1-800-LISTING SERVICE AGREEMENT

      PARTIES: This Service Agreement is entered into by and between TODD WOLMUTH, doing business as 1-800-LISTING, whose address for the purposes of this Service Agreement is 3205 Woolsey Rd, Windsor, CA 95492, hereinafter referred to as PROVIDER, and (Affiliate Agreeing To Service Online), hereinafter referred to as REAL ESTATE AGENT, whose address for the purposes of this Service Agreement is listed on the Sign Up Page. The address of each party shall be subject to change from time to time upon written notice to the other party. 

1. RECITALS: This Service Agreement is entered into with reference to the following facts:

1. PROVIDER owns the exclusive right, subject to applicable Federal and state telecommunications tariffs, to use the telephone number, 1-800-547-8464 (hereinafter 1-800-LISTING) throughout North America. 1-800-LISTING has been granted United States Trademark Registration Number 75448934.
2. Provider has applied for a United States Trademark for 1-800-LISTING, and asserts all common law trademark rights it has acquired for the mark “1-800-LISTING”.
3. PROVIDER owns the exclusive right, subject only to applicable Federal and State laws and regulations, to use the Internet domain name, http://www.1800listing.com/ . Internet access is not covered by this agreement, but may be negotiated and provided in the future.
4. PROVIDER offers an exclusive license to use, advertise, market, promote and otherwise commercially exploit 1-800-LISTING, and any appurtenant statutory or common law trademark rights, within the specific geographic area delineated at Sign Up page.
5. REAL ESTATE AGENT is, and shall be for the term of this Service Agreement, including any extensions thereof, (i) a real estate of good reputation in its community (ii) a holder in good standing of all licenses required to transact its business within the geographic area delineated on sign up page; and (iii) actively engaged in the real estate sales field, and in full compliance with all applicable local and state laws and regulations governing the specific geographic area delineated on Sign Up page.

2. SUBJECT MATTER: The subject matter of this Service Agreement is:

1. an exclusive license to use 1-800-LISTING, for the sole purpose of consulting with customers seeking real estate information and services, subject to applicable tariffs, laws and regulations, within the geographic area delineated by the telephone area code(s) stated on the Sign Up Page, on the effective date of this Service Agreement; and
2. a license to advertise, market, promote or otherwise commercially exploit 1-800-LISTING within the media markets where REAL ESTATE AGENT does business, for the purpose of obtaining increased real estate business.

      The exclusive license to use 1-800-LISTING is more specifically defined as the right to receive, across available telecommunications facilities, telephone calls placed to 1-800-LISTING, by persons seeking real estate services, originating from telephones in the area code being licensed, commencing on the date of activation of service and continuing for the term of this Service Agreement, including any extensions, or until this Service Agreement is terminated as specified at section 8. 

      Participation in a PROVIDER sponsored or approved cooperative advertising program that extends beyond the geographic area delineated on Sign Up page shall not constitute a violation of the license to advertise, market, promote or otherwise commercially exploit 1-800-LISTING within said geographic area.

3. AGREEMENT OF THE PARTIES: In consideration of the mutual covenants and restrictions contained herein, the parties promise and agree as follows:

1. Geographic area assigned is by area code. The area codes listed on sign up page delineate the area REAL ESTATE AGENT receives.
2. PROVIDER agrees to cause all telephone calls dialed to 1-800-LISTING from within the geographic area specified on sign up page, by persons seeking real estate services, to be routed via available telecommunications facilities to the working terminating phone number designated by REAL ESTATE AGENT in Routing Number field on sign up page.
3. PROVIDER agrees to cause said routing to become effective at the earliest practical date, as dictated by the long distance carrier for 1-800-LISTING, after execution of this Service Agreement and its receipt and acceptance by PROVIDER along with the Monthly Service Fee specified on sign up page. PROVIDER further agrees to maintain said routing for the term of this Service Agreement, including any extensions, or until this Service Agreement is terminated as specified at section 8. The use of the assigned 800 number is not guaranteed until the service has been installed, tested and confirmed. Neither the Provider nor Carrier assumes any responsibility or liability for losses or hardships resulting from the advertising or other promotion of the 800 number prior to written confirmation by Provider following installation.
4. The parties acknowledge that at the commencement of this Service Agreement, MCI/Verizon is the long distance carrier providing telecommunications service for 1-800-LISTING. PROVIDER reserves its right, at its sole discretion, to select any long distance carrier to provide telecommunications service for 1-800-LISTING during the term of this Service Agreement, including any extensions.
5. REAL ESTATE AGENT agrees to pay to PROVIDER in advance a Monthly Service Charge as indicated on the Sign Up Page commencing on the date the routing becomes effective and continuing each month thereafter during the term of this Service Agreement, including any extensions. Monthly charges are billed annually via credit card.
6. REAL ESTATE AGENT agrees No Toll Charges will be paid as long as use of 1-800-LISTING by REAL ESTATE AGENT is within the normal usage range of usual range defined as 200 minutes per month, to avoid any unforeseen abuses of the Unlimited Toll Free Services currently offered by PROVIDER. In the event usage is determined by PROVIDER to be excessive or abusive in PROVIDERS sole discretion upon 30 days written notice to REAL ESTATE AGENT toll charges will begin being billed to REAL ESTATE AGENT each quarter at .10 cents per minute. 
7. The Monthly Service Charge and per-minute fee include any usage fees, taxes, surcharges, regulatory fees, deaf and/or disabled fees, 911 surcharges and any other charges made to PROVIDER by its long distance carrier, attributable to the use of the 1-800-LISTING? number.
8. PROVIDER agrees to bill REAL ESTATE AGENT Annually for the Monthly Service Charge and the Per-Minute Charge if any, as defined above. All such billings shall clearly delineate the Monthly Service Charge and the per-minute fee, if any, attributable to REAL ESTATE AGENT’S use of 1-800-LISTING during the prior quarter. All such billings shall include a copy of the long distance provider’s Call Detail Report identifying the date, time, and duration of each call.
9. REAL ESTATE AGENT understands that PROVIDER is immediately liable for payment of all charges made on account of the use of its 1-800 number, and that in order to meet its obligations, PROVIDER must be promptly paid the monthly charge and per-minute fee, if any, owing to it. REAL ESTATE AGENT therefore agrees to be billed by Visa or MasterCard each year automatically. REAL ESTATE AGENT understands that PROVIDER’S entire profit for its services comes from the Monthly Service Charge and the Per Minute Fee, if any, out of which all its expenses and long-distance charges, overhead and other costs must be paid.
10. REAL ESTATE AGENT further agrees that in order to ensure prompt payment in the future, it will pay a Late Payment Charge of $25.00 for each month in which payment is not authorized to credit card on file with PROVIDER on or before the 15^th day after PROVIDER’S annual bill becomes due by REAL ESTATE AGENT.
11. In any dispute between the parties to this contract, neither party shall be liable in contract, tort or otherwise for incidental, consequential, specific or indirect damages, including but not limited to, lost business profits, even if that party has been advised of the possibility of same, arising from its acts or omissions in connection with this Service Agreement.
12. Furthermore, neither party shall be liable for any delay or failure to perform its obligations hereunder due to any cause beyond its reasonable control, including but not limited to, labor disputes, fire, accident, act of the public enemy, war, rebellion, insurrection, sabotage, transportation delay, shortage of raw material, energy or machinery, act of God, government or the judiciary, providing however that nothing contained herein shall be construed to relieve REAL ESTATE AGENT of his obligation to make all payments due hereunder as they become due and payable.
13. Also, PROVIDER has no control over the operation of the long-distance service or telephone switching service, which is the basis of this contract. It is agreed that PROVIDER shall not be liable for any negligence, error, omission, mistake, or other act of its long distance carrier or of any telephone company.
14. However, if such errors, mistakes, or defects in service cause the terminating service to REAL ESTATE AGENT to be inactive or unusable for more than an hour on each of two or more days in any calendar month, the Monthly Service Charge for that month shall refunded pro rata to waive the charge for each day of unavailability.
15. This Service Agreement creates no agency, contract of employment, partnership, association or joint venture of any description between the parties.
16. The parties intend and agree that no right of continued or vested use of 1-800-LISTING by REAL ESTATE AGENT, not specifically and expressly created herein, shall be created or extended based upon any general principle of estoppel, any other general principle of law or equity, any novel theory of law or equity and specifically any Federal or state telecommunications statute or regulation.
17. REAL ESTATE AGENT agrees to inform PROVIDER during its normal business hours of any malfunction in 1-800-LISTING, so that PROVIDER can take prompt action to remedy the malfunction, if possible.
18. REAL ESTATE AGENT acknowledges that its right to use 1-800-LISTING is subject to applicable telephone and communications service tariffs, particularly those in relation to nonpayment for service, abuse of service, fraud and shortage of network facilities and components.
19. REAL ESTATE AGENT understands that the PROVIDER may allow call activity data to be provided to a mortgage lender for the purpose of soliciting home loans. In such a case should 1 or more loans close REAL ESTATE AGENTS fee’s including toll charges, if any, for the quarter of the closing shall be waived.
20. Advertising Cooperative is included in this agreement, which requires each account/service agreement to pay $100 per calendar quarter for national advertising. 100% of funds collected for this purpose will be used to purchase media, PROVIDER receives no financial income from these funds. Use of Cooperative Ad funds is determined by popular vote when available or PROVIDER otherwise.

4. DESIGNATION OF TERMINATING PHONE NUMBER: The initial designated phone number across which 1-800-LISTING calls shall be routed to REAL ESTATE AGENT is included on the Sign Up Page.

5. AREA CODE DIVISION AND EXCHANGE CODE ADDITION: The parties acknowledge that existing telephone area codes are occasionally split or overlaid such that two or more area codes will exist where only one area code existed prior to the division. Should such an event occur during the term of this Service Agreement, including any extensions, the parties agree that the rights and duties imposed and accepted under this Service Agreement shall continue to apply to the entire geographic area initially covered by the designated area code.

6. RENEWAL RIGHTS. At the expiration of this contract, it shall continue from month to month until replaced by a new or amended contract, or until either party gives notice of termination.

1. PROVIDER will determine, in PROVIDER’S sole discretion, what terms if any should be changed upon any renewal of this contract, and such changes may include increased charges. Having made its determination, PROVIDER agrees to offer to REAL ESTATE AGENT the opportunity to renew its contract on the revised terms, prior to offering the service to a competitor.
2. Said revised contract may be offered at any time, before or after the expiration date of this contract, but if such offer for a revised contract is made, REAL ESTATE AGENT shall have 20 days from the date of mailing such revised contract to decide whether it shall agree to it.
3. The right to renew, on such terms as may be chosen each year by PROVIDER, shall continue for each of ten one-year periods; PROVIDED, that PROVIDER may at any time, without penalty or liability, decide to stop offering its 1-800-LISTING service in REAL ESTATE AGENT’s area for any reason whatever, and in such case shall not be required to renew or extend this contract at all. 

6. EFFECTIVE DATE OF AGREEMENT: This Service Agreement shall be effective on the date of its execution by REAL ESTATE AGENT providing PROVIDER subsequently executes it.

7. TERM OF AGREEMENT: The term of this Service Agreement is one (1) year from its effective date. However, all unmodified parts of this agreement shall continue to be effective as to any extension or renewal.
8. TERMINATION: REAL ESTATE AGENT may terminate this Service Agreement at any time, without cause, upon 30 days written notice to PROVIDER. Termination shall be effective 30 days after receipt by PROVIDER of written notice to terminate. A full-prorated refund shall be issued based on the termination effective date. 
9. PROVIDER may terminate this Service Agreement, for cause, upon 7 days written notice to REAL ESTATE AGENT. Said notice shall specify the cause of termination. Cause for termination by PROVIDER is strictly limited to: (i) failure to pay a bill within 30 days of the date of mailing, or emailing, or faxing the same, including failure to pay any Late Payment charge assessed; (ii) failure by REAL ESTATE AGENT to maintain a working terminating number for 1-800-LISTING for 15 consecutive days; (iii) cessation of real estate services by REAL ESTATE AGENT; (iv) conviction of REAL ESTATE AGENT for a practice-related crime; or (v) suspension or revocation of REAL ESTATE AGENT’s license to practice real estate sales. The 7-day termination period commences on the date of receipt of said termination notice by REAL ESTATE AGENT or upon the date of certified mailing or confirmed receipt by fax or Email of said notice if said notice is subsequently returned to PROVIDER as being undeliverable or REAL ESTATE AGENT does not respond to what PROVIDER believes is a received notice. All charges hereunder shall be pro-rated and payable for the period immediately preceding termination.
10. NON-ASSIGNABILITY: The rights and duties imposed upon and accepted by REAL ESTATE AGENT under this Service Agreement are exclusive to REAL ESTATE AGENT. They are non-divisible and non-assignable to any other party without the express consent of PROVIDER. Said consent shall not be unreasonably withheld. PROVIDER will also consent to the transfer by REAL ESTATE AGENT of the rights and duties hereunder to a wholly or partially owned corporation, association or partnership of REAL ESTATE AGENT after 30 days written notice of such transfer by REAL ESTATE AGENT, provided the transferee entity is in good standing and properly licensed to provide real estate services in all locations where it operates.
11. GOVERNING LAW: applicable Federal and state telecommunications tariffs and the laws of the state of California shall govern this Service Agreement. At its sole option, PROVIDER may waive the venue of California in favor of the venue of REAL ESTATE AGENT’S state.
12. TOTALITY: This Service Agreement represents the entirety of the agreement between the parties. No other terms, whether written, verbal or implied, shall be construed as being incorporated herein.
13. SEVERABILITY: In the event a court of law rules a term of this Service Agreement to be invalid, all other terms shall remain in full force and effect. The failure of either party to demand or enforce full or strict performance of any term of this Service Agreement or to enforce available remedies upon breach hereof by the other party, shall not constitute waiver of any such right or remedy, or of any other right or remedy hereunder, in the present instance or in any future instance.

15. DISPUTES AND ARBITRATION: The parties agree that any dispute arising between them out of or relating to this Service Agreement, or a breach thereof, which dispute cannot be resolved amicably, shall be settled by arbitration administered by the American Arbitration Association in Los Angeles, California under its Commercial Arbitration Rules, and not by a court of law, except that PROVIDER may use the courts for the sole purpose of collecting any unpaid bill; in such case, any counterclaim by REAL ESTATE AGENT shall result in the entire controversy being transferred to arbitration. The parties further agree to be bound by the decision of the arbitrator and that a judgment on the award rendered by the arbitrator, which award may include administrative fees and costs, may be entered in any court having jurisdiction hereof.

The parties further specifically agree that the venue for any lawsuit brought by either side for any reason shall be the courts of Sonoma County, California, and the place of hearing of any arbitration shall be in Sonoma County, California.

The parties further agree that in any legal action or arbitration between the parties, the prevailing party shall be entitled to reasonable attorney’s fees and costs in that suit as determined by the court or arbitrator.