The purpose of the Terms of Engagement document is to outline the scope, objectives, responsibilities, and expectations between simpliHOM, Inc, its subsidiaries and its affiliated companies or partnerships (“Company”) and the licensed real estate agents, brokers, teams, LLC’s, and employees or unlicensed assistants (collectively, “Agent”) affiliated to Company by professional licensure or some similar formal means and who have entered into a formal Independent Contractor Agreement (“ICA”).
1. Assurances, Commitments, and Guarantees.
a) The Agent assures, commits, and guarantees to the Company that:
b) Both the Agent and the Company certify that:
c) As an independent contractor, the Agent will not receive traditional employee benefits from the Company, including but not limited to social security, unemployment allowances, medical insurance, or pension contributions.
2. Agent Obligations.
a) Compliance with Previous Agreements: The Agent recognizes and agrees that from the time their license aligns with the Company (hereinafter referred to as the "Association Date") until they part ways, they must adhere to any binding terms from prior third-party contracts (like those with a previous Company/Brokerage firm). It is acknowledged that such terms may affect the Agent's ability to provide services for the Company. Such services may include potential constraints on:
The Agent commits not to use or unveil any such restricted information at any time. While the Agent can maintain personal and professional contacts from previous affiliations, they shall not access nor share with the Company any information they didn't personally produce, without written authorization from the content owner. The Company retains all rights and does not acknowledge the legal enforceability of such third-party terms by acknowledging them here. Agent shall disclose the existence of prior, third-party commitments to confidentiality prior to signing the ICA. In the event Agent fails to timely disclose such a commitment, Company reserves the right to void the ICA or otherwise terminate affiliation with the Agent.
b) Adherence to Legal Requirements: Agent commits to observing all relevant local, state and federal laws concerning the practice of real estate, including all those considered self-governing under membership associations, MLS providers, Fair Housing and “do not call” laws, and Rules as established by the Company. With specific regard to the promotion/advertising of a property for-sale Listing, the Agent agrees to:
c) Agent Conduct: The Agent commits to maintaining a professional demeanor and shall avoid:
A breach of the guidelines in this Section 2(c) provides the Company, at the Company’s sole discretion, with justifiable grounds (“Cause”) to terminate the (ICA). In such an event the Company reserves the right to withhold from the Agent’s commissions related to pending transactions, referral payments, team member payments, company incentives, or any other income source affiliated with the Agent’s tenure with the Company, any unpaid/outstanding monies due to the Company at the time of termination. Monies accrued through the Company’s revenue sharing program shall be immediately surrendered by the Agent and retained by the Company when termination is due to the Agent’s breach of the guidelines set forth in this Section 2(c). If pending commissions or other monies owed to the Agent at the time of termination are inadequate to cover monies due to the Company and/or the Company’s affiliated partners, the Company, at its sole discretion, may employ the use of a professional collection agency or similar entity to pursue the collection of the outstanding amount due.
d) Non-simpliHOM Workspaces: Within this context, a "Non-simpliHOM Workspace" refers to any office setting, inclusive of a home office, which is not owned, leased, or subleased by the Company or its Affiliates. Should the Agent choose to operate or render services from such a workspace, the Agent shall wholly indemnify Company from any activities performed from the workspace. Agent shall be responsible for ensuring compliance with the laws and regulations pertaining to performing professional services from a private location. This includes but not limited to, obtaining the proper license (branch office, etc.), business permit and or tax ID, as dictated by local governance and/or the Company. Any workplace which is not formally and legally recognized by the local ordinances, as well as approved in writing by the Company, the workspace shall not display simpliHOM-branded items of any kind. There shall be no meetings with active or prospective Clients, advertisements, promotion, or any similar efforts to reasonably lead the public to believe a non-approved workspace is affiliated in any way to the Company. In the event the Agent secures non-simpliHOM approved office space while affiliated with the Company, Agent shall agree to:
e) Commissions; Deductions; Invoices: All commissions owed to the Agent, will be paid after deducting expenses, repayment obligations, and/or any offsets.
f) Meetings. The Company may choose to invite the Agent to various events, including product trainings, marketing discussions, community gatherings, and occasional sales meetings. The Agent’s attendance to any such events shall be at the sole discretion of the Agent, unless otherwise required by Law.
g) Job Titles and Personal Branding: governmental and non-governmental entities have established clear parameters regarding how an Agent presents themselves to the public. The Agent is responsible for ascertaining the current statutes and guidelines from all pertinent entities and shall be required to remain in compliance with said terms to prevent the use of potentially deceptive titles team names and/or individual LLC and similarly structured business name.
h) Job Titles Related to the Agent’s Company Role: The Agent must seek prior written consent from the Company before adopting a simpliHOM- related title. (Ex: “Mentor”, Committee Chair, etc.).
i) Promotional and Marketing Materials. Agent recognizes and understands that when using any form of content – such as designs, images, writings, graphics, videos, logos, or any other visual or written materials (whether self-created, provided by Company, or sourced elsewhere, collectively referred to as "Content") – related to their Services, it must not violate any rights and should adhere to all applicable Laws. Use of Content includes, without limitation, uploading Content to the internet, disseminating Content to third parties electronically or otherwise, and printing and distributing Content for promotional purposes.
j) Personal Data Sharing. Agent acknowledges that Company’s right to gather certain personal data, as outlined in the Company's Policies and Procedures, and utilize it for the benefit of the Company. This data might be shared with the Company's affiliated partners and chosen vendors/service providers. Such data sharing shall adhere strictly to all relevant privacy and personal information protection laws. The Agent hereby authorizes the Company for such data sharing. The Agent also understands that the Company and its associated entities may communicate with Agent through different methods such as phone calls, text messages, or emails, which might be automated.
k) Fees. Fees charged by Company are subject to change at the Company’s sole discretion. In exchange for the Agentʼs payment of said fees, the Company shall provide certain support services, business tools and other resources, including providing Agent with access to Company’s proprietary platforms (collectively, “Company Tools”). Agent acknowledges that for purposes of the Agent’s utilization of the Company Tools, Company is deemed a “service provider” as such term is defined in the California Consumer Privacy Act (“CCPA”) and any similar state law, as applicable. Pursuant to the CCPA, in our role as a service provider, Company will not
I) Non-Disparagement. Agent shall not make any statements or take any action, or encourage or solicit any third party to make or solicit, any statements, or take any action whether orally or in writing, that disparage, are critical of, are inimical to, damage, or could damage, the reputation of Company, its Affiliates, its directors, officers, shareholders, employees, agents, products, business, or services at any time during the Agent’s affiliation with Company as well as any time after the Agent’s termination with the Company,
m) Intellectual Property. All the Company’s Intellectual Property (IP) is owned exclusively by the Company. Company IP includes but not limited to: all trademarks, trade dress, names, and source identifiers representing the Company, all of its affiliated partners, Agents, associates, and employees, their services or brand (if created by Company, its representatives, or Affiliates) (collectively, “Company’s Marks”). All creative works, including, without limitation, text, photographs, images, artwork, designs, logos, graphics, audiovisual works, sound recordings, computer programs, and software code, and copyrights relating thereto created or otherwise acquired by Company or Company’s Affiliates; all inventions, discoveries, developments, improvements, and innovations, uses, processes, know-how, devices, data, tools, and technology conceived, designed, made, developed, or reduced to practice, whether patentable or not, on behalf of or for the benefit of Company, its Affiliates, or any employee or agent thereof, solely or jointly with others, or under its/their direction; and any other related patents, copyrights, trademarks, trade names, and other industrial and intellectual property rights, applications, and registrations therefor, in the United States and elsewhere, created, acquired, conceived, designed, made, developed, or reduced to practice in connection with the business of Company or Company’s Affiliates, the Services, or on behalf of or for the benefit of Company, its Affiliates, or any employee or agent thereof. Agent Acknowledges that Company owns the Company IP and all Company’s claimed rights thereto are valid. Upon Company’s request, Agent shall promptly take such actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist the Company to prosecute, register, perfect, record, or enforce its rights in any Company IP. Company may, from time to time, grant Agent a license to use certain Company IP. Except as otherwise agreed to in writing, any such license is and will be royalty-free, non-transferable, non-sub-licensable, limited, revocable, and non-exclusive, and Agent agrees to adhere to any policies or restrictions set forth by Company in the use of such license, and to use Company IP in accordance with Laws, including intellectual property laws. Any such license shall immediately terminate upon the Agent’s Disassociation/termination. Subject to the terms of the ICA, Company grants to Agent a non-exclusive, non-transferable, non-assignable, non- sublicensable, terminable license to use Company’s Marks in the United States, solely in connection with marketing, distributing, and providing the Services, and that all use of Company’s Marks by Agent shall inure to the benefit of and be on behalf of Company and Company’s Affiliates. Agent’s use of Company’s Marks and the nature and quality of Agent’s marketing and provision of the Services in connection with Company’s Marks shall, throughout Agent’s affiliation with Company or Company’s Affiliates, conform to the use and quality standards established by and under the control of Company or its Affiliates, including without limitation, any branding guidelines and style guides adopted by Company, which may from time to time, be updated by Company with or without prior notice to Agent. Agent acknowledges that Company has the right and duty to assure that Agent’s marketing and provision of the Services under Company’s Marks meet Company’s quality standards.
3. Confidential and Proprietary Information.
a) Agent acknowledges that, in the course of Agent’s performance of the Services, Agent may have access to Company’s confidential information including, without limitation, Company’s emails, data, correspondence, papers, documents, records, client information, databases, products, electronic and paper media, data or other information that is entered into and/or derived or otherwise results from Agent’s use of such data and/or tools (including, without limitation, the Company Tools as earlier defined), and information relating to clients, investors, lenders, business operations, assets, financial affairs of Company, and trade secrets or other sensitive information (any such information, without limitation, the “Confidential Information”). Agent acknowledges that the terms of their ICA are strictly confidential, and Agent shall not disclose any such information at any time without the written authorization from an authorized Company representative (except as expressly permitted herein). Agent acknowledges and agrees that Company expressly reserves the right to immediately rescind and/or recover any of the Incentives or Incentive Terms (except only Agent Split, Renewal Split, granted non- statutory stock option awards, and/or granted restricted stock unit awards) offered to Agent under the ICA in the event of Agent’s disclosure of any Confidential Information (except as expressly permitted herein).
b) Agent shall not disclose any Confidential Information to any person or entity for any purposes, except
c) Agent’s obligations under this Section shall not apply to any information that
4. Third-Party Confidential and Proprietary Information
a) The Agent further acknowledges that the Company may have received, or may receive in the future, information from third parties, who have deemed such information confidential or proprietary (“Third-Party Confidential Information”). Agent agrees to uphold Company’s obligation to maintain confidentiality of Third-Party Information unless expressly authorized otherwise.
b) During the term, and thereafter, of Agent’s affiliation with Company or Company’s Affiliates, Agent acknowledges Agent’s duty to Company, its Affiliates, and such third parties, to maintain all such Third- Party Confidential Information in the strictest confidence and shall not disclose it to any person or entity, or to use it except as it pertains to Agent’s performance of their Services and in a manner consistent with Company’s agreement with such third party.
5. Dispute Resolution, Indemnification, and Unrelated Business.
a) As permitted by Law, all Disputes between Company and Agent will first be mediated by the American Arbitration Association (“AAA”), under the Commercial Arbitration Rules and Mediation Procedures of the AAA (“Rules”). Any Dispute between Company and Agent not resolved by said mediation shall be settled by neutral binding arbitration, in accordance with the Rules, as permitted by Law.
b) For the avoidance of doubt, Company and Agent may, but are not required to, choose to mediate or arbitrate any Disputes involving claims of sexual harassment or sexual assault between the parties.
c) The ICA shall be interpreted in accordance with the Laws of the state in which Company is licensed. The location of any mediation or arbitration between Agent and Company will be the county (or comparable governmental unit) in which the Agent currently performs or last performed Services for Company. In connection with any mediation or arbitration, Agent and Company will each pay its own fees and expenses, including, but not limited to attorneys’ fees (subject and without prejudice to Company’s right of indemnification). The parties agree that the designated arbitrator shall be experienced in the resolution of commercial independent contractor and/or employment disputes. In the event of disagreement as to the appointment of the arbitrator, the AAA will continue to provide lists of eligible arbitrators to the parties until they reach a consensus. Absent exigent circumstances, the arbitrator shall not allow for more than one deposition per party. Except as may be required by Law or by written authorization from all parties involved, no party, mediator or arbitrator, may disclose the existence, content, or results of any mediation or arbitration arising out of or related to the ICA or dispute between Company and Agent.
d) To the fullest extent permitted by Law, each party waives the right to litigate in court or arbitrate any Dispute as a class action, either as a member of a class or as a representative, or to act as a private attorney general. Each party understands that by entering into the ICA, which incorporates by reference these Terms, they are, to the fullest extent permitted by Law, knowingly, willingly, and intentionally giving up their right to a jury trial in the event of a Dispute.
e) If Agent becomes involved in a Dispute, Agent shall immediately report the Dispute in writing to, and fully cooperate with, Company. To the extent that Company’s errors & omissions insurance policy does not cover the Costs (as defined below), Agent shall indemnify, defend and hold harmless Company from all claims, damages, costs, expenses, judgments, awards, and liabilities, including reasonable attorneys’ fees (collectively, the “Costs”), arising from or related to the willful, reckless, or negligent acts or omissions of Agent, acts of Agent which are outside of Agent’s authority, or any activities by Agent other than those required for the performance of the Services, including, but not limited to, any activities not authorized as licensed activities by the applicable governing authority. In Disputes in which there is no binding determination that Agent has acted or failed to act willfully, recklessly, negligently, or outside of the scope of Agent’s authority, or if the parties are not determining those issues at that time, Agent shall share the Costs arising from or related to the Dispute. Agent’s share of the Costs shall be in the same proportion as the division of commission between Agent and Company pursuant to Agent’s ICA (including any promotional or bonus programs or incentives) in effect at the time such Dispute is first initiated. The sharing of Costs shall be without prejudice to Company’s right of indemnification.
f) If either party makes a good faith contest of the commission due pursuant to the ICA, then, subject to Law, Company shall have the right to hold the disputed commission in escrow for up to two (2) financial quarters pending a final binding resolution of the contest. Thereafter, any unresolved Dispute involving such commissions shall be resolved in accordance with the terms set forth herein.
6. Unrelated, Unaffiliated, or Non- Affiliated Business.
a) In the event Agent was formerly, is currently, or in the future may become, engaged, involved, or affiliated in any capacity, whether directly or indirectly, whether as an owner, manager, director, officer, shareholder, employee, consultant, advisor or other capacity, with any outside business (i.e., a business unaffiliated with Company and its Affiliates), including but not limited to, any corporation, limited liability company, joint-venture, sole-proprietorship, etc. (together with any of its or their parents or subsidiaries and any entities or persons presently or formerly affiliated or related, along with the officers, directors, employees, agents, contractors, sub- contractors, representatives, successors, assigns, and/or volunteers of each), such business shall be considered an “Unaffiliated Business”, “Unrelated Business”, or a “Non-Affiliated Business” (which terms may be used interchangeably throughout these Terms and/or other Company-provided materials).
b) Unless otherwise expressly set forth in a written agreement between Company, and its Affiliates, Company shall not be affiliated with any such Unrelated Business and shall not be subject to any terms or other obligations set forth by any such Unrelated Business. Agent, in Agent’s individual capacity and on behalf of Agent’s Unrelated Business, shall indemnify and hold harmless Company and its Affiliates (as well as each such entity’s owners, shareholders, officers, directors, managers, employees, and agents) from and against any and all claims, liabilities, damages, losses, expenses, penalties, fines, sanctions and the like, including reasonable attorney’s fees and expenses incurred by Company which arise out of Agent’s Unrelated Business or any act or omission of Agent in connection with the Unrelated Business. Company shall not be liable for any obligation or liability incurred by Agent’s Unrelated Business, including for any obligation or liability related to or incurred by Agent.
c) By signing the ICA, Agent agrees to:
d) Not with standing the foregoing, in the event Agent maintains an Unrelated Business during Agentʼs affiliation with Company, despite Agent's representation to the contrary above and without obtaining the requisite approvals, Agent shall ensure that:
Any breach of this Section 7(f) will be considered a breach of Agentʼs ICA and shall constitute cause for Companyʼs termination of such agreement.
7. Validity and Eligibility.
a) In order to be eligible to receive any Incentives or Incentive Terms that may be provided for under their ICA, the Agent must hang their license and affiliate with Company within 10 days of the Start Date or 10 days of the date on which Agent is first granted an active license by the Applicable Authority, as the case may be. If Agent fails to hang their license and affiliate with Company within such time, Company may unilaterally void the ICA and rescind all Incentives or Incentive Terms. Agent must be duly licensed and actively affiliated with Company at the time of payment to receive any Incentives or Incentive Terms provided for under the ICA, excepting only Agent Split for transactions in- contract prior to Disassociation.
b) Agent acknowledges and agrees that any non-statutory stock option and/or restricted stock unit award offered pursuant to the ICA as a percentage of the Teamʼs gross commissions income is contingent on Agent remaining a member of such Team through the end of the applicable commission calculation period (the “GCI Calculation Period”). Agent further acknowledges and agrees that if Agent ceases to be a member of such Team prior to the end of the applicable GCI Calculation Period, Agent will be deemed to have forfeited such non-statutory stock option and/or restricted stock unit award, unless otherwise expressly agreed by Company in writing.
8. Subsequent ICA
If Agent enters into a subsequent ICA with Company, the terms of the ICA dated most recently shall supersede any prior agreements, in any form, between Agent and Company. To the extent a previous understanding between the parties resulted in an equity grant to Agent which is inconsistent with the terms of the most current ICA, Agent consents to the cancellation or amendment of such previous equity grant. Notwithstanding the foregoing, and absent such an inconsistency, nothing in the subsequent ICA shall void or otherwise affect any executed non-statutory stock option and/or restricted stock unit award agreements entered into between Agent and simpliHOM, Inc.
9. Survival.
These Terms shall survive the termination of the ICA (“Disassociation”), whether by Agent or Company, for any reason.
10. Severability.
If the ICA, these Terms, or any portion thereof, are deemed invalid or void at law, the ICA and/or the Terms shall be construed as though such portion or provision had not been inserted and the remainder shall remain in full force and effect.
11. Modification and Waiver.
A party’s failure to enforce the ICA, or Company’s failure to enforce the Terms stated herein, or any of the provisions in ICA, shall not be construed as a waiver of such party’s right to demand strict performance of the the same. Neither the ICA nor any provision thereof may be waived or amended except in a writing signed by both Company and Agent.
12. Notices.
Any notice shall be deemed duly delivered on the earliest of:
13. Successors and Assigns.
The ICA and these Terms shall be binding upon and inure to the benefit of Company and Agent and their respective heirs, executors, administrators, successors, and assigns. Agent may not assign the ICA nor Agentʼs rights and/or obligations thereunder without the prior written consent of Company.
14. Miscellaneous.
The ICA (executed last in time) between the parties, as may be amended, restated, modified, and supplemented from time to time and these Terms of Engagement constitute the entire understanding between the parties, and supersede all prior agreements, in any form, with respect to Agent’s performance of the Services as an independent contractor of Company, subject only to express simpliHOM policies. If Agent affiliates with any Affiliate, then these Terms shall also apply. The ICA and these Terms are the product of negotiations between the parties, and, accordingly, any presumption or rule of law that would require the interpretation or construction of any claimed ambiguities as against the drafting party is expressly waived. These Terms are subject to modification and may be updated from time-to-time in Company’s sole discretion. In the event of a conflict between the terms of the ICA and these Terms or the Policies & Procedures, the terms of the ICA will be deemed to supersede any such inconsistency. Notwithstanding the foregoing, after the expiration of the respective periods expressly set forth in the ICA for each Incentive or Incentive Term, the policies contained in the Policies & Procedures shall supersede each such Incentive or Incentive Term offered in the ICA (unless otherwise expressly stated therein), and the remainder of the ICA will continue in full force and effect unless otherwise terminated upon written notice to the other party in accordance with these Terms and the terms of the ICA. In the event the ICA is unclear with respect to the period during which an Incentive or Incentive Term shall apply, such Incentive or Incentive Term shall expire or be superseded by the policies contained in the Policies & Procedures on the first anniversary of the ICA Start Date. Any capitalized term used herein (but not otherwise defined) has the meaning assigned to it in the ICA.
15. Definitions
ACI (Adjusted Company Income) - refers to the total amount due to the Company after all relevant deductions from Gross Commission Income. ACI is derived by subtracting operational costs, Company splits, referral fees, late bills, and any other applicable expenses from Gross Commission Income.
GCI (Gross Commission Income) – refers to the total amount of commission generated from a real estate transaction, prior to any deductions made for operational costs, referral fees, Company splits, and other expenses.
Terms
Within the context of this Agreement, "Terms" refers to the stipulated conditions, provisions, obligations, rights, and specifications that are mutually agreed upon by the parties involved. These terms set forth the framework of understanding and expectations between the parties, delineating their respective responsibilities, privileges, and potential consequences for non-compliance. It's imperative that all parties understand and consent to these terms before entering into the Agreement, as they will govern the nature and execution of the relationship, ensuring clarity, transparency, and adherence to agreed-upon standards.
Agreement
Within the context of this document, "Agreement" refers to a binding contract between two or more parties that outlines their respective rights, obligations, and responsibilities concerning a particular transaction or relationship. This Agreement is the result of negotiation and mutual understanding and serves as a reference point for the terms and conditions to which both parties have consented. It is legally enforceable, and any breach or non- compliance with the stipulations set forth may result in consequences or remedies as defined within the Agreement itself or under applicable law. All parties entering into the Agreement are expected to read, understand, and adhere to its terms and conditions.
Revenue Share Guidelines
For the purposes of this Agreement, “Revenue Share Guidelines" refers to the comprehensive set of provisions, criteria, and procedures established herein to govern the distribution or allocation of revenue among the parties involved. The guidelines explicitly detail the methods for calculating shared revenue, stipulate eligibility criteria, set forth distribution timelines, outline potential adjustments or deductions, and provide clarity on other relevant financial aspects related to revenue-sharing. By including these Revenue Share Guidelines within this Agreement, the parties aim to achieve clarity, foster financial transparency, and minimize the potential for disputes pertaining to revenue distribution. These guidelines are essential to ensuring a mutual understanding of the revenue-sharing mechanism in any collaboration, venture, or partnership context covered by this Agreement. Transaction.