Thank you for using OpenAgent. Together, we can make it easier for Australians to sell their homes!
The Vendor Services and Agent Services are collectively referred to as the “the Services” in these terms and conditions. These terms and conditions are the terms for use of the Website, the Services and the terms of your relationship with OpenAgent (Agent Referral Terms).
We understand that working with top agents plays a crucial role in the process. If you have any questions or feedback, please contact our Agent Support team on firstname.lastname@example.org or 13 24 34.
1. YOUR ACCEPTANCE OF AGENT REFERRAL TERMS
1.1. You agree that the following are owned and operated by OpenAgent Pty Ltd ABN 93 161 595 679 (OpenAgent, We, Us, Our):
(a) 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
(b) The vendor research services provided by OpenAgent to members of its Website (the Vendor Services).
1.2. OpenAgent may send You details of potential vendors of property (Leads).
1.3. By using the Website or by listing a Lead from us (the Agent Services), You and Your Agency agree to be bound by these Agent Referral Terms.
1.4. 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), You are taken to have been duly authorised to bind the Agency to these Agent Referral Terms.
1.5. 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 (User Terms). If there is any inconsistency between these Agent Referral Terms and the User Terms, the provisions of these Agent Referral Terms will prevail to the extent of the inconsistency.
1.6. These Agent Referral Terms apply whenever You access the Website or utilise the Agent 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.
1.7. We may revise these Agent Referral Terms from time to time by updating the Website. The revised Agent Referral Terms 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 or the Services after this date, You will be deemed to have accepted the updated Agent Referral Terms.
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 contact details 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;
(c) You consent to the recording and monitoring of all communications sent to You and Your Agency for the limited purpose of quality assurance and verification of details provided in relation to Leads.
(d) You expressly authorize and consent to receiving calls and electronic messaging from OpenAgent representatives, including direct contact on Sundays.
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 Agent Referral Terms;
(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. For the avoidance of doubt, You acknowledge and agree 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.
4.2. You assume full responsibility for Your decision to act on Leads and engage with members of OpenAgent.
4.3. The services, advice, information, suggestions and opinions provided by any party via the Website are strictly that party's own.
4.4. As a result of Clauses 4.1- 4.3, 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.
4.5. OpenAgent receives no direct payment from the vendor in respect of the Services.
4.6. OpenAgent is in no way party to and will not be liable for enforcing any agreement made between the vendor and an agent.
4.7. OpenAgent and its related entities are not in the business of being a real estate agency and nothing in these Agent Referral Terms 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 two (2) business days of the relevant event below, report to OpenAgent the following information in respect of any property transaction or vendor communication, 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).
(h) supporting documentation of any pre-existing relationship with the vendor.
The materials received by OpenAgent allows for the correct generation of Our professional services fee, in accordance with Clause 6. If You have any questions or concerns regarding this, please contact the Agent Support team.
6. FEES AND INVOICING
6.1. When a sale arising in connection with a Lead becomes unconditional, OpenAgent (or its nominee) will issue an invoice to You for payment of the Fee, calculated (subject to Clause 6.6) at 20% of the total commission of the sold property, plus GST (Fee). You agree to pay the Fee by the due date on the invoice.
6.2. You agree that any sale or other dealing orchestrated, transacted or derived from the actions of You or the Agency in respect of that property shall be subject to the Fee requirements in Clause 6.1.
6.3. You agree that You will not charge members of OpenAgent a fee (however characterized, 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 You by or as a result of OpenAgent performing the Services, regardless of prior contact between the vendor and You or the Agency.
To avoid doubt, You hereby acknowledge and agree 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.
If You have a prior relationship with the vendor, You must provide Us with written evidence within two (2) business days of having received the Lead. Failure to provide written evidence within two (2) business days will result in the Fee remaining applicable.
6.5. To avoid doubt, You hereby acknowledge and agree that a sale or other dealing orchestrated by the Agency, with whom You worked for at the time that You received the referral, shall remain subject to the Fee requirements in Clause 6.1. As per Clause 1.3., You are taken to have been duly authorized to bind the Agency to these Agent Referral Terms.
6.6. You will pay the Fee to OpenAgent if the referred property is sold by You (or the Agency) at any point within the following 24 months from the date the Lead is provided to you and the Agency.
You accept the timeframe is reasonable given unique vendor circumstances such as (but not limited to) multiple listings, renovations, a delay in listing in the property or withdrawal from the market prior to a successful sale taking place.
Failure to Provide Sales Details and Late Payments
6.7. If You do not provide OpenAgent with Your total commission, OpenAgent may (at its sole discretion and notwithstanding Clause 6.1.), 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 6.1.
6.8. If You fail to make payment 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.
6.9. 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.
6.10. For avoidance of doubt, if You do not pay the Fee when due, the Agency is bound to pay the Fee and any other amounts described in this Clause 6.
6.11. This Clause 6 is a material term of these Agent Referral Terms.
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.
7.2. If OpenAgent agrees to accept a data feed or accepts information directly from You, the Agent Referral Terms apply to both the data feed and the data contained in the data feed, and any information provided.
7.3. You represent that the data and information is true and accurate.
7.4. 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.
7.5. 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.
7.6. 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 (User 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 User Content, including User 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 User Content posted by You, and that OpenAgent assumes no responsibility or liability arising from any such User 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, libelous, contemptuous, obscene, vulgar, pornographic, profane or indecent User 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 User 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 User 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 User 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 Agent Referral Terms.
9.3. You warrant that all User Content posted by You is owned by You and Our use of such User 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 User 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 User 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 (including the content on the Website, the functionality of the Website and the software, design, text, data, algorithms, icons, logos, copyrights, designs, trade marks, concepts, sound recordings and graphics comprised in the Website) (Intellectual Property) belongs to OpenAgent or its licensors, advertisers, associated or related entities or affiliates.
11.2. OpenAgent and its associated or related entities retain all rights, title, and interest in and to the Website and the Intellectual Property, and nothing You do on or in relation to the Website, or any of the related content will transfer any rights, in the Intellectual Property or otherwise, to You, or license to You any such rights unless expressly stated otherwise in these Agent Referral Terms.
11.3. You agree not to do anything that interferes with or breaches our Intellectual Property rights.
11.4. You agree not to copy, modify, create a derivative work, reverse engineer, reverse assemble, attempt to discover source code or algorithms, sell, assign, sub-license, grant a security interest in or otherwise transfer any content on, or functionality in, the Website.
11.5. You may download and view content or print a copy of material on the Website for personal, non-commercial use, provided that You do not modify content in any way (including any copyright notice).
11.6. Except as granted under these Agent Referral Terms, permission to reprint or electronically reproduce the Website, or any related content generated through the Services or functionality 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.
11.7. To the fullest extent of the law, You waive any moral rights in Content for the purposes of its submission to, publication on the Website and use by OpenAgent.
11.8. By uploading, transmitting, posting or otherwise making available any information including any combination of data, illustrations, text, video, still images, audio or other material via the Services (Content), You:
(a) grant OpenAgent a non-exclusive, worldwide, royalty-free, perpetual, licence to use, adapt, modify, publish, display, sub-license, reproduce, edit and exploit the Content in any form and for any purpose;
(b) except where expressly stated otherwise, also grant each user of the Services a non-exclusive, worldwide, royalty-free, perpetual, licence to use, reproduce, edit and exploit the Content in any form for any purpose, subject to these Agent Referral Terms;
(c) warrant that You have the right to grant the abovementioned licences;
(d) warrant that the Content does not breach any of the Agent Referral Terms; and
(e) unconditionally waive all moral rights (as defined by the Copyright Act 1968) which You may have in respect of the Content.
11.9. You agree that OpenAgent has the right to:
(a) review, modify, reformat, reject or remove any Content which You upload, post, transmit or otherwise make available (or attempt to upload, post, transmit or otherwise make available) on the Services;
(b) monitor use of and engagement with the Services, and store or disclose any Content that we collect, including in order to investigate compliance with these Agent Referral Terms and for the purposes of any police investigation or governmental request.
11.10. You accept that OpenAgent is not responsible for, and has no liability with respect to, any Content uploaded, posted, transmitted or otherwise made available on the Services by any person other than Us.
11.11. You agree that OpenAgent will not be taken to have uploaded, posted, transmitted or otherwise made a Content available on the Services by facilitating other members of OpenAgent to post, transmit or other make Content available.
12. INDEMNITY AND LIMITATION OF LIABILITY
12.1. Nothing in these Agent Referral Terms limits, excludes or modifies the consumer guarantees provided under the Australian Consumer Law or any terms implied by applicable consumer protection laws or regulations, except where legally permitted to do so.
12.2. To the extent permitted by law, You agree that OpenAgent is excluded from all conditions and warranties relating to Your use of the Services and the Website that are not expressly set out in these Agent Referral Terms. To the extent that Our liability for breach of any implied warranty or condition cannot be excluded by law, our liability will be limited, at our option, the re-supply of the Services; or the payment of the cost of having the Services re-supplied.
12.3. In relation to any express warranty or condition set out in these Agent Referral Terms in connection with the Services supplied or offered by Us via the Website, Our liability to You will be limited to the amount paid by You in respect of those Services or if in relation to Your use of the Website, it will be limited to $100 (AUD).
12.4. You agree to defend, indemnify and hold harmless OpenAgent, its officers, directors, employees, agents, subcontractors, licensors, associated or related entities and/or suppliers, from and against all claims, actions, demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with Your use of the Services and the Website, or resulting from, or alleged to result from, Your use of Services and the Website, a breach of Your representations and warranties or Your violation of any of these Agent Referral Terms.
12.5. You further agree to defend, indemnify and hold harmless OpenAgent, its officers, directors, employees, agents, subcontractors, licensors, associated or related entities and/or 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 buyers, vendors, real estate agents, agencies and any other third parties.
12.6. Notwithstanding anything to the contrary in these Agent Referral Terms, in no circumstances will We be liable to You or any third party for any indirect, punitive or consequential loss or damages, loss of income, profits, goodwill, data, contracts, use of money or any loss or damages arising from or in any way connected to business interruption of any type, whether in tort, contract or otherwise, in relation to:
(a) OpenAgent’s failure or omission to comply with obligations under these Agent Referral Terms;
(b) Your use of the Services;
(c) any activity, transaction, communication or other interaction between You and any other party either directly or outsourced by the Services;
(d) any errors or omissions from any information on the Services including typographical, location, pricing or photographical errors;
(e) any technical malfunction, error, virus, delay or interference.
12.7. You agree to pursue any claim or action against any other site user or Registered Member arising from use of the Services independently of and without any demands from or claims, liability and damages connected to OpenAgent.
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), and the European General Data Protection Regulation (GDPR) in relation to the personal information of any OpenAgent member.
14.1. These Agent Referral Terms 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. You agree 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 Agent Referral Terms 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 Agent Referral Terms 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 Agent Referral Terms, 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. The obligations under this agreement survive the termination of these Agent Referral Terms.
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 receiving a Lead, You will be subscribed to Our Agent Marketing Email List.
15.2. OpenAgent may send You emails for sales and marketing opportunities, promotions, reminders and contests. Such emails may include marketing information about OpenAgent or selected business partners. If You wish to unsubscribe from Our Agent Marketing Email List, You may do so by sending an email to email@example.com. In addition, each email sent to You via Our Agent Marketing Email List will contain an unsubscribe link so that You can opt-out of that subscription.