This agreement contains the complete terms and conditions that apply to Affiliate’s participation as an affiliate with the HomeNav Affiliate Marketing Program and the establishment of links from Affiliate’s Website to the HomeNav Website.
As used in this agreement, “HomeNav” means HomeNav, LLC, and “Affiliate” means the affiliate or referral partner participating in the Affiliate Marketing Program. “Affiliate’s Website” individually and collectively means any or all of Affiliate’s website, email communications, and software applications. “Affiliate Marketing Program” means the program managed by or on behalf of HomeNav by which participating entities place links on their electronic properties that connect to the HomeNav Website and for which a commission is earned. The “HomeNav Website” means www.homenav.com.
1. Term and Termination
The term of this agreement will begin upon HomeNav’s acceptance of Affiliate’s Website in the Affiliate Marketing Program and Affiliate’s acceptance of this agreement and will end when terminated as described in this agreement. Either HomeNav or Affiliate may terminate this agreement at any time, with or without cause, by giving the other at least five days’ written notice of termination. Affiliate is only eligible to earn commissions on sales occurring during the term of this agreement, and commissions earned through the date of termination will remain payable only if open orders are not canceled. HomeNav may withhold final payment for a reasonable time to ensure against cancellations.
HomeNav will make available to Affiliate, or Affiliate will create, subject to HomeNav’s approval, a variety of graphic and textual links (the “Links”) in order to link to the HomeNav Website. Affiliate and HomeNav will cooperate in good faith to develop and implement the Links. Each Link will permit recipients to navigate directly to a page on the HomeNav Website designated by HomeNav via a special tagged link format. Affiliate shall not place any Link on any page or screen that contains content that advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities; violates intellectual property rights of third parties; contains or promotes deceptive information; or is otherwise objectionable to HomeNav.
Affiliate will be responsible for integrating the Links into Affiliate’s Website to properly enable sales tracking, and HomeNav will not be responsible for Affiliate’s failure to do so, including to the extent the failure may result in any reductions of amounts that would otherwise be paid to Affiliate under this agreement.
HomeNav will pay Affiliate Commissions during the term of this agreement. “Commissions” are an amount equal to the percentage of the aggregate Net Proceeds received by HomeNav from the sale of Qualifying Purchases actually made from the HomeNav Website for the affiliate program Affiliate signs up for. “Qualifying Purchases” means all HomeNav products and services that are purchased by users during a visit to the HomeNav Website immediately following navigation to the designated URL through a Link under this Affiliate Marketing Program. Commissions will not be payable on sales otherwise made from the HomeNav Website or other HomeNav channels, even if the customer previously made a Qualifying Purchase. “Net Proceeds” means the proceeds received by HomeNav from the sale of Qualifying Purchases on the HomeNav Website net of all returns, refunds, and allowances, less costs and expenses attributable to taxes, shipping and handling, fraud and bad debts, duties, and credit card processing. (For purposes of calculating Net Proceeds, credit card sales will be subject to a flat deduction of 3% of the sale price.)
4. Payment Schedule
Commissions will be payable within 30 days from the end of each calendar quarter. HomeNav will deduct from each payment amounts previously paid to Affiliate for Commissions relating to products that were subject to returns, refunds, or allowances. If during any calendar quarter of the term of this agreement Affiliate’s Commissions do not exceed $50.00, then Affiliate will not receive payments or reports until following the calendar quarter during which Affiliate’s aggregate Commissions equal or exceed that amount or until the termination of this agreement, whichever occurs earlier.
Payments under this agreement will be accompanied by reports of sales for which Commissions are payable.
6. Representations and Warranties; Limitation of Liability
Each of HomeNav and Affiliate hereby represents and warrants that:
(1) it has full power and authority to enter into this agreement and to perform its obligations hereunder;
(2) it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this agreement; and
(3) the services to be rendered by it under this agreement neither infringe nor violate any patent, copyright, trade secret, trademark, or other proprietary right of any third party.
HomeNav will remain solely responsible for the operation of the HomeNav Website, and Affiliate will remain solely responsible for the operation of Affiliate’s site. Each party acknowledges that its website may be subject to temporary downtime due to causes beyond its reasonable control, and that the other party retains sole right and control over the programming, content, and conduct of transactions over its website or service.
EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (1) THE AMOUNT OF SALES THAT HOMENAV MAY GENERATE DURING THE TERM OF THIS AGREEMENT, AND (2) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
HOMENAV WILL NOT BE LIABLE TO AFFILIATE FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT. HOMENAV’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT OR AFFILIATE’S PARTICIPATION IN THE AFFILIATE MARKETING PROGRAM, WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS PAYABLE TO AFFILIATE UNDER THIS AGREEMENT.
7. Fulfillment and Policy
8. Intellectual Property Rights
HomeNav hereby grants to Affiliate during the term of this agreement a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between Affiliate’s Website and the HomeNav Website and to use HomeNav’s trade names, logos, trademarks, and service marks (the “HomeNav Marks”) on Affiliate’s Website solely as is reasonably necessary to establish and promote Links and to otherwise perform Affiliate’s obligations under this agreement, subject to HomeNav’s prior approval. Affiliate shall use the HomeNav Marks strictly in accordance with HomeNav’s trademark policy if HomeNav makes such a policy available to Affiliate.
Affiliate hereby grants to HomeNav during the term of this agreement a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between Affiliate’s Website and the HomeNav Website and to use Affiliate’s trade names, logos, trademarks, and service marks (the “Affiliate Marks”) solely as is reasonably necessary to establish and promote hyperlinks and to otherwise perform HomeNav’s obligations under this agreement, subject to Affiliate’s prior approval.
Except as set forth above, Affiliate and HomeNav each reserves all right, title, and interest in respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks, and other intellectual property rights). Use of the other’s marks except as set forth herein is strictly prohibited.
Affiliate agrees to indemnify HomeNav and its affiliates, directors, officers, employees, and agents against any and all liability, claims, losses, damages, injuries, penalties, or expenses (including reasonable attorneys’ fees) relating to the operation of Affiliate’s Website, a breach of Affiliate’s obligations under this agreement, or the violation of any third party intellectual property rights.
10. General Provisions
Affiliate and HomeNav will each monitor and periodically test the general availability and operation of Affiliate’s Website and the HomeNav Website.
Affiliate and HomeNav are entering this agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture, or employment relationship between HomeNav and Affiliate.
In its performance of this agreement and in the operation of each party’s respective website, Affiliate and HomeNav each will comply with all applicable laws, regulations, orders, and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, Affiliate and HomeNav each will pay, collect, and remit such taxes as may be imposed with respect to any compensation, royalties, or transactions under this agreement.
Neither Affiliate nor HomeNav will be considered to be in breach of or default under this agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond its reasonable control.
This agreement has been made in and will be construed and enforced in accordance with the laws of the State of Missouri without giving effect to Missouri’s conflict of laws principles. Any action arising hereunder will be brought exclusively in the state courts located in St. Louis County, Missouri or in the United States District Court for the Eastern District of Missouri.
Any notices under this agreement will be given in writing. Notices may be given by electronic mail and will be deemed delivered and given for all purposes on the sent date, but only if the receiving party has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via certified mail, return receipt requested.
Affiliate may not assign this agreement, in whole or in part, without HomeNav’s prior written consent.
The failure of either Affiliate or HomeNav to enforce any provision of this agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this agreement are in addition to any other remedies that may be available at law or in equity.
This agreement represents the entire Agreement between Affiliate and HomeNav with respect to the subject matter hereof and supersedes any other oral or written agreements regarding such subject matter, and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.
If any provision of this agreement is declared by any court of competent jurisdiction to be illegal, void, or unenforceable, all other provisions of this agreement will not be affected and will remain in full force and effect.
The Affiliate Marketing Program in no way participates in mass unsolicited emailing (i.e., spamming), and all affiliates are required to adhere to this policy as well. Violation of this policy will result in the termination of this agreement and immediate dismissal from the Affiliate Marketing Program.