Terms of Use

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Last Modified: March 30, 2010

This website is operated by Clamshell Studios LLC (“Clamshell Studios”) and its corporate affiliates (collectively “us” or “we”). By accessing or using our website at www.clamshellhosting.com (“Site”), you (“User”) signify you have read, understand and agree to be bound by these Terms of Use (“Terms of Use” or “Agreement”), whether or not you are a registered member of Clamshell Studios. We reserve the right, at our sole discretion, to change, modify, add or delete portions of these Terms of Use on this page at any time without further notice. If we do this, we will post the changes to these Terms of Use on this page and will indicate at the top of this page the effective date for the revised Terms of Use. Your continued use of the Site after any such changes constitutes your acceptance of the new Terms of Use. If you do not agree to abide by these or future Terms of Use, do not use or access (or continue to use or access) the Site. It is your responsibility to regularly check the Site to determine if there have been changes to these Terms of Use and to review such changes.

PLEASE READ THESE TERMS OF USE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, AND A DISPUTE RESOLUTION CLAUSE THAT GOVERNS HOW DISPUTES WILL BE RESOLVED.

Registration Data/Account Security

In consideration of your use of the Site, you agree to (a) provide accurate, current and complete information about you as may be prompted by any registration forms on the Site (“Registration Data”); (b) maintain the security of your password and identification; (c) maintain and properly update the registration data and any other information you provide to Clamshell Studios, in order to keep it accurate, current and complete; and (d) be fully responsible for all use of your account and for any actions that take place using your account.

Proprietary Rights in Site Content/Limited License

All content on the Site and available through the Site, including designs, text, graphics, pictures, video, information, applications, software, music, sound and other filed, and their selection and arrangement (“Site Content”), are the proprietary property of Clamshell Studios, its users or its licensors with all rights reserved. No Site content may be modified, copied, distributed, framed, reproduced, republished, downloaded, scraped, displayed, posted, transmitted or sold in any form or by any means, in whole or in part, without Clamshell Studios' prior written permission. Provided you are granted access to the Site, you are granted a limited license to access and use the Site and the Site content and to download or print a copy of any portion of the Site content to which you have properly gained access solely for your personal, non-commercial use, provided you keep all copyright or other proprietary notices intact. You may not upload or republish Site content on any Internet, Intranet or Extranet Site or incorporate the information in any other database or compilation and any other use of the Site content is strictly prohibited. Such license is subject to these Terms of Use and does not permit use of data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Site or Site content other than as specifically authorized herein, without the prior written consent of Clamshell Studios, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in these Terms of Use shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication or otherwise. This license is revocable at any time without notice and with or without cause.

Trademarks

Clamshell Studios and other Clamshell Studios graphics, logos, designs, page headers, button icons, scripts and service named are trademarks or trade dress of Clamshell Studios in the United States and/or other countries. Clamshell Studios' trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated or used, in whole or part, without the prior written permission of Clamshell Studios.

User Conduct

You understand the Site is available for your personal, non-commercial use only. You represent, warrant and agree no materials of any kind submitted to the Site through your account will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material.

In addition, you agree not to:

use the Site in any unlawful manner or in any other manner that could damage, disable, overburden or impair the Site;

use automated scripts to collect information from or otherwise interact with the Site;

register for more than one (1) User account, register for a user account on behalf of an individual other than yourself or register for a sser account on behalf of any group or entity;

impersonate any person or entity or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;

solicit passwords or personally identifying information for commercial or unlawful purposes;

upload, post, transmit, share, store or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

intimidate or harass another;

upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or that would otherwise create liability or violate any local, state, national or international law;

create a false identity on the Site; or

upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Clamshell Studios, is objectionable or which restricts or inhibits any other person from using or enjoying the Site, or which may expose Clamshell Studios or its users to any harm or liability of any type.

We respect the intellectual property rights of others and we prohibit users from uploading, posting or otherwise transmitting on the Site any materials that violate another party’s intellectual property rights. When we receive proper Notification of Alleged Copyright Infringement, we promptly remove or disable access to the allegedly infringing material and terminate the accounts of repeat infringers as describes herein in accordance with the Digital Millennium Copyright Act. If you believe any material on the Site infringes upon any copyright which you control or own, you may send a written notification of such infringement to the Clamshell Studios office.

Repeat Infringer Policy

In accordance with the Digital Millennium Copyright Act and other applicable law, Clamshell Studios adopted a policy of terminating, in appropriate circumstances and at Clamshell Studios' sole discretion, members who are deemed to be repeat infringers. Clamshell Studios may also, at its sole discretion, limit access to the Site and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Third-Party Websites and Content

The Site may contain (or you may be sent through the Site) links to other websites (“Third-Party Sites”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third-parties (“Third-Party Applications, Software or Content”). Such Third-Party Sites and Third-Party Applications, Software or Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Clamshell Studios and Clamshell Studios is not responsible for any Third-Party Sites accessed through the Site or any Third-Party Applications, Software or Content posted on, available through or installed from the Site, including the content, accuracy offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Sites or the Third-Party Applications, Software or Content. Inclusion of, linking to or permitting the use or installation of any Third-Party Applications, Software or Content, you do so at your own risk and you should be aware that Clamshell Studios' terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Site to which you navigate from the Site or relating to any applications you use or install from the Third-Party Site.

Privacy

We care about the privacy of our users. You may click here to review our Online Privacy Statement. By using the Site, you are consenting to have your personal data transferred to and processed in the United States.

Disclaimers

Clamshell Studios is not responsible or liable in any manner for any User Content or Third-Party Applications, Software or Content posted on the Site or in connection with the Site, whether posted or caused by users of the Site, by Clamshell Studios, by third parties or by any equipment or programming associated with or used in the Site. Although Clamshell Studios provides rules for user conduct, Clamshell Studios does not control and is not responsible for what users post, transmit or share on the Site and is not responsible for any offensive, inappropriate, obscene, unlawful or otherwise objectionable content you may encounter on the Site or in connection with any User Content or Third-Party Applications, Software or Content. Clamshell Studios is not responsible for the conduct, whether online or offline, of any user of the Site.

The Site may be temporarily unavailable from time to time for maintenance or other reasons. Clamshell Studios assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to or alteration of user communications. Clamshell Studios is not responsible for any technical malfunction or other problems of any telephone network or service, computer systems, servers or providers, computer equipment, software, failure of email on account of any technical problems or traffic congestion on the Internet or at any webSite or combination thereof, including injury or damage to the user’s or any other person’s computer or other hardware or software, related to or resulting from using or downloading materials in connection with the Web and/or in connection with the Site. Under no circumstances will Clamshell Studios be responsible for any loss or damage, including any loss or damage to any User Content or personal injury or death, resulting from anyone’s use of the Site, any User Content or Third-Party Applications, Software or Content posted on or through the Site or transmitted to users or any interactions between users of the Site, whether online or offline.

THE SITE, AND THE SITE CONTENT ARE PROVIDED “AS-IS” AND Clamshell Studios DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Clamshell Studios CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE SITE. Clamshell Studios DOES NOT REPRESENT OR WARRANT THAT SOFTWARE, CONTENT OR MATERIALS ON THE SITE OR ANY PLATFORM APPLICATIONS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE OR THAT THE SITE OR ITS SERVERS OR ANY PLATFORM APPLICATIONS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THEREFORE, YOU SHOULD EXERCISE CAUTION IN THE USE AND DOWNLOADING OF SUCH SOFTWARE, CONTENT OR MATERIALS AND USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES. WITHOUT LIMITING THE FOREGOING, YOU UNDERSTAND AND AGREE YOU DOWNLOAD OR OTHERWISE OBTAIN CONTENT, MATERIAL, DATA OR SOFTWARE FROM OR THROUGH THE SITE AND ANY PLATOFROM APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR YOUR USE THEREOF AND ANY DAMAGES TO YOUR COMPUTER SYSTEM, LOSS OF DATA OR OTHER HARM OF ANY KIND THAT MAY RESULT.

Clamshell Studios reserves the right to change any and all content, software and other items used or contained in the Site offered through the Site at any time without notice. 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, or any affiliation therewith, by Clamshell Studios.

Limitation on Liability

IN NO EVENT SHALL Clamshell Studios OR ITS DIRECTORS, EMPLOYEES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING FOR ANY LOST PROFITS OR LOST DATA ARISING FROM YOUR USE OF THE SITE OR ANY OF THE SITE CONTENT OR OTHER MATERIALS ON, ACCESSED THROUGH OR DOWNLOADED FROM THE SITE, EVEN IF Clamshell Studios IS AWARE OR HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, Clamshell Studios' LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO Clamshell Studios, BUT IN NO CASE SHALL Clamshell Studios' LIABILITY EXCEED $1,000. YOU ACKNOWLEDGE IF NO FEES ARE PAID TO Clamshell Studios YOU SHALL BE LIMITED TO INJUNCTIVE RELEIF ONLY, UNLESS OTHERWISE PERMITTED BY LAW, AND SHALL NOT BE ENTITLED TO DAMAGES OF ANY KIND FROM Clamshell Studios, REGARDLESS OF THE CAUSE OF ACTION.

Termination

Clamshell Studios may terminate your membership and/or prohibit you from using or accessing the Site (or any portion, aspect or feature of the Site) for any reason or no reason at any time in its sole discretion, with or without notice.

Governing Law; Venue and Jurisdiction

By visiting or using the Site, you agree that the laws of the State of New Jersey, without regard to principles of Conflicts of Laws, will govern these Terms of Use and any dispute of any sort that might arise between you and Clamshell Studios or any of our affiliates. You agree not to commence or prosecute any action in connection therewith other than in the state and federal courts of New Jersey and you hereby consent to and waive all defenses of lack of Personal Jurisdiction and Forum Non Conveniens with respect to venue and jurisdiction in the state and federal courts of New Jersey.

Indemnity

You agree to indemnify and hold Clamshell Studios, its subsidiaries and affiliates and each of their directors, officers, agents, contractors, partners and employees, harmless from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of or in connection with your use of the Site, your conduct in connection with the Site or with other users of the Site or any violation of these Terms of Use or of any law or the rights of any third party.

Submissions

You acknowledge and agree that any questions, commences, suggestions, ideas, feedback or other information about the Site (“Submissions”), provided by you to Clamshell Studios are non-confidential and shall become the sole property of Clamshell Studios. Clamshell Studios shall own exclusive rights, including all intellectual property rights and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to you.

Definitions and Constructions

Unless otherwise specified, the terms “includes,” “including,” “e.g.,” “for example” and other similar terms are deemed to include the term “without limitation” immediately thereafter. Terms used in these Terms of Use with the initial letter capitalized will have the meaning attributed to them in these Terms of Use.

Entire Agreement

These Terms of Use constitute the entire agreement between you and Clamshell Studios regarding the use of the Site, superseding any prior agreements between you and Clamshell Studios relating to your use of the Site.

Non-Waiver

The failure of Clamshell Studios to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision in that or any other instance.

Severability

If any provision in these Terms of Use is held invalid, the remainder of these Terms of Use shall continue in full force and effect. If any provision of these Terms of Use shall be deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

If you have any additional questions or concerns about these Terms of Use, please feel free to contact us at info@clamshellstudiosllc.com or Privacy Matters, c/o Clamshell Studios LLC, 32 Davids Lane, Little Egg Harbor, NJ 08087.

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