The following is an excerpt from the 2018 MISMO Intellectual Property Rights Policy, to access the policy document in its entirety, Click HERE.
MISMO PRODUCT DISTRIBUTOR LICENSE v. 1.0
This Distributor License relates solely to the MISMO Product to which it is attached and each Distributor agrees to the terms of this License with its first use of the MISMO Product. This Distributor License sets forth the terms and conditions under which organizations may use this MISMO Product to make, or have made, for distribution to third parties, products or services using, or incorporating, this MISMO Product. This Distributor License also grants to Distributors (as defined below) certain patent license rights as set forth in Section 3 below subject to the terms and conditions of this Distributor License.
1. Definitions. For purposes of this Distributor License, the following capitalized terms have the meanings given the terms below. All other capitalized terms have the meanings given them elsewhere in this Distributor License.
"Distributor" means an individual or organization who makes, has made, uses, distributes or in any other way provides, sells, offers for sale, imports, modifies, reproduces, publishes, publicly performs, displays, or makes derivative works using, or that are compliant with, a MISMO Product where the individual or organization distributes the Product (in whole or in part) outside of its organization, whether or not a fee is charged therefor.
"MISMO" is the Mortgage Industry Standards Maintenance Organization, which is affiliated with the Mortgage Bankers Association ("MBA").
"MISMO Collateral" means a product produced by MISMO, via MISMO work groups or otherwise, that has been deemed to be "MISMO Collateral" pursuant to the process set forth in the MISMO Policies and Procedures.
"MISMO Product" is a collective term that includes both MISMO Collateral and MISMO Standards.
"MISMO Standard" means a product produced by MISMO, via MISMO work groups or otherwise, that has been deemed to be a "MISMO Standard" pursuant to the process set forth in the MISMO Policies and Procedures.
"Patent Rights" are all patents and patent applications that a Royalty-Free Patent License Grantor owns that would be infringed by an organization that makes, has made, uses, sells, offers for sale, or imports a product or service using, or compliant with, or incorporating, that MISMO Product by virtue of its product's or service's use, or incorporation of, the MISMO Product, except for any patents and patent applications that the Royalty-Free Patent License Grantor disclosed to MISMO as not being subject to the Royalty-Free Patent License.
"Royalty-Free Patent License Grantor" means an organization who agreed to grant, or who has been deemed to have agreed to grant, the Royalty-Free Patent License (as defined below) with respect to this MISMO Product pursuant to MISMO's IPR Policy, a copy of which is available for reference at www.mismo.org.
2. License from MISMO for the MISMO Product. MISMO hereby grants to each Distributor, a worldwide, non-exclusive license to: use this MISMO Product to develop, manufacture, have manufactured, distribute or otherwise provide, sell and deliver mortgage and real estate investment products and services; reproduce this MISMO Product in copies; and prepare proprietary derivative copyright works based upon this MISMO Product solely in developing a product or service for the mortgage or real estate industries ("MISMO Product License for Distributor"). Under this License, distribution and sale of the products and services developed using the MISMO Product may be made both within and outside of Distributor's organization. Whether or not this MISMO Product License for Distributor is royalty-free shall be determined by the terms under which the Distributor acquires this MISMO Product from MISMO (and could depend on the Distributor's membership status and/or the version of the Product) and, when royalty-free, shall be for that specific version of the Product only. Other versions of the same MISMO Product may or may not be royalty-free, as determined by MISMO from time to time. Products or services created based on this MISMO Product may be distributed outside of Licensee's organization only after full payment of all applicable fees. Similarly, the duration of the license will be determined by the terms under which the Distributor acquires the MISMO Product. Neither MISMO, nor any Royalty-Free Patent License Grantor, will have any obligation to any Distributor to file suit against any Royalty-Free Patent License Grantor or third party to enforce the MISMO Product License or any other right or obligation under the MISMO Product License or the IPR Policy on such Distributor's behalf. When attached to an item of MISMO Collateral, this MISMO Product License for Distributor permits the Distributor to use, distribute, modify, reproduce, and make derivative works of the Collateral or any parts thereof both within and outside of Distributor's organization. However, all copies of the Collateral and any derivative works must attribute all content taken from the original item of Collateral to MISMO and carry the following legend:
"This work is intended for internal use only by clients of ____________ [Insert Name of Distributor], a MISMO Collateral Licensee, and includes, in whole or in part, content from the [Insert Name of Collateral ____________________v. __, dated ____] published by the Mortgage Industry Standards Maintenance Organization, Inc. ("MISMO"). Your access through this work to the [name of Collateral], or parts thereof, does not convey to you any other rights to use, distribute, modify, reproduce, sell, sublicense, offer for sale, publish, or make derivative works of that MISMO product, or any portion of the product contained in this work. The right to make derivative works from any MISMO product is restricted by MISMO either to MISMO members and/or to those who pay the appropriate fee. Please contact MISMO for more information."
3. Royalty-Free Patent License from Royalty-Free Patent License Grantors for the MISMO Product. Each Royalty-Free Patent License Grantor, under its Patent Rights, hereby grants to each Distributor, a non-exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide license to make, have made, use, sell, offer for sale and import products and services using, or compliant with, or incorporating a MISMO Product, and for no other purpose (the "Royalty-Free Patent License"). The Royalty-Free Patent Licenses granted under this Distributor License are granted on an "AS IS, WHERE IS" basis, without warranty of any kind, express, implied or statutory and Distributor accepts and agrees to the grant of the Royalty-Free Patent License on this basis. Under this Royalty-Free Patent License, each Distributor may assert the Royalty-Free Patent License and any estoppel rights it may have defensively in an infringement action or in response to a demand letter or similar notice from a Royalty-Free Patent License Grantor, or may bring a declaratory judgment action as to the scope or validity of the Royalty-Free Patent License, but Distributors are not otherwise given affirmative rights to sue based on the Royalty-Free Patent Licenses or such estoppel rights. Neither MISMO, MBA, nor any Royalty-Free Patent License Grantor, will have any obligation to any Distributor to file suit against any Royalty-Free Patent License Grantor or third party to enforce any Royalty-Free Patent License or any other right or obligation under the Royalty-Free Patent License or the IPR Policy on such Distributor's behalf. No Royalty-Free Patent License Grantor is obligated to disclose any technology or other information to any Distributor or other person as a result of any license granted pursuant to the IPR Policy.
4. Acknowledgement regarding Third Party Intellectual Property Rights. Distributor acknowledges and agrees that, notwithstanding the Royalty-Free Patent Licenses, the making, having made, using, distributing, selling, offering for sale, importing, modifying, reproducing, publishing, publicly performing, displaying or making derivative works of a product or service using or complying with this MISMO Product may require use of intellectual property rights belonging to third parties, including, without limitation, the Royalty-Free Patent License Grantors, and that such use may require licenses from and the payment of royalties to these parties to avoid infringement liability. MISMO shall not be responsible for identifying intellectual property rights for which a license may be required or for conducting inquiries into the legal validity or scope of those intellectual property rights that are brought to its attention.
5. DISCLAIMER. THIS MISMO PRODUCT, DISTRIBUTOR LICENSE (WHICH INCLUDES THE MISMO PRODUCT LICENSE FOR DISTRIBUTOR AND THE ROYALTY-FREE PATENT LICENSE), AND THE INTELLECTUAL PROPERTY RIGHTS LICENSED IN THIS DISTRIBUTOR LICENSE ARE PROVIDED "AS IS, WHERE IS." MISMO, MBA, THE ROYALTY-FREE PATENT LICENSE GRANTORS, AUTHORS, AND INTELLECTUAL PROPERTY RIGHTS HOLDERS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND INDEPENDENT CONTRACTORS, MAKE NO REPRESENTATIONS OR WARRANTIES TO END- USERS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THIS MISMO PRODUCT OR THE DISTRIBUTOR LICENSE, INCLUDING, BUT NOT LIMITED TO WARRANTIES: (i) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT; (ii) THAT THE CONTENTS OF SUCH MISMO PRODUCT ARE FREE FROM ERROR OR SUITABLE FOR ANY PURPOSE; OR (iii) THAT MAKING, HAVING MADE, USING, IMPORTING OR SELLING A PRODUCT OR SERVICE COMPLIANT WITH, OR INCORPORATING, SUCH MISMO PRODUCT WILL NOT INFRINGE ANY THIRD-PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS AND ANY SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. IN NO EVENT WILL MISMO, MBA, THE ROYALTY-FREE PATENT LICENSE GRANTORS, AUTHORS OR INTELLECTUAL PROPERTY HOLDERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS OR INDEPENDENT CONTRACTORS, BE LIABLE TO ANY DISTRIBUTOR FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES FOR ANY USE OF THIS MISMO PRODUCT OR WITH RESPECT TO THIS DISTRIBUTOR LICENSE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA ON ANY INFORMATION HANDLING SYSTEM OR OTHERWISE, EVEN IF MISMO, MBA, THE ROYALTY-FREE PATENT LICENSE GRANTORS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS OR INDEPENDENT CONTRACTORS, ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6. Modification Rights. MISMO reserves the right to modify this Distributor License at any time upon thirty (30) days prior written notice by means of publication of such notice on the MISMO website at www.mismo.org. Distributor acknowledges and agrees that MISMO is not a party to and has no obligation under the Royalty-Free Patent License, and that the Royalty-Free Patent License Grantors are not parties to the MISMO Product License granted to Distributors herein and, accordingly, have no obligations thereunder.
7. IPR Policy Patent Disclosures. MISMO may, but is not obligated to, maintain and make available to Distributors on written request copies of patent disclosures made pursuant to Section 6 of the IPR Policy.
8. Required Legal Notices. Any distribution of copies of this MISMO Product by Distributor (including distribution of any products or services incorporating or utilizing the MISMO Product) will include either a working link to, or verbatim, the entire text of this Distributor License under the following header: "This document includes works belonging to The Mortgage Industry Standards Maintenance Organization, Inc. ("MISMO") and is subject to the then-current MISMO Distributor License published at www.mismo.org or any subsequent applicable version of the MISMO Distributor License." Any software application developed by Distributor based upon a MISMO Product shall include the following notice in its end user documentation and in its source code: "This software product includes software or other works belonging to The Mortgage Industry Standards Maintenance Organization, Inc. ("MISMO") that are subject to either the then-current MISMO Distributor License published at www.mismo.org or any subsequent applicable version of the MISMO Distributor License when the software product is produced or used for non-commercial purposes, or the then-current MISMO Distributor License published at www.mismo.org or any subsequent applicable version of the MISMO Distributor License, when the software product is produced or used for commercial purposes." In addition, by downloading and using this MISMO Product, each Distributor agrees that, when providing any product or service to its customers or associated businesses that incorporates or utilizes the Product in any way, the Distributor will use commercially reasonable efforts to encourage recipients of such products or services to register with MISMO as a MISMO Product user.
9. Covenant regarding Use of MISMO Trademarks. Distributor covenants that no Distributor product or service will be marketed in connection with the trade name "MISMO" or any of its trademark(s) or service mark(s), nor will Distributor make any statement regarding "MISMO compliance," unless expressly permitted under license by MISMO. Any use by Distributor of the terms "MISMO", "MISMO-compliance" or any of MISMO's other trademarks without MISMO's prior written consent will not imply endorsement of Distributor's activities or products or constitute any acknowledgment by MISMO of a product's or service's compliance with a MISMO Product. Neither MISMO nor MBA nor any organization that participated in developing this MISMO Product will have any liability for any such products or services to Distributors or third parties.
10. Governing Law. This Distributor License shall be governed and construed in accordance with the laws of the District of Columbia without giving effect to principles of conflict of laws, and the parties hereby irrevocably consent to the exclusive jurisdiction of the courts thereof with respect to any dispute arising out of or in connection with this Distributor License naming MISMO or MBA as a party.
© 2017 The Mortgage Industry Standards Maintenance Organization. All rights reserved.