonably within its power to assist the other in the performance of that obligation.

9. Suspension or Termination

Walmedia, LLC may suspend or terminate your registration as a Member and deny you access to your Member Account immediately if:

1. you breach these Membership Terms or any other terms and conditions, agreements or rules governing the Sites;
2. Walmedia, LLC is unable to verify or authenticate any information you provide to us as part of your original application or in the course of using the Sites; or
3. Walmedia, LLC believes that your actions may cause legal liability for you, our other Members or us.
4. Should Walmedia, LLC elect to suspend, terminate or restrict your Membership in any way, you may be prohibited from accessing the Sites temporarily or permanently. In either case, you must not apply for a new Member account.

10. Notices

Any notice given in accordance with these Membership Terms will be correctly given if it is in writing and is emailed to a party to the email address that that party has nominated or any other email address as may be notified for the purpose of the service of notices.

A notice will be deemed to have been given on the date of delivery.

11. Applicable Laws

If you make use of the Sites, or the Products, content, code, data or materials on the Sites or available through the Sites, except as otherwise provided for in these Membership Terms, you may breach intellectual property laws (including copyright) and other state and federal laws of United States and other countries and may be subject to liability for such unauthorized use.

We control and operate the Sites from our offices in United States. We do not represent that materials on the Sites are appropriate or available for use in other locations. Persons who choose to access the Sites from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.

The laws of Missouri, United States governs these Membership Terms. Each of Walmedia, LLC and the Member irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Missouri, United States.