TERMS AND CONDITIONS
IMPORTANT – PLEASE READ CAREFULLY: BY CHECKING THE "I AGREE" BOX AND CONTINUING WITH YOUR REGISTRATION OR BY USING THE SERVICES AND THE SYSTEM PROVIDED BY ONE PLANET OPS INC., YOU (ON BEHALF OF YOURSELF OR AS AN AUTHORIZED REPRESENTATIVE ON BEHALF OF AN ENTITY, WHICH COMPANY SHALL BE BOUND TO THESE TERMS) AGREE TO ALL THE TERMS OF THIS HOMEGAIN AGREEMENT (THE "AGREEMENT") WITH ONE PLANET OPS INC. D/B/A/ HOMEGAIN ("HOMEGAIN"), REGARDING YOUR USE OF THE SERVICES AND THE SYSTEM. IF YOU DO NOT AGREE TO ALL OF THESE TERMS, YOU WILL NOT BE ABLE TO USE THE SERVICES, THE SYSTEM OR BE ABLE TO BUY LEADS OR CLICKS. THE EFFECTIVE DATE (“Effective Date”) OF THIS AGREEMENT IS THE DATE THAT YOU ACCEPT THIS AGREEMENT BY CHECKING THE "I AGREE" BOX AND CONTINUING OR BY USING THE SERVICES AND THE SYSTEM PROVIDED BY ONE PLANET OPS INC.
1. Buyer Rights and Obligations.
a. System Access. You will have access to the System for the express and sole purpose of purchasing Leads and/or Clicks. You will access the System through a web-based account management tool that will provide the ability to view, search, and purchase Leads and/or Clicks, a summary of purchased Leads and/or Clicks, your account balance and payment history, and other information associated with your account.
i. Leads: HomeGain will make reasonable attempts to send a copy of each new Lead to the email address associated with your account. HomeGain makes no guarantees, however, that you will receive notice of a new Lead and as a result you agree to periodically review the account management tool for the receipt of new Leads.
ii. Clicks: HomeGain will send Clicks to websites designated by you and will track those Clicks in the System. To ensure delivery, you agree to periodically review the System for the receipt of Clicks. You agree to send Clicks to websites that are relevant to the category of Clicks purchased by you. For example, Clicks from consumers interested in buying a vehicle will be transferred to a website that provides information or services related to the purchase of a car. You are prohibited from buying Clicks in one category and requesting that HomeGain direct those Clicks to a website that is unrelated to the purchased Click category. HomeGain reserves the right to review and approve all websites that are designated as the destination website for Clicks in the System. HomeGain may immediately suspend or terminate your account and may withhold any and all credit balance associated with your account at the time of the violation if you redirect Clicks to websites that violate the terms of this Agreement. In addition, you agree to pay liquidated damages of $2,500 USD for each instance that you redirect a Click to a website that is focused on 1) death and tragedy; 2) gross and bizarre content; 3) sexually explicit content; and/or 4) gambling. Such liquidated damages are exclusive of any other remedies HomeGain may seek and are not a penalty as the Parties agree that the liquidated damages represent a reasonable estimate of the potential loss to HomeGain.
c. Reporting. Reporting may be obtained through the System’s account management tool. HomeGain’s reporting of Leads and/or Clicks delivered in any given period will be the definitive report and will determine the payment amount owed by you to HomeGain.
d. Controls. You have the right to change the price you will pay per Lead and/or Click, your coverage, the types of Leads and/or Clicks you are interested in receiving, and your budget settings through the System’s account management tool. Such changes will be effective within sixty (60) minutes of being made in the System.
e. Ownership Rights. You, or a designated individual from your entity (“Designee”) may contact Leads purchased by you through the System. You agree that you will not redistribute or re-sell the Leads to any third party under any circumstances. Violation of this Ownership Rights provision will be grounds for immediate termination of the Agreement and gives HomeGain the right to take any of the following actions:
i. immediate suspension of your account;
ii. immediate termination of your account;
iii. withholding any or all credit balance associated with your account at the time of the violation;
iv. obtain liquidated damages of $2500 per incident for any knowing or willful violation of this Section; such liquidated damages are not a penalty and are a reasonable estimate of the potential loss to HomeGain; and
v. all other remedies under law available to HomeGain.
f. Licensing. You represent and warrant that you and/or your Designee complies with all federal, state, and local licensing requirements that govern individuals or companies that would be responding to the type of Lead you have purchased.
g. Compliance with Laws. You represent and warrant that at all times you and/or your Designee complies with all federal, state and local laws, including without limitation, the Can-Spam Act of 2003, the Children’s Online Privacy and Protection Act, Gramm-Leach Bliley Act, the Fair Credit reporting Act, the Federal Trade Commission Act, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act and The Federal Communications Act.
a. Pre-Paid Accounts. You will pay HomeGain for all Leads and/or Clicks that are provided to you through the System based on the bids that you have established in your account. At the time your account is established, your credit card on record will be charged a pre-payment amount based on your account settings (after any initial credit has been exhausted). Each time a Lead and/or Clicks is sold to you through the System, your account balance will be debited for the cost of the Lead and/or Click. Once your account balance falls below your highest bid, your credit card will be charged the pre-paid amount based on the account settings.
b. Collections. To the extent that HomeGain must engage a collection agency or initiate legal proceedings to collect any amounts owed to HomeGain (whether paid through credit card or, you agree to pay for all costs (including legal fees) associated with the collection of the amount owed.
c. Payment Information. To ensure proper and timely payment, you agree to maintain with HomeGain an accurate address, other contact information, and credit card information at all times.
3. Confidentiality. During term of this Agreement and for two (2) years thereafter, except (i) as may be required by law, regulation, or court order; (ii) on a need to know basis to employees, consultants, counsel, accountants, investors or other professional advisers of the Parties; (iii) in connection with required tax and accounting disclosures; and (iv) as specified below and under Publicity:
a. Non-Disclosure of Confidential Information. You agree (i) not to disclose to any third party or use any Confidential Information disclosed by HomeGain except as expressly permitted in this Agreement and (ii) to take all reasonable measures to maintain the confidentiality of all Confidential Information in your possession or control.
b. Confidential Information. For the purposes of this Agreement, "Confidential Information" means information about HomeGain’s (or its partners' or customers') business or activities that is proprietary and confidential, which shall include business, financial, technical and other information which is marked as "confidential" or "proprietary" (or similarly), received from You related to this Agreement, or ought in good faith to be treated as confidential.
c. Non-Confidential Information. Confidential Information will not include information that (i) is in or enters into public domain without breach of this Agreement; (ii) You lawfully receive from a third party without restriction on disclosure and without breach of a nondisclosure obligation; or (iii) You knew prior to receiving such information from HomeGain.
d. Self-Identification. You agree to treat your identity confidential within the System and not take any actions that are aimed to reveal through the use of the System your identify
4. Term and Termination.
a. This Agreement shall commence on the Effective Date and continue until terminated.
b. Either of the Parties may terminate this Agreement, with or without cause, immediately through following the steps in the System. HomeGain will cease sending Leads and/or Clicks within four (4) hours of this termination action and any remaining Lead and/or Click account balance will be refunded to the credit card in the System within 5-7 business days.
c. Rights Upon Termination. Except as expressly provided, upon the termination of this Agreement, all rights, duties and obligations of the Parties hereunder shall terminate, except to the extent that either party violated the Agreement and claims related to that violation remain intact. In addition, the following sections shall survive post-termination: Payment obligations, Compliance with Federal, State and Local Laws, Confidentiality, Indemnification and Limitation of Liability. Notwithstanding the foregoing, HomeGain may continue to provide You access to your account to view records and obtain reporting.
5. Indemnification. You agree to defend, indemnify and hold-harmless HomeGain and its affiliates, officers, directors, employees and consultants, from and against any and all claims, losses, liabilities and damages of any kind resulting from a breach of your representations and warranties or from your access to and use of the System or the services provided hereunder.
6. Limitation of Liability. HOMEGAIN WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF REVENUE, PROFITS, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF HOMEGAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, HOMEGAIN 'S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED, IN ANY EVENT, THE TOTAL FEES PAID OR PAYABLE TO YOU HEREUNDER DURING THE PRIOR THE THREE MONTHS TO ANY CAUSE OF ACTION.
7. Disclaimer. HOMEGAIN MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THIS AGREEMENT, THE SERVICES OR THE SYSTEM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, HOMEGAIN DOES NOT MAKE ANY REPRESENTATION THAT THE OPERATION OF ITS WEBSITE, THE SERVICES OR THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, AND NEITHER PARTY WILL BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. HOMEGAIN DOES NOT REPRESENT OR WARRANT THAT ANY OF THE LEADS OR CLICKS PURCHASED BY YOU WILL BECOME YOUR CUSTOMERS OR GENERATE REVENUE FOR YOU.
8. No Joint Venture. Nothing herein contained shall be construed to place the Parties in a relationship of joint ventures, and neither Party shall have the power to obligate or bind the other in any manner whatsoever. The Parties enter into this Agreement as independent contractors.
9. Severability & Validity. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, in whole or in part, then a) the validity, legality and enforceability of any of the remaining provisions or portions of this Agreement shall not in any way be affected or impaired thereby and this Agreement shall nevertheless be binding between the Parties; and b) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law, and the remainder of the Agreement shall remain in full force and effect..
10. Assignment. You may not assign this Agreement, in whole or in part, without HomeGain's prior written consent, and any attempted assignment without such consent shall be null and void. Notwithstanding the foregoing, consent will not be required for assignment or transfer made by operation of law or when an entity acquires substantially all of your stock, assets or business, in which case the assignment occurs automatically upon the consummation of the sale and the succeeding entity shall assume all obligations. HomeGain may freely assign or transfer this Agreement at any time and will provide you with written notice of that assignment or transfer to the email address associated with your account at that time.
11. No Waiver or Modification. No term or provision hereof will be deemed waived or modified, and no variation of terms or provisions hereof shall be deemed consented to, except as expressly provided herein, unless such waiver or consent is in writing signed by the Party against whom such waiver or consent is sought to be enforced. Any delay, waiver or omission by either Party to exercise any right or power arising from breach or default of this Agreement by the other Party shall not be construed to be a waiver by that Party of any subsequent breach or default.
12. Headings. The descriptive headings in this Agreement are inserted for convenience to navigate and reference provisions only and except to reference provisions do not constitute a part of this Agreement.
13. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of California, without reference to conflicts of law rules. The Parties agree to submit to the personal and exclusive jurisdiction of the courts located in San Francisco County, California. The parties agree the United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The prevailing party in any litigation shall be entitled to seek attorney's fees.