BROKER LISTING COOPERATIVE®
PARTICIPATION AGREEMENT
July 2024
This Broker Listing Cooperative® (hereafter referred to as the “BLC”) Participation Agreement (this “Agreement”) is entered into by and between MIBOR Service Corporation (“MSC”), a Indiana corporation, and you, an individual real estate broker or broker in charge, or a real estate brokerage firm as defined in MSC Bylaws Article 5 Section 1 (“Participant”) to define important rights and terms of use of valuable MSC products and services.
RECITALS
A. MSC operates a real estate Broker Listing Cooperative® “BLC®” in Indiana and provides other related products and services.
B. Participant wishes to access and utilize the BLC® System, including without limitation the BLC® Database and the BLC® website(s), platform, and integrated products (the “System” or “BLC® System”) and the BLC® content (the “Content”) contained within the System provided by MSC, and to allow its licensed real estate agents (“Subscribers”) to access the System. For purposes of this Agreement, the term “Content” shall mean the listing content, including, but is not limited to, photographs, images, graphics, audio and video recordings, virtual tours, drawings, descriptions, remarks, narratives, pricing information, and other details or information related to listed property.
C. Participant wishes to use other products and services of MSC (“Products”), including but not limited to property access solutions and tools (including lock box equipment, hardware and support, and showing scheduling services and applications), public records, market statistics, client engagement tools and other products, services or data provided by MSC or integrated into the BLC® System.
D. MSC and Participant acknowledge and agree that they both have an interest in protecting the security of the System, Content and Products.
E. MSC and Participant desire to set forth the terms under which Participant may access and use the BLC System, Content and Products in this Agreement.
F. This Agreement shall supersede and replace any prior Participant Agreement between MSC and Participant regarding the matters governed herein.
Now, therefore, in consideration of receiving access to the System, Content and Products, Participant agrees to abide by the mutual covenants, promises, terms and conditions set forth herein.
AGREEMENT
The Preamble and Recitals above constitute material and operative provisions of this Agreement and are hereby incorporated into this Agreement by this reference.
1.
Representations
of Participant. Participant represents and
warrants the following to MSC:
a.
Participant is licensed as a real estate broker by the state of Indiana
and such license is in good standing and contains no restrictions. If Participant, at any time during the term
of this Agreement, loses their license or any restriction is placed thereon, Participant
agrees to, and shall, notify MSC promptly.
Participant represents and warrants to MSC that any information provided
by Participant to MSC or on the BLC® will be true, accurate and complete, and
will not violate any law, statute, ordinance, or regulation;
b. Participant meets all other requirements and qualifications to participate in the BLC®, System, Content and Products established by MSC and, to the extent required, that Participant is in good standing with MIBOR REALTOR® Association and/or any other association of REALTORS® to which Participant holds membership;
c. Participant is capable of cooperating with other participants. Cooperation is the obligation to share information on listed property and to make property available to other brokers for showing to prospective purchasers and tenants when it is in the best interested of their client(s)
d. This Agreement, when accepted by Participant, will be valid, binding and enforceable with respect to Participant in accordance with its terms;
e. The performance and exercising of all obligations and rights provided for under this Agreement, and the fulfillment of Participant’s obligations as contemplated under this Agreement in particular, are proper and lawful;
f. Participant is not and shall not be under any disability, restriction or prohibition related to the execution of this Agreement and the performance of its obligations under this Agreement nor is Participant’s execution of this Agreement done under duress or as a result of coercion; and
g. Unless exempted under the Governing Documents, all of Participant’s Sales Licensees have entered into Subscriber Agreements or will enter into Subscriber Agreements prior to use or access of the System, Content or any Products.
2. License and BLC® System Access. MSC hereby grants Participant a revocable, limited, nonexclusive license to use the BLC® System, subject to adherence to this Agreement, the Rules and Regulations, policies and Governing Documents (all as amended from time to time), and the terms of this Agreement (the “License”). All other uses are prohibited and may result in a significant fine, possible loss of BLC® System access and/or revocation of the License. The Participant understands and agrees that the License is subject to and conditioned upon the following terms and restrictions:
a) The Participant agrees to prohibit access to the BLC® System by those not authorized to use it and agrees to keep any login or security credentials for any BLC® System, Content or Product strictly confidential. Participant further agrees to take all other reasonable steps to protect the BLC® System, Content and Products from unauthorized access, copying or use.
b) To the extent expressly permitted under this Agreement, the Rules and Regulations and the Governing Documents (if at all), Participant may permit duly authorized employees or agents associated with their office to access the BLC® System on Participant’s behalf. Participant agrees that in the event they permit authorized and associated employees or agents to access the System pursuant to this License, Participant shall i) bear full responsibility (including associated fees, if any), and shall be liable to MSC and/or subject to disciplinary action for use of the BLC® System, Content and Products by such employee or agent; ii) comply with all procedures established by MSC to register such associated employee or agent as a Licensed or Unlicensed Assistant; and iii) promptly terminates access to BLC® to such employee or agent who ceases to be associated with Participant or otherwise authorized as set forth in this provision;
c) The Participant agrees not to sell, publish, reformat, recompile or resell Content, derive products or analyses from the Content, nor distribute in written, printed or electronic form proprietary or copyrighted information of, or provided by, the BLC® or MSC (including any System, Content and Products), other than Participant’s own data, to any person, firm, corporation or entity, whether or not for compensation, without the express written consent of MSC, except for appraisal or comparative market analysis purposes or the marketing of properties for prospective purchasers or tenants.
3. IDX Advertising Consent. Unless Participant has made an express, written non-participation election for MSC’s Internet Data Exchange (IDX) program as described in the Rules and Regulations, Participant expressly consents to other participants in MSC’s IDX program advertising all of Participant’s Listings in accordance with the IDX policy set forth in the Rules and Regulations.
4. License to IDX Listings. Upon the receipt of a written request from Participant, in a form acceptable to MSC, and so long as Participant, the applicable Subscriber(s), and/or an applicable Vendor are not in default under this Agreement, the Rules and Regulations, any License Agreement, or any agreement with MSC, MSC will grant to Participant, the applicable Subscriber(s) of Participant, or the applicable Vendor a license to the IDX Listings (as that term is defined in the Rules and Regulations). The license will only be granted pursuant to a License Agreement deemed acceptable to MSC. MSC has no obligation to grant a license to Participant, any Subscriber(s), or any Vendor which does not enter into such a License Agreement. In addition to any applicable license fee payable by Participant, the Sales Licensee, and/or the Vendor, Participant shall pay to MSC or its designated vendor all costs and expenses incurred by MSC in connection with any licenses and any services provided by, or on behalf of, MSC in connection with such licenses. For clarity, MSC may require that Participant, the Subscriber, and/or the Vendor enter into a License Agreement with the BLC® software/platform provider and/or the MLS Technology Platform, LLC d/b/a MLS Grid (or similar partner/provider of MSC).
5. Term.
a) The term of this Agreement shall commence on the July 1, 2024, or the date this Agreement is acknowledged by Participant, whichever is later. This Agreement shall continue in full force and effect until terminated as provided in this Agreement or the Rules and Regulations or such time that Participant is no longer eligible to participate or receive MSC products and services such as the System and Product(s), or until such time that any requisite MIBOR or Board membership (if required) has been terminated. Participant understands that a duly ratified violation of the Code of Ethics of the National Association of REALTORS® may result in suspension or termination of any rights granted under this Agreement. Participant further understands that upon termination or suspension of this Agreement, Participant, and any Sales Licensees or subscribers affiliated with Participant will not be able to access or use the BLC® System or any Products under this Agreement or any Subscriber Agreement.
b) MSC may, in its sole discretion, terminate this Agreement, upon the occurrence of any of the following events: (1) Participant fails to pay any Fees (as defined in Section 7 of this Agreement) when due; (2) Participant discloses any Confidential Information, including, without limitation, any password or other credential of Participant or a Sales Licensee, except as expressly provided in this Agreement; (3) Participant otherwise fails to comply in all respects with the Rules and Regulations, the applicable Board Rules and Regulations, or the Code of Ethics and Standards of Practice of the NATIONAL ASSOCIATION OF REALTORS®; (4) Participant defaults under any material term or condition of any License Agreement contemplated in this Agreement, or otherwise related to the BLC®, the System, Content or any Product; (5) Participant defaults under any other material term or condition of this Agreement; or (6) Participant ceases to qualify to be a participant for any reason, including without limitation changes to Participant’s license or termination, suspension or resignation of any subscription with MSC or, if required, termination, suspension or resignation of Participant’s membership with MIBOR.
c) In addition to all other rights and remedies available to MSC under this Agreement, if Participant fails to pay any Fees when due, or otherwise defaults under this Agreement, MSC may, in its sole discretion, temporarily suspend the license granted to Participant to access the MSC Database and all other rights to access or use MSC’s System, Content or Products until all outstanding Fees have been paid in full or the default has been cured.
d) Notwithstanding anything to the contrary in this Agreement, if Participant violates or is alleged to have violated the Rules and Regulations, termination of this Agreement in accordance with Section 5 of this Agreement is subject to any hearing or appeal rights of Participant provided in the Rules and Regulations or other controlling document.
e) Upon termination of this Agreement, Participant agrees to immediately destroy any printouts of the BLC® Database or Listing Content, and any copies of the BLC® Database and Listing Content in Participant’s possession or under Participant’s control. No pre-paid Fees will be refunded to Participant for any termination of this Agreement.
f) Upon termination of this Agreement, all licenses granted, including without limitation, the licenses granted in Sections 2 and 4 of this Agreement, and all services provided to Participant under this Agreement, including without limitation, the System, Content and Products, shall terminate. In addition, any and all rights granted to Vendors to access or use the BLC® Database pursuant to the Rules and Regulations or separate agreement with MSC shall automatically terminate, unless otherwise expressly provided with respect to Sales Licensees under an applicable Subscriber Agreement.
g) If, for any reason, any Subscriber Agreement is terminated, Participant agrees to either assign all Participant’s Listings originated by the terminated Sales Licensee to another of Participant’s Sales Licensees, or request that MSC terminate or change the status of Participant’s Listings originated by the terminated Sales Licensee.
h) The rights and obligations of the parties set forth in this Section 5 and Sections 3, 6, 7, 10, 11, 13, 14, 15, 16,18, and 19 of this Agreement, and any right or obligation of the parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
6. Intellectual Property Ownership; Enforcement.
a. Participant acknowledges and agrees that the BLC® Database, compilation, and all copies, modifications, enhancements, and derivative works of the BLC® Database or compilation, are the property of MSC, and all right, title, and interest in and to the BLC® Database, together with all copies, modifications, enhancements, and derivative works, including all copyright and other intellectual property rights are and shall remain with MSC. Participant hereby irrevocably assigns to MSC any and all rights which it may have or acquire in and to the BLC® Database.
b. Participant hereby grants to MSC a non-exclusive, irrevocable, worldwide, royalty free license to use, sublicense through multiple tiers, copy, publish, display, and reproduce the Listing Content, to prepare derivative works of the Listing Content, and to distribute the Listing Content or any derivative works thereof. Such license shall be deemed granted as of the moment of creation without the necessity of any further action on the part of either party. Participant represents and warrants to MSC with respect to the Listing Content for each of Participant’s Listings that the Listing Content, and the license of rights in and to the Listing Content to MSC, do not infringe or violate any copyrights, trade secrets, or other intellectual or proprietary rights of any third party.
c. Participant agrees not to challenge MSC’s rights in and to the Listing Content, the BLC® Database or compilation, or to take any action inconsistent with the license granted to the Listing Content under this Agreement. Participant agrees to take all action and execute and deliver to MSC all documents requested by MSC in connection with the license granted to MSC in and to the Listing Content. Participant further agrees to take all action and execute and deliver to MSC all documents requested by MSC in connection with the copyright application and registration of the BLC® Database.
d. Participant shall indemnify MSC against all damages, costs, and liabilities, including reasonable attorney fees, arising from any claim that the Listing Content or any portion of the Listing Content infringes the rights of any third party or from any breach or violation of this Section 6. PARTICIPANT ACKNOWLEDGES THAT THE FOREGOING SENTENCE MEANS THAT PARTICIPANT MUST OBTAIN ASSIGNMENTS OR LICENSES FROM THE AUTHORS OF ANY PORTIONS OF THE LISTING CONTENT, INCLUDING AFFILIATES, SELLERS AND THIRD-PARTY CONTRIBUTORS, AS NECESSARY FOR PARTICIPANT TO LICENSE THE LISTING CONTENT TO MSC AND TO OTHERWISE MAKE FULL USE OF THE LISTING CONTENT UNDER THIS AGREEMENT. IF PARTICIPANT FAILS TO DO SO, PARTICIPANT WILL ASSUME AND REIMBURSE MSC FOR THE COST OF DEFENDING MSC AGAINST INFRINGEMENT CLAIMS AND PAYING DAMAGES ON ANY SUCH CLAIMS.
e. Without limiting the generality of this Section 6, but subject to the rights of participants in the BLC® System to opt out of inclusion with respect to Listings submitted by such participant as set forth in the Rules and Regulations, Participant acknowledges and agrees that MSC may use and license, or otherwise grant rights in or to the BLC® Database or any or all of the Listings included in the BLC® Database, including any and all Listing Content, to any third party for any lawful purpose reasonably deemed appropriate by MSC, unless otherwise limited by a separate agreement between MSC and the applicable broker or by the Rules and Regulations.
f. Participant hereby grants to MSC all rights necessary for MSC to protect and enforce all intellectual property rights associated with the Listing Content, including all copyrights. In accordance with the grant of such rights, Participant hereby irrevocably authorizes, empowers and vests in MSC the right, and appoints MSC as Participant’s attorney in fact, to do the following:
i. Add watermarks or other means of identification to any and all Listings and Listing Content, regardless of whether such means of identification is visible, and take any and all other action deemed appropriate by MSC to identify the source of any misuse, infringement, or misappropriation of any Listing or Listing Content.
ii. Send demand letters, exercise rights under any applicable license agreements, and take any and all other action deemed appropriate by MSC to prevent or remedy the misuse, infringement, or misappropriation of any Listing Content.
iii. Enforce and compromise any and all intellectual property rights in the Listing Content, including all copyrights, whether such rights are held in the name of Participant or others (including affiliated Sales Licensees or subscribers), and take all action deemed necessary and appropriate by MSC in connection with the enforcement of all such rights, including, without limitation, the filing and prosecution of litigation or binding arbitration with respect to any potential claim of infringement, misappropriation, or other similar claim, the naming of any parties deemed appropriate by MSC, and the collection of any damages.
Notwithstanding the foregoing, nothing in this Section 6(f) requires MSC to take any action against any person, firm, partnership or other entity that Participant claims may be infringing any Listing Content.
7. Fees. In consideration for participation in, access to, and use of MSC’s BLC® System, Content, Products and other services provided by MSC and for the licenses granted under this Agreement, Participant agrees to pay to MSC the fees (the “Fees”) in the amount, and in accordance with the terms, established by MSC for participation by participants in MSC’s BLC® and for use of other MSC Products, which amount and terms may be changed by MSC, at any time, effective upon thirty (30) days prior written notice to Participant. Any notice required under this Section 7 may be given by (a) email to Participant at the email address maintained by MSC or MIBOR for Participant (without any mail receipt requirement), or (b) conspicuous publication within the BLC® Listing Service or other MSC or MIBOR website, app or dashboard which is reasonably calculated to provide notice to participants. The terms of MSC’s billing policy, as amended from time to time, is expressly incorporated into this Agreement by this reference.
8. Agreement With Sales Licensees (Subscribers). Participant agrees to cause all of Participant’s Sales Licensees who will receive access to the BLC® through Participant to enter into a subscriber agreement, in a form and substance acceptable to MSC (a “Subscriber Agreement”), in its sole discretion.
9. No Assignment by Participant. Participant agrees that this Agreement is personal to Participant, and Participant may not assign or transfer this Agreement, including any license granted under this Agreement, or transfer any rights or delegate any duties under this Agreement, to any third party. Any attempt to assign, transfer, or delegate any of Participant’s rights, duties, or obligations under this Agreement shall be null and void and a material breach of this Agreement.
10. Interruptions in Service. Participant acknowledges that access to the System, BLC® Database or other Product(s) may from time-to-time be unavailable to Participant, whether because of technical failures or interruptions, intentional downtime for service or changes to MSC’s website(s), or otherwise. Participant agrees that any modification of MSC’s website(s), and any interruption or unavailability of access to the BLC® Database, the System, or any Product, regardless of the cause, shall not constitute a default of any obligations of MSC under this Agreement, and MSC shall have no liability of any nature to Participant for any such modifications, interruptions, unavailability, or failure of access.
11. Limitation on Use. Except as expressly provided in this Agreement, the Rules and Regulations, or upon the express prior written consent of MSC, Participant may not modify, copy, distribute, transmit, display, perform, reproduce, publish, upload, post license, frame in another website, use on any other website, create derivative works of, transfer, sell, and/or exploit for commercial use, any Content, software, Listings, databases or other lists, products or services provided through or obtained from the BLC®, including by email or other electronic means. In addition, Participant may not circumvent any technological measures or features of the BLC® that are intended to or effectively control access to the System, Products and/or Content. The Participant’s own data is excluded from these use limitations.
Participant further agrees that he/she will not:
a)
take any action that imposes or may impose (in the sole discretion
of MSC) an unreasonable or disproportionately large load on MSC’s
infrastructure (including infrastructure maintained by an MSC vendor for the
benefit of MSC);
b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any Content from the BLC® without MSC’s express prior written consent and the appropriate third party, as applicable;
c)
interfere or attempt to interfere with the proper working of the BLC®
or any activities conducted on the System;
d) bypass
any measures MSC may use to prevent or restrict access to the System; or
e) use the terms “Broker Listing Cooperative®”, “BLC®”, “MIBOR”, “MLS” or any close variation of these terms on Participant’s website, e-mail address, URL, or otherwise mislead third parties into believing they are directly accessing the System, any Product, or any site affiliated with the MSC, MIBOR or the BLC®.
12. Submission of Listings. As a material condition to accessing the BLC® Database, and in accordance with the obligation to cooperation, Participant agrees to submit to MSC and into the BLC®, all Listings in accordance with, and except as otherwise provided in, the Rules and Regulations. Cooperation is the obligation to share information on listed property and to make property available to other brokers for showing to prospective purchasers and tenants when it is in the best interested of their client(s). MSC may refuse to accept or include in, and may remove from, the BLC® Database any Listing or Listing Content, or may require Participant to direct MSC to modify any Listing Content, as provided under the Rules and Regulations or if MSC determines, in its sole discretion, that such Listing or Listing Content may violate or infringe upon the rights of a third party. Notwithstanding the foregoing sentence and except as provided in the Rules and Regulations, Participant acknowledges that MSC has no obligation to remove, modify or refuse to accept any Listing or Listing Content. MSC grants to Participant a limited, non-exclusive, personal license to input Listing Content in the BLC® Database and to modify such Listing Content strictly in accordance with the terms and conditions of this Agreement, the Rules and Regulations and other MSC policies. Participant acknowledges and agrees that any Listing or Listing Content, or any prospective Listing or Listing Content, submitted by Participant or affiliated Sales Licensees or subscribers may be accessible by other participants and subscribers of BLC® System as well as the general public, and MSC shall have no liability to Participant for providing such access to any Listing or Listing Content, or any prospective Listing or Listing Content.
13. Links to Other Websites. The BLC® System may contain links to other websites (“Linked Websites”). The Linked Websites are provided for Participant’s convenience and information only and, as such, Participant accesses them at Participant’s own risk. Participant agrees and acknowledges that MSC is not responsible for, and does not endorse, the content of or anything that may be delivered to Participant or Participant’s computer as a result of accessing any Linked Websites. Without limiting the generality of the foregoing, MSC is not responsible and shall have no liability for any viruses or other illicit code that may be downloaded through a link found on the BLC® System, or by accessing a Linked Website.
14. Confidential Information. Any information provided by MSC to any Participant, including without limitation, any password or other credential to the BLC® System or Product, any exports or printouts of the BLC® Database, Product or other Content as provided under this Agreement, and all Listing Content, including personal information of a Seller (collectively “Confidential Information”) shall be maintained by Participant as confidential and available exclusively for use by Participant as provided in this Agreement. Participant shall not disclose any Confidential Information to anyone, except as ordered by a court of competent jurisdiction or as otherwise required by law. Participant shall not disclose any Confidential Information pursuant to a court order or as required by law until Participant has given MSC ten (10) days prior written notice and an opportunity to oppose such disclosure. Notwithstanding the foregoing, Participant may disclose Listing Content for individual Listings strictly in accordance with this Agreement and the Rules and Regulations.
15. No Warranties; Exclusion of Liability. Participant understands and expressly agrees to the following:
a) Participant’s use of and reliance upon any and all content, Products, services and any other information or data contained in the system or any product or otherwise provided or made available by msc, including with respect to any real estate listing, contained in or provided through the BLC® is at Participant’s sole risk. Such content and services, as well as the system and products, are provided on an “as is” and “as available” basis. MSC makes no express or implied representations, warranties or guarantees with respect to the appropriateness, accuracy, sufficiency, correctness, veracity, value, completeness, availability, merchantability, fitness for a particular purpose, or timeliness of the Content or methods contained in or provided through the BLC®. MSC does not warrant the functions of, or contained in, the BLC® SYSTEM, products, or website(s) (INCLUDING MOBILE OR TABLET-BASED WEBSITES OR APPLICATIONS) will be uninterrupted or error-free or free of viruses or other harmful components. MSC expressly disclaims all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. SPECIFICALLY, BUT WITHOUT LIMITATION, MSC DISCLAIMS ANY WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY LISTINGS, ANY LISTING CONTENT, AND/OR THEIR ACCURACY
b) In no event will MSC be liable to Participant, any user of the System, PRODUCT or Participant’s website, or any third party for any decision made, or action taken, in reliance upon the Content contained in or provided through the BLC® SYSTEM OR OTHER PRODUCT. Any Content Participant downloads or otherwise obtains through the use of the System, PRODUCT(S) or any linked website, is at Participant’s own risk, and Participant will be solely responsible for any damage to Participant’s equipment, software, OR website, OR ANY DAMAGE ARISING FROM OR RELATING TO ANY loss of data, theft, destruction, unauthorized access to or alteration of personal records, the reliance upon or use of the Content, opinions or other materials appearing on the BLC® or a linked website, or other personal loss that results from the download or use of any material on the SYSTEM, ANY PRODUCT, or a linked website.
c) Msc’S ENTIRE AND CUMULATIVE LIABILITY TO PARTICIPANT, OR ANY OTHER PARTY, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE blc® SYSTEM, ANY PRODUCT(S), OR LISTING CONTENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY PARTICIPANT TO msc DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM ARISES. WITHOUT WAIVER OF THE FOREGOING LIMITATION AND To the fullest extent permitted by law, in no event shall MSC OR MIBOR be liable to Participant, or any user of the BLC® or Participant’s website, or to any third party for any loss, expense, or INDIRECT damage, of any nature, including consequential, incidental, special or punitive damages, and including lost profits or lost revenue, caused directly or indirectly by the use OF or reliance upon Content or services obtained by or provided through the BLC®, or for any error or omission, or otherwise in any way connected with use of the BLC® System OR ANY MSC PRODUCT, whether based In contract or tort, even if MSC has been advised of the possibility of such damages.
16. Indemnification. Participant agrees to indemnify, defend and hold harmless MSC and MIBOR, and their respective officers, directors, employees, shareholders, agents, affiliates, suppliers, successors and assigns from and against any and all liability, loss, claim, demand, suit, proceeding, damage, cost and expense, including reasonable attorneys’ fees and costs, arising out of, connected with, or resulting from (a) this Agreement; (b) the content of Participant’s website; (c) any Listing Agreement; (d) submission to MSC of any Listing or Listing Content and the inclusion of any Listing or Listing Content by Participant in the BLC® Database, including, without limitation, any claim that the access to, display of, and/or use of any Listing Content infringes on or constitutes a misappropriation of any patent, copyright, or trade secret, or any other intellectual property right of any person or entity anywhere in the world, including any claims by Sellers, (e) any negligent acts, errors, or omissions of Participant or Participant’s agents or contractors, and (f) Participant’s use of the System, Content or any Product which is not expressly authorized in this Agreement. Participant’s obligations under this Section 16 are in addition to Participant’s indemnification obligations established under Section 6(d).
17. Compliance with the Governing Rules, Regulations and Policy.
a. Participant understands and agrees that access to and use of the System is contingent upon Participant’s compliance with this Agreement, the Rules and Regulations, MSC policies, the Governing Documents, and the terms of any applicable IDX Agreement and License Agreement. Participant understands and agrees that failure to comply may result in a fine and/or suspension or termination of the BLC® service, which includes loss of use of System and access to other Product(s).
b. By entering into this Agreement, Participant represents and warrants to MSC that Participant, or its principal broker if Participant is a brokerage firm, has read, understands, and shall be bound by and at all times fully comply with this Agreement, the Rules and Regulations, the applicable Board Rules and Regulations (if any), and, to the extent applicable, the Code of Ethics and Standards of Practice of the NATIONAL ASSOCIATION OF REALTORS®. A copy of the then-current versions of the Rules and Regulations, policies and Governing Documents are available upon request and are generally published on MIBOR’s website or within the BLC® System. In addition to all other rights and remedies available to MSC under this Agreement, the Rules and Regulations, policies, the Governing Documents, and any applicable IDX Agreement or License Agreement, Participant acknowledges that MSC may levy fines against Participant, or any subscriber affiliated with Participant for noncompliance with the Rules and Regulations as provided in the Rules and Regulations.
c. To the extent there is any conflict between this Agreement, the Rules and Regulations, and any applicable Subscriber Agreement, the Rules and Regulations shall govern. As between this Agreement and any Subscriber Agreement, this Agreement shall govern.
18. Proprietary and Other Notices. Participant agrees that they will not alter or remove any trademarks or copyright notices or other notices and disclaimers located or used on, or in connection with, the BLC® System or other Product(s), or any export or printouts from the BLC® System or other Product.
19. Attorneys’ Fees. If MSC initiates or defends any arbitration or legal action or proceedings against Participant which are in any way connected with this Agreement, MSC shall be entitled to recover its reasonable costs and attorneys’ fees, including such costs and fees on appeal, from Participant.
20. Waiver. The failure of MSC to enforce at any time or for any period of time any of the provisions of this Agreement will not be construed to be a waiver of such provisions or of its right thereafter to enforce such provisions and each and every provision thereafter, unless such provisions are expressly waived in a signed, written agreement by both parties.
21. Authorization. The Participant represents and warrants that Participant is duly authorized to enter into this binding Agreement.
22. Amendment. MSC may amend this Agreement at any time, subject to the terms of this Section 22. Any such amendment will be effective thirty (30) days following the earlier of: either (a) the date notice of such amendment is sent to participants via email, or (b) the date of publication in the BLC® System. Notice of amendment via email is satisfied if MSC, sends the notice of amendment in a manner which is reasonably calculated to be delivered to all participants of record at the email address MSC has on file, regardless of whether notice is actually received by Participant. If Participant does not agree to this Agreement or any future amendments, Participant must not use or access the BLC® System or any other MSC Products.
23. Definitions. The following terms shall have the following meanings in this Agreement:
a. “Agreement” means this Broker Listing Cooperative Participation Agreement, as amended or updated from time to time, between MSC and Participant.
b. “BLC® Database” means the compilation of Listings, including information for sold properties, known as the Broker Listing Cooperative® Listing Service, BLC® Listing Service or BLC® Database, as modified from time-to-time by MSC.
c. “BLC® System” or “System” have the meaning set forth in Recital (B) of this Agreement.
d. “Board” means a board of REALTORS® or association of REALTORS® established and operated in accordance with the applicable rules and regulations of the NATIONAL ASSOCIATION OF REALTORS®.
e. “Board Rules and Regulations” means the rules and regulations, policies, bylaws and other governing documents, as amended, of MIBOR or the Board of which a Participant is a member.
f. “Content” has the meaning set forth in Recital (B) of this Agreement.
g. “Exempted Listing” means a Listing which the respective Seller has refused permission to be disseminated in the BLC® Listing Service, or a Listing which is not required to be submitted to the BLC® Listing Service, in accordance with the Rules and Regulations
h. “Fees” shall has the meaning set forth in Section 7 of this Agreement..
i. “Governing Documents” means the bylaws, charter, constitution, articles of incorporation or other organizational documents or instruments of MSC and, to the extent applicable to Participant, MIBOR or the National Association of REALTORS®.
j. “License Agreement” means a license agreement entered into between MSC (or a designated vendor of MSC as described below) and (a) Participant, (b) Subscriber(s) of Participant, or (c) a third party at the request of Participant, Subscriber(s). MSC may require that its designated vendor, which aggregates and licenses Content on behalf of MSC (such as MLS GRID), be a party to such a License Agreement in lieu of, or in addition to, MSC.
k. “Listing” means a real estate listing of a Participant in MSC’s BLC® Listing Service.
l. “Listing Agreement” means an enforceable, written, and fully executed agreement between Participant and a Seller whereby, among other things, Participant agrees to provide real estate sales services to Seller.
m. “Listing Content” means all data and content, including without limitation, all photographs, images, graphics, video recordings, virtual tours, drawings, written descriptions, remarks, narratives, and pricing information submitted by Participant to MSC and/or the BLC® Listing Service with respect to a Listing, excepting Exempted Listings.
n. “MIBOR” means the MIBOR REALTOR® Association, Inc., an Indiana nonprofit corporation.
o. “MSC” means the MIBOR Service Corporation, an Indiana corporation. When the term “MSC” is used in conjunction with a release, waiver, disclaimer, indemnification, limitation of liability or other similar provision, the term shall also include MIBOR and the respective officers, directors, employees, shareholders, agents, affiliates, suppliers, successors and assigns of both MSC and MIBOR.
p. “Participant” means the individual real estate broker or broker in charge, or a real estate brokerage firm as defined in MSC Bylaws Article 5, Section 1 who is agreeing to be bound by this Agreement. Participant may also be referred to as “You” or “Your.” Where the term “participant” is not capitalized, it indicates a generic usage which may refer to other or all participants of MSC.
q. “Participant’s Listings” means only the Listings of Participant.
r. “Product(s)” has the meaning set forth in Recital (C) of this Agreement.
s. “Rules and Regulations” means (i) the BLC® Listing Service Rules and Regulations; (ii) the BLC® Listing Service Policy Manual; (iii) any BLC® content use and license policies; and (iv) any other rules or policies of MSC (including without limitation rules, policies and terms related to other MSC Products provided to Participant), all as amended by MSC from time to time. The documents are generally made available on MIBOR’s website or within the BLC®.
t. “Sales Licensee” and “Subscriber” mean an individual meeting the definition of a subscriber in Article 5, Section 4 of the MSC Bylaws who has entered into a Subscriber Agreement with MSC. For convenience purposes only, the definition of “Subscriber” in Article 5, Section 4 of the MSC Bylaws includes, “non-managing brokers, sales associates, and licensed and certified appraisers affiliated with participants.” In the event, this definition is amended in the MSC Bylaws, the amended definition shall control.
u. “Seller” means the seller(s) or lessor(s) of a property which is the subject of a Listing at issue under this Agreement.
v. “Subscriber” or “Sales Licensee” mean an individual meeting the definition of a subscriber in Article 5, Section 4 of the MSC Bylaws who has entered into a Subscriber Agreement with MSC. For convenience purposes only, the definition of “Subscriber” in Article 5, Section 4 of the MSC Bylaws includes, “non-managing brokers, sales associates, and licensed and certified appraisers affiliated with participants.” In the event, this definition is amended in the MSC Bylaws, the amended definition shall control.
w. “Subscriber Agreement” has the meaning set forth in Section 8 of this Agreement.
x. “System” or “BLC® System” have the meaning set forth in Recital (B) of this Agreement.
y. “Vendor” means any person or entity which has entered into a License Agreement for display of real estate listings for Participant or a Sales Licensee of Participant.
“You” or “Your” shall refer to Subscriber who is agreeing to be bound by this Agreement.