INDEPENDENT CONTRACTOR AGREEMENT BETWEEN
LEVEL GROUP “(BROKER)” AND
WHEREAS, Broker is a licensed Real Estate Broker in the State of New York pursuant to Article 12-A of the Real Property Law (“Article 12-A”) having an address at 5 West 37 Street, Fl 12, New York, NY 10018 ;
WHEREAS, Contractor is a duly licensed Salesperson or Associate Broker in the State of New York pursuant to Article 12-A;
WHEREAS, Broker desires to retain Contractor and Contractor wishes to be retained by Broker;
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
1) Independent Contractor Status: Contractor shall work for Broker as an Independent Contractor, and not as an employee, partner or joint venture. The Contractor's engagement shall commence on the date hereof and/or upon execution of this Agreement by both parties. The term of this agreement shall be for one year and shall be renewed automatically unless terminated pursuant to Paragraph 8 below. Contractor understands that Broker is legally accountable for the activities of the Contractor. Contractor shall have no authority to bind the Broker by any promise or representation, including those related to expenses. Contractor shall devote his/her attention, energies and best efforts to their role as Contractor. Contractors are free to engage in other employment except that Contractor shall not be associated with or employed by other real estate brokers in the State of New York without the consent of the Broker. All costs and obligations incurred by Contractor in conducting his/her independent business shall be paid solely by Contractor, who will hold Broker harmless from any and all costs and obligations that they incur. Contractor will act independently as to the management of his/her time and efforts and will be responsible for timely payment of all of his/her own expenses, such as industry association dues, advertising, licensing renewals, cellular telephones, etc., as they are incurred. Contractor understands and agrees that, because Contractor is an Independent Contractor and not an employee of Broker, Broker will not withhold any Federal, State or City income tax, Social Security (FICA), disability or Unemployment taxes from Contractor's commissions paid. Contractor is personally responsible for paying any and all Federal, State and City income, Social Security, Disability and Unemployment taxes and for maintaining all expense records as required by law. Contractor agrees that Contractor shall timely make all estimated and required tax payments when due and shall timely file all tax returns as required by law. Contractor shall indemnify and hold Broker harmless from any liability or costs thereof. Contractor further understands and acknowledges that Broker provides no Workmen's Compensation coverage. Contractor hereby specifically waives such coverage and represents to Broker that he/she understands that, if Contractor desires such coverage, Contractor must personally obtain such coverage directly from the State of New York or other State or an insurance carrier of Contractor's choice, at Contractor's sole expense.
2) Compliance with Laws and Industry Standards and Practices: Contractor agrees to comply with all applicable international, federal, state, and local laws and regulations (each a “Law” and collectively, the “Laws”) including, but not limited to, “fair housing” laws, “do not call” laws, MLS and other listing service rules and regulations, and all laws pertaining to the real estate brokerage and sales business. Contractor further agrees NOT to: (i) act or fail to act in a way which could be reasonably determined to be a violation of applicable codes of ethics and/or standards of professional responsibility applicable to real estate salespersons and brokers (including, without limitation, MLS, state associations of realtors, NAR, and/or similar governmental and non-governmental bodies, and Broker’s own policies concerning agent conduct); (ii) commit any act of fraud, embezzlement, theft, or other violation of Laws; (iii) disclose Broker’s Confidential Information; (iv) breach Agent’s obligations hereunder or Agent’s duty of loyalty to Broker; (v) violate any of Broker’s written policies or guidelines related to Agent’s performance of the Services,; (vi) willfully fail, or continue to fail after notice is given, to substantially perform Agent’s duties for Broker; or (vii) engage in or commit willful misconduct; or (viii) willfully misappropriate any business opportunity of Broker or its Affiliates; any violation of this clause shall constitute “Cause.”.
3) Hold Harmless: As a material provision of this agreement, Contractor agrees that, for all actions that Contractor does during his/her contractual relationship with Broker, Contractor will forever indemnify and hold harmless Broker, their heirs, successors, spouses and assigns, from any and all claims, complaints, causes of action, arbitration demands, damages and liabilities of every kind whatsoever, whether known or unknown, including without limitation of any action, omission, negligence or any other basis of liability or complaint, in any forum, brought by any third party against Broker. In the event that Contractor receives any notice, written or otherwise, regarding any actual, pending, potential or threatened claim, violation or complaint against him/her, they shall immediately notify Broker of such notice. Failure to comply with this provision shall constitute a material default of this Agreement and may cause Contractor's Agreement to be terminated for cause. Contractor shall also be responsible for Broker's reasonable legal fees and associated costs in such case Broker must retain legal counsel to recover from Contractor damages incurred as a consequence of Contractor's actions. Contractor shall also be responsible for any and all reasonable legal fees incurred in order to review and respond to any complaint filed against the Contractor with the Department of State or other government or consumer agency. No action or complaint arising out of a real estate transaction in which Broker was involved may be brought by Contractor before anybody, against any third party, without prior written consent of the Broker. If the Broker initiates any litigation or arbitration action on behalf of the Contractor, or if the Broker must defend any action of the Contractor in litigation or arbitration, Contractor will pay all related filing fees, reasonable attorney fees and related expenses.
4) Errors & Omissions Insurance: The Errors and Omissions Insurance carrier shall be chosen at Broker's discretion. Contractor understands that, in case of a claim or action related to Contractor’s actions, Contractor shall be responsible for payment of any amount not covered by the Policy, including deductibles (currently $10,000 per incident) and liabilities that may exceed the claims limits of the Policy. Contractor further understands that there can be no certainty that Contractor’s actions shall be covered by Broker’s E&O insurance, and in such case, Contractor accepts full liability for the conduct that may bring forth any claim or action. In the event of a claim, lawsuit, license complaint or Arbitration demand which is not wholly covered by insurance, Broker may withhold from Contractor's commissions payable an amount adequate to satisfy any amounts not covered, including legal fees, which Broker shall place in its Claims and Disputes Retention Account, pending settlement or other disposition of the matter. Broker may, in Broker's sole discretion, apply such sums as necessary to settle or to satisfy any such claim or award, and Contractor agrees to cooperate fully in this regard. Contractor understands that, from time to time, the Broker may deem it necessary to obtain legal consultation concerning one of Contractors transactions. Contractor agrees to reimburse and indemnify Broker for any Attorney's fee reasonably incurred by Broker to obtain legal advice concerning such transactions(s).
5) Commissions and Fees: As commissions are earned through the efforts of Contractor, 100% of any and all such commissions shall promptly be paid to Contractor by Broker after receipt and processing, less any amounts owing to Broker. Payment of any and all commissions is subject to Broker receiving a complete sale or lease file. Contractor shall select one of the following plan options; Option 1( 100% Commission, Option 2 (90% Commission), Option 3 (Jumpstart). Agents may switch from Option 2 (90%) to Option 1 (100%), effective the day AFTER the last day of the subsequent calendar month, provided that they’ve given in writing 90 days’ notice of their request to switch plans (i.e., for an agent giving notice August 15th, the switch shall become effective December 1st). Any switch in plan from Option 2 to Option 1 shall not apply retroactively to any transaction for which substantial contact between Contractor and seller, buyer, landlord or tenant has been made; a lease has been signed; a sales contract executed; or a deal sheet distributed. Agents may switch from Option 1 (100%) to Option 2 (90%) effective the first day of the subsequent calendar month. Agents may only switch plans once per calendar year. Contractor may not switch from Option 3 (Jumpstart) without the written approval of Broker.
For all plans, a $225 set up/join fee shall be charged upon signing and is non refundable. All plans have an annual Errors & Omissions insurance fee of $100.00 that shall be charged to the Contractor on July 1st of each calendar year.
For All Contractors Selecting, Option 1 (100% Commission), Commissions will be paid as follows:
Contractors shall pay a monthly fee of $495 and retain 100% of all commissions earned.
For All Contractors Selecting, Option 2 (90% Commission), Commissions will be paid as follows:
Contractor shall pay a monthly fee of $99.00. When a sale occurs, Contractor shall pay 10% of all sales commissions, with a maximum of $6,000 payable to Broker per transaction. When a rental occurs Contractor shall pay 10% of all rental commissions. For any referral fees, contractor shall pay 10% of referral commissions to Broker. Contractor shall be billed an additional $50 for any calendar month, or part thereof, during which Contractor has both an active RealtyMX and OLR account. These accounts are primarily for the NYC area.
For All Contractors Selecting, Option 3 (Jumpstart Training Program), Commissions will be paid as follows:
Contractor joining the Jumpstart training program shall pay a monthly fee of $49.00. Contractors shall retain 35% of all commission earned. After the contractor completes a total of 6 rental or sales transactions, the contractor will earn 50% commission. After contractor completes their 12th transaction the contractor shall be eligible to switch plans or remain in the Jumpstart program and retain 70% of all commission earned with written approval from broker.
Monthly membership fees shall be paid by ACH transfer. A 3% surcharge shall be charged for payment by credit card or debit card. Membership fees paid by check are payable semi-annually in advance on January 1 and July 1.
Initial Membership fees upon execution of this Agreement shall be prorated accordingly.
Contractors shall pay a Late Fee of up to 100% on any payment of monthly Membership Fees received after the 5th day of the month they are due and will accrue at a rate of 10% per month.
Disassociation under either plan, a 10% administrative fee shall be deducted from any deal that closes prior to agent’s disassociation from Broker but for which the commission is received subsequent to agent ‘s disassociation. Under either plan, for any transaction for which a sales contract, lease or purchase option has been executed, or a meeting of the minds consummated, that closes subsequent to Contractor’s disassociation from Broker, Contractor shall pay Broker 20% of the commission earned. Upon disassociation, Broker has the right to offset any amounts due to Broker against any commissions or other amounts due to Agent under the ICA. To the extent that commissions or other amounts due to Agent at the time of Disassociation are insufficient to satisfy Agent’s repayment obligation, if any, Broker may pursue repayment through additional means, including, but not limited to, engaging the services of a collection agency or firm.
6) Transaction Defined: For purposes of this Agreement, the term "transaction" shall be defined as the sale of real estate, or the execution by all parties of a lease, where a commission is paid to Broker as a result of the efforts of the Contractor. Contractor agrees that Broker has the right to hold and/or apply any commissions owing to Contractor, as may be necessary to pay for or secure any obligations of Contractor hereunder.
7) Failure to Report Closed Transactions: Agent acknowledges that the direct acceptance of and failure to report commissions undermine Broker's business and may violate the License Law. In such case Contractor accepts a commission or fee directly from a buyer, tenant, co-broker, seller or landlord without notifying Broker of the transaction, Contractor shall be liable to Broker for the full commission received. Contractor's failure to report a closed Transaction shall constitute cause for Termination per the terms of Paragraph 8 below and may be reportable to the Department of State.
8) Termination of Agreement: This Agreement may be terminated immediately by Broker for cause or upon three (1) calendar days written notice by Broker or Contractor. The parties may serve this termination notice by overnight mail, email or personal delivery. The notice shall be effective upon delivery. Contractor agrees that a violation of any of Contractor's obligations hereunder shall constitute cause for immediate termination of this Agreement. In the event this Agreement is terminated by Broker for cause, which shall be determined by Broker in its sole discretion, Contractor agrees that any ongoing obligations of Contractor hereunder shall survive the termination of this Agreement. In the event that Contractor terminates his/her contractual relationship with Broker for any reason, any and all Exclusive Right to Sell or Exclusive Right to Rent listings obtained through the efforts of Contractor during the term of this Agreement shall be transferred to Contractor or to Contractor's new employing broker, on Contractor's behalf, without penalty, upon payment by Contractor to Broker of any outstanding balance due Broker. Commissions earned and paid to Broker on all sales contracts completed prior to the Contractor's termination will be disbursed to the Contractor in compliance with the commission plan in effect at the time the contract was executed. However, Contractor specifically agrees to continue to fully cooperate with Broker as necessary to resolve any transactions, claims or disputes which are pending at the time, or which arise after Contractor's contractual relationship with Broker terminates and Contractor shall indemnify and hold Broker harmless from all such matters. Any such transfer of listings and/or disbursement of commissions is conditioned on the Contractor having any and all dues, fees and expenses owing to Broker paid in full. This paragraph shall survive the termination of this Agreement. In the event that Contractor terminates his/her contractual relationship with Broker, Contractor shall have right to return of any pre-paid monthly fees covering the period beyond the end of the calendar month during which Contractor gave notice of termination. At time of termination, Contractor shall pay Broker any outstanding dues or fees and a processing fee of $20. This Agreement shall not be terminated by the merger or consolidation of the Company into or with any other entity.
9) Mediation of Disputes- In the event of a dispute involving two or more Contractors, all of whom are licensed with Broker, Contractor authorizes the Principal Broker, or someone appointed by the Principal Broker, for Broker, sole and absolute discretion in resolving said dispute. Contractor agrees to abide by the decision of the Principal Broker or his designate. Contractor also agrees to hold harmless and indemnify Broker and its Designated Principal Broker against any claim, action or lawsuit of any kind, and from any loss, judgment, or expense, including attorney's fees, arising from or relating in any way to the resolution of said dispute. Contractor and Broker agree that for any dispute concerning the construction or interpretation of this Agreement, or the remedies for any breach hereof, Broker shall have the option to submit to arbitration in accordance with the rules and requirements of the American Arbitration Association from time to time, in effect. In the event that Broker must initiate any court proceedings to enforce any of Contractor's covenants, promises, duties or obligations under this Agreement and Broker is successful in obtaining monetary or injunctive relief in such action, Contractor shall be liable for the payment of court costs, reasonable attorneys' fees and staff fees and ancillary expenses incurred by the Broker in pursuit of such litigation. This paragraph shall survive termination of this Agreement.
10) Confidentiality/Solicitation: Contractor covenants and agrees that Contractor shall, during and after the Term, keep secret any Confidential Information divulged, disclosed or in any way communicated to him/her by Broker or otherwise learned by Contractor, and shall not disclose any of the same without the prior written consent of the Broker. The Confidential Information made available to Contractor by Broker, if any, will at all times be done so in confidence and in reliance upon Contractor's covenant to retain such information as secret and confidential. Contractor shall not copy or reproduce any Confidential Information without the prior written consent of the Broker. For purposes of this Agreement "Confidential Information" means that proprietary information which Broker owns, controls or to which it has exclusive access, as to the techniques, formulation, organization, design, development, implementation, preparation and other operations, methods and accumulated experiences incidental to its business, including, without limitation, information which pertains to: the solicitation of real estate agents, marketing strategies, computer programs or software, mailing lists, concepts, ideas, know-how, trade secrets and/ or research. Information related to marketing techniques, advertising, promotions, customer lists, mailing lists which shall also be considered "Confidential Information" within the meaning of this Agreement. Confidential Information shall not include information which is now or hereafter comes into the public domain through no action of Contractor, nor shall it include information acquired in a manner that does not violate, or originate from a source that has not violated any secrecy or confidential nondisclosure agreement with Broker. Upon termination of this Agreement, Contractor shall immediately deliver to Broker any and all original or copies of all documentation and information that is Confidential. Solicitation: Contractor covenants and agrees that during the term of this Agreement and/or a period ending one (1) year following the date of termination of this Agreement, for whatever reason, Contractor will not solicit, employ, engage or in any manner encourage any current or former employee, other Contractor, independent contractor, broker or salesperson of Broker to leave its employee, directly or indirectly, for the employ of a person or entity which directly or indirectly competes with Broker. The obligations hereunder shall continue beyond termination of this Agreement and shall survive termination thereof.
11) Real Estate Board Affiliation & MLS Memberships: Most geographic locations with the exception of New York City, require membership to local Realtor Boards and/or Multiple Listing Services. Contractor is required to transfer or register for a local Board and/or MLS if it is deemed necessary but Broker or by the Board or MLS. It will be Contractor's responsibility to keep their membership in good standing at all times. Failure to do so may result in termination by Broker.
12) Miscellaneous: The terms, warranties and agreements herein contained shall bind and inure to the benefit of the respective parties hereto, and their respective legal representatives, heirs, executors, administrators, successors and assigns. Agent may not assign the ICA nor Agent’s rights and/or obligations thereunder without the prior written consent of Broker.
If any provision of this Agreement is found to be void and unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part has been severed and deleted.
This agreement embraces the entire transaction between the parties, and there have been no representations, warranties, or conditions other than those herein or therein set forth. This Agreement may not be changed or terminated orally. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. This Agreement shall be interpreted and construed in accordance with the laws of the State of New York. The undersigned agrees to the terms and conditions set forth above and acknowledges receipt of a copy hereof. If Agent enters into a subsequent ICA with Broker, the ICA dated last in time shall govern the independent contractor relationship between the parties and supersede any prior “ICA” between Agent and Broker. A party’s failure to enforce the ICA, or Broker’s failure to enforce these Terms, or any of its provisions, shall not be construed as a waiver of such party’s right to demand strict performance of this or any provision or any right, power or privilege thereunder. These Terms are subject to modification and may be updated from time-to-time in Broker’s sole discretion. Broker shall notify the Contractor of any material changes. These Terms shall survive the termination of the ICA (“Disassociation”), whether by Agent or Broker, for any reason.