1. Engagement
This Agreement is entered into on the date shown above between the Associate and Licensee identified above. Subject to the terms and conditions of this Agreement, Licensee engages Associate as an independent contractor to assist clients with the purchase and sale of real estate. Associate accepts the engagement and agrees to provide the services of a real estate associate (salesperson) to clients in the manner and subject to the conditions this Agreement provides.
2. General Terms of Engagement
A. Associate understands that he or she is entering into this Agreement as an independent contractor and not as an employee. Licensee will have no responsibility to withhold or pay any income or other taxes on Associate’s compensation or to provide any insurance, retirement or other employee benefits to Associate. Associate’s independent contractor status will define the parties’ relationship despite any contrary designation that appears on Associate’s real estate license, website, signs, business cards or other marketing or promotional materials.
B. Associate will be free to determine his or her own business hours and to choose his or her own target clients, marketing techniques and sales methods. However, Associate agrees to conduct business in compliance with the standards of conduct prescribed by Keller Williams Realty, Inc. (“KWRI”); the standards of conduct prescribed by Licensee; with local, state and federal laws that govern real estate brokerage; and with the By-Laws and Codes of Ethics of each trade or professional organization of which associate or Licensee is a member. Without limiting the generality of these commitments, Associate agrees:
(1) to comply with all laws and all KWRI and Market Center policies and guidelines, including but not limited to the KWRI Policies and Guidelines Manual, that apply to the dissemination of unsolicited e-mail (“spam”) and faxes and to the use of telephone calls to market Associate’s services or to solicit listings or prospective buyers;
(2) to adhere to and comply with the Privacy Policy and Terms of Use that KWRI publishes and prescribes from time to time for the www.kw.com website, the KWRI Intranet and any other websites owned and operated by KWRI. KWRI may, in its unfetter discretion alter, vary, change or amend the Privacy Policy or the Terms of Use as KWRI deems necessary from time to time.;
(3) to adhere to and comply with KWRI’s guidelines and restrictions that apply (i) to the registration, ownership and use of domain names for websites that display the Keller Williams trademarks or logo, (ii) to the display and use of the Keller Williams name, trademarks and logo on the Internet, and (iii) to the use of metatags and other devices that attract Internet search engines to such websites; and
(4) to adhere to and comply with all other KWRI and Market Center policies and guidelines, including but not limited to those set forth in the KWRI Policies and Guidelines Manual.
C. Associate acknowledges that he or she has read and is familiar with the KWRI Policies and Guidelines Manual. Associate also acknowledges that he or she has access to the KWRI Policies and Guidelines Manual through the KW Intranet and may access and read it at any time.
D. During the entire time that Associate remains with the Market Center, Associate agrees to list all real estate listings that Associate obtains and to handle all real estate transactions in which Associate engages in the name of KELLER WILLIAMS REALTY.
E. Associate agrees not to do anything by action, conduct, statement or association that might damage the goodwill associated with Keller Williams’ name, trademarks or reputation or cause the public to lose confidence in the Keller Williams system.
F. Associate will have no authority to incur obligations on Licensee’s behalf and promises (1) not to sign any contract, agreement, lease or note in the name of Licensee, (2) not to open or maintain any bank account or investment account in the name of Licensee, and (3) not to endorse for collection or deposit in associate’s personal account any check, money order or other negotiable instrument made payable to Licensee.
3. Compensation and Expense Allocation
A. For so long as Associate’s association with the Market Center continues, all income earned from Associate’s real estate sales activities will be accounted for and disbursed through the Market Center in accordance with the KWRI Policies and Guidelines Manual.
B. Licensee will share the commissions earned on real estate transactions in which Associate represents a client as buyer or seller in accordance with the commission splitting and capping policies that Licensee offers generally to licensed sales associates. Licensee’s current commission splitting and capping policies are described in Schedule 1 to this Agreement. Associate acknowledges that Licensee retains sole discretion to change these policies. Associate’s compensation will be payable only from closed transactions, and Associate may not draw or borrow against any compensation payment.
C. Licensee will pay the following expenses on Associate’s behalf: Agent Fee Sheet – Schedule 1
D. Associate will be solely responsible for paying the cost of his or her own (1) real estate license fees and occupational taxes, (2) insurance, including Associate’s portion of errors and omission liability insurance (“E&O Insurance”) and auto insurance, (3) transportation, (4) business cards, yard signs, brochures and other marketing materials, (5) entertainment costs, club dues and other expenses incident to the conduct of his/her services as an Associate, (6) Internet website development and maintenance, and (7) certain fees assessed by KWRI for a listing on the www.kw.com website, for access to the Keller Williams Intranet and e-mail system and for other benefits of association with the Market Center.
E. Associate agrees that if Associate does not pay fees in full when due, Licensee may deduct any unpaid amount from Associate’s commissions.
F. Associate will be eligible to participate in the Keller Williams Profit Sharing program to the same extent and on the same terms as other Keller Williams Associates. Associate must complete a Binding Sponsorship Agreement upon becoming affiliated with a Market Center. Associate understands that a Keller Williams Market Center must become profitable before it participates in the Profit Sharing program and that participating Associates must remain with the Keller Williams system for a minimum period before their benefits become vested. Associate also understands and agrees that it is Associate’s responsibility to ensure any fees related to the Keller Williams Profit Sharing program are timely paid and to ensure that Keller Williams has updated contact and payment information.
4. Limited Trademark License
For as long as Associate’s association with the Market Center continues, Associate has permission to use the KELLER WILLIAMS REALTY name and logo on his or her yard signs, business cards, letterhead and other business forms and marketing or promotional materials, subject to KWRI’s advance approval of the artwork and text. Licensee will arrange for Associate to have a listing on the www.kw.com website, but, without express permission from KWRI and compliance with any policies and procedures that KWRI imposes, Associate may not use the Keller Williams name or logo on, or in the domain name, URL or metatags of, any website with which Associate is associated or in any Internet advertisement that Associate places. When Associate’s association with the Market Center terminates, his or her permission to use the KELLER WILLIAMS REALTY name and logo will unconditionally cease, and Associate must immediately destroy all business forms that reflect Associate’s affiliation with the Keller Williams organization and must comply with KWRI’s guidelines and procedures regarding website abandonment or revisions. If, with or without KWRI’s permission, Associate has used any variation of the KELLER WILLIAMS REALTY name or initials in a domain name or social media account, Associate will immediately transfer registration of the domain name to KWRI without compensation.
5. E&O Liability Insurance; Indemnification
A. Associate agrees to pay for E&O Insurance covering errors and omissions incident to the professional services a real estate sales associate customarily provides in accordance with Licensee’s guidelines and the KWRI Policy and Guidelines Manual.
B. For purposes of Sections 5.C and 5.D, “Liability” means all liability, claims, damages, losses, costs and expenses that a party sustains or incurs as a result of or in connection with a particular incident or situation related to Associate’s actions (or lack thereof) as a licensed real estate associate (salesperson).
C. Associate agrees to indemnify and hold Licensee and KWRI harmless from and against all Liability that Licensee or KWRI incurs or suffers on account of associate’s intentional disregard or breach of any law, regulation or standard of conduct that applies to Associate’s actions or activities as a licensed real estate sales associate.
D. For risks not customarily covered by E&O insurance and for Liability arising from Associate’s negligent (unintentional) disregard or breach of any law, regulation or standard of conduct that applies to Associate’s actions or activities as a licensed real estate sales associate, Associate agrees to indemnify and hold Licensee and KWRI harmless from and against that percentage of any Liability that equals the percentage of commissions payable to Associate on the date the incident or omission that gave rise to the Liability occurred.
6. Restrictive Covenants and Confidential Information
A. Licensee recognizes and agrees that all customer names and profiles that Associate possesses at the relationship’s inception or personally develops during the time Associate is associated with the Market Center (collectively, “Associate’s Data”) constitute valuable business assets of Associate that are entitled to protection as confidential information. Licensee promises that it will not, during the time of associate’s association with the Market Center or at any later time, attempt to obtain or exploit Associate’s Data and will not attempt to stop Associate from taking his or her Associate’s Data when his or her relationship with the Market Center ends.
B. Associate recognizes that Licensee and other Market Center Associates have spent substantial time, effort, and money to develop the Market Center’s customer base and Associate team. Except for Associate’s Data, which is not covered by this Section 6.B, the names and profiles of customers who have bought or sold real estate through the Market Center and of Associates who are associated with the Market Center constitute valuable business assets of Licensee or other Associates that are entitled to protection as confidential information. Associate promises that he or she will not, during the time of Associate’s association with the Market Center or at any later time, divulge, sell, exchange or distribute to any person except Licensee, other Associates associated with the Market Center or, with Licensee’s permission, other members of the Keller Williams system the identities or profiles of any person who has bought or sold real estate through the Market Center or of any Associate that Licensee has recruited to the Market Center. Further, Associate promises not to contact any such customer or Associate or to use any such profiles except in connection with the business of the Market Center.
7. Term and Termination
A. Associate’s association with the Market Center will continue for an indefinite period. Either Associate or Licensee may terminate Associate’s association with the Market Center at any time, with or without cause or prior notice.
B. Termination of Associate’s association with the Market Center will not terminate any of the continuing rights or obligations of either Associate or Licensee under this Agreement, particularly the covenants in Sections 5 and 6.
C. If Associate’s association with the Market Center terminates for any reason, Licensee will release and allow Associate to take all solo listings and buyer agency contracts that Associate was responsible for obtaining. If Associate shares listings or agency contracts with other Associates in the Market Center, the listings or agency contracts will remain with the Market Center, but Associate will receive his or her full share of the related commission when a sale of the property closes.
D. If Associate’s association with the Market Center terminates, Licensee will continue to pay Associate’s commissions on closed transactions in accordance with the commission splitting/capping policies that applied on the date of Associate’s termination.
E. If Associate owes Licensee any Participation Fees or other amounts at the time Associate’s association with the Market Center terminates, or if any amounts become due after termination, Associate authorizes Licensee to deduct the amount due from any commissions or other amounts due Associate until Associate’s account with Licensee has been fully paid.
8. Representations
A. Associate represents to Licensee that:
(1) Associate is duly licensed as a real estate broker or salesperson (a “Real Estate Professional”) in the state in which the Market Center is located and that Associate is currently authorized to act as a Real Estate Professional in that state.
(2) Associate is not now, and has not been within the last five years, a defendant in any lawsuit alleging professional misconduct or violation of any deceptive trade practices/consumer protection law, nor is Associate currently subject to an investigation by a real estate commission or comparable oversight body.
(3) Associate expressly represents and warrants that Associate is free to associate with the Market Center and that Associate is not bound by a promise or commitment to any other real estate company, agency, association, firm, person or corporation that prohibits or prevents Associate from associating with the Keller Williams system.
(4) No representative of Licensee or KWRI has represented that Associate can earn a living selling real estate, whether working part-time or full-time. Associate recognizes that the predominant method of earning income in the Keller Williams system is through the sale of real estate, and that any recruiting-based income an Associate may earn is purely supplemental.
B. Licensee represents to Associate that Licensee or Licensee’s Operating Principal is duly licensed as a real estate broker in the state in which the Market Center is located.
9. Miscellaneous Provisions
A. If any provision of this Agreement is found to be void or unenforceable by any court or arbitration panel, the finding will have no effect on any other provision of this Agreement, and all other provisions will remain in full force and effect.
B. This Agreement, including Schedule 1 and any policies and guidelines that KWRI and/or the Market Center issues (including but not limited to the KWRI Policies and Guidelines Manual), constitutes the entire agreement and understanding between the parties and supersedes any prior agreement or understanding relating to the subject matter of this Agreement. No change, amendment or waiver of any provision of this Agreement will be binding unless in writing and signed by both Associate and Licensee.