SERVICE LEVEL AGREEMENT (SLA)
NETWORK UPTIME GUARANTEE
NETPHORIA guarantees that our
network will be accessible for a minimum of 99.9% of the time in every calendar
month. NETPHORIA also guarantees that every major network service (i.e. HTTP,
SMTP, POP) will function for a minimum of 99% of the time in every calendar
month.* NETPHORIA's superior, multi-redundant network architecture permits
operation without service degradation or CUSTOMER interruption in the case of
maintenance or equipment failure. In the unlikely event that our network is
unavailable for a twenty-four (24) hour period, our CUSTOMERs may apply for one
free month of hosting.
Credits for affected websites must be applied for within 15 days of the
occurrence of the problem.
* This does not include scheduled
maintenance windows where it may be necessary for equipment to be cycled. These
maintenance windows are scheduled at times which least impact CUSTOMERs, based
on minimal overall activity on our systems. CUSTOMERs will be notified at least
72 hours prior to these events. Our architecture is designed to minimize events
which require downtime. It is anticipated that maintenance windows requiring
complete downtime will be limited to a maximum two per year.
NETPHORIA TERMS AND CONDITIONS
No Warranties. THE SERVICES AND SOFTWARE ARE
PROVIDED, AND THE SITEPHORIA SYSTEM IS
MADE AVAILABLE, BY NETPHORIA TO CUSTOMER
AND USERS "AS IS." NETPHORIA AND ITS SUPPLIERS MAKE NO WARRANTY OF ANY
KIND, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES OR THE SITEPHORIA SYSTEM AND SPECIFICALLY DISCLAIM THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND AGAINST
INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW.
Internet Usage. NETPHORIA and its suppliers make no warranties
regarding the quality, reliability, timeliness or security of the Services or the
SITEPHORIA System or that the Services,
the Software or the SITEPHORIA System
will be uninterrupted or error free.
NETPHORIA and its suppliers
assume no responsibility or liability for the deletion or failure to store, or
to store properly, email messages.
CUSTOMER and Users assume the entire risk in downloading or otherwise
accessing any data, files or other materials obtained from third parties as
part of the Services or by means of the SITEPHORIA System, even if CUSTOMER or User has paid for virus protection
services from NETPHORIA .
NO CONSEQUENTIAL DAMAGES. IN NO
EVENT WILL NETPHORIA, OR ITS SUPPLIERS, BE LIABLE TO THE CUSTOMER, OR TO
ANY THIRD PARTY, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL
DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF NETPHORIA
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NETPHORIA
WILL NOT BE LIABLE FOR ANY ACTUAL OR ALLEGED INFRINGEMENT BY ANY THIRD
PARTY MATERIALS AVAILABLE THROUGH THE SERVICES.
Force Majeure. NETPHORIA is not responsible for any delays, errors,
failures to perform, interruptions or disruptions in the Services or the
SITEPHORIA Systems (each a "Force Majeure
Event") caused by or resulting from any act, omission or condition beyond
NETPHORIA's reasonable control, whether or not foreseeable or identified,
including without limitation acts of God, strikes, lockouts, riots, acts of
war, governmental regulations, fire, power failure, earthquakes, severe
weather, floods or other natural disaster or CUSTOMER's, User's or any third
party's hardware, software or communications equipment or facilities.
Limited Remedy. In the event of any unplanned
disruption of provision of the Services or availability of the SITEPHORIA System during which Users are unable to
access or use the SITEPHORIA Services due
to a confirmed problem in the SITEPHORIA
System and not resulting from any Force Majeure Event ("System Outage"),
CUSTOMER's sole and exclusive remedy is refund of a pro rata portion of the
price paid for the affected Services during the period of the System Outage if
such period lasted for a continuous twenty-four (24) hour period or
longer. CUSTOMER AGREES THAT THIS
SECTION STATES CUSTOMER'S SOLE REMEDY AND NETPHORIA'S EXCLUSIVE LIABILITY FOR
ANY SYSTEM OUTAGE OR OTHER SERVICE DISRUPTION.
In any event, NETPHORIA's entire liability, and CUSTOMER's exclusive
remedy, under this Agreement for any damages from any cause whatsoever,
regardless of form or action, whether in contract, negligence or otherwise,
will in no event exceed an amount equal to the amount paid by CUSTOMER for the
Services in the calendar month in which the act or omission that gave rise to
the liability occurred, to the maximum extent allowed by law.
Termination for Convenience. Either
party may terminate this Agreement at any time, without cause, upon thirty (30)
days prior written notice to the other party.
General Provisions. This Agreement will be
governed by and construed in accordance with the laws of the United States of
America exclusive of its conflict of laws principles. Nothing contained in this Agreement is
intended or is to be construed to create a partnership, joint venture or
agency relationship between NETPHORIA
and CUSTOMER. If any provision of
this Agreement is held invalid, illegal or unenforceable, such provision will
be reformed only to the extent necessary and in such a manner to effect the
original intention of the parties; all remaining provisions continue in full
force and effect. Any failure by either
party to strictly enforce any provision of this Agreement will not operate as a
waiver of that provision or any subsequent default or breach of the same or a
PROHIBITED ACTIVITIES, INCLUDING BUT NOT LIMITED TO SEXUALLY ORIENTED
PRODUCTS AND SERVICES, SCAMS, SPAMS, INFRINGEMENTS, OFFENSIVE, BIGOTED,
ANGEROUS OR ILLEGAL ACTIVITIES. YOUR DUTY TO INDEMNIFY NETPHORIA. NETPHORIA
COOPERATION WITH LAW ENFORCEMENT.(a) You agree that You will not at any time
conduct Your business on any web sites with respect to which NETPHORIA at any
time provides Basic Services and/or Optional Services in any manner(s) that directly or indirectly offer, sell, lease,
license, display, deliver, advertise, recommend, or promote any product(s),
service(s), data, information, image(s), text and/or other web site content,
which: (i) are unlawful or violates any applicable local, state, national or
international law, ordinance or regulation having the force of law; (ii) are
pornography or sexually oriented, profane, obscene, vulgar, offensive, lewd;
(iii) are defamatory, libelous, slanderous, abusive, threatening or harassing
towards others; (iv) are a sweepstakes, lottery, raffle, multi-level marketing
program, chain letter or pyramid scheme; (v) are an unfair, unlawful or
deceptive business practice; (vi) are racially or otherwise offensive, hateful,
bigoted or intolerant; (vii) are in violation of any privacy or data protection
right or law or discloses any personal information about or exploits in any manner
children under the age of 18 years or third parties without their, or in the
case of children, their parents', prior written consent; (viii) infringe or
violate any patent, copyright, trademark, trade secret, right of publicity or
privacy or other proprietary right under the laws of any jurisdiction; (ix) are
the basis for any allegation, claim or suit against You or any other party
alleging product liability, breach of warranty, negligence, fraud, unlawful
conduct, and/or any other claims or causes of action whatsoever; (x) transmit
or deliver in any manner any material that contains viruses, worms, trojan
horses, time bombs, cancelbots, and/or any other harmful or damaging software
or other technology or the means for developing any of the above; (xi) advocate,
promote and/or provide assistance in carrying out violence or any other
unlawful activity against any persons or any governments, businesses or other
entities; (xii) involve a significant risk of death or injury to any persons,
or of damage to business or other entities or property in the event of an error
or defect; (xiii) involve cruelty to animals; (xiv) are the subject of any
government investigation or proceeding; (xv) are a weapon, or parts of or
manuals for assembling any weapon, including but not limited to firearms,
ammunition, explosives, grenades, bombs and caustic or other dangerous
substances; (xvi) are any form(s) of gambling; (xvii) are any type(s) of
intoxicant, alcoholic beverage, or illegal substance; (xviii) are not
consistent with prevailing Internet "Netiquette" standards, as
determined by NETPHORIA in its sole discretion; or (xix); provide instruction in
any activities listed in (i) through (xviii) above.
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