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HomeGain Affiliate Agreement

Affiliate Program | Affiliate FAQ | Affiliate Agreement

This HomeGain Affiliate Program Operating Agreement (the "Agreement") contains the complete terms and conditions that govern your participation in the HomeGain Affiliate Program ("Program") of HomeGain.com, Inc.

1. Enrollment in the HomeGain Affiliate Program


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You must submit an accurate and complete Affiliate Application via our Web site to register with the HomeGain Affiliate Program. HomeGain will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine, in our sole discretion, your web site is unsuitable for the Affiliate Program for any reason, in HomeGain's sole discretion. HomeGain may reject your application, or terminate your participation in the HomeGain affiliate Program if your web site includes images or content that, at any time, is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable such as web sites that: depict sexually explicit images; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities or incorporate any materials which infringe or assist others to infringe any copyright, trademark or other intellectual property rights (collectively "Content Restrictions").

2. Promotion of the HomeGain Affiliate Program Relationship

As an Affiliate Site, HomeGain will make available to you banner advertisements, buttons, and/or text links to our web site, containing HomeGain's logo and/or words identifying HomeGain (each of these links sometimes being referred to herein as "Links" or, individually, as a "Link"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your web site as you desire. The Links will serve to identify your web site as a member of the HomeGain Affiliate Program and will establish a link from your web site to ours. We have the right, in our sole discretion, to monitor your web site at any time to determine if you are in compliance with the terms of this Agreement. You agree that you will immediately comply with any HomeGain request for removal or modification of HomeGain content that you may have included on your site. You agree that HomeGain has the right to approve and request termination of any search campaigns that you might utilize to promote HomeGain. You agree that HomeGain's failure to object to any particular campaign shall not be a waiver of its right to request termination of a campaign.

You agree to comply with any and all requirements set forth by search engine's regarding the promotion of HomeGain through their products and services. This includes changes to the Google Affiliate Advertising Policy and any other policy changes that take effect. Affiliate is solely responsible for complying with any changes. Any partners using search engine PPC campaigns must comply with all rules and codes of conduct set forth by the specific PPC provider when promoting HomeGain or any HomeGain product.

You may not use HomeGain content in any email based advertising without HomeGain's prior written permission. HomeGain takes the issue of unsolicited commercial e-mail (UCE or SPAM) seriously. In the event that you will use e-mail to promote HomeGain's products or services, you agree to adhere to the following provisions:
  1. Affiliate represents and warrants as follows:
    -Each addressee on Affiliate's e-mail list has opted-in to receive e-mails from Affiliate.
    -Upon request by HomeGain, you will promptly provide evidence of verified opt-in status.
    -Each e-mail sent by you will contain clear instructions for addressees to unsubscribe from receiving future e-mails.
    The "From" line will not contain the words "HomeGain" or "Home Gain".
    -Affiliate shall send e-mails on behalf of HomeGain only in accordance with applicable laws.


  2. Suppression. HomeGain may provide to You a list of e-mail addresses to which e-mails on behalf of HomeGain must not be sent ("Suppression List"). Affiliate shall ensure that all e-mail addresses on the Suppression List are removed from the list of e-mails to be sent on HomeGain's behalf and that no e-mails on HomeGain's behalf shall be sent to such addresses.


  3. Permitted Use of List; Non-Disclosure. Affiliate shall use the Suppression List solely for the purpose of preventing e-mail from being sent to the addresses contained on the Suppression List. Affiliate acknowledges that the Suppression List is highly confidential, contains proprietary and trade secret information of HomeGain, that HomeGain owns all rights to the Suppression List and that Affiliate acquires no rights to such list hereunder. Affiliate shall hold the Suppression List in strict confidence and shall disclose the Suppression List solely to those employees of Affiliate who need to access it solely to prevent e-mail from being sent to e-mail addresses contained on the Suppression List. Affiliate agrees not to disclose all or any part of the Suppression List to any third party. Affiliate agrees that breach of this provision shall constitute a material breach of this Agreement and will subject HomeGain to irreparable harm, and that HomeGain is entitled to seek injunctive relief to prevent the breach of this Agreement, in addition to any other relief available to it under law or equity.


  4. Indemnification. Affiliate shall indemnify and hold HomeGain harmless from and against any and all claims, costs, liabilities and damages (including attorneys' fees) arising from breach or alleged breach of its representations, warranties or obligations under these Anti-SPAM Provisions.

You agree not to employ or use any type of software download or technology which attempts to intercept or re-direct traffic or referrals to or from, any other website without the written consent of HomeGain. If granted consent, you further agree not to employ or use any program employing browser-helping objects without the explicit written consent of the user as well as the provision of a clear and unambiguous mechanism to uninstall such program.

The following actions are prohibited.

  1. Taking any action that could reasonably cause any customer confusion as to HomeGain's relationship with you, or as to the site on which any functions or transactions (such as search, order, and browse) are occurring.
  2. Employing any technology, including, but not limited to, pop-ups, pop-unders and pop-overs, to serve messages to consumers on the HomeGain web site or on HomeGain-branded pages of a third party web site, designed to divert them to another web site or to pull them away from the site he/she is currently viewing.
  3. Assisting any third party to take any action that would be a prohibited activity if you engaged in it.
Failure to comply with this section may result in suspension or termination from HomeGain's Affiliate Program. If placed on suspension, you will be prohibited from participating in the Affiliate Program and will be ineligible to receive any commissions on the HomeGain leads generated during the period the illegal action was taken. You will have the opportunity to opt back into HomeGain's Affiliate Program once you are in complete compliance with this section. A second violation of this section may result in permanent termination from the HomeGain's affiliate program.

3. Utilizing HomeGain Links on Your Web Site

In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You shall not alter, modify or expand the Links in any way; however, a Link may be modified and/or expanded only with the prior written consent of HomeGain

4. Order Processing

HomeGain will be responsible for providing all information necessary to allow you to incorporate appropriate Links from your web site to our web site. HomeGain will be solely responsible for processing every service request submitted by a customer on your site via the HomeGain Affiliate Program (each referred to individually as a "Registration" and collectively as "Registrations") submitted as a result of the Links from your web site to the HomeGain web site. We reserve the right to reject any Registration that does not comply with HomeGain's then current requirements, which are periodically modified. HomeGain will be solely responsible for customer service related to the Registration forms submitted, tracking the number of Registrations generated by your web site and the corresponding revenue (as defined in Section 5 below) and HomeGain will make unaudited reports summarizing this sales activity available to you through our site. The form, content, and frequency of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting, and revenue accrual, you must ensure that the Links between your web site and our web site are properly formatted and created using HomeGain's site as referenced in Section 2.

5. Compensation Determination

Subject to the terms and conditions of this Agreement, we will pay you marketing fees as specified below for all unique Registrations referred through your web site in accordance with the then-current Program Term Details. For you to generate marketing fees, a visitor must follow a HomeGain Affiliate Link from your Web site to the HomeGain Web site and submit a valid Registration ("Registration" is defined as a unique, complete, non-fraudulent registration form submitted to agent(s) with unique, complete verifiable contact information including name, address and e-mail address, created without an Incentive. Additionally, if a visitor follows a HomeGain Affiliate Link from your Web site to the HomeGain Web site and submits an Agent Evaluator Registration, or a Home Search Express Registration, you will be paid the marketing fee specified below for only the first such Registration submitted.

These fees may be adjusted, with written notice, at the sole discretion of HomeGain based on the quality and quantity of Registrants and/or Registrations provided by an Affiliate.

"Incentive" means an offer to compensate users to click on an ad and/or to submit information including Registrations, or requiring users to do so as a condition of accessing the open Internet, any non-HomeGain web site, product, or service. Enticing users to click or provide information by providing sweepstakes entries, points, cash, or cash-like equivalents is specifically considered as offering an incentive. As a HomeGain Affiliate, you agree not to compensate buyers or sellers in any way in order to incent them to complete a Registration without prior permission in writing from HomeGain.

In the event of any conflict between this Agreement and the terms offered under the Commission Junction Publisher Service Agreement, the terms of the Commission Junction Publisher Service Agreement shall prevail.

6. Compensation Payment

  1. Subject to clause 6(b) based on the number of Registrations originated by your users and received by us through an Affiliate Link to our web site as specified in Section 5, we will compensate you for marketing fees as set forth in Section 5 above, and provide you with a statement of activity approximately thirty (30) days after the end of each calendar month (a "Payment Period").
  2. If during the first calendar month of the term of this Agreement, or during any Payment Period following the payment of fees due you, compensation due to you does not exceed twenty-five dollars ($25.00 U.S.), then you shall not be entitled to receive any compensation for the applicable Payment Period. Thereafter, you will be paid within 30 days after the end of the Payment Period during which your aggregate compensation earned during such successive Payment Period exceeds twenty-five dollars ($25.00 U.S.).
7. Your Responsibilities

You are solely responsible for ensuring that your web site complies with all applicable copyright and other laws, including laws regarding sending emails or other content via the Internet to third parties. You must have express permission to use another party's copyrighted or other proprietary material. You will not make any unauthorized use of any company's (including HomeGain's) name, URL, trademark, service mark, trade name, or content, to display or generate any advertising for HomeGain, to drive any traffic to your web site, or for any other purpose, including without limitation for the purchase of keywords, for embedding in any web site's metatags or source code, or otherwise to trigger or display pop-ups, pop-unders or any other advertisements. You will indemnify and hold us harmless from all claims, damages and expenses arising from any breach or alleged breach of this provision or any other provision of this Agreement.

You may not use any computer or other electronic device to send an unsolicited e-mail, pop-up, pop-under or other advertisement to an electronic mail address of an individual with whom you lack a pre-existing and ongoing business or personal relationship unless you have received an express invitation or consent/permission from that individual. You represent and warrant that each addressee to whom you send e-mail and/or to whom you generate advertisements has opted-in or otherwise consented to receive such e-mail and/or advertisement. Upon request by HomeGain, you will promptly provide HomeGain with written evidence of such consent. Any e-mail you send will contain clear instructions for the addressee to unsubscribe from receiving future e-mails and will comply with all applicable laws.

You may not bid for search engine traffic using the terms "HomeGain" or "Home Gain" or any other trademarked terms that you do not own.

You agree that the submission of any fraudulent applications or leads shall result in immediate termination and a complete ban from the Affiliate Program. Furthermore, any fraudulent applications or leads will be not paid and will be prosecuted to the full extent of the law.

8. Policies and Pricing

Users who submit completed Registrations through the HomeGain Affiliate Network will be deemed to be customers of HomeGain. Accordingly, all of HomeGain's rules, policies, and operating procedures concerning registration and Registration forms and related customer service will apply to those customers. We may change our policies and operating procedures at any time.

9. Publicity

You shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent, which we agree shall not be unreasonably withheld.

10. Non-Exclusive Limited License and Use of HomeGain Logos and Trademarks

During the term of this Agreement, HomeGain grants you a limited non-exclusive, non-transferable, revocable right to access our web site through Links solely in accordance with the terms of this Agreement, and solely in connection with such Links, to use our logos, trade names, trademarks and similar identifying material (collectively "Licensed Material") solely for the purpose of referring users on your web site to HomeGain. You may not alter, modify or change the Licensed Material in any way. You are only entitled to use the Licensed Material to the extent you are a member the HomeGain Affiliates Program.

You shall not make any specific use of any Licensed Material for purposes other than referring users to HomeGain, without first submitting a sample of such use to us and obtaining our prior written consent. You agree not to use the Licensed Material in any manner that is disparaging or that otherwise portrays HomeGain in a negative manner. We reserve all of our rights in the Licensed Material, and all other intellectual property rights. We may revoke the rights granted to you pursuant to this section at any time by giving you written notice. You shall obtain no rights in and to the Licensed Material. The rights granted to you pursuant to this section shall terminate upon the effective date of the expiration or termination of this Agreement.

11. Non-Exclusive Limited License and Use of Affiliates’ Logos and Trademarks

You grant to us a non-exclusive license to utilize your names, titles, logos, trademarks and service marks (collectively the "Affiliate Marks"), and to advertise, market, promote, and publicize in any manner our rights hereunder; provided, that we shall not be required to so advertise, market, promote, or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Marks and have the right and power to grant to us the license to use same in the manner contemplated herein, and such grant does not or will not breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon you; or infringe any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. This license shall terminate upon the effective date of the expiration or termination of this Agreement.

12. Obligations Regarding Your Web Site

You will be solely responsible for the development, operation, and maintenance of your web site and for all materials that appear on your web site. You hereby represent and warrant to us that materials posted on your web site do not violate or infringe the rights of any third party, and that materials posted on your web site are not libelous or otherwise illegal. We disclaim all liability for all such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses relating to the development, operation, maintenance, and contents of your service and/or web site including any email initiatives.

13. Term of the Agreement

The term of this Agreement will begin upon our acceptance of your Program Application and will end when terminated by either party. Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. You are only eligible to earn a commission on sales occurring during the term of the Agreement, and commissions earned through the date of termination will remain payable only if the related Registrations are not canceled. We reserve the right to withhold your final payment for a reasonable time to ensure that the correct amount is paid.

14. Modification

We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. You acknowledge and agree that notice of any change by e-mail, to your address on our records, or the posting on our web site of a change notice or a new agreement, will be considered sufficient notice to you of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in the scope of available marketing fees, payment schedules, payment procedures, and Program rules. If any modification is unacceptable to you, your sole recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or a new agreement on our web site will constitute binding acceptance of the change.

15. Relationship of Parties

You and HomeGain are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your web site or otherwise, that reasonably would contradict anything in this section.

16. Disclaimers

WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO HOMEGAIN, OR THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR WEB SITE, WWW.HOMEGAIN.COM, WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

17. Representations and Warranties

You hereby represent and warrant to us as follows:
  1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
  2. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate: any provision of law, rule, or regulation to which you are subject; any order, judgment, or decree applicable to you or binding upon your assets or properties; any provision of your by-laws or certificate of incorporation, or any agreement or other instrument applicable to you or binding upon your assets or properties.
  3. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action discussed herein.
  4. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action or proceeding.
18. Confidentiality

Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning us or you, respectively, or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (b) to its accountants, attorneys, current or potential investors, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

19. Limitations of Liability

WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.

20. Indemnification

You hereby agree to indemnify, defend, and hold harmless HomeGain and its affiliates, and their directors, officers, employees, agents, shareholders, partners and members, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on (a) any claim that our use of the Affiliate Marks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or another proprietary right of any third party, (b) any misrepresentation of a representation and/or breach of a warranty, covenant or agreement made by you herein, including without limitation those provided in Sections 7 and 12 , and/or (c) any claim related to your service and/or web site including, without limitation, content therein not attributable to us.

21. Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE NETWORK AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

22. Governing Law

This Agreement will be governed by the laws of the United States and the state of California, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Contra Costa County, California and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.

23. Scope of Agreement

This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written or oral agreements or representations between the parties.

24. Changes

HomeGain may amend this Affiliate Agreement at any time by posting and amended Affiliate Agreement on HomeGain's web site. By continuing to participate in HomeGain's affiliate program, You agree that the amendments are immediately effective unless otherwise provided for in this Agreement. This Affiliate Agreement may not be otherwise amended except in a writing executed by You and HomeGain.

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