BROKER LISTING COOPERATIVE®
SUBSCRIBER AGREEMENT
July 2024
This Broker Listing Cooperative (hereafter referred to as the “BLC”) Subscriber Agreement (this “Agreement”) is entered into by and between MIBOR Service Corporation (“MSC”), an Indiana corporation, and you, a Subscriber of the BLC Listing Service as defined in MSC Bylaws Article 5 Section 4 (“Subscriber”) to define important rights and terms of use of valuable MSC products and services.
CAREFULLY READ THE TERMS OF THIS BROKER LISTING COOPERATIVE® SUBSCRIBER AGREEMENT (“AGREEMENT”) BEFORE USING OR ACCESSING, OR CONTINUING TO USE OR ACCESS, THE BROKER LISTING COOPERATIVE (“BLC”), THE SYSTEM OR ANY OTHER PRODUCT(S) PROVIDED BY OR THROUGH THE MIBOR SERVICE CORPORATION (“MSC”). THIS IS A LEGALLY BINDING AGREEMENT. YOUR CONTINUED ACCESS TO AND USE OF THE BLC® SYSTEM AND ANY OTHER PRODUCT(S), AS THOSE TERMS ARE DEFINED BELOW, CONSTITUTES YOUR ACCEPTANCE AND AGREEMENT TO BE BOUND BY THE MOST CURRENT VERSION OF THIS AGREEMENT, THE TERMS AND CONDITIONS OF WHICH MAY BE FOUND WITHIN THE BLC® SYSTEM OR UPON REQUEST. ALL RIGHTS AND PRIVILEGES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY SUBJECT TO YOUR COMPLIANCE WITH THIS AGREEMENT.
A. MSC operates a real estate Broker Listing Cooperative® (hereinafter referred to as the BLC®) in Indiana and provides other related products and services.
B. Subscriber 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 through a Participant Broker. For purposes of this Agreement, the term “Participant” shall mean the principal broker that supervises Subscriber’s real estate activities and on whose behalf Subscriber conducts those real estate activities as defined in Article 5, Section 1 of the MSC Bylaws, and 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. Subscriber 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 Subscriber acknowledge and agree that they both have an interest in protecting the security of the System, Content and Products
E. MSC and Subscriber desire to set forth the terms under which Subscriber may access and use the BLC® System, Content and Products in this Agreement.
F. This Agreement shall supersede and replace any prior Subscriber Agreement between MSC and Subscriber regarding the matters governed herein.
Now, therefore, in consideration of receiving access to the BLC® System, Content and Products, Subscriber agrees to abide by the mutual covenants, promises, terms and conditions set forth herein.
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 Subscriber. Subscriber represents and warrants the following to MSC:
a. Subscriber is licensed as a real estate broker by the state of Indiana and such license is in good standing and contains no restrictions. Subscriber also represents and warrants that Subscriber is affiliated with a Participant and will continue in such capacity at all times while this Agreement is in effect. If Subscriber, at any time during the term of this Agreement, loses their license or is no longer affiliated with a Participant in good standing, Subscriber agrees to, and shall, notify MSC promptly. Subscriber represents and warrants to MSC that any information provided by Subscriber on the System will be true, accurate and complete, and will not violate any law, statute, ordinance, or regulation.
b. Subscriber meets all other requirements and qualifications to subscribe to the BLC® System, Content and Products established by MSC and, to the extent required, that Subscriber is in good standing with MIBOR REALTOR® Association and/or any other association of REALTORS® to which Subscriber holds membership;
c. The Participant to which Subscriber is affiliated has consented to Subscriber entering into this Agreement;
d. This Agreement, when accepted by Subscriber, will be valid, binding and enforceable with respect to Subscriber in accordance with its terms;
e. The performance and exercising of all obligations and rights provided for under this Agreement, and the fulfillment of Subscriber’s obligations as contemplated under this Agreement in particular, are proper and lawful;
f. Subscriber 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 Subscriber’s execution of this Agreement done under duress or as a result of coercion; and
g. Subscriber is duly authorized to enter into this binding
Agreement.
2. License and BLC® System Access. MSC hereby grants Subscriber a revocable, limited, nonexclusive license to use the BLC® System, conditioned upon the permission of Participant, and subject to this Agreement, the Rules and Regulations, policies, Governing Documents, and the terms of this Agreement, and according to the terms of any applicable IDX Agreement (the License). All other uses are prohibited. MSC hereby grants Subscriber a revocable, limited, nonexclusive license to use the BLC® Database, subject to adherence to the Rules and Regulations, Governing Documents, and the terms of this Agreement and according to the terms of any IDX Agreement (“IDX Agreement) between MSC and the Participant. Failure to comply with this provision will result in a significant fine and possible loss of System access. Additionally, the License is subject to the following:
a. The Subscriber 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. Subscriber 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), Subscriber may permit duly authorized
employees or agents associated with their office to access the BLC® on
Subscriber’s behalf. Subscriber agrees that in the event they permit authorized
and associated employees or agents to access the BLC® System pursuant to this
License, Subscriber 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® System to such employee or agent who ceases to be
associated with Subscriber or otherwise authorized as set forth in this
provision.
c. The Subscriber 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 Subscriber’s own data, to any person, firm, corporation or entity, whether or not for compensation, without the express written consent of MSC and the property owner whose information is so disseminated, except for appraisal or comparative market analysis purposes or the marketing of properties for prospective purchasers or tenants.
3. License to IDX Listings. Upon the receipt of a written request from Participant, in a form acceptable to MSC, and so long as Participant, Subscriber, 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 Subscriber or the applicable Vendor a license to the IDX Listings. The license will only be granted pursuant to a License Agreement. MSC has no obligation to grant a license to Subscriber or any Vendor which does not enter into a License Agreement. In addition to any applicable license fee payable by Subscriber and/or the Vendor, Subscriber shall pay to MSC or its designated vendor all costs and expenses incurred 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 Subscriber, Participant, 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).
4. Term.
a. The term of this Agreement shall commence on the July 1, 2024, or the date this Agreement is acknowledged by Subscriber, 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 Subscriber is no longer eligible to subscribe 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. Subscriber 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.
b. MSC may, in its sole discretion, terminate this Agreement upon the occurrence of any of the following events: (1) Subscriber requests in writing to MSC that this Agreement be terminated; (2) Subscriber fails to pay any Fees (as described in Section 6 of this Agreement) when due; (3) Subscriber discloses any Confidential Information, including, without limitation, any password or other credential of Subscriber, except as expressly provided in this Agreement; (4) Subscriber 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®; (5) Subscriber 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; (6) Subscriber defaults under any other material term or condition of this Agreement; or (7) Subscriber ceases to qualify to be a subscriber for any reason, including without limitation, changes to Subscriber’s license or termination, suspension or resignation of any subscription with MSC or, if required, termination, suspension or resignation of Subscriber’s membership with MIBOR or other Board.
c. This Agreement shall automatically terminate upon termination, or be temporarily suspended upon any suspension of greater than thirty (30) days, of the Participation Agreement of Subscriber’s Participant; except that if Participant, and not Brokerage Firm, entered into the terminated or suspended Participation Agreement, this Agreement shall continue in effect provided that another participant or his/her Brokerage Firm enters into a Participation Agreement within thirty (30) days after termination of the terminated Participation Agreement. If another Participation Agreement is not entered into within such thirty (30) day period, this Agreement shall automatically terminate upon expiration of such thirty (30) day period.
d. In addition to all other rights and remedies available to MSC under this Agreement, if Subscriber 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 Subscriber to access the BLC® 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.
e. Notwithstanding anything to the contrary in this Agreement, if Subscriber violates or is alleged to have violated the Rules and Regulations, termination of this Agreement in accordance with Section 4 of this Agreement is subject to any hearing or appeal rights of Subscriber provided in the Rules and Regulations or other controlling document.
f. Upon termination of this Agreement, Subscriber agrees to immediately destroy any printouts of the BLC® Database or Listing Content, and any copies of the BLC® Database and Listing Content in Subscriber’s possession or under Subscriber’s control. No pre-paid Fees will be refunded to Subscriber for any termination of this Agreement.
g. Upon termination of this Agreement, all licenses granted, including without limitation, the licenses granted in Sections 2 and 3 of this Agreement, and all services provided to Subscriber 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 Subscriber under an applicable agreement.
h. If, for any reason, any Subscriber Agreement is terminated, Subscriber acknowledges that Participant will either assign all Participant’s Listings originated by the terminated Subscriber to another of Participant’s subscribers, or request that MSC terminate or change the status of Participant’s Listings originated by the terminated Subscriber.
i. The rights and obligations of the parties set forth in this Section 4 and Sections 5, 6, 8, 9, 11, 12, 13, 14, 16, and 17, 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.
5. Intellectual Property Ownership; Enforcement.
a. Subscriber 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. Subscriber hereby irrevocably assigns to MSC any and all rights which it may have or acquire in and to the BLC® Database.
b. Subscriber acknowledges and agrees that the Listing Content, and all copies, modifications, enhancements, and derivative works of the Listing Content, are proprietary, confidential, original works of authorship of MSC, or have been assigned or licensed to MSC, and are protected under United States copyright, trademark, and trade secret laws of general applicability. Subscriber acknowledges and agrees that all right, title, and interest in and to the Listing Content, together with all copies, modifications, enhancements, and derivative works, including all copyright and other intellectual property rights are and shall remain with MSC or its licensors. Subscriber hereby irrevocably assigns to MSC any and all rights not assigned to Participant which it may have or acquire in and to the Listing Content. Nothing in this Agreement or the Rules and Regulations shall be deemed to convey to Subscriber an interest in or to the BLC® Database or Listing Content, but only a limited right of access and use, revocable in accordance with the terms of this Agreement.
c. Subscriber 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 provisions of this Agreement or any license, including the License, granted herein. Subscriber 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 Listing Content and the BLC® Database.
d. Subscriber 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. SUBSCRIBER ACKNOWLEDGES THAT THE FOREGOING SENTENCE MEANS THAT SUBSCRIBER 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 SUBSCRIBER 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, SUBSCRIBER 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 4.e, Subscriber acknowledges and agrees that MSC may 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 Participant/brokerage firm or by the Rules and Regulations.
f. Subscriber acknowledges that Participant has granted 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, Subscriber further acknowledges that Participant has irrevocably authorized, empowered and vested 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 Subscriber, Participant or others, 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.
In the event Subscriber retains any of the rights described in this Section 5(f), Subscriber grants the same to MSC and similarly irrevocably authorizes, empowers and vests in MSC the right, and appoints MSC as Subscriber’s attorney in fact, to do and take such action as described in subsections (i)-(iv) above. Notwithstanding the foregoing, nothing in this Section 5(f) requires MSC to take any action against any person, firm, partnership or other entity that Subscriber claims may be infringing any Listing Content.
6. Fees. In consideration for the ability to subscribe to, use and access MSC’s BLC® System, Content, Products and other services provided by MSC, and for the licenses granted under this Agreement, Subscriber agrees to pay to MSC the fees (the “Fees”) in the amount, and in accordance with the terms, established by MSC for subscribers to 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 Subscriber. Any notice required under this Section 6 may be given by (a) email to Subscriber at the email address maintained by MSC or MIBOR for Subscriber (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 subscribers. The terms of MSC’s billing policy, as amended from time to time, is expressly incorporated into this Agreement by this reference.
7. No Assignment by Subscriber. Subscriber agrees that this Agreement is personal to Subscriber, and Subscriber 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 Subscriber’s rights, duties, or obligations under this Agreement shall be null and void and a material breach of this Agreement.
8. Interruptions in Service. Subscriber acknowledges that access to the System, BLC® Database or other Product(s) may from time-to-time be unavailable to Subscriber, whether because of technical failures or interruptions, intentional downtime for service or changes to MSC’s website(s), or otherwise. Subscriber 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 Subscriber for any such modifications, interruptions, unavailability, or failure of access.
9. Limitation on Use. Except as expressly provided in this Agreement, the Rules and Regulations or upon the express prior written consent of MSC, Subscriber 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, Subscriber may not circumvent any technological measures or features of the BLC® that are intended to or effectively control access to the System, Product(s) and/or Content.
Subscriber further agrees that they 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 Subscriber’s website or otherwise mislead third parties into believing they are accessing the System, any Product or any site affiliated with MSC, MIBOR or the BLC®.
10. Submission of Listings. As a material condition to accessing the BLC® Database, Subscriber agrees to submit to MLS on behalf of Participant, all Listings in accordance with, and except as otherwise provided in, the Rules and Regulations. MSC may refuse to accept or include in, and may remove from, the BLC® Database any Listing or Listing Content, or may require Subscriber 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, Subscriber acknowledges that MSC has no obligation to remove, modify or refuse to accept any Listing or Listing Content. MSC grants to Subscriber 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. Subscriber acknowledges and agrees that any Listing or Listing Content, or any prospective Listing or Listing Content, submitted by Subscriber or its affiliates may be accessible by other participants and subscribers of the BLC® System as well as the general public, and MSC shall have no liability to Subscriber for providing such access to any Listing or Listing Content, or any prospective Listing or Listing Content.
11. Links to Other Websites. The BLC® System may contain links to other websites (“Linked Websites”). The Linked Websites are provided for Subscriber’s convenience and information only and, as such, Subscriber accesses them at Subscriber’s own risk. Subscriber agrees and acknowledges that MSC is not responsible for, and does not endorse, the content of or anything that may be delivered to Subscriber or Subscriber’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.
12. Confidential Information. Any information provided by MSC to any Subscriber, including without limitation, any password or other login credentials to the BLC® System or other Product(s), any data, 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 Subscriber as confidential and available exclusively for use by Subscriber as provided in this Agreement. Subscriber shall not disclose any Confidential Information to anyone, except as ordered by a court of competent jurisdiction or as otherwise required by law. Subscriber shall not disclose any Confidential Information pursuant to a court order or as required by law until Subscriber has given MSC ten (10) days prior written notice and an opportunity to oppose such disclosure. Notwithstanding the foregoing, Subscriber may disclose Listing Content for individual Listings strictly in accordance with this Agreement and the Rules and Regulations.
13. No Warranties; Exclusion of Liability. Subscriber understands and expressly agrees to the following:
a. Subscriber’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 by or made available by msc, including with respect to any real estate listing, contained in or provided through the BLC® System is at Subscriber’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® System. MSC does not warrant the functions of, or contained in, the BLC® System, Products, or MLS website (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 Subscriber, any user of the System, PRODUCT or Subscriber’s website, or any third party for any decision made or action taken in reliance upon the Content contained in or provided through the System or other Product(s). Any Content Subscriber downloads or otherwise obtains through the use of the System, Product(s), or any Linked Website, is at Subscriber’s own risk, and Subscriber will be solely responsible for any damage to Subscriber’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 System, other Product(s), 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 SUBSCRIBER, 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 SUBSCRIBER TO msc DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM ARISES. WITHOUT WAIVER OF THE FOREGOING LIMITATION ANDTo the fullest extent permitted by law, in no event shall MSC be liable to Subscriber, or any user of the System or Subscriber’s website, or to any third party for any loss, expense, or 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 or reliance upon Content or services obtained by or provided through the System, or for any error or omission, or otherwise in any way connected with use of the System, whether based on contract or tort, even if MSC has been advised of the possibility of such damages.
14. Indemnification. Subscriber 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 attorney’s fees and costs, arising out of or resulting from (a) any violation by Subscriber of this Agreement; (b) the content of Subscriber’s website; or (c) any Listing Agreement; (d) submission to MSC of any Listing or Listing Content and the inclusion of any Listing or Listing Content by Subscriber 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 Subscriber or Subscriber’s agents or contractors, and (f) Subscriber’s use of the System, Content or any Product which is not expressly authorized in this Agreement. Subscriber’s obligations under this Section 14 are in addition to Subscriber’s indemnification obligations established under Section 5(d).
15. Compliance with the MLS Rules, Regulations and Policy.
a. Subscriber understands and agrees that access to and use of the System is contingent upon Subscriber’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. Subscriber understands and agrees that failure to comply may result in a fine and/or suspension or termination of MSC services , which includes loss of use of the BLC® System and access to other Product(s).
b. By entering into this Agreement, Subscriber represents and warrants to MSC that Subscriber 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, Subscriber acknowledges that MSC may levy fines against Subscriber 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, an applicable Participation Agreement, and the Rules and Regulations, the Rules and Regulations shall govern. As between this Agreement and any applicable Participation Agreement, this Agreement shall govern.
16. Proprietary and Other Notices. Subscriber 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.
17. Attorney’s Fees. If MSC initiates or defends any arbitration or legal action or proceedings which are in any way connected with this Agreement against Subscriber, MSC shall be entitled to recover its reasonable costs and attorney fees, including such costs and fees on appeal, from Subscriber.
18. 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.
19. Authorization. The Subscriber represents and warrants that Subscriber is duly authorized to enter into this binding Agreement.
20. Amendment. MSC may amend this Agreement at any time, subject to the terms of this Section 20. Any such amendment will be effective thirty (30) days following the earlier of: either (a) the date notice of such amendment is sent to subscribers 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 subscribers of record at the email address MSC has on file, regardless of whether notice is actually received by Subscriber. If Subscriber does not agree to this Agreement or any future amendments, Subscriber must not use or access the BLC® System or any other MSC Products.
21. Definitions. The following terms shall have the following meanings in this Agreement:
a. “Agreement” means this Broker Listing Cooperative Subscriber Agreement, as amended or updated from time to time, between MSC and Subscriber.
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 Subscriber 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 6 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 Subscriber, the MIBOR (or other Board) or the National Association of REALTORS®.
j. “License Agreement” means a means a license agreement entered into between MSC (or a designated vendor of MSC as described below) and (a) Subscriber, (b) Participant, or (c) a third party at the request of Subscriber or Participant. 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 Subscriber and/or 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’s Listings” means only the Listings of Participant.
q. “Product(s)” has the meaning set forth in Recital (C) of this Agreement.
r. “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 or available to Subscriber), all as amended by MSC from time to time. The documents are generally made available on MIBOR’s website or within the BLC®.
s. “Seller” means the seller(s) or lessor(s) of a property which is the subject of a Listing at issue under this Agreement.
t.
“Subscriber” means the individual
meeting the definition of a subscriber in Article 5, Section 4 of the MSC
Bylaws who is agreeing to be bound by this Agreement. Subscriber may also be
referred to as “You” or “Your.” 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.
Where the term “subscriber” is not capitalized, it indicates a generic usage
which may refer to other or all subscribers of MSC.
u. “System” or “BLC® System” have the meaning set forth in Recital (B) of this Agreement.
v. “Vendor” means any person or entity which has entered into a License Agreement for display of real estate listings for Participant or a subscriber of Participant. Where the term “vendor” is not capitalized, it indicates a generic usage with the ordinary meaning of the word.
w. “You” or “Your” shall refer to Subscriber who is agreeing to be bound by this Agreement.