Independent Contractor Agreement
INDEPENDENT CONTRACTOR AGREEMENT
This Independent Contractor Agreement (“AGREEMENT”) is made and entered into on EFFECTIVE DATE”) by and between MMS Realty, LLC DBA Realty ONE Group Sterling (“COMPANY”) and [esiggravity formid="1" field_id="2" display="value" ] (“ASSOCIATE-LICENSEE”).
The parties hereto agree as follows:
1. ASSOCIATE-LICENSEE/INDEPENDENT CONTRACTOR RELATIONSHIP
1.1 ASSOCIATE-LICENSEE represents that he/she holds a current and active salesperson and/or broker’s license with the Nebraska Real Estate Commission, bearing license number [esiggravity formid="1" field_id="40" display="value" ] License”) and shall keep his/her License current and in good standing during the term of this AGREEMENT.
1.2 ASSOCIATE-LICENSEE hereby associates its License with COMPANY, with ASSOCIATE-LICENSEE agreeing to act as an independent contractor to COMPANY upon the terms and conditions set forth herein this AGREEMENT and listed in the COMPANY’s Policies and Procedures Manual provided.
1.3 ASSOCIATE-LICENSEE expressly agrees that ASSOCIATE-LICENSEE is solely an independent contractor. This AGREEMENT does not constitute a hiring by either party. Neither ASSOCIATE-LICENSEE nor any principal, employee, agent or assistant of ASSOCIATE-LICENSEE shall be construed to be an employee of COMPANY in any manner, under any circumstance, or for any purpose, whatsoever. Nothing herein grants ASSOCIATE-LICENSEE any partnership rights or equity ownership rights, benefits or entitlements in COMPANY or any affiliate thereof.
1.4 As no employment relationship is contemplated or created hereby, (a) COMPANY shall not pay, on the account of ASSOCIATE-LICENSEE or any principal, employee, agent, or assistant of ASSOCIATE-LICENSEE, any unemployment tax or other taxes required under the law to be paid with respect to COMPANY employees; (b) COMPANY shall not withhold any monies from the fees of ASSOCIATE-LICENSEE for income tax purposes; and (c) COMPANY shall not provide ASSOCIATE-LICENSEE or any principal or ASSOCIATE-LICENSEE’s employee or unlicensed assistant with any benefits, including but not limited to pension, retirement, or any kind of insurance benefits. COMPANY carries Workers’ Compensation Insurance for COMPANY’s own benefit. ASSOCIATE-LICENSEE understands and agrees that such coverage does not,and shall not create an inference of employment with the COMPANY.
1.5 ASSOCIATE-LICENSEE may or may not, as ASSOCIATE-LICENSEE so chooses, retain employees or unlicensed assistants to assist the ASSOCIATE-LICENSEE. Please refer to the Policy Manual for further information regarding assistants.
1.6 All commissions for real estate sales, in accordance with federal anti-trust legislation, shall be set only with regard to the principles of supply and demand in the marketplace. ASSOCIATE-LICENSEEs shall have the authority to negotiate their own commissions with brokerage Clients.
This AGREEMENT is effective as of the date set forth above (the “EFFECTIVE DATE”) and shall remain in full force until written notice from either party to this AGREEMENT is delivered to the other party expressing their desire to terminate this AGREEMENT. COMPANY or the ASSOCIATE-LICENSEE may terminate this AGREEMENT at any time in writing. This AGREEMENT shall also immediately and automatically terminate, without prior notice, if for any reason, ASSOCIATE-LICENSEE breaches his or her obligations hereunder, or if ASSOCIATE-LICENSEE’s License expires, is restricted, suspended or is revoked.
3. DUTIES & OBLIGATIONS
3.1 ASSOCIATE-LICENSEE agrees to maintain affiliation with one of the local Board of REALTORS® thus maintaining with the State Association and the National Association of REALTORS®. ASSOCIATE-LICENSEE
shall pay all board dues when required by the Association and keep their membership in good standing with the local board, state board and the National Association of REALTORS®.
3.2 ASSOCIATE-LICENSEE represents that he/she is engaged in an independent business and follows all local, state, and federal laws regarding business permits and licenses that may be required to carry out the independent business calling and to perform under this AGREEMENT. No licensed real estate activities may be conducted without the appropriate license. If ASSOCIATE-LICENSEE has transferred their license from another brokerage, the local, state and National Board/Association of Realtors should be updated by the ASSOCIATE-LICENSEE within 48 hours.
3.3 Subject to applicable law, and as governed by the Nebraska Association of Realtors, and associated local Board of REALTORS® under its Code of Ethics, as well as other governing bodies and their rules and regulations, and also subject to the internal quality standards of good practice requirements of COMPANY, ASSOCIATE-LICENSEE retains the sole discretion to utilize the methods, techniques and procedures to be used in soliciting and obtaining listings, sales, exchanges, rentals or other transactions and in carrying out ASSOCIATE-LICENSEE’s selling and soliciting activities.
3.4 ASSOCIATE-LICENSEE shall supply all of its own equipment, materials, resources, and supplies necessary to perform the services under this AGREEMENT, except that COMPANY shall supply ASSOCIATE-LICENSEE with certain standardized forms necessary for the operation of COMPANY’s business operations.
3.5 ASSOCIATE-LICENSEE shall pay, when due, all costs to conduct business on his/her own accord. This includes, but is not limited to, all taxes as well as insurance premiums, worker’s compensation insurance for ASSOCIATELICENSEE’s employees, agents, or assistants, federal and state tax withholding for ASSOCIATE-LICENSEE’s employees, Nebraska Real Estate Commission fees, city/state/county business licenses, National and Nebraska Association of Realtor fees, MLS fees, postage, copier, all types of phone/internet service, business cards, signs, lockboxes, and advertising. ASSOCIATE-LICENSEE has no authority to, and shall not commit or bind COMPANY to any obligation, contract, agreement, cost or expense. ASSOCIATE-LICENSEE shall not make orders for products or services with vendors charging COMPANY’s name, or any affiliate of COMPANY.
3.7 ASSOCIATE-LICENSEE shall comply with federal, state, and local laws, rules and regulations (the “Laws”), using the standard of care, skill, and judgment ordinarily exercised by highly qualified members of ASSOCIATE-LICENSEE’s profession currently practicing under similar conditions in the locality where the services are provided.
3.8 ASSOCIATE-LICENSEE expressly agrees that any third party agreements that materially affect the conduct of their business or may be subject to scrutiny of any governing agency, including but not limited to MSA’s (Marketing Service Agreement), must be approved in writing by their Designated Broker.
3.9 Disputes and Claims. ASSOCIATE-LICENSEE agrees to immediately notify in writing the COMPANY’s Designated Broker in writing of any potential dispute, claim and/or lawsuit in which they are a party or may become a party. COMPANY reserves the right to hold commission funds or request return of a commission already paid if ASSOCIATE-LICENSEE is involved in a commission dispute. Commission funds shall be released upon resolution of any commission dispute as determined by COMPANY.
3.9.1 Commission Disputes: In the event of a commission dispute, ASSOCIATE-LICENSEE acknowledges and agrees that COMPANY shall not be required to institute an action for commission or pay any attorney’s fees, costs or any other monetary sums to collect the commission, and that ASSOCIATE-LICENSEE shall advance all attorney’s fees, and costs should COMPANY choose to allow a commission action. COMPANY shall cooperate with the collection of any disputed commission unless the collection places COMPANY at risk, which determination shall be in the sole discretion of COMPANY. If COMPANY shall in any way become responsible for any cost or damage arising from its cooperation in collecting a disputed commission, ASSOCIATE-LICENSEE shall indemnify, defend, protect and hold harmless COMPANY and
any person(s) or entity controlling, controlled by, or under common control with it, from and against as to any and all claims, liens, actions, proceedings, orders, damages, defects, diminution, losses, loss of use, misappropriation, infringement, injuries, disabilities, liabilities, costs, remediation’s, repairs, settlements, violations of law, penalties, fines, forfeitures, judgments, and fees (including but not limited to, attorney, paralegal, expert, consultant and witness fees, and other legal costs and expenditures) of any nature and description whatsoever, whether incurred by or made against any Indemnitee or made by any third party, founded upon, caused or contributed to by, arising from or relating to, the actions or inactions of ASSOCIATE-LICENSEE arising under this AGREEMENT. ASSOCIATE-LICENSEE shall pay all attorney’s fees and costs in a timely manner. In the event, ASSOCIATE-LICENSEE does not pay the attorney’s fees and costs in a timely fashion, COMPANY, in its sole and absolute discretion, may dismiss any commission action.
3.9.2 Internal Disputes. In the event a dispute arises between ASSOCIATE-LICENSEEs, ASSOCIATE-LICENSEEs agree to attend internal mediation session(s) with a panel of COMPANY Managers and/or peers of the COMPANY’s choosing. All internal transactions should have written agreements. If no such agreement exists, the COMPANY’s Designated Broker will withhold the compensation until a Determination is made in the dispute by the Designated Broker or subsequent Panel. The results shall be final and binding. No other dispute resolution method will be allowed (such as Association of Realtors, small claims court, etc.)
3.10 ASSOCIATE-LICENSEE shall notify in writing COMPANY and the Nebraska Real Estate Commission within 10 days of a criminal conviction, or an adverse judgment or disciplinary action against the ASSOCIATE-LICENSEE.
As set forth in further detail in Section 4.1 of the Policy and Procedures Manual, ASSOCIATE-LICENSEE acknowledges and agrees that all documentation associated with ASSOCIATE-LICENSEE’s activities and transactions through COMPANY shall be uploaded into the COMPANY’S intranet within 72 hours, after receipt of each fully executed documents (i.e. ASSOCIATE-LICENSEE shall not wait until the closing on the transaction to upload all transaction documents). Such documentation shall include, but is not limited to: (i) all documents which may have a material effect upon the rights and duties of principals in a transaction, (ii) any documents or other items connected with a transaction pursuant to this AGREEMENT in the possession of or available to ASSOCIATE-LICENSEE; and (iii) all documents associated with any real estate transaction in which ASSOCIATE-LICENSEE is a principal. Failure to meet the 72 hour requirement may result in the ASSOCIATE-LICENSEE’s commission check being delayed and/or mandate the use of COMPANY’s in-house transaction coordination service for an additional fee which shall be deducted from ASSOCIATE-LICENSEE’s commission.
5. COMPENSATION & FEES
Compensation and fees are set forth in ADDENDUM “A” to this AGREEMENT, which constitutes part of this AGREEMENT and requires execution by ASSOCIATE-LICENSEE.
Any waiver, in whole or in part, of any provision of this AGREEMENT, shall not be considered to be a waiver of any other provision. If any term of this AGREEMENT is found to be unenforceable or invalid for any reason, all other terms shall remain in full force and effect.
Each party represents and warrants that it has taken all requisite action to approve execution, delivery, and performance of this AGREEMENT and that this AGREEMENT constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms.
8. ATTORNEY’S FEES
In any action, proceeding, or arbitration between ASSOCIATE-LICENSEE and COMPANY arising from or related to this AGREEMENT, the prevailing party shall be entitled to reasonable attorneys’ fees and costs.
9. GOVERNING LAW
This AGREEMENT, the exhibits hereto and all documents or instruments executed pursuant hereto shall be governed and construed in accordance with the laws of the State of Nebraska, without regard to conflict of law provisions.
10. DISPUTE RESOLUTION
10.1 Any controversy or claim arising out of or relating to this AGREEMENT, or the breach thereof, shall be determined by submission to final and binding arbitration, without the availability of punitive damages, and not by a lawsuit or resort to court process except as provided by law for judicial review or enforcement of arbitration proceedings.
10.2 All parties to this AGREEMENT, by entering into it, are giving up their right to have any such dispute decided in a court of law before a jury, and instead, are accepting the use of arbitration. ASSOCIATE-LICENSEE may wish to seek outside advice of counsel concerning this procedure.
10.3 In rendering the award, the arbitrator shall determine the rights of the parties per the substantive laws of the State of Nebraska.
10.4 The proceedings shall be administered by Judicial Arbitration & Mediation Services, Inc. (JAMS) in accordance with their then existing streamline rules of Practice and Procedure.
10.5 Notwithstanding that this is a mutually bargained for arms-length transaction, if ASSOCIATE-LICENSEE does not desire to participate in dispute resolution pursuant to and as set forth in this Section 10, the ASSOCIATE-LICENSEE can decline to participate in the dispute resolution as set forth herein by giving written notice to the Designated Broker of ASSOCIATE-LICENSEE’s election not to participate within thirty (30) days of this AGREEMENT being executed by ASSOCIATE-LICENSEE.
ASSOCIATE-LICENSEE may not assign his/her rights or obligations under this AGREEMENT without written consent provided by the COMPANY’s Designated Broker. Such consent shall not be unreasonably withheld. COMPANY can assign their rights and obligations under this AGREEMENT without the consent of ASSOCIATE-LICENSEE.
As a condition of continued association, ASSOCIATE-LICENSEE agrees to abide by any future changes to this AGREEMENT or Policies which are distributed to the ASSOCIATE-LICENSEE either by email, COMPANY website or intranet and/or any other method in writing, taking effect as stated in the notice and when provided to the ASSOCIATE-LICENSEE. Such amendment of this AGREEMENT shall occur, even though this AGREEMENT is not amended in writing with signatures of the parties. ASSOCIATE-LICENSEE, by executing the AGREEMENT, agrees to abide by all such future changes. His/her sole remedy is to terminate this AGREEMENT. Otherwise, any such amendment shall be deemed binding against the ASSOCIATE-LICENSEE.
All of ASSOCIATE-LICENSEE’s releases and waivers, all of ASSOCIATE-LICENSEE’s obligations to indemnify, defend, protect and hold harmless, and all other obligations, representations and warranties of ASSOCIATE-LICENSEE which by their nature are required or intended to be performed after the expiration or termination of this AGREEMENT, shall survive the expiration or termination of this AGREEMENT until the expiration of the applicable statute of limitations or such obligations are otherwise performed in full. Survival of any release, waiver, obligation, warranty or guaranty as provided above shall not serve or be deemed to constitute a waiver by COMPANY or any right or remedy of COMPANY under this AGREEMENT, and shall not serve or be deemed to extend any time or date by which a condition is to be satisfied, or an obligation is to be performed by ASSOCIATE-LICENSEE.
Each right, privilege, and remedy afforded COMPANY under this AGREEMENT arising from or related to the failure of ASSOCIATE-LICENSEE to perform his or her obligations under this AGREEMENT shall be separate, distinct and cumulative, and shall be in addition to every other right, privilege or remedy now or hereafter existing at law, in equity or otherwise. The exercise of COMPANY of any one or more right or remedy shall not be deemed or construed to be a waiver of or to prejudice or preclude the concurrent or later exercise of any or all other rights and remedies provided for in this AGREEMENT or now or hereafter existing at law, in equity or otherwise.
15. COMPANY POLICY AND PROCEDURES MANUAL
If COMPANY’s policy and procedure manual, now or as modified in the future, conflicts with or differs from the terms of this AGREEMENT, the terms of the policy and procedure manual shall govern the relationship between COMPANY and ASSOCIATE-LICENSEE. The current policy and procedure manual will be provided.
16. ENTIRE AGREEMENT
This AGREEMENT and the Policies Manual provided, completely state the rights, duties, and obligations of the parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, and understandings by or between the parties. The parties, by signing below, agree with the terms of this
MMS Realty, LLC DBA Realty ONE Group Sterling
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Signed by Kevin Story
Signed On: July 19, 2021
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Document Name: Independent Contractor Agreement
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