Terms of Use
TERMS OF USE FOR HOME BUYERS AND SELLERS
TERMS OF USE FOR REAL ESTATE PROFESSIONALS FOR BUYERLINK™
TERMS OF USE FOR REAL ESTATE PROFESSIONALS FOR AGENTVIEW
TERMS OF USE FOR REAL ESTATE PROFESSIONALS FOR AGENT EVALUATOR™
HomeGain offers services to you, the "User", conditioned on your agreement to adhere to the following Terms of Use without modification of any kind. Your 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. You are responsible for reviewing these Terms of Use on a regular basis.
HomeGain allows Users to locate and evaluate independent third party real estate professionals. Users (whether a home buyer or a home seller) agree to supply HomeGain with information about themselves and the property they want to sell or hope to buy. HomeGain will use this information to connect you to third parties who are, in most cases, appropriate members of its real estate agent network. Users may also agree to have the information he/she has supplied to HomeGain forwarded to real estate or other third-party professionals referred by HomeGain. As HomeGain uses email, on an almost exclusive basis, to provide HomeGain services, all HomeGain users must consent to receive Email from HomeGain. HomeGain users will also be required to consent to receive emails from third party(ies) if the HomeGain service requested requires services from a third party(ies)(for example, a local real estate agent).
To assure the value of HomeGain's services, you agree that all of the information you have provided to HomeGain, whether online or otherwise, is accurate and complete. HomeGain reserves its right to terminate or suspend access to any user information that is alleged to be inaccurate or misleading. If required by the terms of the HomeGain service requested by User, you authorize HomeGain to forward your information to its network of real estate professionals according to the terms of the HomeGain service that you use.
HomeGain may refer real estate professionals to Users, but HomeGain does not engage in real estate broker services. Real Estate brokerage activities are performed by local Real Estate Professionals that have been referred to you by HomeGain. The terms of any agreement between a real estate professional and HomeGain are not endorsed, recommended or otherwise known to or by HomeGain.
For its services HomeGain may receive payment including, but not limited to a referral fee that may be a percentage of the commission received by the real estate professionals involved in the real estate transaction. HomeGain's payment is due based on an agreement between HomeGain and the real estate professional involved. Your use of HomeGain services constitutes your acknowledgment of, and agreement to, this compensation arrangement.
HomeGain may from time to time offer eligible Users promotional opportunities to incent use of HomeGain's services within a particular time frame. These opportunities may include but are not limited to discounts, rebates, gift certificates, points or other incentives that are only available to Users who use a HomeGain affiliated real estate professional to buy or sell a home. User eligibly for a particular promotion will be defined in the terms of each promotion. Not all Users may be eligible to receive all promotional opportunities.
HomeGain Services
BuyerLink™
The BuyerLink™ service is a free service that provides potential homebuyers with web access to home listings. To view HomeGain's home listings, users select the market targeted for home purchase and are directed to a local real estate professional's website. The local real estate professional will make available to the User relevant current MLS listings. User acknowledges that such third party websites may have their own terms of use which regulate access to such third party site. To use this service, User must consent to receive emails from HomeGain and from real estate professionals referred to User by HomeGain.
AgentView
The AgentView service is a free service to registered HomeGain Users that enables prospective home sellers to obtain a detailed report of comparable home prices and recent sales in a designated area from a local real estate professional. Registered HomeGain Users considering a home sale can receive a free valuation of their home based on recent sales of comparable homes from the real estate professional by completing a simple, online questionnaire. This valuation is not intended to be, nor should it be relied on as, an appraisal or similar report rendered by a licensed, professional appraiser. HomeGain recommends that sellers consult a licensed appraisal professional before contemplating any real estate transaction. To use this service, User must consent to receive emails from HomeGain and from real estate and other third-party professionals referred to User by HomeGain.
HomeGain Agent Evaluator™
The HomeGain Agent Evaluator™ service is a service provided to HomeGain Users that allow potential home sellers and homebuyers to find and real estate professionals. Users must provide information requested by HomeGain relevant to the real estate transaction. Your information may be forwarded to selected real estate professionals who have registered with HomeGain to receive such information. All such real estate professionals are independent third parties. HomeGain makes no representation or warranty as to the quality or a qualification of any real estate professional referred to User and requires that all Users independently investigate the qualifications of each real estate profession prior to entering any agreement with a real estate professional. HomeGain's service allows Users to connect with a number of real estate professionals. User may contact the real estate professional at any time through contact information provided by that real estate professional. Information from real estate professionals may include, but are not limited to, their years of experience with real estate transactions, the number of homes sold within relevant ZIP codes and other details about their knowledge of the locale. Real Estate Professionals may list a commission rate and other service fees. It is recommended that Users verify such commission rate or other fees prior to engaging the real estate professional. To use this service, User must consent to receive emails from HomeGain and from real estate professionals referred to User by HomeGain.
HomeGain is not a party to, and has no knowledge of specific terms of, any agreement between the real estate professional and the User.
HomeGain Featured Vendors
From time to time HomeGain may include on its www.homegain.com site, third party services such as a Moving Center or a Home Improvement Center. HomeGain posts these services on its site as a service to its Users who may be interested in such services. HomeGain is not responsible for and makes no warranty or representation as to the quality or performance of the services offered. HomeGain advises all users to review carefully each third party service offering prior to engagement with any third party service provider.
Use of third party services
You understand and agree that the Real Estate Professionals and others in the real estate field who appear on the HomeGain website or who may be referred by HomeGain are not employed by HomeGain. HomeGain is not responsible or liable for any acts or omissions created or performed by these third parties. HomeGain's Web site may contain links to Web sites maintained by third parties. Such links are provided for your convenience and reference only. HomeGain does not operate or control in any respect any information, software, products or services available on such Web sites. HomeGain's inclusion of a link to a Web site does not imply any endorsement of the services or the site, its contents, or its sponsoring organization.
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 any service after the posting of any amended Terms of Use shall constitute your agreement to be bound by any such changes. HomeGain shall not be liable to any User or any third party should HomeGain exercise its right to modify or discontinue service.
Obligations of Home Buyer/Sellers Registered with HomeGain
By completing your registration with HomeGain.com as a potential Home Buyer or Home Seller, you agree that:
a. You are of legal age and are otherwise capable of forming a legally binding contract;
b. You are interested in purchasing/selling property or both;
c. You are interested in purchasing/selling property located in the USA;
d. You do not have an exclusive contractual or other arrangement with any Real Estate Professional;
e. You agree to be contacted via Email or other means by HomeGain, and by third parties for services you have requested;
f. HomeGain may request (and you agree to provide promptly), receive, copy and review your real property transaction and/or settlement documents and you agree to respond to requests for updates involving any contact with a real estate professional introduced by HomeGain;
g. You represent that you are not licensed as a real estate agent or broker;
h. You acknowledge that HomeGain recommends your independent use of all appropriate government, public, consumer and other agencies or sources to verify a Real Estate Professional's license status and background as HomeGain.com, makes no representations and/or warranties about any Real Estate Professional that may use the HomeGain service.
i. Any endorsements posted by a Real Estate Professional through the HomeGain Consumer Feedback Program are the sole responsibility of the Real Estate Professionals. HomeGain disclaims any liability arising from and the accuracy of any Endorsements posted by Real Estate Professionals. It is your responsibility to evaluate the nature of any Endorsement posted by any Real Estate Professional and to be aware that Endorsements might not reflect the actual quality of service that you may receive from a Real Estate Professional.
License
Unless otherwise agreed in a writing signed by HomeGain, by submitting 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. Do not use vulgar, abusive or hateful language. You may not use 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 and (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.
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, (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; or (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.
TERMINATION
HomeGain reserves the right to cancel the membership of any User in any HomeGain Service without liability at any time without notice for any reason, including a User's breach of these Terms of Use, or the terms and conditions of any service for which the User may have registered. A User may cancel membership at any time for any reason by delivering a written notice by email to [email protected] or by U.S. mail addressed to the Customer Relations Department, HomeGain, 1820 Bonanza Street, Walnut Creek, CA 94596 or by fax to 1-925-369-0412. User shall be responsible for ensuring delivery of the cancellation notice to HomeGain.
Copyright and Trade Mark Notices
All contents of the HomeGain.com website are Copyright © 1999-2023 HomeGain.com, Inc. and or its suppliers, 1820 Bonanza Street, Walnut Creek, CA 94596 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.
DISCLAIMERS AND LIMITATIONS
HomeGain intends that the information contained in its Web site be accurate and reliable; however, errors sometimes occur. 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, PARTICIPATING LENDERS, OR REAL ESTATE PROFESSIONALS 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 OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE, IS LIMITED TO THE LESSER OF (A) $100. 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 User 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.
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.
BUYERLINK™
The BuyerLink™ service is a service that provides potential home buyers with online access to home listings through the local Real Estate Professional's website. Real Estate Professional must have a personal website with MLS search capabilities for consumers. MLS data must come from the Real Estate Professional's local MLS using Broker Reciprocity, IDX or VOW data. Sites that provide access to only the agent's, the broker's, or the brokerage's listings are not eligible. Sites without MLS listings but only listings from aggregators such as Realtor.com are not eligible. There must be a unique URL that allows us to send consumers directly to the search criteria or listings registration page of your website.
There is no referral fee or monthly subscription fee for this service. Instead, Real Estate Professional is charged for visits directed to your site on a cost-per-visit basis. For example, if you signup for "Dallas, TX", then each time a visitor at HomeGain clicks on the city name "Dallas" to find listings, you are charged the previously agreed upon 'per visit' rate for your market. HomeGain will bill you at the beginning of each month for visits delivered during the prior month. Visits are totaled and your credit card is charged the appropriate amount. 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 the event that Real Estate Professional elects to switch territories in the middle of the month, Real Estate Professional will be charged for the actual charges incurred through such date plus any additional charges for the new territory requested, which may result in Real Estate Professional exceeding the monthly cap amount originally established. Nonetheless, in such situation, Real Estate Professional shall be responsible for payment of all charges in excess of the cap amount.
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. In certain cases, a non-refundable setup fee may be charged before the account will be enabled. 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 or believes that there is a discrepancy with respect to traffic delivered by HomeGain, 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 or discrepancy.
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 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;
g. You will not refer HomeGain supplied leads to any other person;
h. 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 use of this HomeGain service, 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;
i. 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;
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; or (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.
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 [email protected] or mail it to HomeGain, ATTN: Agent Memberships, 1820 Bonanza Street, Walnut Creek, CA 94596, or by fax to 1-925-369-0412. 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.
Copyright and Trade Mark Notices
All contents of the HomeGain.com website are Copyright © 1999-2023 HomeGain.com, Inc. and or its suppliers, 1820 Bonanza Street, Walnut Creek, CA 94596 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 User 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.
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. This service is available to individuals, not companies or corporations.
AGENTVIEW
The AgentView service is a service that enables prospective home sellers to obtain a detailed report of comparable home prices and recent sales in a designated area from a Real Estate Professional. HomeGain may deliver to the subscribing Real Estate Professional exclusive leads from individuals who have requested an online home valuation estimate from specific territories requested by Real Estate Professional. Additionally, the AgentView service offers marketing opportunities to the Real Estate Professional through exposure to the public of the Real Estate Professional's profile as well as marketing information and tips aimed to help Real Estate Professional with his/her long-term business efforts. While HomeGain may provide certain exclusive leads from a specific territory, no guarantee is made as to the quantity of such leads in a month, if any, and HomeGain reserves the right to provide different exclusive leads to others for the same territory. Leads are generated through HomeGain's ongoing online advertising and partnership efforts. HomeGain's advertising efforts will be targeted towards homeowners who are thinking about selling their home, who are interested in knowing the value of their home or a home in their neighborhood, or a home in a neighborhood where they are thinking about purchasing a home. HomeGain's advertising efforts may interest prospective homebuyers who are interested in purchasing a home. Any response that is generated as a result of HomeGain's advertising efforts, including responses (phone calls or emails) generated as a result of display of the Real Estate Professional's profile, is considered a lead. In some months, no leads may be generated for Real Estate Professional. HomeGain will also provide to its subscribers marketing tips and information aimed to help them succeed in using AgentView. HomeGain maintains a long-term vision, and AgentView leads are generally not instant business like other sales prospecting efforts. Sales prospecting using AgentView is designed to be a part of an ongoing marketing effort maintained each month of the year.
Service Standards: Real Estate Professional will make best efforts to follow up on all leads generated through AgentView, thus reinforcing HomeGain and its partners' reputation. The Real Estate Professional will respond to each lead within 24 hours, or let HomeGain know within that time frame of their inability to meet this minimum service standard. If the Real Estate Professional does not meet this service standard, HomeGain may reassign, in its sole discretion and without refund to the Real Estate Professional, any unserviced leads to another Real Estate Professional. The Real Estate Professional may not redistribute or resell any HomeGain leads without prior written permission from HomeGain. Real Estate Professional acknowledges that not all leads will result in benefit to the Real Estate Professional, and that ongoing cultivation and prospecting of these leads may be required. Real Estate Professional realizes that leads received through AgentView may be consumers who have previously used and/or are currently using other Internet real estate sites and services, including but not limited to HomeGain, to help them in the home selling and/or buying process.
Payment: The Real Estate Professional shall pay HomeGain a monthly subscription fee for the subscribed leads as selected by the Real Estate Professional. If the first month is a partial month, the prorated subscription fee for that month will be based on the start date and may be billed on the next billing cycle. Subscription fees are paid automatically by credit or debit card on the first of each calendar month for that month's service. If payment is not made, HomeGain may suspend the service and reassign the leads to another Real Estate Professional. Suspension does not release the Real Estate Professional from his/her payment obligation or entitle him/her to any refund. HomeGain reserves the right to change the subscription at any time upon written notice to the Real Estate Professional.
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, whichever is less. 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 refer any HomeGain supplied leads to any other person without prior written permission from HomeGain;
g. HomeGain reserves the right to terminate the participation of any Real Estate Professional whose CMA response rating falls below a minimum level set by HomeGain, at HomeGain's sole discretion;
h. 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;
i. 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;
j.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 (www.homegain.com).
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. HomeGain also offers Real Estate Professionals the ability to participate in our Claim Your ZIP program which is designed to provide added online exposure to the Real Estate Professional. HomeGain makes no warranty or representation with respect to exposure or display or with respect to any traffic or client click through for participation in the Claim Your ZIP program.
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 is not meeting the minimum service standards, 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 [email protected] or mail it to HomeGain, ATTN: Agent Memberships, 1820 Bonanza Street, Walnut Creek, CA 94596, or by fax to 1-925-369-0412. 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.
Copyright and Trade Mark Notices
All contents of the HomeGain.com website are Copyright © 1999-2023 HomeGain.com, Inc. and or its suppliers, 1820 Bonanza Street, Walnut Creek, CA 94596 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 occur. 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.
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™
The HomeGain Agent Evaluator™ service is a service that allows potential home sellers and home buyers to connect with 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. Use of the Agent Evaluator service requires strict adherence to HomeGain requirements involving agent contact information. Real Estate Professional also agrees to cooperate with HomeGain with respect to any reporting or notification required by HomeGain for RESPA purposes.
A Real Estate Professional who subscribes to the Agent Evaluator™ service agrees to pay a referral fee(s) whenever a Real Estate Professional claims a lead from User (buyer and/or seller) and subsequently handles a purchase for the User, or 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 claimed a lead & 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 terms User, 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 and using the services of HomeGain.com, you as the Real Estate Professional 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 refer any HomeGain supplied leads to any other person;
i. 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.
j. 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;
k. 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;
l. 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;
m. 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;
n. 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.
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 [email protected] or mail it to HomeGain, ATTN: Agent Memberships, 1820 Bonanza Street, Walnut Creek, CA 94596, or by fax to 1-925-369-0412. 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.
Copyright and Trade Mark Notices
All contents of the HomeGain.com website are Copyright © 1999-2023 HomeGain.com, Inc. and or its suppliers, 1820 Bonanza Street, Walnut Creek, CA 94596 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 occur. 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.
