This Participation Agreement ("Agreement") is made and entered into by and between Weksil LLC, doing business as PocketMLS ("PocketMLS"), and the undersigned, which may include a home seller, for sale by owner ("FSBO"), or a licensed real estate broker ("Participant").
Capitalized terms not otherwise defined in this Agreement shall have the meanings set forth in this Agreement or the MLS Policy.
Subject to the terms and conditions of this Agreement and the MLS Policy, PocketMLS agrees to make the MLS Database available for access by Participant, and Participant shall have all rights and obligations of a Participant in PocketMLS's Multiple Listing Service ("MLS") as set forth under the MLS Policy. Access to the MLS Database shall be through a means determined by PocketMLS in its sole discretion. The sharing of PocketMLS access credentials is strictly prohibited. Participant agrees that all Licensees, licensed and unlicensed administrative assistants associated with or under Participant's supervision, each will have independent access credentials to the MLS Database pursuant to the terms of this Agreement and MLS Policy.
Participant:
Participant agrees to take all reasonable steps to protect the MLS Database from unauthorized access, reproduction, or use.
PocketMLS will grant Data Licenses, including without limitation Internet Data Exchange (IDX), Back Office, Virtual Office Website (VOW), to Participant upon the receipt of a written request from Participant, in a form acceptable to PocketMLS, and subject to approval. The data feed will only be granted pursuant to a License Agreement, which PocketMLS has no obligation to grant. PocketMLS reserves the right to deny a license to Participant, any Users, or any Vendor that is in default of any written agreement with PocketMLS or MLS Policy. In addition to any applicable license fee payable by Participant, the Users, and/or the Vendor, Participant shall pay to PocketMLS all costs and expenses incurred by PocketMLS in connection with any licenses and any services provided by the MLS in connection with such licenses. PocketMLS reserves the right to audit the usage and distribution of Participant's data feed.
Participant acknowledges that the MLS Database and the MLS are valuable commercial products, the development of which has involved the expenditure of substantial time and money, and that the MLS Database may include textual, statistical, financial, photographic, video, and audio components. Participant, including home sellers, FSBOs, and licensed real estate brokers, owns all rights, title, and interest in the Listing Content and any other data submitted by them to the MLS Database. PocketMLS acknowledges that it does not and will not have any ownership rights in the Listing Content provided by Participant, except as expressly licensed herein.
Participant, as the acquirer and provider of Listing Content relating to real estate properties for sale or lease—including personal listing information, remarks, virtual tours, videos, and photographs—hereby grants to PocketMLS a non-exclusive, sublicensable, worldwide, royalty-free license to use, display, publish, reproduce, and include in the MLS Database the Listing Content submitted by Participant. This license allows PocketMLS to reproduce, use, distribute, display, create derivative works of, and grant access to the MLS Database electronically and in such other form or manner and to such third parties as PocketMLS deems appropriate, solely for the purposes of operating the MLS and providing services to Participants and Subscribers, in accordance with the MLS Policy.
Participant reserves all rights not expressly granted to PocketMLS herein. PocketMLS shall not transfer, assign, or license the Listing Content to any third party except as necessary to fulfill its obligations to operate the MLS and provide services to Participants and Subscribers under this Agreement and the MLS Policy.
PocketMLS agrees not to challenge Participant's rights in and to the Listing Content or to take any action inconsistent with the ownership of the Listing Content by Participant. PocketMLS agrees to take all action and execute and deliver to Participant all documents reasonably requested by Participant in connection with the protection and enforcement of Participant's intellectual property rights in the Listing Content.
Participant and its Licensees and Users may use the MLS Database solely for the purposes permitted under the MLS Policy and this Agreement. Participant agrees to comply with all applicable laws, rules, and regulations in connection with its use of the MLS Database. Participant shall not:
Participant represents and warrants with respect to each Listing or change to a Listing submitted to PocketMLS under this Agreement and the MLS Policy, the following:
The Listing Content for each 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 their rights in accordance with Section 4 of this Agreement, no other person or entity has any rights of any nature in or to any of the Listing Content for any Listing.
There is no claim, litigation, or proceeding pending or threatened with respect to the Listing Content for any Listing.
The Listing Content, and the grant of rights in and to Listing Content to PocketMLS, do not infringe or violate any patents, copyrights, mask work rights, trademarks, trade secrets, or other proprietary rights of any third party.
Participant agrees to indemnify and hold harmless PocketMLS 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 PocketMLS of any Listing or Listing Content, and the inclusion of any Listing or Listing Content by Participant in the MLS Database. This includes, without limitation, any claim that the access to, display of, or use of any Listing Content infringes on or constitutes a misappropriation of any patent, copyright, trade secret, or any other intellectual property right of any person or entity anywhere in the world, including any claims by Sellers. PocketMLS shall have the right to control its own defense and engage legal counsel acceptable to PocketMLS.
PocketMLS agrees that it will not alter or remove any trademarks or copyright notices, watermarks, or other notices and disclaimers located or used on, or in connection with, the Listing Content provided by Participant.
Unless Participant has made an express, written non-participation election in the IDX program as described in the MLS Policy, Participant expressly consents to other Participants in PocketMLS's IDX program advertising all of Participant's Listings in accordance with the IDX policy set forth in the MLS Policy.
Participant and their Licensees or Users agree not to use, either directly or indirectly, their access to the MLS Database or any other PocketMLS products or services in any direct or indirect competition with PocketMLS or any other products or services of PocketMLS or otherwise offered, provided, sold, or developed by PocketMLS.
PocketMLS and Participant agree that a breach or violation of this Agreement or the End User License Agreement ("EULA") will result in immediate and irreparable injury and harm to the non-breaching party. In such event, the non-breaching party 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. This shall in no way limit any other remedies which the non-breaching party may have, including, without limitation, the right to seek monetary damages.
The initial term of this Agreement shall commence on the date indicated in the signature block below and shall automatically remain in effect until either party gives written notice to the other party of non-renewal, unless earlier terminated in accordance with this Section 23.
Either party may terminate this Agreement upon the occurrence of any of the following events:
Revised [Date]
I CERTIFY that: (i) I have read the MLS Policy and EULA; (ii) I agree to comply with the MLS Policy and EULA as they may be amended from time to time; (iii) I have read and agree to the terms and conditions of this Participation Agreement; and (iv) that the information furnished by me is true and correct.
Signature: