PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY AS THEY MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS WEB SITE. BY USING THE CPA Gardens SERVICE, YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THESE TERMS AND CONDITIONS, YOU SHOULD NOT USE THE SERVICE.
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ACCEPTANCE OF TERMS
Your use of CPA Gardens Services is governed by these Terms of Service and the CPA Gardens Privacy Policy. The terms contained under "Additional Terms" apply only if you elect to purchase the particular services described there. If you are purchasing Services on behalf of a company or other legal entity, you are representing that you have authority to bind that entity to these Terms of Service. Unless you have also entered into a contract with us, these Terms are the complete and exclusive agreement between you and us regarding the Services purchased by you and supersede and replace any oral or written prior agreement, understanding, or communication. We reserve the right to update and change these Terms from time to time without notice to you. By using any of our Services, you signify your acceptance of these Terms. If you do not agree to any of these Terms, do not use our Services.
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SUBSCRIPTION TERM
These Terms are effective as soon as you click the "I agree" button (the "Effective Date"). The "Initial Subscription Term" will be for the period specified in your order and commences on the Effective Date. At the end of your Initial Subscription Term, your subscription automatically renews for successive renewal subscription terms (each a "Renewal Subscription Term") equal in duration to the Initial Subscription Term at our then current subscription fees unless you elect not to renew your subscription as further described below under "Cancellation". The "Initial Subscription Term" and any "Renewal Subscription Agreement" are referred to herein as the "Subscription Term").
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FEES AND PAYMENT
Most of our Services require the payment of fees. If you sign up for a fee-based Service, your use of the Services will be subject to the fee schedule applicable to your subscription. We reserve the right to change our subscription fees. At the end of your Subscription Term, your subscription will automatically renew at CPA Gardens then current prices.
All fees are exclusive of all taxes, levies and duties imposed by taxing authorities and you shall be responsible for payment of such taxes. You agree to pay for any taxes that are applicable to your use of the Services and payments you make to us.
Other than for use of one of our free Services, you must provide us with a valid credit card and non-disposable email address. We will charge your credit card for your subscription fees either monthly or annually in advance (depending on your subscription). We will also charge your credit card for any usage based fees (if applicable to your subscription). If we are unable to effect payment via your credit card, we will attempt to notify you via email. We may disable your access to the Services until payment is received. You agree to pay reasonable attorneys' fees and court costs incurred by us to collect any unpaid amounts owed by you. Amounts paid for the Services are not refundable. Until Your Subscription to the Service is terminated, You acknowledge and understand that we will continue to charge you for the Services regardless of whether the Services are used or not until you notify us to cancel your subscription. You must pay for an entire subscription for which you order regardless if you use all the Services you are entitled to or cancel your subscription during the term.
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CPA GARDENS PRIVACY POLICY
How we collect, protect and use your registration data and certain other information about you are contained in our Privacy Policy which is part of these Terms.
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YOUR RIGHTS IN YOUR WEBSITE CONTENT
You represent to us that you have all necessary rights in your Content to permit you to use the Services without infringing the rights of any copyright owners, violating any applicable laws or violating the terms of any license or agreement to which you are bound. You retain ownership of all right, title and interest in and to all your Content. You give us permission to host your website and give us the right to access, retain, use and disclose your Content solely for the purpose of providing Services. This permission exists only for as long as you continue to use our hosting Service. We respect the intellectual property rights of others and expect you to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (the "DMCA") and our response to such notices may include removing or disabling access to any allegedly infringing Content, terminating access to websites if we do not receive a satisfactory response from you following receipt of an infringement notice, terminating the accounts of repeat infringers and/or making good-faith attempts to contact you to make a counter-notification.
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CANCELATION AND TERMINATION
By You. If you are a subscriber to our Development Cloud Hosting Service, you may elect not to renew your subscription by notifying us prior to the start of a Renewal. If you are a CPA Gardens customer, you may elect not to renew your subscription to the Service by notifying us at least 15 days prior to the start of your next billing period. For monthly subscription plans you may elect not to renew such subscription by notifying us at least 15 days prior to the start of your next monthly billing period and for annual subscription plans you may elect not to renew such subscription by notifying us at least 15 days prior to the start of your next annual billing period. To notify us of non-renewal, you will need to timely complete the Pricing and Billing form on the CPA Gardens site at this url: http://www.cpagardens.com. Deleting your website does not result in canceling your subscription.
Termination by Us. We may stop offering any of our Services at any time. If we do, we may terminate your subscription without cause by notifying you in writing at least thirty (30) days prior to such termination. We may also terminate your subscription for cause and your use of the Services if, in our opinion, you have breached or otherwise fail to comply with any of these Terms. Depending on the breach, we may offer you a limited period of time to cure your breach, not to exceed five days. We may terminate your subscription and/or your access to the Services if your non-payment of any fees owed to us that are delinquent by thirty (30) days or more. You agree to provide us with complete and accurate billing and contact information. We may terminate your Subscription if the billing or contact information is false, fraudulent or invalid.
Effect of Termination. We do not issue any cash refunds for subscription cancellations. After cancellation or termination, you will no longer have access to your website. If you purchased Development Cloud Hosting Services and we terminate your subscription for cause, we will maintain a copy of your website for a maximum of 30 days. We are not required to provide such copy to you unless all fees owed to us have been paid in full within 30 days of the termination date. Following the 30 day period, and we may delete all information on your website. We accept no liability for such deleted information or content Your obligation to make a payment of any outstanding, unpaid fees and to keep Confidential Information confidential and all rights and obligations of the parties which by their nature are reasonably intended to survive such termination or expiration will survive termination or expiration of this Agreement.
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CONFIDENTIAL INFORMATION.
You and we agree to maintain the confidentiality of any proprietary information received by the other party during, or prior to entering into, these Terms that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, non-public technical and business information ("Confidential Information") during the Subscription and for a period of five (5) years after the termination of your subscription. This section shall not apply to any publicly available or independently developed information. The receiving party of any Confidential Information of the other party agrees not to use said Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under these Terms. The receiving party shall protect the secrecy of and avoid disclosure and unauthorized use of the disclosing party's Confidential Information to the same degree that it takes to protect its own confidential information and in no event less than reasonable care.
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WARRANTY DISCLAIMER
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AN "AS AVAILABLE " BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(B) WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE OR SOFTWARE, (ii) THE SERVICES OR SUPPORT WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (iii) ERRORS OR DEFECTS WILL BE CORRECTED, OR (iv) THE SERVICES OR SUPPORT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND CPA GARDENS IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
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INDEMNITY
You agree to indemnify and hold us and our subsidiaries, affiliates, officers, directors, agents, partners and employees harmless from any claim or demand (including reasonable attorneys’ fees, and any damages award, fine or other amount imposed on us) made by any third party due to or arising out of your Content, inappropriate use of the Services, violation of these Terms, your gross negligence or willful misconduct or violation of law or violation of any rights of another. Your obligations under this subsection include claims arising out of the acts or omissions of your employees and agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. If you resell the Services, the grounds for indemnification stated above also include any claim brought by your customers or end users arising out of your resale of the Services. We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. You must pay expenses due under this Section as we incur them. -
LIMITATION OF LIABILITY
We will not be liable to you for special, indirect, incidental, consequential, punitive, exemplary or other similar damages, including, without limitation, loss revenue or profits, in any way arising out of or related to the use of the Services even if we have been advised of the possibility of such damages. Our aggregate liability for all claims by you relating to your use of the Services shall not exceed the fees paid by you in the immediately preceding twelve (12) month period giving rise to the claim. -
EXPORT
You agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. You acknowledge that the Services may be subject to the U.S. export control and sanctions laws (including the Export Administration Regulations ("Export Controls") and that you will comply with all applicable Export Controls. -
GENERAL
We may provide notices to you via either email or regular mail. The Services may also provide notices of changes to these Terms or other matters by displaying notices or links to notice to you generally on the Service.
You may not register for free or paid accounts using email addresses from throw-away email address providers such as mailinator.com, 10minuteemail.com, guerillamail.com, yotmail.com, tempinbo.com and instantemail.com.
These Terms and the relationship between you and us shall be governed by the laws of the Commonwealth of Massachusetts without regard to its conflict of law provisions. In the event of any dispute or claim arising out of this Agreement cannot be resolved within thirty (30) days, either party may make a written demand for one day mediation. If the dispute is not resolved by mediation, the dispute shall be settled by binding arbitration conducted in accordance with the JAMS procedures pursuant to its Streamlined Arbitration Rules and Procedure, by a single arbitrator, in Boston, Massachusetts. The arbitrator shall be selected as provided in the Streamlined Arbitration Rules and Procedure. The arbitrator may not award non-monetary or equitable relief of any sort. No discovery shall be permitted in connection with the arbitration unless it is expressly authorized by the arbitrator upon a showing of substantial need by the party seeking discovery. All aspects of the arbitration shall be treated as confidential and will not be disclosed by either party except as necessary to comply with legal or regulatory requirements. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. Each party shall bear its own costs of the arbitration. The fees and expenses of the mediator and the arbitrator shall be shared equally by the parties. If any part of these Terms are found to be invalid or unenforceable that part will be enforced to the maximum extent permitted by law and the remainder of these Terms will remain in full force. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. 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 our Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. More than one person’s claims nay not be consolidated under any circumstances in any form of any class or representative proceeding or otherwise.
You agree to comply with all applicable laws, rules and regulations including the CAN-SPAM Act.
Technical support for CPA Gardens is provided as described at https://www.cpagardens.com.
User Contributions and Privacy. There are many opportunities within the Service, including but not limited to the CPA Gardens Forums and commenting on CPA Gardens Team Blog posts, for you to actively participate. In the process of doing so, you may provide certain comments, suggestions, data, or other information to us about the Service (collectively "Information"). We have the right to retain and use any such Information in current or future products or services, without further compensation to you. To the extent such Information is protectable under intellectual property laws, you agree to cooperate with us as needed to obtain such protection as we may desire and you agree to assign your rights in such Information to us.
Uptime. We will use commercially reasonable efforts to provide the Service twenty-four (24) hours a day, seven (7) days a week throughout the term of your subscription. You acknowledge and agree, however, that from time to time the Service may be inaccessible or inoperable for various reasons, including, without limitation, (i) periodic maintenance procedures or repairs which we may undertake from time to time; (ii) equipment malfunctions; and (iii) causes beyond the our control, including interruption or failure of telecommunication or digital transmission links, hostile network attacks or network congestion or other failures. Unavailability of the Service does not constitute a breach of these Terms.
WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED TO YOU "AS IS". YOU ACKNOWLEDGE AND AGREE THAT ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY US. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SERVICE OR ANY ERROR OR OMISSION IN THE SERVICE AND OUR SOLE OBLIGATION SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR THE ERROR OR DEFECT IN THE SERVICE.
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CPA GARDENS CLOUD HOSTING SERVICES
These types of websites are not allowed to be hosted by CPA GArdens:
- Adult: sexually explicit content, nudity
- Copyrighted Content of another: content that you do not own or have the express right to publish
- Spam/SEO: a site with a sole purpose to gain Google rating, Facebook "likes" etc.
- Phishing: a site meant to trick users into providing their username and/or password
- Illegal Content: content with is illegal in the United States
- Excessive Advertising: placing excessive advertising on your site, including more than three ad units per page
- File Hosting: a site sharing links to or providing actual files for visitors to download
This list is a quick reference and is not meant to be complete. For more information about prohibited activities, please refer to "Content and Conduct Rules and Obligations for Hosting and CPA Gardens Customers" below.
WE DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ERRORS OR DEFECTS WILL BE CORRECTED, OR (D) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE IS PROVIDED TO YOU "AS IS". YOU ACKNOWLEDGE AND AGREE THAT ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND ALL OBLIGATIONS AND REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OR TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY US. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OR NONPERFORMANCE OF THE SERVICE OR ANY ERROR OR OMISSION IN THE SERVICE AND OUR SOLE OBLIGATION SHALL BE FOR US TO USE COMMERCIALLY REASONABLE EFFORTS TO REPAIR THE ERROR OR DEFECT IN THE SERVICE.
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CONTENT AND CONDUCT RULES AND OBLIGATIONS FOR CPA Gardens CUSTOMERS
You are responsible for all content on your website and files and data associated therewith (collectively, "Content"). We have no responsibility whatsoever for the Content on your website. We do not guarantee the accuracy, integrity or quality of Content or your source code.
You acknowledge that we do not screen Content but that we shall have the right (but not the obligation) to refuse, move or delete any Content that violates these Terms. We also have the right to remove any Content that violates these Terms or is otherwise objectionable in our sole discretion. You acknowledge and agree that we may preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to (a) comply with legal process, (b) enforce these Terms, (c) respond to claims that any Content violates the rights of third parties, or (d) protect our rights, property or personal safety and those of the users and the public.
You agree that you will not, nor permit your users to:
(a) use the Services in any manner other than as specified in these Terms including not to store, transfer or distribute files for on behalf of third parties or for any form of file sharing.
(b) interfere or attempt to interfere with the proper working of the Services, the servers or any activity being conducted on the servers;
(c) store or transmit infringing, libelous or otherwise unlawful or tortious material on the Website(s), or store or transmit material in violation of third-party privacy or intellectual property rights;
(d) promote or facilitate any illegal activity on your website(s);
(e) interfere with or disrupt the integrity or performance of the Services;
(f) upload, post or others transmit 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;
(g) upload, post or transmit unsolicited commercial email or "spam". This includes unethical marketing, advertising, or any other practice that is in any way connected with "spam" such as (i) sending mass email to recipients who have not requested email from you or with a fake return address, (ii) promoting a site with inappropriate links, titles, descriptions, or (iii) promoting your site by posting multiple submissions in public forums that are identical;
(h) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Services;
(i) use the Service a as forwarding service to another website;
(j) solicit a third party’s password(s) or personal identifying information for unlawful or phishing purposes; or
(k) use your website(s) to promote or provide instructional information about illegal activities or use your website in any unlawful manner.
We may immediately disable your access to the Services, remove all or a portion of your Content and/or terminate your Services, without refund, if we believe that you or any of your Users have violated any of the above prohibitions or these Terms.
We are not responsible to you for unauthorized access to your Content or data or the unauthorized use of the Services unless the unauthorized access or use results from our failure to meet our obligations of these Terms. You are responsible for the use of the Services by your employees, consultants and any other person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
You must provide us at least two (2) business days advance written notice before performing any load tests or vulnerability tests on your website(s). You understand that staging environment is a shared development staging environment and is only for low impact testing and development activities. Should your use of the shared development staging environment adversely impact server performance, you will be required to move to a dedicated development staging environment and will need to pay the associated server fees.
You agree not to place excessive burdens on our CPUs, servers or other resources, including customer support services. You understand that bandwidth, connection speeds and other similar indices of capacity provided with your subscription are maximum numbers. Consistently reaching these capacity numbers may result in our need to place restrictions on your use of the Services. You further agree that we may place restrictions on your use of the Services, including support services, to the extent they exceed the use of these resources for similarly situated customers.
2013 CPA Gardens.
January 2013 revision