Please read this Agreement in its entirety before registering for the HomeOwners-Link Online Program ("Program"). By registering and/or participating in the Homeowners-Link Online Program you acknowledge and agree to the terms and conditions of this Electronic Mortgage Affiliate Agreement ("Agreement") and the HomeOwners-Link, LLC, Website Terms and Conditions, incorporated by reference herein. If you do not agree to these terms and conditions do not register for and/or participate in the HomeOwners-Link Online Program.
The parties hereby acknowledge and agree as follows.
SECTION ONE: DEFINTIONS
1.1 Borrower. The person (s) who is obtaining a Mortgage Loan, including a co-borrower and who has met the following requirements: (a) Borrower has applied for a Mortgage Loan; (b) Borrower has been approved by Mortgage Affiliate for a Mortgage Loan; (c) a Real Estate Property Appraisal Report has been ordered from a licensed Real Estate Appraiser on behalf of the Borrower for the property for which the loan is being sought; and (d) the Borrower's Mortgage Loan has not officially closed.
1.2 Brand Features. Any and all references to a party's trade name, trademarks, service marks, logos, domain names, and other distinctive HOL features.
1.3 Insurance Agent. Person(s) and/or entity(ies) licensed to provide insurance coverage and who represent the top nationally known insurance companies.
1.4 Lead. A collection of information pertaining to a valid Borrower including, but not limited to, the Borrowers' Complete Name, Phone Number, Email Address, Current Address, Proposed Address, Approximate Property Value and Loan Amount, Type of Loan Transaction; Current Home Owner's Insurance Agent (if applicable), and anticipated loan closing date.
1.5 Mortgage Affiliate. Any person(s) and/or entities engaged or involved in the business of providing mortgage services to the public and/or any third party acting on behalf of Mortgage Affiliate that is identified by HOL on an enrollment form submitted to HOL for participation in the HomeOwners-Link Online Program.
1.6 Mortgage Loan. A transaction involving a purchase, refinance, or an equity cash out of residential property.
1.7 Site. The HomeOwners-Link website known as HomeOwnersLink.com.
SECTION TWO: HOL DUTIES AND RESPONSIBILITIES
2.1 Purchase of Leads. HOL agrees to purchase Leads from Mortgage Affiliate which meet the Lead requirements set forth in this Agreement. In the event Leads provided by Mortgage Affiliate do not meet such requirements HOL may refuse to accept the Lead or allow Mortgage Affiliate to resubmit the Lead with the corrected information. HOL makes no guarantee regarding the quantity of Leads purchased from Mortgage Affiliate in any given time period.
2.2 HOL Site. HOL shall maintain the Site through which Mortgage Affiliate can provide HOL with Leads and other information necessary to carry out the purposes of this Agreement. HOL shall provide Leads to Insurance Agents that offer home owner's insurance coverage. Leads shall be transmitted to Insurance Agents electronically by e-mail or through access by Insurance Agent to the Site. Information between HOL and Mortgage Affiliate may be exchanged via the Site or by other means established and approved by HOL to carry out the purposes of this Agreement.
2.3 Use of Leads. HOL agrees to use Leads or any other Borrower information provided by Mortgage Affiliate only for purposes of this Agreement. HOL further agrees not to sell, use, provide, or otherwise disclose Leads or other Borrower information to third parties for any reason without the express written permission of Mortgage Affiliate and/or Borrower as may be appropriate.
2.4 Payment Method. HOL shall pay Mortgage Affiliate twenty-five dollars ($25.00) for each individual Lead that meets the Lead requirements set forth in this Agreement and Leads for which there exists a market demand by Insurance Agents such that HOL is able to provide such Leads to a minimum of two (2) but not to exceed four (4) Insurance Agents. Any Lead that does not meet both of these requirements is an invalid Lead for which HOL shall have no payment liability. Payment shall be calculated based solely on records maintained by HOL and HOL shall not accept any other measurements or statistics of any kind. Mortgage Affiliate agrees to pay all applicable taxes or charges imposed by any government entity in connection with its participation in the Program. Mortgage Affiliate is solely responsible for providing and maintaining accurate contact and payment information associated with its account. HOL may change its pricing and/or payment structure at any time.
2.5 Payment Time. Unless otherwise agreed to by the parties in writing payment shall be processed and post-marked by the fifteenth (15th) day of each month following the end of the calendar month in which valid Leads are purchased.
2.6 Prohibited Use of Payment. Payment made under this Agreement are for use only by Mortgage Affiliate and may not be given, transferred, assigned, or in any manner passed on to any third party unless expressly authorized in writing by HOL.
2.7 Restrictions on Payment Liability. HOL shall not be liable for any payment based on: (i) invalid Leads originating from Mortgage Affiliate's IP addresses or computers under Mortgage Affiliate's control, as determined within the sole discretion of HOL; (ii) Leads solicited by payment of money, false representation, or any illegal or otherwise invalid request or transfer of information; or (iii) Leads co-mingled with a significant number of invalid Leads. HOL reserves the right to withhold payment or charge back Mortgage Affiliate's account due to any of the foregoing or any breach of this Agreement by Mortgage Affiliate, pending HOL's reasonable investigation of any of the foregoing or any breach of this Agreement by Mortgage Affiliate. In addition, if Leads originating from Mortgage Affiliate indicate a trend of invalid Leads, HOL shall notify Mortgage Affiliate of the negative trend and reserves the right to withhold payment for sixty (60) calendar days from the date of notice of the negative trend to correct the negative trend and submit valid Leads. If Mortgage Affiliate corrects the negative trend and submits valid Leads during the sixty (60) day cure period, HOL shall retroactively compensate Mortgage Affiliate for valid Leads received during the sixty (60) day cure period. If HOL continues to experience invalid Leads during the sixty (60) day cure period, HOL reserves the right to terminate the Agreement.
2.8 Payment Disputes. In the event Mortgage Affiliate disputes a payment by HOL, it shall notify HOL in writing within thirty (30) calendar days of receipt of such payment. Failure to properly notify HOL shall result in the waiver by Mortgage Affiliate of any claim relating to any disputed payment.
SECTION THREE: MORTGAGE AFFILIATE DUTIES AND RESPONSIBILITIES
3.1 Participation in the Program. By enrolling in the Program, Mortgage Affiliate represents that he/she is at least eighteen (18) years of age. Mortgage Affiliate further acknowledges and agrees that HOL provides information to third party Insurance Agents engaged in the business of providing homeowners' insurance needs. Program Participation is subject to HOL's prior approval and Mortgage Affiliate's continued compliance with this Agreement, HOL's Website Terms and Conditions, and with HOL policies and procedures and/or specifications provided by HOL from time to time to enable proper delivery, display, tracking, and reporting of Leads. HOL reserves the right to refuse or suspend participation to any Mortgage Affiliate applicant or participant at any time in its sole discretion.
3.2 Services. Mortgage Affiliate shall provide HOL with Leads for Borrowers who meet the following requirements: (a) Borrower has applied for a Mortgage Loan; (b) Borrower has been approved by Mortgage Affiliate for a Mortgage Loan; (c) a Real Estate Property Appraisal Report has been ordered from a licensed Real Estate Appraiser on behalf of the Borrower for the property for which the loan is being sought; and (d) the Borrower's Mortgage Loan has not officially closed. In the event a Lead is provided to HOL that does not meet the Borrower requirements, HOL may refuse to accept the Lead or allow Mortgage Affiliate to resubmit the Lead with the corrected information.
3.3 Proper Borrower Authorization. Mortgage Affiliate shall properly inform Borrower of the HOL Program and obtain Borrower's authorization and consent to release his/her information to HOL before transmitting Borrower's information to HOL. Failure to comply with properly informing Borrower and obtaining Borrower authorization and consent shall result in corrective action by HOL, up to and including termination of this Agreement.
3.4 Lead Requirements. A valid Lead must include all of the following: Borrower's first name, Borrower's last name, current property address (including street address, city, state, zip code), subject property address (including street address, city, state, zip code), contact phone number for Borrower, email address for Borrower, proposed loan amount, estimated property value, current Borrower's homeowners insurance provider (if applicable), and anticipated closing date. A valid Lead must also be one for which there exists a market demand by Insurance Agents such that HOL is able to provide such Lead(s) to a minimum of two (2) but not to exceed four (4) Insurance Agents. Mortgage Affiliate agrees to exercise the highest level of diligence and maintain the highest level of care to ensure the accuracy of any and all Leads and information provided to HOL. Mortgage Affiliate is solely responsible for the Leads, including all content, transfer of the Lead, the proper implementation of HOL's specifications and adherence to this Agreement.
3.5 Submission of Leads. Mortgage Affiliate shall submit Leads exclusively to the HOL Site for a period of twenty-four months (24) from the date of Mortgage Affiliate's execution of this Agreement.
3.6 Confidentiality. Mortgage Affiliate agrees not to disclose HOL Confidential Information without HOL's prior written consent. "HOL Confidential Information" includes but is not limited to: (a) all HOL software, technology, programming, specifications, materials, guidelines, and documentation relating to the Program; (b) execution rates or other statistics relating to Site performance in the Program provided to Mortgage Affiliate; and (c) any other information designated by HOL as "Confidential." HOL Confidential Information does not include information that has become publicly known through no breach by Mortgage Affiliate or HOL, or information that has been (i) independently developed without access to HOL Confidential Information as evidenced in writing; (ii) rightfully received by Mortgage Affiliate from a third party; or (iii) required to be disclosed by law. Mortgage Affiliate may accurately disclose the amount of HOL's gross payments to Mortgage Affiliate pursuant to the Program.
3.7 Property Rights. Mortgage Affiliate acknowledges and agrees that HOL owns all rights, title, and interest, including but not limited to, all Intellectual Property Rights, in and to the Program, including HOL's technology, Lead technology, and Brand Features, excluding items licensed by HOL from third parties. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, as well as, any and all applications, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide. Mortgage Affiliate shall not acquire any right, title, or interest in or to the Program except as expressly set forth in this Agreement. Mortgage Affiliate shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from any HOL services, software, or documentation, or create or attempt to create a substitute or similar service or product through use of or access to the Program or proprietary information related thereto. Mortgage Affiliate shall not remove, obscure, or alter HOL's copyright notice, Brand Features, or other proprietary rights notices affixed to or contained within any HOL services, software, or documentation.
3.8 Use of Company Name and Information. Mortgage Affiliate agrees that HOL may use its name and logo in presentations, marketing materials, customer lists, financial reports, and Web site listings of customers. If Mortgage Affiliate desires to use HOL's trade name, trademarks, service marks, logos, domain names, and other Brand Features, Mortgage Affiliate may do so only with written consent of HOL which will not be unreasonably withheld. Mortgage Affiliate further acknowledges and agrees that HOL may retain and use, subject to the terms of the HOL Privacy Policy located on the Site or such other URL as HOL may provide from time to time, all information provide by Mortgage Affiliate, including but not limited to Site demographics and contact and billing information. Mortgage Affiliate also acknowledges and agrees that HOL may transfer and disclose to third parties personally identifiable information about Mortgage Affiliate for the purpose of approving and enabling Mortgage Affiliate's participation in the Program, including to third parties that reside in jurisdictions with less restrictive data laws than Mortgage Affiliate's own. HOL may also provide information about Mortgage Affiliate to third parties in response to valid legal process, such as subpoenas, search warrants and court orders, or to establish or exercise its legal rights or defend against legal claims. HOL disclaims all responsibility, and shall not be liable to Mortgage Affiliate, however, for any disclosure of that information by any such third party. HOL may share non-personally-identifiable information about Mortgage Affiliate, including Site URLs, Site-specific statistics and similar information collected by HOL, with advertisers, business partners, sponsors, and other third parties.
3.9 Prohibited Uses/Conduct. Mortgage Affiliate shall not authorize and/or encourage any other person(s) or entities to directly or indirectly generate or provide Leads or impressions of Leads to HOL through any deceptive, fraudulent, or otherwise invalid means, or engage in any action or practice that reflects poorly on HOL or otherwise disparages or devalues HOL's reputation or goodwill. Mortgage Affiliate acknowledges and agrees that attempting to engage or engaging in the above prohibited uses/conduct is a material breach of this Agreement and that HOL may pursue any and all available legal remedies which may include an immediate suspension of Mortgage Affiliate's account and/or termination of this Agreement.
3.10 Representations and Warranties. Mortgage Affiliate represents and warrants that (a) all of the information provided by Mortgage Affiliate to HOL to enroll in the Program is correct and current; (b) Mortgage Affiliate is the owner of the company or Mortgage Affiliate is legally authorized to act on behalf of the owner of such company for the purposes of this Agreement and the Program; (c) Mortgage Affiliate has all necessary right, power, and authority to enter into this Agreement and to perform the acts required of Mortgage Affiliate hereunder; and (d) Mortgage Affiliate has complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the RESPA Section 8 Act and any relevant data protection or privacy laws) in its performance of any acts hereunder.
3.11 Indemnification. Mortgage Affiliate agrees to indemnify, defend and hold HOL, its agents, affiliates, subsidiaries, directors, officers, members, employees, and applicable third parties, including but not limited to, advertisers, licensors, licensees, consultants and contractors, (collectively "Indemnified Person(s)") harmless from and against any and all third party claims, liability, loss, and expense (including damage awards, settlement amounts, and reasonable legal fees), brought against any Indemnified Person(s), arising out of, related to or which may arise from Mortgage Affiliate's use of the Program, the Site(s), and/or Mortgage Affiliate's breach of this Agreement.
SECTION FOUR: TERMINATION OF SERVICES
4.1 Termination by Mortgage Affiliate. Mortgage Affiliate may terminate this Agreement with or without cause at any time by providing thirty (30) calendar day's written notice of its desire to cancel its participation in the Program and terminate this Agreement to info@homeownerslink.com. This Agreement will be deemed terminated upon the expiration of the thirty (30) day notice by Mortgage Affiliate which shall begin upon HOL's receipt of such notice.
4.2 Termination by HOL. HOL may, with or without cause and in its sole discretion, suspend Mortgage Affiliate's participation in the Program, suspend or terminate all or part of the Program, or terminate this Agreement with Mortgage Affiliate. Further, HOL reserves the right to terminate without notice any account that has not generated a sufficient number of valid Leads as determined within the sole discretion by HOL for a period of sixty (60) calendar days.
4.3 Payment Upon Termination. In the event the Agreement is terminated, HOL shall pay Mortgage Affiliate its earned balance within approximately ninety (90) calendar days after the end of the calendar month in which the Agreement is terminated by Mortgage Affiliate or by HOL.
4.4 Duties Upon Termination. In the event the Agreement is terminated, Mortgage Affiliate and HOL shall continue to perform all obligations under this Agreement necessary to protect Borrower information. Mortgage Affiliate shall also continue to perform all obligations under this Agreement necessary to wind up its business with HOL, including, but not limited to, continued use of Site or part of Site as may be determined appropriate by HOL, execution and/or delivery of documents, and return of HOL property and/or information.
4.5 Survival Clause. Sections 1.6, 3.6, 3.7, and Section 5 shall survive any termination of this Agreement.
SECTION FIVE: WARRANTY INFORMATION AND LIMITATION OF LIABILITY
5.1 No Site Warranty. HOL MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WITH RESPECT TO ADVERTISING, LINKS, AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. TO THE EXTENT ADS, LINKS, ETC., ARE BASED ON NON-HOL CONTENT. HOL SHALL HAVE NO LIABILITY IN CONNECTION WITH THE DISPLAY OF SUCH ADS, LINKS, ETC.
5.2 Limitations of Liability. EXCEPT FOR ANY INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER OR MORTGAGE AFFILIATE'S BREACH OF ANY INTELLECTUAL PROPERTY RIGHTS AND/OR PROPRIETARY INTERESTS RELATING TO THE PROGRAM, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; and (ii) HOL'S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CLAIM IS LIMITED TO THE NET AMOUNT PAID BY HOL TO MORTGAGE AFFILIATE DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. Each party acknowledges that the other party has entered into this Agreement relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
5.3 Force Majeure. Without limiting the foregoing and except for payment obligations already accrued, neither party shall have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including but not limited to governmental action or acts of terrorism, earthquake or other acts of God, labor conditions, and power failures.
SECTION SIX: MISCELLANEOUS
6.1 Entire Agreement. This Agreement contains the entire agreement between the parties and no prior statements by any party will be binding unless contained in this Agreement.
6.2 Parties to the Agreement. This Agreement is between the Company and additional Members and does not create any rights or legal obligations between or among any contractors or other parties not a party to this Agreement.
6.3 Amendments. Any modifications to this Agreement shall be made in writing and executed by both parties, or by Mortgage Affiliate's online acceptance of updated terms, or after Mortgage Affiliate's continued participation in the Program after such terms have been updated by HOL.
6.4 Waiver. The failure to require performance of any provision shall not affect a party's right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
6.5 Notices. All written notices required under this Agreement shall be hand-delivered or sent postage-prepaid by registered or certified mail to a party's address as set forth in the signature box of this Agreement and as may be required by the terms of the Agreement. The effective date of notices shall be the date of receipt when hand-delivered or the date or receipt when sent registered or certified mail.
6.6 Computation of Time. In the event the date of action required under this Agreement falls on a weekend or legal holiday, then the next business day shall be the date action is required.
6.7 Assignment. The parties shall not have the right to assign, sublicense, or transfer this Agreement or any of its rights or obligations hereunder to any third party, and any such attempted assignment, sublicense, or transfer is hereby null and void. This Agreement is not intended to be enforceable against HOL by any party other than Mortgage Affiliate, and is expressly not intended to be enforceable by any third party.
6.8 Governing Law. This Agreement shall be construed and governed by the laws of the State of Oklahoma.
6.9 Section and Paragraph Headings. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
6.10 Severability. If any provision of this Agreement is found to be illegal, unenforceable or invalid under current or future laws or regulations effective during the Term of this Agreement, the illegal, unenforceable or invalid provision will be severed from this Agreement and all other provisions shall remain in full force and effect.