TERMS & CONDITIONS

NetGains Marketing
Reseller Agreement
Last Revised: June 26, 2011

This Reseller Agreement (this “Agreement”) is entered into by and between 1296806 Alberta Ltd O/A NetGains Marketing, herein after referred to as NetGains Marketing (“NetGains Marketing” or the “Provider”) and you (“You” or the “Reseller”) and is made effective as of the date of electronic execution (the “Effective Date”). This Agreement sets forth the terms and conditions under which You may purchase NetGains Marketing’s products and services through NetGains Marketing’s Reseller Program (the “Services” or the “Reseller Services”) and sell them to Your own customers, and represents the entire agreement between You and NetGains Marketing.  By purchasing the Services, You acknowledge You have read, understand, acknowledge and agree to be bound by all the terms and conditions of this Agreement, along with any new different or additional terms and conditions hereto, including, but not limited to, NetGains Marketing’s Universal Terms of Service and NetGains Marketing’s Privacy Policy, which are incorporated by reference.

Reseller acknowledges that the registrar on record for domain name registrations is ngmdomains.com  (“Wild West Domains” or the “Registrar”), who is bound by an agreement with the Internet Corporation for Assigned Names and Numbers (“ICANN”). Reseller acknowledges and agrees that NetGains Marketing may modify this Agreement from time to time and at any time in order to ensure that NetGains Marketing and the Registrar are in compliance with ICANN and applicable law.

By entering into this Agreement, Reseller agrees to be bound by the terms and conditions of this Agreement for (a) any transactions entered into by Reseller, (b) any transactions entered into by anyone acting on behalf of Reseller, and (c) any transactions entered into by anyone using the account hereby established by Reseller with NetGains Marketing, whether or not the transactions are on behalf of Reseller.

1. Service Details

Subject to the terms and conditions of this Agreement, NetGains Marketing grants You a non-exclusive, non-transferable license to resell the Services worldwide. Your NetGains Marketing Reseller site is non-transferable and cannot be sold separately or in conjunction with the sale of an existing site or business.

Each resale of Services shall be subject to the product/service-specific agreement that is the subject of the resale. If the resale of Services includes the resale of domain names, each resale of Services shall be subject to the agreements listed below, as well as any applicable product/service-specific agreement:

1. Domain Name Registration Agreement
2. Uniform Domain Name Dispute Resolution Policy
3. ICANN Rules for Uniform Domain Name Dispute Resolution Policy

2. Price

Subject to the terms and conditions of this Agreement, Reseller acknowledges that prices and Transaction Fees (as hereinafter defined) are subject to change from time to time.

Service Pricing  

NetGains Marketing will provide its Services to You according to the NetGains Marketing price catalogue. You may set Your own prices between NetGains Marketing minimum pricing schedule up to the price ceilings set by NetGains Marketing.  Reseller prices and NetGains Marketing Ceiling Prices can be located here.

Annual/Monthly Licensing Fee  

Reseller will be responsible for a monthly licensing fee of $125 per month.

Charging Your Customers

You are responsible for charging your customers the dollar amounts designated by you, and NetGains Marketing will charge you a wholesale price, which may, from time to time change without notice.  You acknowledge that it is your responsibility to provide NetGains Marketing a valid Credit Card and understand that it is your responsibility to keep your account up to date.  However for select services such as NGM Consulting services, you authorize NetGains Marketing to charge each of Your customers the dollar amounts designated by You, up to the price ceilings set by NetGains Marketing. Selection of services and setting of prices are done through the Reseller’s site administration tool. For Select services charged directly to your client by Netgains Marketing, you will receive a predetermined commission payment of 12.5%.

Transaction Fees

Reseller will pay NetGains Marketing $.25 per customer order plus 2.5% of the total order cost (collectively, the “Transaction Fees”). Reseller acknowledges the Transaction Fees (a) are subject to change from time to time, and (b) are not subject to refund in the event a customer order is returned.

Money Back Guarantee

If within thirty (30) days of the date You purchase the Reseller Services, for any reason You want to cancel Your Reseller account, You will be entitled to a full refund of the sign-up fee. If You receive a full refund, You will not receive “Commission Payments” on purchases made through Your storefront. All customers who made purchases through Your storefront will be transferred to a different reseller to manage their products.

Fraudulent Transactions

Reseller agrees to hold NetGains Marketing harmless and to indemnify NetGains Marketing for and against transactions processed by NetGains Marketing on behalf of Reseller that are fraudulent in nature. These fraudulent transactions could result from, but are not limited to, misrepresentations in the domain registration or transfer process, or from the use of stolen or misappropriated credit cards.

3. commission Payments

Commission Payments for Resellers

The payout date is the date that the Commission Payment is sent to You. Commission Payments may be paid by email transfer.  You understand that it is your responsibility to provide NetGains Marketing a valid email address, predefined security question, and predetermined security answer. Failure to provide valid information will cause Your Commission Payments to be withheld pending receipt by NetGains Marketing of proper email instructions.

Commission payments will be paid out  monthly on the last day of the month. Should the last day of the month fall on a weekend or holiday, email transfers will be emailed out on the next business day. A One Hundred Dollar ($100.00) minimum threshold is required before an email transfer will be issued. Resellers receiving Commission Payments via email transfer acknowledge and agree that a Fifteen Dollar ($15.00) processing fee will be levied each time a Commission Payment check is sent.

Charge Backs

In the event of a credit card charge back, NetGains Marketing will deduct the amount of the credit card charge from Your Commission Payment. In the event that charge back experience is high, as determined by NetGains Marketing, NetGains Marketing reserves the right to hold back twenty percent (20%) of monthly Commission Payments for ninety (90) days from the date the Commission Payment was to be paid.

4. Term

This Agreement is in effect for one (1) year from the Effective Date of this Agreement and will automatically renew for one (1) year increments. Reseller agrees NetGains Marketing may modify this Agreement from time to time. Reseller agrees to be bound by any changes NetGains Marketing may reasonably make to this Agreement when such changes become effective. Should Reseller elect to cancel Reseller’s agreement with NetGains Marketing, Reseller will not receive a refund for any fees Reseller may have paid to NetGains Marketing. Upon termination, all customers will default to NetGains Marketing.

5. Termination

Either party may terminate this Agreement for a material breach of contract by the other party that has not been cured within ten (10) days. Either party must notify the other of such material breach in writing. Or, either party may terminate this Agreement with thirty (30) days written notice.  Should the reseller wish to terminate this Agreement, they must do so in writing by completing the Reseller Agreement Cancellation form, located here. Upon termination, all customers will default to NetGains Marketing.

6. Restriction of Service; Right of Refusal

Reseller agrees NetGains Marketing, in its sole discretion and without liability to Reseller, may terminate this Agreement if Reseller is found to be using NetGains Marketing Services in association with unsolicited commercial email (“spam”) or morally objectionable activities. Morally objectionable activities will include, but not be limited to:

       activities designed to defame, embarrass, harm, abuse, threaten, slander or harass third parties;

       activities prohibited by the laws of the United States and/or foreign territories in which Reseller conducts business;

       activities designed to encourage unlawful behavior by others, such as hate crimes, terrorism and child pornography;

       activities that are tortuous, vulgar, obscene, invasive of the privacy of a third party, racially, ethnically, or otherwise objectionable;

       activities designed to impersonate the identity of a third party; and

       activities designed to harm minors in any way.

In the event NetGains Marketing terminates this Agreement for spam or morally objectionable activities, no refund will be issued.

7. Export Restrictions

Title to products and services herein being purchased is retained by NetGains Marketing until goods are paid for by Reseller and at the time title passes to Reseller. Reseller agrees that Reseller is prohibited by law from exporting to certain countries, and shall comply with all export regulations if shipping to another country, including licensing requirements.

8. Customer Agreements

Reseller is required to ensure that Reseller’s customers agree to comply with the standard agreements provided to Resellers for each product or service they purchase from Reseller.

9. Customer Notices

If there are any recalls or retrofits of products, Reseller will assist NetGains Marketing in notifying Reseller’s customers.

10. Unauthorized Use

Upon the discovery of any unauthorized use or copying of NetGains Marketing products or services, Reseller will immediately notify NetGains Marketing. If Reseller is at fault in any way, Reseller may be held responsible for the cost of the legal proceedings.

11. Terms of Confidentiality

Reseller agrees that Reseller will exercise a reasonable level of care and discretion to prevent and restrain the use, disclosure, or reproduction of NetGains Marketing’s Confidential Information. “Confidential Information” means nonpublic information that NetGains Marketing designates as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential by Reseller. Confidential Information includes, but is not limited to, information in tangible or intangible form relating to and/or including released or unreleased products, the marketing or promotion of any of NetGains Marketing ‘s products, NetGains Marketing ‘s business policies or practices, and information received from others that NetGains Marketing is obligated to treat as confidential. Confidential Information does not include any information, however designated, that: is or subsequently becomes publicly available without Reseller’s breach of any obligation under this Agreement; became known to Reseller prior to disclosure under this Agreement; became known to Reseller from a source other than NetGains Marketing other than by the breach of an obligation of confidentiality owed to Reseller; or is independently developed by Reseller. This obligation shall last three (3) years after the termination of Your reseller account with NetGains Marketing.

12. Ethical Standards

Bribing or offering gifts in exchange for purchases by customers is prohibited and will result in termination of Your account.

13. Privacy

Reseller agrees to be bound by the Privacy Policy of NetGains Marketing in its dealings with customers and others and to post the Privacy Policy provided to Reseller by NetGains Marketing on Reseller’s home page. Failure to comply with such Privacy Policy will be deemed a material breach of this Agreement.

14. Branding

NetGains Marketing authorizes Reseller to brand the services by using Reseller’s name and logo along with Reseller’s name and logo. However, Reseller may not use the ICANN Accredited logo on Reseller’s marketing materials or web site.

15. Registrar Identification

Upon customer inquiry, Reseller must inform them that Wild West is the registrar on record. Reseller may not do anything to give the impression to anyone that Reseller is (a) the registrar on record or (b) an ICANN approved registrar.

16. Marketing Rights

NetGains Marketing (and NetGains Marketing related companies) will not market NetGains Marketing branded products and/or services to Reseller’s customers. However, NetGains Marketing (and NetGains Marketing related companies) may market Reseller branded products and/or services to Reseller’s customers.

17. Marketing services

From time to time, NetGains Marketing may make various marketing services available to Reseller.  The marketing services may include “Telemarketing Services”, “Email Marketing Services”, and/or “Online Advertising Services” (individually and collectively, “Marketing Services”).  The Marketing Services are designed to assist Reseller in more effectively marketing products and services to Reseller’s customers.  The Marketing Services will be offered on an opt-in basis. 

You acknowledge and agree that:

1. The Marketing Services are provided for convenience only, and NetGains Marketing makes no representations or warranties regarding the same;
2. NetGains Marketing reserves the right to modify, change, or discontinue any aspect of the Marketing Services at any time;
3. If you opt in to (or out of) the Marketing Services, it may take up to ten (10) business days for your changes to be effective; 
4. All Marketing Services (including, but not limited to, all discounts and promotions) will be selected by NetGains Marketing, and you will not be permitted to customize the Marketing Services (including, but not limited to, the discounts and promotions); and
5. NetGains Marketing’s discounts and promotions may reduce your Commission Payments and/or result in negative Commission Payments.

18. CUSTOMER Support services

NetGains Marketing will provide its standard customer support services (a) to Reseller and (b) to Reseller’s customers if Reseller so chooses.  

19. Notices

Reseller agrees that all notices (except for notices concerning breach of this Agreement) from NetGains Marketing to Reseller may be posted on our web site and will be deemed delivered within fifteen (15) days after posting. Notices concerning breach will be sent either to the email address Reseller has on file with NetGains Marketing or mailed first class postage to the postal address Reseller has on file with NetGains Marketing. In both cases, delivery shall be deemed to have been made five (5) days after the date sent. Notices from Reseller to NetGains Marketing shall be made by email.

20. No Solicitation

Reseller agrees that it will NOT approach NetGains Marketing’s employees with proposals to hire them as its own employees or contractors. If Reseller were to hire any of NetGains Marketing’s employees, Reseller agrees to pay NetGains Marketing for each employee hired the greater amount of three (3) years’ salary for that employee as Reseller is to pay such employee, or $200,000.

21. Representation and Warranties

Reseller represents and warrants that all information provided by Reseller as part of the registration process is complete and accurate. Reseller also represents and warrants that each registration Reseller makes is being done in good faith and that Reseller has no knowledge of it infringing upon or conflicting with the legal rights of a third party or a third party’s registration, trademark or trade name.

RESELLER ACKNOWLEDGES AND AGREES THAT NetGains Marketing MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT AND SPECIFICALLY MAKES NO GUARANTY TO RESELLER AGAINST THE POSSIBILITY OF OBJECTION TO, OR CHALLENGE OF, THE REGISTRATION OR USE OF ANY DOMAIN NAME RESELLER REGISTERS IN CONNECTION WITH THIS AGREEMENT.

NetGains Marketing expressly reserves the right to deny, cancel or transfer any registration that it deems necessary, in its discretion, to protect the integrity and stability of the registry, to comply with any applicable laws, government rules or requirements, requests of law enforcement, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of NetGains Marketing, as well as its affiliates, subsidiaries, officers, directors and employees. NetGains Marketing also reserves the right to freeze a domain name during resolution of a dispute.

22. Modification

This Agreement and its Attachments are subject to change. Reseller will be notified of such changes as they occur via the email contact supplied during the reseller signup process, which may be modified using the Reseller’s site administration tool.

23. Assignment

Reseller may not assign its rights or duties under this Agreement to another without the express written consent of NetGains Marketing, which will not be unreasonably withheld. NetGains Marketing may assign its rights and obligations under this Agreement without notice so long as the Services continue to operate as outlined in this Agreement.

24. Intellectual Property

Reseller agrees that NetGains Marketing and its parent and affiliate companies own the Advanced Programming Interface (“API”) license herein, as well as all other proprietary rights, including but not limited to copyrights, patents, and trade secrets, trademarks, and service marks and that this Agreement does not transfer ownership of any of these rights. NetGains Marketing expressly reserves its rights in and to all such content and materials. NetGains Marketing shall own all proprietary rights in any modifications to the API, whether created by NetGains Marketing, Reseller, users, or a third party. Reseller hereby assigns to NetGains Marketing all proprietary rights, including copyright, patent and trade secret rights, to any modifications created by Reseller. No license or right under any copyright, patent, trademark, service mark or other proprietary right or license, except the limited license provided below in this section, is granted to Reseller or conferred upon Reseller by this Agreement or otherwise.

Reseller will use all computer programs, documentation and information consisting of or containing proprietary information related to the API solely for the purpose of performing under this Agreement. Reseller will not decompile, disassemble or otherwise reverse engineer the API or cause others to do so. Reseller will not modify or cause others to modify the API, without the prior written consent of NetGains Marketing. Except as otherwise explicitly agreed in writing, NetGains Marketing-owned content described in this document may be downloaded, displayed, reformatted and printed for Reseller’s personal, non-commercial use only. Reseller agrees to prevent any unauthorized copying of the API. Content owned by NetGains Marketing advertisers, suppliers or licensors may be subject to additional restrictions. Reseller agrees to use the API and this document only within the scope of their intended business purposes.

Reseller will not use any of NetGains Marketing’s trademarks or other intellectual property unless specifically authorized by NetGains Marketing, will not register any trademark that is substantially similar to one owned by NetGains Marketing, and will not register or maintain any internet domain names containing trademarked terms owned by NetGains Marketing or its parent and affiliate companies (or domain names confusingly similar thereto.) Reseller shall not use any of NetGains Marketing or its affiliates’ intellectual property in its advertising except as specifically authorized by NetGains Marketing.  Reseller agrees not to use NetGains Marketing or its affiliates’ trademarks, including its web site URLs, as keyword terms in any online advertising campaigns.

Trademark License Guidelines

NetGains Marketing grants Reseller a non-transferable license to reproduce and display on its web site the following trademarks, pending trademarks, and product names (“Marks”) in association with Reseller’s name according to the limited specifications provided in this section: c-Site®, Express Email Marketing®, Stealthray®, SmartSpace™, Traffic Blazer®, Traffic Facts, Quick Shopping Cart®, Webmail, Online File Folder™, Virtual Safe Deposit Box, Website Tonight®, and Website Complete. NetGains Marketing also grants Reseller a non-transferable license to reproduce and display the copyrighted legal agreements and documents associated with each of the above services and provided in the Reseller Control Center, provided Reseller includes the correct copyright string and does not modify the agreements and documents.

Reseller is required to include a small disclaimer on its web site indicating the Marks used and their ownership by NetGains Marketing and its affiliates. Example language: “Third party marks are registered trademarks of their respective owners. All rights reserved.”

Reseller shall be required to check the Reseller Control Center periodically to monitor any changes to the Marks and copyrights, including but not limited to a change from a pending trademark (™) to a registered trademark (®). Reseller must promptly make any revisions to any affected Marks or copyrights it is using.

The NetGains Marketing products and services must be clearly identified by their names above, and the use of those names must be used only to accurately describe or reference NetGains Marketing products and services. Reseller is not required to identify NetGains Marketing next to each appearance of the Marks and copyrights, however, the Marks and copyrights must be reproduced exactly as they appear within this section or as authorized within the Reseller’s Control Center, and must include the applicable ® , ™, or copyright string. Each display of a Mark or copyright must appear substantially distinct from Reseller’s name or other text; so there is no appearance that they are owned by Reseller or that Reseller has any association with them, other than its association with NetGains Marketing.  NetGains Marketing may provide further specifications to Reseller in addition to these general guidelines and Reseller shall be obligated to adhere to them. Reseller is prohibited from displaying the Marks and copyrights in such a way that implies an affiliation, sponsorship, or endorsement of Reseller by NetGains Marketing other than Reseller’s relationship with NetGains Marketing as a reseller. In the event that NetGains Marketing determines, in its sole discretion, that Reseller’s use of the Marks, or any mark held by any of NetGains Marketing’s affiliates, constitutes a trademark infringement or dilution, NetGains Marketing may withhold Commission Payments until the issue is remedied and/or may immediately terminate Reseller’s account. (A trademark infringement occurs when an identical or confusingly similar mark is used in a manner that is likely to elicit confusion in the mind of the average consumer as to the source of goods or services. Trademark dilution occurs when an identical or confusingly similar mark is used in a manner that lessens the uniqueness of the registered mark.) All rights not expressly granted by NetGains Marketing to Reseller are reserved by NetGains Marketing.  NetGains Marketing may audit the use of its Marks and copyrights to determine compliance with this section, and NetGains Marketing reserves the sole discretion to restrict Reseller’s use of its Marks and copyrights. Reseller shall obtain the written permission of NetGains Marketing before using the Marks and copyrights for any purpose other than as explicitly provided in this section or in the Reseller’s Control Center.