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Terms of Use
HomeGain's offers services to you, the "User", 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 Services to Home Buyers and Sellers
HomeGain allows Users to locate and evaluate proposals from
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 within
HomeGain and to provide certain details on an anonymous or
non-anonymous basis depending on the HomeGain service 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 to register for HomeGain services. 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
on line 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
an agreement between HomeGain and the real estate professional
involved. Your registration with HomeGain and 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
HomeGain Agent Evaluator
The HomeGain Agent Evaluator is a service provided to registered
HomeGain users that allow potential home sellers and homebuyers
to find and anonymously compare proposals from real estate
professionals. Users must provide information requested by
HomeGain relevant to the real estate transaction. This information
is forwarded on an anonymous basis to selected real estate
professionals that have registered with HomeGain to receive
such information. All such real estate professionals are independent
third parties to HomeGain. 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 compare proposals from a number of real estate professionals
on an anonymous basis. User may contact the real estate professional
at any time through contact information provided by that real
estate professional. Proposals 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 services 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.
BuyerLink
The BuyerLinkT 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 third party websites may have their own terms of use
which regulate access to 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.
Source4Sellers
The Source4SellersT 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 or other similar
report. 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 Referral Maximizer
A service used by a local real estate professionals to locate
another real estate professional in a separate area in order
to refer a client or other person to that real estate professional.
The local real estate professional will post a referral online
at HomeGain seeking a fellow real estate professional in ZIP
code(s) of interest, including information on the home their
client wishes to purchase or sell, their timeframe to transact
as well as price parameters. The User information will be
posted on an anonymous basis to protect the User's privacy.
The referral is forwarded to real estate professionals in
these ZIP codes within the HomeGain network. The real estate
professionals in the targeted area will compete for the referring
real estate professional's business by submitting a proposal
with their sales history, years of experience, professional
designations and the referral fee they will pay to the referring
real estate professional. The referring real estate professional
and client remain anonymous, allowing User to evaluate qualifications
and service proposals thoroughly without sales pressure before
choosing the right professional in the targeted area. To use
this service, real estate professionals must consent to receive
emails from HomeGain and from real estate professionals referred
by HomeGain.
HomeGain Featured Vendors
From time to time HomeGain may include on its www.homegain.com
site, third parity 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 and makes no warranty or representation
as to the quality or performance of the services offered.
HomeGain advises all users to carefully review each third
party service offering prior to engagement with any third
party service provider.
Use of third party services
You agree that HomeGain offers participation in a group of
Real Estate Professionals and other real estate professionals
who 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 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. HomeGain shall not be liable to any User
or any third party should HomeGain exercise its right to modify
or discontinue service.
Fees and Registration Requirements for Real Estate Professionals
HomeGain offers services targeted to Real Estate professions.
To receive these services real estate professionals must accurately
complete a registration for each desired services and agree
to relevant payment obligations. Depending on the service
chosen real estate professionals may be required to supply
a valid credit card that is available for periodic payments.
Alternatively, where applicable, a Real Estate Professional
must agree that referral fees due to HomeGain for HomeGain
services shall be paid directly to HomeGain from the escrow
agency, or similar at the close of a qualified real estate
transaction. All real estate professional registrations with
HomeGain are non transferable and all fees paid are non refundable.
Real estate professional who register for a HomeGain services
acknowledge that they may need to obtain their broker or other
permission to use the HomeGain service and User expressly
agrees that all such permissions have been obtained.
Applicable referral fee(s) are payable whenever a real estate
professional submits a proposal to the User (buyer and/or
seller) and subsequently handles the purchase and/or sale
of the User's property. For real estate professionals receiving
Seller and/or Buyer referrals from HomeGain the applicable
referral fees are payable whenever the real estate professional
has submitted a proposal to a Seller or Buyer through the
HomeGain system and 1) the real estate professional subsequently
handles the sale of any property for the Seller (for the first
property sale related to that Seller), 2) the real estate
professional subsequently handles the purchase of any property
for the Seller (for the first property purchase related to
that Seller), 3) the real estate professional subsequently
handles the purchase of any property for the Seller or Buyer
(for the first property purchase related to that Buyer) and/or
4) the Agent subsequently handles the sale of any property
for the Seller or Buyer (for the first property purchase related
to that Buyer). If another person posts a seller or buyer
profile that relates to a prospective buyer and/or seller,
the term Seller or Buyer, as the case may be, shall include
both persons. In the event of a change in the applicable referral
fee, HomeGain will accept the original referral fee for any
transaction(s) where we are notified of such transaction(s)
and where we receive a valid real estate contract dated prior
to notification of the change in fee.
All applicable referral fees are calculated based on the entire
gross commission remitted to each side of a transaction concerning
the HomeGain user, prior to any split between the real estate
professional and his or her broker, or allocation of a payment
to another party (including but not limited to referral fee
payments to other third parties). Real Estate Professional
shall obtain any required broker approval prior to participation
in any HomeGain service. Each real estate professional who
registers with HomeGain also agrees to ensure that the closing
Real Estate Professional for the transaction is instructed
to pay HomeGain the applicable referral fees directly from
settlement proceeds (unless closing Real Estate Professional
is prohibited 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 update 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 as to origination
shall be resolved exclusively between HomeGain and the real
estate professional that registered with HomeGain.
PAYMENT OF CHARGES
A. On Time Payment
A User 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 Users account if User 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 an additional 15% of the balance, or the maximum
allowable by law, whichever is less, may be assessed on the
total amount of the late payment, and the entire amount unpaid
Charges or other outstanding balance (if any), plus this assessment,
will become immediately due and payable. The User shall pay
all costs of collection, including legal fees, incurred by
HomeGain. The User is responsible for any premium Charges
incurred in connection with the use of and/or by requesting
or accessing HomeGain information, content, goods, product
or services that are provided at an extra cost. Each time
HomeGain is accessed or used, the User affirms that HomeGain
is authorized to obtain payment from through a selected payment
method. All fees are quoted and payable in United States dollars.
The User 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 User, or anyone the User allows to use the User's account.
B. Payment Methods
Users 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-dollar
($20.00) 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 User may always contact HomeGain customer relations by e-mail
or telephone concerning Charges or other questions regarding
the status of a Membership account. However, if not satisfactorily
resolved within fifteen (15) business days of calling or sending
e-mail, and in no event later than ninety (90) days after
a questionable billing or other discrepancy should have been
discovered, the User must write to the Customer Relations
Department, HomeGain, 1250 45th Street - Suite 200, Emeryville,
CA 94608 delivered by United States mail or by fax to 510-655-0848.
Obligations of Real Estate Professionals Registered with
HomeGain
By completing your registration with HomeGain.com as a Real
Estate Professional, you agree that:
a. You are of legal age and are otherwise capable of
forming a legally binding contract; and have obtained all
necessary permissions within your business (if applicable)
to participate in the HomeGain services;
b. All information you submit to HomeGain or pursuant
to a HomeGain service is accurate and complete and that you
will maintain and promptly update such Profile, Proposal(s),
Bid(s), Endorsement(s) or other Information supplied to HomeGain
or to Users to ensure accuracy at all times;
c. You are an individual person (not a company or other
association);
d. You have acquired and will maintain appropriate
insurance coverage and have complied with all real estate
licensing and regulatory requirements applicable to real estate
agents in the areas for which you have requested HomeGain
service;
e. You agree to be contacted via Email by HomeGain, and
third parties if relevant, regarding HomeGain's services;
f. You will not use information obtained through HomeGain
to locate, identify or directly contact a Home Seller or Home
Buyer in any manner without HomeGain or Buyer/Seller consent;
g. You will not use or attempt to use any facility
provided by HomeGain wholly or partly in order to provide
you with Information concerning the commissions, fees, prices,
or other terms offered by other Real Estate Agents;
h. You will not submit a Proposal for services that
you I) do not offer, ii) are not permitted or licensed to
offer based on applicable laws and regulations, or iii) do
not intend in good faith to contract with a Home Seller or
Home Buyer to provide;
i. You will not submit a Profile or Proposal or Bid
or Endorsement or refer HomeGain supplied leads to any other
person;
j. You will not take any action that may undermine
the integrity of any HomeGain User initialed feedback system,
including, without limitation: supplying inaccurate information
to, or accessible by, any of the HomeGain services.
k. HomeGain reserves the right to terminate the participation
of any Real Estate Professional whose feedback rating falls
below a minimum level set by HomeGain, at HomeGain's sole
discretion;
l. You will not use any HomeGain User feedback rating
system that may be available from time to time for any purpose
other than to facilitate promotion of information among HomeGain
Users;
m. You have secured and will maintain any required
supervising broker's authorization and payment of a fee that
will be incurred by virtue of your HomeGain Membership, if
you are a licensed real estate salesperson, broker associate
or other non-supervising broker real estate professional legally
permitted to conduct or participate in certain real property
transactions in your state of residence or employment but
subject to broker oversight;
n.You hereby grant HomeGain permission to e-mail or
display your Profile and such other information as may be
supplied by you to HomeGain on or from HomeGain's website
(www.kpauston.com) and
such other partner and affiliate websites as HomeGain shall
deem advisable in its sole determination for marketing purposes;
o. You will utilize any HomeGain consumer feedback
program(s) only in connection with Endorsement(s) that: (I)
are Endorsements and as such are complete, accurate and verifiable,
and do not misstate, misquote the endorser (including words
taken from context) and have been posted with the endorser's
full and unqualified permission, (ii) include the endorser's
name and telephone number, (iii) do not name any other real
estate professional or promote goods or services provided
by someone other than the real estate professional posting
an endorsement, and (iv) do not contain links to other web
pages, pictures or JavaScript; and (v) will provide to HomeGain
and HomeGain Users only Property Listings that are accurate
and current, and comply with all professional, regulatory
and contractual requirements, including such requirements
relating to the promotion and advertising of those Property
Listings; and (vi) will be responsible for setting your own
fees and commissions in compliance with all applicable laws
and regulations.
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 regarding HomeGain services;
f. HomeGain may request, receive, copy and review your
real property transaction and/or settlement documents;
g. You acknowledge that HomeGain recommends your independent
use of all appropriate government, public, consumer and other
agencies or sources to verify Real Estate Professional license
status and background as HomeGain.com, Inc makes no such representations
and or warranties about any real estate professional that
may use the HomeGain service.
h. As a Home Buyer or Seller, you are not bound to
accept any of the Proposals submitted. Proposals are not binding
offers and are not intended to create a contractual or agency
relationship between you and the real estate professional.
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.
TERMINATION
HomeGain reserves the right to cancel the membership of any
User in any HomeGain Service at any time 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 in any of our lead generation services
at any time for any reason by delivering a written notice
at least thirty (30) days prior to the date of cancellation
addressed to the Customer Relations Department, HomeGain,
1250 45th Street - Suite 200, Emeryville, CA 94608 by United
States mail or by fax to 1-510-655-0848. User 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 © 1999-2003
HomeGain.com, Inc. and or its suppliers, 1250 45th St. Emeryville,
CA 94608 USA. All rights reserved, HomeGain is a service mark
of HomeGain.com, Inc. Other product and company names may
be trade or service marks of their respective owners.
USE OF REAL ESTATE AGENT IMAGES ON USER WEBSITE.
Real estate agents who register for HomeGain services, agree
that HomeGain may link or otherwise drive traffic to that
Real Estate agent website from time to time in HomeGain's
sole discretion.
DISCLAIMERS AND LIMITATIONS
HomeGain intends that the information contained in it's 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,
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.
INDEMNITY
As a condition of use of this Web site, you agree to indemnify
HomeGain and its suppliers, distributors, participating Lenders,
or real estate professionals from and against any and all
liabilities, expenses (including attorneys' fees) and damages
arising out of claims resulting from your use of HomeGain's
services, including without limitation any claims alleging
facts that if true would constitute a breach by you of this
agreement.
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 Contra Costa 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. In any arbitration, HomeGain will
pay the filing fee, plus the costs associated with the first
day of arbitration, with the remaining costs of arbitration
paid by the non-prevailing party. 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, excluding 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.
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