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Affiliate Terms and Conditions
O P E R A T I N G A G R E E M E N T
This iMortgage Central AFFILIATE PROGRAM OPERATING AGREEMENT (this "Agreement") contains all of the terms and conditions, except as otherwise expressly provided herein, regarding your participation in the iMortgage Central Affiliate Program (the "Affiliate Program") offered by iMortgage Central, Inc., a Tennessee corporation ("iMortgage Central").
1. iMortgage Central Affiliate Program. iMortgage Central is a leading Internet-based loan marketplace where customers submit one simple form and within hours can receive up to fthree loan offers from iMortgage Central's network of lenders. iMortgage Central provides access to several types of loan products, including mortgage, home equity, auto loans and credit cards. iMortgage Central conducts business through its World Wide Web Site located at http://www.iMortgageCentral.com (the "Site"). Under this Agreement, your World Wide Web Site that has been designated by you in your iMortgage Central Affiliate Program Membership Application and accepted by iMortgage Central as the "Affiliate Site" will be electronically linked to the Site.
2. Enrolling in the Affiliate Program. To enroll in the iMortgage Central Affiliate Program, complete the iMortgage Central Affiliate Program Membership Application form located on the Site. Your submission of the Affiliate Program Application constitutes your consent to the terms and provisions of this Agreement. iMortgage Central will review your completed Application and will promptly notify you, via e-mail, if your Affiliate Site has been accepted for participation in the Affiliate Program. iMortgage Central has the right to reject your Application at our sole discretion if we determine that your Site's participation would be unsuitable for the Affiliates Program for any reason. If we reject your Application, you may reapply at any time.
3. iMortgage Central Link. Once your Affiliates Program Application is accepted, we will make available to you iMortgage Central Links, which can be accessed through a third-party reporting site, http://www.clixgalore.com. Subject to the terms and conditions hereof, you may display the iMortgage Central Links on your Affiliate Site as often and in as many areas as you desire. The iMortgage Central Links will consist of one or more text or graphic images provided by us on Reporting.net containing the iMortgage Central trademark and logo and establishing a link that will connect visitors to your Affiliate Site directly with iMortgage Central when they click on a iMortgage Central Link. The iMortgage Central Links are subject to change from time to time in our sole discretion.
4. Your Responsibility For iMortgage Central Links. You agree to promptly post a iMortgage Central Link to your Affiliate Site within thirty (30) days after it is made available to you. In using the iMortgage Central Links, you agree that you will fully cooperate with us in order to establish and maintain one or more electronic links that directly connect your Affiliate Site's visitors to the Site. You agree to display one or more iMortgage Central Links prominently in relevant sections of your Affiliate Site. You agree that you will display on your Affiliate Site only those iMortgage Central Links that are provided by iMortgage Central to you, and you will substitute such iMortgage Central Links with any new iMortgage Central Links provided by iMortgage Central from time to time. You will not modify a iMortgage Central Link in any manner without our express written consent. iMortgage Central has the right to monitor your Affiliate Site at any time to determine your compliance with this Agreement, and take any action iMortgage Central deems appropriate, in its sole discretion, in the event of non-compliance.
In posting the iMortgage Central Link(s), you may not recommend, endorse, solicit, refer or otherwise do any act which would have the effect of affirmatively influencing the selection by any visitor to your Affiliate Site of any mortgage lending services or other settlement services provided by or through iMortgage Central.
5. Additional Affiliate Site Obligations.
a) You will be solely responsible for the development, operation and maintenance of your Affiliate Site and for all materials that appear on your Affiliate Site, including maintenance of the electronic links to the Site and the immediate repair of any "broken" links. We disclaim all liability for all such matters.
b) You are solely responsible for ensuring that your Affiliate Site complies with all applicable laws and regulations, including, but not limited to, all trademark, trade name, copyright, and state and federal consumer protection and privacy laws and regulations.
c) You must have express written permission to use another party's trademarks or trade names, copyrighted or other proprietary material, or any deceptively similar version of them, on your Affiliate Site, in a metatag or other similar search engine ranking device on your Affiliate Site or web pages under your control. We will not be responsible if you misuse another party's trademarks, trade names, copyrighted or other proprietary material.
d) Except as expressly authorized by us in this Agreement, you agree not to make any representations, warranties (express or implied) or other statements concerning iMortgage Central, our Site, our Site policies, the lenders on our Site, any of the products offered by iMortgage Central or its network of lenders through our Site (including, but not limited to, any representations, warranties or statements which state or imply that a visitor to your Affiliate Site is guaranteed to receive a loan or credit offer from a lender on the iMortgage Central network or which in any way relate to the terms, conditions or other attributes of loans or other credit products offered by lenders participating on our Site).
e) You may not use any computer or other electronic device to send an unsolicited advertisement (also known as "spamming") to an electronic mail address of an individual with whom you lack a preexisting and ongoing business or personal relationship unless you have received an express invitation or consent/permission from that individual.
f) Notwithstanding your obligation to place iMortgage Central links on your Affiliate Site, you will not provide any recommendation or endorsement of iMortgage Central on your Affiliate Site, or on any metatags or other similar search engine ranking devices, or other web pages you maintain or control, without our express written consent.
g) You may not create, publish, distribute or permit any written material that makes reference to us. Additionally, except for the use of iMortgage Central Links as provided in this Agreement, you may not use our registered trademark, iMortgage Central, our service mark, "When banks Compete, You Win," the names or trademarks of any of the participating lenders on our Site (without that party's express written permission), or any deceptively similar version of any of them on your Affiliate Site, in a metatag or other similar search engine ranking device on your Affiliate Site or on web pages under your control.
h) Your Affiliate Site shall not contain any content that is in any way unlawful, harmful, obscene, harassing, or racially, ethnically, or otherwise objectionable.
i) You shall comply with all of the terms and provisions contained in this Agreement as modified from time to time by iMortgage Central.
j) You may not change the URL for your Affiliate Site from the URL submitted on your iMortgage Central Affiliate Program Membership Application or add iMortgage Central Links to other web sites without iMortgage Central's prior written consent.
k) You may not, under any circumstances, charge visitors to your Affiliate Site any fee or compensation for access to iMortgage Central's services through a iMortgage Central Link or otherwise.
l) You may not use "unbranded" or generic links on your Affiliate Site that link to our Site.
m) You will not purchase or otherwise arrange for any search engine link to come directly to or redirect to the Site. Any such search engine listings bought or otherwise used by you shall link to your Affiliate Site only.
n) You will comply with all additional rules and obligations of the Affiliate Program set forth in this Agreement, as the same may be modified, from time to time, by notice to you from iMortgage Central as set forth in Section 17 below. Any amendments or modifications shall be incorporated herein by reference.
6. iMortgage Central License. During the term of this Agreement, iMortgage Central grants you a non-transferable, non-exclusive, revocable right to (i) access the Site through the iMortgage Central Links solely in accordance with the terms of this Agreement and (ii) solely in connection with the iMortgage Central Links, to use our logos, trademarks, trade names and other intellectual property contained in the iMortgage Central Links (collectively, the "iMortgage Central Marks"). We may revoke this license at any time by giving you notice pursuant to the provisions of Section 17 of this Agreement, whereupon you will immediately remove all iMortgage Central Marks from your Affiliate Site and other web pages under your control or direction.
Except for the licensing rights granted above, iMortgage Central retains all other ownership and proprietary rights and interests in and to the iMortgage Central Marks and all related goodwill. You may not use the iMortgage Central Marks or other iMortgage Central intellectual property for any purpose except as contemplated by this Agreement without the prior written consent of iMortgage Central. iMortgage Central has the right to review and approve in advance the nature and quality of the way in which you intend to use the iMortgage Central Marks and the form of the iMortgage Central Marks so used, and you agree to comply with the directions of iMortgage Central in this regard. You agree not to use the iMortgage Central Marks in any manner that is disparaging or that otherwise portrays iMortgage Central in a negative light.
You acknowledge that the iMortgage Central Marks are owned by iMortgage Central. In addition, you will not at any time during the term of this Agreement or thereafter, directly or indirectly, contest or assist any other company, or person, in contesting the validity of the iMortgage Central Marks or the right, title and interest of iMortgage Central to the iMortgage Central Marks. You agree that all use of the iMortgage Central Marks will inure to the benefit of iMortgage Central and you will have no right in the iMortgage Central Marks
7. Advertising Compensation. Unless you are otherwise notified by iMortgage Central pursuant to Section 17 of this Agreement, in consideration of the advertising of the Site provided by the iMortgage Central Links from your Affiliate Site, iMortgage Central will pay you an Advertising Fee of $10.00 for each unique visitor who "Clicks-Through" from a iMortgage Central Link on your Affiliate Site to the purchase mortgage, home equity, refinance or debt consolidation, and submits a Qualification Form on our Site for such a product, that iMortgage Central transmits to at least one lender in the iMortgage Central network (only one fee will be paid for each unique loan qualification form regardless of the number of lenders to which such form is transmitted). For purposes of this Agreement, "Clicks-Through" means that the individual user selects and "clicks on" a iMortgage Central Link and is taken to the relevant portion of the Site. iMortgage Central has no obligation to pay you an Advertising Fee for visitors who have not met this definition of "Clicks-Through." We both agree that this compensation represents the fair and reasonable advertising value of your placement of the iMortgage Central Links on your Affiliate Site, including, but not limited to, the inherent advertising value to iMortgage Central created by the association with your Affiliate Site. We both agree that this compensation is paid without regard to the value or volume of mortgage loans or real estate transactions that may be attributable to this advertising.
8. Advertising Fee. The Advertising Fee shall be paid monthly and shall be calculated in the manner set forth in the e-mail(s) you receive from iMortgage Central from time to time. The Advertising Fee shall be payable to you according to the terms of the Reports and Payments Section of this Agreement. You may not fraudulently or improperly generate and/or transmit Click-Throughs in order to artificially inflate Click-Throughs from your Affiliate Site manually or through the use of any automatic device, mechanism, robot, frame or process, or enlist any third party to do so on your behalf. iMortgage Central reserves the right to determine, in its sole discretion, whether such prohibited activity has occurred.
9. Reports and Payments. You will be given a password and have the ability to enter a password-protected site at http://www.clixgalore.com to monitor activity reports for your Affiliate Site. clixGalore will send all payment checks to our Affiliates on a regular basis chosen by clixGalore. clixGalore reserves the right to change this period at any time. Payment to our Affiliates will only occur if there are no outstanding monetary or fraudulent activity claims by any clixGalore member. Deducted only from Affiliate commission balances greater than US$1, clixGalore charges Affiliates a single monthly network usage fee of US$1. A postage fee of US$1.65 appies when commission checks are mailed. This is deducted from the Affiliate balance. clixGalore has not reviewed all of the sites linked to by the Site and is not responsible for the content of any off-site pages or any other sites linked to the Site. Your linking to any other off-site pages or other sites is at your own risk. The regulations, terms and conditions contained herein represent the complete, final and exclusive agreement between clixGalore and the Member, and supersede all prior agreements, representations and understandings between clixGalore and the Member. This Membership Agreement may be terminated by clixGalore at any time. However, such termination does not affect the enforceability of the terms and conditions of this Agreement as they relate to acts and omissions during the period prior to such termination. The Member acknowledges that if any provision of this Agreement conflicts with any other rule, regulation, term or condition of the Site, the terms and conditions of this Agreement shall govern. You are responsible for all federal, state and local taxes and fees arising of the Advertising Fees payable to you.
10. Necessary Changes in Compensation. In addition to iMortgage Central's right to modify any provision (including compensation provisions of this Agreement upon notice to you in accordance with Section 17 below), compensation under this Agreement shall be subject to change if and to the extent necessary to comply with federal, state and local laws and regulations, including but not limited to, the Real Estate Settlement Procedures Act. If, in the reasonable judgment of either of us, the compensation provided in this Agreement fails to comply with any applicable law, or either of us is advised by legal counsel or a regulatory agency to terminate or modify this Agreement to achieve legal compliance, then we will negotiate in good faith an alternative compensation arrangement with substantially similar economic benefits.
11. Term of Agreement. This Agreement will commence on the date you are notified by iMortgage Central that your Affiliate Site has been accepted for participation in the Affiliate Program and will end when terminated by either party. Either you or iMortgage Central may terminate this Agreement at any time, for any reason, with or without cause, by giving the other party notice of termination in accordance with the provisions of Section 17 below. You are only eligible to earn Advertising Fees during the term of this Agreement. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. If termination is the result of a breach of any of your representations, warranties, covenants and obligations under this Agreement, as modified from time to time, you will not be entitled to receive unpaid fees and iMortgage Central shall reserve all rights and remedies available to iMortgage Central pursuant to this Agreement and applicable law. Immediately upon termination, you shall remove the iMortgage Central Links from the Affiliate Site and any other web pages under your control and direction and the licensing of the iMortgage Central Marks hereunder shall cease.
12. Warranties. You represent and warrant to iMortgage Central that you are duly organized, validly existing and in good standing and are duly qualified and licensed to do business and to carry out your obligations under this Agreement and that the execution, delivery and performance of this Agreement does not violate any existing agreement to which you are a party or by which you are bound. You further represent and warrant to iMortgage Central that:
a) all of the information contained in your Affiliate Program Membership Application is true and complete;
b) the content on your Affiliate Site and any other web pages maintained by you or under your control or direction will not:
(i) violate any federal, state or local law or regulation, or any law or regulation of any nation or other jurisdiction in which it may be accessed;
(ii) contain any content that violates any state or federal laws or regulations regarding false and deceptive advertising and discrimination:
(iii) contain any defamatory, disparaging, false, malicious, pornographic or obscene content;
(iv) contain or introduce to the computer system, network or database of any person, any computer viruses, agents or similar destructive programs, codes or algorithms that will destroy or interfere with the use of any system, network or database or will cause them to be erased, contaminated, inoperable or disabled; and
(v) infringe upon the copyright, trademark or other intellectual property rights or privacy rights of any other person; and
c) you will not submit any false or misleading information to the Site through the iMortgage Central Links on your Affiliate Site, or otherwise.
13. Independent Investigation. You acknowledge that you have read this Agreement and agree to all its terms and conditions, and you understand that we may at any time (directly or indirectly) solicit visitor traffic on terms that may differ from those contained in this Agreement or operate World Wide Web Sites that are similar to or compete with your Affiliate Site. You have independently evaluated the desirability of participating in the Affiliate Program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.
14. Indemnification; Limitation on Liability. You agree to indemnify, defend and hold iMortgage Central and our officers, directors, shareholders, employees, agents and related and affiliated entities, harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees and court costs) of any kind or nature, arising out of, resulting from or in any way connected with (i) your breach or alleged breach of any provision, including, but not limited to, any covenant, representation or warranty contained in this Agreement as modified from time to time, (ii) your negligence or willful misconduct in connection with your performance of this Agreement, (iii) any claim related to the development, maintenance, operation or content of the Affiliate Site, (iv) any misrepresentation made by you or on your Affiliate Site or any other web pages under your control or direction, and (v) any taxes due on the payment of the Advertising Fee.
iMortgage Central SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF USE OR LOST BUSINESS, REVENUE, PROFITS OR GOODWILL, ARISING OUT OF, RESULTING FROM OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE PRODUCTS, SERVICES OR PROGRAMS OFFERED BY iMortgage Central, OR ANY DOCUMENTATION AND/OR INTENDED USE THEREOF, UNDER ANY THEORY OF TORT, CONTRACT, WARRANTY, STRICT LIABILITY OR NEGLIGENCE, EVEN IF iMortgage Central HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, iMortgage Central'S AGGREGATE LIABILITY WITH RESPECT TO THE EXECUTION AND PERFORMANCE OF THIS AGREEMENT SHALL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU HEREUNDER.
THE SITE, iMortgage Central LINKS AND RELATED SERVICES ARE PROVIDED "AS IS" WITH NO WARRANTY, AND iMortgage Central EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, REGARDING THE SITE OR THE iMortgage Central LINKS, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. IN ADDITION, iMortgage Central MAKES NO REPRESENTATION THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND iMortgage Central WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
15. Relationship of Parties. You and iMortgage Central are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party shall have the authority or power to act for, bind or commit the other in any way.
16. Publicity. You shall not create, publish, distribute, or permit any written material that makes reference to iMortgage Central without first submitting such material to us and receiving our prior written consent, which we may withhold in our sole discretion.
17. Notices. Except as otherwise expressly provided herein, all notices under this Agreement:
To iMortgage Central from you: shall be in writing, and shall be delivered in person, by facsimile or by overnight courier. The address and facsimile number for iMortgage Central is iMortgage Central, Inc., 11115 Rushmore Drive, Charlotte, NC 28277, Attn: Affiliate Program Manager facsimile (704) 541-1824. Notices may also be sent by first-class United States mail, if properly addressed, postage prepaid, and registered or certified (return receipt requested). Notices shall be considered as delivered upon written confirmation of receipt or three days after mailing in the required manner.
To you from iMortgage Central: shall be made in one or more of the following ways: (a) by written notice as provided above to your address, or facsimile number as specified in your Affiliate Program Membership Application; (b) by an e-mail to the e-mail address set forth in your Affiliate Program Membership Application, by including such notice in a Branching Out Newsletter; or (c) through a posting of the notice on the Affiliate Section of the Site or at http://www.clixgalore.com.
Either of us may change our respective addresses for the purpose of receiving notices under this Agreement by giving notice to the other party in the manner specified in this Section.
18. Confidentiality. Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto agree that all information including, without limitation, the terms of this Affiliate Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning iMortgage Central or you, respectively, or any of our affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by such party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than such party hereto or its affiliates.
19. Entire Agreement. This Agreement constitutes the entire agreement and understanding between us with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements and understandings.
20. Amendment. ANY PROVISION OF THIS AGREEMENT MAY BE AMENDED OR MODIFIED BY iMortgage Central AT ANY TIME, IN ITS SOLE DISCRETION. AMENDMENTS OR MODIFICATIONS MAY INCLUDE, BUT ARE NOT LIMITED TO, CHANGES IN THE FEES, FEE SCHEDULES, PAYMENT PROCEDURES, AND AFFILIATE NETWORK RULES. iMortgage Central WILL NOTIFY YOU OF ANY AMENDMENTS OR MODIFICATIONS IN ACCORDANCE WITH SECTION 17. IF ANY AMENDMENT OR MODIFICATION OF THIS AGREEMENT IS NOT ACCEPTABLE TO YOU, YOUR SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. IF YOU DO NOT PROVIDE iMortgage Central WITH NOTICE OF YOUR TERMINATION AND CONTINUE TO PARTICIPATE IN THE AFFILIATE PROGRAM, THEN THE AMENDMENT OR MODIFICATION WILL BE LEGALLY BINDING UPON YOU. iMortgage Central may waive compliance with any provision of this agreement. The failure of iMortgage Central to enforce any provision of this agreement at any time shall not be construed as a waiver of such provision.
21. Severability. Each provision of this Agreement is independent of and severable from each other provision. If any provision of this Agreement is found to be unenforceable or invalid, the remaining provisions of this Agreement shall remain valid and enforceable.
22. Non-Assignability. You may not assign this Agreement or transfer the rights granted under this Agreement without the prior written consent of iMortgage Central.
23. Governing Law; Jurisdiction; Attorneys' Fees. The interpretation and enforcement of this Agreement shall be governed by the laws of the United States and the State of Tennessee (except any provision requiring the application of another state's laws and except that questions affecting the construction and effect of any intellectual property shall be determined by the laws under which the intellectual property is granted, registered or protected). If there is a dispute regarding this Agreement, we both agree that any civil action shall be filed in the federal or state courts located in Nashville, Tennessee and you irrevocably consent to the jurisdiction of such courts. Whichever one of us is the prevailing party in any dispute shall be entitled to recover its reasonable attorney's fees and court costs, as determined by the appropriate court of law.
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MORTGAGE LOANS
