THIS SALES REPRESENTATIVE AGREEMENT (“Agreement”) is made and entered into effective the date of submission on this form, by and between Accord Marketing and Management, Inc., a Missouri Corporation (“Company”) and yourself (“Employee”).
WHEREAS, Company desires to employ Employee, and Employee desires to accept such employment with Company on the terms and conditions set forth in this Agreement;
WHEREAS, this Agreement describes the manner in which Company shall compensate Employee; and
WHEREAS, Employee’s execution of this Agreement is a condition of employment with Company.
NOW THEREFORE, in consideration of the mutual covenants and promises contained herein, the parties, intending to be legally bound, agree as follows:
1. At-Will Employment. Company agrees to employ Employee and Employee accepts employment with Company upon the terms set forth in this Agreement. Employee shall be employed on an at-will basis which means that either Employee or Company may terminate the employment relationship at any time and for any reason. As a professional courtesy, Employee agrees to provide at least two weeks' advance notice to Company if Employee decides to end Employee's employment with Company.
2. Position and Duties. Employee shall be employed on a full-time basis in the position of Project Manager. Employee is classified as an exempt employee. Employee’s primary duty shall be selling Company’s consumer products. Employee shall perform such duties for Company as are consistent with such position, as well as such other duties as reasonably requested by Company. Employee shall exercise the highest degree of professionalism in performing Employee’s job duties.
3. Full-Time Efforts. Employee shall devote Employee’s full-time professional energy, skill, efforts and attention to Employee’s duties hereunder, and Employee shall not, during the term of this Agreement, actively engage in any other business activity or any other activity which would conflict with Employee’s obligations hereunder or which would impair or otherwise affect Employee’s ability to carry out Employee’s duties under this Agreement, unless specifically allowed by Company.
4. Probationary period. Employee is subject to a probationary period of 60 days. At any time during the probationary period (as permitted by law), Company can terminate employment without any notice.
5. Worker's Compensation, Unemployment and Employment Verifications. Company has hired Employer's Risk Administrators as their Professional Employer Organization (PEO). Employer's Risk Administrators will provide human resources, payroll and employee relations services to Company and its employees. While Company will direct your work, Employer's Risk Administrators will be the employer of record for Worker's Compensation, Unemployment and employment verifications.
4. Commissions. During Employee’s employment, Employee’s compensation shall consist solely of commissions which shall be calculated and paid as described in this Agreement:
a. Definitions. The following terms are defined for purposes of thisAgreement:
- "Capped Out Job" shall mean a Job on which Company has received payment in full, the Gross Profit and Gross Margin have been computed and a report or "cap sheet" with respect to the same has been finalized.
- "Gross Revenue" means the total revenue collected by Company for a Job, less customer refunds.
- "Gross Profit" means the Gross Revenue collected by Company for a Job, less ten percent (10%) for general overhead expenses, two percent (2%) for warranty and technology expenses, set fees (as applicable), and less the actual costs for labor, materials, permits, reimbursements, deductions, rentals, and such other costs attributable to the Job as determined by Company.
- "Gross Margin" means the Gross Profit for a Job divided by the Gross Revenue collected by Company with respect to such Job.
- "Job" means a project sold by Employee and accepted by Company's management team following approval by the customer and the customer's insurance carrier, as applicable.
b. Duties. Employee will perform the following sales services for each Job and commissions shall be earned based on the completion of each segment of the sales services as described below:
Sell the Job (e.g., solicit sales of Company's consumer products via in-home visits with consumers, which may include performing damage estimates, submitting completed work orders, etc.) 33%
Oversee Completion of the Job 33%
Collect Full and Final Payment for the Job 33%
All of the duties within each particular segment must be completed by Employee in order for Employee to obtain full compensation for the underlying sale and resulting Job as provided in this Agreement. Failure to fully perform any of the requested duties will result in a deduction of the relevant compensation by thirty-three percent (33%). A determination of whether the duties for a particular segment have been sufficiently performed will be made by Company in its sole discretion.
c. Commission Compensation. Employee's commission rate for each Job sold by Employee will be equal to twenty-five percent (25%) or current Employee’s commission rate of Gross Profit for each Job. If the Gross Margin is less than fifteen percent (15%), Employee will not earn any commissions for the Job. If the Gross Margin is greater than fifteen percent (15%), Employee's commission for that Job will be up to the applicable commission rate multiplied by the Gross Profit (the "Maximum Commission"). To earn the Maximum Commission on a Job, there must be sufficient Gross Profit so that Employee's commissions can be paid from the Gross Profit remaining after fifteen percent (15%) of the Gross Revenue has been deducted from the Gross Profit. If there is not sufficient Gross Profit for Employee to earn the Maximum Commission on a Job (as described above), then Employee will receive whatever Gross Profit remains after fifteen percent (15%) of the Gross Revenue has been deducted from the Gross Profit.
Example #1. If the Gross Profit is $3,000 on a Job with a Gross Revenue of $10,000, the Gross Margin would be 30% (i.e., $3,000 / $10,000). If the applicable commission rate is 25%, the Maximum Commission that may be payable to Employee is $750 (i.e., $3,000 x 25%). Because there is sufficient Gross Profit remaining to pay the Maximum Commission after deducting 15% of the Gross Revenue from the Gross Profit, Employee would receive commissions of $750.
Example #2. If the Gross Profit is $1,700 on a Job with a Gross Revenue of $10,000, the Gross Margin would be 17% (i.e., $1,700 / $10,000). If the applicable commission rate is 25%, the Maximum Commission that may be payable to Employee is $425 (i.e., $1,700 x 25%). Because there is not sufficient Gross Profit remaining to pay the Maximum Commission after deducting 15% of the Gross Revenue from the Gross Profit, Employee would receive commissions of $200.
d. Payment. Company's work week runs from Saturday to Friday and commissions are calculated based on all Capped Out Jobs through Friday of each workweek for payment on the following Friday. Commissions shall be paid on the first payday following the end of the workweek in which Company determines the Job to be a Capped Out Job. If a Job is not determined to be "Capped Out" within ninety (90) days of the Job's completion, no commission will be payable to Employee for that Job.
e. Payments Upon Termination of Employment. In the event Employee's employment with Company terminates for any reason, Company will immediately calculate estimated commissions for all of Employee's uncompleted Jobs as of Employee's last date of employment with Company for purposes of determining Employee's potential outstanding commissions based on the Services completed as of such date (the "Potential Commissions"). The Potential Commissions shall be held by Company until: (i) all amounts owed to Company have been satisfied in full; and (ii) Company has collected in full on all accounts receivable attributable to all Jobs sold by Employee thus enabling Company to definitively calculate Employee's commissions pursuant to this Agreement. In the event Employee’s owes Company an amount that exceeds the Potential Commissions, Employee shall immediately reimburse Company for the outstanding amount. Employee acknowledges and agrees that Company may utilize all efforts, as it deems appropriate, for purposes of collecting unearned advances from Employee in the event of failure to immediately repay such amounts. As Jobs sold by Employee are completed and/or collected by Employee's replacement following termination, the portion of the commissions allocable to Employee based on performance of the Services, if any, will be credited to Employee's account of Potential Commissions. In the event this account is positive following satisfaction of all criteria in this Section, Company will issue a commission check to Employee for such amount within two (2) weeks following the date upon which the final amount may be calculated. Under no circumstances will Employee be eligible for or earn commissions on a Job for which Company files a lien or otherwise remains uncollected ninety (90) days following termination of Employee’s employment. In such event, the Job will no longer be commissionable to Employee and Company shall be released from any obligation to pay Employee further commissions on such Job.
5. Termination. Employee’s employment by Company pursuant to this Agreement shall terminate at any time upon Employee or Company notifying the other that the employment relationship will end. As a professional courtesy, Employee shall give Company at least thirty (30) days’ advance notice of Employee’s termination of Employee’s employment. Upon any notice of termination of this Agreement, Company shall have the right, in its sole and absolute discretion, to immediately relieve Employee of Employee’s duties and responsibilities hereunder, but to continue paying Employee’s then-current Base Salary through the remainder of the notice period, if any. If Employee is not relieved of Employee’s regular duties during this notice period, Employee hereby acknowledges and agrees that Employee shall continue to perform Employee’s duties hereunder in a professional and ethical matter.
6. Effect of Termination. Upon termination of this Agreement, for any reason, Company shall provide the following compensation and benefits to Employee:
a. Base Salary through the effective date of Employee’s termination of employment; and
b. All employee benefits accrued through the effective date of termination, including, without limitation, those referenced herein, and all benefits provided through Company’s plans, pursuant to the terms and conditions of such plans.
7. Recoverable Draw from Commissions.
A draw is an advance of future commissions to the salesperson that is carried forward until the salesperson earns sufficient commissions to repay the recoverable draw or until the employee is no longer with the company. The draw will be repaid as follows:
a. A minimum of 25% of earned commissions will be applied toward repayment of the recoverable draw per pay period until it has been fully repaid.
b. If a salesperson’s employment is terminated prior to full repayment of the recoverable draw, then the amount outstanding becomes due and payable in full at the time of termination. The company reserves the right to withhold the outstanding balance from any form of compensation due to the salesperson to include salary, commissions, incentives, and reimbursable expenses where allowed by state and federal law.
Before issuance of the draw, the salesperson will be required to sign a copy of this policy stating that he or she understands the terms for repayment. The signed document must be on file with Employer’s Risk Administrators to facilitate the processing of the payment(s).
a. Entire Agreement. This Agreement, including the initial paragraph and the recitals to this Agreement, each of which is incorporated herein and made part of this Agreement by this reference, constitutes the entire agreement of the parties and shall supersede and replace all prior agreements and understandings between the parties hereto concerning the subject matter hereof. This Agreement is binding upon, and shall inure to the benefit of, the parties hereto and the personal representatives and heirs of Employee and the successors and permitted assigns of Company. No change or modification of this Agreement shall be valid unless the same shall be in writing and signed by the parties hereto.
b. Assignability. This Agreement and the rights, interests and obligations of Company hereunder shall be assignable. This Agreement is not assignable by Employee.
c. Jurisdiction and Venue. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Missouri. Each party agrees that any action by either party to enforce the terms of this Agreement may be brought by the other party in an appropriate state or federal court in Missouri and waives all objections based upon lack of jurisdiction or improper or inconvenient venue of any such court.
d. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. An electronic transmission or facsimile of this Agreement shall be deemed an original and shall be admissible as evidence of the document and the signer’s execution.
IN WITNESS WHEREOF, the parties have agreed to this Agreement as of the day and year when this electronic form was completed.
ACCORD MARKETING AND MANAGEMENT, INC., A Missouri Corporation