REGIONAL SALES DIRECTOR
INDEPENDENT CONTRACTOR AGREEMENT
Agreement, dated November 17, 1998 between WHY USA North America, Inc.
(hereinafter "COMPANY") and Xxxx X. Xxxx (hereinafter "SALES REP.").
1. TERM AND EXTENSION. The employment of the SALES REP. hereunder shall
commence on November 9, 1998 and shall continue until such time as either
party to this agreement chooses to discontinue the sales relationship, except
for the rights granted to SALES REP. as part of a previous agreement dated
November 9, 1998. The COMPANY retains the SALES REP. only for the purposes and
to the extent set forth in this Agreement, and their relation to the COMPANY
shall, during the period of their agreement for services hereunder, be that of
SALES REP.
2. RELATIONSHIP BETWEEN PARTIES. The COMPANY shall retain the SALES REP. on
the basis of an independent contractor, and the SALES REP. shall serve the
COMPANY upon the terms and conditions hereinafter set forth.
Be it understood that a SALES REP. is considered an Independent Contractor. It
is a mutual understanding and agreement by those parties signed below, that an
Independent Contractor is a self-employed individual, and shall be solely
responsible for the payment of their own state and federal income tax and
self-employment tax. The COMPANY shall not under any circumstances withhold
and pay, or be responsible to withhold and pay to the appropriate government
agencies, such taxes. The SALES REP. shall not be entitled to retirement
benefits, fringe benefits, unemployment compensation, and xxxxxxx'x
compensation coverage, distributions or other benefits which may be provided
to employees of the COMPANY.
The SALES REP. shall be free to dispose of such portion of their entire time,
energy, and skill during regular business hours as they are not obligated to
devote hereunder to the COMPANY in such manner as they see fit and to such
persons, firms, or corporations as they deem advisable and in compliance with
Section 3.C.6 below.
Except as otherwise provided in this agreement, the SALES REP. shall have no
authority to negotiate for, bind, obligate or commit the COMPANY by any
promise or representation, unless specifically authorized by the COMPANY in
writing.
3. DUTIES. During the period of this agreement hereunder, the SALES REP. shall
serve the COMPANY and shall perform any and all general franchise services
required, or requested in connection with the business.
a) It shall be the duty of the SALES REP. to represent and sell Company
franchises in the available geographic area of Minnesota and Wisconsin.
b) It shall be the duty of the SALES REP. to confer with the COMPANY as
well as their region in order to familiarize themselves with all rules
and regulations
/s/ DOT
/s/ DAE
Regional Sales Director - DE Page 1
regarding the sale and presentations for sale of Franchises in all
territory that they are authorized to sell Franchises. This includes all
Federal, State and Local rules and laws concerning franchises and sales
of franchises.
c) The SALES REP. shall follow the COMPANY policy and procedures when
selling franchises. These include:
1 . To notify the COMPANY whenever they propose to sell in a region
other than the one approved with this agreement so that the COMPANY
may approve any changes and where necessary register them with the
appropriate agencies, in particular with those states that mandate
registration.
2. Always provide an offering circular as required by law and then
allowing a minimum of ten (10) workdays (except in the State of
Illinois which is 14 days) before presenting a Franchise
Application and Agreement to the prospect.
3. To solicit offices, which are not franchises unless they have a
written invitation on file with WHY USA North America, Inc. from
the specific office requesting information on WHY USA Franchises.
4. Accurately represent and state COMPANY policies to all potential
and present customers.
5. Inform the COMPANY Director of Operations of all problems
concerning offices within the sales territory.
6. Inform the COMPANY Director of Operations if the SALES REP. is
representing, or plans to represent any other business firm. In no
event shall the SALES REP. represent a competitive company or
product line either within or outside the designated sales area.
7. Attending franchise sales meetings and will attend at least 50%
of regional meetings given in their area.
8. The SALES REP. agrees to perform at all times the services
contemplated in this agreement in a manner which will maintain and
increase rather than diminish the goodwill and reputation of the
COMPANY, and shall do nothing to disturb or devalue these interests
or to bring discredit upon the COMPANY.
9. The SALES REP. shall pay for, at his or her expense a personal
automobile, gasoline, entertainment expenses, medical insurance,
auto insurance, personal insurance and all other business expenses
4. TERRITORY. The territory comes forward to this agreement from the Purchase
Agreement dated November 9, 1998 between Xxxx X. Xxxx, et. al. and COMPANY and
includes the following:
a. The right to sell franchises in Minnesota and Wisconsin.
b. The exclusive right to sell franchises in Minnesota for one year with
the right to continue exclusive status for second year if at least five
new franchises are sold during the first year.
/s/ DOT
/s/ DAE
Regional Sales Director - DE Page 2
5. SALES QUOTAS. The sales quota comes forward to this agreement from the
Purchase Agreement dated November 9, 1998 between Xxxx X. Xxxx, et. al. and
COMPANY. SALES REP. shall have the exclusive right to sell franchises in
Minnesota for one year with the right to continue exclusive status for second
year if at least five new franchises are sold during the first year.
SALES REP. shall submit a monthly list of all agencies or individuals that
they have been in contact with including contact name and telephone number.
COMPANY may contact prospects for purposes of validation. The COMPANY may
review reported contacts with SALES REP. for purposes of helping SALES REP.
improve their sales results.
6. COMPENSATION. The compensation to the SALES REP. comes forward to this
agreement from the Purchase Agreement dated November 9, 1998 between Xxxx X.
Xxxx, et. al. and COMPANY. SALES REP. shall receive seventy-five percent (75%)
of initial franchise purchase fees (excluding $500.00 for Broker Start-up Kit)
as collected for the first year. However, Twenty-five percent (25%) will be
returned if franchise fails to stay in business for one (1) full year after
start up. SALES REP. shall receive fifty percent (50%) of the initial
franchise purchase fees (excluding $500.00 for Broker Start-up Kit) as
collected after the first year. SALES REP. shall receive thirty percent (30%)
of residual (transaction) fees as collected.
If the SALES REP. does not sell at least one franchise within six (6) months
of signing this Agreement, this Agreement will then automatically become null
and void.
7. COMMISSION DISPUTES. Any disputes between the SALES REP. and any other
SALES REP. associated with the COMPANY as to any commission or expense payable
to or by said parties shall be resolved by the COMPANY. Any decision of the
COMPANY as to any such matter shall be binding and conclusive on the parties
and the COMPANY shall have no liability to any such party, or anyone claiming
through such party, for any amount paid to another in accordance with such
decision of the COMPANY.
Should a dispute occur between the SALES REP. and the COMPANY the parties may
choose arbitration. A list of arbitrators will be provided by the COMPANY to
the SALES REP. upon written request.
8. COVENANT NOT TO COMPETE. The SALES REP. acknowledges that during the
performance of their duties, they will have been exposed to, have had access
to and otherwise will be trained in utilizing marketing programs and
techniques which have been developed by WHY USA and/or which are unique to the
real estate industry including, but not limited to, the WHY USA 990
OPPORTUNITY Program, the 29 DAY FAST SALE Program, and the like (hereinafter
the "proprietary programs"). The SALES REP. acknowledges that the COMPANY has
a protected interest in having the
/s/ DOT
/s/ DAE
Regional Sales Director - DE Page 3
SALES REP. restrained from utilizing these proprietary programs and techniques
in competition with the COMPANY for a reasonable period of time following
termination of this Agreement.
Accordingly, the SALES REP. agrees that for a period of two (2) years, within
the states of Minnesota and Wisconsin, or any other county of any state in
which there is a WHY USA office following termination of this Agreement, the
SALES REP. shall not compete with the COMPANY either directly or indirectly,
in any capacity either as owner, agent, independent contractor, employee,
consultant, or otherwise by utilizing WHY USA proprietary programs or programs
similar thereto in the real estate business or any other business.
Since a breach of the provisions of this section of this Agreement could not
adequately be compensated by money damages, COMPANY shall be entitled, in
addition to any other right to remedy available to it at law or equity, to an
injunction restraining the breach or threatened breach and to specific
performance of any provision of this section of this Agreement.
If the scope of any provision of this paragraph, or of this Agreement is found
by any Court to be too broad to permit enforcement to its full extent, then
such provision shall be enforced to the maximum extent permitted by law. The
parties agree that the scope of any provision of this Agreement may be
modified by a judge in any proceeding to enforce this Agreement, so that such
provision can be enforced to the maximum extent permitted by law. If any
provision of this Agreement is found to be invalid or unenforceable for any
reason it shall not affect the validity of the remaining provisions of this
Agreement.
9. INDEMNIFICATION AND HOLD HARMLESS PROVISION. The SALES REP. agrees to
indemnify and hold harmless the COMPANY from any and all claims by the SALES
REP., which may arise out of and in the course of the performance of their
duties hereunder. Any and all claims for unemployment benefits and or claims
for workers' compensation benefits are hereby expressly waived by the SALES
REP. who agrees to maintain separate policies of liability, health, and
accident insurance as may be necessary or required by the COMPANY in
connection with the performance of duties in this agreement. The SALES REP.
shall hold the COMPANY harmless for any and all acts committed by the SALES
REP. in which they have misrepresented the COMPANY that may result in
litigation.
10. TERMINATION. Except for rights granted in a Purchase Agreement dated
November 9, 1998, which note that the agreement is in effect for two years
after which time COMPANY may purchase from SALES REP. at a price equal to four
times SALES REP. net income during the previous one-year time period. COMPANY
may terminate this agreement for any reason with written notice. Within seven
(7) days of said termination notice, SALES REP. agrees to do the following
/s/ DOA
/s/ DAE
Regional Sales Director - DE Page 4
a) To return promptly all materials and samples provided by the COMPANY
to them.
b) To immediately deliver all "proprietary information" in their
possession or subject to their control to a designated representative of
the COMPANY.
c) To acknowledgment that all other files maintained by them in
connection with the performance of their services for the COMPANY belong
to the COMPANY. The COMPANY shall retain said files. The SALES REP. at
their expense may make copies of any materials included in said files,
other than materials that constitute proprietary information within the
meaning of Paragraph 7 above.
Unless SALES REP. has been terminated for cause (i.e. theft,
misrepresentation, fraud, conflict of interest, or other prohibited actions
referred to in this agreement, etc.) the SALES REP. will have the right to
continue receiving the transaction fees as defined in Section 6 COMPENSATION,
from the sales made during the tenure of the SALES REP. The COMPANY reserves
the right to purchase all of the SALES REP. rights at any time after the
agreement has been in effect for two years. The purchase price shall be equal
to four times SALES REP. net income during the previous one-year time period
11. RESIGNATION. The SALES REP. agrees to provide the COMPANY 30-days'
written notice should they intend to terminate this agreement. Within seven
working days from the notice of resignation the SALES REP. agrees to the
following:
a)To return promptly all materials and samples provided by the COMPANY to
them.
b)To immediately deliver all "proprietary information" in their
possession or subject to their control to a designated, representative of
the COMPANY.
c)To acknowledgment that all other files maintained by them in connection
with the performance of their services for the COMPANY belong to the
COMPANY. The COMPANY shall retain said files. The SALES REP. at their
expense may make copies of any materials included, in said files, other
than materials, that constitute proprietary information within the
meaning of Paragraph 7 above.
Should the SALES REP. leave the company in good standing they will be paid for
a period of six months, after their resignation, based on the terms listed
above in Section 6 COMPENSATION.
12. DEATH. Should SALES REP. die during the tenure of this agreement. It is
understood that the heirs shall have the right to continue receiving the
transaction fees as defined in Section 6 COMPENSATION, from the sales made
during the tenure of the SALES REP. The COMPANY reserves the right to purchase
all of the SALES REP. rights at any time after the agreement has been in
effect for two years. The purchase price shall be equal to four times SALES
REP. net income during the previous one-year time period.
/s/ DOT
/s/ DAE
Regional Sales Director - DE Page 5
13. LITIGATION. In the event any transaction involving the COMPANY or SALES
REP. results in litigation or legal expense the COMPANY and the SALES REP.
shall share all expenses connected therewith in the same proportion as they
would normally share the commission resulting from such transaction if there
were no dispute or litigation. The SALES REP. shall fully cooperate with the
COMPANY with respect to any disputed matters. The COMPANY, in conjunction with
the SALES REP., may determine whether or not any litigation or dispute shall
be prosecuted, defended, compromised, or settled, the terms and conditions of
any such compromise or settlement, and whether or not legal expense shall be
incurred, provided, however, that no compromise or settlement requiring the
payment of money or anything of value by the SALES REP. shall be accepted by
the COMPANY without the written consent of the SALES REP. The COMPANY shall
have the right to select legal counsel, and the SALES REP. shall be required
to share the expenses of counsel selected by the COMPANY.
Where the dispute arises because of the SALES REP. misrepresenting the COMPANY
the SALES REP. is responsible in full for their own legal expenses.
If the SALES REP. and the COMPANY cannot agree on any of the above,
arbitration is available as indicated in Section 7 COMMISSION DISPUTES.
14. ENTIRE AGREEMENT. This Agreement shall be construed in accordance with
Wisconsin law, which shall prevail, and shall constitute the entire Agreement
between the parties. In witness whereof, Xxxxx 0. Xxxxxx, President of WHY USA
North America, Inc. and Xxxx X. Xxxx, the SALES REP. hereunder, have set their
hand and seal, as of this day and year first above written.
WHY USA North America, Incorporated Regional Sales Director
/s/ Xxxxx X. Xxxxxx /s/ Xxxx X. Xxxx
Xxxxx 0. Xxxxxx, President Xxxx X. Xxxx
Regional Sales Director-DE Page 6
/s/ DOT
/s/ DAE
