HomeGain -- Find a real estate agent - Realtor - Real Estate - Homes for sale - Home Buying - Home Selling

HomeGain offers services to you, the "Real Estate Professional", conditioned on your agreement to adhere to the following Terms of Use without modification of any kind. Your registration with HomeGain and/or use of HomeGain's services constitutes your agreement to these Terms of Use. These Terms of Use are subject to change at any time, without prior notice. Real Estate Professional shall obtain any required broker approval prior to participation in any HomeGain service, and Real Estate Professional expressly represents that all such permissions have been obtained.  You are responsible for reviewing these Terms of Use on a regular basis.

Fees and Registration Requirements for Real Estate Professionals

HomeGain offers services targeted to Real Estate Professionals. To receive these services, Real Estate Professionals must accurately complete a registration for a desired service and agree to payment obligations for such service.

Agent Evaluator(TM) and Agent Spotlight(TM)

The HomeGain Agent Evaluator(TM) service is a service that allows potential home sellers and home buyers to find and anonymously compare proposals from Real Estate Professionals. To sign up for this service, a Real Estate Professional is required to supply a valid credit card that is available for periodic monthly payments. In addition, a Real Estate Professional who has signed up for the Agent Evaluator(TM) service may also sign up for the HomeGain Agent Spotlight(TM) service which is a service in which HomeGain displays and/or emails the Real Estate Professional's resume to prospective homebuyers and sellers.

A Real Estate Professional who subscribes to the Agent Evaluator(TM) service agrees to pay a referral fee(s) whenever a Real Estate Professional submits a proposal to the User (buyer and/or seller) and subsequently handles a purchase for the User, the sale of the User's property, regardless of whether there have been any prior contacts or referral with the Buyer or Seller. For Real Estate Professionals receiving Seller and/or Buyer referrals from HomeGain, the applicable referral fees are payable whenever the Real Estate Professional has submitted a proposal to a Seller or Buyer through the HomeGain system or whenever Real Estate Professional has been referred through the Agent Spotlight(TM) service and 1) the Real Estate Professional subsequently handles the sale of any property for the Seller (for the first property sale related to that Seller), 2) the Real Estate Professional subsequently handles the purchase of any property for the Seller (for the first property purchase related to that Seller), 3) the Real Estate Professional subsequently handles the purchase of any property for the Buyer (for the first property purchase related to that Buyer) 4) the Real Estate Professional subsequently handles the sale of any property for the Buyer (for the first property purchase related to that Buyer) If another person posts a seller or buyer profile that relates to a prospective buyer and/or seller, the term Seller or Buyer, as the case may be, shall include both persons. In the event of a change in the applicable referral fee, HomeGain will accept the original referral fee for any transaction(s) where we are notified of such transaction(s) and where we receive a valid real estate contract dated prior to notification of the change in fee.

All applicable referral fees are calculated based on the entire gross commission remitted to each side of a transaction concerning the HomeGain User, prior to any split between the Real Estate Professional and his or her broker, or allocation of a payment to another party (including but not limited to referral fee payments to other third parties). Notwithstanding the actual gross commission paid, except for referral fees related to lease transactions, the referral fee is calculated on a minimum of two percent (2%) of the gross sales price or the actual gross commission, whichever is larger.

Each Real Estate Professional who registers with HomeGain also agrees to ensure that HomeGain is paid the applicable referral fees directly from settlement proceeds from the escrow agency, or similar entity, (unless at closing Real Estate Professional is prohibited by law from making this payment, in which case payment to HomeGain shall be made within fourteen (14) days of close of sale or purchase). Real Estate Professional shall also make updates and other reports to HomeGain as required by HomeGain from time to time as to status of the applicable transaction. Real Estate Professional further agrees that HomeGain may audit any books and/or records applicable to the status of the real estate transaction involving a dispute.

All Real Estate Professional registrations with HomeGain are non transferable and all fees paid are non refundable.

Payment of Charges

A. On Time Payment

A Real Estate Professional is expected to pay all Charges on time and may be required to submit an accompanying payment and/or payment authorization in connection with Charges. Credit card transactions require an acceptable and currently working credit card number. HomeGain may terminate or disable Real Estate Professional's account if Real Estate Professional fails to pay any amount due to HomeGain when due. If the credit card expires or otherwise declines payment, access to HomeGain can be modified or suspended. If payment is more than thirty (30) calendar days past due, interest will be charged on the unpaid balance at the lower of (a)  an additional 15% of the balance or 1.5% per month whichever is larger, or (b) the maximum allowable by law.  The entire amount of unpaid Charges or other outstanding balance (if any), plus this assessment, will become immediately due and payable. The Real Estate Professional shall pay all costs of collection, including legal fees, incurred by HomeGain. Each time HomeGain services are used, the Real Estate Professional affirms that HomeGain is authorized to obtain payment from Real Estate Professional through the selected payment method. All fees are quoted and payable in United States dollars. The Real Estate Professional is also responsible for paying all applicable taxes for information, contents, goods, products or services and any other costs incurred in connection with the use of or access to HomeGain including Charges incurred on your account by the Real Estate Professional, or anyone the Real Estate Professional allows to use the Real Estate Professional's account.

B. Payment Methods

Real Estate Professional's complete billing address and telephone number must be provided to process payments. HomeGain accepts major credit cards including Visa and MasterCard and for some Charges may accept bank drafts including personal checks, money orders, cashiers checks, and company checks. However, for non-credit card payment methods HomeGain may not credit the applicable Membership account until additional procedures are completed and after the bank certifies receipt of funds - typically ten (10) business days. HomeGain may charge a twenty-five dollar ($25.00) handling fee, or the maximum allowable by law, whichever is less, for each check returned unpaid for insufficient funds or any other reason.

C. Account Discrepancies

A Real Estate Professional may always contact HomeGain customer relations by e-mail or telephone concerning Charges or other questions regarding the status of a Membership account. If Real Estate Professional disputes any charges made, Real Estate Professional must notify HomeGain in writing within 30 days from the date of the charge; failure to so notify HomeGain shall result in the waiver by Real Estate Professional of any claim relating to any such disputed charge.

Obligations of Real Estate Professionals Registered with HomeGain

By completing your registration with HomeGain.com as a Real Estate Professional, you agree that:
a. You are of legal age and are otherwise capable of forming a legally binding contract; and have obtained all necessary permissions within your business (if applicable) to participate in the HomeGain services;  
b. All information you submit to HomeGain or pursuant to a HomeGain service is accurate and complete and that you will maintain and promptly update such Profile, Proposal(s), Bid(s), Endorsement(s) or other Information supplied to HomeGain or to Users to ensure accuracy at all times;  
c. You are an individual person (not a company or other association); 
d. You have acquired and will maintain appropriate insurance coverage and have complied with all real estate licensing and regulatory requirements applicable to real estate agents in the areas for which you have requested HomeGain service; 
e. You agree to be contacted via Email by HomeGain, and third parties if relevant, regarding HomeGain's services; 
f. You will not use information obtained through HomeGain to locate, identify or directly contact a Home Seller or Home Buyer in any manner without HomeGain or Buyer/Seller consent;  
g. You will not use or attempt to use any facility provided by HomeGain wholly or partly in order to provide you with Information concerning the commissions, fees, prices, or other terms offered by other Real Estate Agents; 
h. You will not submit a Proposal for services that you I) do not offer, ii) are not permitted or licensed to offer based on applicable laws and regulations, or iii) do not intend in good faith to contract with a Home Seller or Home Buyer to provide; 
i. You will not refer any HomeGain supplied leads to any other person;  
j. You will not take any action that may undermine the integrity of any HomeGain User initialed feedback system, including, without limitation: supplying inaccurate information to, or accessible by, any of the HomeGain services. 
k. HomeGain reserves the right to terminate the participation of any Real Estate Professional whose feedback rating falls below a minimum level set by HomeGain, at HomeGain's sole discretion; 
l. You will not use any HomeGain User feedback rating system that may be available from time to time for any purpose other than to facilitate promotion of information among HomeGain Users; 
m. You have secured and will maintain any required supervising broker's authorization and payment of a fee that will be incurred by virtue of your HomeGain Membership, if you are a licensed real estate salesperson, broker associate or other non-supervising broker real estate professional legally permitted to conduct or participate in certain real property transactions in your state of residence or employment but subject to broker oversight; 
n. You hereby grant HomeGain permission to e-mail or display your Profile and such other information as may be supplied by you to HomeGain on or from HomeGain's website (www.homegain.com) and such other partner and affiliate websites as HomeGain shall deem advisable in its sole determination for marketing purposes; 
o. You will utilize any HomeGain consumer feedback program(s) only in connection with Endorsement(s) that: (I) are Endorsements and as such are complete, accurate and verifiable, and do not misstate, misquote the endorser (including words taken from context) and have been posted with the endorser's full and unqualified permission, (ii) include the endorser's name and telephone number, (iii) do not name any other real estate professional or promote goods or services provided by someone other than the real estate professional posting an endorsement, and (iv) do not contain links to other web pages, pictures or JavaScript; and (v) will provide to HomeGain and HomeGain Users only Property Listings that are accurate and current, and comply with all professional, regulatory and contractual requirements, including such requirements relating to the promotion and advertising of those Property Listings; and (vi) will be responsible for setting your own fees and commissions in compliance with all applicable laws and regulations.
p. You will not utilize or use JavaScript in connection with your Profile, your Proposal responses or such other information as may be supplied by you to HomeGain for use on or from HomeGain's website.

Online Listings

HomeGain offers Real Estate Professionals the ability to upload his/her listings for display on the HomeGain and other websites. HomeGain makes no warranty or representation with respect to exposure or display of such listings or with respect to any traffic or client click through for such listings.

License

Unless otherwise agreed in a writing signed by HomeGain, by submitting or approving for posting content, photos, video, data or other materials directly through the HomeGain web site (collectively, "Materials"), you hereby grant to HomeGain a perpetual, irrevocable, royalty-free, non-exclusive, fully transferable and sublicensable right and license to access, store, copy, modify, display, distribute, perform, create derivative works from, and otherwise use and exploit all such Materials in any form, media, software or technology of any kind now existing or developed in the future and the right to sublicense the foregoing rights through multiple tiers. You further grant to HomeGain a royalty-free right and license to use your name, image and likeness in advertising and in connection with the licensed rights for the Materials.

Interactive Areas

The HomeGain web site may offer forums, blogs, comments areas, bulletin boards and chat rooms (collectively, "Forums") that are intended to provide users 18 years of age and older an interesting and stimulating forum in which they can express their opinions and share their ideas. HomeGain does not endorse the accuracy or reliability of any advice, opinion, statement or information posted on these Forums. Please use your best judgment, and be respectful of other individuals using these Forums. For those blogs that you manage or control through the HomeGain web site, You, the Real Estate Professional, are solely responsible for all content, including comments, that are posted in connection with your blog.  Do not use or allow vulgar, abusive or hateful language. You may not use or allow the use of  the Forums for advertising or promotional materials or other forms of solicitation. Uploading copyrighted or other proprietary material of any kind on the HomeGain web site without the express permission of the owner of that material is prohibited and may result in civil and/or criminal liability. Any information you disclose when posting a message in these Forums may become public. You should not include any information in your posting that you do not want other parties to see or use and you hereby agree that you will not hold HomeGain responsible for any third party's use of information contained in such posting.

HomeGain Rights

Given the nature of the HomeGain web site and the volume of Materials submitted, HomeGain cannot and does not monitor all of the Materials posted or transmitted by you and other third-party information providers via the web site, including, without limitation, any Materials posted via the Forums. You expressly agree that HomeGain: (a) will not be liable for Materials;  (b) reserve the right to review, reject, delete, remove, modify, or edit any Materials at any time for any reason, without liability and without notice to you; and (c) shall have the right to terminate or restrict access to any blog on the HomeGain web site.

Representations and Warranties

You hereby represent and warrant that: (a) you have all necessary authority, rights and permissions to submit the Materials and grant the licenses described in these Terms, (b) the Materials are accurate, current and complete, (c) the Materials and your use of the web site shall not infringe or misappropriate any copyright, trademark, trade secret, patent, or other intellectual property right of any third party or violate any other rights of third party, including, without limitation, any rights of privacy or publicity or any contractual rights, (d) the Materials and your use of the web site shall not violate any applicable law or regulation, including, without limitation, any applicable advertising or fair housing laws or regulations, or cause injury to any person; (e) your use of the web site shall not violate any agreements between you and a third party.

Indemnification

You agree to indemnify and hold HomeGain, and its officers, directors, employees, agents, and contractors harmless from and against any and all claims, costs, demands, damages, liabilities, or expenses, including, without limitation, reasonable attorneys' fees, arising from or related to: (a) the Materials you provide or approve for publication, (b) your use of the web site or your reliance on the Content or your use of HomeGain's services, (c) your breach of these Terms, or (d) any actual, prospective, completed or terminated purchase, sale or other transaction between you and a third party.

Prohibited Activities

The following is a partial list of the kinds of activities that are prohibited on or through the HomeGain web site: (a) submitting Materials that are patently offensive to the online community, such as content that promotes racism, bigotry, hatred or physical harm of any kind against any group or individual; (b) engaging in activities or submitting Materials that could be harmful to minors; (c) engaging in activity or submitting Materials that harasses or advocates harassment of another person; (d) engaging in activity that involves the transmission of "junk mail" or unsolicited mass mailing or "spam" or harvesting or otherwise collecting personally identifiable information about Site users, including names, phone numbers, addresses, email addresses, (collectively, "User Data") without their consent; (e) engaging in activity, or submitting Materials, or promoting information that is false, misleading or promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (f) submitting Materials that contain restricted or password only access pages, or hidden pages or images; (g) submitting Materials that displays pornographic or sexually explicit material of any kind; (h) submitting Materials that provide instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses; (i) submitting Materials that contain viruses, Trojan horses, worms, or any other similar forms of malware, (j) engaging in activities or submitting Materials that solicit passwords or personally identifiable information for unlawful purposes from other users; (k) engaging in unauthorized commercial activities and/or sales without our prior written consent such as advertising, solicitations, contests, sweepstakes, barter, and pyramid schemes; (l) using any robot, spider, other automatic device, or manual process to monitor, copy, or "scrape" web pages or the Content contained in the Site or for any other unauthorized purpose without HomeGain's prior written consent; (m) using any device, software, or routine to interfere or attempt to interfere with the proper working of the Site; (n) decompiling, reverse engineering, or disassembling the Software or attempting to do so; (o) taking any action that imposes an unreasonable or disproportionately large load on the HomeGain web site or HomeGain's hardware and software infrastructure or that of any of its Licensors or Suppliers; or (p) submitting Materials that contain or use JavaScript.

Modification Of HomeGain Services

HomeGain reserves the right at any time to modify or discontinue any service or a portion or attribute thereof, or the offering of any information, good, content, product or service with or without notice to any User. Your continued use of the website or service after the posting of any amended Terms of Use shall constitute your agreement to be bound by any such changes. HomeGain reserves the right to modify at any time the price charged for its Services. In the event of a price change, you will be notified by e-mail at the address on your account thirty (30) days in advance of any price increase. Your continued use of the Service after the price increase goes into effect shall constitute your agreement to be bound by such changes. Notwithstanding anything to the contrary herein, if you do not agree to the price increase, you must terminate your Agreement in writing before the price increase goes into effect effective on the last day before the price increase goes into effect. HomeGain shall not be liable to any User or any third party should HomeGain exercise its right to modify or discontinue service.

TERMINATION

HomeGain may terminate this agreement without liability at any time without notice for any reason, including if the Real Estate Professional is in default of this agreement, if the Real Estate Professional; has not paid the fees due, if the Real Estate Professional's real estate license is terminated or suspended, or if the Real Estate Professional does not honor HomeGain's Terms of Use. If the Real Estate Professional wishes to cancel all or part of their subscription, you may cancel at any time on thirty (30) days advance written notice. There are no refunds upon termination. E-mail written notice of termination to agent@homegain.com or mail it to HomeGain, ATTN: Agent Memberships, 1250 45th Street, Suite 200, Emeryville, CA 94608, or by fax to 1-510-655-0848. Real Estate Professional shall be responsible for ensuring delivery of the cancellation notice to HomeGain. All fees or charges due to HomeGain up to the point of termination or cancellation shall remain payable to HomeGain.

All contents of the HomeGain.com website are Copyright (C) 1999-2008 HomeGain.com, Inc. and or its suppliers, 1250 45th St. Emeryville, CA 94608 USA. All rights reserved HomeGain is a registered trademark of HomeGain.com, Inc. Other product and company names may be trade or service marks of their respective owners.

LINK TO REAL ESTATE PROFESSIONAL’S WEBSITE.

Real Estate Professionals who register for HomeGain services, agree that HomeGain may link or otherwise drive traffic to that Real Estate Professional’s website from time to time in HomeGain's sole discretion.

DISCLAIMERS AND LIMITATIONS
HomeGain intends that the information contained in its Web site be accurate and reliable; however, errors sometimes occurs. In addition, HomeGain may make changes and improvements to the information provided herein at any time. THE WEB SITE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED WITH IT ARE PROVIDED "AS IS." HOMEGAIN AND/OR ITS SUPPLIERS, DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE WEB SITE AND ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES PROVIDED HEREIN, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. USE OF HOMEGAIN'S SERVICES IS AT YOUR OWN RISK. HOMEGAIN AND/OR ITS SUPPLIERS, ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF HOMEGAIN'S SERVICES OR WITH THE DELAY OR INABILITY TO USE THE WEB SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH THE WEB SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE WEB SITE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF HOMEGAIN AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

LIMITATION OF LIABILITY

IN NO EVENT SHALL HOMEGAIN OR HOMEGAIN'S SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. HOMEGAIN'S LIABILITY, AND THE LIABILITY OF HOMEGAIN'S SUPPLIERS, TO YOU, THE REAL ESTATE PROFESSIONAL, OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, IS LIMITED TO THE LESSER OF (A) THE AMOUNT OF FEES YOU, THE REAL ESTATE PROFESSIONAL, PAID TO HOMEGAIN IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, OR (B) $100, whichever is less. Some states do not allow the limitation of liability, so the foregoing limitation may not always apply.

ERRORS AND DELAYS

HomeGain is not responsible for any errors or delays in responding to a qualification form or referral form caused by an incorrect e-mail address provided by you or other technical problems beyond our reasonable control.

DISPUTE RESOLUTION

Any claim or controversy arising out of or relating to the use of HomeGain's services, to the goods or services provided by HomeGain, or to any acts or omissions for which you may contend HomeGain is liable, including but not limited to any claim or controversy ("Dispute"), shall be finally, and exclusively, settled by arbitration in Alameda County, California. The arbitration shall be held before one arbitrator under the commercial arbitration rules of the American Arbitration Association ("AAA") in force at that time. The arbitrator shall be selected pursuant to the AAA rules. Should no AAA rule regarding the selection of an arbitrator be in effect, the consumer shall select an arbitrator from a panel of arbitrators acceptable to HomeGain. To begin the arbitration process, a party must make a written demand therefore. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in California. The arbitrators shall not have the power to award damages in connection with any Dispute in excess of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed as an agreement to the joinder or consolidation of arbitration under this Agreement with arbitration of disputes or claims of any non-party, regardless of the nature of the issues or disputes involved. THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND HOMEGAIN WILL BE RESOLVED BY BINDING ARBITRATION. YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY NEUTRAL ARBITRATORS AND NOT A JUDGE OR JURY.

OTHER TERMS

These Terms of Use shall be subject to and construed in accordance with the laws of the State of California, without regard to its conflict of laws principles. If any part of these Terms of Use are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid enforceable provision that most closely matches the intent of the original provision, and the remainder of the Agreement shall continue in effect. A printed version of this Agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. All rights not expressly granted herein are reserved to HomeGain.

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