7. Agent Independent Contractor Agreement


THIS INDEPENDENT CONTRACTOR AGREEMENT is made this _________  day of  _______________________ , 20_____  (“the Agreement”), by and between Redwood Adventure, LLC, a Virginia limited liability company trading as CENTURY 21® Redwood Realty, authorized to transact business in the District of Columbia, the State of Maryland, the State of West Virginia, and the State of Pennsylvania (“Broker”), and ______________________________________________________________________, a person duly licensed as a real estate salesperson in  _____________________________________________________ (“Salesperson”). Capitalized terms have the meanings ascribed to them in this Agreement or in the attached Glossary of Defined Terms (“Glossary”), which is incorporated herein by reference. 


WITNESSETH:


WHEREAS, Broker is engaged in business as a general real estate broker in the Commonwealth of Virginia, District of Columbia, State of West Virginia, State of Maryland, and the Commonwealth of Pennsylvania, and is qualified to and does operate a general real estate business and is duly qualified to and does procure listings of real estate for sale, lease or rental and prospective purchasers, lessees and renters thereof, and has and does enjoy the good will of and a reputation for fair dealing with the public;


WHEREAS, Salesperson is an associate real estate broker or real estate salesperson duly licensed as such in the following jurisdictions ___________________________________________________ (“Applicable Jurisdiction(s)”); 


WHEREAS, it is deemed to be to the mutual advantage of Broker and Salesperson to enter into this independent contractor relationship upon the terms and conditions hereinafter set forth below.


NOW, THEREFORE, for and in consideration of the recitals set forth above, which are incorporated herein by reference, and the promises and mutual covenants hereinafter set forth, it is mutually agreed as follows:


  1. At their sole and separate expense, Broker and Salesperson shall maintain their respective licenses to transact business as Broker or real estate salesperson in the Applicable Jurisdiction, in active status, and pay all fees, including license fees owed to any state, or local governmental jurisdiction, necessary to conduct their respective activities as real estate broker and as real estate salespersons, and neither shall be liable for such fees owed by the other, including in the event that any license issued to Broker or Salesperson by is revoked, suspended, or not renewed for any reason. If either party’s license is revoked, suspended, or not renewed, for any reason, the rights and privileges of the applicable party under this Agreement shall be automatically suspended.  If the license is not reinstated within thirty (30) days, this Agreement shall automatically terminate without action by either party.
  2. Broker agrees to make available to Salesperson Broker’s current listings, except such listing as the Broker, for valid and usual business reasons, may keep exclusively in its possession or may place exclusively in the temporary possession of some other salesperson.  Broker further agrees, upon request, to assist Salesperson in Salesperson’s work by advice, instruction, and all practical cooperation.  
  3. Broker agrees to make available its offices and facilities for Salesperson’s use in accomplishing the purposes of this Agreement.  Salesperson understands and agrees that such facilities are shared with Broker’s other independent contractors and employees. Facilities include, but are not limited to, desk space, clerical services, forms, and general office facilities Broker provides at its various office locations.  Salesperson is responsible for and shall provide at its sole cost and expense equipment and supplies such as computer, laptop, tablet, mobile phone, automobile expenses (vehicle, gas, maintenance), subscriptions, office supplies, business cards, all association and multiple listing service dues and expenses, and marketing materials.
  4. So long as this Agreement is in effect, Broker hereby grants to Salesperson a limited, non-exclusive, royalty free, paid in full license to use its Broker Intellectual Property in connection with Salesperson’s efforts under this Agreement, to include selling, leasing, renting or marketing Broker’s services and listings. Upon termination of this Agreement, Salesperson’s license to Broker Intellectual Property shall immediately expire, and Salesperson shall destroy or return any Broker Intellectual Property in Salesperson’s possession. Salesperson shall use Broker Intellectual Property only for the purposes of Salesperson’s engagement with the Broker and for no other purpose. Salesperson shall not modify any of Broker’s trademarks, trade names, service marks or logos. Salesperson herby assigns and transfers to Broker, without payment or renumeration of any kind, all right, title and interest, including copyright or any other intellectual property right, as well as all rights, causes of action related to the foregoing, and all damages, profits or recoveries, related to Broker Intellectual Property. 
  5. Salesperson agrees to work diligently and with Salesperson’s best efforts to sell, lease or rent any and all real estate listed with Broker, to solicit additional listings and clients for Broker and himself/herself, and otherwise promote the business of serving the public in real estate transactions, to the end that each of the parties hereto may derive the greatest profit possible.
  6. Salesperson agrees to conduct Salesperson’s business and regulate Salesperson’s habits so as to maintain and to increase the goodwill and reputation of Broker and Salesperson, and the Salesperson further agrees:
    1. to comply with any Policy and Procedures Manual issued by Broker;
    2. to use Broker Intellectual Property in conformity with all applicable standards for such use developed by the Broker and as the same shall exist from time to time in Broker’s sole discretion;
    3. to comply in all respects with all Applicable Laws relating to the real estate business including, without limitation, the Fair Housing Act and any applicable real estate Broker licensing statutes, rules or regulations;
    4. to conform to and abide by all Codes of Ethics, regulations and laws that are binding on or applicable to real estate brokers and salespersons operating in the Applicable Jurisdiction, including, but not limited to those issued by local real estate boards, multiple listing services and any and all local, state and national real estate associations. In the conduct of business under this Agreement, Salesperson shall abide by the standard of care applicable to real estate salespersons in the Applicable Jurisdiction;
    5. to abide by all rules and regulations relating to the making of unsolicited phone calls under Do-Not-Call rules, Do-Not-Fax rules or making of unsolicited email promulgated by the Federal Trade Commission, Federal Communications Commission, or any other state or federal governmental entity.  
    6. Nothing set forth above specifically or in this Agreement generally shall be construed as Broker’s retaining control over the means or methods by which Salesperson conducts Salesperson’s activities as a licensed professional, except to the extent Broker is required to exercise supervision under Applicable Law.  Salesperson has the right and freedom to work the hours Salesperson deems to be necessary to perform the work under this Agreement.  Thus, Salesperson sets Salesperson’s hours of work, the amount of hours/effort Salesperson expends, and the expenses Salesperson elects to incur. 
  7. This paragraph pertains  to Salesperson’s compensation for services rendered under this Agreement.
    1. Broker establishes the fees to be charged for any services that Salesperson provides under this Agreement.  
    2. Salesperson shall be compensated for Salesperson’s services on a commission only basis in accordance with the terms and conditions of this Agreement and the Compensation Rider to this Agreement, and any addenda thereto. The Compensation Riders and any addenda are incorporated into this Agreement by this reference. Since Salesperson is an independent contractor, under no circumstances is Salesperson compensated based upon the number of hours Salesperson works.  
    3. With respect to compensation payable to Salesperson in connection with real estate sales transactions, Salesperson shall not be deemed to have earned any commission until such time as the title to the property sold passes from the seller to the buyer and commissions are actually received by Broker. With respect to lease transactions, no commission shall be deemed to be earned by Salesperson until the lease agreement is fully executed, the required deposit has been received and the commissions are actually received by the Broker. 
    4. When Salesperson performs any service hereunder whereby a commission is earned, said commission shall, when collected, be divided between Broker and Salesperson, in which division Salesperson shall receive a proportionate share of said commission as set out in the Compensation Rider (and any addenda thereto) and Broker shall receive the balance. In the event of special arrangements with any client of Broker or Salesperson on a property listed with Broker or controlled by Salesperson, a special division of commission may apply, in which case the rate (percentage) of division is to be agreed upon in writing in advance by Broker and Salesperson. 
    5. In the event that two or more salespersons participate in a service, or claim to have done so, the amount of commission earned with regard to that service in excess of that accruing to Broker shall be divided between the participating salespersons according to any written  agreement between them or as set out in the written commission schedule applicable to that service. In the event of a dispute between the Salesperson and another salesperson regarding the division of a commission where the salespersons did not enter into a written agreement and no agreement can be reached regarding the division, the Broker shall determine the appropriate split and the Salesperson agrees to accept such decision. The Broker may require the salespersons to engage in mediation to resolve the dispute before the applicable local realtor commission/board. 
    6. In no case shall Broker be personally liable to Salesperson for any commissions, nor shall Salesperson be personally liable to Broker for any commissions, but when a commission shall have been collected from the persons or entities for whom the service was performed, Broker shall hold the same in trust for Salesperson and itself, such commission to be promptly divided and disbursed according to the terms of this Agreement and the applicable Compensation Rider or written agreement/fee schedule.  Any payments on promissory notes taken as commission shall be collected by the Broker when paid and shall be disbursed to the proper parties as and when payments are received.
  8. Broker shall not be required to give any draws or other advances against future commissions to Salesperson. In the event Salesperson receives advances, draws, monthly marketing assistance, or other payments (for example, commissions paid under a Commission Cap Program) and Salesperson receives sums to which Salesperson was not otherwise entitled, Salesperson hereby authorizes Broker to take any one of the following actions: deduct such sums from future commissions, charge Salesperson’s credit card, or take any other action available under Applicable Law to recover such unearned sums, all as permitted by Applicable Law.  
  9. This paragraph pertains to litigation and controversies.
    1. Salesperson hereby grants to Broker the authority to (i) institute an action in arbitration and/or in any court of competent jurisdiction concerning commissions or other matters related to the conduct of Broker’s real estate business, including as such business was conducted by Salesperson; (ii) to conduct the same to a final decision, (iii) to negotiate settlements; (iv) to defend actions, suits or proceedings pertaining to said real estate business; and (v) to employ counsel and to conduct said matters to final consummation in such manner and upon such terms as to Broker seem expedient or desirable.
    2. In the event any transaction in which Salesperson is involved results in a dispute, arbitration, litigation or legal expense, Salesperson shall cooperate fully with Broker.  Broker and Salesperson shall share all expenses, including attorney’s fees, costs and expenses, connected therewith in the same proportion as they would normally share the commission resulting from such transaction if there had been no dispute, arbitration or litigation. Salesperson acknowledges and understands that it is the policy of Broker to avoid litigation wherever possible and Broker, within its sole discretion, may determine whether or not any litigation of dispute shall be prosecuted, defended, compromised or settled and the terms and conditions of any compromise or settlement, or whether or not legal expenses shall be incurred.
    3. In the event of a disagreement or dispute between Salesperson and Broker, the parties will first attempt to resolve the dispute through mediation before the applicable local realtor association.  If the parties are unable to resolve the dispute through mediation, the parties agree to submit the dispute for resolution through binding arbitration before a single arbitrator with the McCammon Group and under its arbitration rules.  The parties shall bear the costs and fees associated with arbitration in accordance with the same percentage applicable to the division of commissions under the Compensation Rider with the proviso that the prevailing party in such arbitration may be awarded its attorney’s fees, costs and expenses incurred in such arbitration by the arbitrator. The Broker reserves the right to file an injunction in any court of competent jurisdiction to enforce any of the provisions of paragraph 19b of this Agreement.  
  10. Salesperson shall have no authority to bind, obligate or commit Broker by any promise or representation unless specifically authorized by Broker in writing in a particular transaction; provided, however, that Salesperson shall be and is hereby authorized to prepare and acknowledge contracts of sale, leases, and listing agreements for and on behalf of Broker as Agent or Principal Agent, so long as the commission involved in such transaction is not less than determined for such transaction or service by Broker and provided that such contracts and agreements comply with Applicable Law and standards of conduct.
  11. It is agreed that Salesperson shall obtain at least one automobile for Salesperson’s conduct of business under this Agreement and that Salesperson pay all expenses thereof and that Broker shall have no responsibility therefor.  Salesperson shall obtain appropriate personal automobile insurance on such vehicle and its use and shall list Salesperson’s vehicle as “Business” on Salesperson’s personal automobile insurance policy. To that end, Salesperson agrees to carry public liability insurance upon his automobile with the minimum limits of Two Hundred Fifty Thousand Dollars ($250,000) for each person per occurrence and Five Hundred Thousand Dollars ($500,000) for each occurrence and with property damage limits of One Hundred Thousand Dollars ($100,000) per occurrence and shall annually provide Broker with proof of such coverage, including that the vehicle is for Business use.  Failure to obtain and maintain such insurance shall be grounds for the immediate termination of this Agreement.
  12. Salesperson shall take all reasonable efforts to protect his or her clients from fraud committed by third parties, including, but not limited to, instructing clients to exercise caution when divulging sensitive information over email; instructing clients to confirm all email requests for sensitive information by speaking with Salesperson, either in person or over telephone; installing appropriate anti-virus software on any computer, tablet, or mobile device Salesperson used in the course of Salesperson’s duties under this Agreement.  Salesperson will change, on at least a calendar quarter basis, complex passwords on all accounts used for business purposes and, where possible, shall use two-factor authentication for accounts used for business purposes.  If Broker offers, Salesperson shall take cybersecurity training.
  13. Salesperson hereby covenants and agrees to indemnify and hold Broker, its members, mangers, officers, agents and employees, harmless from and against all liability that Broker incurs or suffers on account of Salesperson’s intentional disregard or breach of any law, regulation or standard of conduct that applies to Salesperson’s actions or activities as a licensed real estate sales associate. Furthermore, Salesperson shall indemnify Broker and hold it harmless from any loss, claim or damage to persons or property, arising out of this Agreement or the services provided, including attorneys’ fees, to the extent that such loss, claim or damage is caused by the intentional acts of Salesperson or from Salesperson’s breach of any term of this Agreement or from Salespersons negligence in the performance of Salesperson’s activities under this Agreement. This includes, but is not limited to, a circumstance where a third party brings action against Broker, arising from Salesperson’s violation of laws, rules, regulations, code of ethics, breach of standard of care, this Agreement or Broker’s policies/procedures applicable to Salesperson, Salesperson shall reimburse Broker for any costs, fees, fines, damages, expenses or penalties (including attorney’s fees, expert witness costs, etc.), Broker incurs as a result of such Salesperson’s actions.  The parties shall notify each other of any claims made against them in respect of Salesperson’s activities under this Agreement.  Salesperson agrees to submit any claims made against Salesperson in connection with Salesperson’s activities under this Agreement and to notify Broker of same.  The obligations of this paragraph survive the termination of this Agreement for any reason.
  14. Independent Contractor Relationship.  It is expressly agreed by the parties that this Agreement is made and entered into by the Salesperson, who is an independent contractor, and the Broker, which is a limited liability company, and it is expressly agreed that the Salesperson is an independent contractor. Broker will file the appropriate version of the federal form 1099 reporting independent contractor income. Salesperson will file all required federal and state self-employment and estimated tax returns, and federal and state income tax returns on a timely basis.  Salesperson will maintain workers’ compensation insurance if required by Applicable Law. Salesperson will pay all taxes owed on amounts paid to Salesperson by the Broker in a timely manner.
    1. This Agreement does not constitute a hiring or employment by either party.  The parties hereto are and shall remain independent contractors bound by the provisions of this Agreement.  This relationship between the parties shall not be construed as a partnership and neither party hereto shall be liable for any obligation incurred by the other except as provided herein.  
    2. Broker shall not be and is not responsible to withhold from commissions due Salesperson any amounts for income taxes, payroll taxes, including state or Federal FICA or FUTA, or any other sales taxes or fees due and owing in connection with commissions paid to Salesperson.  
    3. Salesperson is not entitled to participate in Broker’s benefit plans of any kind or nature, including but not limited to health insurance, vacation leave, sick leave, or any other paid time off, or retirement benefits.
    4. Salesperson shall not be covered by Broker’s workers’ compensation or unemployment compensation insurance policies unless Broker is required to do so by Applicable Law and in such case, the requirement to pay such premiums shall not affect the independent contractor relationship created in this Agreement. 
  15. Salesperson acknowledges that the files and documents pertaining to listings, Listing Content, leads, and transactions and all other forms created by Broker are Broker’s property, constitute trade secret or proprietary/confidential information, all of which shall be returned to Broker immediately upon request or the termination of this Agreement. Broker’s method of conducting business, including but not limited to solicitation or generation of leads or listings, relationship with vendors such as mortgage lenders, settlement agents, etc. and compensation structures, and other methods of conducting business are confidential and proprietary and constitute trade secrets and are entitled to all of the protections afforded by Applicable Law. Salesperson shall not access or use Broker’s trade secrets or confidential information for any purpose other than conducting of the business permitted under this Agreement. Accordingly, Salesperson covenants and agrees that Salesperson shall not, either during the term of this Agreement or at any time thereafter, use, disclose, or access any of Broker’s confidential and trade secret information for any purpose other than for the conduct of business under this Agreement.  
  16. It is agreed that Salesperson shall not conduct any business other than Salesperson’s activities authorized under this Agreement from any office of Broker and shall not use the Broker’s facilities (telephones, secretarial service, office space and the like) except that which is directly related to the sale, listing and general brokerage services being rendered by Salesperson through and under this Agreement and for the benefit of Salesperson and the Broker.
  17. The Salesperson shall be free to engage in any other unrelated business, but the Salesperson shall not be permitted, while this Agreement is in force, to engage in any transaction or conduct which constitutes a conflict of interest with Broker such as, but not limited to, selling, leasing or renting real estate for any other real estate broker or brokers, providing leads to any other parties, withholding information, leads or prospects for personal or family gain or any other activity which may reasonably be deemed to not be in the best interest of Broker.  The Salesperson may not make sales in Salesperson’s own name or own behalf except purchase and sales of property for Salesperson’s own family prime residential use.
  18. This paragraph relates to the circumstances under which this Agreement and parties’ independent contractor relationship may be terminated. 
    1. This Agreement and the relationship created hereby may be terminated without cause by either party hereto at any time upon thirty (30) days’ prior written notice given to the other, but the rights of the parties to any commissions which accrued prior to said notice shall not be divested by any such termination of this Agreement.  
    2. On the occurrence of any of the following circumstances, Broker may, in its sole discretion, terminate this Agreement immediately:
      1. Election of Broker to sell its entire business or to cease doing business at the office location at which Salesperson primarily performs Salesperson’s services;
      2. Salesperson’s breach of any of the terms and conditions of this Agreement;
      3. Salesperson’s failure to maintain a valid and current real estate license in the Applicable Jurisdiction;
      4. Salesperson’s failure to comply with any Applicable or regulation of any Real Estate Board or any other local association of Realtors, which regulates Salesperson;
      5. The filing by or against Salesperson of any petition under any law for the relief of debtors; and
      6. Conviction of Salesperson of any crime, other than minor traffic offenses.
    3. It is understood and agreed by Salesperson that all listing agreements are the property of Broker and will remain with the office after termination of this Agreement, likewise any potential buyers introduced to Salesperson by Broker’s office, Broker’s advertising, Broker’s contacts or sphere of influence, or Broker’s general reputation shall be returned to Broker and Salesperson shall not contact such party or interfere with their relationship to Broker in any way subsequent to the termination of this Agreement.  At the sole discretion of Broker’s management, the departing Salesperson may be given a share of the fees from transactions closed or conveyed subsequent to termination.  
    4. If, upon termination of this Agreement, the Salesperson owes any debt to Broker or has incurred any liability herein, including under any Compensation Rider, Broker may demand immediate payment of such debt, charge, Salesperson’s credit card maintained on file, or offset any such debts or liabilities with all or portions of monies that may become due from Broker to Salesperson.  This provision shall survive the termination of this Agreement for any reason.
  19. This paragraph pertains to protection of Broker’s business.
    1. It is recognized that the real estate business is a highly competitive business and that, in an effort to assist the Salesperson, Broker will reveal to the Salesperson considerable amounts of information which is confidential or trade secret in nature and of great value to Broker.  It is further recognized that Broker has a superior system of training salespeople and that such training costs Broker considerable time, effort, and money and Broker provides such in-house training at no charge to Salesperson.  It is still further recognized that, in the ordinary course of business, Salesperson will become privy to Broker’s confidential and trade secret information such as, but not limited to, client lists, vendor/partner lists, referral sources, competitive strategy, financial data, relocation techniques, and other critical operating data which, if they should become known to the Broker’s competition, could have an adverse effect on the Broker’s business. Accordingly, Salesperson agrees to maintain such information as trade secret or confidential to refrain from its access, use, or disclosure in any manner for personal or business gain or advantage, and not to reveal it to others under any circumstances for a period of one year after the termination or expiration of this Agreement and/or the relationship of the parties created in this Agreement.  Notwithstanding the foregoing, Salesperson’s obligation with respect to information that constitutes trade secret information under Applicable Law shall not terminate or expire until such time as such information is no longer entitled to the protection for trade secret information through no fault of Salesperson. 
    2. In the event of threatened or actual breach of this provision, Broker shall be entitled to an injunction restraining Salesperson from continuing or breaching this provision.  The Broker shall be entitled to an award of its attorney’s fees, expenses, and costs incurred in such action. Nothing herein shall be construed as prohibiting the Broker from pursuing any other available remedies for such breach, including, but not limited to, the recovery of damages from Salesperson. 
    3. The provisions of this paragraph 20 shall survive the termination of this Agreement for any reason.  The provisions of this paragraph constitute independent covenants such that the existence of any claim or cause of action Salesperson may have against Broker, whether predicated on this Agreement, including any Compensation Rider, shall not constitute a defense to the Broker’s enforcement of this paragraph 20 and its sub-paragraphs.  
  20. Words used herein regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter as the context requires.  
  21. This Agreement supersedes all prior contracts or agreements between the parties hereto pertaining to the subject matter herein.
  22. The laws of the Commonwealth of Virginia shall govern this Agreement, without reference to its conflict of laws rules.  The parties agree that this Agreement and all the terms and conditions contained herein have been fully reviewed and negotiated by the parties.  Thus, the parties agree that any principle of construction or rule that provides that in the event of any inconsistency or ambiguity in the Agreement, that the Agreement shall be construed against the drafter shall not apply to the interpretation, construction or enforcement of this Agreement.  
  23. This Agreement shall be binding upon and the benefits shall inure to the heirs’ successors of the parties hereto. This Agreement is personal to the parties and may not be assigned, sold or otherwise conveyed or transferred by either of them.
  24. In the event of any conflict between this Agreement and any Compensation Rider that is incorporated herein by reference, this Agreement shall control.  

IN WITNESS WHEREOF, the parties hereto have signed this Agreement the day and year first above written.



Broker:  _______________________________Date:  ___________________________



By:  _______________________________

  Broker/Sales Manager Name



Salesperson   ______________________________Date:  ___________________________

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