Homeplans.com Partnership Center - Effiliate Agreement

E-ffiliate Agreement
(Updated March 27, 2006)

This agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Homeplans E-ffiliate Program (the "Program"). As used in this agreement, "we" or "MSI" means Homeplans, a division of Move Sales, Inc. and "you" means the applicant. "Site" means a World Wide Web site, and depending on the context, refers either to MSI’s Site, located at the URL www.Homeplans.com, or to any site that you link to our site (and which you will identify in your Program application). “Product” refers to both plans and products (modification fees are excluded).

Enrollment in the Program

The program is open to all web site operators except those running unsuitable sites minimally defined as:

Promoting violence.
Promoting sexually explicit materials.
Promoting discrimination based on race, nationality, sex, sexual orientation, religion, disability, or age.
Promoting illegal activities.
Violating the intellectual property rights of others.

You should also note that if your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate your agreement.

Links on Your Site

The following link option(s) are available under the Program:

Home Plan Center Link

Home Plan Products Link

To permit accurate tracking, reporting, and commission accrual, we will provide you with a unique source code that will be used in all links between your site and our site. Links to our site placed on your site pursuant to this Agreement and which properly utilize the source code are referred to as "Unique URLs." You must ensure that each of the links between your site and our site reach the Unique URLs that we provide you. You will only earn commissions with respect to activity on our site occurring directly through Unique URLs and through the unique 800 telephone number provided for phone sales. We will not be liable to you with respect to any failure by you to use Unique URLs or the correct 800 number, including to the extent that such failure may result in any reduction of amounts, which would otherwise be paid to you pursuant to this Agreement.

You acknowledge that, by participating in the Program and placing any of the above links within your site, MSI may receive information from or about visitors to your site and communications between your site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for MSI's access to, receipt, storage, use and disclosure of any and all such information, consistent with the policies and procedures set forth in MSI’s Privacy Notice.

Order Processing

We will process Product orders placed by customers who follow Unique URLs from your site to our site or call using the unique 800 number. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products using Unique URLs from your site or who call and purchase Products using the unique 800 number and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time at our discretion.

Commissions

We will pay you (in accordance with Commission Schedule and Commission Payment sections below) commissions on certain Product sales to the customer. For a Product sale to be eligible to earn a commission, the customer must follow Unique URLs from your site to our site, select and purchase the Product using our automated ordering system or unique 800 number, accept delivery of the Product at the shipping destination, and remit full payment to us. Commissions will be paid only on our Product sales, which are home plans, project plans, and home plan products (modification fees are excluded).

Commission Schedule

You will earn commissions based on Net Sales according to commission schedules to be established by us. "Net Sales" are revenues derived by us from our Product sales, excluding costs for shipping & handling, exchanges and returns, taxes and credit card processing fees. The current commission schedule is:

15% of Net Sales from the sale of each Product. Under the terms of this option, we shall be the exclusive provider of home plans, project plans and home plan products on your site during the term of this agreement.
10% of Net Sales from the sale of each Product. Under the terms of this option, we shall not be the exclusive provider of home plans, project plans and home plan products on your site during the terms of this agreement.

Commission Payment

We will pay you commissions on a monthly basis. Approximately 30 days following the end of each calendar month, we will send you a check for the commissions earned on sales of Products that were shipped during that month, less any taxes that we are required by law to withhold. If a customer returns a Product that generated a commission, we will deduct the corresponding commission from your next monthly payment. If there is no subsequent payment, we will send you a bill for the commission.

Policies and Pricing

Customers who buy Products through this Program will be deemed to be customers of ours. Accordingly, all our rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. Because price changes may affect Products that you already have listed on your site, you may not include price information in Product descriptions.

Identifying yourself as an E-ffiliate

We will make available to you graphic images (website banners and buttons) that identify your site as a Program participant. You may display these graphics or the phrase "In Association with Homeplans.com" on your site. We may modify the text or graphic image of this notice from time to time. In addition, you may not in any manner misrepresent and embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement (including by expressing or implying that MSI supports, sponsors, endorses or contributes money to any charity or other cause). You may not make any press release with respect to this Agreement or your participation in the Program without our prior written consent, which may be given or withheld at our discretion.

Limited License

We grant you a nonexclusive, revocable right to use the graphic images and text described in Identifying Yourself as an E-ffiliate and such other images for which we grant express permission, solely for the purpose of identifying your site as a Program participant and to assist in generating Product sales. You may not modify the graphic image or text, or any other of our images, in any way. We reserve all of our rights in the graphic images and text, any other images, our trade names and trademarks, and all other intellectual property rights. We may revoke your license at any time by giving you written notice.

Responsibility for Your Site; Indemnity

You will be solely responsible for the development, operation, and maintenance of your web site and for all materials that appear on that site with the exception of the Unique URLs that we provide. For example, and without limitation, you will be solely responsible for:

The technical operation of your web site and all related equipment
The accuracy and appropriateness of materials posted on your web site (including, among other things, all Product-related materials)
Ensuring that materials posted on your web site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights)
Ensuring that materials posted on your web site are not libelous or otherwise illegal

We disclaim all liability for the matters set forth above. Further, you agree to defend and hold harmless our company and its affiliates and their respective officers, directors, consultants and employees from any and all third party claims, suits, liability, damages and or costs (including but not limited to) reasonable attorneys’ fees arising from: (I) the breach by you of any warranty representation or obligation under this Agreement; and (II) any and all claims relating to the development, operation, maintenance, and contents of your Web site.

Term of the Agreement

The term of this Agreement will begin upon acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination.

If one party materially breaches or is in material default of any obligations hereunder, which material breach or default has not been cured within thirty (30) days after receipt of written notice of such default from the non-defaulting party or within such additional cure period as the non-defaulting party may authorize (in writing), then the non-breaching party may terminate this Agreement.

Either party may terminate this Agreement by written notice to the other party if that party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law whether domestic or foreign, or has wound up or liquidated, voluntarily or otherwise. Notice of termination under this subparagraph is discretionary, not mandatory.

Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all links to our site, and all our trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program. You are only eligible to earn commissions on our sales of Products occurring during the term of this Agreement, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time (not to exceed six months) to ensure that the correct amount is paid.

Modification

We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available commissions, commission schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

Relationship of Parties

You and we are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.

Limitation of Liability

Neither us nor our parent or any of our affiliates will be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total commissions paid or payable to you under this Agreement.

Disclaimers

We make no express or implied warranties or representations with respect to the Program or Products sold through the Program (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, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.

Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTANDS THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

Arbitration

Any dispute relating in any way to this Agreement (including any actual or alleged breach hereof), any transactions or activities under this Agreement or your relationship with us or any of our affiliates shall be submitted to confidential arbitration in Los Angeles County, California, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the state of California (and you consent to non-exclusive jurisdiction and venue in such courts) or any other court of competent jurisdiction. Arbitration under this agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall by binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.

Spam Policy

We do not and will not tolerate the sending of unsolicited email messages and will prosecute all offenders to the fullest extent of the law. By agreeing to the terms and conditions of this agreement, you also agree to the following:

E-mails promoting us shall not contain or include a falsified sender domain name or falsified IP address;
E-mails promoting our advertisements shall not be routed or relayed through servers that the sender does not have explicit authorization to use;
E-mails promoting our advertisements shall not contain or include a false or misleading subject line that attempts to disguise or conceal the content of the e-mail;
All e-mails shall contain or include valid and responsive contact information of the sender, list manager or list owner; this includes your physical address.
No e-mails promoting us shall be sent for the purpose of harvesting the e-mail addresses in order to send future unsolicited e-mails;
All e-mails promoting us will be sent to individuals who have given you their “Affirmative Consent” as defined in Sec. 3.1 of the “CAN-SPAM Act of 2003” which by its reference is incorporated into this document.
Every e-mail promoting our advertisements shall contain a functioning return electronic mail address or other Internet-based mechanism clearly displayed that a recipient may use to submit in a manner specified in the message a reply electronic mail message or other form of Internet-based communication requesting not to receive future e-mail messages from you.
You shall process any and all opt-out requests within 5 business days, or less of the request.
Unless otherwise directed by us in writing, you shall not use our name or our represented advertisers names (including any abbreviation thereof) or any trademark, trade name, service mark, logo or other identifying information in the originating or return e-mail address line, header or subject line of any e-mail transmission and that all e-mail transmissions shall contain language in the body and both the "from" line as well as the "re:" line that clearly announces that the offer embedded in the e-mail is being sent by you for the benefit of your users.
You agree and affirm to comply with all the rules and regulations set forth in the “CAN-SPAM Act of 2003” as well as all obligations and provisions herein.

Miscellaneous

This Agreement will be governed by the laws of the United States and the state of California, without reference to rules governing choice of laws. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, insure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision of any other provision of this Agreement.