Hosted Tube Domain Parking Agreement

Created: April 26, 2018

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:

  1. Enrollment in the Program
    1. Eligibility

      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.

    2. Application

      To begin the enrollment process, Affiliate must fill out and submit the registration form located at https://www.hostedtube.com/signup

    3. Evaluation of Application
      1. Company will evaluate Affiliate's application. Company may reject Affiliate's application for any reason, including if Company determines that:

        1. Affiliate and/or all of its owners are under 18-years old;
        2. The application contains inaccurate information;
        3. One or more affiliate sites incorporate material that is unlawful, defamatory, libelous, infringing, obscene, harassing, or otherwise objectionable;
        4. One or more of Affiliate's domain names are identical or confusingly similar to a trademark or service mark in which Company or another person has intellectual property or other legal rights;
        5. One or more of Affiliate's domain names contain any terms which are listed at http://www.asacp.org/plain.php?content=terms/
        6. One or more affiliate domain names promotes or facilitates illegal activity, or violates the rights of others, including copyright, trademark, or other intellectual property rights; or
        7. Affiliate or one or more affiliate domain names are not otherwise suitable for the Program for any reason.
      2. If Company approves Affiliate's application, but later determines that Affiliate did not comply or is not continuing to comply with section 1.3(a), Company will terminate Affiliate's account.
    4. Reapplication

      If Company rejects the application for any reason, Affiliate will not reapply to the Program using the same domain name or names.

  2. Ownership of IP
    1. Ownership of IP

      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.

    2. Reservation of Rights

      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.

  3. Program Restrictions
    1. Compliance with Laws

      Affiliate will comply with all laws, including the following:

      1. Spam

        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:

        1. If Affiliate has violated a U.S. federal or state anti-spamming law, including any part of the CAN-SPAM Act of 2003 (15 U.S.C. §§ 7701-7713), any of the federal regulations promulgated under the CAN-SPAM Act (16 C.F.R. Part 316), Canadian Anti-Spam Legislation or anti-spam legislation in any other jurisdiction.
        2. If Affiliate has violated any nonparty anti-spamming policy;
        3. If Affiliate has sent unsolicited bulk messages to nonconsenting recipients;
        4. If Affiliate has misleading or false information contained in its messages, subject line, or message-headers;
        5. If Affiliate uses automated means to collect, transmit, or sell the email addresses of others;
        6. If Affiliate uses a third-party website or program to automatically generate and send messages or content;
        7. If the primary purpose of Affiliate's message is commercial in nature; and
        8. The number of spam or abuse complaints that have been lodged against Affiliate.

        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.

      2. Fraudulent and Deceptive Trade Practices

        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.

      3. Defamation and Related Conduct

        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.

      4. Intellectual Property Rights

        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.

      5. Cybersquatting or Typo squatting

        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.

      6. Paid Search Advertising Schemes

        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.

      7. Metatags

        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.

      8. Unethical Marketing Practices

        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.

      9. Misrepresentation of Relationship

        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.

      10. Unauthorized Access

        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.

      11. Malicious Code, Viruses, Etc.

        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.

      12. Links to and Content of Others

        Affiliate will not use Company's images, content, or promotional material to promote or link to any other website.

      13. Chat Traffic Advertisements

        Affiliate will not use chat traffic advertisements during its participation in the Program. Company will not accept chat traffic under any circumstances.

      14. 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.

    2. Breach of Program Restrictions

      Company may withhold commission fees and terminate this agreement if Affiliate breaches the program restrictions.

  4. Affiliate's Duty to Notify
    1. Affiliate will promptly notify Company
      1. whenever there are inquiries or concerns by any individual regarding any questionable activities.
      2. if Affiliate receives any inquiries or requests for information regarding the following subjects:
        1. Obscenity
        2. Child pornography or depictions of nudity or sexuality by minors
        3. Spam complaints
        4. Copyright infringement
        5. Trademark infringement
        6. Deceptive trade practices
        7. Unfair business practices
        8. Misleading search terms
        9. Invasion of publicity or privacy issues
        10. Fraudulent activities, including credit card fraud
        11. Any criminal investigation unless Affiliate is prohibited by law from notifying Company
        12. Any civil investigation that pertains to Affiliate, even if it does not relate to Affiliate's relationship with Company
        13. Any civil or criminal subpoena served on you, even if it does not relate to Affiliate's relationship with Company
    2. Failure to comply with this section will constitute a breach of this agreement. Affiliate will be responsible for any damage to Company based on Affiliate's failure to notify Company as required by this section.
  5. Compensation
    1. Commissions

      Company will pay Affiliate a commission equal to 50% of the advertising revenue generated from any domain name which is used in the Program.

    2. Payouts
      1. Minimum Payout Requirement

        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.

      2. Pay Periods

        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.

      3. Processing Fees

        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.

      4. Payment Currency

        Company will make all payouts in United States Dollars.

    3. Payout Limitations
      1. Company will not pay Affiliate for any revenue which is generated from fake traffic, or bot traffic or any traffic which that involves unwarranted impressions from end-users, the Company's determination of what is fake traffic shall be final.
      2. Company may also deny or withhold commissions for any links coming from any practices that breach this agreement. If Company determines that Affiliate is engaging in practices that breach this agreement, Affiliate will not receive any credit or payment and will forfeit all credits or payments earned.
    4. Account Inactivity; Inactive Account Maintenance Fees
      1. To receive any revenues under this agreement, Affiliate's account must be active and in compliance with this agreement. If Affiliate does not actively generate ad revenue for 90 consecutive days, Affiliate's account may, at Company's sole discretion, no longer be considered active and instead may be designated as inactive.
      2. If Affiliate has not earned any commissions for 180 consecutive days, Company may charge Affiliate an account maintenance fee that Company will deduct from Affiliate's unpaid accrued commissions. The account maintenance fee will be the lesser of $10 and the amount of unpaid accrued commissions and referral fees in Affiliate's account.
    5. Revenue Forfeiture

      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.

    6. Taxes

      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.

    7. Disputes

      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.

  6. Statistics and Reporting

    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.

  7. Customer Policies and Pricing

    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.

  8. Statements of Fact
    1. By Affiliate

      Affiliate states that the following facts are accurate:

      1. If Affiliate is an individual, Affiliate is at least 18-years old and has the legal capacity to enter into this agreement. If Affiliate is an entity, it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of its jurisdiction of incorporation, organization, or chartering.
      2. Affiliate has the power to enter into this agreement and to perform the obligations under this agreement.
      3. Affiliate owns each domain name identified to the Company,
      4. The revenue Affiliate earns through the Program is and will be directed solely to Affiliate, and Affiliate is not authorized to transfer Affiliate's checks to or deposit Affiliate's checks with any nonparties other than bona fide financial institutions.
      5. Affiliate is not an individual, organization, or entity listed on The Office of Foreign Assets Control Specially Designated Nationals or Blocked Persons list, as published and updated by the United States Department of the Treasury.
      6. Affiliate is generally familiar with the nature of the Internet and complies—and will continue to comply during this agreement—with all laws and industry standards.
      7. Affiliate's performance under this agreement does not—and will not during this agreement—breach any agreement or obligation between Affiliate and a nonparty or violate any law.
      8. Affiliate's performance under this agreement does not—and will not during this agreement—breach any agreement or obligation between Company and a nonparty or violate any law.
      9. Affiliate's collection and use of personally identifiable information does not—and will not during this agreement—breach Company's privacy policy or violate any law that governs Affiliate's collection and use of personal information.
      10. Affiliate and each affiliate site complies—and will continue to comply during this agreement—with 18 U.S.C. §§ 2257–2257A, including the implementing regulations codified at 28 C.F.R. Part 75.
    2. By Company

      Company states that the following facts are accurate:

      1. It is duly organized, validly existing, and in good standing as a corporation under the laws of the Republic of Seychelles.
      2. It has the power to enter into this agreement and to perform the obligations under this agreement.
      3. It owns or has the right to license the licensed material and the Company marks.
      4. Its performance under this agreement does not—and will not during this agreement—breach any agreement or obligation between it and a nonparty or violate any law.
      5. Its performance under this agreement does not—and will not during this agreement—breach any agreement or obligation between Affiliate and a nonparty or violate any law.
  9. Confidentiality
    1. Maintaining Confidentiality

      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.

    2. Permitted Disclosure

      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.

    3. Precautions against Unauthorized Disclosure or Use

      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.

    4. Unauthorized Disclosure or Use by Representatives

      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.

    5. Notification of Unauthorized Disclosure or Use

      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.

    6. Nondisclosure of Agreement

      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.

    7. Return of Confidential Information

      On the termination of this agreement, Affiliate will promptly, but no later than 30 days after the termination of this agreement:

      1. Return to Company all copies of confidential information that, on disclosure, Company had instructed Affiliate to return on the termination of this agreement; and
      2. Destroy all remaining copies of confidential information disclosed to Affiliate under this agreement.
    8. Disclosure Required by Law
      1. If any proceeding is brought to compel Affiliate or any of its representatives to disclose confidential information, or if Affiliate or any of its representatives is otherwise required by law to disclose any confidential information, Affiliate will do the following:
        1. Unless by doing so Affiliate would violate any law or an order of a government body, notify Company of that proceeding or that requirement, as the case may be, promptly after learning of it, taking into account for purposes of determining Affiliate's promptness any time constraints that Company would face in bringing a proceeding to prevent that disclosure or to protect the confidentiality of any information that is disclosed; and
        2. At Affiliate's expense, cooperate with Company in any proceeding that Company brings to prevent that disclosure or to protect the confidentiality of any information that is disclosed.
      2. It will not constitute a breach of Affiliate's obligations under this agreement for Affiliate or any of its representatives to disclose confidential information as required by law, on condition that Affiliate has complied with its obligations under section 10.8(a) for that disclosure and has delivered to Company a written opinion of Affiliate's legal counsel prepared at Affiliate's expense stating that the disclosure is required by law and that opinion is reasonably acceptable to Company.
    9. Nondisclosure of Restricted Information

      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.

    10. Export Controls

      Affiliate will not export or re-export any confidential information, directly or indirectly, without first obtaining any license required under any export control laws.

    11. No License

      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.

    12. No Statement about Accuracy

      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.

    13. Reverse Engineering

      Affiliate will not reverse engineer, disassemble, or create other works from any software or hardware constituting or included in any confidential information.

    14. Residual 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.

    15. Publicity

      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.

    16. Definitions

      For purposes of this section, the following definitions apply:

      1. "Confidential information" means the following:
        1. Information (other than excluded information) relating to Company and its business that Company discloses to Affiliate during this agreement (including individual contact information and information about Company's marketing, plans, pricing, products, services, and technical environment); and
        2. Derived information.
      2. "Derived information" means information (including notes, analyses, compilations, and summaries) that is in writing or embodied in an electronic medium and that Affiliate or any of its representatives derive, in whole or in part, from any information described in section 10.16(a)(i).
      3. "Excluded information" means information that comes within any of the following categories, with Affiliate having the burden of establishing that any information constitutes excluded information:

        1. Other than personally identifiable information, information that is or becomes public other than as a result of breach of any obligation under this agreement;
        2. Information that, when it is disclosed, is already in the possession of Affiliate or any of its representatives as the result of disclosure by a person that was not under an obligation to Company to keep that information confidential;
        3. Information that, after it is disclosed under this agreement, is disclosed to Affiliate or any of its representatives by a person that was not then under an obligation to Company to keep that information confidential; and
        4. Information that Affiliate develops independently before Company discloses equivalent information to Affiliate.
      4. "Representative" means, as to an entity, any of that entity's directors, officers, employees, agents, consultants, advisors, and other representatives.
      5. "Residual information" means, as to any individual, any confidential information that the individual remembers without any need to refer to that confidential information as fixed in a tangible medium.
  10. Nondisparagement

    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.

  11. Disclaimer of Warranties
    1. 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

      1. the use of the Program will be timely, uninterrupted, or error-free (whether as a result of technical failure, acts or omissions of nonparties, or other causes) or will operate in combination with any other hardware, software, system, or data;
      2. the Program will meet Affiliate's requirements or expectations;
      3. the Program will be accurate or reliable;
      4. errors or defects in the Program, or the licensed material will be corrected; or
      5. the servers that make the Program available are free of viruses or other harmful components
    2. Company offers the Program "as is" without warranties, either express or implied. Company is not making any warranties, either express or implied, including implied warranties of merchantability, fitness for a particular purpose, title, privacy, and noninfringement for the Program, the licensed material, the Company marks, and any other Company products and services, including the information, content, and materials contained on the Program. No advice or information, whether oral or written, obtained from Company or elsewhere will create any warranty not expressly stated here.
  12. Limit of Liability
    1. 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.

    2. Company will not be liable to Affiliate for breach-of-contract damages that Company could not reasonably have foreseen on entry into this agreement. Company will not be liable to Affiliate—regardless of theory of liability and even if Affiliate advised Company of the possibility of these damages—for damages for any of the following:
      1. loss of use;
      2. loss of services;
      3. loss of profits;
      4. loss of revenue;
      5. loss of goodwill;
      6. loss of contracts;
      7. loss of data;
      8. loss of privacy;
      9. loss of business or opportunity; or
      10. cost of obtaining substitute services related to the Program or any other Company products and services.
    3. Except as stated in this agreement, neither party will be liable to the other party for indirect, incidental, special (including consequential), exemplary, or punitive damages arising from this agreement, regardless of theory of liability and even if that party has been advised of the possibility of these damages, including loss of revenue or anticipated profits or lost business.
    4. Company's total cumulative liability to Affiliate will not exceed the greater of the total amount owed to Affiliate under this agreement and $250.
  13. Loss Payment (aka Indemnification)
    1. In General

      Affiliate will pay Company for any loss of Company's that is caused by Affiliate's

      1. Breach of this agreement,
      2. Infringement of nonparty intellectual property rights,
      3. Violation of any other nonparty rights,
      4. Violation of law,
      5. Fraudulent or deceptive conduct,
      6. Negligent conduct,
      7. Intentional conduct, or
      8. Criminal conduct.
      9. But Affiliate is not required to pay if the loss was caused by Company's intentional misconduct.
    2. Definitions
      1. "Loss" means an amount that Company is legally responsible for or pays in any form. Amounts include, for example, a judgment, a settlement, a fine, damages, injunctive relief, staff compensation, a decrease in property value, and expenses for defending against a claim for a loss (including fees for legal counsel, expert witnesses, and other advisers). A loss can be tangible or intangible; can arise from bodily injury, property damage, or other causes; can be based on tort, breach of contract, or any other theory of recovery; and includes incidental, direct, and consequential damages.
      2. A loss is "caused by" an event if the loss would not have occurred without the event, even if the event is not a proximate cause of the loss.
    3. Company's Duty to Notify

      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.

    4. Legal Defense of a Claim

      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.

    5. No Exclusivity

      Company's rights under this section do not affect other rights that Company might have.

  14. Dispute Resolution
    1. Litigation Election

      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.

    2. Negotiation

      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.

    3. Mediation
      1. If the vice presidents (or higher-level officers) of the parties are unable to resolve the dispute within 30 days after receiving the dispute notice, either party may, by notice to the other party and the International Chamber of Commerce (ICC), demand mediation under the ICC Mediation Rules.
      2. Mediation will take place in Victoria, Republic of Seychelles, and the language of the mediation will be English. Each party will bear its own costs in mediation and the parties will share equally between them all third-party mediation costs unless the parties agree otherwise in writing.
      3. Each party will participate actively and constructively in mediation proceedings once started and will attend at least one joint meeting between the mediator and the parties. Any party may terminate mediation at any time after an initial discussion between the mediator and the parties.
    4. Arbitration
      1. If the parties fail to settle a dispute through mediation, the parties will settle any unresolved dispute arising out of or relating to this agreement, or the breach of it, by arbitration administered by the ICC in accordance with the Rules of Arbitration of the International Chamber of Commerce. The arbitrator, and not any court or agency, will have exclusive authority to resolve any dispute arising under or relating to the interpretation, applicability, enforceability, or formation of this agreement, including any claim that any part of this agreement is void or voidable.
      2. A single arbitrator will preside over the arbitration and issue a final award on all issues submitted to the arbitrator. The arbitrator may grant whatever relief would be available in a court, except that the arbitrator will not award punitive or exemplary damages, or damages otherwise limited or excluded in this agreement. The arbitrator will issue a final award on all issues submitted to the arbitrator. The arbitrator's award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
      3. Arbitration will take place in Victoria, Republic of Seychelles, and the language of the arbitration will be English. The parties will bear equally the costs of arbitration, including the fees and expenses of the arbitrator, and each party will bear the costs associated with its case, subject to the arbitrator's right to award costs and fees to the prevailing under this agreement.
      4. Unless required by law, neither a party nor an arbitrator will disclose the existence, content, or results of any arbitration under this agreement without the advance written consent of both parties.
    5. Equitable Remedies

      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.

    6. Jurisdiction
      1. If a party brings any proceeding seeking an injunction, a restraining order, or any other equitable remedy to which that party is entitled under this agreement, that party will bring that proceeding only in the Republic of Seychelles, and each party hereby submits to the exclusive jurisdiction of those courts for purposes of any proceeding.
      2. Each party hereby waives any claim that any proceeding brought in accordance with section 15.6(a) has been brought in an inconvenient forum or that the venue of that proceeding is improper.
    7. Recovery of Expenses
      1. In any proceedings between the parties arising out of this agreement or relating to the subject matter of this agreement, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all expenses that the prevailing party incurs in those proceedings, including legal fees and expenses.
      2. For purposes of this section, "prevailing party" means, for any proceedings, the party in whose favor an award is rendered, except that if in those proceedings the award finds in favor of one party on one or more claims or counterclaims and in favor of the other party on one or more other claims or counterclaims, neither party will be the prevailing party. If any proceedings are voluntarily dismissed or are dismissed as part of settlement of that dispute, neither party will be the prevailing party in those proceedings.
    8. Jury Trial Waiver

      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.

    9. Class Action Waiver

      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.

    10. Limited Time to Bring Claims

      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.

  15. Term and Termination
    1. Term

      This agreement will begin on Company's approval of Affiliate's application and will end when terminated by either Affiliate or Company.

    2. Termination

      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.

    3. Effect

      On termination of this agreement:

      1. All licenses and rights granted under this agreement terminate and Affiliate will promptly remove the licensed content and the Company marks from each affiliate site;
      2. Unless otherwise provided in this agreement, Company will pay all unpaid commissions due through the effective date of termination, except that Company may withhold final payment of commissions and referral fees for a reasonable time to make sure that all qualified signups are valid; and
      3. Neither party will be liable to the other for any damages sustained or arising out of, or alleged to have arisen out of, the termination, whether because of a party's loss of present or prospective profits, commissions, or payments on anticipated services, or in connection with the establishment, development, or maintenance of Affiliate's business, or otherwise.

      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.

  16. General Provisions
    1. Entire Agreement

      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.

    2. Amendment

      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.

    3. Assignment and Delegation
      1. Assignments

        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.

      2. Delegations

        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.

      3. Ramifications of Purported Assignment or Delegation

        Any purported assignment of rights or delegation of performance in breach of this subsection is void.

    4. Waivers
      1. No Oral Waivers

        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.

      2. Effect of Failure, Delay, or Course of Dealing

        No failure or delay

        1. in exercising any right or remedy, or
        2. in requiring the satisfaction of any condition,

        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.

      3. Each Waiver for a Specific Purpose

        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.

    5. Severability

      The parties intend as follows:

      1. that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted by law, in which case that provision will be disregarded;
      2. that if modifying or disregarding the unenforceable provision would result in failure of an essential purpose of this agreement, the entire agreement will be held unenforceable;
      3. that if an unenforceable provision is modified or disregarded in accordance with this section, then the rest of the agreement will remain in effect as written; and
      4. that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable.
    6. Notices
      1. Form

        All notices and other communications between the parties will be in writing.

      2. Method

        All notice will be given

        1. by delivery in person;
        2. by a nationally recognized next day courier service;
        3. by first class, registered, or certified mail, postage prepaid; or
        4. by electronic mail

        to the following addresses (or any other address either party may specify in writing):

        Company:

        Foshan Limited
        Suite 9
        Revolution Avenue
        Victoria
        Seychelles
        webaster@HostedTube.com

        Affiliate:

        Information identified by Affiliate in the application or as later updated by Affiliate.

      3. Receipt

        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.

    7. Rights and Remedies Cumulative

      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.

    8. Governing Law

      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.

    9. Force Majeure
      1. If a force majeure event prevents a party from complying with any one or more obligations under this agreement, that inability will not constitute a breach if (1) that party uses reasonable efforts to perform those obligations, (2) that party's inability to perform those obligations is not due to its failure to (A) take reasonable measures to protect itself against events or circumstances of the same type as that force majeure event or (B) develop and keep a reasonable contingency plan to respond to events or circumstances of the same type as that force majeure event, and (3) that party complies with its obligations under section 17.9(c).
      2. For purposes of this agreement, "force majeure event" means, for any party, any event or circumstance, whether or not foreseeable, that was not caused by that party (other than a strike or other labor unrest that affects only that party, an increase in prices or other change in general economic conditions, a change in law, or an event or circumstances that results in that party's not having sufficient funds to comply with an obligation to pay money) and any consequences of that event or circumstance.
      3. If a force majeure event occurs, the noncomplying party will promptly notify the other party of occurrence of that force majeure event, its effect on performance, and how long the noncomplying party expects it to last. From then on, the noncomplying party will update that information as reasonably necessary. During a force majeure event, the noncomplying party will use reasonable efforts to limit damages to the other party and to resume its performance under this agreement.
    10. No Third-Party Beneficiaries

      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.

    11. Relationship of the Parties

      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.

    12. Successors and Assigns

      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.

    13. Further Assurances

      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.

    14. Counterparts

      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.

    15. Signatures; Electronic Signatures
      1. The parties may sign this agreement by fax or electronically instead of an original signature. The parties will consider fax or electronic signatures as original signatures that bind them to this agreement.
      2. Affiliate acknowledges that any affirmation, assent, or agreement Affiliate sends through the affiliate portal in response to a prompt binds Affiliate. Affiliate further acknowledges that when Affiliate clicks on an "I agree," "I consent," or other similarly worded "button" or entry field using a mouse, keystroke, or other computer device, this action is the legal equivalent of Affiliate's handwritten signature and binds Affiliate in the same way.
    16. Entity Authority
      1. Each individual that signs this agreement for an entity states that the following facts are accurate:
        1. he or she has full authority to sign this agreement for that entity, and
        2. that entity has taken all necessary actions to authorize the signing of this agreement.
      2. Each entity states that this agreement does not breach that entity's articles, certificates, bylaws, or any other agreement or law that binds that entity.
    17. Voluntary Agreement
      1. The parties have signed this agreement voluntarily and for valid reasons.
      2. The parties acknowledge that they
        1. have carefully read this agreement,
        2. discussed it with their attorneys or other advisors,
        3. understand all of the terms, and
        4. will comply with it.
      3. The parties have relied on the advice of their attorneys or other advisors about the terms of this agreement and waive any claim that the terms should be construed against the drafter.
    18. No Reliance

      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.

    19. Permission to Send Emails to Affiliate

      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.

    20. Feedback

      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.

    21. English language

      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.

    22. Survival

      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.

    23. Definitions

      As used in this agreement, the following definitions—irrespective of capitalization or plurality—apply:

      1. "Affiliate" means a person who has submitted one or more domain names to the Company for us in the Program.
      2. "Affiliate site" means one or more affiliate domain names designated by Affiliate to participate in the Program.
      3. "Business day" means Monday through Friday, 9:00 a.m. to 5:00 p.m., Seychelles Time (SCT), excluding any official public holidays in Seychelles.
      4. "Chat traffic advertisement" means a popup message displayed on a website to attract users to other commercial websites.
      5. "Company" means Foshan Limited, a Republic of Seychelles corporation.
      6. "Government body" means (1) the government of a country or of a political subdivision of a country; (2) an instrumentality of any government; (3) any other individual, entity, or organization authorized by law to perform any executive, legislative, judicial, regulatory, administrative, military, or police functions of any government; or (4) an intergovernmental organization.
      7. "Intellectual property" means inventions, concepts, techniques, plans, designs, methodologies, procedures, programs, approaches, ideas, know-how, computer software, technology, writings, graphics, other works of authorship, trademarks, service marks, logos, trade names, and (in the case of the last four) the goodwill associated with each.
      8. "Intellectual-property right" means any intellectual-property right or industrial-property right existing by law at the relevant time anywhere in the world, including the right to sue for present or past infringement of it. "Intellectual-property right" includes:
        1. all rights (whether registered or unregistered) in trade secrets; confidential information; inventions, patents; trademarks, service marks, and trade names; Internet domain names; copyrights; designs; rights of publicity; and mask works;
        2. any application then pending for an intellectual-property right, including an application for a patent or to register a copyright or trademark;
        3. any right to file an application for an intellectual-property right; and
        4. any right to claim priority for an application for an intellectual-property right.
      9. "Law" means all applicable provisions of a constitution, statute, regulation, ordinance, rule, judgment, order, or other obligation, requirement, or prohibition having legally binding effect at the relevant time.
      10. "Liability" means liability in or for breach of contract, misrepresentation, restitution, or any other cause of action related to this agreement.
      11. "Licensed material" means any images, text, recordings, data, motion pictures, video clips, audio clips, advertising banners, links, computer script, subdomains, or other promotional materials associated with the Program.
      12. "Person" means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or government body.
      13. "Program" means the Hosted Tube Affiliate Marketing Program.
      14. "Spam" or "spamming" means using electronic messaging systems to send unsolicited bulk messages without the consent of the recipients, including (1) instant messaging spam; (2) Usenet newsgroup spam; (3) Web search engine spam; (4) spam in blogs; (5) wiki spam; (6) online classified ads spam; (7) mobile phone messaging spam; (8) spam in mobile applications; (9) Internet forum spam; (10) junk fax transmissions; (11) spam on Twitter; (12) spam on Facebook; (13) social networking spam; and (14) file sharing network spam.
    24. Usages

      In this agreement, the following usages apply:

      1. Actions permitted under this agreement may be taken at any time and on one or more occasions in the actor's sole discretion.
      2. References to a statute will refer to the statute and any successor statute, and to all regulations promulgated under or implementing the statute or successor, as in effect at the relevant time.
      3. References to numbered sections in this agreement also refer to all included sections. For example, references to section 6 also refer to 6.1, 6.1(a), etc.
      4. In computing any period of time under this agreement, the day of the act, event, or default from which the designated period of time begins to run will be included, unless it is a Saturday, Sunday, or legal holiday. In that case, the period will begin to run on the next day that is not a Saturday, Sunday, or legal holiday, and the period will run until the end of the next day afterwards that is not a Saturday, Sunday, or legal holiday.
      5. In computing periods from a specified date to a later specified date, the words "from" and "commencing on" (and the like) mean "from and including," and the words "to," "until," and "ending on" (and the like) mean "to but excluding."
      6. References to a governmental or quasi-governmental agency, authority, or instrumentality will also refer to a regulatory body that succeeds to the functions of the agency, authority, or instrumentality.
      7. "A or B" means "A or B or both." "A, B, or C" means "one or more of A, B, and C." The same construction applies to longer strings.
      8. "Including" means "including, but not limited to."
      9. "$" means United States Dollars.
      10. Garner's Modern American Usage (3d ed. 2009) applies to interpret usage, grammar, and syntax not otherwise addressed by this section.