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My MLS Told Me I Am Not Allowed to Sell My Photos to the New Agent Taking Over the Listing

Published: 24/10/2017

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Mike in Pennsylvania says:

I was just told by the MLS in my area that I am not allowed to sell my photos to the new agent taking over a listing that is on a different broker of record. She told me that the broker of record and the agent own the rights to the photos. I finally got her to admit that this was an internal thing through their multiple listing service. I believe this violates my rights. Agents are trying to sue MLS when another agent uses their photos but if they get written permission from the photographer it should be completely OK. She’s trying to tell me I have to get written permission from the agent for me to allow another agent to use the pictures. That’s bull crap!

Yes, the photographer owns the photos and licenses the listing agent to use the photos and can relicense another agent to use the photos. But there are many Realtors and MLSs that don't fully understand copyright law. I suggest that you refer whomever you are discussing this with to Joel Rothman's website. Have them read these three articles:

  1. https://www.sriplaw.com/mls-really-photos-pt-1/
  2. https://www.sriplaw.com/mls-really-photos-pt-2/
  3. https://www.sriplaw.com/mls-really-photos-pt-3/

These should carry more weight than my words because Joel is an Intellectual Property Attorney involved in advising and litigating MLSs all over the US so he knows what he is talking about.

Larry Lohrman

27 comments on “My MLS Told Me I Am Not Allowed to Sell My Photos to the New Agent Taking Over the Listing”

  1. The above links are a great overview of Copyright and even better as they are from an attorney. I did spot two errors. There is no limit on the number of unpublished photos you can register at one time and, once you have an established account, no limit on the number of published images you can register at one time. The fee has also gone up to $55 per registration (that's not per image, but per registration). A bit of advice is to register all of your images. Don't bother to sort out only the best ones or only the ones you have sent to the customer. All of that takes too much time. Just cull the shots of your shoe, inside of the lens cap and other misfires and when you finish that, create the thumbnails that you will need to send in as your "deposit" to the Copyright office. I have a LR preset for that and it takes very little time in the background since the images are small .jpgs.

    @Mike, What person in the MLS sent you the memo? If it didn't come from an attorney, you will want to direct the author to consult the attorney for the MLS before she tests her hypothesis. If it did come from an attorney, send them the above links. IP law is its own specialty and not every attorney will know all of the in and outs and may have slept through that class in law school. You don't have a relationship with the MLS so you do not fall under any regulations that they may impose on their members. They might try to require that all content uploaded by agents has a copyright assignment, but that usually causes lots of screaming from the top agents that predominately use professional photographers since those photographers won't sign away their Copyright. It's been tried before and will be tried again. Some major RE franchisers have tried to get their franchisee offices to have photographers assign their copyright and it sometimes means that the only photographers those offices can hire are not very good. It goes back to the way it was before very quickly.

  2. People can say whatever they’d like I suppose. The bottom line is, the situation is dependent upon the terms on your invoice (which was paid and thus agreed to), or the terms signed by your client. If you did something stupid, like signing a form from the brokerage, then your own terms may be contradicted and may not apply.

    Just write “copyright is retained by xxxxx Photography” on all invoices and be done thinking about it. If they literally won’t let your new client upload the same photos, then I suppose you’ve got a problem. I’d just reshoot it.

    You know, others may not find this as interesting as me, but the way I process things I’d be well able to re-edit the photos I shot of the original home, and make them look much different. Of course the staging and comps would all be the same, but they would not be the same photos by any means. I wonder if that would appease them?

  3. The National Association of Realtors claims that it informs its members about copyright matters, but it is my impression that they do not do a good job of it.

  4. @DavidEichler

    It's not your impression, it's reality. In 7 years of shooting RE I can count on one hand how many agents understand copyright laws. This has actually deterred me from having contracts signed because of the ignorance and push back that I get. It's not worth making my client angry and them feeling like they're getting ripped off and having to answer 25 questions on top of it. I've sold old listings to new agents and I've always sent a courtesy email to the previous agent letting them know. Never had a problem. The only situation that would get me would be a builder/designer/stager using my images. In that case I would have to reach out... but not having a contract doesn't mean I forfeit the rights to my images. I know it puts things in black and white but sometimes it's not worth it.

    Out of the top 5 REP's in my area there isn't a single one who uses contracts.

  5. Up here in the Pacific Northwest, the MLS is not highly suggesting agents only work with photographers that have signed their agreement that basically gives use rights to the photos for any purpose related to the sale. They basically are wanting to protect against a VHT type lawsuit. It will be interesting if VHT signs this since it is the heart of their lawsuit with Zillow.

    The agreement states it does not mean we do not own the photos as a photographer or photographer company. Personally, I do not have an issue with that as enforcing a 3rd party use is impossible anyway. So, if we wanted to resell the photos, we could. We have a policy of first asking the listing agent and then charging a fee to the new listing agent. If the old agent says NO, we typically require a reshoot anyway, just as a courtesy and business practice....

  6. I have not come across this issue, but I am going to change my invoice as Andrew suggested to include “copyright is retained by xxxxx Photography”
    When another agent has taken over a listing and requests to use the photos, I offer to change the name and contact information on the Virtual tour to reflect the new agent.
    But I first verify that the last agent is no longer the listing agent. I don't charge for the photography, but I charge an administration fee of $75 to do the changes.

  7. What possible value are RE pics to an agent who has lost a listing?

    Part of the listing agreement is a document that allows an agent to post photos of the home online for the duration of listing, BUT that document/agreement expires when the listing expires ( along with the rest of the paperwork), meaning that the agent who lost the listing no longer has the right to use those images on a listing, even though the photographer may allow that agent to use them on the realtor’s website, though few would probably use photos of a lost listing.

    The whole point of intellectual property businesses is to sell multiple copies of the same product. Who would ever write a book, or music, or software as a one-off ( without charging appropriately )?

    What this amounts to is very petty. Realtors who try to assert their control over this are usually just attempting to prevent the success of another realtor somehow, which is just absurd. The cold hard truth is that they lost the listing because they didn’t sell the house.

    Our job is to help Realtors, particularly listing agents, sell houses, not to get caught up in petty BS .

  8. I don't use an agreement. I have my copyright statement at the bottom of each invoice instead, and I think it's pretty clear and succinct. I have only had one agent take my photos, and she was already known to have been asked to leave a brokerage for unethical practices that didn't quite amount to breaking the law. Otherwise I've never had any problems, and I've certainly never had any agent try to school ME on who owns my photos; I'd laugh in their face. I explain to any new client that they can think of licensing as "renting" my photos, and I still own and retain the right to rent them out to anyone else after the agent is done with the photos.

    Any agent who thinks they own the photos I produce will end up disappointed, as I copyright them in metadata. But an MLS that doesn't know at least a little about this stuff is preposterous and doing the agents that subscribe to them a disservice.

    It just makes me wonder also if any brokerages have ever done a class for their agents on image copyright law as it relates to pro photographers, as you'd think it would be pretty relevant given how many brokerages push for their agents to use us.

  9. My goodness. First of all, in my opinion it is none of your MLS's business how you handle YOUR images and your arrangement of rights with your clients (usually, you grant exclusive rights to use for marketing and promotion, with no allowance for the client's transfer of rights). Basically, the MLS cannot sell or assign (or dis-assign) what is NOT THEIR PROPERTY, nor can they dictate how the photographer chooses to conduct his or her business. That is like saying that their members' listings must be sold only with their approval. Several MLS organizations do attempt to dictate what you can and can't do with your images, but they are very mistaken in such assumptions of propriety...in my opinion. It's called "overreach."

  10. I've had something similar happen. The bottom line is unless you specifically transfer your copyrights to your photos in writing to someone else, you own all copyrights to every photo you will ever take from the instant you press the shutter until either 10 or 20 years after your death. The photos remain yours and you can do whatever you want with them including sell them over and over to anyone you want. If agents ask I tell them the photos will always belong to me, what they are paying me for is my time and my permission to use those particular photos in whatever way they see fit for however long they want.

  11. I have a bit of a different perspective on this. Copyright laws aside and purely from an agent relationship perspective, if I were an agent and I paid you $XXX.XX to take photos for me and I saw those same photos being used by another agent for the same home, I'd have a big issue with that for obvious reasons....Therefore my first question would be, do you have the agents permission that I took the pictures for to use them. If so, can you get that agent to send me and email to let me know if it's OK with them...

    This does 2 things.... It lets the original agent know you have their back and the subsequent agent knows if they work with you in the future and were in the same position, you'd do the same...

    In any event, most of the time there is a lot of animosity between the original and subsequent agents, so getting the original agents approval is not something they would feel comfortable with so you can offer the subsequent agent a reshoot... If on the odd chance the original agent does give their permission, then I would charge a nominal fee to transfer the photos to subsequent agent, something less then a reshoot.

    Now you are no longer in an uncomfortable position and both agents know you're sensitive about protecting their interests.

  12. I should have mentioned in my comment above, as @Gerry Zagorski alluded to, I have transferred image right s to other agents many times in the past. Typically, it is only 25-30% of the original invoice. My local MLS's wouldn't consider interfering or constraining or governing the transaction....it would not even occur to them.

  13. Mike - if you're in PA you must be dealing with Trend MLS. We're in Southeast PA and also deal with Trend but have never dealt with a situation like yours where the MLS says you're not allowed to sell your photos to the new agent taking over a listing that is on a different broker of record. How would Trend know what you're doing unless the agent told them. And why would Trend care unless the agent took up the issue of ownership rights with them. It just seems very unrealistic as these issues are always settled outside the MLS by the photographer, the listing agent, and at times the home owner. It sounds to me like the person you dealt with at Trend didn't know what she was talking about.

  14. As an Associate Broker/Realtor who also owns a video production/photographic company, I have resold images many times to competing agents. The price is "full price". There is no reason to reduce my price. My images have a professional value and I won't diminish my own product's value by discounting them. That offers the second agent "reasonable choice" to have me either supply them used images or hire me to retake fresh images. I typically suggest fresh images but if they are in a hurry, I do offer them my older images. After all, I do OWN my images just like a musician owns the rights to their music or a painter to their art. I have been a professional photographer for over 40+ years. I have many agents in a 4 county range that hire me for their images and video. All of them know that I am a competing agent, however I handle my agent clients with respect and I never attempt to poach one of their clients. Also: when I shoot a property for an agent, I also have a right to use those images in my marketing and all of my agent clients understand that. However, I do typically use them sparingly and I promote the other agent as the listing agent.

  15. Gerry Zagorski wrote:
    "...if I were an agent and I paid you $XXX.XX to take photos for me and I saw those same photos being used by another agent for the same home, I’d have a big issue with that for obvious reasons..."

    I have so many questions.

    First, "the reasons" are not obvious. What's your issue? Did you think you owned the photos? I can understand being surprised the first time you encounter the concept of intellectual property rights, but the second time? The third time? I mean, if you want to own the photos, you have options. You can use CirclePix or Obeo or similar.
    The only parallel I can think of in my own industry would be (and this happens, plenty) when I lose a bid for a photography gig to another local photographer. Sure, I'm disappointed, but it doesn't occur to me to try and sabotage the other photographer, or block them from resources to shoot the gig. Geez.

    And, why should the photographer be involved in some sort of petty animosity between 2 real estate agents over who "got" the listing? Do you insist that the cleaners return and put all the dirt back in the house, rather than let the new agent have the benefit of the floor-mopping you paid for? Does the stager need your permission to re-stage the house for the new agent? Why not?

    Then there's this notion that the photographer should be re-licensing the photos for a discount. That one really makes no sense to me. First, is anyone else being asked to render services to the new agent at a discount? Does the stager who brings in furniture (again) have to do so for a smaller fee? And, why would Agent #1 want their competition to be getting the exact same product for less money than they (the original agent) paid???

    My take on the fee situation is that Agent #2 should be paying MORE, not less, for the existing photos. After all, they're getting the exact same product but unlike Agent #1, they don't have to lift a finger to make it happen -- no scheduling, no cleaning, no time spent hanging around while the photographer shoots. If I were Agent #2, that would be worth a big premium to me.

  16. This issue has recently come to my attention with the NWMLS. An agent I work with told me that the MLS requires that they get permission to use the photos from the prior listing agent. He even pointed to a recent fine of an agent. It's been an interesting morning...

    Rule Violated: Rule 192 (Use of Photographs)
    Summary of Complaint: The broker used a photo from another member's listing without permission.
    Penalty: Fined $2,500 with $1,500 suspended on the condition that the member not be found guilty of any further Rule violation within 12 months.

    So - I called the MLS and asked for clarification. Were they indeed saying that an agent was required to get permission from the first agent to use my photos? If so, where was that in the rules? The conversation was interesting. Basically they said that yes, this was the correct interpretation. When I started using language around copyright they started to back peddle and stated that they agreement is between me and the agent and they won't get in the middle. I pointed out that their Rule 192 is misleading to agents because it doesn't address the photographer's rights at all. It is built around an assumption that all the photographers they deal with have handed over all copyright. But, of course, things would be "much easier" for me if I "joined" the group of photographers who have signed the master license. Well, yes, I've read that license. Well, no, I don't know any PRE photographers who have signed it. Um, no, it doesn't make things "easier" for me!

    Here is Rule 192:
    NWMLS Rules and Regulations

    J. Member Responsibilities

    Rule 192: Listing Data
    Primary Photo. The listing member shall provide one photo of the property for use as the primary photo ("Primary Photo") at the time the listing is input into NWMLS's database. The Primary Photo shall be either i) a photo of the exterior of the property; ii) a rendering of the exterior of the property; or iii) a photo of the view from the property, and all photos shall comply with NWMLS's photo policy, as amended from time to time. For attached condominium units in a building with more than four units, the listing member may provide an interior photo as the Primary Photo, as long as the member includes, as an additional photograph, either i) a photo of the exterior of the property; ii) a rendering of the exterior of the property; or iii) a photo of the view from the property.
    License to Use Listing Data and Photos. By submitting to NWMLS a Primary Photo and other photographs, including virtual tours and the like ("Additional Photos") and other real property listing data (collectively, "Listing Data"), the member irrevocably licenses the use of the Listing Data to NWMLS and its members, both during the term of the listing and thereafter, for any purpose related to the property and the provision of real estate brokerage services and any other purpose authorized by the then current Data Use Policy. The license includes the right for NWMLS to remove or modify and copyright management information and to affix a visible NWMLS watermark to all photos submitted to NWMLS.
    Use of Listing Data by Members. Members may use Listing Data provided to NWMLS by another member for the following purposes:
    Sale of the Property. During the term of the listing, for any purpose related to the sale or lease of the property;
    Comparative Market Analyses. During the term of the listing and thereafter, for comparative market analyses, appraisals, broker price opinions, and related analyses;
    Off Market Purposes - Primary Photo. After the term of the listing, members may use the Primary Photo for normal and customary off-market purposes, such as an announcement that the property has sold. If the member was not the listing or selling firm, the member must include the name of the listing and selling firm (if applicable) adjacent to the photograph in a reasonably legible font; and
    Data Use Policy. Any other use permitted by the then current Data Use Policy, including publication on the Internet.

    No further license for members to use Listing Data provided to NWMLS by another member is intended or implied.
    Warranty. By submitting Listing Data to NWMLS, the member warrants that it may be used as set forth in NWMLS's Rules and Regulations and Data Use Policy. Members shall not submit third party copyrighted Listing Data to NWMLS, if the use of the Listing Data by NWMLS and its members as permitted by these Rules and Regulations would violate any copyright (e.g., photographs from Google Maps, Bing Maps, MapQuest, Getty Images, county assessors, etc.). The member submitting Listing Data to NWMLS shall indemnify, defend and hold NWMLS and its members harmless against any claims or liability resulting from the use of Listing Data in a manner permitted by these Rules and Regulations.
    License to NWMLS of Listing Data for Applications and Services. The member submitting Listing Data to NWMLS irrevocably licenses the use of the Listing Data to NWMLS for the purpose of providing applications and services to members, as the Board of Directors determines appropriate, from time to time, which license includes the right to sublicense the Listing Data to third parties for applications.

  17. @Tacey- The NWMLS Rule 192 only applies to photographers that have signed Form 13B which signs their rights to the NWMLS but photographers don't have to sign Form 13B and most I know don't sign Form 13B.

  18. I agree with Scott on the fee charged to a subsequent agent. They should pay what you would normally charge to photograph that home. I don't say to charge the same as the first agent paid in case they received a discount. It's even appropriate to tack on a fee. The new agent not only doesn't have to arrange for another photo session and wait 24-48 hours to receive the images, they can have them right away and know up front exactly what they are licensing.

    @Tracey, The NWMLS text you posted shows how hard it is to navigate all of the legalese. It would be so much simpler if the MLS would start with the premise that they are there to support their members in selling homes/property and not primarily in the business of selling data to third parties collected by their members. The last sentence in your post has so much wiggle in it that it's hard to tell what they are trying to indemnify themselves against.

    I'd love to know the details of the fine levied on the broker. Was the broker reusing images as a subsequent listing agent or did they copy a photo to use in other advertising? If it was the former, the Copyright holder controls, if the latter, the MLS should penalize the broker for their actions in addition to an action taken by the Copyright holder.

    In researching an agent recently, I found their website that had some very nice photos on it that didn't match the style of anything in our area. I used Google to do an image search and found the home featured in some articles and it that it is located in South Florida, not California. It was also interesting to see that the image was flipped horizontally. Google was still able to pull up the matches. I didn't find any instances of the images being advertised for licensing although I know some web site templates will come with included stock photos. I don't see why agents don't just use images they have licensed for homes they represented. One reason could be that the images they use on their website are very nice professional images and they take their own images with a cell phone that can't compete. False advertising? Some of these agents even make claims that they use a professional photographer yet their listings don't bear that out.

  19. Scott wrote :

    I have so many questions.

    First, “the reasons” are not obvious. What’s your issue? Did you think you owned the photos? I can understand being surprised the first time you encounter the concept of intellectual property rights, but the second time? The third time? I mean, if you want to own the photos, you have options. You can use CirclePix or Obeo or similar.
    The only parallel I can think of in my own industry would be (and this happens, plenty) when I lose a bid for a photography gig to another local photographer. Sure, I’m disappointed, but it doesn’t occur to me to try and sabotage the other photographer, or block them from resources to shoot the gig. Geez.

    And, why should the photographer be involved in some sort of petty animosity between 2 real estate agents over who “got” the listing? Do you insist that the cleaners return and put all the dirt back in the house, rather than let the new agent have the benefit of the floor-mopping you paid for? Does the stager need your permission to re-stage the house for the new agent? Why not?

    Then there’s this notion that the photographer should be re-licensing the photos for a discount. That one really makes no sense to me. First, is anyone else being asked to render services to the new agent at a discount? Does the stager who brings in furniture (again) have to do so for a smaller fee? And, why would Agent #1 want their competition to be getting the exact same product for less money than they (the original agent) paid???

    My take on the fee situation is that Agent #2 should be paying MORE, not less, for the existing photos. After all, they’re getting the exact same product but unlike Agent #1, they don’t have to lift a finger to make it happen — no scheduling, no cleaning, no time spent hanging around while the photographer shoots. If I were Agent #2, that would be worth a big premium to me.

    Gerry wrote:

    Scott I'm not talking about intellectual property and copyright laws here, you obviously need to deal with those issues as you see fit. I'm just trying to give you some insight from an agent perspective on how they might feel about another agent using photos they paid you for.

    Not sure how long you've been involved in real estate and dealing with agents... Their commission only business model definitely makes them very competitive and territorial, even if they are in the same office... Call it petty or whatever you like but that's the reality.

    So take a step back for a minute and see it from their perspective.... I just spent X$$ on photos and other marketing stuff and my time coordinating showings etc in an attempt to sell a home..... 6 months later the listing expires and I loose the listing to another agent. OK, I can take that, it happens all the time and I didn't sell the home and I knew there was a risk associated with that and whatever investments I made in marketing.... Now I go on the MLS and I see the photos I paid you for on the new listing and you never asked for my permission to allow the new listing agent to use them??

    It doesn't matter what you may or may not have charged the new agent, I paid you for those pictures so I should be given the opportunity to decide if I'd like to let another agent to use them or not...

    Once again, copyright and intellectual properties aside and and whatever I signed off on with you in that regard, I'm going to be upset as a result I might not want to do business with you again...

    Having said all this, it's your business and your customers and you can do whatever you choose but just understand, that's how an agent might react....

  20. Well, I've only been doing this since 2006, so obviously I'm totally ignorant when it comes to real estate agents. But seriously, Gerry, you didn't answer any of my questions.
    What, specifically, is the problem? So far, all I'm hearing is that you're mad because you failed to sell a house. Well, welcome to the world of business...but taking your frustration out on your vendors is not going to get you very far - and neither is engaging in some sort of vendetta against your competition. If you believe that it's the FAULT of the photographer that you couldn't sell the house, then you should be GLAD to see your replacement using the same crappy photos that lost you the listing. But if the photographer delivered exactly what you paid for (which is a license to use the photos) then I don't see what the issue is. Unless you paid for an EXCLUSIVE license, then you are just trying to use your photographer as a pawn in your effort to sabotage your colleague. You would lose me as a vendor in a matter of seconds if you tried to insert me into some sort of juvenile drama like that.

    You also don't address my questions about all the other vendors who were involved in your listing. Do you try to prohibit the stager from working with new agent?

    "...I see the photos I paid you for on the new listing and you never asked for my permission..."
    What do you think it is that you paid for? <--- Not a rhetorical question.
    You keep saying things like "copyright and intellectual properties [sic] aside" and "I'm not talking about intellectual property and copyright laws" and "whatever I signed off on with you in that regard". But Gerry, THAT'S EXACTLY WHAT WE ARE TALKING ABOUT. That's the sole subject of this discussion. If you get pulled over for speeding, you can't tell the cop, "Well, Officer, traffic laws aside...I don't I'm guilty." and expect to get away with speeding. YOU VIOLATED TRAFFIC LAW, you're getting a ticket. That's the issue, and it's the only issue.

    The photographer owns the photos....period. She doesn't need to ask YOU for permission to use them, you need to ask HER for permission. And you did, and paid for your usage.

    "..."whatever I signed off on with you in that regard"...."
    You can't just blithely sign a contract and then be upset when the other party adheres to the terms. You got exactly what you paid for, which was the right to use the photos for the duration of your listing. You didn't pay for usage BEYOND that point, so getting huffy because someone else chooses to do so is irrational at best. You could always negotiate exclusive usage with your photographer, if that's what you want. Get ready to shell out some serious coin for the privilege, though.

  21. So that was a ramble...the main thing I want to ask is this:

    What is it that you think you paid your photographer for?
    Because there's clearly a disconnect between what you think you're getting, and what your photographer thinks she's providing.

  22. Gary, if you really understand intellectual property rights as you claim, you should also understand that you did not “pay for the photos”. You paid for specific rights to use the photos, rights which normally do not include limiting the photographer’s right to sell usage rights to other parties. Any amount of exclusivity that limits a photographer’s right to sell reuse rights needs to be accompanied by an additional fee to compensate the photographer for that restriction. In my case, based on the rates I typically charge for real estate photography, I would want at least twice my normal fee for the kind of exclusivity you describe, because I normally charge at least my standard fee for reuse rights to subsequent agents. In one case, I have sold reuse rights to some photos of a property three times, for 3 subsequent listings, after licensing them to the commissioning client. This was for a very expensive property and that amount of reusage doesn’t happen often, but I think it serves to emphasize the point.

  23. I'm fully aware of what intellectual property rights are and it sounds like your terms of use/agreement with your agent allows you to re use those photos without the agents permission. I'm simply trying to point how the agent who paid for those photos might react if you do.

  24. You should have a written contract with each individual realtor for whom you shoot stating clearly that YOU are the owner of the images and they are LICENSING the images under the terms of the Limited Copyrights Assignment document that they sign separately for each listing. This document should state the uses and time frame for which the limited assignment is made. I include a contact sheet of the assigned images as part of each Limited Copyrights Assignment document. Lightroom creates the contact sheet automagically.

  25. Gerry, I provide my clients with my terms before I take on an assignment from them, so they know what to expect. Of course I will not license the photos to a competing realtor while their listing with the seller is active. If they do not sell the listing and do not want me to relicense the photos to a competing realtor, I would be glad to sell them limited exclusivity for that purpose, which means an additional fee above my standard fee for real estate photography. Btw, I have never had a real estate agent object to my relicensing the photos I shot for their listing to other realtor, and I always charge any subsequent realtors at least as much as I charged for the initial usage.

  26. Like an expert carpenter, Scott H knows how to drive a 10 penny nail home with one swing. If it is alright with him, I am going to save the reasoning for use with new clients to help them understand. I also like and will incorporate David’s idea of offering the original agent the option of limited exclusivity if they want to take the petty route with their competition.

    It always astounds me that there are those out there that “sign off” on an agreement and then just blow it off because the “feel” they can. Ethics 101 class……you fail.

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