THIS IS A BINDING LEGAL AGREEMENT. BY PROVIDING YOUR CONTACT INFORMATION TO NETBANKS AND BY SIGNING AND RETURNING TO NETBANKS A COPY OF THIS AGREEMENT. YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SIGN AND RETURN THIS AGREEMENT
NETBANKS: PROVIDER CLIENT AGREEMENT
You (and your organization, if appropriate) agree to the following business relationship with Netbanks, an internet.e-commerce division of WorldWideWeb Hosting Networks.

1.
Definitions.
1.1
"Account" means the money that Netbanks collects and holds for you, minus the amount Netbanks withholds to pay processing fees.
1.2
"Processing Fees" means the portion of your Product's purchase price that Netbanks retains from your Account as payment for providing the Netbanks Services to you.
1.3
"Customers" means the people and/or companies who purchase Products through the Netbanks Services.
1.4
"Data" means the Product order information that Customers provide.
1.5
"Netbanks Services" means the product ordering fulfillment services that Netbanks provides to you.
1.6
" Netbanks Merchant Member Sites" means Internet sites located in the Netbanks.Net domain, or other Internet sites associated with Netbanks.
1.7
"Product Information" means data you supply to Netbanks containing information about your Products such as names, descriptions and prices and the "by (the company)" clause..
1.8
"Products" means the licenses, physical products, information and/or services you sell through the Netbanks Services.
1.9
"Your Sites" means Internet sites with content that you control directly or indirectly.
1.10
"Chargeback" means that the credit card issuer has cancelled a previously authorized credit card charge, has returned the money from that credit card charge to the cardholder, and has deducted that money and the chargeback and additional processing fees from Netbanks
2.
Appointment.
2.1
Appointment. You hereby appoint Netbanks as an authorized non-exclusive representative to collect payment from Customers for your Products. Netbanks accepts this appointment and agrees to use reasonable efforts to perform the Netbanks Services with regard to your Products. The appointment lasts for the term of this Agreement.
3.
Netbanks Responsibilities.
3.1
Netbanks Services. Netbanks will:
3.1.a
Receive Data from Customers;
3.1.b
Deliver the Data for each order of your Products to you electronically;
3.1.c
Receive payments from Customers and credit the funds to your Account, minus any applicable fees/taxes charged on the sale of your Product, if Customer has not already paid such taxes. Customers may only pay Netbanks in credit card form accepting VISA/MC/AMEX/DISCOVER/DINERS/JCB/DISCOVER/CARTE BLANCHE/EUROCARD; and
3.1.d
Pay you the amounts in your Account, minus any fees for Payment Servicing, as set forth in Section 6, " Commision and Payment Servicing," below) according to the payment schedule in Section 7, "Payment of Compensation," (below)
3.2
Netbanks Services Standard. Netbanks will:
3.2.a
Protect your Data from unauthorized access, interception, and copying according to reasonable industry standards.
3.2.b
Provide the Netbanks Services in a timely manner so you can supply your Products to Customers in a timely manner; and
3.2.c
Maintain confidentiality of your Data, unless necessary to verify your identity, attempt to resolve disputes, process transactions, or comply with applicable laws or court orders. Netbanks may also compile and disclose aggregate data about the Netbanks Services.
3.2.d
Maintain confidentiality of Customer data for each transaction, if specified.
3.3
Limitations. Netbanks obligations, as described above in Section 3.2 " Netbanks Services Standard," are subject to the following limitations:
3.3.a
Netbanks is not responsible for how you conduct your business. In particular, Netbanks is not responsible to you or any third party for your failure to deliver Products or for any problems with your Products. If Netbanks is contacted by a Customer, Netbanks only responsibility is to provide the Customer with available contact information and encourage the Customer to contact you directly.
3.3.b
Netbanks is not responsible to you or any third party if Customers fail to deliver to Netbanks the full purchase price of Products ordered.
3.3.c
Netbanks has no obligation to market or maintain your Products or to achieve any level of sales for your Products;
3.3.d
Netbanks reserves the right to refuse orders from any Customer, for any reason;
3.3.e
Netbanks takes on no obligations not specified in this Agreement, fiduciary or otherwise;
3.3.f
Netbanks is not responsible for any failure or delay in performing its obligations if the failure or delay (1) is caused by your act or omission; (2) results from actions Netbanks takes in a reasonable good faith effort to avoid violating any law, rule, or regulation; or (3) is caused by circumstances beyond Netbanks control. Netbanks is not required to execute orders for Products that, to Netbanks knowledge, are illegal or restricted in the Customer's country, in your country, or in the U.S.;
3.3.g
Netbanks may stop providing the Netbanks Services to you if you (1) don't respond to communications from Netbanks in a timely manner, (2) don't respond to communications from Customers (in a timely manner,) or (3) don't abide by the terms of this Agreement. If Netbanks stops providing Netbanks Services for you, Netbanks may explain why to Customers. If Netbanks stops providing Netbanks Services for you and you fail to contact Netbanks, Netbanks will hold the funds in your Account for twelve (12) months, during which time Netbanks will attempt to contact you. After twelve months, any funds in your Account will be irrevocably transferred to Netbanks; and
3.3.h
You agree that no Internet transmission and encryption technology is completely safe from unauthorized access or tampering and agree not to hold Netbanks liable for any such acts.
3.4
Other Services. You may request in writing, other services from Netbanks not included in the Netbanks Services. Netbanks will reply with written notice of the costs and fees associated with such services, if such services are available ("Other Services"), and you may then either accept or reject Netbanks offer.
4.
Your Responsibilities.
4.1
Product Information. Upon Netbanks request, you will promptly deliver your Product Information to Netbanks.
4.2
Delivery. You agree to either (1) deliver your Products to Customers for each verified transaction within the time period you specify, or (2) within the same time period, to initiate a refund of money paid to Netbanks toward the purchase of your Products. You are responsible for all expenses relating to Product delivery or refund, including shipping, handling, storage, insuring, delivering, replacements for defective products, and replacements for undelivered products, even after Netbanks takes title to the Products shipped to Customers.
4.3
Delivery Method. Upon Netbanks request, you agree to promptly inform Netbanks of how each Product will be delivered, either as a physical object or via electronic transmission. Upon Netbanks request, for each Customer purchase of your Products you agree to promptly provide Netbanks with (a) date of shipment, (b) shipping method, and if available (c) a shipment tracking number. Title to the Products ordered by Customer shall pass to and vest in Netbanks upon the date such Products are ready to ship to the Customer.
4.4
Your Information. You agree to provide true and accurate information, including a valid Internet e-mail address for communicating with Netbanks. You must inform Netbanks promptly and in writing of any changes to your information.
4.5
Use of the Netbanks Services. In using the Netbanks Services, you agree:
4.5.a
Not to use the Netbanks Services to violate any law, regulation, or contractual obligation. You also agree not to use the Netbanks Services in any way that would cause Netbanks to be subject to investigation, prosecution or legal action.
4.5.b
To describe accurately your Products, their prices, how the Customer can purchase them, and the point at which a sale has been finalized and irreversible.
4.5.c
Not to use the Netbanks Services to have Netbanks transmit or to have Netbanks associated with any transmission of harassing, libelous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. You also agree that you will neither use the Netbanks Services or the Data to violate the privacy of the Customers. You agree to not intrude in areas of Netbanks servers and systems not specifically authorized to you.
4.5.d
Not to use the Netbanks Web address or e-mail address in any manner that is illegal or inappropriate, in Netbanks sole opinion.
4.6
Credit Card Information Restriction. You agree not to deliver to Netbanks any Customer payment information (bank account information, credit card or debit card account numbers, expiration dates, or security information, or account details for any other method of payment) where the payment information delivered is sufficient to purchase products. If you attempt any such delivery, Netbanks may immediately terminate this Agreement without liability.
4.7
Customer Support. You agree that you are solely responsible for providing support for your Products to Customers. You further agree that you are responsible for all costs related to supporting your Products.
4.8
Customer Privacy. You agree to maintain the confidentiality and limit the use of Customer data you receive from each transaction in the most restrictive manner as specified for each transaction by Netbanks and the Customer.
5.
License Grants.
5.1
Your License. Netbanks grants to you a worldwide, non-transferable, and non-exclusive license to create hypertext links from Your Sites to the Netbanks Sites to give potential Customers access to the Netbanks Services. Netbanks grants to you a worldwide, non-transferable, and non-exclusive license to display Netbanks logos and trademarks on Your Sites unless such display on Your Sites is deemed inappropriate by Netbanks.
5.2
Netbanks Product License. If any of your Products are electronically distributed, Netbanks may request a sample for Netbanks internal use and/or marketing purposes. If you agree to this request, you grant to Netbanks, for use by Netbanks personnel only, a worldwide, non-transferable, non-exclusive, royalty-free and paid-up license to use, reproduce, publicly display and publicly perform the Products for internal use and/or marketing purposes. Such grant by you to Netbanks for internal use may be revoked at any time with 180 day notice.
5.3
Netbanks Product Information License. You grant to Netbanks a worldwide, non-transferable and non-exclusive license to use and publicly display your Product Information within the Netbanks Services.
5.4
Restrictions and Reservation of Rights. You and Netbanks reserve all rights not otherwise expressly granted in this Section 5, "License Grants."
5.5
Netbanks License. You grant to Netbanks a worldwide, non-transferable, and non-exclusive license to create hypertext links from the Netbanks Sites to Your Sites. You grant to Netbanks a worldwide, non-transferable, and non-exclusive license to display and/or index on Netbanks Sites your logos, trademarks, images, and information that you have specified to Netbanks.
6.
Commmision and Payment Servicing.
6.1
Commission. The Commission varies from a fixed price from $2.50 to 5.5% plus $0.50 cents per transaction depending on the transaction price bracket indicated in Netbanks Website at http://www.netbanks.net. All payments to vendors are in U.S. dollars unless otherwise specified by Netbanks. Netbanks may amend the amount at any time deemed necessary and different fees may apply for different cards not mentioned here.
6.2
Payment Servicing. Payment Servicing may include any amounts incurred by Netbanks in handling Customer requests, such as, but not limited to, credit card refunds, credit card chargebacks, long distance phone or fax charges, postage supplies, costs associated with conversion of currency, and document delivery. Payment Servicing may also include any amounts paid by Customers to Netbanks for the delivery of written receipts.
6.3
Revisions. Netbanks may revise its fee rates and fee structure with thirty (30) days advance notice. If the new fees are not acceptable to you, you may terminate this Agreement as provided below in Section 13, "Term and Termination;" otherwise, the new fee structure will apply to all transactions after the effective date of the rate change.
7.
Payment of Compensation.
7.1
Account. Netbanks will use reasonable efforts to establish and maintain your Account. Netbanks will credit and debit money from Product orders to your Account in accordance with this Agreement. You agree that you are not entitled to any interest generated from amounts on deposit in your Account.
7.2
Vendor Payments. Approximately 30 days after the end of every cutoff payment period, which may be monthly or semi-monthly, depending on the discretion of Netbanks .The Payment Lead time may vary depending on circumstances of which the Vendor will be duly informed of.
7.3
Reserve Funds and Withholding. Netbanks may use reserve funds to protect against catastrophic loss due to fraud, theft, human error, or excessive customer disputes. Each member merchant may be imposed of reserve funds percentage if their history indicates excessive chargebacks. Notation of excessive chargeback is under Netbanks' discretion. This can increase or decrease depending on your account activity. Reserve Funds are paid to vendors 180 days rolling. Payment periods may be semi-monthly or monthly depending on the volume of transaction of the client. Netbanks may also withhold certain amounts from Vendor Payments if Netbanks anticipates that Customers will request that those amounts be returned, or if Netbanks anticipates the non-delivery of Products. Netbanks will resume the delivery of Vendor Payments when Netbanks determines that the balance of Vendor Payments exceeds the amount potentially necessary to cover reimbursements to Customers.
7.4
Returns. Netbanks shall attempt to notify you within two (2) business days of any request received from a Customer for a refund of money paid to Netbanks toward the purchase of a Product ("Refund Request"). Netbanks shall refund Customer's money paid for the order and shall debit the money from your Account if either (i) Netbanks receives your approval of a Refund Request within ten (10) days of Netbanks Refund Request notification, or (ii) Netbanks receives no response from you within ten (10) days of the Refund Request notification, or (iii) in Netbanks opinion the denial of a Refund Request will with a high probability result in a Chargeback. Netbanks shall not refund Customer's money if within ten (10) days of Netbanks Refund Request notification, either (i) the Customer withdraws the Refund Request, or (ii) you provide to Netbanks the credit card company fee required for Netbanks to challenge a Chargeback that might result from denying such Refund Request.
7.5
Accounting. A detailed accounting will be provided for Vendor Payments, identifying the source and amount of revenues received by Netbanks on your behalf, along with the applicable Commissions and Payment Servicing fees withheld.
7.6
Inspection Rights. At your own expense, you may annually inspect Netbanks records to verify amounts payable under this Agreement. Netbanks will maintain such records for at least one (1) year after the dates of the underlying transactions. Any such inspection will be confidential and conducted during ordinary business hours after Netbanks is given reasonable written notice, in no event less than one (1) week. You may employ a certified public accountant for this purpose. If you do so, and if the sum of all revenues paid to you for twelve (12) months preceding the inspection is in error by five percent (5%) or more, then Netbanks will pay the documented expenses of the accountant. If the sum of all revenues paid to you for twelve (12) months preceding the inspection is in error, the error shall be corrected by either; (a) you paying Netbanks any overpayment or, (b) Netbanks paying you any underpayment.
7.7
Chargebacks. Netbanks shall attempt to notify you within two (2) business days of any chargeback or chargeback request received for money paid to Netbanks toward the purchase of a Product (Chargeback Request). Chargeback requests are imposed by credit card issuers and you understand that Netbanks cannot decline a Chargeback Request. In the attempted notification, Netbanks may offer you possible choices and estimated costs on ways you may attempt to reverse the Chargeback Request. Netbanks will charge you $10.00 - $50.00 for each chargeback incident at our discretion.
8.
Intellectual Property Ownership and Proprietary Rights Notices. All title, ownership rights, and intellectual property rights in the Netbanks Services and Netbanks Sites and any modifications or derivative works of the Netbanks Services or Netbanks Site, whether made by Netbanks, you, or anyone else, are and will remain Netbanks sole property. The Netbanks Services and Netbanks Site are protected by copyright and other intellectual property laws and by international treaties.
9.
Disclaimer of Warranties.
9.1
Limitation on Warranties. Netbanks makes the following disclaimers of warranty:
9.1.a
Netbanks makes no warranty that the Netbanks Services will meet your requirements, or that the Netbanks Services will be uninterrupted, timely, secure, or error free. Netbanks makes no warranty as to the results that you may obtain from the use of the Netbanks Services or as to the accuracy or reliability of information obtained through the Netbanks Services.
9.1.b
You understand and agree that there are inherent limitations with secure transaction processing over the Internet, and you agree to determine whether the Netbanks Services meet your required level of security. Any breaches of security or delays in data transmissions related to the Netbanks Services are at your sole risk and Netbanks expressly disclaims any liability as to such a delay or security breach.
9.1.c
You understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Netbanks Services is done at your own discretion and risk and that you are solely responsible for any damage to your computer system or loss of data that results from the download of such material and/or data.
9.1.d
Netbanks makes no warranty regarding any goods or services purchased or obtained through the Netbanks Services or any transactions entered into through the Netbanks Services.
9.1.e
No advice or information, whether oral or written, obtained from Netbanks or through the Netbanks Services creates any warranty not made in this Agreement.
9.1.f
No dealer, agent, or employee of Netbanks is authorized to make any customized modifications, extensions, or additions to the limited warranty set forth here in Section 9.1, "Limitation on Warranties" in this Agreement with you.
9.2
NETBANKS PROVIDES THE NETBANKS SERVICES AS DESCRIBED IN THIS AGREEMENT "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. YOU EXPRESSLY AGREE THAT YOUR USE OF THE NETBANKS SERVICES IS AT YOUR SOLE RISK. EXCEPT FOR THOSE WARRANTIES WHICH CANNOT BE DISCLAIMED UNDER APPLICABLE LAW, NETBANKS EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, AS TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, ANY AND ALL WARRANTIES, CONDITIONS AND REPRESENTATIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY, UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. You expressly agree that your use of Netbanks Services is at your sole risk.
10.
Limitation Of Liability.
10.1
No Consequential Damages. TO THE MAXIMUM EXTENT UNDER APPLICABLE LAW, NETBANKS WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND RESULTING FROM THE (i) USE OR THE INABILITY TO USE THE NETBANKS SERVICES, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS RESULTING FROM ANY PRODUCTS PURCHASED OR OBTAINED VIA USE OF THE NETBANKS SERVICES, (iii) MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE NETBANKS SERVICES, OR (iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUE OR GOODWILL; WORK STOPPAGE IN ANY WAY ARISING OUT OF OR RELATED TO THE NETBANKS SERVICES OR THIS AGREEMENT; COMPUTER FAILURE OR MALFUNCTION; OR ANY AND ALL OTHER COMMERCIAL DAMAGES, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF NETBANKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2
Basis of Bargain. THIS DISCLAIMER OF LIABILITY FOR SUCH DAMAGES WILL NOT BE AFFECTED BY ANY FAILURE OF THE SOLE AND EXCLUSIVE REMEDIES UNDER THIS AGREEMENT. YOU HAVE ACCEPTED THE DISCLAIMER OF LIABILITY FOR DAMAGES AS PART OF THE BASIS OF THE BARGAIN AND UNDERSTAND THAT THE FEES HEREUNDER WOULD BE HIGHER IF NETBANKS WERE REQUIRED TO BEAR LIABILITY FOR SUCH DAMAGES.
10.3
Damages Cap. IN NO CASE WILL NETBANKS'S TOTAL LIABILITY TO YOU ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE TOTAL FEES AND COMMISSIONS RETAINED BY NETBANKS PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO SUCH DAMAGES.
11.
Title and Indemnification.
11.1
Title and Indemnification by Netbanks. Netbanks represents that it has sufficient right, title, and interest in the Netbanks Sites to enter into this Agreement. Netbanks will indemnify, defend, and hold you harmless against any loss or damage, including attorneys' fees and costs of litigation, arising from claims of a third party based in whole or part on:
11.1.a
the infringement of a copyright or trademark by the Netbanks Sites actually known to Netbanks; or
11.1.b
the gross negligence or willful misconduct of Netbanks, its employees or agents.
11.2
Title and Indemnification by You. You represent that you have sufficient right, title and interest in the intellectual property associated with the Product Information and Your Site. You will indemnify, defend, and hold Netbanks (its parents, subsidiaries, affiliates, officers, and employees) harmless against all loss, damage or expense of any kind, including attorneys' fees and costs of litigation, arising from claims of a third party (including claims, assertions and investigations of a governmental agency) that arise in whole or part from:
11.2.a
your misuse of the Data;
11.2.b
any action arising from Products or use of the Products purchased via the Netbanks Services;
11.2.c
the infringement by your Products, Product Information, or Your Site, of any patent, copyright, trademark, or other intellectual property right or other right of any person or entity;
11.2.d
false advertising, a Lanham Act claim, privacy or slander based on Products purchased through or statements made on Your Site or in the Product Information; or
11.2.e
your gross negligence or willful misconduct or that of your employees or agents.
11.3
Procedure. In the event either you or Netbanks becomes aware of a claim described in Sections 11.1, "Title and Indemnification by Netbanks," or 11.2, "Title and Indemnification by You," for which you or Netbanks may seek indemnification (the "Indemnified Party"), the Indemnified Party will promptly give the other party (the "Indemnifying Party") notice of the claim within fourteen (14) days following the date that the Indemnified Party became aware of such claim, and permit the Indemnifying Party to assume the defense of the claim. The Indemnified Party will cooperate fully in defense of the claim, and the Indemnifying Party will pay the Indemnified Party's costs and expenses as incurred. The Indemnifying Party will have no liability under this Section 11, "Title and Indemnification," unless the Indemnified Party has complied with the obligations laid out in this paragraph.
11.4
Prevention of Infringement. If any component of the Netbanks Sites becomes, or in Netbanks opinion is likely to become, the subject of a claim of infringement, then you will permit Netbanks, at Netbanks option and expense, either (a) to procure for you the right to continue using the Netbanks Sites as permitted in this Agreement, or (b) to replace or modify the infringing component of the Netbanks Site so it no longer infringes. If, after using reasonable efforts, Netbanks is unable to cure the infringement, either party may terminate this Agreement upon thirty (30) days written notice to the other. If any component of Your Sites becomes, or in your opinion is likely to become, the subject of a claim of infringement, then Netbanks will permit you, at your option and expense, either (i) to procure for Netbanks the right to continue using Your Sites as permitted in this Agreement, or (ii) to replace or modify the infringing component of Your Sites so it no longer infringes. If, after using reasonable efforts, you are unable to cure the infringement, either party may terminate this Agreement upon thirty (30) days written notice to the other.
11.5
Sole and Exclusive Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF NETBANKS, AND IS YOUR SOLE AND EXCLUSIVE REMEDY FOR, INFRINGEMENT OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY KIND IN ANY JURISDICTION. Netbanks will have no liability to you if any alleged infringement or claim is based on (i) modifications to the Netbanks Sites made by you, or (ii) the use of the Netbanks Sites in connection or combination with equipment, devices, services or software or in a manner for which it was not intended.
12.
Confidentiality.
12.1
Definition of Confidential Information. "Confidential Information" means all materials or information disclosed by either you or Netbanks (the "Disclosing Party") to the other (the "Recipient") in confidence. Confidential Information does not include information that:
12.1.a
is or becomes generally available to the public other than
12.1.a(i)
as a result of a disclosure by the Recipient, the Recipient's employees, or any other person who receives the information from the Recipient or the Recipient's employees; or
12.1.a(ii)
as a result of a disclosure by a third party who is known by the Recipient as having violated a confidentiality obligation to the Disclosing Party,
12.1.b
is or becomes available to Recipient on a non-confidential basis from a source that is entitled to disclose it to Recipient, or
12.1.c
was developed by employees or agents of the Recipient independently of and without reference to any information communicated to the Recipient by the Disclosing Party.
12.2
Obligation of Confidentiality. During the term of this Agreement, the Disclosing Party may provide Confidential Information to the Recipient, who agrees to the following:
12.2.a
The Recipient will hold the Confidential Information in strict confidence, with the understanding that the Recipient may disclose the Confidential Information to employees, contractors, and advisors who need to know the Confidential Information to fulfill the Recipient's obligations under this Agreement.
12.2.b
The Recipient will advise these individuals that the Confidential Information is confidential and that by receiving such information they agree to be bound by the terms of this Section 12, "Confidentiality".
12.2.c
Without the Disclosing Party's prior written consent, the Recipient will not, and will direct its employees, contractors, and advisors not to, disclose the Confidential Information in whole or part, except to the extent compelled by law.
12.2.d
The Recipient will employ all reasonable steps to protect the Confidential Information from unauthorized or inadvertent disclosure or use, including all steps that the Recipient takes to protect its own trade secrets.
12.3
Injunctive Relief. You understand and agree that monetary damages would not be a sufficient remedy for any breach of the Recipient's obligations under Section 12, "Confidentiality" and that the Disclosing Party will be entitled to specific injunctive relief as a remedy for any such breach. Such remedy will be in addition to all other available legal or equitable remedies. The Recipient agrees to reimburse the Disclosing Party for all costs and expenses incurred by the Disclosing Party related to enforcement of Section 12, "Confidentiality," of this Agreement.
13.
Term and Termination.
13.1
Term. This Agreement will continue until terminated by either you or Netbanks. Netbanks may terminate this Agreement by giving you at least thirty (30) days written notice. You may terminate this Agreement by giving Netbanks at least thirty (30) days written notice.
13.2
Termination for Breach or Insolvency. Either you or Netbanks may terminate this Agreement (i) upon thirty (30) days written notice for material breach by the other of any of its obligations as laid out in this Agreement unless such breach is cured with a thirty (30) day period, and (ii) immediately after giving written notice if the other party becomes insolvent or if any proceeding is commenced by or against the other party under any law providing relief to such other party as debtor.
13.3
Termination in Case of Violation of Law. Netbanks may terminate this Agreement immediately without liability if (i) Netbanks is notified or otherwise determines in good faith that you are using the Netbanks Services in any way that violates any law, rule, or regulation, or (ii) Netbanks, or its directors, officers, stockholders, employees or agents are made the subject of a criminal or civil action or investigation or are threatened by such action as a consequence of your use of the Netbanks Services.
13.4
Rights Upon Termination. Upon termination of this Agreement:
13.4.a
You will immediately cease using the Netbanks Services;
13.4.b
Within thirty (30) days after the termination, you and Netbanks will both immediately deliver to the other or destroy all copies of Confidential Information or other materials owned solely by the other. If these materials are destroyed, you or Netbanks will provide to the other written certification within fifteen (15) days of such destruction.
13.5
Survival. Sections which by their nature survive termination will survive any termination of this Agreement, including: Sections 6 ("Commission and Payment Servicing"), 7 ("Payment of Compensation"), 8 ("Intellectual Property Ownership"), 9 ("Disclaimer of Warranties"), 10 ("Limitation of Liability"), 11 ("Title and Indemnification"), 12 ("Confidentiality"), 13 ("Term and Termination") and 14 ("General Provisions").
14.
General Provisions.
14.1
Governing Law. With regard to governing law, you agree that:
14.1.a
This Agreement and all disputes related to this Agreement are governed by the laws of the Philippines without regard to the choice of law provisions.
14.1.b
The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
14.2
Dispute Resolution. With regard to any disputes related to this Agreement, you agree that:
14.2.a
Any disputes will be resolved first by submitting them to confidential non-binding mediation, without regard to the choice of law provisions.
14.2.b
Nothing in this Agreement prevents either you or Netbanks from instituting, prosecuting or defending an action
14.2.b(i)
in a claim seeking injunctive relief or any other provisional remedy
14.2.b(ii)
in a claim involving the intellectual property rights of either you or Netbanks, or
14.2.b(iii)
if you or Netbanks fails to cooperate in selecting an arbitrator or scheduling or holding an arbitration proceeding.
14.2.c
In any litigation arising out of the Agreement you and Netbanks submit to the jurisdiction of and waive any venue objections against, Quezon City Courts
14.2.d
You and Netbanks agree that any cause of action arising out of or related to this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
14.3
Attorneys' Fees. The prevailing party in any dispute related to this Agreement is entitled to recover its reasonable attorneys' fees and costs.
14.4
Notices. Unless otherwise required by law, notices may be given in writing via postal mail, fax, or through electronic transmission. Notices to you will be sent to the most recently updated electronic mail address you provide to Netbanks, and notices to Netbanks should be sent to legal@netbanks.net
14.5
Assignment. Neither you nor Netbanks may assign this Agreement to a third party without the prior written consent of the other, with the understanding that consent will not be unreasonably withheld or delayed. However, either you or Netbanks, without the other's consent, may assign this Agreement in connection with any merger, reorganization, sale of all or substantially all of the company's assets, acquisition or similar combination. This Agreement will apply to and bind any successor or permitted assignees.
14.6
No Agency. Both you and Netbanks are acting as an independent contractor and not as an agent, partner, or joint venture with the other. Except as provided in this Agreement, neither you nor Netbanks may act or create any obligation on behalf of the other.
14.7
Entire Agreement; Miscellaneous. This Agreement constitutes the entire agreement between you and Netbanks related to the Netbanks Services and supersedes any and all prior or contemporaneous written or oral agreements between you and Netbanks pertaining to the Netbanks Services. You and Netbanks may modify this Agreement only in a written document that states its intent to modify this Agreement and is signed by both you and Netbanks. No waiver of any obligation under this Agreement shall be valid except if in writing and signed by the party against whom enforcement is sought. If any provision of the Agreement is held by a court to be contrary to law, then such provision will be construed to reflect the intentions of you and Netbanks with the other provisions remaining in full force and effect. The section titles in this Agreement are solely used for convenience and have no legal or contractual significance.
14.8
Confirmation of Your Acceptance. If the terms of this Agreement are acceptable, and you wish to agree to them and be legally bound by them, then sign and return this agreement.

Agreed and Accepted:

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