Contractor shall be a licensed real estate agent with the state licensing
body in the state(s) in which the contractor is practicing and affiliated with
Broker. In accordance with state law, Contractor is and shall remain duly
qualified to solicit real estate as a service to the general public.
Within ten (10) days of the Effective Date of this Agreement, Contractor
shall become and remain a member in good standing with all applicable
government agencies, the REALTOR® association (local, state, and
national levels), and the Multiple Listing Service. Contractor shall comply
with all associated rules, regulations, and By-laws.
Contractor shall be bound by the National Association of REALTORS®
Code of Ethics.
Contractor shall exert Contractor’s best efforts in all activities related to
the listing, selling, leasing, or exchanging of real properties in the State
licensed and affiliated with Broker. Contractor shall, in all ways and at all
times, act in full compliance with the state statutes, the rules of the
governing bodies, and the Association of REALTORS®, including the Code
of Ethics.
At all times, Contractor shall act in such a way as to reflect the high
standards of Broker.
At all times, Contractor shall take no action which jeopardizes Broker’s
licenses or business reputation.
Relationship of the Parties
Contractor is an independent contractor of Broker, and this Agreement
shall not be construed to create any association, partnership, joint
venture, employment, or agency relationship between Contractor and
Broker for any purpose. Contractor has no authority (and shall not hold
itself out as having authority) to bind Broker and Contractor shall not make
any agreements or representations on Broker's behalf without
Broker’s prior written consent.
Without limiting Section 2(a), Contractor will not be eligible to participate
in any vacation, group medical or life insurance, disability, profit sharing or
retirement benefits, or any other fringe benefits or benefit plans offered by
Broker to its employees. Broker shall not be responsible for withholding or
paying any income, payroll, Social Security, or other federal, state, or local
taxes, making any insurance contributions, including for unemployment or
disability, or obtaining workers' compensation insurance on Contractor’s
behalf.
In the event that Broker is legally ordered to garnish commissions,
Contractor agrees that Broker may withhold a portion ofcommissions as
required. This includes, but is not limited to court orders, judgments, or
other legal mandates. Contractor understands and agree that Broker is
obligated to comply with lawful orders for commission garnishment.
Any persons employed or engaged by Contractor in connection with the
performance of the services shall be Contractor’s employees or contractors
and Contractor shall be fully responsible for them.
Contractor may be paid under their legal name as filed with the Real
Estate Commission and Social Security office or under an approved
business name. Contractor is responsible to provide a W-9 with Business
Name, Tax ID, and Tax Classification before any commissions may be paid
to new business name. Contractor understands that each business name is
considered a new tax entity, and that income may be tracked separately.
Contractor understands they are responsible for all taxes related to their
income. 1099s will be provided for review in January and will be filed by
the last day of the month per federal guidelines. S and C Corporate
entities will not have 1099s filed per IRS guidelines.
Fees
Unless otherwise provided herein, all fees, costs, fines, and expenses
incurred by Contractor in providing the Services shall be paid solely by
Contractor. Fees, costs, and expenses include but are not limited to:
Association and MLS dues;
Licensing fees and renewals;
Cellular telephones;
Office space;
Office equipment;
Supplies;
Fines or judgments against Contractor for providing Services; and,
all other expenses incurred by Contractor for providing Services.
Broker Supervision
As required by applicable law, Broker shall maintain its broker’s license
with the state licensing body, under which Contractor shall provide
services. Broker shall conduct its real estate brokerage activities in
compliance with applicable federal, state, and local laws, rules, and
regulations. Broker shall supervise all work performed by Contractor as
required by law and this Agreement.
Except where such methods are inconsistent with the law or this
Agreement, Contractor is solely responsible for the management of its own
real estate business including, but not limited to, the management of time,
efforts, and expenses. Broker shall have no right, except to the extent
required by law, to direct or limit Contractor’s activities as to hours, leads,
floor time, open houses, prospecting, reports, meeting attendance,
services, time off, vacation, or other similar activities.
Contractor shall ensure Broker has current contact information on file.
Contractor shall, within ten (10) days, provide updated contact information
(including name changes, phone number, email, and/or mailing address)
to Broker.
Fair Housing Requirements
Broker is committed to full compliance with all federal, state, and local Fair
Housing Laws. Therefore, Contractor shall fully understand and comply
with all Fair Housing requirements and shall not act or advertise in any
way to deny equal professional services or housing opportunity to any
person for reasons of race, color, religion, sex, handicap, familial status, or
national origin as mandated in the “Equal Housing Opportunity Act” or any
other current or future enacted regulations.
Intellectual Property Rights
Broker and Contractor intend that all photographs, images, graphics, video
recordings, virtual tours, drawings, written descriptions, remarks,
narratives, pricing information, and all other copyrightable elements
submitted by Contractor to Broker at any time with respect to a real estate
listing (the “Listing Content”) or created, prepared, produced, authored,
edited, modified, conceived, or reduced to practice in the course of
performing Services (“Work Product”) and all copyrights, trademarks
(together with the goodwill symbolized thereby), trade secrets, know-how,
and other confidential or proprietary information regarding the Services
(collectively “Intellectual Property Rights”) shall be the property of Broker
and a contribution to a collective work for all Broker’s contractors.
To the extent permitted under applicable law, all Intellectual Property
Rights that may qualify as a “work made for hire” (as such term is defined
under the Copyright Act of 1976, 17 U.S.C. §101 et seq, as amended) is
hereby deemed a “work made for hire” for Broker and all copyrights
therein shall automatically and immediately vest in Broker. To the extent
any Intellectual Property Rights do not constitute “work made for hire,”
Contractor irrevocably assigns and transfers to Broker, for no additional
consideration, all right, title, and interest in and to such Intellectual
Property Rights including the right to sue, counterclaim, and recover for all
past, present, and future infringement, misappropriation, or dilution
thereof.
Contractor represents and warrants to Broker with respect to the Listing
Content for each of Contractor’s listings that (i) each element of the
Listing Content is an original work of authorship of Contractor, or has been
irrevocably assigned and transferred to Contractor, and (ii) the Listing
Content and this assignment of rights to Broker do not violate or infringe
upon the rights, including any copyright rights, of any person or entity.
Any and all photographs, videos, or other visual media ("Media") created
by Broker, in which the Contractor appears or is featured, shall remain the
sole property of the Broker. Contractor acknowledges and agrees that the
Media, including but not limited to photographs and videos, are the
intellectual property of Broker, and Broker retains all rights, title, and
interest in and to the Media. Broker shall have the unrestricted right to
use, reproduce, publish, distribute, and display the Media for any purpose,
including but not limited to advertising, marketing, promotion, and
publicity, without any further consent or approval from Contractor.
Contractor hereby grants the Broker a non-exclusive, royalty-free,
worldwide license to use the Media in perpetuity, without any obligation to
compensate the Contractor.
As between Contractor and Broker, Broker is, and will remain, the sole and
exclusive owner of all right, title, and interest in and to the Intellectual
Property Rights. Contractor has no right or license to reproduce or use any
Intellectual Property Rights except solely during the Term to the extent
necessary to perform Contractor’s Services under this Agreement.
During the Term of this Agreement, and so long as it is used in relation to
Contractor’s provision of Services, Contractor may use Broker’s
trademarks, service marks, trade names, logos, symbols, or brand names.
Insurance
Contractor shall utilize Contractor’s own vehicle for Contractor’s provision
of Services. Contractor shall procure and maintain a comprehensive
vehicle insurance policy which shall include, but not be limited to 1) a
minimum of $100,000/$300,000 vehicle liability and property damage
coverage limits; 2) coverage for the transport of third parties for the
purpose of showing or inspecting properties; and 3) the identification of
Broker as an additional insured. Contractor shall furnish a copy of said
policy to Broker upon request. If Contractor’s insurance policy is cancelled,
Contractor shall immediately notify Broker in writing. Broker, in its sole
discretion, may terminate this Agreement for failure to maintain vehicle
insurance as required by this Section. Contractor shall follow and obey all
traffic laws.
Risk Management
Broker shall provide Contractor with $2,000,000 errors and omissions
(E&O) insurance coverage through the Broker’s group E&O policy.
Contractor shall pay annual risk management fee, which includes the E&O
coverage, to Broker when billed and due, typically in the month of October
each calendar year. Agents may be responsible to pay the deductible, not
to exceed three thousand five hundred dollars ($3,500), in the event of a
claim.
Broker’s Transaction Fees
As commissions are earned by Contractor, 100% of all such commissions
shall be paid to Broker upon the close of transaction. Upon Broker’s receipt
of these commissions, Broker shall pay agreed upon commissions to
Contractor (less Broker’s flat fee and any past due account balance) within
2-3 business days, contingent on a completed transaction file, pursuant to
Broker’s current commission payment policy and transaction file
requirements
Commissions may not be paid directly to Contractor by a third party
without express written permission of Broker.
During the Term of this Agreement, for all real estate transactions closed
by Contractor, regardless of commissions earned, Contractor shall pay to
Broker a flat fee of four hundred and ninety-five dollars ($495) for each
transaction for the first eighteen (18) transactions closed by Contractor
during a twelve (12) month period. The twelve (12) month period shall
commence on the Effective Date of this agreement and shall reset each
anniversary date thereafter. In the event the Contractor closes eighteen
(18) full fee transactions in the twelve (12) month period, for each
transaction closed thereafter (starting with the nineteenth (19) closed
transaction), Contractor shall pay to Broker a flat fee of one hundred and
twenty-five dollars ($125) for each subsequent transaction closed until the
anniversary date, at which time the transaction count and fee schedule
shall reset. Only full $495 fees count as a transaction.
On transactions where the purchase price is less than sixty-six thousand
dollars ($66,000), Contractor shall pay to Broker a flat fee equal to two
hundred and ninety-five dollars ($295).
On transactions where Contractor is receiving a referral commission only,
Contractor shall pay ten percent (10%) of the commission received to
Broker, not to exceed four hundred and ninety-five dollars ($495).
Contractor agrees to the above fee structure for any personal transaction
closed in the states in which Contractor is affiliated with Broker. Contractor
hereby agrees to turn in paperwork and notify Broker of all personal
transactions. Contract and closing statement of any out of state personal
transactions must be emailed to Broker, regardless of licensing status or
Broker affiliation.
Broker, in its sole discretion, may withhold payment of a commission if it is
alleged Contractor has engaged in or is a party to unethical behavior,
fraud, a commission dispute, or violations of the state licensing body,
REALTOR® Association, or MLS in the performance of Services.
Commissions may be held until the issue is resolved.
For purposes of this Agreement, a real estate transaction has closed when
the real property deed(s) have been recorded or when a real property
lease, where a commission is owed to Contractor, has been executed by all
parties.
Transactions involving the purchase and sale of lots, bare land, custom
homes, construction, multi-family. commercial, or any real property shall
be considered a transaction under this Section, and commission shall be
determined at the sole discretion of Broker.
Contractor agrees that Broker, as the contracting party, is the party legally
entitled to the commission prior to disbursement.
Broker’s Additional Fees
In addition to the fees described in Section 9 above, Contractor shall pay
the following:
Monthly brokerage dues, ranging from $50-$150/mo. depending on
region licensed and affiliated with Broker.
Association MLS and/or Association dues as required by local MLS or
Association to or/if paid by the Broker on your behalf.
Accumulated printing charges.
Annual Risk Management fee as outlined in Section 8.
Optional brokerage services or products opted into or purchased.
Regional areas may have additional fees for market requirements including
adjusted transaction fees, monthly brokerage dues, MLS/Association dues,
and regional office fees. Refer to the Addendum for your specific area for
details.
All such payments shall be due to Broker as determined by accounting
office billing cycle. Invoices are delivered electronically on the 14th of each
month with a due date of the last calendar day of that month. Delinquent
agent accounts are assessed an eighteen percent (18%) annual late fee,
which is billed each month.
Any outstanding office bills will be deducted from commission fees
collected.
Broker’s Policies.
Contractor shall abide by all other applicable policies and procedures of
Broker as may apply to Contractor’s provision of Services. These policies
and procedures are updated on an ongoing basis and notification of
update will be provided to Contractor through Broker email
communication. A current version of the Policies & Procedures manual is
available on our Intranet, the Silvercreek® Toolbox. Contractor hereby
agrees to be bound by the changes and agrees to regularly review such
policies and procedures.
Contractor shall abide by and be subject to Broker's Work-Place
Discrimination and Harassment Policy, which shall be amended time to
time, at Broker’s sole discretion.
Contractor agrees to participate in training and education sessions
provided by Broker regarding Broker’s Work-Place Discrimination
and Harassment Policy.
At the beginning of each year, on or before January 31st, Contractor
agrees to read Broker’s Work-Place Discrimination and Harassment
Policy.
By entering into this agreement, Contract hereby consents to receiving
text messages and email communications from Broker for the purposes of
service updates and other relevant information. You understand that
standard message and data rates may apply for text messages. You have
the right to opt out of these communications at any time by following the
instructions provided in the messages. However, opting out may affect our
ability to provide certain services to you.
Newly Licensed Contractors
A Newly Licensed Contractor is defined as:
Newly licensed – full time;
Newly licensed – part time;
Newly licensed real estate agent with an immediate transaction;
Newly licensed selling/purchasing for personal reasons, investment,
or representing a family member;
Reactivating a license after being inactive for 12 months;
Real estate agent transferring from another brokerage in the same
state with less than five (5) transactions completed; and,
Real estate agent from a different state, now active with Broker in a
new state;
Broker is committed to providing Newly Licensed Contractors education
and opportunities to enable those Newly Licensed Contractors to realize
Contractor’s potential as a new small business owner in the industry.
Broker has established a minimum standard of education for Newly
Licensed Contractors to learn and understand basic real estate
fundamentals and practices. All Newly Licensed Contractors shall abide by
Broker’s New Agent Commitment, participate in Broker’s New Agent
Training Program, and abide by the time frames contained in both
(collectively “New Agent Training”).
Broker’s supervision under New Agent Training is required for the first
three (3) transactions of a Newly Licensed Contractor.
For each of the first three (3) transactions closed, the Newly Licensed
Contractor shall pay Broker a Newly Licensed Contractor flat transaction
fee of two thousand dollars ($2000).
If a transaction purchase price is equal to or less than $100,000, then the
Newly Licensed Contractor does not have to pay Broker the Newly
Licensed Contractor flat fee on that transaction, however, standard
transaction fees will apply, as outlined in section 9 above. Such a
transaction shall not be counted as one of the three (3) closed
transactions required to complete New Agent Training.
Except for transactions with a purchase price equal to or less than
$100,000, the first three (3) closed transactions of the Newly Licensed
Contractor shall apply to the eighteen (18)-closed-transaction requirement
set forth in Section 9(c) above.
If Contractor is part of an approved real estate team affiliated with Broker,
Contractor will coordinate training with team lead and Contractor will be
subject to standard transaction fees as outlined in Section 9 above.
Express permission from Broker is required for this exemption.
If the Newly Licensed Contractor leaves a team prior to meeting the
minimum training requirements of New Agent Training, the Newly
Licensed Contractor shall immediately resume New Agent Training or
Broker, at its sole discretion, may immediately terminate this Agreement.
Newly Licensed Contractors shall pay the monthly fees identified in section
10 above.
Newly Licensed Training programs may not be available in all areas.
Broker retains the right to determine when and if the program is available
and adjust fees or not provide the services when necessary. Should agent
want to join the brokerage in an area where New Agent Training is not
available, they may only do so with an approved team lead per section
(h).
Term and Termination
Agreement shall commence on the Effective Date and shall continue
until this Agreement is terminated by a party upon one or more of the
following events:
Immediately upon providing written notice, with or without cause;
Immediately by mutual written agreement of the parties; and/or,
Breach of this Agreement by a party (in which event the non-breaching party may terminate immediately)
In the event of a breach of this Agreement, in addition to the non-breaching party’s right to terminate this Agreement, the non-breaching
party shall also have all rights and remedies available at law and/or equity.
In the event this Agreement is terminated:
All Contractor listings and Buyer Agency Agreements obtained
through efforts of Contractor during the term of this Agreement
shall be cancelled and renewed with Contractor’s new Broker,
provided:
The client agrees to such transfer.
Property is not currently under contract/pending.
All Contractor obligations to Broker, including but not limited
to, the payment of commission fees and other sums and
expenses, and indemnity have been satisfied; and
Contractor shall continue to fully cooperate with Broker as
necessary to resolve any transactions, claims, or disputes which are
pending at the time of, or which arise after, the termination of this
Agreement. In such an event, Broker will charge to Contractor a
reasonable fee for all Broker and staff time and costs for services
provided on Contractor’s behalf.
Contractor shall deliver to Broker all tangible documents and other
media, including any copies, containing, reflecting, incorporating, or
based on the Intellectual Property Rights and permanently erase all
Intellectual Property Rights from all computer systems.
Indemnity
Contractor shall defend, indemnify and hold harmless Broker, its affiliates,
officers, directors, employees, agents, successors, and assigns from and
against all losses, damages, liabilities, deficiencies, actions, judgments,
interest, awards, penalties, fines, costs, taxes, insurance, contributions,
fees, or expenses of whatever kind (including reasonably attorneys’ fees)
arising out of or resulting from the provision of Contractor’s Services or
Contractor’s obligations under this Agreement.
Contractor shall immediately notify Broker of any circumstances likely to
give rise to any kind of claim against Contractor and/or Broker.
In the event of a claim, lawsuit, or arbitration demand which is not wholly
covered by Broker’s insurance referenced herein, Broker may withhold
from any commissions due Contractor the full amount of the commission.
Broker may apply such sums as are necessary to settle or to satisfy any
defense and indemnity obligation owed Broker.
Miscellaneous
In the event it shall become necessary for either party to this Agreement
to retain legal counsel to enforce any term, condition, or covenant of this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs, including any attorney fees and costs incurred in
any bankruptcy or appellate proceeding.
This Agreement shall be binding upon and shall inure to the benefit of the
parties, their respective heirs, personal representatives, successors, and
assigns; provided however, that this Agreement may not be assigned
without the prior written consent of the non-assigning party. For purposes
of this Agreement, the sale, assignment, or other transfer, in one or more
transactions, of fifty percent (50%) or more of the underlying ownership
interests of either party, shall be deemed an assignment subject to written
consent of the non-assigning party.
Both parties to this Agreement have been, or have had the opportunity to
be, represented by legal counsel during the negotiations for and the
preparation of this Agreement. Accordingly, in all cases, the language of
this Agreement shall be construed simply, according to its fair meaning,
and not strictly for or against either party regardless of which party caused
the preparation of this Agreement.
Broker reserves the right to modify this Agreement through publication of
the Policy and Procedures (available through
Toolbox.SilvercreekRealty.net).
This Agreement, and all matters arising out of this Agreement, shall be
governed by, and construed in accordance with the laws of the State of
Idaho, without giving effect to any conflict of laws principles that would
cause the laws of any other jurisdiction to apply. The parties agree that
any lawsuit or legal proceeding arising out of this Agreement shall be
brought only in the federal or state courts located in Ada County, Idaho.
The failure of a party to insist, in any one or more instances, upon strict
performance of any term, covenant, or condition of this Agreement or in
any instrument or document referred to herein or contemplated hereby,
shall not be construed as a waiver, or a relinquishment for the future, of
such term, covenant or condition, but the same shall remain and continue
in full force and effect.
This Agreement and the instruments and documents referred to herein or
contemplated hereby constitute the entire agreement between the parties
concerning the subject matter of this Agreement; there are no oral
agreements existing between the parties relative to the subject matter
hereof which are not expressly set forth herein or in the instruments or
documents referred to herein or contemplated hereby.
Both parties shall execute, acknowledge, and deliver to the other such
other documents and instruments, and take such other actions, as either
shall reasonably request, or as may be reasonably necessary, to
consummate the transactions contemplated in this Agreement.
