Terms and Conditions

The following are our standard agency terms and conditions upon working with NetGain. 

1. Appointment as Agency of Record (AOR)

Unless otherwise expressly stated, Client appoints Agency as Client’s agency of record as advertising and creative agency in connection with the products and/or services of Client described in Scope of Services, attached hereto, for a term (“Term”)
as hereinafter provided.

2. Scope of Services

Agency will provide Client with advertising and creative services. These are as follows but not limited to;
marketing strategy, digital campaigns, pay per click campaigns, web development, web design, graphic
design, web hosting, data analytics, media buys, media relations, email marketing, geographic targeting
and retargeting advertisements, print and billboard advertising, collaborations and strategic partnerships.
Should Client request the Agency to perform additional services beyond what is provided, Agency and
Client will negotiate in good faith with respect to the terms, conditions, and compensation for such
additional services. Any agreement for additional services will be set forth in writing and considered an
addendum to this Agreement. 

3. Ownership 

All campaigns, trademarks, service marks, slogans, artwork, written materials, drawings, photographs,
graphic materials, film, music, transcriptions, or other materials that are subject to copyright, trademark,
patent, or similar protection (collectively, the “Work Product”) produced by Agency are the property of the
Client provided: (1) such Work Product is accepted in writing by the Client within twelve (12) months of
being proposed by Agency; and (2) Client pays all fees and costs associated with creating and, where
applicable, producing such Work Product. Work Product that does not meet the two foregoing conditions
shall remain Agency’s property.
Notwithstanding the foregoing, it is understood that the Agency may, on occasion, license materials from
third parties for inclusion in Work Product. In such circumstances, ownership of such licensed materials
remains with the licensor at the conclusion of the term of the license. In such instances, Client agrees that
it remains bound by the terms of such licenses. Agency will keep Client informed of any such limitations.

4. Term 

The term of this Agreement shall be deemed commenced on date of engagement.

If the agreement is cancelled by Client before the term expires, it will be considered a breach of contract.
Client will owe any remaining receivables and the balance of the remaining contract in its entirety to the
Agency within 30 days. It is agreed that any costs incurred collecting or costs of legal fees in collecting
past due amounts will be paid in full with interest by the Client to Agency.
Upon termination, Agency will transfer and/or assign to Client: (1) all Work Product in Agency’s
possession or control belonging to Client, subject, however, to any rights of third parties; and (2) all
contracts with third parties, including advertising media or others, upon being duly released by Client and
any such third party from any further obligations

5. Compensation and Billing Procedure
Agency will be compensated and Client will be billed as prescribed. 

Any retainer does not
include outside costs of advertising (ie. media buys) 


(1) On any and all media purchased by Agency, Agency shall bill Client at the published card rates, or
negotiated rates, as may be applicable. Any other direct costs incurred by the agency agree to be
covered by Client. 

(2) With respect to the engagement of talent, the Agency shall bill the Client the authorized engagement
rate, plus any taxes, insurance, pension and health fund contributions, etc. applicable thereto. 

(3) On broadcast production, artwork, engravings, type compositions, and any and all art and mechanical
expenses incurred by Agency pursuant to Client’s authorization, Agency shall invoice Client an amount
which, after deduction of Agency’s cost. 

(4) Fees not applied to advertising expenses stated above will be billed as part of the retained or
additional blended Agency services at a rate of $150 per hour. 

(5) The Agency will provide the Client with a monthly invoice. An accounting of utilization will be provided
within 30 days of month end. Work exceeding the monthly retainer will be billed as blended Agency
services of $150 per hour. Retainer hours may only be utilized in the month they are accrued and will not
be transferred or ‘banked’ from month to month. Unused hours or commissions will be assumed as profit
by the Agency. 

B. Client agrees to reimburse Agency for such cash outlays as Agency may incur, such as forwarding and
mailing, telephoning and travel, in connection with services rendered in relation to Client’s account. 

II. Billing and Payment Procedures 

A. Agency will invoice Client for all media and third-party costs sufficiently in advance of the due date to
permit payment by Client to Agency. 

B. The cost of production materials and services shall be billed by Agency upon completion of the
production job, or upon receipt of supplier invoice prior thereto. 

C. On all outside purchases other than for media, the Agency will attach to the invoice proof of billed
charges from suppliers. 

D. All invoices shall be provided within the first week of each month and will be payable within 30 days. 

E. After 30 days, interest will be charged on all overdue invoices at a rate of 2% (percent) per month
compounded monthly.

6. Confidentiality and Safeguard of Property 

Client and Agency respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either party prior to disclosure. Agency and Client will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither Agency nor Client will be responsible for any loss or damage. 

7. Indemnities 

Agency agrees to indemnify and hold Client harmless with respect to any claims or actions by third parties against Client based upon material prepared by Agency, involving any claim for libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright, except where any such claim or action arises out of material supplied by Client to Agency. Client agrees to indemnify and hold Agency harmless with respect to any claims or actions by third parties against Agency based upon materials furnished by Client or where material created by Agency is substantially changed by Client. Information or data obtained by the Agency from Client to substantiate claims made in advertising shall be deemed to be “materials furnished by Client.” Client further agrees to indemnify and hold Agency harmless with respect to any death or personal injury claims or actions arising from the use of Client’s products or services. 

8. Commitments to Third Parties 

All purchases of media, production costs, and engagement of talent will be subject to Client’s prior approval. Client reserves the right to cancel any such authorization, whereupon Agency will take all appropriate steps to effect such cancellation, provided that Client will hold Agency harmless with respect to any costs incurred by Agency as a result. For all media purchased by Agency on Client’s behalf, Client agrees that Agency shall be held solely liable for payments only to the extent proceeds have cleared from Client to Agency for such media purchase; otherwise, Client agrees to be solely liable to media (“Sequential Liability”). Agency will use its best efforts to obtain agreement by the media to Sequential Liability. 

9. Amendments 

Any amendments to this Agreement must be in writing and signed by the Agency and Client. 

10. Notices 

Any notice shall be deemed given on the day of mailing or, if notice is by email, or fax, on the next day following the day notice is e-mailed or faxed. 

11. Governing Law 

This Agreement shall be interpreted in accordance with the laws of the Province of Ontario without regard to its principles of conflicts of laws. Jurisdiction and venue shall be solely within the Province of Ontario.