DP Brokerage Services, LLC
Terms of Engagement
1. Representations, Covenants, and Warranties.
a. Agent represents, covenants, and warrants to Broker and Broker’s Affiliates that: (i) Agent has full legal authority to enter into the DP Brokerage Services, LLC Independent Contractor Agreement (“ICA”) and perform real estate brokerage services (the “Services”); (ii) subject to Laws (as later defined), Agent’s real estate license will only be associated with Broker’s (or its parent, subsidiary, or otherwise affiliated entities, hereinafter “Affiliates”) real estate broker’s license; (iii) Agent will maintain Agent’s real estate license(s) in good standing at all times; (iv) all business expenses incurred by Agent in connection with the Services will be paid for by Agent; (v) there is no threatened, pending or current dispute, claim, investigation, arbitration, and/or litigation (each, a “Dispute”) against Agent as of the Start Date that is outstanding or has occurred during the three-year period prior to the Start Date; and (vi) Agent agrees to abide by Broker’s Manual (defined below).
b. Agent and Broker each represent and warrant that they are duly licensed pursuant to, and will comply with all, applicable laws in the jurisdiction in which Agent performs the Services. Any such compliance does not affect Agent's status as an independent contractor.
c. Agent is not an employee of Broker and shall not represent themselves as such to any third-party. As an independent contractor, Agent is not entitled to, and Broker has no liability to Agent for, any benefits such as social security, unemployment, medical or pension payments. Subject to Laws, Broker will not restrict Agent’s activities to a particular geographical area nor dictate nor direct the Agent’s activities with respect to Agent’s performance of the Services rendered hereunder (e.g. schedule, hours, meetings, time off, etc.). Agent is responsible for filing all income tax returns and paying all required income and withholding taxes and procuring any required general liability and workers’ compensation insurance at Agent’s sole cost unless otherwise required by Law. As an independent contractor, Agent (i) will be paid a commission on sales, without deduction for taxes, based on sales or other output; (ii) will not be entitled to a draw against commissions; and (iii) will not receive any remuneration related to the number of hours worked. Subject to the ICA, Agent is free to engage in outside employment and is permitted to work from any location and on any days and hours and in any way Agent elects.
2. Agent Obligations.
a. Third-Party Restrictive Covenants. Agent acknowledges and agrees that from the date Agent’s license is first associated with Broker (“Association Date”) until the Disassociation (as later defined), Agent is required to fully comply with restrictions set forth in any third-party contract (for example, with Agent’s prior brokerage firm), which may limit Agent’s ability to provide services for Broker, including, but not limited to, restrictions regarding the (i) disclosure of confidential information or (ii) solicitation or recruitment of employees and/or independent contractors. Agent will not use or disclose such information in the performance of the Services. Although an agent may retain Agent’s own personal and professional contacts, any data or information not generated by Agent should not be taken by Agent or shared with Broker. This shall not be treated as a waiver of Broker’s rights or an admission that such restrictions are legally enforceable. Notwithstanding the foregoing, Agent’s failure to disclose to Broker the existence of any third-party restrictive covenants to which Agent is subject, prior to the execution of the ICA, shall constitute “Cause” for Broker’s termination of the ICA.
b. Compliance with Laws. Agent agrees to comply with all applicable international, federal, state, and local laws and regulations (each a “Law” and collectively, the “Laws”) including, but not limited to, “fair housing” laws, “do not call” laws, MLS and other listing service rules and regulations, and all laws pertaining to the real estate brokerage and sales business. In order to advertise a listing as a Coming Soon Listing, the listing must be: (i) eligible under the applicable Laws, (ii) your exclusive listing subject to an exclusive listings agreement, and (iii) featured as a Coming Soon Listing only where such is in the owner’s best interests and only in the owner’s absolute discretion. It is strictly prohibited by Broker to use Coming Soon Listings as a mechanism to receive both commissions for both sides of a transaction.
c. Agent’s Conduct. Agent agrees NOT to: (i) act or fail to act in a way which could be reasonably determined to be a violation of applicable codes of ethics and/or standards of professional responsibility applicable to real estate salespersons and brokers (including, without limitation, MLS, national and state associations of realtors, and/or similar governmental and non-governmental bodies, and Broker’s own policies concerning agent conduct); (ii) commit any act of fraud, embezzlement, theft, or other violation of Laws; (iii) disclose Broker’s Confidential Information; (iv) breach Agent’s obligations hereunder or Agent’s duty of loyalty to Broker; (v) violate any of Broker’s written policies or guidelines related to Agent’s performance of the Services; (vi) willfully fail, or continue to fail after notice is given, to substantially perform Agent’s duties for Broker; or (vii) engage in or commit willful misconduct; or (viii) willfully misappropriate any business opportunity of Broker or its Affiliates; any violation of this clause shall constitute “Cause.” Upon Disassociation, Broker has the right to offset any amounts due to Broker against any commissions or other amounts due to Agent under the ICA. To the extent that commissions or other amounts due to Agent at the time of Disassociation are insufficient to satisfy Agent’s repayment obligation, if any, Broker may pursue repayment through additional means, including, but not limited to, engaging the services of a collection agency or firm.
d. No work space is provided by Broker. If Agent elects to work or perform the Services from any workspace, Agent shall indemnify Broker and be responsible for ensuring that Agent is and remains at all times in compliance with the Laws, including but not limited to, obtaining a branch office, business, or tax license, as may be required by local regulation and/or by Broker. Unless a workspace is properly licensed or registered or otherwise compliant with applicable Laws, Agent shall not display Broker-branded signs, meet with clients, or otherwise advertise, market or represent the office space in a manner that would reasonably lead the public to believe that the workspace is owned and operated by Broker or any of Broker’s Affiliates. Agent agrees to (i) maintain all market-appropriate insurance policies, (ii) add Broker as an additional insured to all such policies, and (iii) complete any paperwork which Broker may require Agent to sign (including, without limitation, a freestanding indemnity agreement), in connection with Agent’s use of a workspace.
e. Commissions. Notwithstanding anything to the contrary contained in the ICA or Broker’s Manual, all commissions due to Agent, whether during the term of the ICA or upon Disassociation, shall be paid after deduction of expenses, repayment obligations and offsets, if any, in accordance with the Brokers Manual and ICA Documents, in Broker’s sole discretion.
f. Titles. To account for (i) government and non-government third-party rules restricting the use of certain titles and (ii) the need to avoid legally false and misleading titles, all agents are required to obtain the prior written approval before using a Dorado-based title. This review is limited to the above concerns and Broker will not restrict or control the use of any legally-permissible agent title.
g. Promotional and Marketing Materials. Agent acknowledges and agrees that with regard to Agent’s use of any content, including, but not limited to, designs, images, animations, writings, drawings, graphics, videos, logos, code, illustrations, and artworks (whether or not independently created, provided by Broker, or procured by Agent from another source, together “Content”), in connection Agent’s performance of the Services, any use of Content shall be non-infringing and in compliance with applicable Laws, Use of Content includes without limitation, uploading Content to the internet, disseminating Content to third-parties electronically or otherwise, and printing/distributing Content for promotional purposes.
3. Fees. Any fees charged by Broker are subject to change from time-to-time in Broker’s sole discretion.
4. 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 Broker, Broker’s Affiliates, or its or their directors, officers, shareholders, employees, agents, products, business, or services at any time during the term of the ICA and following Disassociation.
5. Intellectual Property. All Broker IP is the exclusive property of Broker. “Broker IP” includes, without limitation, all trademarks, trade dress, names, and source identifiers representing Broker’s services or brand and/or Agent’s Services or brand (collectively, “Broker’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 Broker or Broker’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 Broker, 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 Broker’s or Broker’s Affiliates business or the Services or on behalf of or for the benefit of Broker, its Affiliates, or any employee or agent thereof, Agent acknowledges that Broker owns the Broker IP and all of Broker’s claimed rights thereto are valid. Upon Broker’s request, Agent shall promptly take such actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Broker or Broker’s Affiliates to prosecute, register, perfect, record, or enforce its rights in any Broker IP. Broker may, from time to time, grant Agent a license to use certain Broker 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 Broker in the use of such license, and to use Broker IP in accordance with applicable Laws, including intellectual property laws. Any such license shall immediately terminate upon Disassociation.
6. Confidential and Proprietary Information.
a. Agent acknowledges that in the course of Agent’s performance of the Services, Agent may have access to Broker’s confidential information including, without limitation, Broker’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, and information relating to clients, investors, lenders, business operations, assets, financial affairs of Broker, and trade secrets or other sensitive information (any such information, without limitation, the “Confidential Information”). Agent acknowledges that the terms of the ICA are Confidential Information and agrees to keep them in strict confidence.
b. Agent shall not disclose any Confidential Information to any person or entity for any purposes, except (i) Agent’s legal counsel or (ii) as required by Law, at any time, unless and until such Confidential Information has become public knowledge without fault by Agent. If at any time, Agent is required to disclose any Confidential Information in order to comply with the Laws, Agent shall provide Broker with prior written notice of such disclosure and shall take reasonable and lawful actions to avoid and/or minimize the extent of such disclosure and ensure continued confidential treatment of the Confidential Information. In the event that Agent discloses Confidential Information for an impermissible reason, upon Broker’s request, Agent agrees to take all actions to cooperate and assist in recovering and/or destroying the disclosed Confidential Information and mitigate any damages resulting from such unauthorized disclosure.
c. Agent’s obligations under this Section 6 shall not apply to any information that (i) is or becomes known to the general public without breach of the ICA or Broker Manual (ii) is in the possession of Agent prior to Broker’s disclosure hereunder, as substantiated by documentary evidence or (iii) is independently received from a third-party without legal or contractual restrictions on such disclosure. Upon Disassociation, Agent shall promptly surrender to Broker, or destroy, all Confidential Information in Agent’s possession.
d. Third-Party Confidential and Proprietary Information. Agent further acknowledges that Broker may have or will in the future receive from third-parties information deemed confidential or proprietary by those third-parties (“Third-Party Confidential Information”) which shall be subject to a duty on Broker’s part to maintain confidential and be used only for certain purposes. Agent agrees that, during the term of Agent’s affiliation with Broker or Broker’s Affiliates and thereafter, Agent has a duty to Broker, its Affiliates, and such third-parties to maintain all such Third-Party Confidential information in the strictest confidence and not disclose it to any person or entity, or to use it except as necessary in Agent’s performance of the Services and in all cases in a manner consistent with Broker’s agreement with such third-party.
7. Dispute Resolution, Indemnification, and Unrelated Business.
a. If Agent is or becomes involved in a Dispute, Agent shall immediately report the Dispute in writing to, and cooperate fully with, Broker. As permitted by Law, all disputes between Broker and Agent will first be mediated by the American Arbitration Association (“AAA”) under the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association (“Rules”). The parties will equally divide the dispute resolution fee associated with any mediation. Any dispute not resolved by mediation will be settled by neutral binding arbitration in accordance with the Rules, as permitted by Law.
b. The ICA shall be interpreted in accordance with the Laws of the Commonwealth of Massachusetts. The location of any mediation or arbitration will be the county (or comparable governmental unit) in which the Agent currently performs or last performed services for Broker. Each party to any mediation or arbitration will pay its own fees and expenses, including attorneys’ fees (subject and without prejudice to Broker’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, neither a party nor a 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 Broker and Agent without the prior written consent of all parties.
c. To the extent that Broker’s errors & omissions insurance policy does not cover the Costs (as defined below), Agent shall indemnify, defend and hold harmless Broker from all claims, damages, costs, expenses, judgments, awards, and liabilities, including reasonable attorneys’ fees (collectively, the “Costs”), arising from or related to the willful or negligent acts or omissions of Agent, acts of Agent which are outside of Agent’s authority, or any activities of Agent other than those required for the performance of the Services. In Disputes in which there is no binding determination that Agent has acted or failed to act willfully, 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 Broker pursuant to Agent’s Agent Split (including any Incentive Split) in effect at the time such Dispute is first initiated. The sharing of Costs shall be without prejudice to Broker’s right of indemnification.
d. If either party makes a good faith contest of the commission due pursuant to the ICA, then, subject to applicable Law, Broker shall have the right to hold the disputed commission in escrow for up to two (2) financial quarters pending resolution of the contest. Thereafter, any unresolved Dispute involving such commissions shall be resolved in accordance with the terms set forth herein.
e. Unrelated or Non-Affiliated Business. In the event that Agent was formerly 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. not that of Broker or 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 volunteers of each), such business shall be considered an “Unrelated Business” or a “Non-Affiliated Business” (which terms may be used interchangeably throughout these Terms or other Broker-provided materials). Unless otherwise expressly set forth in a written agreement between Broker and such third-party, Broker is and shall not be affiliated with any such Unrelated Business and shall not be subject to any business or other obligations of Unrelated Business. Agent, in Agent’s individual capacity and on behalf of Agent’s Unrelated Business, shall indemnify and hold harmless Broker and Broker Affiliates (and each such party’s owners, shareholders, officers, directors, managers, employees, and agents) from and against all claims, liabilities, damages, losses, expenses, penalties, fines, sanctions and the like, including reasonable attorney’s fees and expenses incurred by Broker which arise out of the Unrelated Business or any act or omission of Agent in connection with the Unrelated Business. Broker shall not be liable for any obligation or liability incurred by Unrelated Business, including for any obligation or liability related to or incurred by Agent. By signing the ICA, Agent agrees to provide written notice to Broker if Agent has or wishes to operate an Unrelated Business during Agent’s affiliation with Broker, to follow all guidelines and policies set forth by Broker and take any and all affirmative actions required by Broker (including, without limitation, signing a freestanding indemnity agreement) pertaining to such Unrelated Business. Notwithstanding the foregoing, in the event Agent maintains an Unrelated Business during Agent’s affiliation with Broker, despite Agent's representation to the contrary above and without obtaining the requisite approvals, Agent shall ensure that (i) any such Unrelated Business is in compliance with all applicable laws, rules, and regulations at all times during the term of Agent’s affiliation with Broker; and (ii) Agent has obtained any general liability insurance or other applicable insurance as required by law or as required by Broker, and has followed all of Broker’s procedures related to Agent’s involvement in an Unrelated Business during Agent’s affiliation with Broker. Any breach of this Section 7(e) will be considered a breach of Agent’s ICA and “Cause” for Broker’s termination of such agreement.
8. Subsequent ICA. If Agent enters into a subsequent ICA with Broker, the ICA dated last in time shall govern the independent contractor relationship between the parties and supersede any prior “ICA” between Agent and Broker.
9. Survival. These Terms shall survive the termination of the ICA (“Disassociation”), whether by Agent or Broker, for any reason.
10. Severability. If the ICA, these Terms, 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 & Waiver. A party’s failure to enforce the ICA, or Broker’s failure to enforce these Terms, or any of its provisions, shall not be construed as a waiver of such party’s right to demand strict performance of this or any provision or any right, power or privilege thereunder. Neither the ICA nor any provision thereof may be waived or amended except in a writing signed by both Broker and Agent.
12. Successors and Assigns. The ICA and these Terms shall be binding upon and inure to the benefit of Broker and Agent and their respective heirs, executors, administrators, successors and assigns. Agent may not assign the ICA nor Agent’s rights and/or obligations thereunder without the prior written consent of Broker.
13. Miscellaneous. These Terms of Engagement (these “Terms”) and the Independent Contractor Agreement (executed last in time) between the parties, as modified by any subsequent “Amendment” thereto (collectively, the “ICA,” and together with these Terms, the “IC Documents”) 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 Broker, subject only to the Broker Manual (the “Manual”). The IC Documents 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 Broker’s sole discretion. In the event of a conflict between the terms of the ICA and these Terms or the Manual, the terms of the ICA will be deemed to supersede any such inconsistency. Any capitalized term used herein (but not otherwise defined) has the meaning assigned in the IC Documents.
Last Revised: 9/10/2021