The Marketing Agency may also retain ownership of any INTELLECTUAL Property developed as part of its cooperation with the Customer and grant the Customer a license to use the Intellectual Property so that it can use the Service Provider`s Services. In its Compliance Bulletin, the CFPB provides several examples of RESPA violations it has encountered in the area of bribes and referral fees, including the failure of a settlement service provider to disclose its affiliation relationship with an exam management company and not inform customers that they had the opportunity to purchase services before passing them on to the affiliate. In another case, an ADS was structured in such a way that the fee was based in part on the number of referrals received by the settlement service provider and the amount of revenue generated by those recommendations. Although the bulletin does not indicate a clear criterion for the legality of MSAs, it does indicate that a very high threshold must be reached for an MSA not to violate respA. Nevertheless, the CFPB stated: “Based on [their] experience, determining whether an LSE violates RESPA requires a review of the facts and circumstances related to the creation of each agreement and its implementation. The nature of this fact-based investigation means that, while some guidelines may be found in the Bureau`s previous public actions, the outcome of one case is not necessarily determinative of the outcome of another. “Many companies have already started termasing their MSAs due to compliance issues. While it is not clear how to perfectly build an MSA that meets the CFPB model, industry members should conduct a thorough assessment of their current and future MSAs with their advisor to avoid the costly consequences of non-compliance. As a general rule, the customer must grant the service provider a license to use its content to the extent necessary for the provision of its services.
As a general rule, the customer accepts that its content does not infringe the property rights of third parties. In the new era of the Real Estate Settlement Procedures Act (“RESPA”), the Consumer Financial Protection Office (“CFPB”) is focusing on marketing services agreements (“MSAs”) and publicly expressing its concerns about these agreements. Typically, an MSA is a relationship between a real estate agent or developer and a securities company or mortgage broker where the real estate agency agrees to market the securities company`s or mortgage broker`s service for a “marketing fee.” The royalty should be based on the “fair market value of the marketing and advertising services to be constituted”. MSA Program Management, Policies and Procedures: 1) Manage and manage MSAs in a corporate compliance or jurisdiction group, 2) Perform an analysis of marketing results and activities generated in a separate corporate function, 3) Document MSA policies and procedures, 4) Train employees on RESPA, 5) Obtain an independent assessment of the services to be provided for all MSAs, 6) Set a fixed and prudent marketing fee below the value of the services to be provided. This helps to cushion in the event of a variation in the activities of services actually provided or disagreement on the value of those services, and to show that there is no agreement or understanding regarding recommendations, 7) implement a disciplined process of verification and remuneration of back-end services, and 8) dissolve MSAs if marketers do not provide sufficient evidence of service in a timely manner. . Most marketing service agreements include an exclusivity clause. This means that the client undertakes to use only the consultant`s marketing services during the term of the contract.
The exclusivity clause and the rest of the agreement apply to all employees and subcontractors of the customer. For example, if a customer uses a third-party service provider to manage the operation of its subsidiary, the seller may not be able to use another company for the marketing activities of the grant. .