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This domain parking agreement is between Foshan Limited, a Republic of Seychelles corporation ("Company"), and you, the individual or entity signing up to become an affiliate ("Affiliate").
Company has developed the Hosted domain parking program whereby affiliates can submit their domain names to the program and have content displayed at the said domain name (the "Program")
Affiliate wants to become a member of the Program subject to Company's approval of Affiliate's application.
The parties therefore agree as follows:
Affiliate must be at least 18-years old to enroll in the Program, or if Affiliate is an entity, all individuals involved in the entity must be at least 18-years old.
To begin the enrollment process, Affiliate must fill out and submit the registration form located at https://www.hostedtube.com/signup
Company will evaluate Affiliate's application. Company may reject Affiliate's application for any reason, including if Company determines that:
If Company rejects the application for any reason, Affiliate will not reapply to the Program using the same domain name or names.
The Affiliate shall continue to own its own domain names, and the Company shall continue to own of the content which is hosted on the Affiliate's domain names via the Program.
Except as expressly granted in this agreement, Company does not grant any other rights to Affiliate. Company reserves all rights to select, alter, add, or remove all licensed material used for the program.
Affiliate will comply with all laws, including the following:
Affiliate will not disseminate spam in connection with the Program. Although United States federal and state law does not prohibit all forms of spamming, Company impose a stricter, no-spam policy for affiliates of the Program. What is spamming will evolve over time as new technologies and methodologies emerge for spammers to find new ways to abuse the Program. Some of the facts that Company takes into account when determining what is spamming include the following:
No one factor is controlling, and Company will look to the particular circumstances of each case to determine what is spamming. Company recommends that Affiliate review CAN-SPAM Act: A Compliance Guide for Business, or specifics on the anti-SPAM legislation in your jurisdiction. When in doubt, don't do it—you spam, you're out.
Affiliate will not engage in any fraudulent, deceptive, or unfair transactions or trade practices. Affiliate will comply with the Federal Trade Commission statutes and regulations and any related rules, policies, and advisory opinions in advertising and marketing.
Affiliate will not submit domain names to the Program which are defamatory, libelous, threatening, abusive, hateful, derogatory, disparaging, or otherwise injurious to any person or to the reputation of any person.
Affiliate will not submit domain names to the Program which are which infringes the intellectual property rights or other legal rights of any person, including copyright, patent, trademark, service mark, trade secret, trade dress, right of privacy, right of publicity, moral right, and any other proprietary right.
Affiliate will not use or submit any domain name to the Program (including second-level, third-level, fourth-level, fifth-level, and so on), that is identical or confusingly similar to a trademark or service mark in which Company or another person has intellectual or other legal rights.
Affiliate will not bid on or purchase any online paid advertising schemes that incorporate or are confusingly similar to any trademarks, service marks, or URLs which the affiliate does not own or have the right to use. The prohibited advertising schemes include pay-per-click models, sponsored links, search engine keywords, AdWords, or similar advertising schemes.
Affiliate will not use any false, misleading, or infringing metatags tied to the affiliate site. In addition, Affiliate will not use any metatags that would imply or suggest that underage or illegal content may be found on the affiliate site.
Affiliate will not try to intercept, direct, re-direct, divert, or usurp traffic (including through the use of user-installed software) from or on, or divert referral fees from, any other participant in the Program.
Affiliate will not misrepresent its contractual relationship with Company or imply that any relationship exists with Company except as expressly provided in this agreement. For example, Affiliate will not publish any statement indicating that Company supports, endorses, or contributes to the affiliate site except as expressly provided in this agreement.
Affiliate's unauthorized access or duplication of any content that Affiliate obtains directly or indirectly through its participation in the Program is a material breach of this agreement.
Affiliate will not use or offer for download any material that contains a virus or malicious code, for example a Trojan Horse, that has the potential of causing disruption or damage to any computer system, network, or server. Affiliate will be liable to Company for all damage caused by any program of this nature.
Affiliate will not use Company's images, content, or promotional material to promote or link to any other website.
Affiliate will not use chat traffic advertisements during its participation in the Program. Company will not accept chat traffic under any circumstances.
Affiliate will not purchase, facilitate or send any fake traffic, bot traffic or any traffic which that involves unwarranted impressions from end-users, to any site of the Company's. The Company's determination of what is fake traffic shall be final.
Company may withhold commission fees and terminate this agreement if Affiliate breaches the program restrictions.
Company will pay Affiliate a commission of up to 50% of the advertising revenue generated from any domain name which is used in the Program.
The current minimum payment amount is $0 for checks (default option), $100 for Paxum, and $250 for bank wire transfer. For non-check payment methods, Company will roll over accrued commissions and referral fees totaling less than the minimum payout requirement until the payment owed satisfies the minimum payout requirement for the payment method selected.
Subject to the minimum payout requirement for the payment method selected, Company will disburse payouts weekly, beginning approximately two weeks after the conclusion of the immediately preceding pay period. Company will debit payouts for cancelled subscriptions. Company may change the payout pay periods on one or more occasions.
Company is not responsible for any third-party fees charged by banks or financial institutions used to receive commissions and referral fees. Company may deduct a processing fee if the payment method selected carries a processing fee.
Company will make all payouts in United States Dollars.
If Company is unable to pay Affiliate for 180 consecutive days and Company cannot otherwise contact Affiliate during this period, Company will consider all unpaid accrued commissions forfeited to Company.
Affiliate will pay all taxes attributable to commissions earned under this agreement. On one or more occasions, Company may request Affiliate to provide tax information depending on the jurisdiction in which Affiliate resides or is incorporated. Affiliate will promptly comply with any request by Company for tax information. If Company requests tax information from Affiliate and Affiliate does not provide it to Company, Company may withhold payment from Affiliate until Affiliate provides this information or otherwise satisfies Company that Affiliate is not a person from whom Company is required to obtain tax information.
If Affiliate disputes a payment or the calculation of a commission, Affiliate will notify Company in writing of any disputes or discrepancies no later than 30 days after the end of the pay period in which the disputed payment occurred. Affiliate will include in its written notice a detailed statement describing the nature and amount of the dispute and all supporting evidence. Affiliate will cooperate fully and in good faith with Company to promptly address and try to resolve the dispute. If Affiliate fails to timely notify Company in writing, the parties will consider Company's determination correct and binding on Affiliate and Affiliate will not dispute Company's determination.
Company will process all advertising revenue and will use reasonable efforts to provide Affiliate with access to real-time reporting revenue statistics. Affiliate acknowledges that in calculating Affiliate's revenue, Company's good faith determination of any amount owed will be the final and binding determination. Affiliate will not try to artificially inflate its traffic reporting, and revenue statistics by misleading or abusive practices.
End users referred through the Program are customers of Company with respect to all activities they undertake on the Program. Thus, as between Affiliate and Company, all pricing, terms, rules, policies, and operating procedures concerning customer signups and customer service set out on the Program's terms of service will apply to those customers, and Company may change them at any time.
Affiliate states that the following facts are accurate:
Company states that the following facts are accurate:
For as long as it remains confidential information, Affiliate will not (1) disclose that confidential information except as contemplated in this agreement or (2) use that confidential information other than for purposes of this agreement.
Any individual to whom Company discloses confidential information in accordance with this agreement may disclose that confidential information only to representatives of Affiliate who require that confidential information to perform under this agreement. But before Affiliate discloses confidential information to an individual in accordance with this section, Affiliate will notify that individual in writing of the confidential nature of the confidential information and—if not otherwise under a duty to keep that confidential information confidential, including as a result of being a director, officer, employee, or lawyer of Affiliate—enter into a written confidentiality agreement with that individual in which that individual promises not to disclose any confidential information or use any confidential information other than for purposes of this agreement.
Affiliate will take precautions to prevent disclosure or use of confidential information other than as authorized in this agreement. Those precautions must be at least as effective as those taken by Affiliate to protect its own confidential information or those that would be taken by a reasonable person in the position of Affiliate, whichever are greater. If Affiliate complies with its obligations under this section, Affiliate will not be liable for any losses or liabilities of Company arising out of misappropriation of confidential information from Affiliate by any nonparty.
If any one or more representatives of Affiliate disclose or use confidential information other than as authorized in this agreement, Affiliate will be liable to Company for that disclosure or use to the same extent that it would have been had Affiliate disclosed or used that confidential information.
If Affiliate becomes aware of disclosure or use of confidential information other than as authorized in this agreement, Affiliate will promptly notify Company of that disclosure or use and will cooperate with Company in mitigating any adverse consequences to Company of that disclosure or use.
During this agreement and afterwards until that information becomes public other than because of breach of this section, each party will not disclose to any other person the existence of this agreement and its terms and the nature of the relationship, except to the extent disclosure is required by law. If disclosure is required by law, that disclosure will not constitute a breach of the party in question's obligations under this section, on the condition that it has complied with section 10.8, as if section 10.8 applied to that disclosure besides disclosure of confidential information.
On the termination of this agreement, Affiliate will promptly, but no later than 30 days after the termination of this agreement:
Company will not disclose to Affiliate or any of its representatives any information if doing so would cause Company to breach a duty to any other person to keep that information confidential or would cause Company to violate any law or any order of a government body.
Affiliate will not export or re-export any confidential information, directly or indirectly, without first obtaining any license required under any export control laws.
Company's disclosure of confidential information will not constitute a grant to Affiliate or any of its representatives of a license to, or any other interest in, any intellectual property of Company unless stated in this agreement.
Company is not making in this agreement any statement about accuracy of any confidential information. Affiliate acknowledges that because it has not relied on, and will not be relying on, any statements made by Company to Affiliate about accuracy of any confidential information, Affiliate will have no basis for bringing any claim for fraud about those statements.
Affiliate will not reverse engineer, disassemble, or create other works from any software or hardware constituting or included in any confidential information.
Use of residual information for Affiliate's benefit by any representatives of Affiliate to whom confidential information was disclosed in accordance with this agreement will not constitute a breach of Affiliate's obligations under this agreement, on condition that Affiliate did not have its representatives intentionally commit to memory the confidential information in question and on condition that Affiliate complies with its obligations under section 10.7.
Company may use Affiliate's trade names, trademarks, service marks, or logos in presentations, marketing materials, affiliate lists, financial reports, website listings of affiliates, or advertisements without advance written approval. Affiliate may use Company's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features so long as Affiliate complies with this agreement.
For purposes of this section, the following definitions apply:
During this agreement and for two years after its termination, Affiliate will not take any action that is intended, or would reasonably be expected, to harm Company or its reputation or that would reasonably be expected to lead to unwanted or unfavorable publicity to Company. But nothing will prevent Affiliate from making any truthful statement in connection with any legal proceeding or investigation by Company or any governmental body.
Company is not making any warranties—express, implied, oral, or otherwise—about the reliability, timeliness, quality, suitability, availability, or accuracy of the Program, the licensed material, or the Company marks. Company is not making any warranties that
The Program, or the licensed material may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Company is not liable for any delays, delivery failures, or other damage resulting from these problems.
Affiliate will pay Company for any loss of Company's that is caused by Affiliate's
Company will notify Affiliate before the 15th business day after Company knows or should reasonably have known of a claim for a loss that Affiliate might be obligated to pay. Company's failure to give Affiliate timely notice does not terminate Affiliate's obligation, except to the extent that the failure prejudices Affiliate's ability to defend the claim or mitigate losses.
Company has control over defending a claim for a loss (including settling it) unless Company directs Affiliate to control the defense. Affiliate and Company will cooperate with each other in good faith on a claim.
Company's rights under this section do not affect other rights that Company might have.
Either party may elect to litigate the following type of case or controversy: (1) an action seeking equitable relief or (2) a suit to compel compliance with this dispute resolution provision.
Each party will give the other a reasonable opportunity to comply before it claims that the other has not met the obligations under this agreement. The parties will first meet and negotiate with each other in good faith to try to resolve all disputes between the parties relating to this agreement. The party raising a dispute will submit to the other party a written notice and supporting material describing all issues and circumstances related to the dispute (a "dispute notice"). A primary representative designated by each party will try to resolve the dispute. If the parties' primary representatives fail to resolve the dispute within 15 days after receiving a dispute notice, a vice president (or higher-level officer) of each party will try to resolve it.
Affiliate acknowledges that breach by it of its obligations under this agreement could cause irreparable harm for which damages would be an inadequate remedy. If any breach occurs or is threatened, Company may seek an injunction, a restraining order, or any other equitable remedy, in each case without posting a bond or other security and without proof of actual damages.
Each party hereby waives its right to a trial by jury in any proceedings arising out of this agreement. Either party may enforce this waiver up to and including the first day of trial.
The parties will conduct all proceedings to resolve a dispute in any forum on an individual basis only. Neither Affiliate nor Company will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. The parties will not combine any proceeding with another without the advanced written consent of all parties to all affected proceedings.
A party will not bring a claim arising out of, or related to the subject matter of, this agreement more than one year after the cause of action arose. Any claim brought after one year is barred.
This agreement will begin on Company's approval of Affiliate's application and will end when terminated by either Affiliate or Company.
Either party may terminate this agreement for any reason by giving the other party written notice of termination. Affiliate's breach of this agreement may result in Affiliate's immediate dismissal from the Program, with no obligation to Company except to pay for earned commissions and referral fees up to the point of termination unless this agreement provides otherwise. Affiliate will forfeit all commissions and referral fees due if Company terminates Affiliate from the Program because of Affiliate's fraudulent activity or for any breach of the program restrictions set out in section 3.
On termination of this agreement:
Termination will not affect the right of either party to receive or recover (1) damages sustained because of the breach of this agreement by the other party or (2) any payments owed or owing under the terms of this agreement, including payment earned through the date of termination.
This agreement forms the sole agreement of the parties concerning its subject matter. It supersedes all earlier written or oral discussions, negotiations, proposals, undertakings, understandings, and agreements between the parties concerning the transactions contemplated in this agreement. No party may use any of the earlier or contemporaneous negotiations, preliminary drafts, or previous versions of this agreement leading up to its signature and not stated in this agreement to construe or affect the validity of this agreement. No conditions, definitions, representations, or warranties concerning the subject matter other than as expressly stated in this agreement will bind either party. Each party acknowledges that no party made or relied on a representation, inducement, or condition not stated in this agreement.
Company may change the terms of this agreement on one or more occasions, except that changes will not apply to ongoing disputes or to disputes arising out of events occurring before the posted changes. Company will notify Affiliate through the affiliate portal of any changes to this agreement. Changes will become effective when posted in the affiliate portal. It is Affiliate's responsibility to check the affiliate portal periodically for changes to this agreement. If Affiliate continues to participate in the Program after any change, Company will consider Affiliate's continued participation as acceptance of the change unless Affiliate notifies Company in writing of Affiliate's disagreement no later than 15 days after the change. In Affiliate's written notice to Company, Affiliate must identify each change Affiliate disagrees with and the nature of Affiliate's disagreement with each change identified. Company will contact Affiliate no later than seven days after receiving Affiliate's written notice to address Affiliate's issues and try to reach a mutually amicable resolution. If Company is unable to resolve Affiliate's disagreement with the changes, Company may either terminate this agreement or enter into an addendum with Affiliate.
Company may assign its rights under this agreement without Affiliate's consent. Affiliate will not assign any of its rights under this agreement, except with Company's advance written consent.
Company may delegate any performance under this agreement without Affiliate's consent. Affiliate will not delegate any performance under this agreement, except with Company's advance written consent.
Any purported assignment of rights or delegation of performance in breach of this subsection is void.
The parties may waive any provision in this agreement only by a writing signed by the party or parties against whom the waiver is sought to be enforced.
No failure or delay
under this agreement, and no act, omission, or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition.
A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other person.
The parties intend as follows:
All notices and other communications between the parties will be in writing.
All notice will be given
to the following addresses (or any other address either party may specify in writing):
Company: Foshan LimitedSuite 9 Revolution Avenue Victoria Seychelles webaster@HostedTube.com | Affiliate: Information identified by Affiliate in the application or as later updated by Affiliate. |
All notices will be effective on receipt by the party to which notice is given, or on the fifth day after mailing, whichever occurs first.
Any enumeration of a party's rights and remedies in this agreement is not intended to be exhaustive. A party's exercise of any right or remedy under this agreement does not preclude the exercise of any other right or remedy. All of the parties' rights and remedies are cumulative and are in addition to any other right or remedy set out in this agreement, any other agreement between the parties, or which may now or later exist at law or in equity, by statute or otherwise.
The laws of Seychelles—without giving effect to its principles of conflicts of law—govern all matters arising out of or relating to this agreement, including its validity, interpretation, construction, performance, and enforcement.
This agreement does not, and the parties do not intend it to, confer any rights or remedies on any person other than the parties to this agreement.
The parties intend that their relationship will be that of independent contractors and not business partners. This agreement does not, and the parties do not intend it to, create a partnership, joint venture, agency, franchise, or employment relationship between the parties and the parties expressly disclaim the existence of any of these relationships between them. Neither of the parties is the agent for the other, and neither party has the right to bind the other on any agreement with a third party.
This agreement binds and inures to the benefit of the parties and their respective successors and assigns. This section does not address, directly or indirectly, whether a party may assign its rights or delegate its obligations under this agreement.
The parties will take any further actions, or sign any further documents, as may be necessary to implement and carry out the intent of this agreement.
The parties may sign this agreement in any number of counterparts. The parties will consider each counterpart an original, and all counterparts, when taken together, will form the same agreement.
Each party acknowledges that in signing this agreement, that party does not rely and has not relied on any statement by the other party or its agents, except those statements contained in this agreement.
Affiliate hereby grants Company permission to email notices, advertisements, and other communications to Affiliate, including emails, advertisements, notices, and other communications containing adult oriented material, sexual content and language, and images of nudity unsuitable for minors. Affiliate's permission will continue until Affiliate asks Company to remove Affiliate from Company's email list.
Company encourages Affiliate to give feedback about Company or the Program. But Company will not treat as confidential any suggestion or idea Affiliate gives, and nothing in this agreement will restrict Company's right to use, profit from, disclose, publish, or otherwise exploit any feedback, without payment to Affiliate.
The parties have drafted this agreement in the English language and no translation into any other language will be used to interpret or construe this agreement. All services, support, notices, designations, specifications, and communications will be provided in the English language.
Any provision of this agreement that imposes an obligation after termination or expiration of this agreement will survive the termination or expiration of this agreement.
As used in this agreement, the following definitions—irrespective of capitalization or plurality—apply:
In this agreement, the following usages apply: