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Participation Agreement

Name of Agreement: Participation Agreement

Parties: Multiple listing service and participant broker

Purpose: The purposes of the Participation Agreement are as follows:

  1.     Multiple listing service grants access to the MLS database to participant. Although the model rules in the NAR handbook provide that each participant is entitled to lease a copy or copies of the MLS compilation, the database is a copyrighted compilation subject to certain exclusive rights of the owner of the compilation. In order for a participant to have access to the copyrighted compilation, the multiple listing service grants rights under this agreement for a participant to have access to the copyrighted compilation.
  2.     The Participation Agreement grants a license to the participant to use listings in accordance with the MLS rules and regulations and subject to payment of fees.
  3.     The Participation Agreement identifies rights to intellectual property. The agreement provides an acknowledgement by the participant that the MLS owns the compilation, and provides for ownership of the listing content by the MLS or broker, depending on which option is chosen.
  4.     The Participation Agreement includes an obligation by the MLS to grant a license to the IDX listings to vendors, or other service providers. Frequently participants engage the services of vendors or other service providers to develop and operate websites that display IDX listings. Without a license, no vendor or service provider may legally use or display the listings.

Options:

  1.     The first set of options is found in Section 19 regarding termination of the Participation Agreement. The agreement provides for a one year term which is renewable. The optional language provides for termination at will.
  2.     The next set of options are found in Appendix A, at the end of the agreement and deal with the ownership of listing content which is addressed in Section 4. The MLS compilation is owned by the MLS, but the listing content may be owned by the MLS, listing broker, or jointly by the MLS and listing broker. NAR recently adopted a policy that provides that, as a matter of policy, the listing broker should own the listing content and therefore a license grant to the MLS is consistent with the policy because the listing broker needs to grant to the MLS a license to use the listing content. Without a license, the MLS may not legally use, display, or license, or allow anyone else to use, display, or license, any of the listing content. However, in Appendix A at the end of the Agreement two other options are addressed. Option 1: Assignment and Option 2: Joint Ownership. Neither option is in compliance with NAR policy.

a. If either Option 1 is used you must also add the definition of “Work
Made for Hire” to section 24.
b. Additionally, you must also include another, new section, License to
Participant’s Listing.
c. If Option 2 is used you must also include another, new section, License to Participant’s Listing.

Instructions: This document is a standalone agreement. All of the blanks need to be completed and the list of affiliates needs to be added to Schedule A.

Notes: Many of the terms of the Participation Agreement may already exist in the MLS rules and regulations. The Participation Agreement should be compared with the rules and regulations and any terms of the Participation Agreement which are inconsistent with or contrary to the terms of the rules and regulations should be deleted.

Participation Agreement (132 KB)

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