Terms of Service

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Last Modified: March 30, 2010

The following is a binding agreement between Clamshell Studios LLC (hereinafter referred to us “Clamshell Studios”, “we” or “us”) and the person or entity responsible for creating a hosting account (“you”). Creating an account with us constitutes an agreement to these terms.

Account Setup / Email on file
We will setup your account after we have received payment and we and/or our payment partner(s) have screened the order(s) in case of fraud. It is your responsibility to provide us with an email address which is not @ the domain(s) you are signing up under. If there is ever an abuse issue or we need to contact you, the primary email address on file will be used for this purpose. It is your responsibility to ensure the email address on file is current or up to date at all times. If you have a domain name registered with Clamshell Studios, it is your responsibility to ensure that the contact information for your domain account and your actual domain name(s) is correct and up-to-date. Clamshell Studios is not responsible for a lapsed registration due to outdated contact information being associated with the domain. If you need to verify or change this information, you should contact our sales team via email. Providing false contact information of any kind may result in the termination of your account. In dedicated server purchases or high risk transactions, it will be necessary to provide government issued identification and possibly a scan of the credit card used for the purchase. If you fail to meet these requirements, the order may be considered fraudulent in nature and be denied.

Transfers
We will make every effort to help you move your site to our server. However, transfers are provided as a courtesy service, and we can not make guarantees regarding the availability, possibility, or time required to complete an account transfer. Each hosting company is configured differently, and some hosting platforms save data in an incompatible or proprietary format, which may make it extremely difficult if not impossible to migrate some or all account data. We will try our best, but in some cases we may be unable to assist you in a transfer of data from an old host.

Content
All services provided by Clamshell Studios may only be used for lawful purposes. The laws of the State of New Jersey and the United States of America apply.

The customer agrees to indemnify and hold harmless Clamshell Studios from any claims resulting from the use of our services.

Use of our services to infringe upon any copyright or trademark is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of anothers copyright will be expeditiously removed, or access to the material disabled. Any account found to be in repeated violation of copyright laws will be suspended and/or terminated from our hosting. If you believe that your copyright or trademark is being infringed upon, please email abuse@clamshellhosting.com with the information required. If the request is of a licensing issue, we may require further documentation.

Examples of unacceptable material on all accounts include, but may not be limited to:

» Topsites

» IRC Scripts/Bots

» Proxy Scripts/Anonymizers

» Pirated Software/Warez

» Image Hosting Scripts (similar to Photobucket or Tinypic)

» AutoSurf/PTC/PTS/PPC sites

» IP Scanners

» Bruteforce Programs/Scripts/Applications

» Mail Bombers/Spam Scripts

» Banner-Ad services (commercial banner ad rotation)

» File Dump/Mirror Scripts (similar to rapidshare)

» Commercial Audio Streaming (more than one or two streams)

» Escrow/Bank Debentures

» High-Yield Interest Programs (HYIP) or Related Sites

» Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme)

» Sale of any controlled substance without prior proof of appropriate permit(s)

» Prime Banks Programs

» Lottery Sites

» MUDs/RPGs/PBBGs

» Hateful/Racist/Harassment oriented sites

» Hacker focused sites/archives/programs

» Sites promoting illegal activities

» Forums and/or websites that distribute or link to warez/pirated/illegal content

» Bank Debentures/Bank Debenture Trading Programs

» Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)

» Mailer Pro

» Pornography

Clamshell Studios’ services, including all related equipment, networks and network devices are provided only for authorized customer use. Clamshell Studios’ systems may be monitored for all lawful purposes, including to ensure that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of Clamshell Studios’ system(s) constitutes consent to monitoring for these purposes.

Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control must be with expressed written consent from the third party. Clamshell Studios may, at its discretion, request and require documentation to prove access to a third party network or system is authorized.

We reserve the right to refuse service to anyone. Any material that, in our judgment, is obscene, threatening, illegal, or violates our terms of service in any manner may be removed from our servers (or otherwise disabled), with or without notice.

Failure to respond to email from our abuse department within 48 hours may result in the suspension or termination of your services. All abuse issues must be dealt with via troubleticket/email and will have a response within 48 hours.

If in doubt regarding the acceptability of your site or service, please contact us at abuse@clamshellhosting.com and we will be happy to assist you.

Potential harm to minors is strictly forbidden, including but not limited to child pornography or content perceived to be child pornography (Lolita):

Any site found to host child pornography or linking to child pornography will be suspended immediately without notice.

Violations will be reported to the appropriate law enforcement agency.

It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of installation method. When at all possible, set permissions on most directories to 755 or as restrictive as possible. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password. It is required that you use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change/update your password.

Zero Tolerance Spam Policy
We take a zero tolerance stance against sending of unsolicited e-mail, bulk emailing, and spam. "Safe lists" and purchased lists will be treated as spam. Any user who sends out spam will have their account terminated with or without notice.

Sites advertised via SPAM (Spamvertised) may not be hosted on our servers. This provision includes, but is not limited to SPAM sent via fax, email, instant messaging, or usenet/newsgroups. No organization or entity listed in the ROKSO may be hosted on our servers. Any account which results in our IP space being blacklisted will be immediately suspended and/or terminated.

Clamshell Studios reserves the right to require changes or disable as necessary any web site, account, database, or other component that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion.

Clamshell Studios reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee or any charges incurred for blacklist removal. This cost of the clean up fee is entirely at the discretion of Clamshell Studios.

Payment Information
You agree to supply appropriate payment for the services received from Clamshell Studios, in advance of the time period during which such services are provided. You agree that until and unless you notify Clamshell Studios of your desire to cancel any or all services received, those services will be billed on a recurring basis. This includes when accounts are suspended. When an account's invoices are paid outside of the 10 day grace period, invoices will not be automatically generated. However, after the customer notifies Clamshell Studios of his or intent to resume service, invoices will be manually generated and payment expected for the time the account was suspended.

Cancellations must be done in writing via the cancellation form provided. Once we receive your cancellation and have confirmed all necessary information with you via e-mail, we will inform you in writing (typically email) that your account has been canceled. Your cancellation confirmation may contain a ticket/tracking number in the subject for your reference, and for verification purposes. You should immediately receive an automatic "Your request has been received..." email with a tracking number. An employee will confirm your request (and process your cancellation) shortly thereafter. If you do not hear back from us, or do not receive the automatic confirmation email within a few minutes after submitting your cancellation, please contact us immediately via phone. We require that cancellations of service are done through the online form to (a) confirm your identity, (b) confirm in writing you are prepared for all files/emails to be removed, and (c) document the request. This process reduces the likelihood of mistakes, fraudulent/malicious requests, and ensures you are aware that the files, emails, and account may be removed immediately after a cancellation request is processed.

As a client of Clamshell Studios, it is your responsibility to ensure that your payment information is up to date, and that all invoices are paid on time. You agree that until and unless you notify Clamshell Studios of your desire to cancel any or all services received (by the proper means listed in the appropriate section of the Terms of Service), those services will be billed on a recurring basis, unless otherwise stated in writing by Clamshell Studios. Clamshell Studios reserves the right to bill your credit card or billing information on file with us. Clamshell Studios provides a 10 day grace period from the time the invoice is generated and when it must be paid. Any invoice that is outstanding for 10 days and not paid will result in a $10 late fee and/or an account suspension until account balance has been paid in full. The $10 late fee is applied in addition to whatever else is owed to Clamshell Studios for services rendered. Access to the account will not be restored until payment has been received.

It is the customer's responsibility to notify our sales team via email at sales@clamshellhosting.com after paying for a domain renewal and to ensure the email is received and acted upon. Domain renewal notices and invoices are provided as a courtesy reminder and Clamshell Studios cannot be held responsible for failure to renew a domain or failure to notify a customer about a domain's renewal.

Clamshell Studios reserves the right to change the monthly payment amount and any other charges at anytime.

Clamshell Studios has partnered with 2Checkout.com, the exclusive authorized retailer of goods and services provided by Clamshell Studios.

Backups and Data Loss
Your use of this service is at your sole risk. Our backup service is provided to you as a courtesy. Clamshell Studios is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Clamshell Studios’ servers. Backups will not be provided for accounts that have been suspended or terminated for any reason unless otherwise agreed to in writing by Clamshell Studios.

Cancellations and Refunds
Clamshell Studios reserves the right to cancel, suspend, or otherwise restrict access to the account at any time with or without notice.

Any abuse of our staff in any medium or format will result in the suspension or termination of your services.

Customers may cancel at any time via a cancellation form. Clamshell Studios gives you an unconditional 30 day money back guarantee on all hosting plans.

There are no refunds on administrative fees, install fees for custom software, domain name purchases, or late fees. Refund requests must be made in writing within 30 days of account creation to qualify. Refund requests must be mailed to Customer Service, c/o Clamshell Studios LLC, 32 Davids Lane, Little Egg Harbor, NJ 08087.

Only first-time accounts are eligible for a refund. For example, if you've had an account with us before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with us.

Violations of the Terms of Service will waive the refund policy.

Resource Usage
You may not:

a) Use 25% or more of system resources for longer then 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.

b) Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons, such as IRCD.

c) Run any type of web spider or indexer (including Google Cash / AdSpy) on shared servers.

d) Run any software that interfaces with an IRC (Internet Relay Chat) network.

e) Run any bit torrent application, tracker, or client. You may link to legal torrents off-site, but may not host or store them on our shared servers.

f) Participate in any file-sharing/peer-to-peer activities

g) Run any gaming servers such as counter-strike, half-life, battlefield1942, etc

h) Run cron entries with intervals of less than 15 minutes.

i) When using PHP include functions for including a local file, include the local file rather than the URL. Instead of include("http://yourdomain.com/include.php") use include("include.php")

INODES
The use of more than 250,000 inodes on any account may potentially result in a warning first, and if no action is taken future suspension. Accounts found to be exceeding the 100,000 inode limit will automatically be removed from our backup system to avoid over-usage. Every file (a webpage, image file, email, etc) on your account uses up 1 inode.

Sites that slightly exceed our inode limits are unlikely to be suspended; however, accounts that constantly create and delete large numbers of files on a regular basis, have hundreds of thousands of files, or cause file system damage may be flagged for review and/or suspension. The primary cause of excessive inodes seems to be due to users leaving their catchall address enabled, but never checking their primary account mailbox. Over time, tens of thousands of messages (or more) build up, eventually pushing the account past our inode limit. To disable your default mailbox, login to cPanel and choose "Mail", then "Default Address", "Set Default Address", and then type in: :fail: No such user here.

Backup Limit
Any ccount using more than 20 gigs of disk space will be removed from our off site weekly backup with the exception of Databases continuing to be backed up. All data will continue to be mirrored to a secondary drive which helps protect against data loss in the event of a drive failure.

Bandwidth Usage
You are allocated a monthly bandwidth allowance. This allowance varies depending on the hosting package you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month.

Indemnification
Customer agrees that it shall defend, indemnify, save and hold Clamshell Studios harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against Clamshell Studios, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Clamshell studios against liabilities arising out of; (1) any injury to person or property caused by any products sold or otherwise distributed in connection with Clamshell Studios; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products sold to customers from Clamshell Studios’ server.

Arbitration
By using any Clamshell Studios’ services, you agree to submit to binding arbitration. If any disputes or claims arise against Clamshell studios or its subsidiaries, such disputes will be handled by an arbitrator of Clamshell Studios’ choice. An arbitrator from the American Arbitration Association or the National Arbitration Forum will be selected in the state of New Jersey. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. You are also responsible for any and all costs related to such arbitration.

Disclaimer
Clamshell Studios shall not be responsible for any damages your business may suffer. Clamshell Studios makes no warranties of any kind, expressed or implied for services we provide. Clamshell Studios disclaims any warranty or merchantability or fitness for a particular purpose. This includes loss of data resulting from delays, no deliveries, wrong delivery, and any and all service interruptions caused by Clamshell Studios and its employees.

Disclosure to law enforcement
Clamshell Studios may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. We will cooperate fully with law enforcement agencies.

Changes to the TOS
Clamshell Studios reserves the right to revise its policies at any time without notice.