1. Contractor agrees to work for Broker as an Independent Contractor, and is not an employee: however, Contractor understands the Broker is legally accountable for the activities of the Contractor. Unless otherwise provided herein, all costs and obligations incurred by Contractor in conducting its independent business shall be paid solely by Contractor, who will hold Broker harmless from any and all such costs and obligations. Contractor will act independently as to the management of its time and efforts and will be solely responsible for all its own expenses, such as Association dues, licensing renewals, cellular telephones etc., as such are incurred.
2. Broker services are offered to support Independent Contractor in running his/her own business. As such, Contractor shall provide his/her own office space, office equipment, and supplies including a telephone, internet, fax machine, etc. Independent contractor shall provide his/her own telephone number and fax number to be used on all advertisements with clear instructions that all correspondence, including offers, shall be made to Independent Contractor supplied numbers.
3. Broker is responsible for the supervision of all work performed by Contractor as required by law and this agreement. Except where such methods are inconsistent with the law or this agreement, Contractor is solely responsible for the management of his/her own business brokerage business including, but not limited to, the management of time, efforts, expenses, etc. Broker shall have no right, except to the extent required by law to direct or limit Contractor’s activities as to hours, leads, floor time, prospecting, reports, sales meeting attendance, services, time off, vacation, or together similar activities.
4. Broker and Contractor intend that all photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives, pricing information, and all other copyrightable elements submitted by Contractor to Broker at any time with respect to a business listing (the “Listing Content”) shall be the property of Broker and a contribution to a collective work consisting of Listing Content of all Broker’s contractors. Accordingly, to the extent permitted under applicable law, all Listing Content shall be considered a Work Made for Hire (as such term is defined under the Copyright Act, 17 U.S.C. Section 101 and following, as amended) (a “Work Made for Hire”) by Contractor for Broker, and as such, shall be exclusively developed for the benefit of and owned by Broker. Broker shall exclusively own all copyrights and all other intellectual property rights in the Listing Content.
To the extent that it is determined that any of the Listing Content does not qualify as a Work Made for Hire, Contractor agrees to assign and transfer and does hereby irrevocably assign and transfer to Broker any and all right, title, and interest, including all copyright rights and other intellectual property rights, and all actions and causes of action related to the foregoing, and all damages, profits, and other recoveries related thereto, which Contractor may have or acquire in and to any and all Listing Content. Such rights, title, and interest shall be deemed assigned as of the moment of creation without the necessity of any further action on the part of either party. Contractor represents and warrants to Broker with respect to the Listing Content for each of Contractor’s listings that (i) each element of the Listing Content is an original work of authorship of Contractor, or has been assigned to Contractor, and (ii) the Listing Content and this assignment of rights to Broker do not violate or infringe upon the rights, including any copyright rights, of any person or entity.
5. For the duration of this Agreement and for all business sale transactions closed by Contractor and/or its agents, regardless of commissions earned by Contractor and/or its agents, Contractor shall pay to Broker a flat fee $450 per transaction for the first 20 transactions completed by Contractor during a 12-month period commencing this day and shall reset each anniversary date hereafter. In the event the Contractor exceeds 20 full transactions in the 12-month period, then beginning with the 21st transaction the Broker will withhold a fee of $250. As commissions are earned by Contractor and/or its agents, 75% of any and all such commissions shall be paid to Broker upon closed transactions. Upon Broker’s receipt of these commissions, Broker shall pay such commissions to Contractor (less Broker’s fee and commission) within 1 business day contingent on a completed and funded transaction, pursuant to Broker’s current commission payment policy. The above is also subject to Section 11 below.
In cases where the Contractor elects to charge a commission of less than 5% of the sales price of the business, Twelve31 will use 5% of the total sales price of the business as the basis of calculating the transaction fee.
Contractor agrees to the above fee structure for any personal transaction and hereby agrees to turn in paperwork and notify Broker of any and all personal transactions.
Contractor further agrees that if Contractor engages in unethical behavior, fraud, or violations of the law, that Broker has the discretion to withhold the payment of a commission until the allegations are resolved.
6. New Broker/Contractors
Twelve31 Advisor’s commitment is to provide the New Broker the best education in the industry, enabling you to realize your full potential as a new small business owner in the industry.
New Broker/Contractor is defined as:
o New Broker – full time
o New Broker – part time
o New Broker with an immediate transaction
o New Broker /purchasing for personal reasons, investment, or representing a family member
o Seasoned or new broker, from a different company
Twelve31 Advisors Training Team has established a minimum standard of education for the New Broker/Contractor to accomplish the basic Business Brokerage fundamentals and practices.
The New Broker Training Program modules are to be completed within two weeks of joining Twelve31 Advisors. *
The Training Team continues to be committed to your career as a business broker, and requires you to only work under the Training Team’s supervision for your first three transactions.
Your first three transactions, you will be charged a New Licensee/Contractor flat fee at the closing of each of these transactions. The flat fee is defined on the signature page of this agreement.
For purposes of this Agreement, the term “transactions closed” shall be defined as the date of closing, where a commission is owed to Contractor and/or its agents.
Upon successful completion of the first 3 transactions the Contractor will be subject to the fee structure outlined in Section 5. The first 3 transactions shall apply towards the 20-transaction cap also outlined in Section 5.
*If the New Broker/Contractor fails to complete the New Agent Training Program within the first two weeks of joining Twelve31 Advisors, the New Broker/Contractor will be de-activated from the brokerage, and only able to reapply six months after the deactivation date.
7. Contractor shall immediately notify Broker of any circumstances likely to give rise to any kind of claim against Contractor and/or Broker. In the event of a claim, lawsuit or arbitration demand which is not wholly covered by Broker’s insurance referenced herein, Broker may withhold from any commissions due Contractor the full amount of the commission. Broker may apply such sums as are necessary to settle or to satisfy any such claim or award. Contractor agrees that Broker, as the contracting party, is the party legally entitled to the commission prior to disbursement.
Contractor agrees to indemnify and hold Broker harmless from any claims, demands, complaints or actions made against Broker as a result of any Contractor transaction.
8. In the event this Agreement is terminated, any and all Contractor listings and Buyer Agency Agreements obtained through efforts of Contractor during the term of this Agreement shall be cancelled and renewed with Contractor’s new Broker, provided:
a. The client agrees to such transfer; and
b. All sums due the Broker by the Contractor have been paid in full.
9. Contractor agrees to continue to fully cooperate with Broker as necessary to resolve any transaction, claims, or disputes which are pending at the time of, or which arise after, the termination of this Agreement. In such an event, Broker will charge to Contractor a reasonable fee for all Broker and staff time and costs for services provided on Contractor’s behalf.
10. Contractor understands and agrees that, because Contractor is an Independent Contractor and not an employee of Broker, Broker will not withhold any Federal or State Income Tax, Social Security (FICA) or Unemployment (FUTA) taxes from Contractor’s commissions paid. Contractor is personally responsible for paying any and all Federal and State Income Taxes, Social Security deposits and all other taxes, and for maintaining all expense records as required by law, and represents to Broker that all such amounts due will be withheld and paid. Contractor shall indemnify and hold Broker harmless for any liability or costs thereof. Contractor further understands and acknowledges that broker provides no Workman’s Compensation coverage. Contractor hereby specifically waives such coverage and represents to Broker that it understands that, if Contractor desires such coverage.
11. This Agreement may only be terminated by a party hereto upon one or more of the following events:
a. By any party immediately, with or without cause;
b. Mutual agreement by the parties;
c. Breach of this Agreement by a party (in which event the non-breaching party may terminate); and/or
d. Any action by a party which the other party reasonably believes jeopardizes such party’s (or its agents’) licenses or business reputation (in which event the jeopardized party may terminate).
In the event of a breach of this Agreement, in addition to the non-breaching party’s right to terminate this Agreement, the non-breaching party shall also have all rights and remedies available at law and/or equity.
12. In the event it shall become necessary for either party to this Agreement to retain legal counsel to enforce any term, condition, or covenant of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs, including any attorney fees and costs incurred in any bankruptcy or appellate proceeding.
13. This Agreement shall be binding upon and shall inure to the benefit of the parties, their respective heirs, personal representatives, successors and assigns; provided however, that this Agreement may not be assigned without the prior written consent of the non-assigning party. For purposes of this Agreement, the sale, assignment or other transfer, in one or more transactions, of fifty percent (50%) or more of the underlying ownership interests of either party, shall be deemed an assignment subject to written consent of the non-assigning party.
14. Both parties to this Agreement have been, or have had the opportunity to be, represented by legal counsel in the course of the negotiations for and the preparation of this Agreement. Accordingly, in all cases, the language of this Agreement shall be construed simply, according to its fair meaning, and not strictly for or against either party regardless of which party caused the preparation of this Agreement.
15. This Agreement may only be modified or amended in writing signed by both parties.
16. This Agreement shall be governed by the laws of the State of Nebraska. The parties agree that any lawsuit or legal proceeding arising out of this Agreement will be litigated in courts located in Douglas County, Nebraska.
17. The failure of a party to insist, in any one or more instances, upon strict performance of any term, covenant or condition of this Agreement or in any instrument or document referred to herein or contemplated hereby, shall not be construed as a waiver, or a relinquishment for the future, of such term, covenant or condition, but the same shall remain and continue in full force and effect.
18. This Agreement and the instruments and documents referred to herein or contemplated hereby constitute the entire agreement between the parties concerning the subject matter of this Agreement; there are no oral agreements existing between the parties relative to the subject matter hereof which are not expressly set forth herein or in the instruments or documents referred to herein or contemplated hereby.
19. Each individual executing this Agreement on behalf of an entity, hereby represents and warrants that his or her company has duly and properly authorized the execution of this Agreement by such individual and that this Agreement is enforceable against his or her entity in accordance with its terms.
20. Both parties shall execute, acknowledge and deliver to the other such other documents and instruments, and take such other actions, as either shall reasonably request, or as may be reasonably necessary, to consummate the transactions contemplated in this Agreement.
21. Contractor agrees to read and follow all applicable office policies and procedures. These policies and procedures are updated annually and go into effect January 1st of each year. Contractor is required to review the new policies and procedures each year and hereby agrees to be bound by the changes.
22. I have been given a copy of the Twelve31 Advisors Social Media Policy for my review and compliance.