@******: Your quote does not apply to someone creating a theme based on a MSN layout. That entire TOU has nothing to do with this issue, but deals exclusively with the use of MSN for communications.
A more appropriate point is #8, which says you can't use any of the information available from the MSN Web Sites for any purpose other than your personal use. I believe this theme is for personal use. Still a moot point, since this TOU doesn't apply to this situation.
However, there may be something else somewhere on the Microsoft sites that deals with this issue.