This is the Use and Distribution of Information paragraph:
“11. USE AND DISTRIBUTION OF INFORMATION: The Seller consents to the collection, use and disclosure of personal information by the Brokerage for the purpose of listing and marketing the Property including, but not limited to: listing and advertising the Property using any medium including the Internet; disclosing Property information to prospective buyers, brokerages, salespersons and others who may assist in the sale of the Property; such other use of the Seller’s personal information as is consistent with listing and marketing of the Property. The Seller consents, if this is an MLS® Listing, to placement of the listing information and sales information by the Brokerage into the database(s) of the MLS® System of the appropriate Board, and to the posting of any documents and other information (including, without limitation, photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions) provided by or on behalf of the Seller into the database(s) of the MLS® System of the appropriate Board. The Seller hereby indemnifies and saves harmless the Brokerage and/or any of its employees, servants, brokers or sales representatives from any and all claims, liabilities, suits, actions, losses, costs and legal fees caused by, or arising out of, or resulting from the posting of any documents or other information (including, without limitation, photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions) as aforesaid. The Seller acknowledges that the database, within the board’s MLS® System is the property of the real estate board(s) and can be licensed, resold, or otherwise dealt with by the board(s). The Seller further acknowledges that the real estate board(s) may: during the term of the listing and thereafter, distribute the information in the database, within the board’s MLS® System to any persons authorized to use such service which may include other brokerages, government departments, appraisers, municipal organizations and others; market the Property, at its option, in any medium, including electronic media; during the term of the listing and thereafter, compile, retain and publish any statistics including historical data within the board’s MLS® System and retain, reproduce and display photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions which may be used by board members to conduct comparative analyses; and make such other use of the information as the Brokerage and/or real estate board(s) deem appropriate, in connection with the listing, marketing and selling of real estate during the term of the listing and thereafter. The Seller acknowledges that the information, personal or otherwise (“information”), provided to the real estate board or association may be stored on databases located outside of Canada, in which case the information would be subject to the laws of the jurisdiction in which the information is located.”
Review
Set out below and marked in bold and italics are those words that are inserted by me to assist in the review. They are not set out in the clause itself. Let’s look at that paragraph in a little more detail:
11. USE AND DISTRIBUTION OF INFORMATION:
Seller Consent
The Seller consents to the collection, use and disclosure of personal information by the Brokerage
for the purpose of
- listing and
- marketing
the Property
including, but not limited to:
- listing and advertising the Property using any medium including the Internet;
- disclosing Property information to prospective buyers, brokerages, salespersons and others who may assist in the sale of the Property;
- such other use of the Seller’s personal information as is consistent with listing and marketing of the Property.
MLS Consent
The Seller consents, if this is an MLS® Listing,
- to placement of the listing information and sales information by the Brokerage into the database(s) of the MLS® System of the appropriate Board, and
- to the posting of any documents and other information (including, without limitation, photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions) provided by or on behalf of the Seller into the database(s) of the MLS® System of the appropriate Board.
Seller’s Indemnification
Brokerage etc.
The Seller hereby indemnifies and saves harmless the Brokerage and/or any of its employees, servants, brokers or sales representatives
All Claims
from any and all claims, liabilities, suits, actions, losses, costs and legal fees
Causation
caused by, or arising out of, or resulting from the posting of any documents or other information (including, without limitation, photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions) as aforesaid.
Real Estate Boards Own MLS
The Seller acknowledges that the database, within the board’s MLS® System is the property of the real estate board(s) and can be licensed, resold, or otherwise dealt with by the board(s).
During Currency of Listing
The Seller further acknowledges that the real estate board(s) may: during the term of the listing and thereafter, distribute the information in the database,
within the board’s MLS® System to any persons authorized to use such service which may include other brokerages, government departments, appraisers, municipal organizations and others;
market the Property, at its option, in any medium, including electronic media;
During Currency and Afterwards
during the term of the listing and thereafter, compile, retain and publish any statistics including historical data within the board’s MLS® System and retain, reproduce and display photographs, images, graphics, audio and video recordings, virtual tours, drawings, floor plans, architectural designs, artistic renderings, surveys and listing descriptions which may be used by board members to conduct comparative analyses; and
make such other use of the information as the Brokerage and/or real estate board(s) deem appropriate, in connection with the listing, marketing and selling of real estate during the term of the listing and thereafter.
Notice: Other Jurisdictions Beyond Canada
The Seller acknowledges that the information, personal or otherwise (“information”), provided to the real estate board or association may be stored on databases located outside of Canada, in which case the information would be subject to the laws of the jurisdiction in which the information is located.
COMMENT
The Seller consents to the collection and use of the information both relating to the property and personal information as well. This will be posted through the MLS database which is owned by a group of real estate boards.
If there are any lawsuits, which arise as a result of the posting, the Seller will be responsible for indemnification of the Brokerage, its employees, servants, brokers or sales representatives.
You will notice that this is the first time the reference to “servants” has appeared, although there have already been a number of indemnification clauses.
Both before and after the currency of the Listing, the information can be used for comparative market analysis. The information here has become “historic” in nature and cannot later be removed,
Should a Seller wish to ensure that all of their information will be removed, then, they will have to go the “Exclusive Listing” route, and although some matters may be removed or deleted from websites and various social media platforms, nevertheless, for those who are astute and internet savvy, it’s all still there.
Also, the MLS database itself might be “in the cloud” subject to the laws of another jurisdiction beyond Canada.
Brian Madigan LL.B., Broker