1. YOUR ACCEPTANCE OF TERMS AND CONDITIONS
1.1. The website https://www.openagent.com.au and any agent portal or other website interfacing with https://www.openagent.com.au (together the Website), and the vendor research services provided by OpenAgent Pty Ltd ABN 93161595679 (OpenAgent) to members of its Website (the Vendor Services), are owned and operated by OpenAgent. Any reference to “OpenAgent”, "we", "us" and "our" in these Terms and Conditions refers to OpenAgent Pty Ltd.
1.2. OpenAgent may send to you, including through the Website, by phone, email or otherwise, details of potential vendors of property (Leads). By using the Website or by accepting a Lead from us (the Agent Services), you (“you” or the “Agent”) agree to be bound by these Terms and Conditions, and where you are employed by or acting on behalf of any business, person, organisation or agency that is the holder of a valid real estate license (“Agency”), the Agency is taken to have accepted these Terms and Conditions and you are taken to have been duly authorised to bind the Agency to these Terms and Conditions. The Vendor Services and Agent Services are collectively referred to as the “Services” in these Terms and Conditions.
1.3. These Terms and Conditions are the terms for use of the Website, the Services and the terms of your relationship with OpenAgent.
1.4. Please carefully read these Terms and Conditions before you use the Website or the Services. In using and continuing to use the Website and the Services you agree to be bound by these Terms and Conditions. If you do not accept these Terms and Conditions, you must not continue to use the Website or Services.
1.5. These Terms and Conditions apply whenever you access the Website or utilise the Services, regardless of how you access the Website or interact with us, including but not limited to the internet, email, tablets, smart phones, mobile phones, Agent Portal and data feeds.
1.6. By accepting these Terms and Conditions, you also agree to be bound by the OpenAgent User Terms and Conditions which are available on our Website https://www.openagent.com.au/terms. If there is any inconsistency between these Terms and Conditions and the OpenAgent User Terms and Conditions, the provisions of these Terms and Conditions will prevail to the extent of the inconsistency.
1.7. We may revise these Terms and Conditions from time to time by updating the Website. The revised Terms and Conditions will take effect on notice to you, which may be provided to you by a posting on the Website, via e-mail or any other means. If you continue to use the Website and Services after this date, you will be deemed to have accepted the updated Terms and Conditions.
2. AGENT REGISTRATION
2.1. By continuing to engage with OpenAgent and utilising the Agent Services, you agree and acknowledge that:
(a) you shall provide us with accurate, complete and updated registration information including the contact details for the Agent and you warrant that you hold all appropriate licenses as required by law;
(b) you may cancel your registration at any time by notifying us, in writing. We will then use our best efforts to cancel your registration within 21 working days of receipt of your request;
2.2. OpenAgent reserves the right, in its absolute discretion, to review and consider all potential registrations in order to maintain quality of the Services and may contact you by telephone or email to verify that your registration information is accurate and correct before engaging you; and
2.3. OpenAgent reserves the right to discontinue or cancel your registration, at our sole discretion and without notice including but not limited to the following reasons:
(a) breach of any applicable law or breach of any of the Terms and Conditions;
(b) where we conclude that your conduct or ongoing registration impacts (or may, in our view, impact) our name or reputation;
(c) where we conclude that your conduct violates our rights or those of another party, including any vendor or an OpenAgent member; or
(d) for any other reason.
3. AGENT SERVICES
3.1. From time to time and subject to regular review of your customer reviews, sales experience and other information available to OpenAgent, OpenAgent may provide you with Leads. For the avoidance of doubt, you acknowledge and agree that that OpenAgent is under no obligation to provide Leads to you or any other agents and the provision of any Leads to you is at OpenAgent's sole discretion.
3.2. The Services provided by OpenAgent are non-exclusive and you understand OpenAgent may provide Leads in its absolute discretion to any agent (whether or not registered with OpenAgent at the time the Lead is provided).
4.1. OpenAgent operates as an independent third party facilitator in respect of any transaction and communication between members of OpenAgent and Agents. OpenAgent at all times remains independent from any advice, content, correspondence, information or representations given by or to Agents and members of OpenAgent . You assume full responsibility for your decision to act on Leads and engage with members of Open Agent.
4.2. The services, advice, information, suggestions and opinions provided by any party via the Website are strictly that party's own.
4.3. As a result of both 4.1 and 4.2, OpenAgent takes no responsibility for the quality, safety or legality of the services, correspondence, monies, information and/or opinions provided by an Agent, vendor (or OpenAgent member), or the accuracy, truthfulness or reliability of the information supplied by the Agent or vendor (or OpenAgent member). The information is provided to you "as is" and on an "as available" basis and on the condition that you undertake all responsibility for assessing and considering the accuracy of the content, and you agree to rely on it at your own risk.
4.4. OpenAgent receives no direct payment from the vendor in respect of the Services.
4.5. OpenAgent is in no way party to and will not be liable for enforcing any agreement made between the vendor and an Agent.
4.6. OpenAgent and its related entities are not in the business of being a real estate agency and nothing in these Terms and Conditions or the Website shall be construed as an appointment of agency of OpenAgent (or its related entities), either on behalf of the OpenAgent member or the Agent.
You must, within 48 hours of the relevant event below, report to OpenAgent, in a form and means agreed with OpenAgent (including by email or phone), the following information in respect of any property transaction or vendor communication, in each case arising in connection with a Lead:
(a) confirmation of initial contact with vendor;
(b) confirmation when property has been appraised;
(c) full details of the property listing including a copy of the 'listing agreement' or 'authority to sell’ made with the vendor;
(d) confirmation of exchange of contracts for a property sale;
(e) upon exchange of contracts for a property sale, confirmation of your total commission; and
(f) confirmation when a contract of sales becomes unconditional (if applicable); and
(g) confirmation of execution of settlement of a property sale (including a copy of the settlement agreement).
6. FEES AND INVOICING
6.1. The Agent shall pay OpenAgent (or nominee) a fee calculated in accordance with clause 6.2, being a deferred lump-sum professional services fee (Fee) in consideration for receiving the Agent Services provided by OpenAgent.
6.2. When a sale arising in connection with a Lead becomes unconditional, OpenAgent (or its nominee) will issue an invoice to the Agent for payment of the Fee, calculated (subject to clause 6.6) at 20% of the total commission of the sold property, plus GST. The Agent agrees to pay the Fee by the due date on the invoice.
6.3. You agree that you will not charge members of OpenAgent a fee (however characterised, including by way of an increase to your commission) for use of OpenAgent’s Services.
6.4. A sale in relation to a property is considered to have arisen from a Lead if the Lead was provided or referred to the Agent by or as a result of OpenAgent performing the Services, regardless of prior contact between the vendor and the Agent. To avoid doubt, the Agent hereby acknowledges and agrees that a vendor’s submission on the Website indicates that the vendor has not yet made a decision on which agent to appoint for the sale of their property. Any sale or other dealing orchestrated, transacted or derived from the actions of the Agent or Agency in respect of that property shall be subject to the Fee requirements in Clause 6.1.
6.5. The Agent will pay the Fee to OpenAgent if the referred property is sold by the Agent (or Agency) at any point within the following 24 months from the date the Lead is provided to the Agent and Agency.
6.6. We require your total commission in order to calculate the Fee and send you an invoice. Pursuant to clause 5(e), you must notify us of your total commission within 48 hours of exchange of contracts for a sale in connection with a Lead. If you do not provide OpenAgent with your total commission OpenAgent may (at its sole discretion and notwithstanding clause 6.2), calculate the Fee as 1% of the sales price (regardless of your total commission), payable on demand from OpenAgent within 14 days of the date of the relevant invoice. If you subsequently provide us with your total commission, we may (in our sole discretion) adjust the Fee to be calculated in accordance with clause 6.2.
6.7. Where payment of the Fee is not made within 14 days of the due date of the invoice issued under this agreement, OpenAgent may charge you a $500 suspension fee and accrue interest at the rate of 2.5% per month, from the date the payment was due until the date payment is made.
6.8. You agree to reimburse OpenAgent for any costs or fees incurred by OpenAgent to recover overdue Fee(s) and other amounts payable by you under this agreement.
6.9. For avoidance of doubt, if the Agent does not pay the Fee when due, the Agency is bound to pay the Fee and any other amounts described in this clause 6.
6.10. This clause 6 is a material term of these Terms and Conditions.
7. AGENT AND AGENCY PROFILE INFORMATION
7.1. OpenAgent may agree to receive property sales and other information about an Agent and/or Agency by electronic data feed or by other means, including but not limited to via email, phone or the Website. If OpenAgent agrees to accept a data feed or accepts information directly from you, the Terms and Conditions apply to both the data feed and the data contained in the data feed, and any information provided. In addition, the following provisions apply:
7.2. You represent that the data and information is true and accurate.
7.3. You warrant that:
(a) you are authorised to establish the data feed with us, and to provide any data feed data to us; and
(b) the information, data feed, and any data feed data, does not infringe or violate any intellectual property rights or any legal or moral rights of any third party or any applicable laws.
7.4. You agree that we may, and you licence us to, use, disclose, display, rearrange or otherwise deal with any information or data feed data at any time and in any way that may be necessary or desirable for the purposes of our business. You warrant that you have the right to grant this licence and that all applicable consents, permissions and authorisations have been obtained from relevant third parties in relation to the information, data feed and the data feed data.
7.5. You agree that the indemnity in clause 12 applies in respect of a breach of the warranties and representations in this clause 7.
8. USE OF THE WEBSITE
8.1. The Website may provide the opportunity for a platform on which Agents or vendors or members registered with OpenAgent may interact.
8.2. The Website may contain material or content uploaded, posted, emailed or otherwise electronically transmitted (posted) by users of the Website, including you (Content).
8.3. OpenAgent reserves the exclusive right to:
(a) access or examine any Content; and
(b) at our discretion, move, remove or disable access to Content, including Content which we consider, in our sole opinion, to be unacceptable or otherwise breach any law.
8.4. By using and accessing the Website, you agree that you acknowledge that all communications on the Website are public and not private communications and you are solely responsible for any Content posted by you, and that OpenAgent assumes no responsibility or liability arising from any such Content.
8.5. By using and accessing the Website, you agree that you will not do any of the following:
(a) post, communicate or transmit any unlawful, criminal, threatening, abusive, defamatory, libellous, contemptuous, obscene, vulgar, pornographic, profane or indecent Content;
(b) post, communicate or transmit content which violates or infringes the rights of any other person or party or infringes any law;
(c) stalk, harass, or otherwise harm others;
(d) inhibit or restrict any other use from using the Website;
(e) post, communicate or transmit or use any material of any kind for commercial purposes, or which contains any promotional material or advertising, or any other forms of unsanctioned solicitation, including without limitation junk mail, spam, chain letters, or unsolicited mass distribution of email;
(f) post any Content that contains a survey, contest, pyramid scheme or any improper question;
(g) delete, circumvent or alter any author attribution, legal notices, rights management information or technological protection measures;
(h) post, download or communicate any file or material posted by another user of the Website, if you know, or reasonably ought to know, that the file or content cannot legally be downloaded or communicated in that matter;
(i) interfere with the computer systems which support the Website; overload a service; engage in a denial-of-service attack; or attempt to disable a host;
(j) post, communicate or transmit any file which contains viruses, worms, "Trojan horses" or any other harmful, contaminating or destructive features;
(k) access or attempt to access information resources you are not authorised to use;
(l) collect or store personal data about other users of the Website;
(m) impersonate or falsely represent your association with any person or organisation; or
(n) attempt to modify, adapt, translate, sell, reverse engineer, decompile or disassemble any portion of the Website.
8.6. You acknowledge that OpenAgent has no responsibility or liability for the deletion or failure to store any communications or content posted on the Website.
8.7. You acknowledge that OpenAgent may, in our sole discretion and without notice, vary, modify or discontinue, temporarily or permanently, any or all of the Website and you agree we are not liable to you or any third party for such variation, modification or discontinuance.
8.8. OpenAgent does not warrant that functions contained in the Website content, such as hyperlinks, will be uninterrupted or error free, that defects will be corrected or that OpenAgent or our hosting server, are free of viruses or bugs.
8.9. You understand and agree that OpenAgent may on its Website, upload or provide links to your photo or upload testimonials or feedback provided by OpenAgent members about you without your prior approval.
9. USER LICENSE AND CONSENT
9.1. You represent and warrant that all Content that you post is true, accurate and not confidential to or is not a trade secret or owned by any other person.
9.2. You represent and warrant that you will not use the Website for any purpose that is unlawful or prohibited by these Terms and Conditions.
9.3. You warrant that all Content posted by you is owned by you and our use of such Content does not infringe or violate intellectual property rights or any other rights of any third party. You license us to use, modify, adapt, publish, display, sublicense, create derivative works from and incorporate in other works any Content posted by you, at any time in the future in any form and for any purpose and warrant that you have the right to grant this license.
9.4. You indemnify OpenAgent against any and all legal fees, damages and other expenses that may be incurred by OpenAgent as a result of a breach of the above warranties.
9.5. To the fullest extent of the law, you waive any moral rights in your Content for the purposes of its submission to and publication on the Website.
10. THIRD PARTY CONTENT & LINKS
10.1. The Website may include links to third party sites which are not related to OpenAgent and in relation to which OpenAgent has no control or interest. The appearance of those links on this site does not indicate any relationship between OpenAgent and that third party or any endorsement by OpenAgent of that third party, its site or the products or services which it is advertising on the Website.
10.2 The information on the Website is provided 'as is', without express or implied warranty. The inclusion of any link does not imply that we endorse the linked site. You use the information and links at your own risk.
11. INTELLECTUAL PROPERTY ON THE WEBSITE
11.1. All intellectual property in relation to the Website and the content on the Website (including but not limited to, the software, design, text, data, icons, logos, copyrights, designs, trade marks, concepts, sound recordings, content and graphics comprised in the Website) and all intellectual property created or developed in relation to OpenAgent performing the Services ("Intellectual Property") belongs to OpenAgent, its associated or related entities or its licensors, advertisers or affiliates.
11.2. OpenAgent and/or its associated or related entities, retain all rights, title, and interest in and to the Website, and all related content, data, and Intellectual Property created by OpenAgent in performing the Services, and nothing you do on or in relation to the Website, or any of the related content and data will transfer any rights, in intellectual property or otherwise, to you, or license to you any such rights unless expressly stated otherwise.
11.3. Except as expressly permitted in these Terms and Conditions, you agree not to do anything that interferes with or breaches OpenAgent's Intellectual Property, including agreeing not to copy, modify, create a derivative work, reverse engineer, reverse assemble, attempt to discover the source code, sell, assign, sub-license, grant a security interest in or otherwise transfer any content on the Website or of OpenAgent's Intellectual Property.
11.4. OpenAgent grants you a revocable, royalty free, non-exclusive licence, for use in Australia to use OpenAgent's Intellectual Property for the sole purpose of receiving the benefit of the Services.
11.5. Except as granted under these Terms and Conditions, permission to reprint or electronically reproduce the Website, or any related content or data in whole or in part for any other purpose is expressly prohibited, unless prior written consent is obtained from us. You may contact us via the communication methods available on the Website if you wish to obtain such consent.
11.6. Any pre-existing or background Intellectual Property (including but not limited to, for example, photos and images) belonging to the Agent remains that of the Agent. The Agent grants to OpenAgent an irrevocable, worldwide, royalty free licence to use the Agent's background or pre-existing Intellectual Property for the purposes of OpenAgent's business.
12.1. You agree to defend, indemnify and hold harmless OpenAgent, its officers, directors, employees, agents, subcontractors, licensors, and suppliers, from and against all claims, actions, loss, demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with your use of the Website or Services, or resulting from, or alleged to result from, your use of the Website or Services, a breach of your representations and warranties or your violation of any of these Terms and Conditions.
12.2. You further agree to defend, indemnify and hold harmless OpenAgent, its officers, directors, employees, agents, subcontractors, licensors, and suppliers, from and against all claims, actions, demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with any dealings you have or instigate with any vendors, agents, agencies and any other third parties.
12.3. You release and hold harmless, OpenAgent, from any liability, claim, harm, damage or loss that arises from your registration with OpenAgent or from OpenAgent's activities.
13.4. In the provision of its Services, OpenAgent will provide you with personal information of members of OpenAgent. You shall comply with all applicable laws, including the Privacy Act 1988 (Cth) in relation to the personal information of the OpenAgent member.
14.1. These Terms and Conditions constitute the entire agreement between us and you in relation to the Website and Services, your use of the Website and Services supersedes all other (prior or contemporaneous) communications or displays whether electronic, oral, or written, between us and you in relation to the Website.
14.2. The Agent agrees to keep all information it receives and collects in respect of the vendor confidential. Notwithstanding the foregoing, the Agent acknowledges that OpenAgent may disclose such information if required to do so by law, regulation or order of a court of competent jurisdiction only.
14.3. These Terms and Conditions are governed by the laws of New South Wales, Australia, and you irrevocably submit to the exclusive jurisdiction of the courts of the State of New South Wales.
14.4. If any of these Terms and Conditions are invalid, unenforceable or illegal, that term will be struck out and the remaining terms will remain in force.
14.5. If we do not act in relation to a particular breach by you of these Terms and Conditions, this will not be treated as a waiver by us of our right to act with respect to prior, subsequent or similar breaches.
14.6. Clauses 2, 3, 4, 5, 6, 7, 8.3-8.4, 9, 10.3-10.5, 11, 12, 13 and 14 survive the termination of these Terms and Conditions.
14.7. You warrant that, if you are an employee or related party of an Agent or Agency and you use the Agent Services and/or interact with OpenAgent on behalf of that person or Agency, you have the full authority to do so and that you are an authorised representative of the Agent and/or Agency.
15. ELECTRONIC COMMUNICATION
15.1. Upon accepting a Lead, the individual Agent will be subscribed to our agent marketing email list.
15.2. OpenAgent may send the individual Agent emails for sales and marketing opportunities, promotions, reminders and contests. Such emails may include marketing information about OpenAgent or selected business partners. If the Agent wishes to unsubscribe from this list, they may do so by sending an email to firstname.lastname@example.org. In addition, each email sent to the agent marketing email list by OpenAgent will contain an unsubscribe link so the agent can opt-out of that subscription.
Last updated 15 November 2016