This came up in my Twitter feed.
Check out this jewel in the calREDD’s EULA. It’s in Section 7.
In case you think I’m making this shit up check you can access it here.
[UPDATE: June Barlow, C.A.R. Vice President, General Council (and now apparently CTO) responds to post -CHECK COMMENTS!]
SECTION 7. LIMITED WARRANTY; DISCLAIMER OF OTHER WARRANTIES; LIMITATION OF LIABILITY; REFUNDS FOR INDIVIDUAL FORMS SOFTWARE LICENSE PURCHASES.
A. Disclaimer of Warranties. YOU ACKNOWLEDGE THAT SOME CALREDD PRODUCTS MAY BE EXPERIMENTAL IN NATURE, STILL IN THE DEVELOPMENT STAGE, AND MAY NOT HAVE BEEN FULLY TESTED PRIOR TO YOUR USE. CALREDD, ITS AUTHORIZED PROVIDERS AND SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES FOR THE CALREDD PRODUCTS AND CALREDD SERVICE. EACH CALREDD PRODUCT AND ANY RELATED DOCUMENTATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, TITLE AND NONINFRINGEMENT. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE CALREDD PRODUCTS AND CALREDD SERVICE REMAINS WITH YOU. NEITHER CALREDD NOR ITS AUTHORIZED PROVIDERS OR SUPPLIERS MAKES ANY WARRANTY THAT ANY CALREDD PRODUCT OR THE CALREDD SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. CALREDD, ITS AUTHORIZED PROVIDERS AND SUPPLIERS DISCLAIM ANY AND ALL RESPONSIBILITY FOR ANY INTERFERENCE OR SUSPENSION OF INTERNET SERVICE OR FOR ANY LOSS OR CORRUPTION OF DOCUMENTS, DATA, OR LOSS OF ANY OTHER MATERIALS YOU MAY STORE ON THE INTERNET. NEITHER CALREDD, NOR ITS AUTHORIZED PROVIDERS OR SUPPLIERS MAKES ANY REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, OR AVAILABILITY OF THE CALREDD PRODUCT OR CALREDD SERVICE FOR ANY PURPOSE. INFORMATION PROVIDED BY CALREDD AND ITS SUPPLIERS MAY BE COMPILED FROM PUBLIC RECORDS AND OTHER SOURCES, AND NEITHER CALREDD, NOR ITS AUTHORIZED PROVIDERS OR ITS DATA SUPPLIERS GUARANTEE THE ACCURACY OR COMPLETENESS OF THE MATERIALS. THE MANNER AND PURPOSE FOR THE USE OF THE INFORMATION CONTAINED IN THE CALREDD SERVICE AND THE VERIFICATION OF ITS ACCURACY IS YOUR SOLE RESPONSIBILITY.
How about Section 1 C? Agents had DARN well better like the final format of their CMA because they can’t modify what comes out of the system using Acrobat Professional!
Good news is that they have a CMA now – I have not seen a report yet but that was a serious gap that they have closed.
Has anyone checked out the Limited Warranty on any other MLS system?
Victor,
Yes, most MLS systems have language regarding having limited warranty or fitness for purpose. The calREDD language is a bit more extreme and alarming in this regard than most though.
Matt
Yeah, I’ve never seen language like this: “NEITHER CALREDD NOR ITS AUTHORIZED PROVIDERS OR SUPPLIERS MAKES ANY WARRANTY THAT ANY CALREDD PRODUCT OR THE CALREDD SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.” My question is, if they won’t warrant that the system will be available, secure and accurate, what do they promise? Certainly, the MLS and its members have responsibility for entering accurate data and the availability of the Internet to a particular user is beyond the vendor’s control, but, as Matt mentions, this provision and the rest of the contract seem to go far beyond the ordinary disclaimers. Maybe their intent is something other than what the contract provides, but the language seems pretty clear that calREDD makes no promises of reliability, security or availability.
Oh, and I just caught this interesting provision: “All right, title and interest
in the individual data within the CALREDD Service are owned by their respective copyright owners and/or
licensors. All right, title and interest in the collective data within the CALREDD Service are owned by CALREDD.” I’ve never seen language like that, either. So, the brokers still own their own listings but the collective data is now owned by calREDD. I guess that’s because they are taking the place of the MLS? Interesting.
We were looking at that too. When you subscribe to calREDD, they get your data and can use it forever, but if you leave, they provide the MLS with a copy of the data with unrestricted use.
Nevertheless, they keep the historical stuff. I suspect that this does not pass muster with many MLS lawyers.
This is the type of warranty disclaimer that you’re going to get when by their user’s very own words is “…a program that is not finished and polished.” (http://videos.car.org/mediavault.html?menuID=0&flvID=20)
With respect to ownership claim of the compilation, I believe you’ll see various forms of that in most MLSs rules. A quick scan of rules at an MLS I am familiar with has the following:
All right, title, and interest in each copy of every Multiple Listing compilation created and copyrighted by
the ****** Association of REALTORS® Multiple Listing Service Inc. and in the copyrights therein, shall
at all times remain vested in the ****** Association of REALTORS® Multiple Listing Service, Inc.
Yeah, I have to be honest. When I have drafted agreements for MLSs that their salesperson/broker end-users will have to sign, I’ve used language pretty much like calredd’s. (Initially, I interpreted the calredd agreement as one between calredd as MLS vendor and local MLS/association. Thus my snotty remark to @mwurzer on Twitter.)
In a way, language like calredd’s makes sense for the MLS, which is just a representative of the collection of brokers, to say that no one broker will be able to sue the MLS for failure to do its job… The only one who ends up paying in that case is all the brokers. If all the brokers sue the MLS and win, the MLS would just have to raise their fees.
As for the data ownership issues, Elizabeth posted on that on http://www.MLSTesseract.com today, and I think she’ll have more to say in coming days.
-Brian
@Brian Larson. Right, good reminder — calREDD is an MLS not an MLS vendor.
Local associations that join, disband their MLS (MLS Committee, governance, rules, etc…) and join calREDD and become a local service/enforcement center charging a marked up (retail) price over the calREDD wholesale price. calREDD provides the centralized rules, governance, etc…
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Translation…”We are not real sure about any of this shit, so don’t take it too seriously”, “maybe check around before you use it for the 1st time”…”we’re not sayin, we’re just sayin”! DOH!
It is heartening to see that people actually read contracts and End User Licensing Agreements, but I wonder if anyone also has examined the other vendors’ contracts. Contracts are drafted by attorneys to protect companies. Every MLS vendor has one and all contain roughly similar language. The key to any contract is the relationship between the parties to the agreement and the approach to resolving issues that inevitably occur in any contractual relationship. One would be hard pressed to identify a single vendor that guarantees their software will be completely error free, never have any outages whatsoever, and have absolutely zero downtime However, the physical redundancy, stability, and security measures of calREDD™ are at least as robust as, and if I might say, exceed, nearly every vendor on the market. The Merced and Madera installations have been operating well since August 2009. Lake County, and now Chico, Oroville, and Paradise installations are going extremely well, with high member satisfaction.
Regarding copyright: Every MLS owns the compilation so that it can protect its intellectual property rights. calREDD™ is positioned to be a statewide MLS and ensure that the data only is licensed in accordance with the interests of the brokers served and to protect the intellectual property. It is anticipated that there will be more than one vendor, providing members choice of front end, with the local authorized providers (the AORs or regional MLS) still providing the servicing, and every other function, including MLS Committees and active participation in the process. Please see the FAQs on the calREDD™ Web site that further explain the concept. Think of calREDD™ as a vendor with standard rules and access statewide, similar to other models that have elements of this same structure.
June Barlow
Vice President and General Counsel
CALIFORNIA ASSOCIATION OF REALTORS®
@June Barlow
“However, the physical redundancy, stability, and security measures of calREDD™ are at least as robust as, and if I might say, exceed, nearly every vendor on the market.”
Unbelievable the arrogance of you guys.
Who are you now the Vice President, General Counsel and Chief Technology Officer??
Madera and Merced Really?
Madera and Merced have about 500 agents….maybe. That’s what your gonna hang your hat on? 500 agents? REALLY??
Instead of making any public statements or unfounded outlandish claims (See above) just implement. Walk the walk.
And just so you know implementing an MLS system for 500 agents isn’t walking the walk. It’s pathetic and shows weakness that you would even mention it.
Another piece of advice. Don’t comment on blog posts. It opens you up to a lot of crazies. And I’m not talking about myself.
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@June Barlow
“One would be hard pressed to identify a single vendor that guarantees their software will be completely error free, never have any outages whatsoever, and have absolutely zero downtime”
Have you never heard of Service Level Agreements(SLA)?? Many vendors (including MLS Software vendors) have much more confidence in their system’s performance, than this, and back them up with an SLA!
I can’t imagine anyone (including C.A.R.) would agree to this disclaimer for any service they contract with. It’s not only arrogant, it’s down right ignorant!
As a partner in the industry, I do wonder what if/any financial considerations are in play with the CalREDD initiative? The first press releases were focused on a reduction of MLS fees due to the overlapping market disorder (OMD) but now the two main regional data sharing initiatives in California have seemingly resolved the situation.
If I was a CAR member (which I am not), wouldn’t it be time to question whether or not the entire project should be mothballed in favor of spending the remainder of the $3m money on education, training, and development of technology standards? $3M to serve the needs of less than 5,000 members… hmmm…..
A little more digging into the story behind the story:
Number of subscribers:
CARETS – 95,000 to 100,000 (50-65% of CAR membership)
calREDD – <1000 (less than a .05%)
Number of listings:
CARETS – 4 million
calREDD – 20-40000k
Where is the accountability for CAR (a trade association) to funnel members dues to this project? If the original press releases stated a reduction in member fees as the goal, wouldn't a refund from CAR back to its members been a better use of the money as opposed to 'creating' a solution for a now non-existent problem. Where is the $3m? Or is the number bigger now?
Disclosure: My company, Clareity Security, is a technology partner to several CARETS member MLS organizations. With that said, my posts and opinions are mine alone and are not to be construed as the opinions or positions of Clareity Security.
This is copied directly from the “CALMLS Status Report and Request for Funding” “Issues Briefing Paper Janurary 14, 2009” distributed to the CAR Directors at last years winter meetings in Monterey, California. I hope you can all understand the way it copied. If CAR has $3m to pass around, it should have gone to the REALTOR Action Fund, or Housing Affordability Fund, or something to show the consumer that REALTORS do care. I don’t know any bank that would have given this type of start up venture money to a unknown, no experience, MLS company.
Financial Estimates
CALMLS will generate $13.8 million in revenue in its first year of operation (2009), growing to $24
million in its third year (2011). Operational losses will be $720,000 in 2009, in addition to the
$500,000 previously authorized to pay for MLS working group costs and start-up costs, business
planning, and brand development. By year three, CALMLS will generate revenue in excess of
expenses of $1.53 million and will be positioned for continued growth for the benefit of its
participants, subscribers and participating AORs, having built a user base of more than 110,000
members. After suitable reserves are established any excess revenue can be used to reduce
wholesale costs to AORs and/or enhance benefits to members. CALMLS anticipates an additional
cash requirement of $3.0 million, of which $1.75 million will be utilized for its planned acquisitions.
3 Year Projections (1,000s)
2009 2010 2011
Revenue $13,861 $22,623 $24,101
Expenses $14,582 $22,119 $22,573
Potential Net Income ($721) $504 $1,528
Year-end CALMLS Users
Total CALMLS Subscribers 99,000 105,000 110,000
Conclusion
There has never been a more critical time for C.A.R. Directors and leaders to support an initiative
that will fundamentally improve the most critical service for its members. Leveraging the skills and
experience of existing regional MLSs and combining these with an exciting new MLS technology
utilizing standardized rules and enforcement makes this statewide dream a reality. Countless hours
of thought and work have gone into developing this proposal and the CALMLS Directors believe this
approach will most readily achieve the six principles adopted in 2005.
Recommendation
For all these reasons and in order to implement this next step, the CALMLS Directors are
requesting a loan of $3 million, to be repaid to C.A.R. within 7 years fully amortized with 6% interest,
to support its operations under the nonprofit statewide MLS model adopted by the C.A.R. Directors.
Ps: Complete copy provided upon request.