COLDWELL BANKER RESIDENTIAL REFERRAL SALES ASSOCIATES INDEPENDENT CONTRACTOR AGREEMENT

Transcription

1 COLDWELL BANKER RESIDENTIAL REFERRAL SALES ASSOCIATES INDEPENDENT CONTRACTOR AGREEMENT 1. PARTIES The parties to this agreement are ( SALES ASSOCIATE ) and Coldwell Banker Residential Referral Associates ( COLDWELL BANKER ). 2. INTRODUCTION The purpose of this agreement is to establish the terms under which SALES ASSOCIATE shall provide services as an independent contractor for COLDWELL BANKER. COLDWELL BANKER and SALES ASSOCIATE agree as follows: 3. LICENSE STATUS COLDWELL BANKER is a licensed real estate broker and SALES ASSOCIATE is a licensed Referral Sales Associate in the State of Arizona. 4. COMPLIANCE WITH LAW SALES ASSOCIATE shall comply with all laws, rules and regulations, including the real estate licensing laws of the state and those of any other local governing entities. 5. COMPLIANCE WITH POLICY SALES ASSOCIATE acknowledges that he or she has read, understands and subscribes to the COLDWELL BANKER Policy and Procedures Memorandum Addendum A, which is incorporated herein by reference in its entirety. SALES ASSOCIATE and COLDWELL BANKER agree that their association shall be governed by the terms of this Agreement and Policy and Procedures Memorandum-Addendum A. 6. INDEPENDENT CONTRACTUAL RELATIONSHIP It is the intention of the parties to establish an independent contractual relationship rather than a hiring or employment. SALES ASSOCIATE shall retain sole discretion and judgment as to the manner and means of accomplishing the desired result of referring prospects for real estate purchases and sales to COLDWELL BANKER consistent with the terms of the Policy and Procedures Memorandum Addendum A. SALES ASSOCIATE will not be treated as an employee for state or federal tax purposes with respect to the services rendered under this agreement. COLDWELL BANKER shall, to the extent it is legally required to do so, file all necessary tax information and reports to the federal, state and local taxing authorities, including an Internal Revenue Service Form 1099 to report the income of SALES ASSOCIATE arising under this agreement. COLDWELL BANKER shall not withhold income taxes, social security taxes, disability or unemployment insurance payments, or any other assessments or taxes from referral fees of SALES ASSOCIATE unless required to do so by law, and SALES ASSOCIATE will not subsequent to the termination of this contract be entitled to unemployment compensation benefits. The SALES ASSOCIATE agrees and understands that as a self-employed independent contractor, he or she will receive no minimum salary or sick pay from COLDWELL BANKER or its parent company or affiliates and will not receive any type of benefit such as hospitalization, life insurance, worker s compensation insurance, etc., from COLDWELL BANKER. The SALES ASSOCIATE further does not have to consult with COLDWELL BANKER regarding the scheduling of any time off or vacation and COLDWELL BANKER shall not require SALES ASSOCIATE to keep regular hours or perform services in or out of COLDWELL BANKER facilities. 1

2 7. REAL ESTATE ACTIVITIES OF SALES ASSOCIATE LIMITED TO COLDWELL BANKER (A) SALES ASSOCIATE shall act solely as a Referral SALES ASSOCIATE with COLDWELL BANKER and shall not engage in any other real estate activities for which a license is required with any other individual or entity. (B) SALES ASSOCIATE hereby agrees to strictly limit his or her real estate activities to the referral of prospective buyers or sellers. SALES ASSOCIATE agrees not to list properties for sale or lease, or sell or show properties for the purpose of selling or leasing said properties. See Policy and Procedures Memorandum-Addendum A regarding selling personally owned properties. (C) SALES ASSOCIATE hereby agrees not to refer prospects or referrals directly to any agent without notifying COLDWELL BANKER prior to referral placement. 8. DUTIES OF SALES ASSOCIATE agrees to: (A) Conduct any activity requiring a real estate license strictly in accordance with this Agreement and the Policy and Procedures Memorandum-Addendum A, as well as rules and regulations of COLDWELL BANKER as may be promulgated from time to time; (B) Refer all prospective buyers and sellers in the manner prescribed by COLDWELL BANKER in the Policy and Procedures Memorandum-Addendum A; (C) Notify COLDWELL BANKER of any change of referral status (i.e. sale, closing, cancelled referral, etc.) (D) Not create or impose any liability on COLDWELL BANKER; (E) Transfer SALES ASSOCIATE's real estate license to COLDWELL BANKER as required by the Arizona Department of Real Estate. 9. DUTIES OF COLDWELL BANKER agrees to: (A) Make available information and training to improve the prospecting skills of the SALES ASSOCIATE. Attendance is not mandatory; (B) Provide a process for facilitating SALES ASSOCIATE S referrals of prospective buyers and sellers; (C) (D) (E) Coordinate with affiliated and cooperating brokers for the follow-up necessary to fulfill the terms of this agreement; Provide confirming data to SALES ASSOCIATE regarding each referral; Pay promptly the SALES ASSOCIATE upon receipt by COLDWELL BANKER the fees resulting from a successful referral transaction from SALES ASSOCIATE, as provided in the Policy and Procedures Memorandum-Addendum A. COLDWELL BANKER shall not be liable to SALES ASSOCIATE for any fees not collected by 2

3 COLDWELL BANKER, nor shall COLDWELL BANKER be obligated to pursue collection of any such fees on behalf of SALES ASSOCIATE. COLDWELL BANKER shall be the sole judge of whether any transaction shall have been initiated by SALES ASSOCIATE, and in case of any dispute between SALES ASSOCIATE and any other person, the decision of COLDWELL BANKER with respect to such dispute shall be final and binding upon SALES ASSOCIATE. Suits for commission shall be maintained only in the name of COLDWELL BANKER. COLDWELL BANKER shall have the absolute right in its discretion to determine the amounts to be paid to or received from any co-broker. Commissions are deemed to have been earned only after COLDWELL BANKER has received payment in certified or collected funds. 10. ARBITRATION (A) Agreement to Arbitrate Disputes. COLDWELL BANKER, on behalf of itself and its employees, and SALES ASSOCIATE, on behalf of him or herself, and any assistant(s) employed or utilized by SALES ASSOCIATE, agree to resolve any and all timely and legally cognizable controversies, disputes, or claims of any nature in any way arising out of or relating to this Agreement or the relationship between the Parties, including without limitation the termination of the Agreement (hereafter, a Claim or Claims ), exclusively by mandatory, binding, individual arbitration. This agreement to arbitrate covers Claims of any nature, whether at law or equity, statute or common law, including without limitation Claims, if any, under any federal, state, or local anti-discrimination laws, wage and hour laws, or any other labor protective laws. This agreement to arbitrate, however, does not cover disputes or claims which either COLDWELL BANKER or SALES ASSOCIATE may have against a COLDWELL BANKER client, customer, or other brokerages or vice versa. COLDWELL BANKER and SALES ASSOCIATE acknowledge and agree that they are hereby waiving any rights to trial by jury, judge, or any judicial tribunal in any action, proceeding or counterclaim brought by either of the parties against the other in connection with any matter whatsoever arising out of or related to this Agreement or their relationship. This Section 10 is not intended to cover any Claims that cannot be compelled to arbitration under applicable law. (B) Mandatory Dispute Resolution Process Prior to Arbitration. Each party shall notify the other of any dispute prior to filing a Claim in arbitration. COLDWELL BANKER will notify SALES ASSOCIATE of a dispute by informing SALES ASSOCIATE in writing at the branch sales office where he/she is associated (or at SALES ASSOCIATE S last known address if no longer associated). SALES ASSOCIATE will notify COLDWELL BANKER of any dispute in writing in accordance with Paragraph [10 (L)] below. Within a reasonable period of time of such notice, the Parties (and their counsel should they so choose) shall meet informally, either in person or by telephone to attempt to resolve the dispute in good faith. (C) Arbitration Procedural Rules. In the event the Parties are unable to resolve their dispute under Paragraph [10(B)], either party may initiate an arbitration under the then-current JAMS Streamlined or Comprehensive Arbitration Rules and Procedures. The applicable arbitral rules are available for review at (under the Rules/Clauses tab). 1. The Parties will make reasonable efforts to agree upon a mutually satisfactory arbitrator chosen from the JAMS panels. If the Parties are unable to agree upon an arbitrator, 3

4 COLDWELL BANKER will request from JAMS a list of qualified arbitrators. The Parties will then select an arbitrator in accordance with JAMS Streamlined or Comprehensive Arbitration Rules and Procedures. Unless otherwise mutually agreed by the Parties, the arbitrator shall be a practicing attorney with at least 15 years of experience and at least five years of experience as an arbitrator. 2. COLDWELL BANKER and SALES ASSOCIATE agree that the arbitration will be conducted by a single arbitrator in the JAMS office (as applicable) closest to the county in which SALES ASSOCIATE is or was affiliated with COLDWELL BANKER (or such other location as is mutually agreed to by the Parties). 3. The law the arbitrator will apply in resolving the Claims asserted will be determined by the nature of the Claims raised. In the event that there is a dispute regarding which substantive laws apply, the arbitrator shall decide that issue. 4. The Parties agree that, to the greatest extent permitted by applicable law, all proceedings before the arbitrator will remain confidential between the Parties, including but not limited to any depositions, discovery, pleadings, exhibits, testimony, or award. The Parties will inform third parties (including witnesses) necessary to the proceeding that the proceeding is confidential, and use reasonable efforts to secure that individual s agreement to maintain such confidentiality. The requirement of confidentiality, however, will not apply to the extent necessary to confirm an arbitral award and enter a judgment thereon in an appropriate court, or to appeal such arbitral award to an appropriate court. (D) Injunctive or Other Interim Relief. COLDWELL BANKER or SALES ASSOCIATE may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under this Paragraph [10(D)], seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights of that party, pending the establishment of the arbitral tribunal. (E) Remedies, Written Decision, Fees. Final resolution of any dispute through arbitration may include any remedy or relief available under applicable law. At the conclusion of the arbitration, if either party requests, the arbitrator will issue a written decision that sets forth the essential findings and conclusions upon which the arbitrator s award or decision is based. Any costs unique to arbitration (such as the costs of the arbitrator and room fees) will be paid by COLDWELL BANKER and the parties will otherwise bear their own fees and costs, including attorney s fees and expert fees. A successful party may make application to the arbitrator for an award of fees and/or costs and the arbitrator may award such fees and costs consistent with applicable law. (F) Application of FAA and Questions for the Arbitrator. COLDWELL BANKER and SALES ASSOCIATE agree that the Federal Arbitration Act, 9 U.S.C. 1 et seq. ( FAA ) governs the enforceability, interpretation, and implementation of any and all of the arbitration provisions in Paragraphs [9 and 10] 1 and provides the procedures for conducting arbitration to the extent not provided for in Paragraphs [9 and 10]. Judgment upon the award rendered by the arbitrator may be entered by any court of competent jurisdiction. Gateway questions, including but not limited to arbitrability (that is whether an issue is subject to arbitration under Paragraph [10]) and the 4

5 enforceability and interpretation of this Paragraph [10] shall be decided by the arbitrator, except that any issues related to the enforceability and/or interpretation of Paragraph [10(G)] shall be decided solely by a court of law having jurisdiction over the issue. Claims filed must be timely, including but not limited to within the time set by the applicable statute(s) of limitations. (G) Class Action Waiver. The Parties agree that all Claims pursued against each other will be on an individual basis. To that end, and to the extent permitted by applicable law, COLDWELL BANKER and SALES ASSOCIATE hereby each agree to waive their right to commence, to become a party to, or to remain a party to or participant in, any group, representative, class, collective, or hybrid class/collective action in any court, arbitration proceeding, or any other forum, against the other. The Parties agree that any Claim by either against the other shall be heard exclusively in arbitration without joinder of parties or consolidation of such Claim with any other person or entity s Claim, except as otherwise agreed to in writing by COLDWELL BANKER and SALES ASSOCIATE. For purposes of this Paragraph [10], a Claim shall include claims, counterclaims, crossclaims, and third party claims, of any nature. (H) Right to Enforce or Challenge Class Action Waiver In Court. All parties agree that Paragraph [10] does not limit any party s right to initiate an action in state or federal court enforcing or challenging the enforceability of the group, representative, class, collective, or hybrid action waiver set forth herein. If SALES ASSOCIATE chooses to exercise that right, COLDWELL BANKER will not retaliate against SALES ASSOCIATE for doing so. COLDWELL BANKER, however, reserves the right to oppose such a challenge to enforcement of Paragraph [10(G)]. (I) Severability of Arbitration Provisions. If the waivers in Paragraph [10(G)] are found to be unenforceable with respect to any particular Claim, then that Claim shall not proceed in arbitration but rather will be resolved in a court of competent jurisdiction. If that happens, however, the arbitration provisions in this Paragraph [10] will still be fully enforceable as to all other Claims, which must be resolved in arbitration on an individual basis. Any arbitrable Claim(s) will be resolved before non-arbitrable Claim(s), which will be stayed, unless COLDWELL BANKER and SALES ASSOCIATE agree otherwise. (J) Right to Opt Out of Arbitration Provisions. SALES ASSOCIATE may choose to enter into the Agreement with COLDWELL BANKER and the independent contractor relationship contemplated thereby without consenting to this Paragraph [10]. Should SALES ASSOCIATE decide to opt out of Paragraph [10] and not be bound by it, SALES ASSOCIATE must send an to icaoptout@nrtllc.com within 30 days from the date SALES ASSOCIATE executes this Agreement containing SALES ASSOCIATE s full name and branch location, and stating that SALES ASSOCIATE wants to opt out of Paragraph [10] of the Agreement or words to that effect. This must be received within 30 days from the date SALES ASSOCIATE executes this Agreement to be effective. If SALES ASSOCIATE follows the instructions in this paragraph for opting out of Paragraph [10], none of the arbitration provisions of Paragraph [10] will be binding on either SALES ASSOCIATE or COLDWELL BANKER, but all other provisions of the Agreement will remain in effect. If SALES ASSOCIATE does not timely opt out of Paragraph [10] pursuant to this paragraph, all provisions of the Agreement, including Paragraph [10], will be binding on SALES ASSOCIATE and COLDWELL BANKER. 5

6 (K) SALES ASSOCIATE Understands His/Her Agreement to Arbitrate. SALES ASSOCIATE represents and warrants that he/she understands the meaning and effect of this agreement to arbitrate, has been provided reasonable time and opportunity to consult with legal counsel regarding this agreement to arbitrate (L) Except as otherwise provided in Paragraph [10(J)], all notices, requests, demands, and other communications required or permitted to be given under this Agreement shall be deemed to have been duly given if in writing and delivered personally, mailed first-class postage prepaid, or by registered or certified mail to the address listed below if to SALES ASSOCIATE and if to COLDWELL BANKER, to the Branch Manager. 11. EXPENSES SALES ASSOCIATE and COLDWELL BANKER agree during the term hereof at their own separate expense, to keep their respective real estate licenses in full force and effect, and SALES ASSOCIATE agrees to pay for his or her own licenses, professional dues and fees, cost of mailing, telephone or transportation, taxes and contributions payable to federal, state, county or local government agencies or any other government instrumentalities arising out of his or her activities as SALES ASSOCIATE. 12. REAL ESTATE BOARDS SALES ASSOCIATE acknowledges that he or she has been informed by COLDWELL BANKER that COLDWELL BANKER is not a member of any Board of Realtors or any Multiple Listing Service and has no intention of becoming such a member. 13. CONFIDENTIAL INFORMATION All listing agreements and listing and sales files maintained by either COLDWELL BANKER or SALES ASSOCIATE and all correspondence, customer lists, papers, documents, computer software, marketing, training, educational, and/or any other materials, in whatever form, including copies thereof made by or for SALES ASSOCIATE ( Proprietary Documents ) either furnished to SALES ASSOCIATE by COLDWELL BANKER, or otherwise coming into the hands of SALES ASSOCIATE, which relate to COLDWELL BANKER business, are confidential business information and the property of COLDWELL BANKER. SALES ASSOCIATE shall not interfere with COLDWELL BANKER s contractual rights under such agreements and documents, and agrees that in the event the association between COLDWELL BANKER and SALES ASSOCIATE should terminate for any reason, SALES ASSOCIATE shall return all such Proprietary Documents to COLDWELL BANKER. SALES ASSOCIATE further agrees, during the term and after termination of this Agreement, not to furnish or to disclose to any person, firm, company, corporation, or other enterprise, any information as to COLDWELL BANKER s clients, customers, properties, prices, terms, policies, trade secrets, relationships, or any other information, generally concerning COLDWELL BANKER and its business, without COLDWELL BANKER s prior written consent. After said termination of this Agreement, SALES ASSOCIATE shall not use to his or her own advantage, or to the advantage of any other person or entity, any such Proprietary Documents or confidential information. Proprietary or Confidential Information may be disclosed in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law or if the disclosure is made in a complaint or other document filed in a legal proceeding, if such filing is made under seal. Moreover, a party who initiates a legal proceeding for retaliation by COLDWELL BANKER for reporting a suspected violation of law may disclose the trade secret to the attorney of said party and use the trade 6

7 secret information in the legal proceeding, if the party files any document containing the trade secret under seal and does not disclose the trade secret, except pursuant to an order issued in the proceeding. 14. LIMITATION ON AUTHORITY SALES ASSOCIATE shall have no authority to bind COLDWELL BANKER by any promise, statement, or representation unless specifically authorized to do so in writing by COLDWELL BANKER. COLDWELL BANKER shall not be liable to SALES ASSOCIATE or responsible to other persons or entities for any expenses incurred by SALES ASSOCIATE or for any of SALES ASSOCIATE s acts, except as specifically required by law. COLDWELL BANKER must approve any and all advertising, ecards or mailers before being circulated. 15. INDEMNIFICATION SALES ASSOCIATE agrees to indemnify COLDWELL BANKER and hold it harmless from all claims, demands and liability, including costs, attorney fees and damages of any nature, actual or punitive, to which COLDWELL BANKER may be subjected by reason of any action taken or omitted by SALES ASSOCIATE, or misrepresentations, promises or untrue statements made by SALES ASSOCIATE during the life of this agreement for which a claim is made against COLDWELL BANKER. 16. LEGAL DISPUTES In the event any transaction in which SALES ASSOCIATE is involved results in a dispute, litigation, or legal expense, SALES ASSOCIATE shall cooperate fully with COLDWELL BANKER. It is understood by SALES ASSOCIATE that it is the policy of COLDWELL BANKER to avoid litigation whenever possible, but should a transaction which SALES ASSOCIATE has handled be the subject of litigation or dispute, even though SALES ASSOCIATE is not specifically named as party therein, the decision whether or not any such litigation in dispute shall be prosecuted, defended or settled, shall be the decision of COLDWELL BANKER. In the event the decision of COLDWELL BANKER is not satisfactory to SALES ASSOCIATE, he or she shall have the right to select legal counsel separate from COLDWELL BANKER and in such event COLDWELL BANKER would not proportionately share the expenses incurred, but each would be responsible for their own individual expenses and/or liabilities so incurred. 17. TERM/TERMINATION This agreement shall continue in full force and effect until terminated by either party hereto. Either party, at will, may terminate this agreement by notifying the other party in writing of the desire to so terminate. The rights of the parties to any commission or division thereof, which accrued prior to the time of said notice, shall not be divested by the termination of this agreement. Failure of either party to keep a license in full force and effect shall cause this agreement to terminate automatically as of the date when such license expires, is revoked, or is cancelled. Said SALES ASSOCIATE will receive fees from COLDWELL BANKER on those referrals pending as set forth in the Policy and Procedures Memorandum Addendum A. 18. GOVERNING LAW This agreement shall be governed by and interpreted according to the laws of the state in which services pursuant thereto are to be performed. 19. SUCCESSORS/ASSIGNMENT This agreement shall accrue to the benefit and be binding upon the successors in interest of COLDWELL BANKER. However, this agreement is based on the personal 7

8 services of SALES ASSOCIATE and SALES ASSOCIATE shall not delegate or assign any of SALES ASSOCIATE s rights or duties hereunder without the prior written consent of COLDWELL BANKER. 20. ENTIRE AGREEMENT This Agreement and the COLDWELL BANKER Policy and Procedure Memorandum-Addendum A, that is made a part hereof, constitute the entire agreement of the parties. This agreement may be modified in writing and signed by both parties. COLDWELL BANKER may modify the Policy and Procedures Memorandum-Addendum A unilaterally upon notice to SALES ASSOCIATE. Any such modification shall be prospective only. IN WITNESS WHEREOF, this agreement has been executed on the date first written. Dated: CBRRA Referral SALES ASSOCIATE Print Name Signature Dated: CBRRA Designated Representative Print Name Signature A copy of the executed CBRRA Independent Contractor s Agreement and Addendum A will be scanned to you via upon receipt. Please retain for your records. 8