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NestApple, Inc. Flat Fee Listing Agreement – Exclusive Right to Sell Listing Agreement

This Exclusive Right to Sell Listing Agreement dated as of January 29, 2023 by and between:

  • NestApple, Inc., with a mailing address of 444 West 19th Street, Suite 304 Street, New York, NY 10011, herein thereafter referred to as “Broker” and
  • , with a mailing address of herein thereafter referred to as “Owner.”

1. PROPERTY: ADDRESS: LISTING PRICE: 2. OWNER’S AUTHORIZATION, REPRESENTATIONS, WARRANTIES, and RESPONSIBILITIES

  • Owner grants to the Broker the Exclusive Right to Sell the property identified herein (herein thereafter referred to as "Property") at a price and on the terms listed below or upon any other price, terms or exchange to which Owner may consent. Owner authorizes Broker to list Property on any and all available databases, real estate websites and website(s) of the Broker and/or affiliated parties.
  • Owner reps and warrants that Owner is not under contract with or otherwise utilizing the services of any other licensed real estate broker or agent in connection with Property.
  • In order to facilitate the sale of Property, the Owner hereby grants to Broker and affiliated parties a non-exclusive, royalty-free license to use, watermark, sublicense, publish, display, and reproduce any photographs, images, graphics, video recordings, virtual tours, drawings, diagrams, written descriptions, remarks, narratives, pricing information, and other copyrightable elements of or relating to Property provided by Owner to Broker ("herein thereafter referred to as “Owner Listing Content”).
  • Owner represents and warrants to Broker that the Owner Listing Content, and the license granted to Broker for the Owner Listing Content, do not violate or infringe upon the rights, including any copyright rights, or any person or entity.
  • Owner agrees to cooperate with any agency or brokerage representing a buyer (hereafter defined collectively as “Cooperating Broker”) and respond to requests for appointments in a timely manner. Owner agrees that the responsibility of showing the property falls exclusively on the Owner.
  • Owner agrees to not solicit, induce or otherwise persuade or attempt to solicit, induce or otherwise persuade a potential buyer to revisit the property without the original Cooperating Broker.
  • Owner agrees to notify broker within 24 hours of any change in the status of Property, specifically once Property is “in-contract” and once Property is “sold”. If Owner fails to comply with this provision, Owner agrees to defend, indemnify and hold Broker harmless of any and all fines, fees and penalties, arising out of or resulting from Owner’s failure to provide said information.
  • If Owner requests a commission to be increased during contract term, Owner acknowledges that such higher commission rate change shall be applicable to all buyer’s agents, including those who inquired on and/or showed the Property prior to the dissemination of the higher commission rate.

3. BROKER’S AUTHORITY

  • Broker’s sole obligations under this agreement in connection with the marketing of Property shall be limited to listing same on the MLS and/or any other broker databases and third-party internet websites at the sole discretion of the Broker, and maintaining the listing until Property is sold and closed out in the respective broker database(s) and third party internet websites, or until this agreement has expired or been cancelled.

4. TERMS OF AGREEMENT

  • This agreement shall be effective as of date signed and it shall continue in full force and effect for 180 days from the day the property first goes to market. If this agreement expires while Property is in contract for sale, Owner agrees to extend the agreement until the day Property closes.
  • Owner may cancel this agreement by notifying Broker no later than 24 hours in advance of the desired termination date. Owner acknowledges that any early termination will not relieve him/her of the obligations in this agreement to compensate a Cooperating Broker who is the procuring cause of a “Sale” as defined below. Broker shall retain its contract rights to recovery of any other damages incurred by reason of said early termination of this agreement.
  • Broker may cancel this agreement by notifying Owner no later than 24 hours in advance of the desired termination date. In the case of early termination by Broker, Owner will be refunded a pro-rated amount of the flat fee paid to list this property. The pro-rated refund will be based on the number of remaining days in the listing agreement. Owner acknowledges that this clause is meant to protect Broker from excessive and unreasonable requests, abuse and harassment from Owner, as defined by Broker. Owner acknowledges that Broker may terminate this agreement for any or no cause.
  • This agreement does not in any way restrict Broker from providing services to any party on any property that is not the property identified herein.
  • “SALE” INCLUDES – As used in this Agreement, the term “sale” shall include a sale, exchange or transfer of Property, and also the granting of an option to purchase, sell or transfer Property.

5. PROFESSIONAL SERVICE FEES (COMMISSIONS)

  • The Owner has paid Broker a flat fee upfront and no other money is due to Broker for the listing of Property. During the life of this contract, if Cooperating Broker procures a bona fide buyer who buys said property at said price and terms, or any other price or terms to which Owner may agree, Owner hereby agrees to pay a commission of [2]% upon closing. If Broker finds a buyer for said property, Broker must show evidence to Owner of an existing relationship with the buyer.
  • It is expressly understood that the Owner reserves the right to sell, lease, or exchange Property to any purchaser who the Owner finds and procures on his/her own, without further obligation for a commission to Broker.
  • It is further understood by Owner that if a prospective purchaser is not represented by Cooperating Broker in first instance, that purchaser could still choose to be represented by a Cooperating Broker in a number of different circumstances, including, but not limited to, returning to Property with a Cooperating Broker and/or having an offer presented on his/her behalf by a Cooperating Broker. In such cases, a commission would be due and payable by Owner upon closing.
  • If Property is sold, transferred or exchanged pursuant to this agreement, the compensation to be paid to Cooperating Broker, as set forth herein shall be paid directly to the said parties and shall be deemed earned and be due and payable, without demand, upon closing.

6. INDEMNIFICATION

  • Broker’s liability and the liability of its Affiliates, officers, employees, agents, representatives, consultants and contractors under this Agreement is limited solely to the amount of the flat fee paid by Owner to Broker. “Affiliates” shall include any and all companies or parties affiliated with Broker and/or referral providers, including but not limited to companies who facilitated the execution of this agreement. If a commission was paid directly to a Cooperating Broker, Owner agrees to make any and all claims for reimbursement (should any such cause arise) of said commission against the Cooperating Broker(s) who actually received such commission and to indemnify and hold harmless any other brokers or related parties.
  • To the fullest extent of the law, Owner shall indemnify, defend and hold harmless Broker, its Affiliates, officers, employees, agents, representatives, consultants, and contractors from and against any and all loss, costs, penalties, fines, damages, claims, expenses (including attorney’s fees) or liabilities arising out of, resulting from, or in connection with the services contemplated by this agreement, including but not limited to (i) Owner’s breach of this Agreement or violation of any federal, state or local law; (ii) Owner’s provision of false, misleading, inaccurate or incomplete information, representations or warranties to Broker, prospective buyer or buyers; or (iii) claims of third parties relating to the property identified herein, the sale thereof, and/or any compensation to be paid in connection with such sale (including, without limitation, a claim by the Cooperating Broker against Broker for a commission).
  • Should the Cooperating Broker prevail against the Broker for a failure to pay commission and said unpaid commission was never paid by the Owner to the Broker, Owner indemnifies and holds harmless Broker and agrees to pay all damages awarded by an Arbitrator or a Court of Law to the Cooperating Broker.
  • Owner hereby acknowledges that Broker, Cooperating Broker and prospects will be relying upon the accuracy and completeness of the information furnished by Owner.
  • In no event will Broker, its shareholders, Affiliates, directors, officers, employees, or agents be liable for any special, exemplary, punitive or other damages, losses, or liability, whether based on warranty, contracts, statutes, regulations, tort, or any other legal theory.

7. DISPUTE RESOLUTION & ATTORNEY FEES

  • Notwithstanding anything to the contrary herein, any and all disputes, controversies or claims arising out of or relating to this Agreement, or breach thereof, shall be finally resolved by arbitration administered by the American Arbitration Association in accordance with its rules, regulations, and procedures, and judgment on the decision and award, if any, rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in the English language, in the City and State of New York. The arbitrator or arbitrators shall decide the dispute in accordance with the substantive law of the State of New York. In the event that any issues of arbitrability must be resolved, such issues shall be resolved by arbitration consistent with this provision. Each party agrees to bear its own costs of arbitration.
  • In the case of the employment of an attorney in any matter arising out of this agreement, the prevailing party shall be entitled to receive from the other party all costs and attorney fees, whether the matter is resolved through court action or otherwise. If, through no fault of the Broker, any litigation arises out of the Owner's employment of the Broker under this agreement (whether before or after a closing), the Owner agrees to indemnify the Broker from all costs and attorney fees incurred by the Broker in pursuing and/or defending such action.

8. FAIR HOUSING & SPECIAL LEAD PAINT NOTIFICATION

  • It is agreed that Property shall be listed in full compliance with local, state, and federal fair housing laws that prohibit discrimination on the basis of race, color, religion, sex, national origin, handicap, age, marital status, and/or familial status, or other prohibited factors. Federal and State laws make it illegal for Owner, Broker or anyone to use the above mentioned classifications as reasons for refusing to sell, show, or rent properties, loan money, or set deposit amounts, or as reasons for any decision relating to the sale of the property.
  • If your property was built before 1978, you have an obligation to disclose to the Purchaser and the Purchaser's agent all information known to you regarding the presence of lead-based paint and lead-based paint hazards within this target housing. All information known to the Seller’s agent regarding the presence of lead-based paint and lead-based paint hazards within this target housing will be disclosed to the Purchaser. Federal laws require that the Purchaser be given a 10 calendar day period (unless otherwise agreed in writing) to conduct a risk assessment or inspection for the presence of lead-based paint before becoming obligated under the Contract of Sale to purchase the target housing.
  • The official Disclosure of Information on Lead-Based Paint and/or Lead-Based Paint Hazards which has been signed in advance by your broker, which all parties to a transaction must sign, including the buyer, seller and real estate agents, can be found here.

9. EXPLANATIONS

  • An “exclusive right to sell" listing means that if you, the owner of the property, find a buyer for your house or if another broker finds a buyer, you must nonetheless pay the agreed commission to the present broker.
  • An “exclusive agency” listing means that if you, the owner of the property finds a buyer, you will not have to pay a commission to the broker. However, if another broker finds a buyer, you will owe a commission to both the selling broker and your present broker.
  • Owner understands that New York State requires the explanations in this section to be included, that this section has no legal bearing and that Owner has a unique listing arrangement with Broker.

10. ENTIRE UNDERSTANDING

    • This agreement contains an entire understanding of the parties and it may not be changed orally and is binding upon the heirs, executors, administrators, successors and assignees of the respective parties hereto. The undersigned represents and warrants that (he) (she) is the legal Owner of the Subject property, or that (he) (she) has full legal authority to execute this Agreement for and on behalf of the legal Owner and hereby accepts the within agreement.
    • This above agreement is a legally binding contract. If not fully understood, we recommend consulting an attorney before signing at the very bottom of this page.

The following government mandated disclosure forms below are not contracts.


New York State Disclosure Form for Buyer and Seller - THIS IS NOT A CONTRACT

  • New York State law requires real estate licensees who are acting as agents of buyers or sellers of property to advise the potential buyers or sellers with whom they work of the nature of their agency relationship and the rights and obligations it creates. This disclosure will help you to make informed choices about your relationship with the real estate broker and its sales agents. Throughout the transaction you may receive more than one disclosure form. The law may require each agent assisting in the transaction to present you with this disclosure form. A real estate agent is a person qualified to advise about real estate. If you need legal, tax or other advice, consult with a professional in that field.

Disclosure Regarding Real Estate Agency RelationshipsSeller’s Agent

  • A seller’s agent is an agent who is engaged by a seller to represent the seller’s interests. The seller’s agent does this by securing a buyer for the seller’s home at a price and on terms acceptable to the seller. A seller’s agent has, without limitation, the following fiduciary duties to the seller: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A seller’s agent does not represent the interests of the buyer. The obligations of a seller’s agent are also subject to any specific provisions set forth in an agreement between the agent and the seller. In dealings with the buyer, a seller’s agent should (a) exercise reasonable skill and care in performance of the agent’s duties; (b) deal honestly, fairly and in good faith; and (c) disclose all facts known to the agent materially affecting the value or desirability of property, except as otherwise provided by law.

Buyer’s Agent

    • A buyer’s agent is an agent who is engaged by a buyer to represent the buyer’s interest. The buyer’s agent does this by negotiating the purchase of a home at a price and on terms acceptable to the buyer. A buyer’s agent has, without limitation, the following fiduciary duties to the buyer: reasonable care, undivided loyalty, confidentiality, full disclosure, obedience and duty to account. A buyer’s agent does not represent the interest of the seller. The obligations of a buyer’s agent are also subject to any specific provisions set forth in an agreement between the agent and the buyer. In dealings with the seller, a buyer’s agent should (a) exercise reasonable skill and care in performance of the agent’s duties; (b) deal honestly, fairly and in good faith; and (c) disclose all facts known to the agent materially affecting the buyer’s ability and/or willingness to perform a contract to acquire seller’s property that are not consistent with the agent’s fiduciary duties to the buyer.

    Broker’s Agents

    • A broker’s agent is an agent that cooperates or is engaged by a listing agent or a buyer’s agent (but does not work for the same firm as the listing agent or buyer’s agent) to assist the listing agent or buyer’s agent in locating a property to sell or buy, respectively, for the listing agent’s seller or the buyer agent’s buyer. The broker’s agent does not have a direct relationship with the buyer or seller and the buyer or seller cannot provide instructions or direction directly to the broker’s agent. The buyer and the seller therefore do not have vicarious liability for the acts of the broker’s agent. The listing agent or buyer’s agent do provide direction and instruction to the broker’s agent and therefore the listing agent or buyer’s agent will have liability for the acts of the broker’s agent.

    Dual Agent

      • A real estate broker may represent both the buyer and the seller if both the buyer and seller give their informed consent in writing. In such a dual agency situation, the agent will not be able to provide the full range of fiduciary duties to the buyer and seller. The obligations of an agent are also subject to any specific provisions set forth in an agreement between the agent, and the buyer and seller. An agent acting as a dual agent must explain carefully to both the buyer and seller that the agent is acting for the other party as well. The agent should also explain the possible effects of dual representation, including that by consenting to the dual agency relationship the buyer and seller are giving up their right to undivided loyalty. A buyer or seller should carefully consider the possible consequences of a dual agency relationship before agreeing to such representation. A seller or buyer may provide advance informed consent to dual agency by indicating the same on this form.

    Dual Agent with Designated Sales Agents

    • If the buyer and seller provide their informed consent in writing, the principals and the real estate broker who represents both parties as a dual agent may designate a sales agent to represent the buyer and another sales agent to represent the seller.

      A sales agent works under the supervision of the real estate broker. With the informed consent of the buyer and the seller in writing, the designated sales agent for the buyer will function as the buyer’s agent representing the interests of and advocating on behalf of the buyer and the designated sales agent for the seller will function as the seller’s agent representing the interests of and advocating on behalf of the seller in the negotiations between the buyer and seller.

      A designated sales agent cannot provide the full range of fiduciary duties to the landlord or tenant. A designated sales agent cannot provide full range of fiduciary duties to the buyer or seller.

      The designated sales agent must explain that like the dual agent under whose supervision they function, they cannot provide undivided loyalty. A buyer or seller should carefully consider the possible consequences of a dual agency relationship with designated sales agents before agreeing to such representation. A seller or buyer provide advance informed consent to dual agency with designated sales agents by indicating the same on this form.

      This form was provided to me by NestApple Inc., a licensed real estate broker acting in the interest of the:

      Seller as a (check relationship below) Buyer as a (check relationship below)

      (X) Seller’s Agent ( ) Buyer’s Agent ( ) Broker’s Agent ( ) Broker’s Agent ( ) Dual agent ( ) Dual agent with designated sales agent

      For advance informed consent to either dual agency or dual agency with designated sales agents complete section below:

      ( ) Advance informed consent dual agency

      ( ) Advance informed consent to dual agency with designated sales agents If dual agent with designated sales agents is indicated above:

      _________________is appointed to represent the tenant; and ________________is appointed to represent the seller in this transaction.

      (I)(We) acknowledge receipt of a copy of this disclosure form by electronic signature: Signature of { } Buyer(s) and/or { X } Seller(s): January 29, 2023

      Disclaimer: The above form is intended to replicate and contain the identical information set forth in the official New York State Disclosure Form for Buyer and Seller, which can be found here. Your acceptance of the terms contained therein, signified by your initials, shall be deemed execution of the actual form. New York State Housing Discrimination Disclosure Form - THIS IS NOT A CONTRACT Federal, State and local Fair Housing Laws provide comprehensive protections from discrimination in housing. It is unlawful for any property owner, landlord, property manager or other person who sells, rents or leases housing, to discriminate based on certain protected characteristics, which include, but are not limited to race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, age, disability, marital status, lawful source of income or familial status. Real estate professionals must also comply with all Fair Housing Laws. Real estate brokers and real estate salespersons, and their employees and agents violate the Law if they: • Discriminate based on any protected characteristic when negotiating a sale, rental or lease, including representing that a property is not available when it is available. • Negotiate discriminatory terms of sale, rental or lease, such as stating a different price because of race, national origin or other protected characteristic. • Discriminate based on any protected characteristic because it is the preference of a seller or landlord. • Discriminate by “steering” which occurs when a real estate professional guides prospective buyers or renters towards or away from certain neighborhoods, locations or buildings, based on any protected characteristic. • Discriminate by “blockbusting” which occurs when a real estate professional represents that a change has occurred or may occur in future in the composition of a block, neighborhood or area, with respect to any protected characteristics, and that the change will lead to undesirable consequences for that area, such as lower property values, increase in crime, or decline in the quality of schools. • Discriminate by pressuring a client or employee to violate the Law. • Express any discrimination because of any protected characteristic by any statement, publication, advertisement, application, inquiry or any Fair Housing Law record.

      YOU HAVE THE RIGHT TO FILE A COMPLAINT If you believe you have been the victim of housing discrimination you should file a complaint with the New York State Division of Human Rights (DHR). Complaints may be filed by: • Downloading a complaint form from the DHR website: www.dhr.ny.gov; • Stop by a DHR office in person, or contact one of the Division’s offices, by telephone or by mail, to obtain a complaint form and/or other assistance in filing a complaint. A list of office locations is available online at: https://dhr.ny.gov/contact-us, and the Fair Housing HOTLINE at (844)-862-8703. You may also file a complaint with the NYS Department of State, Division of Licensing Services. Complaints may be filed by: • Downloading a complaint form from the Department of State’s website https://www.dos.ny.gov/licensing/complaint_links.html • Stop by a Department’s office in person, or contact one of the Department’s offices, by telephone or by mail, to obtain a complaint form. • Call the Department at (518) 474-4429. There is no fee charged to you for these services. It is unlawful for anyone to retaliate against you for filing a complaint. For more information on Fair Housing Act rights and responsibilities please visit https://dhr.ny.gov/fairhousing and https://www.dos.ny.gov/licensing/fairhousing.html.

      This form was provided to me by NestApple Inc. (print name of Real Estate company, firm or brokerage). (I)(We) (Real Estate Consumer/Seller/Landlord) acknowledge receipt of a copy of this disclosure form by electronic signature: Real Estate Consumer/Seller/Landlord Signature: January 29, 2023

      Real Estate broker and real estate salespersons are required by New York State law to provide you with this Disclosure. Disclaimer: The above form is intended to replicate and contain the identical information set forth in the official New York State Housing and Anti-Discrimination Disclosure Form, which can be found here. Your acceptance of the terms contained therein, signified by your initials, shall be deemed execution of the actual form. Acknowledgment of Terms of Service You understand and acknowledge that: NestApple Inc. Assisted FSBO is a 'DIY' service which does not include free phone or email support.

      In order to make this service low cost and to provide a consistent experience for all customers, we are unable to make exceptions and provide free advice of any type via phone or email. If you require additional help, upgrade to 1% Full Service or consult your real estate attorney. The flat fee paid upfront is non-refundable, regardless of whether you utilize all 180 days.

      A new Listing Package must be ordered if you decide to temporarily de-list and re-list during the contract term or if you decide to re-list after the expiration of your original contract term. You agree to request all updates and changes to your listing by submitting a Listing Update Ticket. Updates requested through any other means, including by emailing or calling NestApple, Inc. directly or by replying to an existing support ticket, will not be answered. Update requests are processed within 1 business day, between 9am to 5pm ET, Monday through Friday. Listing update requests submitted after 5pm ET will not be processed until the next business day.

      You agree to make best efforts to respond to all inquiries within 24 hours, even if your property already has an accepted offer or if you're no longer showing. You've chosen the buyer agent commission (%) carefully, as it may not be lowered in the future. You agree to submit a Listing Update Ticket within 24 hours of going into contract and within 24 hours of closing. You agree to reimburse NestApple, Inc. for all MLS fines incurred as a result of violations to this policy. We make reasonable efforts to relay messages and inquiries within a commercially reasonable amount of time during regular business hours, as defined by us. You will not send test inquiries on your listing.

      A typical home spends in excess of four months on the market before going into contract; therefore, it is unreasonable to expect inquiries and offers right after listing. Pricing your home too high, not ordering professional photography or not having a floor plan will hurt your chances of selling and significantly reduce the volume of inquiries you will receive.

      I have read, understand and agree to the above as well as the Terms and Conditions listed on NestApple, Inc’s website. Furthermore, I have a full understanding of how the Assisted FSBO service works, including the limited scope of service, and I have read the Assisted FSBO FAQ and product overview. (I)(We) agree to these terms of service by electronic signature: Signature of Seller(s):

      Disclaimer: Your acceptance of the terms contained therein, signified by your initials, shall be deemed execution of the actual form.Signatures You acknowledge that you have read, understand and agree to the listing agreement at the beginning of this page. The listing agreement is a legally binding contract. If not fully understood, we recommend consulting an attorney before signing.

      Executed by Owner(s): Executed by Broker, NestApple, Inc.: Signature Certificate Document Name: NestApple Flat Fee Listing Agreement –

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    Signed by Georges Benoliel
    Signed On: August 24, 2021


    Signature Certificate
    Document name: NestApple Assisted For Sale By Owner Document
    lock iconUnique Document ID: 792f3799ba7157f984ff058ee04d9cd973c6022a
    Timestamp Audit
    August 11, 2021 5:16 am ESTNestApple Assisted For Sale By Owner Document Uploaded by Georges Benoliel - david@forwarddynamic.com IP 96.240.103.244