EXCLUSIVE RIGHT TO SELL LISTING AGREEMENT
& AGENCY DISCLOSURE
THIS IS A LEGALLY BINDING AGREEMENT – READ CAREFULLY BEFORE SIGNING
DESIGNATED AGENCY BROKERAGE
THIS EXCLUSIVE RIGHT TO SELL LISTING AGREEMENT & AGENCY DISCLOSURE (the “Agreement”) is entered into by and between The Flat Rate Group, Inc., a Utah corporation, dba Flat Rate Homes (hereinafter referred to as the “Brokerage”) and _______ (hereinafter referred to as the “Seller”) (together the “Parties”, or individually a “Party”) for the provision of brokerage services related to the selling and/or marketing of real estate in the State of Utah.
1. EFFECTIVE DATE. This Listing Agreement is entered into and is effective as of the date: (a) The Seller has signed this Listing Agreement; and (b) when an offer is received for the seller’s listed property or when the listing is published to the MLS, whichever comes first; and (c) The authorized Seller’s Agent or Broker has signed & received a signed copy of this Listing Agreement (the “Effective Date”).
2. SCOPE OF AGREEMENT. This Agreement applies to the real property owned by the seller, described as: ______ (the “Listed Property”). This Agreement also applies to all Brokerage services ordered by Seller, whether part of a Brokerage Plan (“Brokerage Plan”) or in the form of additional services which have been selected by Seller.
3. TERM. Seller hereby grants to the Brokerage, including its principal broker (“Principal Broker”), which is the authorized agent of the Brokerage, and all other associated brokers/agents that may be affiliated with the Brokerage from time to time, the exclusive right to list, sell, lease, or exchange the Listed Property and to provide real estate broker services until the Agreement has officially been terminated by the seller as described in section 18 (the “Term”).
4. BROKERAGE FEES. Seller shall be responsible for the Flat Rate Listing Fee (hereinafter the “Basic Listing Fee”) stated for the Brokerage plan selected on the Brokerage website. In addition to the Basic Listing Fee, seller shall also be responsible for an Agent Commission (hereinafter the “Agent Commission”). The Agent Commission is the percentage selected by the Seller in the listing intake form and is based on the Listed Property’s gross purchase price. Seller may also elect to upgrade, add, or purchase additional products and services offered by the Brokerage and third parties during the Term of this Agreement. These products and services include, but are not limited to, Brokerage Plan’s, service upgrades, Lockbox and Sign upgrades, photography services, staging services, digital services, custom design work, additional/custom signage, additional marketing services, printing and publication services and any other services provided which are outside the scope of the seller’s chosen Brokerage plan. If these products and services have not already been paid for by the seller and there is an outstanding balance(s) owed by the seller to the Brokerage or a Third-Party service provider, Seller shall also be responsible for any and all outstanding balance(s) still owed. (Any additional product and services fees, collectively, shall hereinafter be referred to as the “Additional Services Fees”) Additional Services Fees shall be considered earned once the service has been performed or the item purchased has been provided. (The Agent Commission, the Basic Listing Fee, and Additional Service Fees, collectively, shall hereinafter be referred to as the “Total Brokerage Fee”). If, during the Term of this Agreement, or during the protection period as outlined in section
8 of this Agreement, the Brokerage, the Seller’s assigned Agent, another real estate agent, or anyone else locates a party who is ready, willing, and able to buy, lease or exchange (collectively “acquire”) the Listed Property, or any part thereof, at the listing price, or any other price and terms to which the Seller may agree to, the Seller agrees to pay the Total Brokerage Fee to the Brokerage. The Total Brokerage Fee, unless otherwise agreed in writing by the Seller and the Brokerage, shall be due and payable from the Seller’s proceeds on: (a) If a purchase, the date of recording of the Closing documents for the acquisition of the Listed Property; (b) If a lease, the effective date of the lease; and (c) if an option, the effective date of the lease or the date the option agreement is signed, whichever is earlier. If within the Term of this agreement, or any extension of the Term, the Listed Property is withdrawn from sale, transferred, conveyed, leased, rented, or made unmarketable by a voluntary act of Seller, without the written consent of the Brokerage; or if the sale is prevented by default of the Seller, the Total Brokerage Fee shall be immediately due and payable to the Brokerage. The Brokerage is authorized to share the Total Brokerage Fee with another brokerage participating in any transaction arising out of this Listing Agreement.
5. LISTING CHANGES. Changes and corrections may be made to the listing price and other information provided by Seller to the Brokerage for inclusion on the MLS listing and all other marketing materials for the property. Seller must complete changes and corrections through their online listing account or by sending a written request to support@flatratehomes.com via email. Seller acknowledges and agrees that once the “Agent Commission” is offered or published to the MLS, The Agent Commission cannot be lowered. If lowered, Seller shall still be responsible for the higher, previously offered Agent Commission, if the agent which Acquires the buyer, requires it. Seller acknowledges and agrees that any changes made to a Listing may take up to 24 hours to post/publish to the MLS and the Brokerage’s website (hereinafter referred to as the “24 Hour Posting Period”). If changes are made or requested to a listing after 3:00pm the 24 Hour Posting Period shall start at 9:00AM the next business day. Brokerage reserves the right to change or not publish Listing items, pictures, or information that goes against any internal, State, Local, Realtor Association, or MLS rules, regulations, and policies.
6. PAUSING SERVICE. Seller agrees and acknowledges that they have the right to pause or change their Listing status to “Withdrawn” or “Off Market” at any time during the Term of their Listing. However, Seller’s decision to order a pause in provision of the services that have been ordered from the Brokerage, such as listing the Listed Property for sale on the MLS or other online forums, or the placing of “For Sale” signs and conducting showings of the Listed Property, shall not pause the Term of the listing, which shall continue to run. No refunds shall be given for time lost due to a pause being ordered by the Seller. If the listing is paused or inactive for more than 90 Days, Listed Property shall be deemed cancelled and any Cancellation Fees or outstanding Total Brokerage Fees shall become due.
7. SCOPE OF WORK AND RESPONSIBILITY OF SELLER. The scope of the work (“Scope”) which the Brokerage undertakes for Seller shall be the total of all services which the Seller orders from the Brokerage and which are outlined in each online Brokerage Plan. No other services shall be due to Seller from the Brokerage. Seller acknowledges that they shall not have the right to expect Services offered in other service plans, or any other services offered which are not outlined in the plan selected by the Seller. Seller shall be responsible for all other services which are not outlined in their selected plan. The Brokerage shall only assist Seller with the products and services within the Scope of the Brokerage Plan selected by the Seller. Any services preformed outside the scope of the Seller’s chosen Brokerage Plan shall be subject to additional fees.
8. PROTECTION PERIOD. If within 3 months after the termination or expiration of this Listing Agreement, the Listed Property is acquired by any party to whom the Listed Property was offered or shown by the Brokerage, the Seller’s assigned Agent, the Seller, or another real estate agent during the Term of this agreement, or any extension of the Term, the Seller agrees to pay to the Brokerage the Total Brokerage Fee as outlined in Section 4. If Seller has fully Terminated this agreement as outlined in Section 18 and is obligated to pay a Brokerage Fee on such acquisition to another brokerage based on another valid listing agreement entered into after the Expiration or Termination Date of this Listing Agreement Seller shall no longer be required to pay the Agent Commission and the Basic Listing Fee.
9. SELLER WARRANTIES. Seller warrants to the Brokerage that the natural person(s) or legal entity listed in the Seller Information is/are all of the record owner(s) of the Listed Property it is listing with the Brokerage, that Seller owns good and marketable title to the Listed Property and has the full legal right to list and sell the Listed Property. Seller agrees and warrants that ALL of the record owners of the Listed Property have agreed to the listing of the Listed Property for sale with the Brokerage, and that the signature of EACH record owner, signatory, or necessary company officer, have been electronically affixed to this Agreement on behalf of the record owner(s). Seller further warrants that none of the electronic signatures have been entered by a party that is not the specific record owner(s), Signatory(s), or officer(s) whose name is listed. Seller further warrants that the Listed Property is not the subject of any claims or litigation, nor will the outcome of any pending claims or litigation change the ownership of the Listed Property or interfere with Sellers right to list and sell the same. Seller agrees to provide buyer with marketable title upon closing, and to pay, at closing, for a standard coverage owner’s policy of title insurance in the amount of the purchase price. In the event that Seller is not the record owner of the Listed Property, Seller warrants that it has a power of attorney from the record owner that is either a general power of attorney or a limited power of attorney that specifically authorizes Seller the right to list and sell the Listed Property, and all other necessary legal rights to sell the Listed Property and otherwise enter into this Agreement. Seller agrees to notify Brokerage if it is selling the Listed Property under a power of attorney as described above and to provide a copy of the document evidencing a power of attorney to the Brokerage for its review. Seller agrees to indemnify and hold the Brokerage harmless from all suits, causes of action or any other legal proceedings due to Seller listing a property for sale with the Brokerage which Seller was not legally authorized to sell.
10. SELLER DISCLOSURES. Seller agrees to fully inform the Brokerage concerning Seller’s knowledge of the condition of the Listed Property, including the presence of mold or lead based paint, and to complete a Seller’s Property Condition Disclosure form. Seller acknowledges that it understands that Seller has a superior knowledge of the condition of the Listed Property and that the representations made in the Seller’s Property Condition Disclosure are the sole responsibility of the Seller, and Seller assumes full responsibility for the accuracy of such statements and any adverse effects that inaccurate information may have on a buyer. In the event that any of the disclosures of Seller to the Brokerage regarding the condition of the Listed Property, whether made on the Seller’s Property Condition Disclosure form, or otherwise, turn out to be incorrect, inaccurate, false or misleading, or in the event that any form of legal or administrative action is brought against the Brokerage, its Principal Broker, or any of the brokers/agents affiliated with the Brokerage, due to inaccurate or misleading information being contained in the Seller’s Property Condition Disclosure, Seller shall indemnify the Brokerage, the Principal Broker and the other brokers and agents affiliated with the Brokerage, against all suits, administrative proceedings, causes of action and legal proceedings of any kind, including paying for the costs of representation at hearings or at court during trial and appellate proceedings, including paying a reasonable attorneys’ fee, to the Brokerage, or paying such costs on behalf of the Brokerage.
11. RELATIONSHIP OF THE PARTIES. It is understood and agreed that an agency relationship is created by this Listing Agreement between the Brokerage and the Seller. Seller hereby designates the Brokerage, its Principal Broker and any brokers or agents affiliated with the Brokerage, as its agents to assist it in selling the Listed Property, limited by the Scope of the Brokerage Plan and other services Seller has chosen to purchase from the Brokerage. Seller hereby discloses and affirms that it does not have currently, and will not enter into, an agency relationship or listing agreement with any other real estate brokerage or agent for selling the Listed Property during the Term of the listing. The Parties acknowledge that the Principal Broker and other real estate brokers/agents who are affiliated with the Brokerage shall owe fiduciary duties to the Seller. Seller understands that the Brokerage is now, or may in the future, become the broker for a buyer who wants to purchase Seller’s Listed Property. If this situation arises, Seller agrees that the Brokerage may act as a limited agent. Seller acknowledges that as a limited agent, the fiduciary duties owed to Seller, which include loyalty, obedience to lawful instructions, full disclosure, confidentiality, reasonable care and diligence, and the duty to hold safe any money or property of the Seller in the Brokerages possession, shall be limited so as to allow the Brokerage to represent both the buyer and Seller. The above stated fiduciary duties shall be limited in the following ways: Seller shall no longer have the right to undivided loyalty, absolute confidentiality, or full disclosure. This shall mean that the Brokerage shall become obligated to be neutral between the parties, advancing the interests of each Party, and shall not disclose to either Party information which the Brokerage comes into possession of which may negatively impact the other Party during negotiations, such as the lowest price Seller would accept, or the highest price buyer is willing to pay. Limited agency will not eliminate the Brokerage’s responsibility to disclose the information in the Seller’s Property Condition Disclosure or other material information concerning the condition of the Listed Property (material information shall include things that have an effect on the health or safety of the buyer should they purchase the Listed Property, such as the presence of mold or lead paint). Nor will limited agency limit Seller’s obligation to be truthful in its disclosures. All other fiduciary duties shall remain in effect. SELLER IS HEREBY ADVISED THAT NEITHER SELLER NOR BUYERS ARE LEGALLY REQUIRED TO ACCEPT A LIMITED AGENCY ON THE PART OF THE BROKERAGE AND THAT EACH HAS THE RIGHT TO BE REPRESENTED BY A SEPARATE AGENT. Additionally, before a limited agency relationship may commence, both Seller and buyer must agree to the limited agency in writing. Seller, by checking the boxes at the end of this Agreement, agrees to accept limited agency and this Agreement shall constitute written acceptance by Seller of the limited agency described herein, including the waiver by Seller of its rights to undivided loyalty, absolute confidentiality, and full disclosure. The Parties further agree and acknowledge that nothing in this Agreement shall create an employment relationship between the Seller and the brokers/agents associated with the Brokerage but that the brokers/agents of the Brokerage are independent contractors, affiliated with the Brokerage. Consequently, Seller shall only be liable for the Total Brokerage Fee outlined in this agreement and shall not be liable for providing any other benefits or payments normally associated with employment. It is understood by the Parties that the Brokerage is a corporation formed according to the laws of the State of Utah and that all selling is done under the direction of the Brokerage’s Principal Broker. It is further understood that if the Principal Broker should become deceased or cease its affiliation with the Brokerage for any reason that the Brokerage shall contract for the services of another principal broker immediately, and that this listing shall remain in full force and effect as long as the Brokerage is affiliated with a principal broker. In the event that the Brokerage is unable to obtain the services of a replacement principal broker immediately, Seller shall be notified and this listing shall terminate in accordance with applicable law. If termination of the listing shall occur as described above, Seller shall receive a prorated refund for any Basic Listing fee’s which were paid upfront. Refunds shall be prorated for the number of days that the listing was valid and the Brokerage maintained an active Principal Broker. All other Additional Service Fees shall be retained or refunded depending on whether the value of the service or item purchased has been received.
12. LIMITATIONS ON SELLER. Seller hereby acknowledges and agrees that during the Term of the listing, or while the listing is online, the Brokerage is required to place the contact information for its Principal Broker and/or other brokers/agents on the Multiple Listing Service (MLS) to be contacted by brokers/agents that represent potential buyers. Seller further acknowledges and agrees that during the Term of the listing Seller may not place any “For Sale by Owner” signs anywhere on the Listed Property where they may be viewed by the public, including yard signs and in windows. Only signs provided by the Brokerage may be displayed on the Listed Property during the Term of the listing.
13. ADVICE. The Brokerage and its brokers, agents and employees specifically strive to provide professional advice with regard to the sale and listing of real estate. However, while the brokers and agents associated with the Brokerage are trained and licensed in real estate, they are not trained or licensed attorneys or accountants and do not provide legal or tax advice. None of the statements or advice given to Seller by the Principal Broker, other brokers or agents, or any of the officers or employees of the Brokerage is, or should be construed to be, legal or tax advice, and Seller acknowledges that it may not rely on any advice it receives for those purposes.
14. SELLER AUTHORIZATION. Seller hereby grants to the Brokerage the right to do the following:
a. To list for sale the Listed Property both on any MLS on which the Brokerage places listings and to advertise the Listed Property for sale on the internet, through the mail and through any other legal form(s) of advertisement.
b. To disclose to the MLS any of Seller’s information required to be disclosed to list the Listed Property on the MLS, whether or not such information is deemed by Seller to be private.
c. To discuss with potential buyers, or buyer’s agents, the sale of the Listed Property and to receive and relay offers to the Seller, as well as to hold out to the public that the Brokerage, the Principal Broker and/or agents which are affiliated with the brokerage have a listing on the Listed Property.
d. Hold keys to the Listed Property and to enter at such times as the Seller has stated are times that the Listed Property is available for showing.
e. To disclose to the MLS the terms of the sale upon closing.
f. To communicate with the Seller to offer for sale additional products or services related to the sale of real estate and to use the information on the Listing Intake Form for that purpose.
g. To place Brokerage “For Sale” signs in the yard or windows of the Listed Property.
h. To install a key box or other device which assists the Brokerage in granting access to the Listed Property to other non-Brokerage affiliated real estate agents who may, or may not, be members of the MLS or Utah Association of Realtors.
i. To hold open houses to assist in showing and selling the Listed Property
j. To hold in the Principal Broker’s trust account Earnest Monies that may be deposited with the Principal Broker before the closing of the sale of the Listed Property. Any Earnest Money may be deposited in an interest bearing trust account and the interest may be paid to the Utah Order of Home Warranty Plan.
k. Order a Preliminary Title Report on the Listed Property.
l. Order a Home Warranty Plan.
Nothing in this section above shall obligate the Brokerage to provide services outside the Scope of the Brokerage Plan or other services purchased by the Seller. If Seller desires to restrict the Brokerage from engaging in one of the activities above Seller must notify the Brokerage in writing of such election. The Brokerage may then determine whether or not the Brokerage Plan(s) or services which Seller has purchased are still available or whether to restrict the Brokerage Plan(s) or services which are available to Seller for purchase.
15. PERSONAL PROPERTY. While the Brokerage will make commercially reasonable efforts to safeguard the personal property of the Seller that remains in the Listed Property when the Listed Property is shown by representatives of the Brokerage, or another party, Seller acknowledges that it is solely responsible for the personal property and valuables it leaves in the Listed Property during any showing by the Brokerage or another party. Seller further acknowledges that if a key box is installed, showings may be conducted by brokers/agents that are not affiliated with the Brokerage, but represent buyers. Seller agrees to hold the Brokerage harmless for any lost, stolen, or damaged personal property which is left in the Listed Property during showings.
16. FAIR HOUSING COMPLIANCE. The Parties expressly agree to comply with all Federal, State or local laws, rules, regulations or ordinances related to fair housing (“Fair Housing Laws”). The Brokerage hereby expressly refuses to participate in the violation of any Fair Housing Laws and retains the right to cancel this Agreement if Seller either fails to comply with said Fair Housing Laws or encourages the Brokerage, its Principal Broker or its other brokers or agents to do so. Seller agrees to indemnify and hold the Brokerage harmless from all suits, regulatory action or legal actions of any kind brought against the Brokerage, Principal Broker, or other brokers/agents affiliated with the Brokerage due to the breach of said Fair Housing Laws by Seller. Seller further agrees to pay for all attorneys’ fees and costs associated with any defense the Brokerage feels is necessary due to Seller’s breach of the Fair Housing Laws.
17. REFUND POLICY. Seller acknowledges and agrees that refunds shall not be issued for any unused services or products, who have been presented an offer, who have accepted an offer, who have a listed purchase price above the suggested market value found in the sellers free market analysis, also known as a CMA report, who have a buyer side commission below 3%, or who have used the brokerage’s service before and therefore are aware of the nature and quality of the services provided by Brokerage. All refunds will be adjusted to account for actual out of pocket payments, coupons, promotions or other discounts that may have been received by the Seller. No one may receive more back from the Brokerage than they originally paid for the services. No prorated refunds shall be calculated based on partial months or years. Listing(’s) will not be terminated and no refunds shall be given until yard sign(s), Sign frame(s), keybox(s), and any other items which belong to the brokerage are returned to the Brokerage, or its representatives. Items must be returned within 5 days from the time the notice of termination was given and must be undamaged and in good working condition. In no event shall refunds be issued for any services or products if a buyer was found for the Listed Property due to the products and/or services provided by the Brokerage. Any refunds to be provided shall be provided to the Seller within 30 days of Final Termination as described in section 18 and when all the conditions within this agreement are met.
18. TERMINATION. If this Agreement is terminated by the Brokerage, written notice, as outlined in Section 20 shall be given to the seller. If this Agreement is terminated by the Seller, Final Termination shall only occur when Brokerage receives written notice, as outlined in Section 20 and when all other terms of the Listing Agreement have been met. Seller acknowledges and agrees that this Listing Agreement cannot be terminated if the Listed Property is currently under contract or is still in negotiations with a presented offer. Termination shall not relieve either Party from fulfilling obligations in this Agreement such as payment for services already ordered and received. These services include, but are not limited to, Brokerage Plan upgrades, photography services, staging services, digital services, custom design work, additional/custom signage, additional marketing services, printing and publication services and any other services provided which are outside the Scope of the seller’s chosen Brokerage Plan. Upon termination of the services described in this Agreement, the agency relationship created by this Agreement shall cease. Seller also agrees that Final Termination shall not occur and seller shall not be released from the Listing Agreement until all yard sign(s), Sign Frame(s), keybox(s), and any other item(s) which belong to the brokerage or its affiliates are returned to the Brokerage, or its representatives. Items must be returned within 5 days from the time the notice of termination was given and must be undamaged and in good working condition. If items are damaged or are not in good working condition, seller shall be responsible and must pay the cost to replace the item before the listing and Listing Agreement can be terminated. If items are not returned to the brokerage and any additional services which were ordered and received but have not yet been paid for, are not returned and are not paid in full within 5 days from the time the notice of termination was given, a late fee of $50 shall be collected and added on to the outstanding balance owed to the brokerage every week until items are returned and any additional services are paid in full. Any and all applicable late fees, outstanding services fees, outstanding invoices, cancellation fees and Total Brokerage Fees must be paid in full before Final Termination of the listing Agreement can occur.
19. CANCELLATION FEES. Seller may terminate the listing at any time and for any reason which is in accordance with Section 18 and the terms set forth in this agreement however a cancellation fee may be required depending on the chosen Brokerage Plan, services ordered, or when the Brokerage Plan is cancelled.
19-1. A base cancellation fee of $100 plus $50 per offer presented to the seller shall be assessed IF any of the following occurred during the term of this agreement. A) IF the listing is not the first listing the Seller has placed with the Brokerage and therefore the Seller is aware of the nature and quality of the services provided by Brokerage. B) IF any offers had been or ever were presented to the seller while their home was listed with the brokerage. C) IF the Listed Property was not listed at or below the suggested market value found in the seller’s free market analysis, also known as a CMA report. D) If the buyer side commission being offered is lower than 3%.
19-2. A $950 cancellation fee will be assessed if any of the following occurred during the term of this agreement. A) If any offer was accepted. B) If the Listed Property went under contract at any time. C) If 5 or more offers for the listed property were presented to the seller. D) If the Seller misrepresented or provided false information for the Listed Property. Misrepresented or False information for the Listed Property include, but is not limited to, ownership information, Pictures, and any information entered into the Listing Intake form.
19-3. Additional fees may also be assessed for services rendered but which have not yet been paid for by the Seller. These services include, but are not limited to, Brokerage Plan upgrades, photography services, staging services, digital services, custom design work, additional/custom signage, additional marketing services, printing and publication services and any other services provided which are outside the Scope of the Listing Plan selected by the seller.
20. NOTICES. Any notices sent between the Parties shall be sent to the addresses provided in this agreement via U.S. Mail or via email as prescribed below. Notices sent through the U.S. Mail to Seller shall be sent to the Listed Property’s address listed above. Notices sent to the Brokerage shall be sent to PO Box 50061 Provo, Utah 84605-0061. Notices sent via email shall be emailed to Seller at the email address provided in the Listing Intake Form. Notices sent to the Brokerage via email shall be sent to Support@flatratehomes.com. Notices sent via U.S. Mail are deemed delivered three Business Days (Business Days are defined to be days falling on Monday through Friday, excluding federal and State of Utah holidays) following the date of postmark. Notices emailed are deemed delivered once they show up in the sender’s “Sent” box of their email account, unless they later receive a notice of the failure of delivery.
21. LATE FEES. Seller acknowledges and agrees to the following: Any invoice issued to the seller shall be paid in full within 15 days of being issued to the Seller. A late fee of $25 shall be collected and added on to the outstanding balance owed to the brokerage every week until invoices and any additional services are paid in full. In addition, Seller acknowledges and agrees that services ordered, which are provided by third parties, may also be subject to their own late fees and shall be in addition to the $25 late fee described above, or in section 18.
22. PERSONAL PHOTOGRAPHY. Seller warrants that any photos used by the seller, which have not been provided by or purchased through an approved professional photography provider for the Brokerage, are owned by the seller and that the seller has full rights and written consent to any photos used for their listing. Seller agrees to indemnify and hold the Brokerage harmless from all suits, MLS fines, regulatory action or legal actions of any kind brought against the Brokerage, Principal Broker, employees, or other brokers/agents affiliated with the Brokerage due to using photo’s which they do not own or do not have written consent to use. Seller further agrees to pay all fines, late fees, attorneys’ fees or any other costs which are caused by photo’s being used which are not owned by seller or which the seller does not has written consent to use. Any fines or fees which are caused by the seller using any photos which they do not own or cannot proved written consent for, seller agrees to pay immediately. If not paid immediately, the seller’s listing shall be taken off market and the seller shall be responsible for a $25 per day fee until all fines and fees are paid in full.
23. PRIVACY POLICY REGARDING PERSONAL AND FINANCIAL INFORMATION. The Brokerage shall take appropriate steps to safeguard the personal and financial information of Seller. The Brokerage does not, and shall not, sell the private personal or financial information of the Seller to any third parties, except that such information may be shared between the Brokerage and its subsidiaries or associated companies or their assigns, including the Principal Broker, associate brokers, agents, officers or employees of the same and may be used to further the purposes of this Listing Agreement, or for marketing purposes after the term of this Agreement shall have expired. Seller acknowledges and agrees that payment information is not kept by the Brokerage except in cases where there may be recurring monthly payments for services. Notwithstanding the foregoing, Seller acknowledges that they are aware that there are risks inherent in electronic communications through the internet and email and that private information may inadvertently be made known to third parties. Seller agrees, as an express term of this Agreement, to hold the Brokerage harmless for any breaches of its privacy that may occur due to the use of the internet or electronic communications such as email. Seller further authorizes and consents to receiving communications from the Brokerage via email.
24. INDEMNIFICATION OF THE BROKERAGE. Seller agrees that it bears the sole responsibility for the accuracy of the information provided to the Brokerage in the Listing Intake Form which it acknowledges will be used for inclusion on publicly available forms of advertising such as the MLS. Seller agrees to indemnify and hold the Brokerage harmless for any and all incorrect representations which Seller has made to the Brokerage in this Agreement and which may be passed on to other brokers/agents or the general public.
25. AMENDMENT TO AGREEMENT. Changes to this Agreement may only be made by Amendment and shall be in writing, signed by both Parties. No Amendments shall invalidate this Agreement. The Parties shall still be bound by the terms of this Agreement, subject to the additional terms contained in any Amendments.
26. ADDENDA. Additions may be made to this Agreement through one or more addenda. To be valid, an addendum must be in writing and signed by both Parties and on a form provided by the Brokerage. No Addenda shall invalidate this Agreement. The Parties shall still be bound by the terms of this Agreement, subject to the additional terms contained in any addenda.
27. DISCLAIMER OF WARRANTY. Neither the Brokerage, its Principal Broker(s) or any other Broker(s), agents, officers or employees of the Brokerage, makes any direct or implied statements or promises of success or favorable outcome to Seller regarding the sale of the Listed Property. Seller acknowledges that there is no guarantee that services contemplated in this Agreement, and the efforts of Brokerage, Principal Broker or other brokers or agents affiliated with the Brokerage, will produce the sale of Seller’s Listed Property. Seller further acknowledges, that it has the sole option to choose which of the Brokerage’s services to purchase, and that each of the Brokerage’s services chosen, or unchosen, as well as many other factors, including market forces, local, statewide, national and international events, or acts of God, may inhibit the sale of the Listed Property. Seller agrees to hold the Brokerage, Principal Broker, affiliated brokers and agents, officers and employees of the Brokerage harmless if this listing does not produce the sale of the Listed Property.
28. ENTIRE AGREEMENT. This Agreement, which includes the Listing Intake Form and any input form required to be used by the MLS, the Terms of Use Agreement, Photo Policy and Privacy Policy all of which are incorporated herein by reference, is the entire agreement between the Parties and supersedes all earlier or simultaneous agreements regarding this listing, whether written or oral. This Agreement may only be amended according to the amendment procedures in the Amendment to Agreement section above. If there is any ambiguity in this Agreement, there shall be no presumption that the ambiguity should be construed against the drafter.
29. ELECTRONIC TRANSMISSION AND COUNTERPARTS. This Agreement may be executed in multiple counterparts with each counterpart being deemed an original and the combination of the counterparts being considered one and the same contract. Electronic signatures and transmissions, or re-transmissions of this Agreement, or any amendments or addenda, shall be considered the same as an original copy.
30. SEVERABILITY. Should any part of this Agreement be rendered or declared invalid by a court of competent jurisdiction in the State of Utah, such invalidation of such part or portion of this Agreement shall not invalidate the remaining portions thereof, and they shall remain in full force and effect.
31. PERSONAL GUARANTEE. The undersigned Seller, or representative of Seller, personally guarantees all amounts owing to the Brokerage under this Agreement.
32. DISPUTES AND CHOICE OF LAW. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Utah. In the event that a dispute arises between the Parties to this Agreement, the Parties agree, before either Party may file suit, to submit the dispute to mediation by a professional mediator mutually agreed upon by the Parties. The mediator must be one which has been licensed to practice law in the State of Utah. The Party seeking mediation shall send notice to the other Party in the manner prescribed in the section entitled Notices above. In the event that the Parties cannot agree upon a mediator, the Party seeking mediation shall pick three mediators who meet the requisite qualifications from which the responding Party may choose the mediator. Each Party may have legal counsel present at the mediation but the Parties shall each bear the cost of their own legal counsel in addition to one-half of the cost of the mediator. If mediation is unsuccessful, the Parties may file suit in the appropriate court of law, with each Party to pay its own attorneys’ fees, in addition to costs of suit, at trial or appellate levels, and venue shall be laid in Utah County, Utah.
33. 3 MONTH GUARANTEE. Brokerage agrees to waive the $950 closing fee, as outlined in the Standard Plan, and continue to provide the services outlined in the Standard Plan, to the seller for the Listed Property, until the Listed Property is withdrawn from sale, transferred, conveyed, leased, rented, or made unmarketable by a voluntary act of Seller. This Guarantee only applies if the Listed Property meets all of the following requirements: 1) Listed Property did not receive any offers during the first 90 days of the listing’s effective date. 2) Listed Property is located in Davis County, Salt Lake County, or Utah County. 3) Listed Property has been active on the MLS consistently for 90 days from the effective date of this agreement. 4) Listed Property is under $500,000. 5) Listed Property was listed at or below the suggested market value found in the seller’s free market analysis, also known as a CMA report. 6) Seller was offering 3% or more for the buyer side commission. Seller acknowledges and agrees that if the listing is cancelled, paused, or taken off the market by the seller, this guarantee shall no longer apply to seller or the Listed Property, no credit or refund will be issued in connection with this guarantee, and this Guarantee will not be available to the seller if they decide to re-list the Listed Property with the brokerage. 3 Month Guarantee is subject to all other terms and conditions set forth in this agreement.
This Agreement constitutes an offer to provide services for the fees listed. By filling out the form, checking the box(s) that you have read and understood the Agreement and clicking the “AGREE & SUBMIT” button, Seller accepts this offer and becomes legally bound by this Agreement. By checking the box(s) below and clicking the “AGREE & SUBMIT” button you represent that you are legally able and authorized to list the Listed Property for sale and may sign for and legally bind the entity or person(s) listed in this Agreement as Seller.