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Seashellz, Inc. d/b/a Virtually Articulated
General Terms and Conditions

Updated February 6, 2012

BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY SEASHELLZ, INC. YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. THESE TERMS AND CONDITIONS SUPERSEDE ALL EARLIER VERSIONS. Please read these terms and conditions carefully, as they describe your legal rights and obligations. This agreement shall become come effective as of the date of (1) your signature on or acceptance of this agreement, including your electronic signature, (2) the activation of your account or (3) your receipt of an e-mail from Seashellz, Inc. confirming your order, whichever happens first.
  1. Definitions:
    1. “Seashellz”, "us," "we," "our" and grammatical variants thereof shall collectively refer to Seashellz, Inc., a corporation organized and existing under the laws of the State of Florida, United States of America, and its assigns and successors in interest.
    1. "You", "your" and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
    1. "Parties" shall collectively refer to Seashellz, Inc. and you.
    1. "Services" shall mean the products and services provided by Seashellz, Inc. and/or our affiliates, agents, or assigns at any given time, including but not limited to web hosting, e-mail, domain registration, and any associated support services, which services may be changed, amended, and/or otherwise altered at any time at the sole discretion of Seashellz, Inc.
    1. "Equipment" shall mean computer and telecommunications device, Internet access and/or transmission rights owned, operated, and/or maintained by Seashellz, Inc. and/or our affiliates, agents, or assigns which provide the services of Seashellz, Inc.
    1. "Web Site Space" shall mean a quantity of computer memory allocation, as outlined in the program description for your services, generally located on one or more computer storage devices and measured in units of megabytes (MBs) wherein data comprising your web site is stored and is accessible by Seashellz’s web server equipment.
    1. "Your Web Site" shall mean data transmittable via the Internet by Seashellz which is stored in your web site space.
    1. "Your Data" shall mean any data, including but not limited to advertisements, documents, e-mails, images, movies, web pages, or other content, related to your use of the Seashellz services and stored on or transmitted by the Seashellz equipment.
    1. "Bandwidth" shall refer to the rate of data transmission in bits per second using Seashellz’s equipment.
    1. "Fee" shall mean monies and other consideration you are obligated to pay to Seashellz, Inc. for the right to use the Seashellz services and bandwidth subject to the terms and conditions of this agreement and of the particular Seashellz services for which you have registered, as outlined on the then-current fee schedule.
    1. "Fee Schedule" shall mean the fees for the Seashellz services as published on the Seashellz website at www.virtuallyarticulated.com and/or https://idp.securepaynet.net/login.aspx?SPKey=SPDCC-M1PWDCCWEB05&myaUrl=%2fdefault.aspx&sa=%26prog_id%3d464078&prog_id=464078, which may be modified at any time at Seashellz’s sole discretion pursuant to the provisions
      of paragraph 21.
    1. "Payment Account" shall refer to the credit card or Pay Pal account provided by you upon registration to pay for your services.
    1. "Suspend" or "Suspension" shall include the disabling of, releasing of, and/or placing of a registrar lock on your domain name and the cessation of transmission of data to or from your web site or via your services.
    1. "Laws" shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of your country of residence or the country in which you use or access the Seashellz services and the laws of any provinces, states or dependencies thereof.
  1. Authorization and Relationship of the Parties:
    1. Web Site and Graphic Design
      The named client is engaging Seashellz, Inc., as an independent contractor for the specific design project of developing and/or improving a website and/or other corporate image materials, hereinafter referred to as "design project" which may be installed on the client's account on an Internet Service Provider (ISP) / Web Presence Provider (WPP) computer, hereinafter refer to as "Hosting Service" if required to perform services. If required to perform services the client hereby authorizes Seashellz, Inc. to access this account and authorizes the Hosting Service to provide Seashellz, Inc. with "full access" to the client's account and any other programs needed for this web design project that are included as part of the client's service agreement/level.
    1. Web Hosting
      Seashellz, Inc. shall provide to you a non-transferable, revocable, non-sublicensable, non-exclusive and limited license to use the amount of web site space allocated to your services for your non-exclusive use for the exclusive purpose of storing your web site data and disseminating said data via the Internet through the use of Seashellz’s equipment for purposes consistent with this agreement. All use of Web Site Space and provision of services to you by Seashellz, Inc. shall be subject to all terms and conditions set forth herein. You may not attempt to expand or alter these rights or Seashellz’s services by entering into multiple agreements.
    1. Domain Name Registration
      Should you choose to register a domain name through Seashellz, Inc., we will register a second level domain name on your behalf, provided such domain name is available for registration. Seashellz, Inc.  acts only as an intermediary between you and the organization providing the domain name, and has no influence over the assignment of domain names.
    1. Services Rendered on a Non-Exclusive Basis
      Any and all services which are or may be provided to client by Seashellz, Inc. pursuant to this agreement, including the licensure of rights herein, are non-exclusive and nothing in this agreement shall limit or restrict Seashellz, Inc. from providing similar services and granting similar licenses to third parties, regardless of whether such parties are competitors of client. Nothing in this agreement shall limit or restrict Seashellz, Inc. from engaging in any activities similar to client’s or in competition with client.
  1. Right of Refusal: Seashellz, Inc. reserves the right to refuse to design or host a web site which we may judge as unfit or inconsistent with our morals, ethics or desired brand image due to content or otherwise. This includes, but is not limited to, sites containing adult-oriented material such as pornography, sites which promote hatred towards persons of  any race, nation, ethnic group, religion or sexual orientation, sites which do or may infringe copyrights, trademarks, patents, or right of publicity, or which are or may violate the laws of the United States of America or any State, Commonwealth or territory thereof, and sites which are defamatory or disparaging of Seashellz or any third party. Seashellz, Inc. further reserves the right to refuse to serve the needs of an existing client making inappropriate or unreasonable use of our services. Inappropriate or unreasonable includes, but is not limited to, materials whose nature and/or volume compromises the ability of our servers to provide web presence for other users, unreasonable consumption of disk space, internet link bandwidth, CPU, and memory usage. Examples of inappropriate or unreasonable use include, but are not limited to, Chat/IRC, web proxy and mailing list scripts, which are not allowed on our servers under any circumstances. Streaming media can be a drain on web server resources and therefore is not allowed. CGI based message forums which use flat file databases are often found to use excessive system resources, to avoid disappointment please use a PHP/ASP message forum. The use of web cam applications that maintain a constant FTP connection uploading an image at regular intervals is forbidden. If you are unsure about content you intend to place on our servers, please check with us before you do. Seashellz, Inc. reserves the right to determine what constitutes acceptable use, and further reserves the right to remove the offending material and terminate our contract with the offending party without compensation, refund or reimbursement.
  1. Acceptable Use: An acceptable use policy is part of these terms and conditions of hosting any information associated with the domain name. This is necessary because the proliferation of abusive electronic mail and practices generated by a minority of the Internet users can interrupt services. The exhibit with the description of the acceptable use policy is posted on our website and the exhibit is part of these terms and conditions. Certain types of content are not permitted to be hosted on our servers. Content relating to Hacking, Cracking, Warez and IRC is not allowed. Software downloads may only be hosted if you are the writer and copyright owner of the software, all other software including freeware, shareware and trial software is forbidden. Audio and video downloads may only be hosted if you are the creator and copyright owner of the work. The use of our servers to send bulk email whether opt-in or otherwise, and the use of bulk email to promote a site on our network is strictly forbidden. The acceptance of web hosting services shall be deemed as a contractual agreement between the client and Seashellz, Inc. Our servers may not be the source, intermediary or destination address involved in the transmission of spam. Spam is considered to be any mass unsolicited message in the mediums of newsgroups and email. We reserve the right to terminate any accounts, at any time and without  compensation, refund or reimbursement, where the user has made inappropriate or unreasonable use of any of Seashellz, Inc. services.
  1. Copyright and Trademarks: The client unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks, or other materials or artwork specified or furnished to Seashellz, Inc. for inclusion in the web design project are owned by the client, or that the client has permission from the rightful owner to use each of these elements, and will hold harmless, protect and defend Seashellz, Inc. and its subcontractors from any claim, liability, debt, obligation or suit arising from the use of such elements specified or furnished by the client.
  1. Completion Date: Seashellz, Inc. and the client must work together to complete the web and/or graphic design project in a timely manner. We agree to work expeditiously to complete the design project within 2 to 3 weeks, but no later than 30 days after the client has submitted all necessary materials. Content should be provided by the client within 14 days of the date this agreement is signed. If the client does not supply Seashellz, Inc. with complete text and graphic content for, or approve completed design of, this design project within 30 days of the date this agreement is signed, the entire amount of the agreement becomes due and payable, and any work going forward will be charged at standard editing rates. If the client still has not submitted all the required contents within 60 days after signing this agreement, an additional continuation fee of 10% of the total agreement price will be assessed each month until the design project is published or the client cancels the design project in writing. If client should decide to cancel, all monies paid up to the cancellation date are non-refundable.
  1. Project Delivery: The design project delivery shall be completed upon receipt of the payment associated with delivery. Delivery may be accomplished by publishing, electronic transfer, or physical media. The client understands that Seashellz, Inc. may not be providing any hosting services in connection with a web design project. Hosting services may require a separate contract. The client will be solely responsible for all hosting service charges. The client assumes all responsibility for the use and functionality of the web design project.
  1. Publishing: If the Project Delivery includes publishing, Seashellz, Inc. will make a good faith effort to accommodate client's requested method of publishing. In the event Seashellz, Inc. is not able to accommodate the requested method of publishing the following provisions apply: If the hosting service has FrontPage 98/2000 extensions installed, Seashellz, Inc. may use FrontPage 98/2000 to publish to the site. If the hosting service does not have FrontPage 98 extensions installed, Seashellz, Inc. may use FTP or SCP to publish to the site. If publishing to a hosting service is not feasible the information may be delivered on CDROM.
  1. Web and Graphic Design Project Copyright: Original website and/or graphic design content specifically requested by the client shall, once all required payments have been made under this Agreement and for any related services, be deemed works for hire and shall be the intellectual property of the client. Rights to clipart, photos, graphics, source code, work-up files and computer programs that are not specifically requested by  client and designed by Seashellz under work for hire are not transferred to the client, and remain the property of their respective owners. Seashellz, Inc. and its subcontractors retain the right to display graphics and other web design elements as examples of their work in their respective portfolios, advertising and promotional materials.
  1. Web Site Maintenance: Simple text/content edits will be billed hourly at a rate of $50.00 per hour, rounded to the nearest half-hour, with a minimum charge of one hour. Design edits will be billed hourly at a rate of $80.00 per hour, rounded to the nearest half-hour, with a minimum charge of one hour. Design edits include anything that is not simple text or content, including, but not limited to adding an image button, adding a button to the navigation bar, changing the color scheme, uploading images and editing flash content. All edits shall be requested in writing, via email or online request form found at www.virtuallyarticulated.com. Once a Seashellz representative has provided an estimated cost for the requested edits, payment in full must be made, via Intuit Payment Network (https://ipn.intuit.com/pay/SeashellzInc) or PayPal, prior to the commencement of such edits being made.
  1. Payments:
    1. All payments will be made promptly in US funds, via Business Check, Intuit Payment Network (https://ipn.intuit.com/pay/SeashellzInc) or PayPal, unless other terms have been agreed upon in writing by both parties. Payments processed by Pay Pal are subject to Pay Pal's terms and conditions of service, and Seashellz, Inc. makes no representations or warranties with respect to those services. Seashellz, Inc., at its sole discretion, may add, delete, or modify the methods by which customers can pay for our services at any time without prior notice. All payments made by credit card or PayPal will be assessed a transaction fee in the amount of 3% of the payment amount.
    1. For all graphic and web design services, a 50% deposit is required at the time service is requested; with the balance due at the completion of the job, prior to finished product being released. For domain, hosting and editing, payment in full is due at the time of order. An additional charge will be added, to the extent allowed by law, for all payments which are uncollectible due to insufficient funds. Interest will be charged at 1.5% per month (18% per year), or the maximum amount allowed by law, on all unpaid balances. If collection services are necessary, the client agrees to pay all fees, including without limitation reasonable attorneys’ fees and court costs and expenses, incurred through the collection process. Seashellz, Inc. reserves the right to remove any web design project from viewing on the Internet until all payments due have been made.
  1. Web Hosting Services:
    1. Unless provided otherwise in the specifications for your services, bandwidth use, including but not limited to data retrieval from your web site, e-mail traffic, and downloads, shall not exceed six gigabytes per month. Your combined mailbox use per account shall not exceed twenty-five gigabytes per month. You are responsible for monitoring your bandwidth and mailbox use, and agree to check your e-mail and download or delete your e-mail on a regular basis in order to ensure compliance with this paragraph. Should you exceed your mailbox use limits Seashellz may return or reject any and all e-mails sent to you to the originating sender without liability to you. You agree that Seashellz, Inc. may debit the payment account for usage in excess of permitted amounts at the rates set forth in the then-current fee schedule.
    1. You are responsible for backing up Your Data on your own computer. Seashellz, Inc. does not warrant or otherwise guarantee that it will back up your data or that data which has been backed up can be retrieved, and will not be responsible for any archiving or backup of your data. If any of your data is damaged, deleted, lost or corrupted in any way, or becomes otherwise unavailable due to termination or suspension of your account pursuant to this agreement or otherwise, Seashellz, Inc. will have no obligation or liability to you.
  1. Domain Name Services:
    1. The registration of your domain name is subject to the terms and conditions of the relevant third-party registrars, and is also subject to the terms of the Uniform Domain Name Dispute Resolution Policy ("UDRP"). You agree that, if the registration or reservation of your domain name is challenged by a third party, you will be subject to the provisions of the UDRP in effect at the time of the dispute. Seashellz, Inc. assumes no liability in the event the domain name is unavailable or is otherwise not assigned to you, and does not warrant or guarantee that assigned domain names do not infringe the rights of third parties, or that you will retain the rights to that domain name for any period of time. Upon payment in full of any and all registration fees, Seashellz, Inc. shall not own or otherwise legally control any domain name registered on your behalf. You agree that you are responsible for any and all fees and costs related to the registration of your domain name, and you authorize Seashellz, Inc. to debit the payment account for any such fees and costs. Should the payment account provider fail to honor such debit, Seashellz, Inc. may, at its sole discretion, release, cancel, or otherwise dispose of, sell or utilize your domain name as it sees fit, with no obligation to you whatsoever.
    1. You acknowledge and agree that Seashellz, Inc. or its agents, assignees or licensees may associate any data of any kind, at Seashellz’s sole discretion, with the domain name registered in association with your web site or any URL incorporating said domain name until you replace such data with your web site, at such times as your web site is no longer available, and upon termination for any reason, for as long as Seashellz, Inc. or our agents, assignees or licensees continue to be listed as the hosting entity with the domain name registry used to register such domain name. This paragraph shall apply to any and all web pages generated by Seashellz, Inc. or its affiliates, including but not limited to “not found” error pages.
    1. You represent and warrant that your domain name, brand names, goods and services, and website content do not infringe the copyright, trademark, or any other intellectual property rights of any person or company and that your domain name domain name, brand names, goods and services, and website content are otherwise in compliance with the terms of this agreement, in particular the provisions of Paragraph 5.
    1. You shall inform Seashellz, Inc. of any claim or potential claim against your domain name, domain name, brand names, goods or services, or website content including but not limited to the initiation of a dispute under the UDRP, within five days of notification of same. Should you lose your right to use a domain name which is used in connection with the Seashellz services, whether through expiration of the domain name, judicial decree, administrative decisions of the UDRP or otherwise, you agree to inform Seashellz immediately of the party to whom the domain name is to be transferred and you authorize Seashellz, Inc. to take any and all action necessary to effect such transfer.
    1. Seashellz, Inc. will accept the transfer of domain names from other registrars, provided however, that you will be required to pay for an initial year of registration fees upon transfer. Domain names which have been prepaid for a period of more than one year but with fewer than nine years remaining may also be transferred, subject to the payment of an initial year of registration fees. An additional year will be added on to the remaining term of any transferred domain. Domain names with more than nine years remaining on the registration period may not be transferred. Upon the expiration of the one-year extension you will be charged an annual renewal fee for any subsequent renewal period. By requesting the transfer of your domain name you authorize Seashellz, Inc. to debit your payment account for the one-year registration fee and any related fees or charges.
  1. Privacy:
    1. It is our policy to respect your privacy. Seashellz, Inc. will not monitor, edit or disclose any personal information about you or your account, including its contents, without prior consent unless we deem it necessary, in our sole discretion to: comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas or discovery, search warrants, national security letters, or other requests for information from law enforcement officials; protect and defend the rights or property of Seashellz, Inc. or its officers, agents, affiliates and licensees; enforce this agreement; or protect the interest of other Seashellz, Inc. customers.
    1. Your IP address is transmitted and recorded with each message you send using our hosting services. Seashellz, Inc. does provide certain information in aggregate form collected from and relating to you to third persons such as advertisers. For a more detailed description of the types and uses of personal information collected from you, please read the Seashellz Privacy Policy.
  1. No Warranties: Seashellz, Inc. assumes no responsibility for any information loaded to our client’s accounts or servers, nor do we warrant that the functions contained in the web design and/or hosting project will be uninterrupted or error free. The entire risk as to the quality and performance of the web design project is with the client. In no event will Seashellz, Inc. be liable to the client or any third party for any damages, including, but not limited to service interruptions caused by Acts of God or any other circumstances beyond our control, any lost profits, lost savings or other indirect, incidental, consequential or special damages arising out of the operation of or inability to operate this web design project, failure of any service provider, of any telecommunications carrier, of the Internet backbone, of any Internet servers, your or site visitor's computer or Internet software, even if Seashellz, Inc. has been advised of the possibility of such damages. The client will fully indemnify, defend and hold Seashellz, Inc. harmless from any claims resulting from the use of the service which is alleged to cause damages to the client or to any other party.
  1. Electronic Commerce Laws: The client agrees that the client is solely responsible for complying with such laws, taxes and tariffs, and will indemnify, hold harmless, protect, and defend Seashellz, Inc. and its subcontractors from any claim, suit, penalty, tax or tariff arising from the client's exercise of Internet electronic commerce.
  1. Illegal Activities. Seashellz, Inc. need not perform, for any client, any services whatsoever that are not in full compliance with all local, state and federal regulations and laws.
  1. Pricing/Fee Schedule: Seashellz, Inc. reserves the right to alter prices at any time without notice. If a client has ordered any services from Seashellz, Inc. prior to a change in prices, that particular contract will not be subject to any increase, but any subsequent orders may be subject to an increase.
  1. Suspension: Seashellz, Inc. may suspend performance under or terminate this agreement, cease transmission of data associated with your domain name immediately and without notice, permanently remove your data from our equipment, and take any other actions it deems necessary, in its sole discretion, immediately and without notice, to comply with the relevant laws if it is informed or otherwise believes, in its sole discretion, that your web site violates the intellectual property rights of any third party or is otherwise the subject of a DCMA take-down notice or of a bona fide dispute. As more completely set forth in other paragraphs throughout this agreement, you waive any and all claims you may have, now and forever, against Seashellz, Inc. relating to the content, use, and operation of your web site and agree to indemnify, defend and hold Seashellz, Inc. harmless from and against any such claims.
  1. Entire Agreement: This agreement constitutes the sole agreement between Seashellz, Inc. and the client regarding this web design project. This agreement supersedes any prior written or oral agreements between the parties.
  1. Change Orders and Pricing.  Any additional work not specified in this contract must be authorized by a written request. All prices specified in this contract will be honored for 3 months from date offered. Acknowledgement of agreement after that time will require a review of current pricing and new agreement.
  1. Amendments and Modifications:
    1. This agreement may be modified or amended only if the amendment is made in writing by Seashellz, Inc. and is signed by both parties. The client may not modify this agreement, in whole or part, and any such attempts to modify this agreement shall be deemed unenforceable.
    1. The general terms and conditions of Seashellz may be materially altered by Seashellz, Inc. by posting the new version of the agreement at www.virtuallyarticulated.com, and if posted in this manner, shall be effective immediately upon posting such notice. In the event that Seashellz, Inc. does materially change the terms of this agreement, customer shall accept and be bound by such changed terms, unless opting to terminate the agreement within thirty days of the posting of such notice.
  1. Assignment: This agreement shall not be assigned by client without the written consent of the Seashellz, Inc., but Seashellz, Inc. may assign, delegate or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
  1. Severability: If any provision of this agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed written, construed, and enforced as so limited.
  1. Waiver of Contractual Right: The failure of either party to enforce any provision of this agreement shall not be construed as a waiver of limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this agreement. Any waiver, to be effective, must be set forth in a writing signed by the party to be charged with waiving its rights or incurring additional obligations.        
  1. Notices: Any notice, direction or other communication given under this Agreement shall be in writing and given by sending it via e-mail and via regular mail. In the case of e-mail, valid notice shall only have been deemed to have been given when an electronic confirmation of delivery has been obtained by the sender, in the case of notice to us to info@seashellz.com, in the case of notice to you, at the e-mail address provided by you in this agreement, in your WHOIS record for the website domain name or as updated from time to time. Mail shall be sent to Seashellz, Inc., 873 West Bay Drive #129, Largo, FL 33770 and to you at the mailing address provided in this agreement or as updated in writing. Any e-mail communication shall be deemed to have been validly and effectively given on the date of such communication, if such date is a business day and such delivery was made prior to 5:00 p.m. Eastern Standard Time and otherwise on the next business day. Any communication sent via regular mail shall be deemed to have been validly and effectively given 5 business days after the date of mailing.
  1. Term and Termination: Unless sooner terminated pursuant to other terms of this agreement, and except as otherwise provided in this agreement, this agreement shall be for an initial term of one month and shall be automatically renewed each month for additional one month periods. Seashellz, Inc. may accept prepayment for services to be provided under this agreement, but such acceptance shall not modify or extend the term of this agreement.
  1. Governing Law: This agreement shall be governed by and interpreted and enforced in accordance with the laws of the Sate if Florida and the federal laws of the United States of America applicable therein without reference to rules governing choice of laws. Any action relating to this agreement must be brought in state or federal courts located in, or having jurisdiction over, Pinellas County Florida and you irrevocably consent to the jurisdiction of those courts.
  1. Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the services of Seashellz, Inc. or this agreement must be filed within one year after such claim or cause of action arose or shall be forever barred.
  1. Indemnification.   In the event that client’s use of Seashellz’ services or facilities, registration of its domain name, or operation of client’s website causes any claim, debt, demand, liability or law suit to be asserted against Seashellz, client will indemnify, defend and hold harmless Seashellz, its members, staff, employees and managers, from and against all costs and expenses, including reasaonble attorneys’ fees, litigation costs and expenses, and arbitration costs and expenses, arising from or relating to that claim, debt, demand, liability or law suit.    
 

 

    
 
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