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Domain and Hosting Agreement

1.   Definitions.

1.1 "Customer" means the persons, entity or agents and authorized representatives accepting this agreement.

1.2 "Content" means all text, pictures, sound, graphics, video, links, and other data stored by Customer on Xybertek Systems’s server computers.

1.3  "Website" means pages presenting the Content stored by Customer on Xybertek Systems’s server computers.

1.4  "User" means users of Customer's Website.

1.5  "User Content" means all text, pictures, sound, graphics, video, links, and other data stored by Users on Xybertek Systems’s server computers.

1.6  "Confidential Information" means information that Customer takes reasonable steps to maintain in confidence and identifies in writing to Xybertek Systems as confidential.

2.0 Domain Name Ownership, Disputes, and Use

Any domain name registered by Xybertek Systems on behalf of Client is the property of said Client after the Client has paid Xybertek Systems any registration fees that Xybertek Systems has incurred on behalf of the client. Xybertek Systems claims no ownership over Client domain names that the Client has paid to register. At its option, Xybertek Systems will either arrange for any billing for names registered by Xybertek Systems on behalf of Client to be sent directly by the registrar or agent thereof to the Client, or Xybertek Systems will directly bill the client for these registration fees plus applicable expenses, and/or service charges, if any.

Client agrees that Xybertek Systems may be presented with information that Client's domain name possibly violates the trademark rights or other intellectual property rights of a trademark or other intellectual property rights owner. In case of such action, Client agrees to the following:

1. Client agrees to hold Xybertek Systems harmless of any action taken by such owner regardless of the outcome of such dispute and regardless of whether Domain Name Service hosting for Client's domain is hosted at or continued to be hosted at Xybertek Systems.
2. Client agrees that Xybertek Systems has the right to discontinue name service in the event of such dispute over a Client's domain name.
3. Client agrees that should Xybertek Systems discontinue name service for Client's domain upon notification of such dispute that that Xybertek Systems will not be liable for any loss of business, interruption of business, loss of Client's domain name, or any indirect, special, incidental, or consequential damages of any kind (including lost profits) regardless of the form of action whether in contract, tort (including negligence), or otherwise, even if Xybertek Systems has been advised of the possibility of such damages.
4. In no event shall Xybertek Systems's maximum liability exceed one hundred ($100.00) dollars.

Client agrees that a Xybertek Systems contact person shall be named as the “technical or zone contact” for any domains hosted at Xybertek Systems. Client agrees that Xybertek Systems may create and use network resources with the Client's domain name for administrative, testing, and network infrastructure enhancement purposes.

2.1  Web Hosting.

2.1.a - Hosting.

Xybertek Systems will provide dedicated or shared server computers, with an Internet address for storage and access of Content, User Content, and the Website.  The Website, Content, and User Content must be "server-ready."  Xybertek Systems will provide bandwidth and storage.  If Customer requires additional bandwidth or storage, Xybertek Systems will negotiate in good faith to amend this Agreement unless Xybertek Systems’s server computers cannot accommodate the requested bandwidth or storage.

2.1.b - Website Backup.

Xybertek Systems will backup the Website in a commercially reasonable manner.  However, Xybertek Systems is not responsible for lost Content or lost User Content.  Website backups will be stored by Xybertek Systems for no longer than 14 days.  Xybertek Systems will provide, at Customer's expense, an electronic copy of the backup Website to Customer upon written request by Customer.  Backups are intended for disaster recovery, not the restoration of individual files.

2.1.c - Server Logs.

As requested by Customer, Xybertek Systems will deliver to Customer in electronic form the Server Log of Website activity.  Customer will be entitled to one month of log storage free of charge.  Xybertek Systems may, at its option, charge a fee to Customer for additional space required to store oversized logs.

2.2 - Standards.

Xybertek Systems’s services will conform to the following:

2.2.a - Availability of Website.

Xybertek Systems will provide hosting services for the Website that meet reasonable commercial standards for, among other matters, packet loss, accessibility, latency, availability, and throughput.

2.2.b - Security.

Xybertek Systems will take commercially reasonable steps to prevent unauthorized access to the Website, Content, User Content, and Confidential Information stored on Xybertek Systems’s server computers.

2.2.c - Server/Network Computer Outages.

Xybertek Systems will employ best efforts in providing advance notice to Customer of scheduled server computer/network outages.

2.2.d - Disclaimers.

Xybertek Systems provides no equipment, software, or communication connections to Customer.  Xybertek Systems makes no representations, warranties or assurances that the Customer's equipment, software, and communication connections will be compatible with Xybertek Systems’s hardware and service.

3. Ownership of Content.

All Content and User Content stored by Customer on Xybertek Systems’s server computers shall at all times remain the property of Customer.  Customer grants to Xybertek Systems a non-exclusive, worldwide license to the Content and User Content only to the extent necessary for Xybertek Systems to host the Website.

4. Content Control.

4.1 - Lawful Purpose.

Customer will only use Xybertek Systems’s hardware and services for lawful purposes and Customer will not store or provide any Content or User Content or link to any material that violates foreign, federal, state or local law, the Terms of Service  and any modifications thereof, Xybertek Systems’s posted Acceptable Use Policy , or any other Xybertek Systems policy.

4.2 - Remedy for Violation.

Should Xybertek Systems become aware that Customer has violated any of its Terms of Service, Xybertek Systems may, at its option, remove the Content or User Content in violation, immediately terminate hosting Customer's Website, and/or notify authorities.  If hosting is terminated, Xybertek Systems may, in its sole discretion, reinstate hosting upon adequate showing of Customer's right to use the Content or User Content.

5. Payments.

5.1 - Fees.

Customer shall pay fees agreed upon during account signup.  Xybertek Systems will invoice yearly (unless otherwise agreed in writing), and payment is due fourteen (14) days from invoicing.  In the case of credit card payments Xybertek Systems will automatically charge Customer Credit Card on file all fees associated with the account on the due date. Xybertek Systems may, at its option, charge a 10% fee for late payments.

1. In the case of a web site hosted on a Xybertek Systems hosting server, failure of Client to remit payment to Xybertek Systems by the invoice due date is cause for removal of the Client's web site files from the Xybertek Systems hosting server. Client agrees that Xybertek Systems shall not be held liable for such removal or disconnection.
2. In the case of a customer's co-located server, failure of a Client to remit payment to Xybertek Systems by the invoice due date is cause for the server to be disconnected from the Xybertek Systems network and unplugged without further notification by Xybertek Systems. Client agrees that Xybertek Systems shall not be held liable for such removal or disconnection. Disconnected customer owned equipment shall be returned to the customer only upon full payment of outstanding invoices, less any credits due based on our Refund Policy, below. Xybertek Systems shall not be held responsible for such equipment when held in such disconnected/unplugged fashion for over sixty days, after which the equipment will be deemed to be abandoned by the customer.

1. Cancellation by Client must be in writing with 30 days notice.
2. Setup charges are not refundable under any circumstances.
3. The first Term of service is not refundable under any circumstances.
4. Refunds of renewal fees paid to Xybertek Systems shall only be made for fully unused calendar months of service that the Client desires to cancel.
5. Client shall not be entitled to any refund of any monies under any circumstances should this agreement be terminated due to a violation of the Xybertek Systems Policies and Terms of Service.

5.2 - Returned Checks and Declined Credit Cards may incur a fee.

5.3 - Account Updates.

It is the responsibility of the customer to maintain accurate billing information with Xybertek Systems. This may include updated credit card information, email address and mailing address.

5.4 - Taxes.

Customer is solely liable for any taxes or fees payable for products or services sold by Customer on the Website.

6. Term and Termination.

6.1 - Term.

The initial term is agreed upon during account signup. After the initial term, this Agreement will automatically renew on a year-to-year basis until terminated.

6.2 - Termination by Customer.

During the initial term, Customer may terminate this Agreement upon the material breach of Xybertek Systems, if such material breach remains uncured for thirty (30) days following written notice to Xybertek Systems.  This cure period shall be extended by delay caused by events beyond the control of Xybertek Systems including, but not limited to, natural disasters, governmental prohibitions or regulations, viruses that did not result from the acts or omissions of Xybertek Systems, or technical faults of Xybertek Systems’s service providers or vendors.  After the initial term, Customer may terminate this Agreement upon fourteen (14) days written notice to Xybertek Systems.

6.3 - Termination by Xybertek Systems.

Xybertek Systems may immediately terminate this Agreement for cause at any time without penalty.  Causes justifying immediate termination include, but are not limited to:  violation of any foreign, federal, state, or local law; non-payment of fees of this Agreement; breach of this Agreement; violation of the Terms of Service and any written modifications thereof; and violation of any other Xybertek Systems policy.  Xybertek Systems may terminate this Agreement without cause at any time upon thirty (30) days written notice to Customer.

7. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, WEB REFINEMENTS, AND ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE, MAKE NO WARRANTY IN CONNECTION WITH WEB REFINEMENTS HARDWARE OR SERVICES, WHETHER WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, NON-INGRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

8. LIMITATION OF LIABILITY.  WEB REFINEMENTS, ITS OWNERS, EMPLOYEES, AFFILIATES, AGENTS, VENDORS, AND THE LIKE SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST BUSINESS, LOST DATA OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE WEB REFINEMENTS HARDWARE OR SERVICES.  CUSTOMER AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY SHALL BE RETURN OR REDUCTION OF FEES PAYABLE TO WEB REFINEMENTS.

9. Customer Indemnity.

Customer shall defend Xybertek Systems against any third party claim, action, suit or proceeding arising as a result of Customer's use Xybertek Systems’s hardware or services and indemnify Xybertek Systems for all losses, damages, expenses, and costs incurred by Xybertek Systems as a result of a final judgment entered against Xybertek Systems in any such claim, action, suit or proceeding.

10.  General Provisions.

10.1 - Governing Law.

This Agreement will be governed and construed in accordance with the laws of Trinidad.  Both parties agree to submit to personal jurisdiction in San Fernando, and further agree that any cause of action or dispute arising under this Agreement will be litigated or arbitrated in Trinidad.

10.2 - Severability and Waiver.

If any provision of this Agreement is held invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.  The waiver by either party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

10.3 - Relationship of Parties.

No agency, partnership, joint venture, or employment relationship is created by this Agreement and neither party has the power to bind the other party.

10.4 - Attorneys Fees and Costs.