MLS Subscription Agreement
Subscription Agreement
BY CLICKING THE “I AGREE” BUTTON ASSOCIATED WITH THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”), YOU ARE ACCEPTING AND AGREEING TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU WILL NOT BE ALLOWED TO ACCESS THE MLS DATABASE OR ANY OF THE OTHER SERVICES DESCRIBED IN THIS AGREEMENT, OR IF YOU ARE AN EXISTING SUBSCRIBER TO THE PARK CITY BOARD OF REALTORS® MULTIPLE LISTING SERVICE, YOUR ACCESS WILL BE TERMINATED.
This Agreement is made and entered into by and between you, a Subscriber, as defined in Section 29, and the Park City Board of REALTORS® , a Utah corporation (“PCBR”). In exchange for good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, PCBR and Subscriber agree as follows:
1. Definitions. Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in Section 29 of this Agreement.
2. Grant of Subscriber Rights in Multiple Listing Service.
a. Subject to the terms and conditions of this Agreement and PCBR’s Rules and Regulations, PCBR grants Subscriber the following rights and licenses in the MLS Database, as applicable. Subscriber agrees to take all reasonable steps to protect the MLS Database and Listing Content from unauthorized access, copying, or use. Access to the MLS Database shall be through a means determined by PCBR.
i. Participant. PCBR grants to each Subscriber who is a Participant a license to access and use the MLS Database and the Listings included in the MLS Database, and a sublicense to use the MLS System, solely for the purposes set forth in the PCBR Rules and Regulations and this Agreement, and Participant shall have all rights and obligations of a participant in PCBR’s multiple listing service as set forth under PCBR’s Rules and Regulations. Subscriber may permit duly authorized employees or office assistants associated with his/her office to access the MLS Database on his/her behalf and pursuant to the terms of this Agreement only if he/she (a) accepts full responsibility, and shall be liable to PCBR for use of the MLS Database by such employee or office assistant, and (b) promptly terminates access to the MLS Database by such employee and office assistant upon such employee or office assistant ceasing to be authorized as set forth in this Section.
ii. Agent. PCBR grants to each Subscriber who is an Agent a license to access and use the MLS Database and the Listings included in the MLS Database, and a sublicense to use the MLS System, solely for the purposes set forth in the PCBR Rules and Regulations and this Agreement, and Agent shall have all rights and obligations of a subscriber in PCBR’s multiple listing service as set forth under PCBR’s Rules and Regulations. Agent may permit duly authorized employees or office assistants associated with his/her office to access the MLS Database on his/her behalf and pursuant to the terms of this Agreement, only if he/she (a) accepts full responsibility, and shall be liable to PCBR for use of the MLS Database by such employee or office assistant; and (b) promptly terminates access to the MLS Database by such employee and office assistant upon such employee or office assistant ceasing to be authorized as set forth in this Section.
iii. Administrative Member. PCBR grants to each Subscriber who is an Administrative Assistant a license to access and use the MLS Database and the Listings included in the MLS Database, and a sublicense to use the MLS System, solely for the purpose of providing administrative services and assistance to any of the persons identified in the definition of Administrative Assistant in Section 29.
iv. Appraiser and Appraiser Trainee. PCBR grants to each Subscriber who is an Appraiser or Appraiser Trainee a license to access the MLS Database and use the Listings included in MLS Database, and a sublicense to use the MLS System, only for purposes expressly allowed under the respective Appraiser and Appraiser Trainee applicable certification or licensure, the Rules and Regulations, and any applicable License Agreement, solely for the use by the Appraiser or Appraiser Trainee to prepare an appraisal, an appraisal report, a certified appraisal report, or to perform a consultation service relating to real estate or real property for third party clients for which a fee is charged in the ordinary course of the Appraiser’s business or Appraiser Trainee’s employer’s business. No Appraiser or Appraiser Trainee may access the MLS Database or use the information contained in Listings included in the MLS Database to prepare an appraisal, an appraisal report, a certified appraisal report, or to perform a consultation service relating to real estate or real property outside the scope of the his/her authority granted him/her under the licensing and certification provisions of Utah Code Annotated, Section 61-2b-1 and following, or other applicable law. Any appraisal, certified appraisal, or appraisal report issued or consultation performed by an Appraiser Subscriber or Appraiser Trainee Subscriber based on or related to his/her use of information contained in Listings included in the MLS Database must be properly within the scope of his/her authority granted under, and comply with requirements and restrictions of, the licensing and certification provisions of Utah Code Annotated, Section 61-2b-1 and following, or other applicable law. Each Appraiser agrees to directly supervise Appraiser Trainee’s access to the MLS Database and use of the information contained in the Listings included in the MLS Database.
v. Assessor. PCBR grants to each Subscriber who is an Assessor a license to access and use only the portion of the MLS Database consisting of sold Listings, and a sublicense to use the MLS System, to the extent that it is used to obtain the sold Listings only for Assessor’s internal business purposes, namely, valuing and assessing real property.
vi. Affiliate. PCBR grants to each Subscriber who is an Affiliate and who PCBR agrees in its sole discretion may have a license, a license to access and use the MLS Database and the Listings included in the MLS Database, and a sublicense to use the MLS System, solely for the purposes determined by PCBR, in its sole discretion. Not all Affiliates will have a license or sublicense, and some Affiliates may be limited to a license in order to obtain any statistical information related to the Listings in the MLS Database that PCBR provides in its sole discretion to such Affiliate.
3. Grant of Sublicense. Subject to the terms and conditions of this Agreement and PCBR’s Rules and Regulations, PCBR grants to Subscriber a sublicense to access and use the features of the Membership System intended for use by Subscriber and which allow Subscribers to edit their profile, make a payment, or register for a class, including reviewing a calendar of classes offered and classes for which Subscriber has registered.
4. MLS System. Each Subscriber shall gain access to the MLS Database through the MLS System licensed to PBCR and shall be subject to the following requirements and restrictions:
a. Subscriber shall not copy, modify, re-engineer, decompile, disclose, misappropriate, or otherwise use the MLS System, except as set forth in the documentation associated with the MLS System and the agreement entered into by Subscriber whereby Subscriber was granted a license to use the MLS System.
b. Subscriber shall not create any interface between the MLS System and any other software program without the written consent of PCBR.
c. Subscriber shall not sell, license, publish, display, make available for access, distribute or otherwise transfer to any other party the MLS System or any copy thereof, or allow any other party to use the MLS System, directly or indirectly, in whole or in part, without PCBR’s prior written consent.
d. Subscriber shall, at its sole cost and expense, install all of the software on Subscriber’s computer that PCBR shall require in its sole discretion, and Subscriber shall take all other action required by PCBR from time to time.
e. Subscriber’s use of the MLS System through a RETS Interface shall not be excessive such that, during any ninety (90) day period, the average kilobytes transferred per user session via a RETS Interface exceeds the average kilobytes transferred per user session via an Internet browser by twenty-five percent (25%) over ten (10) consecutive days.
f. Subscriber shall not access the MLS System in any manner that adversely impacts the performance of the MLS System (“Adverse Use”). Subscriber acknowledges that Subscriber’s access to the MLS System is subject to termination if Subscriber has failed to cure any Adverse Use within thirty (30) days written notice.
g. Subscriber shall indemnify and hold harmless PCBR, its officers, directors, managers, employees, agents, and representatives for any claims, losses, liabilities, damages, lawsuits, settlements, or other obligations arising from any acts, misuse, or Adverse Use of the MLS System by Subscriber, or by any officer, director, member, employee, or agent of Subscriber.
5. License to IDX Listings to Agents. Upon the receipt of a written request from Participant, in a form acceptable to PCBR, and so long as Participant, the applicable Agent, and/or an applicable Vendor are not in default under this Agreement, PCBR’s Rules and Regulations or any agreement with PCBR, PCBR will grant to Participant, the applicable Agent of Participant, or the applicable Vendor, a license to the IDX Listings. The license will only be granted pursuant to a License Agreement. PCBR has no obligation to grant a license to Participant, any Agent or any Vendor which does not enter into a License Agreement. In addition to any applicable license fee payable by Participant, the Agent and/or the Vendor, Participant and Agent shall pay to PCBR all costs and expenses incurred by PCBR in connection with any licenses and any services provided by PCBR in connection with such licenses.
6. Limitations on Licenses. Except as expressly authorized in this Agreement or the Rules and Regulations, Subscriber agrees not to rent, lease, sublicense, distribute, transfer, copy, reproduce, display, modify, store, time-share, or otherwise use the MLS Database or the information maintained in the MLS Database. Subscriber further agrees to take all reasonable steps to protect the MLS Database from unauthorized access, copying or use.
7. Intellectual Property Ownership; Enforcement.
a. Subscriber acknowledges and agrees that the MLS Database, and all copies, modifications, enhancements, and derivative works of the MLS Database, are the property of PCBR, and all right, title, and interest in and to the MLS Database, together with all copies, modifications, enhancements, and derivative works, including all copyright and other intellectual property rights are and shall remain with PCBR. Subscriber hereby irrevocably assigns to PCBR any and all rights which it may have or acquire in and to the MLS Database.
b. Participant hereby grants to PCBR a non-exclusive, irrevocable, worldwide, royalty free license to use, copy, sublicense through multiple tiers, 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 PCBR 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 PCBR, do not infringe or violate any copyrights, trade secrets, or other intellectual or proprietary rights of any third party. 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 PCBR, or have been assigned or licensed to PCBR, 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 PCBR or its licensors. Subscriber hereby irrevocably assigns to PCBR any and all rights not assigned to Broker 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 MLS 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 PCBR’s rights in and to the Listing Content or the MLS Database or to take any action inconsistent with the provisions of this Section 6 of this Agreement or the license granted to the Listing Content under this Agreement. Subscriber agrees to take all action and execute and deliver to PCBR all documents requested by PCBR in connection with the license granted to PCBR in and to the Listing Content. Subscriber further agrees to take all action and execute and deliver to PCBR all documents requested by PCBR in connection with the copyright application and registration of the Listing Content and the MLS Database.
d. Participant shall indemnify PCBR 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. 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 ASSOCIATES, PHOTOGRAPHERS SELLERS AND OTHER THIRD PARTY CONTRIBUTORS, AS NECESSARY FOR PARTICIPANT TO LICENSE THE LISTING CONTENT TO PCBR AND TO OTHERWISE MAKE FULL USE OF THE LISTING CONTENT UNDER THIS AGREEMENT. IF PARTICIPANT FAILS TO DO SO, PARTICIPANT WILL ASSUME AND REIMBURSE PCBR FOR THE COST OF DEFENDING PCBR AGAINST INFRINGEMENT CLAIMS AND PAYING DAMAGES ON ANY SUCH CLAIMS.
e. Without limiting the generality of this Section 7.e, but subject to the rights of participants in PCBR’s multiple listing service to opt out of inclusion with respect to Listings submitted by such participant as set forth in PCBR’s Rules and Regulations, Subscriber acknowledges and agrees that PCBR may use and license, or otherwise grant rights in or to the MLS Database or any or all of the Listings included in the MLS Database, including any and all Listing Content, to any third party for any lawful purpose reasonably deemed appropriate by PCBR, unless otherwise limited by a separate agreement between PCBR and the applicable broker or by the Rules and Regulations.
f. Participant hereby grants to PCBR all rights necessary for PCBR 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 PCBR the right, and appoints PCBR as Participant’s attorney in fact, to do the following:
i. Add watermarks or other means of identification to any and all Listings, regardless of whether such means of identification is visible, and take any and all other action deemed appropriate by PCBR to identify the source of any misuse, infringement, or misappropriation of any Listing Content.
ii. Send demand letters, exercise rights under any applicable license agreements, and take any and all other action deemed appropriate by PCBR to prevent 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, and take all action deemed necessary and appropriate by PCBR 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 PCBR, and the collection of any damages.
iv. Execute all documents, whether in the name of Participant and/or PCBR, deemed appropriate by PCBR to effect any of the foregoing.
Notwithstanding the foregoing, nothing in this Section 7 requires PCBR to take any action against any person, firm, partnership or other entity that Participant claims may be infringing any Listing Content.
8. Fees. In consideration for the rights granted in this Agreement, Subscriber agrees to pay to PCBR the fees (the “Fees”) in the amount, and in accordance with the terms, established by PCBR for subscribers to PCBR’s multiple listing service, which amount and terms may be changed by PCBR at any time effective upon thirty (30) days prior written notice to Subscriber. Further, each Appraiser agrees to pay to PCBR all unpaid Fees and other fees and amounts, plus interest, owing to PCBR by any Appraiser Trainees working under the direction of or employed by such Appraiser. In addition, each Appraiser agrees to pay to PCBR an amount equal to the fees that would be owing by all Appraiser Trainees who are employed by or working under the direction of such Appraiser, and who are not Subscribers.
9. Agreement With Agents. Participant agrees to cause all of Participant’s Agents who will receive access to the MLS Database through Participant to enter into a Subscription Agreement.
10. Responsibility for Associates. Participant shall be responsible and liable to PCBR for the acts and omissions of its Associates, and shall be responsible for each Associate’s compliance with the Rules and Regulations. Any failure to comply with the Rules and Regulations by an Associate shall be deemed a failure to comply by Participant, and Participant shall be responsible and liable to PCBR for any damages incurred by PCBR arising from or as a result of an Associate’s noncompliance with the Rules and Regulations.
11. 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.
12. Interruptions in Service. Subscriber acknowledges that access to the MLS Database may from time-to-time be unavailable to Subscriber, whether because of technical failures or interruptions, intentional downtime for service or changes to PCBR’s website, or otherwise. Subscriber agrees that any modification of PCBR’s website, and any interruption or unavailability of access to the MLS Database shall not constitute a default of any obligations of PCBR under this Agreement, and PCBR shall have no liability of any nature to Subscriber for any such modifications, interruptions, unavailability, or failure of access.
13. Copies and Derivative Works. Except as otherwise expressly provided in this Agreement, PCBR’s Rules and Regulations or a separate license agreement, Subscriber may not do any of the following, either directly or indirectly, including assist any other person to do, or otherwise contribute in any way to any of the following:
a. Make any copies of the MLS Database, or any portion of the MLS Database, including any specific Listing Content included in the MLS Database;
b. Create any derivative works, enhancements, or other modifications of the MLS Database, or any portion of the MLS Database, including any Listing Content included in the MLS Database;
c. Download, distribute, export, or transmit the MLS Database, or any portion of the MLS Database, including any Listing Content included in the MLS Database, to any computer or other electronic device, or otherwise transmit electronically, or otherwise, the MLS Database, or any portion of the MLS Database, including any Listing Content included in the MLS Database; or
d. Publicly display the MLS Database, or any portion of the MLS Database, including any Listing Content included in the MLS Database.
14. Representations and Warranties Regarding Listings.
a. If Subscriber is a Participant or an Agent, then such Participant and Agent represent and warrant with respect to each Participant’s Listing or change to a Participant’s Listing submitted to PCBR under this Agreement and PCBR’s Rules and Regulations by Agent to Participant, the following:
i. Agent and the respective Seller have assigned or licensed in writing all of Seller’s and Agent’s rights, title and interest, including all copyright rights and other intellectual property rights, in and to the Listing Content to Participant..
ii. The Participant’s Listing complies in all respects with PCBR’s Rules and Regulations.
iii. To the best of Participant’s and any applicable Agent’s knowledge and after reasonable due diligence to verify the accuracy of all information in the Participant’s Listing, all information included in the Participant’s Listing is accurate and not misleading.
iv. The Listing Content for each Participant’s Listing is an original work of authorship of Participant, or Participant is the assignee or licensee of such Listing Content pursuant to an enforceable assignment or license. Except for Participant and any person or entity, which has assigned his, her or its rights in accordance with Section 4 of this Agreement, no other person or entity, including Agent or any Seller, has any rights of any nature in or to any of the Listing Content for any Participant’s Listing.
v. There is no claim, litigation or proceeding pending or threatened with respect to the Listing Content for any Participant’s Listing.
vi. The Listing Content, and the assignment or license of rights in and to Listing Content to PCBR, do not infringe or violate any patents, copyrights, mask work rights, trademarks, trade secrets or other proprietary rights of any third party.
b. If Subscriber is an Appraiser, then such Appraiser represents and warrants the following:
i. Subscriber is a State-Certified General Appraiser, State-Certified Residential Appraiser, State-Licensed Appraiser, or a State-Licensed Residential Appraiser in the state of Utah; and
ii. all of his/her Appraiser Trainees have entered into or accepted the terms of a Subscription Agreement.
c. If Subscriber is an Appraiser Trainee, then such Appraiser Trainee represents and warrants that he/she is employed by or working under the direction of an Appraiser who has entered into or accepted the terms of a Subscription Agreement.
d. Subscriber, unless Subscriber is an Administrative Member or Assessor, is licensed in the state of Utah to provide the professional services being offered by Subscriber, and is in good standing and not subject to any disciplinary action.
e. When Subscriber clicks the “I Accept” icon associated with this Agreement, this Agreement will be valid, binding and enforceable with respect to Subscriber in accordance with its terms. The execution of this Agreement and/or the performance of Subscriber’s obligations under this Agreement will not constitute a default, or an event which with the passage of time, the giving of notice, or both, would constitute a default, under any other agreement by which Subscriber is bound.
f. If Subscriber is a Participant, then such Participant is a Broker.
g. Subscriber shall comply with the Rules and Regulations and the requirements of the Utah Administrative Code and all other applicable laws and regulations.
15. Signatory Representation and Warranty. The individual who clicks the “I Accept” icon associated with this Agreement (the “Signatory”) represents and warrants that he/she is the Subscriber, or is authorized by the Subscriber to accept this Agreement and to bind Subscriber to the terms and conditions hereof.
16. Submission of Listings by Agent. As a material condition to accessing the MLS Database, Participant, or Agent on behalf of Participant, agree to submit to PCBR all Listings for properties listed for sale by Agent, in accordance with, and except as otherwise provided in, PCBR’s Rules and Regulations. PCBR may refuse to accept or include in, and may remove from, the MLS Database, any Listing, or any Listing Content, or may require Participant or Agent on behalf of Participant, to direct PCBR to modify any Listing Content, as provided under PCBR’s Rules and Regulations, or if PCBR determines, in its sole discretion, that any such Listing or Listing Content may violate or infringe upon the rights of a third party. Notwithstanding the foregoing sentence, except as provided in PCBR’s Rules and Regulations, Participant and Agent acknowledge that PCBR has no obligation to remove, modify or refuse any Listing or Listing Content. PCBR grants to Participant and Agent a limited, non-exclusive, personal license to input Listing Content in the MLS Database, and modify such Listing Content, only on behalf of Participant and strictly in accordance with the terms and conditions of this Agreement and PCBR’s Rules and Regulations. Participant and Agent acknowledge and agree that any Listing or Listing Content, or any prospective Listing or Listing Content, submitted by Participant or its Associates to PCBR may be accessible by other participants in or users of PCBR’s multiple listing service, and PCBR shall have no liability to Participant or Agent for providing such other participants or users access to any Listing or Listing Content, or any prospective Listing or Listing Content.
17. Confidential Information. Any information provided by PCBR to any Subscriber, including without limitation, any password to the MLS Database, any printouts of the MLS Database 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 the 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 PCBR 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.
18. Additional Representations and Warranties of Participant and Agent.
a. Participant and Agent represent and warrant the following to PCBR: (i) Participant is a REALTOR® and principal real estate broker licensed and in good standing in the state of Utah; (ii) Agent is a real estate Agent licensed and in good standing in the state of Utah; (iii) Participant is a member of an Association that is organized in the state of Utah and is in good standing with such Association; and (iv) Participant is capable of offering and accepting cooperation and compensation to and from other participants in PCBR’s multiple listing service in accordance with PCBR’s Rules and Regulations.
b. Participant and Agent further represent and warrant to PCBR that (i) Agent is engaged at all times during the term of this Agreement as an agent of Participant, either as an employee or an independent contractor of a Participant; (ii) a Participant has consented to Agent entering into this Agreement; (iii) this Agreement, when executed by Agent and Participant, will be valid, binding and enforceable with respect to both Agent and Participant in accordance with its terms; (iv) the provisions of the services provided under this Agreement and the fulfillment of Participants or Agent’s obligations as contemplated under this Agreement are proper and lawful; and (v) Participant and Agent are 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.
19. Compliance with Governing Rules and Agreements.
a. By entering into this Agreement, Subscriber represents and warrants to PCBR that Participant has read and understands, and shall be bound by and at all times fully comply with and perform all of Subscriber’s obligations under this Agreement, PCBR’s Rules and Regulations, and the Code of Ethics and Standards of Practice of the NATIONAL ASSOCIATION OF REALTORS® . In addition to all other rights and remedies available to PCBR under this Agreement and PCBR’s Rules and Regulations, Subscriber acknowledges that PCBR may levy fines against Subscriber for noncompliance with PCBR’s Rules and Regulations as provided in PCBR’s Rules and Regulations. A copy of PCBR’s then-current version of PCBR’s Rules and Regulations is available upon request.
b. To the extent there is any conflict between this Agreement, an applicable Subscription Agreement, and PCBR’s Rules and Regulations, PCBR’s Rules and Regulations shall govern.
20. No Warranty. THE SERVICES PROVIDED AND LICENSE GRANTED TO SUBSCRIBER UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY NATURE. PCBR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPECIFICALLY, BUT WITHOUT LIMITATION, PCBR DISCLAIMS ANY WARRANTY WITH RESPECT TO ANY LISTINGS, ANY LISTING CONTENT, AND THEIR ACCURACY.
21. Limitation of Liability.
a. PCBR’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 MLS DATABASE OR LISTING CONTENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY SUBSCRIBER TO PCBR DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM ARISES.
b. WITHOUT LIMITING AND NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL PCBR BE LIABLE TO ANY SUBSCRIBER OR ANY ASSOCIATE OR OTHER THIRD PARTY FOR ANY LOSS OF BUSINESS OR ANTICIPATORY PROFITS OR ANY INDIRECT, SPECIAL, INCIDENTAL, GENERAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, EVEN IF FORESEEABLE OR IF PCBR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGE OR EXPENSE. PCBR SHALL HAVE NO LIABILITY OF ANY NATURE TO ASSOCIATES OR VENDORS.
c. WITHOUT LIMITING THE FOREGOING, SUBSCRIBER ACKNOWLEDGES AND AGREES THAT PCBR DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM PCBR’S WEBSITE AND OTHER PORTIONS OF THE INTERNET. SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES. AT TIMES, ACTIONS OR INACTIONS OF SUCH THIRD PARTIES CAN IMPAIR OR DISRUPT SUBSCRIBER’S OR OTHER THIRD PARTIES’ CONNECTIONS TO THE INTERNET, OR PORTIONS OF THE INTERNET. ALTHOUGH PCBR WILL USE COMMERCIALLY REASONABLE EFFORTS TO TAKE ALL ACTIONS IT DEEMS APPROPRIATE TO REMEDY AND AVOID SUCH EVENTS, PCBR CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, PCBR DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS.
22. Injunction. PCBR and Subscriber agree that a breach or violation of this Agreement by Subscriber will result in immediate and irreparable injury and harm to PCBR. In such event, PCBR shall have, in addition to any and all remedies of law and other consequences under this Agreement, the right to an injunction, specific performance or other equitable relief to prevent the violation of the obligation under this Agreement; provided, however, that, this shall in no way limit any other remedies which PCBR may have, including, without limitation, the right to seek monetary damages.
23. Temporary Suspension of Services. Without terminating this Agreement, if Participant’s principal broker license becomes inactive, Participant or any of his/her Agents may request temporary suspension of Participant’s participation in PCBR’s multiple listing service for a period of up to twelve (12) consecutive months (a “Temporary Suspension Period”). The request will be granted upon (a) prior written consent of PCBR; (b) The payment of a suspension fee in an amount established by PCBR, which amount may be increased from time-to-time in PCBR’s sole discretion (the “Temporary Suspension Fee”), and; (c) payment in full of all amounts otherwise owing by Participant or Agent. The Temporary Suspension Fee may be waived by PCBR if Participant or Agent requests suspension for any of the following reasons: military service, full time church assignment, serious illness, or other similar reasons acceptable to PCBR in its sole discretion. At any time prior to the expiration of the Temporary Suspension Period, Participant or Agent may request, and upon the prior written approval of PCBR shall be granted, a one-time extension of the Temporary Suspension Period for up to an additional twelve (12) months, subject to payment of an additional Temporary Suspension Fee.
24. Term and Termination.
a. The initial term of this Agreement shall commence on the Effective Date and, unless earlier terminated as provided in this Agreement, shall continue for a period of one (1) year. This Agreement shall automatically renew for additional one (1) year terms unless either party gives written notice to the other party of non-renewal at least thirty (30) days prior to the expiration of the then-current term or this Agreement is otherwise terminated as provided in this Agreement.
b. Either party may terminate this Agreement at any time for any reason upon thirty (30) days prior written notice to the other party.
c. PCBR may terminate this Agreement upon the occurrence of any of the following events: (1) Participant requests in writing that PCBR terminate this Agreement as to an Agent; (2) Any Subscriber requests in writing that PCBR terminate this Agreement as to such Subscriber; (3) Subscriber fails to pay any Fees when due; (4) Subscriber discloses any Confidential Information, including, without limitation, any password of Subscriber, except as expressly provided in this Agreement; (5) Subscriber otherwise fails to comply in all respects with the Rules and Regulations, or the Code of Ethics and Standards of Practice of the NATIONAL ASSOCIATION OF REALTORS® ; (6) Subscriber defaults under any material term or condition of any License Agreement; or (7) Subscriber defaults under any other material term or condition of this Agreement. Except as otherwise provided in this Agreement, termination pursuant to this Section 24.c of this Agreement shall be effective at any time after PCBR has given ten (10) business days notice to Subscriber of any such event, and such event has not been cured within such ten (10) day period. Notwithstanding the foregoing sentence, if, in the reasonable discretion of PCBR, the occurrence of any such event could result in irreparable harm to PCBR, termination shall be effective immediately, without prior written notice to Subscriber, provided that notice shall be delivered to Subscriber within ten (10) business days following such termination.
d. If Subscriber is an Agent, this Agreement shall automatically terminate upon the following:
i. upon termination of the Subscription Agreement entered into by and between Participant and PCBR; except that if Participant entered into the terminated Subscription Agreement, this Agreement shall continue in effect provided that another Participant enters into a Subscription Agreement within ten (10) days after termination of the terminated Subscription Agreement. If another Subscription Agreement is not entered into within such ten (10) day period, this Agreement shall automatically terminate upon expiration of such ten (10) day period.
ii. upon Agent’s disengagement from Participant, unless Agent is engaged as an agent of another Participant, either as an employee or an independent contractor of such Participant within ten (10) days, and submits a transfer form and pays a transfer fee to PCBR as provided in the Rules and Regulations.
e. PCBR may automatically terminate this Agreement upon the following:
i. if Subscriber is an Administrative Member, Appraiser, Appraiser Trainee, or Assessor and he/she places a Listing in the MLS Database in his or her name.
ii. if Subscriber is an Administrative Member, if PCBR receives written instruction from the applicable Agent or Participant, or if Administrative Member has violated these Rules and Regulations or is no longer employed by or affiliated with the Agent or employing REALTOR® .
f. This Agreement may also terminate as provided under Section 28.d of this Agreement.
g. In addition to all other rights and remedies available to PCBR under this Agreement, if Subscriber fails to pay any Fees when due, or otherwise defaults under this Agreement, PCBR may, in its sole discretion, temporarily suspend the license granted to Subscriber to access the MLS Database until all outstanding Fees have been paid in full or the default has been cured.
h. Notwithstanding anything to the contrary in this Agreement, if Participant violates or is alleged to have violated the Rules and Regulations, Participant shall not be terminated in accordance with Section 24.c of this Agreement until any hearing or appeal rights of Participant have expired as provided in PCBR’s Rules and Regulations.
i. Upon termination of this Agreement, Subscriber agrees to immediately destroy any printouts of the MLS Database or Listing Content, and any copies of the MLS Database and Listing Content in Subscriber’s possession or under Subscriber’s control, including in possession of any Associates. Upon termination of this Agreement, all licenses granted and all services provided to Subscriber under this Agreement shall terminate. No pre-paid Fees will be refunded to Subscriber for any termination of this Agreement.
j. Upon termination of this Agreement, all licenses granted and all services provided to Participant under this Agreement shall terminate. In addition, any and all rights granted to Associates to access or use the MLS Database pursuant to PCBR’s Rules and Regulations or separate agreement with PCBR shall automatically terminate, unless otherwise expressly provided with respect to Agents under an applicable Subscription Agreement.
k. If, for any reason, any Subscription Agreement is terminated, Participant agrees to either assign all Participant’s Listings originated by the terminated Agent to another Agent, or request that PCBR terminate or change the status of Participant’s Listings originated by the terminated Agent.
25. Indemnification by Participant and Agent. Participant and Agent agrees to indemnify and hold harmless PCBR, and its officers, directors, employees, shareholders and agents from and against any and all claims, demands, liabilities, and actions, including the payment of all legal expenses, including reasonable attorney’s fees and costs, arising out of or connected with any Listing Agreement, this Agreement, submission to PCBR of any Listing or Listing Content and the inclusion of any Listing or Listing Content by Participant or Agent in the MLS 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. PCBR shall have the right to control its own defense and engage legal counsel acceptable to PCBR.
26. Proprietary and Other Notices. Subscriber agrees that it will not alter or remove any trademarks or copyright notices or other notices and disclaimers located or used on, or in connection with, the MLS Database or any printouts of the MLS Database allowed under this Agreement.
27. IDX Advertising Consent. Unless Participant has made an express, written non-participation election for PCBR’s Internet Data Exchange (“IDX”) program as described in PCBR’s Rules and Regulations, Participant expressly consents to other participants in PCBR’s IDX program to advertise all Participant’s Listings in accordance with the IDX policy set forth in PCBR’s Rules and Regulations.
28. General.
a. Notices. All notices, demands, or consents required or permitted under this Agreement shall be in writing and shall be delivered personally or sent by registered mail, certified mail, return receipt requested, by a reputable overnight courier service, or by e-mail, if the sender receives and maintains a copy of a certified mail receipt and a copy is mailed within (1) business day after notice is delivered by e-mail, to the appropriate party at the following addresses:
If to Subscriber:
At the street address or e-mail maintained by PCBR for Subscriber.
If to PCBR:
Park City Board of Realtors
1889 Prospector Avenue
Park City, Utah 84060
Attention: Jamie Johnson
Email: jamie@parkcityrealtors.comWith a copy to:
Matthew Hutchinson
Hoggan Lee Hutchinson
1225 Deer Valley Drive, Suite 201
Park City, UT 84060
Phone: (435) 615-2264
Email: matt@hlhparkcity.com
The foregoing addresses may be changed from time-to-time by delivering notice of such change, referencing this Agreement, to the parties to this Agreement.
b. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the state of Utah. Subscriber acknowledges that by using the services provided under this Agreement, Subscriber has transacted business in the state of Utah. By transacting business in the state of Utah by agreement, Subscriber voluntarily submits and consents to, and waives any defense to the jurisdiction of courts located in Summit County, state of Utah, as to all matters relating to or arising from this Agreement.
c. Costs of Litigation. If any action is brought by either party to this Agreement against the other party regarding the subject matter of this Agreement, the prevailing party shall be entitled to recover, in addition to any other relief granted, reasonable attorney’s fees, costs, and expenses of litigation.
d. Severability. Any provision of this Agreement which is determined by a court of competent jurisdiction to be invalid or otherwise unenforceable shall not invalidate or make unenforceable any other provision of this Agreement; except that if any provision of Sections 12, 20, or 21 of this Agreement, or any other limitation of liability or exclusion of warranty set forth in this Agreement, is determined to be invalid or unenforceable, then this Agreement shall immediately terminate without notice.
e. No Waiver. The waiver by either party of, or the failure of either party to take action with respect to, any breach of any term, covenant or condition contained in this Agreement shall not be deemed to be a waiver of such term, covenant or condition, or subsequent breach of the same, or any other term, covenant or condition contained in this Agreement. The subsequent acceptance of any payment due under this Agreement by any party shall not be deemed to be a waiver of any preceding breach of the party making payment with respect to any term, covenant or condition contained in this Agreement.
f. Entire Agreement; Modifications Only in Writing. This Agreement, together with PCBR’s Rules and Regulations and any applicable License Agreement, (i) constitutes the entire agreement between PCBR and Subscriber concerning the MLS Database, Listing Content, and all other subject matter of this Agreement, (ii) supersedes any contemporaneous or prior proposal, representation, agreement, or understanding between the parties, and (iii) may not be amended except in writing signed by PCBR and Subscriber. In the event that there is any conflict between this Agreement and the terms of use of any PCBR website, the terms of this Agreement shall govern.
g. No Third Party Beneficiaries. This Agreement is for the sole and exclusive benefit of PCBR and Subscriber and is not intended to benefit any third party, including any Seller. No third party may claim any right or benefit under or seek to enforce any of the terms and conditions of this Agreement.
h. Effective Date. This Agreement shall be dated effective as of the date Subscriber clicks the “I AGREE” button associated with this Agreement.
i. Electronic Transaction. The parties to this agreement expressly agree to conduct this transaction electronically pursuant to the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 and the Uniform Electronic Transactions Act, Utah Code Ann. §§ 46-4-101 to 46-4-502.
j. Survival. The provisions of Sections 6, 8, 12, 17, 20, 20, 22, 24.i, and 25 of this Agreement shall survive the termination of this Agreement, including termination pursuant to Section 24.d of this Agreement.
29. Definitions. The following terms shall have the following meanings in this Agreement:
a. Affiliate means mortgage companies, property managers, title companies, and other real estate service providers, or others, who are affiliate members of PCBR.
b. Administrative Member means one of the following:
i. A personal assistant, employed by a REALTOR® who is an Agent in good standing with PCBR, and who does not list or sell real estate; or
ii. An office administrator or secretary employed by an Agent or Participant in good standing with PCBR.
c. Agent means a real estate agent or associate broker, as such terms are defined in the Title 61, Chapter 2, Utah Code Ann., who is engaged as an agent of Participant, either as an employee or an independent contractor of Participant.
d. Appraiser means a State-Certified General Appraiser, State-Certified Residential Appraiser, State-Licensed Appraiser, or State-Registered Appraiser.
e. Appraiser Trainee means a person training to become a real estate appraiser, who is employed by and working under the direction and supervision of an Appraiser.
f. Assessor means a staff member of a county assessor office in the state of Utah.
g. Associate means Agents, non-principal brokers, appraisers, and any other agents or employees of Participant who may have access to the MLS Database subject to PCBR’s Rules and Regulations and any applicable agreements with PCBR
h. Association means an association of REALTORS® established and operated in accordance with the applicable rules and regulations of the NATIONAL ASSOCIATION OF REALTORS® .
i. Effective Date has the meaning set forth in Section 28.h of this Agreement.
j. Exempted Listing means a Listing which the respective Seller has withheld permission to have included in the MLS Database by PCBR, or a Listing which is not required to be filed with PCBR in accordance with PCBR’s Rules and Regulations.
k. IDX has the meaning set forth in Section 27.
l. IDX Listings means all of the listings identified or defined as an IDX listing in PCBR’s Rules and Regulations.
m. License Agreement means a license agreement entered into between PCBR and a Subscriber, or PCBR and a third party at the request of Participant.
n. Listing means a real estate listing of a participant in PCBR’s multiple listing service.
o. 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, and Seller agrees to pay compensation for services provided, including compensation to a cooperating Broker, if applicable, all in accordance with applicable law.
p. 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 PCBR with respect to all Participant’s Listings, except Exempted Listings.
q. Membership System means the online software program through which a Subscriber is allowed access to the association management system available to PCBR and which provides additional features and tools for Subscribers.
r. MLS Database means the compilation of Listings, including information for sold properties, known as the MLS Database, as modified from time-to-time by PCBR, and which, as of the date of this Agreement, is available to Subscribers at www.pcmls.com.
s. MLS System means the online software program through which a Subscriber is allowed access to the MLS Database and which provides additional features and tools for Subscriber.
t. Participant means the principal real estate broker, as such term is defined in the Title 61, Chapter 2, Utah Code Ann., who is a REALTOR® in good standing.
u. PCBR has the meaning set forth on the first page of this Agreement.
v. RETS Interface means computer software that implements the National Association of REALTORS® Real Estate Transaction Standard (RETS) specification which supports specific security and search transaction defined in the RETS 1.7 specification located at http://www.rets.org, or a substitute website.
w. Rules and Regulations means the rules and regulations and policies and procedures, as amended, of the Association of which Participant is a member, including the rules and regulations of PCBR.
x. Seller means the seller(s) or lessor(s) of a property which is the subject of a Listing at issue under this Agreement.
y. State-Certified General Appraiser means a person who holds a current, valid certification as a state-certified general appraiser issued under the provisions of Utah Code Annotated, Section 61-2b-1 and following.
z. State-Certified Residential Appraiser means a person who holds a current, valid certification as a state-certified residential real estate appraiser issued under the provision of Utah Code Annotated, Section 61-2b-1 and following.
aa. State-Licensed Appraiser means a person who holds a current, valid license as a state-licensed appraiser issued under the provision of Utah Code Annotated, Section 61-2b-1 and following.
bb. State-Licensed Residential Appraiser means a person who holds a current, valid license as a state-licensed residential real estate appraiser issued under the provision of Utah Code Annotated, Section 61-2b-1 and following.
cc. Subscriber means the Participant, Administrative Member, Agent, Appraiser, Appraiser Trainee, Assessor, or Affiliate who is the Signatory to this Agreement.
dd. Subscription Agreement means a subscription agreement, in a form acceptable to PCBR in its sole discretion, entered into between PCBR and Subscriber, which grants rights in PCBR’s multiple listing service to Subscriber in accordance with the terms set forth in this Agreement.
ee. Vendor means any person or entity which has entered into a License Agreement for display of real estate listings for Participant or an Agent of Participant.