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    NETPHORIA® Terms of Use

    SITEPHORIATM, 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
    Disclaimer of Warranties
         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 .
    Limitation of Liability
         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
         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
         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 different kind.

    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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