75% Commission Split Independent Contractor Agreement
INDEPENDENT CONTRACTOR AGREEMENT
This INDEPENDENT CONTRACTOR AGREEMENT (hereafter “Independent Contractor Agreement” or “Agreement”) dated as of the first date below between HomeDax Real Estate LLC (“HomeDax”), a New York limited liability company having an address at 148 Lafayette Street, New York, New York 10013 and , a licensed real estate salesperson in New York with mailing address (the "Independent Contractor " or “Agent”).
WHEREAS, HomeDax is engaged in business as a licensed real estate broker in the City, County and State of New York, and is qualified to operate, and does operate, a general real estate business (the "Business"), and is duly qualified to and does procure the listings of real estate for sale, lease, or rental;
WHEREAS, the Independent Contractor is now, and has been, engaged in business as a duly licensed real estate Independent Contractor in the State of New York, and has enjoyed and does enjoy a good reputation for fair and honest dealing with the public as such;
WHEREAS, HomeDax desires to associate with the Independent Contractor and the Independent Contractor desires to be associated with HomeDax pursuant to Article 12-A of the Real Property Law of New York and pursuant to the terms and conditions hereinafter set forth; and
WHEREAS, HomeDax possesses valuable, confidential and proprietary information, customer lists, landlord listings, leads generated by HomeDax and other information (collectively referred to and further defined in Section 2 of this Agreement as the "Confidential Information") relating to the operation of the Business.
NOW THEREFORE, in consideration of the premises set forth above and the mutual covenants and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby mutually acknowledged, the parties agree as follows:
1.1. HomeDax’s Rights and Obligations. (a) HomeDax will make available leads, referrals and exclusive listings to the Independent Contractor at its sole discretion. HomeDax agrees to assist the Independent Contractor in his or her work by rendering advice, instruction, and cooperation. (b) HomeDax reserves the right to examine any of the Independent Contractor's computer files that relate to the Business and the Independent Contractor acknowledges HomeDax has the right to examine his or her computer files that relate to the Business.
1.2. The Independent Contractor's Rights and Obligations. (a) When performing services for HomeDax, the Independent Contractor will work diligently and with his or her best efforts to sell, lease, or rent any and all real estate listed with HomeDax, to solicit additional listings and customers for HomeDax, and to otherwise promote the business of serving the public in real estate transactions and the Independent Contractor will conform to and abide by all laws, rulings, regulations, and codes of ethics that are binding on or applicable to real estate Independent Contractors, including but not limited to Article 12-A of the New York Real Property Law and the regulations issued thereunder and Title VIII of the Civil Rights Act of 1968 (Fair Housing Act) and such compliance shall not affect the Independent Contractor's status as an independent contractor, as defined below, nor shall it be construed as an indication that the Independent Contractor is an employee of HomeDax for any purposes.
(b) The Independent Contractor may (i) work any hours he or she chooses; (ii) work out of his or her home; and (iii) engage in outside employment.
(c) If the Independent Contractor solicits and/or procures real estate listings which are not listed with HomeDax, the Independent Contractor must offer to place such listings with HomeDax and HomeDax must advise the Independent Contractor in writing if it wishes to accept such listings ("Pocket Listings").
(d) Agent shall be engaged by Broker as an independent contractor to: (i) identify and engage consumers interested in purchasing, selling, leasing or renting properties, (ii) use diligence in identifying properties that meet requirements set by consumers, such as price and location of properties, (iii) assist consumers in negotiating agreements pursuant to which such consumer will purchase, sell, lease, or rent a property on terms acceptable to such consumer (each a "Transaction"), (iv) arrange for showings of properties that are suitable for consumers, and (v) generally advise and assist consumers throughout real estate transactions (collectively, the "Services").
2. CONFIDENTIAL INFORMATION AND NON-COMPETE AGREEMENT
2.1. The Independent Contractor expressly covenants and agrees that he or she will not disclose to anyone outside of HomeDax, or use other than for HomeDax’s business and for the benefit of HomeDax, any HomeDax Confidential Information or material relating to the business of HomeDax either during or after association with HomeDax, except with HomeDax’s written permission. The Independent Contractor also understands that information and materials received in confidence from third parties by HomeDax is included within the meaning of this paragraph. For purposes of this Agreement, Confidential Information shall include any information that a reasonable person would understand to be confidential, proprietary and/or trade secret, regardless of whether the information is disclosed in writing, verbally or otherwise, and regardless of whether the information is identified as confidential. Confidential Information shall include, but not be limited to, business plans, vendors, customer/brokers, advertisers, pricing, software (including source code), terms and conditions of contracts with third parties, projections, procedures and processes.
2.2. The Independent Contractor agrees that upon the termination of this Agreement or of the Independent Contractor’s association with HomeDax, he or she will promptly deliver to HomeDax all of the Confidential Information furnished to him or her, including, but not limited to computer access ID codes to any HomeDax or affiliated databases or web sites, any keys to any Company offices, and other data and property of HomeDax in his or her possession.
2.3. For a period of two (2) years following the date of this Agreement, Agent shall not either directly or indirectly, (i) own, manage, operate, control or participate, as an officer, director, shareholder, employee, partner, member, principal or otherwise, in any business that competes with HomeDax (as defined below) EXCEPT that any participation solely as an agent or associate broker shall be allowed; or (ii) solicit or induce any officer, director, shareholder, employee, customer, broker, agent, supplier, advertiser or any other third party with whom HomeDax has a business relationship, to leave the employ of HomeDax or otherwise sever its relationship with HomeDax. For purposes of this Section 2, a business will be deemed to compete with HomeDax if it compensates real estate brokers and agents with above-market commission splits (i.e. 70% or more to the agent and 30% or less to the brokerage) and/or by requiring the payment of a flat monthly fee, desk fee or other periodic fee, with or without transaction fees for the services of the brokerage. Nothing in this Agreement shall restrict Agent from acting as a real estate broker either alone or in affiliation with any traditional real estate brokerage firm.
The Agent acknowledges that the promises and limitations set forth in this Section 2 are reasonable in scope, geographic area and duration and are necessary to protect the business of HomeDax.
This Agreement may be terminated with 30 days’ notice of intent to terminate to HomeDax and HomeDax shall have the right to charge the Independent Contractor for any outstanding charges owed to HomeDax. For the avoidance of doubt, Independent Contractor shall be liable for any monthly dues or other charges incurred during the notice period.At the time of such termination, the Independent Contractor shall submit to HomeDax a schedule of all pending and/or closed transactions for which the Independent Contractor claims commissions are or may be due (the "List"). Upon agreement by HomeDax with the contents of the List, the List shall be signed by both HomeDax and the Independent Contractor and shall constitute a finalization of any and all claims the Independent Contractor may have against HomeDax. The Independent Contractor shall be paid his/her portion of the commissions within ninety (90) days after all outstanding commissions on the List have been collected by HomeDax. Upon receipt of such payment, the Independent Contractor shall execute and deliver to HomeDax a General Release in favor of HomeDax.
The List only applies to independently sourced and executed transactions and does not apply to transactions sourced by HomeDax. Failure to produce or agree upon a list within 30 days of notice of intent to terminate being given will constitute a forfeiture of any rights to commission.
4. INDEPENDENT CONTRACTOR
4.1. It is hereby agreed that the Independent Contractor is engaged as an independent contractor for all purposes including, but not limited to, federal and state taxation, withholding, unemployment insurance and workers' compensation and that he or she shall not hold himself or herself out to be an officer, partner or employee of HomeDax and shall have no authority to bind HomeDax without the express written authority of an authorized officer of HomeDax.
4.2. The Independent Contractor, shall have sole control of the manner and means of performing under this Agreement; provided, however, the Independent Contractor shall at all times conduct himself or herself in accordance with the terms of Paragraph 1.2 above.
4.3. HomeDax will not be liable to the Independent Contractor for any expenses incurred by the Independent Contractor, or for any of the Independent Contractor's acts. In particular, the Independent Contractor shall bear his or her own expenses, including, but not limited to, office supplies, postage, messenger service, business cards, insurance, licensing fees, advertising, automobile, travel, and entertainment expenses in connection with his or her association with HomeDax.
4.4 The salesperson will not be treated as an employee with respect to the services performed by such salesperson as a real estate agent for federal tax purposes.
4.5 As an independent contractor, Agent shall be solely responsible for withholding and paying all necessary taxes and other tax related payments (such as FICA and FUTA) in respect of any income to Agent and for obtaining and payment of any workers’ compensation coverage, unemployment insurance, liability insurance, health and/or disability insurance, retirement benefits or other welfare or pension benefits, and/or other payments and expenses. Agent understands and agrees that Agent is not eligible for, and the Agent hereby waives any claim to, wages, health coverage or any other benefits provided to employees of Broker.
4.6 Agent is free to exercise or attempt to exercise his or her rights under applicable law, including the Freelance Isn’t Free Act (Administrative Code of the City of New York, §20-927 et seq.), without penalty or retaliation.
4.7 Agent has reviewed the Anti-Sexual Harassment Factsheet, completed New York City’s mandatory online Sexual Harassment Training Course as part of NYC’s Stop Sexual Harassment Act and will submit a certificate of completion within 30 days of the execution of this agreement.
As full and complete compensation for services rendered, for each transaction for which Independent Contractor has independently sourced and executed and is the procuring cause, Independent Contractor will be paid 75% of the commissions earned by them (“Commission Split”). The rules and guidelines for the commission payments are outlined below:
5.1. When the Independent Contractor performs any service where a commission is earned, the Independent Contractor shall direct the party or parties for whom the service was performed to make payment directly to HomeDax in the form of a bank or certified check made payable to “HomeDax Real Estate LLC”. The Independent Contractor agrees not to accept cash for any sale, lease or rental of real property or to direct any party to a transaction to make any check or other payment payable to Independent Contractor. Independent Contractor acknowledges and agrees that it is a violation of applicable brokerage laws for Independent Contractor to receive any payment from a transaction which is made payable to Independent Contractor, and that doing so will subject Independent Contractor to disciplinary action by the State of New York which may include suspension or revocation of Independent Contractor’s agent or associate broker’s license. If a party for whom services are performed makes payment directly to the Independent Contractor, the Independent Contractor agrees to immediately pay over to HomeDax such payment amount and the payment will thereafter be apportioned between HomeDax and the Independent Contractor in accordance with the terms of this Agreement.
5.2. If two or more Independent Contractors participate in a service, or claim to have so participated, the amount of the commission over that accruing to HomeDax will be divided between the Independent Contractors as they shall agree or in the absence of such agreement, as HomeDax determines to be fair and reasonable and such determination shall be final and binding upon the Independent Contractors. Independent Contractor acknowledges and agrees that in the event Independent Contractor works on any transaction in conjunction with any Referring Agent at HomeDax, as defined in HomeDax’s Referral Agreement, the division of any commission between such Referring Agent and Independent Contractor shall be determined exclusively by the Referring Agent and Independent Contractor hereby waives any and all claims and actions against HomeDax in connection therewith. Independent Contractor also agrees to be bound by the terms of HomeDax’s Referral Agreement, if Independent Contractor and any Referring Agent at HomeDax have entered into such agreement.
5.3. HomeDax, HomeDax’s principal brokers and HomeDax’s shareholders will not be liable to the Independent Contractor for any Commission Payment until such time as the gross commission has been received by HomeDax from the party or parties for whom the service was performed. Upon receipt of such payment by HomeDax, HomeDax will pay the Independent Contractor his or her share of the total commission in accordance with the terms of this Agreement.
5.4. If HomeDax shall refund to a party to any transaction all or any portion of the gross commission (the "Refund Percentage") giving rise to the Independent Contractor's commission payment, the Independent Contractor shall refund to HomeDax an amount equal to such commission payment previously received by the Independent Contractor multiplied by the Refund Percentage.
5.5. Any action instituted against any party for non-payment of commissions will be maintained only in the name of HomeDax. The Independent Contractor will be understood to be an agent of HomeDax only with respect to the clients and customers for whom real estate brokerage services shall be performed. The Independent Contractor shall be deemed to be an independent contractor and not an employee, partner, or servant of HomeDax. All commission payments shall be made to Independent Contractor without deduction for taxes. Taxes payable on Commissions shall be the sole responsibility of the Independent Contractor receiving those commissions.
5.6. If the Independent Contractor performs any services hereunder whereby a commission is earned, the commission shall be payable as set forth below.
Agents will be mailed a check within 7 business days on all commissions, PROVIDED THAT:
The commission payment is in the form of CERTIFIED Funds (Bank Check, Money Order or Wire Transfer) for the full amount of the commission and both a NYS Agency Disclosure Form and the New York State Housing and Anti-Discrimination Disclosure Form have been signed by the client and delivered to HomeDax.
After meeting the above requirements, Agents shall be paid 100% of the commissions earned by them, less the portion of the Commission Split payable to HomeDax (if applicable) and after any necessary payments to co-brokers. For commissions paid by personal check, attorney check, company check or other non-certified funds, commissions will not be paid until after checks have cleared (usually SEVEN (7) business days). For owner-paid commissions, HomeDax must have received payment in full prior to payment of commissions to the Independent Contractor.
The Commission, if any, shall be the sole remuneration for all worked performed by Agent for a Transaction pursuant to this Agreement or otherwise, without regard to the number of hours worked, and shall be paid without deduction for any taxes. Broker shall issue Agent an IRS Form 1099 with respect to any Commission paid pursuant to this Agreement, as appropriate.
HomeDax Exclusive and Managed Transactions
HomeDax management offers all of our agents the benefit of its significant expertise in commercial and residential sale and leasing transactions of all kinds. We are happy to offer whatever help and assistance that may be required by an individual agent to close a specific transaction. However, the commission split percentage assumes that the Agent is handling all aspects of a given transaction including sourcing the listings or buyers, meeting the client, all negotiations and paperwork, and all other aspects of the transaction necessary to close the deal. For HomeDax Exclusive listings, referrals and leads generated by HomeDax and its affiliates, and certain residential rental listings for which the landlord or management company requires the direct involvement of HomeDax management for distributing the listings, reviewing or submitting applications, or other material deal management, OR whenever an agent requests or a deal requires the involvement by HomeDax management to handle, negotiate or manage certain material aspects of the transaction, then HomeDax reserves the right adjust the Commission Split or charge a transaction fee in its sole discretion.
Agents have the opportunity to ask questions of a more tenured agent on the team ("Mentor") from time to time, based on availability. In order to compensate Mentor for spending time with new agents seeking advice ("Mentee"), HomeDax will compensate Mentor 10% of HomeDax's net commission split from each transaction completed by Mentee within 1 year of the execution of this agreement, provided that both Mentor and Mentee are still associated with HomeDax. The net commission split referenced herein shall consist of monies received by HomeDax after any applicable deductions for rebates or credits to customers, advertising expenses associated with a transaction and the commission split paid to Mentee.
Mentee is allowed to select a new Mentor only once during the above referenced period for a bona fide reason such as Mentor being unreachable or unavailable. To do so, Mentee must notify both the Mentor and HomeDax by email of their intention to do so, after which HomeDax will no longer be obligated to provide additional compensation to Mentor for transactions completed by Mentee.
I choose to participate in the HomeDax Mentorship Program and have selected at HomeDax Real Estate to be my Mentor.
No party shall have the right to assign its rights under this Agreement without the prior written consent of the other party.
All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party’s address set forth below or to such other address as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) sent by overnight courier, or (iii) sent by certified mail, return receipt requested, postage prepaid:
If to HomeDax: HomeDax Real Estate LLC, 148 Lafayette Street, New York, New York 10013
If to Independent Contractor: Notices shall be sent to the address for Independent Contractor written on page 1 of this Agreement or to such other address(es) as may be provided to HomeDax in writing from time to time.
In the event of a material breach of this Agreement, HomeDax may, at its election: (a) Terminate this Agreement and thereafter bring such action as it may deem proper to protect its rights hereunder; provided, however, that no termination of this Agreement shall affect the obligations of confidentiality as provided for herein, which shall continue forever in full force and effect; (b) Bring such action for injunctive or similar relief as may be necessary to compel the Independent Contractor to comply with his or her obligations hereunder; (c) Bring an arbitration proceeding or seek administrative or injunctive relief as it may deem proper to protect its rights; (d) Pursue any and all remedies at law or in equity including without limitation consequential or punitive damages for violation of the terms hereof.
9.1. Governing Law. This Agreement shall be governed by the laws of the State of New York without reference to principles of conflict of laws.
9.2. Indemnification. The Independent Contractor agrees to defend, indemnify and hold harmless HomeDax from and against any and all claims, demands, losses, damages, costs, liabilities and expenses (including, but not limited to, attorneys' fees and costs of suit) of whatever kind or character, on account of any actual or alleged loss, injury or damage to any person, firm or corporation or to any property, or arising out of or in connection with the acts or omissions of Independent Contractor or the services rendered by the Independent Contractor, whether or not pursuant to this Agreement.
9.3. Binding Effect: Benefit. Except as otherwise specifically provided herein, this Agreement and the HomeDax Terms and Conditions, available on www.montskyrealestate.com, contains all the legally binding understandings and representations between the parties relating to the subject matter hereof and supersedes all undertakings and agreements, if any, whether oral or in writing.
9.4. Amendments and Waivers. No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing and signed by each of the parties hereto. Except as otherwise specifically provided in this Agreement, no waiver by either party of any breach by the other of any conditions or provision of this Agreement to be performed by such other party shall be deemed a waiver of a similar or dissimilar provision or condition at the same or any prior or subsequent time.
9.5. Severability. In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason by a court or other tribunal, the remaining provisions or portions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law.
9.6. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
9.7. Arbitration. Unless HomeDax elects otherwise under Paragraph 8 of this Agreement, any disputes or controversies between any of the parties hereto respecting the subject matter of this Agreement, or otherwise, shall be settled by arbitration in the State of New York under the then existing rules of the American Arbitration Association and the award shall be final and binding upon the parties hereto, and judgment may be entered thereon by any party hereto in any court of competent jurisdiction. The cost of any arbitration proceeding shall be borne as determined by the arbitrator.
9.8. Confidentiality. The terms and conditions of this Agreement are confidential and the parties hereto may not disclose the terms and conditions hereof unless agreed to in writing and signed by each of the parties hereto.
10. PRICING AND MONTHLY FEES
The current monthly cost to the Agent shall be $99.00 per every 30 days, payable by credit card payment, ACH or other methods mutually agreed upon. There is a seven (7) day grace period on monthly payments. There will be a $10 per day late fee for ALL payments which are received or processed more than seven (7) days after when such payments are due. In addition, when Agent is associated with HomeDax, HomeDax will charge a one-time fee of $20 payable to the New York State Department of State to associate the Agents real estate license with us. The Agent must also join and pay for membership in REBNY at the Agent’s own expense since we are a REBNY-member firm, and REBNY rules require all of our agents to be members. The Company reserves the right to deduct any outstanding monthly fees, late fees or any other monies owed to HomeDax, Vendors, or REBNY from commissions or other payments due to individual Agents or to charge such payments to the credit card kept on file for each Agent. HomeDax also reserves the right to terminate the Agent at any time for non-payment of any of the above fees. HomeDax reserves the right to collect a security deposit for contractual obligations that HomeDax undertakes on behalf of the Agent. All fees are subject to change at the sole discretion of HomeDax at any time and from time to time, without notice.
Independent Contractor agrees to present all disputes to HomeDax instead of disputing charges with Independent Contractor’s bank or credit card company because such disputes cause unnecessary fees to HomeDax. Independent Contractor agrees to reimburse HomeDax for any fees charged to HomeDax as a result of Independent Contractor disputing a charge directly with their bank or credit card company.
Independent Contractor agrees to furnish the principal broker of HomeDax with required listing information (i.e. initial listing information, status updates, contract sale price etc.) as mandated by REBNY through the RLS Universal Co-Brokerage Agreement Rules and Regulations within the timeframe mandated by the REBNY and as early as reasonably possible to afford Mount Sky the time to submit this information to REBNY before the deadline. HomeDax may be fined by REBNY for not promptly reporting required information pertaining to Mount Sky property listings, and the Independent Contractor / Agent therefore agrees to reimburse HomeDax for any and all fines imposed by the REBNY as a result of the Independent Contractor’s (Agent’s) failure to herein comply. Furthermore, should any listing be submitted through the listing database of any other trade association or MLS service, the Independent Contractor / Agent agrees to comply with all timing and informational requirements as prescribed by these entities and associated policies and agrees to reimburse Mount Sky for any and all fines imposed by them for failure to comply.
IN WITNESS WHEREOF, the parties hereto have executed this Independent Contractor Agreement as of the day and year first above-written.
I HAVE READ THE ENTIRE FOREGOING INDEPENDENT CONTRACTOR AGREEMENT. I HEREBY ACCEPT AND AGREE TO EACH AND ALL OF THE PROVISIONS, COVENANTS, AND CONDITIONS CONTAINED HEREIN AND ACKNOWLEDGE RECEIPT OF A COPY OF THIS AGREEMENT.
INDEPENDENT CONTRACTOR HomeDax Real Estate LLC
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Document Name: 75% Commission Split Independent Contractor Agreement
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