Premier Contract Terms & Conditions
These terms and conditions, together with the Offer Summary make up all of the terms of OpenAgent Premier (“Agreement”) between you and OpenAgent Pty Limited (ACN 161 595 679 (“our”, “we” or “us”)). It is important that you have read and understood all of the terms and conditions of the Agreement before agreeing to these Terms.
| Contact Details | |
| Phone | 13 24 34 |
| premier@openagent.com.au | |
1. INTRODUCTION
1.1. Please read these terms and conditions ("Terms") carefully as they govern your use of (which includes access to) OpenAgent Premier, including all of our websites and software applications that incorporate or link to these Terms and any other Premier Leads or material that is made available through OpenAgent Premier.
1.2. By signing up for, or otherwise using, OpenAgent Premier, other than as stated in this clause or as explicitly agreed upon in writing between you and OpenAgent, these Terms constitute all the terms and conditions agreed upon between you and OpenAgent and supersede any prior agreements in relation to the subject matter of these Terms, whether written or oral. As noted above, other terms and conditions governing use of OpenAgent Premier are incorporated herein by reference, including the following terms and conditions: the Prospecting Policy. If there is any inconsistency between these Terms and other terms and conditions, the provisions of these Terms will prevail to the extent of the inconsistency.
1.3. We may revise these Terms from time to time by updating the Website. The revised 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 OpenAgent Premier after this date (including continued contact with Premier Leads), you will be deemed to have accepted the updated Terms. If you wish to review these Terms, the current effective version can be found on at https://www.openagent.com.au/premier-contract-terms-hybrid
2. ELIGIBILITY AND REGISTRATION
2.1. In order to use OpenAgent Premier and access Premier Leads, you need to:
2.1.1 be a licensed real estate agent or real estate agency in Australia;
2.1.2 meet the minimum Key Performance Criteria (based on our reasonable opinion);
2.1.3 be 18 years of age or older;
2.1.4 have full legal capacity and lawful entitlement to engage in real estate activities;
2.1.5 have the power to enter a binding contract with us and not be barred from doing so under any applicable laws, and
2.1.6 reside in a location where OpenAgent Premier is available.
If you do not meet the above-stated requirements then OpenAgent will be unable to register you to receive OpenAgent Premier.
2.2. You also promise that any registration information that you submit to OpenAgent is true, accurate, and complete, and you agree to keep it that way at all times. We reserve the right to verify all potential registrations in order to maintain the quality of OpenAgent Premier and may contact you by telephone or email to verify that your registration information is accurate and correct before engaging with you. To update us on changes to your registration information, please contact us on premier@openagent.com.au.
2.3. If you are an individual registering on behalf of your employer, you represent and warrant to us that you are duly authorised to bind your employer to the acceptance of this Agreement.
2.4. You consent to the creation of an OpenAgent account featuring you and your agency’s professional profile, which will be managed by us.
For certainty, your "employer" extends to the business, person, organisation or real estate agency of which you are employed or contracted by.
2.5. By providing a contact number, you are expressly authorising and consenting to receiving calls and electronic messaging from OpenAgent, including direct contact on a Sunday.
2.6. At the beginning of each phone call to you, we will notify you that the phone call will be recorded for quality and training purposes. Except where we receive notification from you that the phone call should not be recorded, you agree to the recording of inbound and outbound phone calls between you and us for the purposes of compliance, quality and training purposes.
2.7. You accept that you are solely responsible for maintaining the confidentiality of your log in details to any of OpenAgent Premier's tools and applications, including your username and password. As such, you agree that OpenAgent will not be liable for any loss or damage of any kind arising in connection with the misuse or unauthorised access of your log in details.
3. OPENAGENT PREMIER
3.1. OpenAgent Premier refers to the services set out in this Clause 3.
3.2. You agree that we operate as an independent third-party facilitator in respect of any transaction or communication between a Client and you.
3.3. You acknowledge and agree that we are under no obligation to provide access to OpenAgent to you and use of OpenAgent Premier (including the Lead Volume) is not exclusive.
3.4. Some OpenAgent Premier services may not be available to all users. We will explain which services are available to you when you are signing up for the services. Note, if any OpenAgent Premier services are discontinued in the future, if applicable, you will no longer be charged for the relevant discontinued OpenAgent Premier service.
3.5. If you have a prior relationship with a Client, you must provide us with written evidence within two (2) business days of having received the Premier Lead.
3.5.1. Where there is evidence of a pre-existing relationship, we may (in our absolute discretion) elect not to refer or connect you to the Client. In these limited circumstances, the Success Fee for that Premier Lead will not be applicable to you.
3.5.2. Any failure by you to provide written evidence of a pre-existing relationship to us within two (2) business days will result in the Success Fee remaining applicable (please see Clause 5).
Premier Leads
3.6. In exchange for payment of the Fees under Clause 5, we will provide you with Premier Leads.
3.7. The referral of a Premier Lead includes the contact information of a Client with a residential property in specified areas.
3.8. We reserve the right, in our absolute discretion, to withdraw or to modify specified areas at any time by providing written notice to you. Please note, your termination right under sub-clause 13.2.
3.9. In providing you with Premier Leads, we must, and must ensure that each of our Representatives:
3.9.1 use best endeavours and work diligently to promote and refer Clients to you;
3.9.2 do not represent ourselves as an agent of you (or if applicable, your employer);
3.9.3 will not provide Clients with any material relating to you (or if applicable, your employer) other than the Approved Materials;
3.8.4 inform the Client that you (or if applicable, your employer) are able to provide real estate services;
3.8.5 obtain the consent of the Client to pass their name, contact details and a short description of the purpose of the referral (“Client Details”);
3.9.6 pass the Client Details to you (or if applicable, your employer) within one (1) business day of informing the Client that you (or if applicable, your employer) are able to provide real estate services;
3.9.7 comply with all laws, including Privacy Law.
Premier Prospecting
3.10. You may request to us to carry out Premier Prospecting. We may agree, in our absolute discretion to carry out the requested Premier Prospecting, subject to our Prospecting Policy.
3.11. Where you authorise us to perform Premier Prospecting, we will nurture, prospect and qualify customer data for the purposes of lead generation and data cleansing. This may include the following activities:
3.11.1 matching your CRM Data with our Data to identify whether any properties exist within both datasets (Matched Properties);
3.11.2 calling and emailing customers on your behalf to provide further qualification and analysis. For emails sent to customers, this may include our use of Approved Marketing Materials.;
3.11.3 your CRM Data entries being updated, inserted or modified;
3.11.4 qualifying Premier Leads, with analysis and reports being provided to you, referred together from time to time as "Premier Prospecting" and/or "customer profiling".
3.12. We will use reasonable endeavours to contact customers using available customer data and verify information in our delivery of Premier Prospecting. You agree that we have absolute discretion as to when or if a customer is contacted.
3.13. In conducting Premier Prospecting, we will generate Analysed Data. We make no representations and expressly exclude any warranties that Analysed Data is accurate, complete, up to date or appropriate for any purpose, nor do we independently validate the accuracy, completeness or reliability of the Analysed Data provided to you. You should not act on the basis of anything contained in the Analysed Data without first assessing the suitability of the Premier Prospecting.
3.14. You accept that we can only provide you with Analysed Data where we reasonably believe that the use or disclosure of Analysed Data is compliant with Privacy Law.
3.15. You acknowledge and agree that our ability to provide activities may be dependent on you providing us with, or access to, your CRM Data in accordance with this Clause 3. As such, where required in order to effect delivery of the Subscription Service(s), you agree:
3.15.1. to provide us with your Prospecting List in accordance with our reasonable instructions;
3.15.2. where available, provide us with an accurate, complete and updated Prospecting List; and
3.15.3. you are solely responsible for the Prospecting List and the consequences of using, disclosing, storing or transmitting it to us.
3.16. You agree that we are authorised to:
3.16.1. review, edit, correction or deletion of any Personal Information held in connection with Premier Prospecting upon request from a customer. You agree this extends to the modification of any Personal Information in your Prospecting List where access is provided to us.
3.16.2. collect additional Personal Information beyond that contained in the Prospecting List provided to us;
3.16.3. store, share or provide such parts of the Analysed Data with others, including third-party service providers overseas, subject to appropriate and equivalent security and confidentiality measures being in place between us and the relevant third-party service provider;
3.16.4 authorise our Representatives to access and use the Analysed Data;
3.16.5 invite customers to use additional services in connection with us, subject to compliance with Privacy Law.
Additional Services
3.17. Other services may be provided as part of OpenAgent Premier from time to time, subject to mutual agreement.
3.18. If we determine we will carry out the request(s), we will notify you of the revised changes to these Terms, including payment terms (if any). The revised changes may be incorporated as an annexure to these Terms.
3.19. You accept that any annexure(s) will form an integral part of this Agreement and must be read with these Terms.
4. TERM
4.1. Your subscription to OpenAgent Premier begins from the date on which you have submitted to us your agreement to this Agreement (“Subscription Date”) and continues for 12 months (“Initial Term”) unless terminated earlier under Clause 13.
4.2. At the end of the Initial Term, the term of this Agreement will automatically extend by successive 12 month periods (“Renewal Term”) until terminated by either party in accordance with Clause 13 or unless either party gives written notice of its intention not to renew at least 60 days prior to the expiry of the then current Initial Term or Renewal Term.
4.3. You may suspend OpenAgent Premier between one (1) and three (3) consecutive months, once in the Initial Term and once in any Renewal Term, subject to mutual agreement. To request a suspension, you must notify us in writing at least seven (7) calendar days prior to the first month in which suspension shall occur.
4.4. The suspension will take effect on the first day of the calendar month of which you request the suspension. During the suspension, we may cease providing OpenAgent Premier to you.
4.5. You are still required to pay all invoices under this Agreement, subject to mutual agreement.
4.6. The Initial Term or Renewal Term will be extended by the period of any suspension. You will continue to be billed the Subscription Fee for the relevant calendar month of extension.
5. FEE(S)
5.1. You agree to pay to use (or our nominee):
5.1.(a). the "Subscription Fee":
As set out in your Offer Summary. We will bill you the Subscription Fee in monthly arrears. For example, in September you will receive an invoice for the Subscription Fee payable for August.
and
5.1(b). the "Success Fee":
The 20-30% variable fee payable to OpenAgent as identified on a Premier Lead at the time of referral and calculated against the total commission of the sold property, plus GST.
NOTE: payment of the Success Fee is subject to a Successful Sale (as set out in clause 5.2).
We will bill you the Success Fee following confirmation that the sale of the applicable Client’s property is unconditional.
5.1.(c). any other fee(s) as agreed upon in writing between us and you from time to time.
5.2. The Success Fee is only payable for each Client’s property in each instance of a sale occurring within 24 months of the relevant Premier Lead having been provided to you (Successful Sale). For certainty, you agree that:
5.2.1. any Successful Sale or other dealing orchestrated, transacted or derived from the actions of you or your employer in respect of that property shall be subject to the Success Fee;
5.2.2. you will not charge vendors a fee (however characterised) including by way of an increase to your commission for use of the Subscription Services;
5.2.3. a Client’s engagement with OpenAgent indicates the Client has not yet made a decision on which agent to appoint for the sale of their property.
5.2.4. a Successful Sale in relation to a property is considered to have arisen from Lead Volume if the Premier Lead was provided or referred to you by or as a result of OpenAgent performing Subscription Services, regardless of prior contact between the Client and you; and
5.2.5. failure by you to provide written evidence of a Pre-Existing Relationship to us within two (2) business days of receiving the relevant Premier Lead will result in the Success Fee remaining applicable; and
5.2.6. payment of the Success Fee includes the sale of Off-Market Properties, without limitation.
5.3. We may, in our sole and absolute discretion, agree to waive payment in respect of any delivered Successful Sales or issue a credit to you. Nothing in this sub-clause 5.3 shall be taken to guarantee or imply that we are obligated to provide any waiver or credit to you.
5.4. You agree that we may vary the Subscription Fee and Success Fee at any time by providing written notice to you. Please note, your termination right under sub-clause 13.2.
5.5. As we bill the Subscription Fee in accordance with clause 5.1(a), and the Success Fee in accordance with clause 5.1(b), following termination of OpenAgent Premier, there may be amounts in connection to the Subscription Fee and the Success Fee(s) (upon a Successful Sale) that have not yet been billed. If this occurs the outstanding Subscription Fee amounts and the Success Fee(s) remain payable.
Special Offers
5.6. From time to time in its sole discretion, OpenAgent may offer promotions, reductions or discounts in connection with the Success Fee or Monthly Subscription Fee (“Special Offer”). Special Offers are not transferable to third parties. Special Offers shall only be valid during the period of validity notified to you and shall be subject to the conditions of each offer. We may determine your eligibility for a Special Offer,and withdraw or modify a Special Offer at any time without prior notice and with no liability, to the extent permitted under applicable law.
5.7. If you do not want to continue receiving OpenAgent Premier following the conclusion of a Special Offer, you must notify us by phone or in writing of your intention to terminate before the end of the Special Offer’s period of validity. If you do not do so by close of business on the last day of the relevant OA Trial, you accept that your subscription will automatically continue on the first day following the end of the relevant Special Offer’s period of validity, and you authorise us to collect the Subscription Fee and the Success Fee in accordance with clause 5.1, using any payment method we have on file for you.
6. THE PAYMENT PROCESS
6.1. You must pay the Fee(s) set out under Clause 5 by the payment date set out in the relevant invoice. Payment by you to us is available through secure online payments. We will notify you of the billing period from time to time.
6.2. You agree to:
6.2.1. authorise storage of your payment information (and if required, by a third-party service provider);
6.2.2. authorise recurring automated payments to us of the Fee(s) set out under Clause 5 from your specified credit card or a direct debit arrangement from your nominated bank account;
6.2.3. take responsibility for all fees charged by your financial institution associated with payment of the Fee(s) set out under Clause 5; and
6.2.4. abide by any relevant payment provider's terms of service following notification to you.
6.3. If we are unable to charge or process your payment to us, we reserve the right to:
6.3.1. suspend and discontinue providing OpenAgent Premier until you update your payment method;
6.3.2. calculate the Success Fee for the sold property at 1% of the sales price (plus GST), payable on demand within 14 days of the date of the relevant invoice. Note: if you subsequently provide us with evidence of your total commission, we may (in our sole discretion) re-adjust the Success Fee to be calculated in accordance with sub-clause 5.1(b); and
6.3.3. charge you a $500 suspension fee that, together with any outstanding payment(s) to us of the Fee(s), will accrue interest at the rate of 2.5% per month, from the calendar month payment was due until the calendar month payment is made.
6.4. You agree to pay our expenses in recovering any payment(s) from you.
6.5. Reference to payment of any and all amounts due pursuant to the provisions of this Agreement shall be made solely in Australian dollars and are exclusive of GST. Note: any invoice rendered by us and payable by you will identify the amount of GST payable.
7. INVOICE DISPUTES
7.1. You may dispute an amount invoiced by us under this Agreement but only if you do so in accordance with this Clause 7.
7.2. Except where it is found that the invoice dispute is substantiated, you agree that the invoice is valid and payable.
7.3. If you would like to raise a billing dispute, you must:
7.3.1. make a written request to us in respect to the specific invoice, providing supporting evidence to support the disputed invoice; and
7.3.2. make any such request to us within 12 months of the date of the relevant disputed invoice.
7.4. We will investigate to determine whether the dispute is valid. We will notify you in writing of our findings. We may re-issue any unpaid invoice for the correct amount if any error is discovered. If you have already paid the disputed invoice and the dispute is valid, we will credit your account with the overpayment or if you have terminated OpenAgent Premier, we will refund you the overpayment as soon as practicable and after deduction of any other amounts due by you to us (or our nominee).
8. YOUR OBLIGATIONS
8.1. You warrant and represent to us that you will, and will ensure that each of your Representatives:
8.1.1. do not represent itself as an agent of OpenAgent.
8.1.2. provide OpenAgent with complete, true and accurate Approved Materials, registration and payment details;
8.1.3. will supply us with any information and render any other assistance which we may reasonably require for the purpose of tracking and maintaining the quality of OpenAgent Premier
8.1.4. are suitably qualified, skilled and experienced to perform the responsibilities of a licensed real estate agent;
8.1.5. hold all necessary authorisations, visas, licenses, approvals and permits;
8.1.6. will pay the Fees in accordance with Clause 5 of this Agreement; and
8.1.7. will comply with all laws, including Privacy Act 1988 (Cth) as if you (and if applicable, your employer) were an organisation regulated by the Privacy Act 1988 (Cth).
8.1.8. will only use any of our Analysed Data for the purpose of facilitating the sale, purchase or rental of real estate property. Note: you have no exclusivity of the Analysed Data, and agree that we may share the Analysed Data with third parties, and may use the Analysed Data for our own internal business purposes;
8.1.9. will not and must not permit any other person to:
8.1.9.1. use OpenAgent Premier in any way which breaches any applicable Laws or which infringes any person's rights, including Intellectual Property Rights;
8.1.9.2. use OpenAgent Premier to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
8.1.9.3. send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use of OpenAgent Premier would be in breach of any person's privacy (such as by way of identity theft of phishing); or
8.1.9.4. make any representations or warranties to any third parties that could be construed as being representations or warranties from us.
8.2. You acknowledge and agree that OpenAgent enters into this agreement in reliance on the warranties given by you in this Clause 8.
8.3. This Clause 8 will survive expiry of or termination of OpenAgent Premier.
9. CONFIDENTIAL INFORMATION
9.1. Each party (each, as the context requires, the “Recipient”) has agreed to keep confidential all Confidential Information disclosed to it by the other party (each, as the context requires, the “Discloser”).
9.2. A Recipient of Confidential Information may only use the Confidential Information of the Discloser for the purposes of performing the Recipient’s obligations or exercising the Recipient’s rights under this Agreement.
9.3. The Recipient must:
9.3.1. not disclose the Confidential Information of the other to any person except if this Agreement permits;
9.3.2. not assist or permit any person to make any unauthorised use of the Discloser’s Confidential Information; and
9.3.3. take reasonable steps to safeguard the Confidential Information, including co-operating with the Discloser as reasonably required to protect the confidentiality of its Confidential Information.
9.4. The Recipient may disclose Confidential Information to:
9.4.1. its Representatives on a "need to know basis"; or
9.4.2. any other person only with the Discloser's prior written consent.
9.5. Before doing so, the Recipient must ensure that those persons are aware of the confidential nature of the Confidential Information and are bound by confidentiality obligations equal to this Agreement.
9.6. On expiry or termination of the Agreement, the Discloser may request the Recipient to deliver to the Discloser, or destroy and certify the destruction of, all documents and other materials in any medium in the Recipient’s or the Recipient’s Representatives' possession or control which contain or refer to the Discloser's Confidential Information (including Personal Information). However, the Recipient may retain a single copy of any document or other material containing or referring to the Confidential Information to the extent the Recipient is required to do so by law.
9.7. This Clause 9 will survive expiry of or termination of OpenAgent Premier.
10. APPROVED MARKETING MATERIALS
10.1. "Approved Marketing Materials" means any marketing and promotional materials including intellectual property, trademarks and branding that you have provided OpenAgent to use in connection with the carrying out and delivery of OpenAgent Premier.
10.2. You grant to us a revocable, non-exclusive, world-wide, royalty-free licence to use your Approved Marketing Materials for the sole purpose of performing our obligations under this Agreement. Note: where you do not have the relevant authority to provide us with that licence, you must not provide us with Approved Marketing Materials until you have procured all necessary consents for our use of those Approved Marketing Materials.
10.3. Our use of Approved Marketing Materials will be subject to the reasonable guidelines provided in writing by the party that owns Intellectual Property Rights in the Approved Marketing Materials.
10.4. You warrant to us that our use of Approved Marketing Materials will not infringe any third party's Intellectual Property Rights or other rights.
10.5. You indemnify us against any Liability (including legal costs on a solicitor and own client basis) that we incur or suffer directly or indirectly as a result of or in connection with any demand, allegation, claim or action that our use of Approved Marketing Materials infringe the rights (including any Intellectual Property rights) of any person or third-party.
10.6. This Clause 10 will survive expiry of or termination of OpenAgent Premier.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Each party will retain its Pre-existing Intellectual Property Rights and nothing in this Agreement assigns or transfers the Pre-Existing Intellectual Property Rights of one party to the other.
Prospecting List
11.2. You grant to us a non-exclusive, world-wide, royalty-free, sublicensable and transferable right and licence to use and reproduce your Prospecting List (and if relevant, your third party's Pre-existing Intellectual Property Rights which are embodied or incorporated in the Prospecting List) , including in the creation of derivative works or products which you accept will be owned by us, and to the extent that such Data from the Prospecting List forms part of, or are integral to, OpenAgent Premier.
OpenAgent Premier (including Analysed Data)
11.3. You agree that OpenAgent Premier is owned and operated by OpenAgent.
11.4. You acknowledge and agree that all Intellectual Property Rights in the Subscription Service(s) and the Analysed Data will at all times vest, or remain vested, in us upon creation (including part-creation). To the extent that ownership of such Intellectual Property Rights in the Analysed Data does not automatically vest in us, you agree to do all acts necessary or desirable to assure our title to such rights.
11.5. We grant to you a non-exclusive, revocable, Australia-wide, non-sublicensable and non-transferable right and licence to receive the benefit of and use of OpenAgent Premier for the Initial Term or Renewal Term (as applicable)
11.6. We grant to you a non-exclusive, revocable, Australia-wide, sublicensable and transferable right and licence to use the Analysed Data we provide to you solely for the purpose of facilitating the sale, purchase or rental of real estate property.
Content Generally
11.7. If you or your Representative(s) have any moral rights in any Content or material provided, used or prepared in connection with OpenAgent Premier, you agree to (and agree to ensure that your Representative(s) agrees to) procure all necessary consents to our use or infringement of those moral rights.
11.8. In the use of any Intellectual Property Rights in connection with this Agreement, you must not (and you must ensure that your Representatives do not) commit any Intellectual Property Rights breach or attempt to or create a derivative work or product of our Intellectual Property Rights.
11.9. 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, OpenAgent Premier.
11.10. Except as granted under this Agreement, permission to reprint or electronically reproduce any Content made available to you via OpenAgent Premier or Analysed Data 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.
11.11. This Clause 11 will survive expiry of or termination of OpenAgent Premier.
12. INDEMNITY AND LIABILITY
12.1. You indemnify us against any Liability that we incur or suffer directly or indirectly as a result of or in connection with:
12.1.1. a breach of your Warranties under this Agreement;
12.1.2. a breach of Law, including any unauthorised use or disclosure of Personal Information by you;
12.1.3. demand, allegation, claim or action that any Data you provide or supply us in connection with OpenAgent Premier or its use by us, infringe the rights (including any Intellectual Property Right) of any person or third-party; and
12.1.4. unlawful or fraudulent act or omission or wilful breach by you of this Agreement.
12.2. Your Liability under this sub-clause 12.1 is not subject to any limit or exclusion of Liability under this Clause 12 generally.
12.3. Notwithstanding anything to the contrary and to the extent permitted by Law, in no circumstances will we be liable to you or any third party for any cause of action or theory of Liability, in respect of special, lost profits, indirect or consequential damages, loss of profit (whether direct or indirect), loss of Data, or loss of business opportunity arising out of or in connection with:
12.3.1. our access to your Prospecting List;
12.3.2. your acts or omissions;
12.3.3. any use, application or reliance on OpenAgent Premier or the Analysed Data by you or any other third party;
12.3.4. any activity, transaction, communication or other interaction between you and any other party either directly or outsourced through OpenAgent Premier;
12.3.5. any Data, works, services, goods, materials or items which do not form part of the OpenAgent Premier, or which have not been provided by us;
12.3.6. any errors or omissions from any Content made available to you through OpenAgent Premier including typographical, location, pricing or photographical errors;
12.3.7. any technical malfunction, error, virus, delay or interference with OpenAgent Premier, for whatever reason; and/or
12.3.8. any event outside of our reasonable control.
12.4. In all other instances the total aggregate Liability of either party arising out of or in connection with OpenAgent Premier, whether based upon breach of contract, under common law, statute, tort (including negligence) or otherwise, will not exceed the total amount of the fee(s) received by us from you in exchange for OpenAgent Premier. However, the foregoing does not preclude either party from recovering any loss or damage to the extent it may fairly and reasonably be considered to arise directly and naturally, that is according to the usual course of things, from the breach or wrongful act or omission giving rise to the relevant Liability.
12.5. To the extent permitted by law, a party's Liability to the other party under or in connection with this Agreement is reduced to the extent, if any, to which the other party's acts or omissions cause or contribute to its own loss or damage.
12.6. The limitations and exclusions of the Liability set out in this Clause 12 apply regardless of the basis on which such Liability arises, whether in contract, breach of statutory duty, tort (including negligence), in equity or under statute.
12.7. This Clause 12 will survive expiry of or termination of OpenAgent Premier.
13. TERMINATION OF OPENAGENT PREMIER
13.1. Either party may terminate this Agreement by:
13.1.1. providing at least 30 calendar days written notice of termination prior to the conclusion of the relevant Initial Term or Renewal Term; or
13.1.2. at any time following mutual agreement. We will not unreasonably withhold, condition or delay our approval or consent and you will not be charged a cancellation fee.
13.2. You may terminate this Agreement if:
13.2.1. you do not agree to any change made to the Fees; or
13.2.2. you do not agree to any change made to the specified areas.
13.2.3. by providing us with written notice within 30 calendar days of our notification to you of the change. If you do not provide notice to us, you are taken to have accepted the changes made to the calculation of the Fees or specified areas.
13.3. OpenAgent may terminate this Agreement at any time during the Term with immediate effect if:
13.3.1. non-payment of any amounts owing by you to us;
13.3.2. you or your Representatives are found guilty of grave misconduct, including fraud, forgery, or misrepresentation in relation to the affairs of OpenAgent or OpenAgent Premier;
13.3.3. you or your Representatives commit a fundamental default or breach of its obligations under this Agreement or Privacy Law, and such default or breach is not remedied within 10 Business Days after OpenAgent has notified you in writing to remedy that default or breach;
13.3.4. you are undergoing an Insolvency Event;
13.3.5. you or your Representatives are not lawfully able to continue to provide real estate services to Clients;
13.3.6. you or your Representatives have, in the sole opinion of OpenAgent acted in a manner likely to prejudice the reputation of OpenAgent or OpenAgent’s brand or its business interests;
13.3.7. you fail to attain a high level of Client satisfaction in the event that OpenAgent receives three (3) or more Complaints from Clients in a Quarterly Period.
13.3.8 for any other reason, provided notice is given to you.
If we elect to exercise our right under this sub-clause 13.3, we will provide you with our reasons for doing so in writing.
13.4. Termination of this Agreement will not affect the rights, powers, remedies, obligations, duties and liabilities of any party under this Agreement which have accrued to the date of termination.
13.5. If you wish to provide us with notice of termination, please send an email to: premier@openagent.com.au. In order for your notice to be effective, you must expressly state:
13.5.1. you are terminating OpenAgent Premier in its entirety; or
13.5.2. if you are only seeking to terminate a specific OpenAgent Premier service, by identifying which service you wish to terminate, and which you seek to retain.
This is required so that we understand exactly what you're asking us to do. Following notification of termination, we will cease providing OpenAgent Premier in whole and/or the relevant OpenAgent Premier service as soon as practicable.
14. EFFECTS OF TERMINATION
14.1. Lead Volume received during the Term may be found to include Successful Sales despite termination of OpenAgent Premier.
14.2. For certainty, following termination of OpenAgent Premier, you agree to pay to us either:
14.2.1. the Success Fee(s) for all Successful Sales orchestrated, transacted or derived in connection with this Agreement; or
14.2.2. a fee determined by subsequent mutual agreement.
14.3. You accept this 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.
14.4. Each party to this Agreement agrees not to disparage or otherwise make any unfavourable statements or comments regarding the other, including the other party's Representatives, Related Body Corporate or clients, either directly or by implication, verbally or in writing.
15. ELECTRONIC COMMUNICATION
15.1. Upon registration, you agree to 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 this list, you may do so by sending an email to agents@openagent.com.au or premier@openagent.com.au. In addition, each email sent will contain an unsubscribe link so you can opt-out of that subscription to our agent marketing email list.
15.3. Notices otherwise are to be provided to us via the following email: premier@openagent.com.au. Notice will be deemed to have been given upon completion of successful transmission.
16. FORCE MAJEURE
16.1. We will not be held responsible for any delay or failure in performance under this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, strike, embargo, pandemic government requirement, civil or military authority, act of God, or other similar cause beyond our control.
16.2. Where a force majeure event occurs, we are entitled to an extension of time for performance of our obligations in connection with OpenAgent Premier. The extension of time is equal to the period of time during which our performance of obligation is delayed due to the force majeure event.
17. GENERAL
17.1. These Terms is not intended to create a partnership, joint venture, employment or agency relationship between you and OpenAgent. It is the express intention shared between you and OpenAgent that any such relationships are denied.
17.2. This Agreement is governed by the laws of the State of New South Wales, Australia. Each party irrevocably and unconditionally submits to the jurisdiction of the courts of the State of New South Wales, Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with this Agreement.
17.3. Any failure or delay by a party in exercising any right, power or remedy under this Agreement does not operate as a waiver, and any single or partial exercise of a right, power or remedy does not prevent further exercise of that right, power or remedy, or an exercise or any other right, power or remedy.
17.4. Neither party may assign any of its rights or obligations under this Agreement without the consent of the other party.
17.5. If a term or condition of this Agreement is void, voidable, unenforceable or illegal but would not be void, voidable, unenforceable or illegal if it were read down and it is capable of being read down, then the provision must be read down. In any other case, the minimum of the term or condition must be severed in order that it is no longer void, voidable, unenforceable or illegal, without invalidating the remaining provisions hereof.
18. REPORTING AND NOTIFIABLE INCIDENTS
18.1. For reporting and quality assurance purposes, you agree to advise us of:
18.1.1. the following information in respect of any property transaction arising in connection with a Client, no later than two (2) business days of the relevant event below:
18.1.1.1. upon receipt of the relevant Premier Lead, supporting documentation of you or your employer's Pre-Existing relationship with the Client (if applicable).
18.1.1.2. confirmation when the Client's property has been appraised;
18.1.1.3. full details of the Client's property listing, including a copy of the 'listing agreement' or 'authority to sell'; and
18.1.1.4. confirmation of exchange of contracts for the Client's property.
18.1.2. any Privacy Law related complaints by a Client, no later than one (1) business day of you having received the knowledge of the complaint;
18.1.3. any lack of capability or capacity to service the volume of Analysed Data generated by us throughout the term that you receive OpenAgent Premier; and
18.1.4. any other relevant matters that may affect this Agreement, no later than two (2) business days of having been made aware of the matter.
18.2. You must immediately notify us if you become aware of any grounds to believe or suspect that in connection with your use of OpenAgent Premier:
18.2.1. breach of these Terms has occurred; or
18.2.2. there has been any accidental, unlawful or unauthorised destruction, loss, alteration, disclosure of, access to, or any breach of security relating to or of, Personal Information (“Notifiable Incident”).
18.3. Immediately after notifying us of a Notifiable Incident in accordance with sub-clause 18.2., you must:
18.3.1. take all appropriate or necessary remedial action to mitigate any potential loss or interference with Personal Information, preventing any further harm and protecting the Personal Information from further misuse, loss, access or disclosure; and
18.3.2. provide us with reasonable ongoing updates on the results of your investigation and assessment, at a frequency which reflects the severity of the potential loss or interference with Personal Information. Note: you must conduct an investigation and assessment within three (3) calendar days of notification to us of any grounds to believe or suspect that a Notifiable Incident has occurred; and
18.3.3. provide us with all assistance requested by us in relation to our own investigation, assessment and management of the potential loss or interference with Personal Information; and
18.3.4. without limiting your obligations under sub-clause 18.3 and to the extent permitted by law, allow us to solely manage and control the process of assessing and notifying individuals who are or may be affected by the loss or interference with Personal Information as well as any relevant regulatory authority. For clarity, this includes allowing us to determine the form and content of any applicable notice(s); and
18.3.5. provide to us a final report which specifies the root cause of the incident in connection to the potential loss or interference with Personal Information and the corrective actions you will or have undertaken to prevent a repeat occurrence (“Prevention Plan”); and
18.3.6. implement and provide us with reasonable ongoing updates on the Prevention Plan.
18.4. Each party will bear its own costs, including any investigation or assessment of an incident, or the implementation of the Prevention Plan, in connection with the carrying out of its obligations of this Clause 18.
18.5. This Clause 18 will survive expiry of or termination of OpenAgent Premier.
19. INTERPRETATION AND DEFINITIONS
Interpretation
19.1. Reference to:
19.1.1. one gender includes the others;
19.1.2. the singular includes the plural and the plural includes the singular;
19.1.3. a person includes a body corporate;
19.1.4. a party includes the party’s executors, administrators, successors and permitted assigns;
19.1.5. a thing includes the whole and each part of it separately;
19.1.6. a statute, regulation, code or other law or a provision of any of them includes:
19.1.7. any amendment or replacement of it; and
19.1.8. another regulation or other statutory instrument made under it, or made under it as amended or replaced; and
19.1.9. dollars means Australian dollars unless otherwise stated.
19.2. “Including” and similar expressions are not words of limitation.
19.3. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
19.4. Headings and any table of contents or index are for convenience only and do not form part of this Agreement or affect its interpretation.
19.5. A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
19.6. If an act must be done on a specified day which is not a Business Day, it must be done instead on the next Business Day.
Definitions
19.7. In this Agreement:
Agent Portal means https://agents.openagent.com.au and any other OpenAgent online portal interfacing with OpenAgent Premier or the Website.
Analysed Data means the creation and/or verification of Data resulting from Premier Prospecting having been carried out by us in connection with the Prospecting List, and for certainty includes Matched Properties.
Client means the registered proprietor of a property that is introduced to you by OpenAgent for the purposes of you offering real estate services to the registered proprietor. Confidential Information means the following, whether or not in a material form which is or contains:
(a) you Offer Summary;
(b) authorisation and/or log-in details;
(c) financial information, trade secrets and confidential know-how of OpenAgent;
(d) information which is not public knowledge regarding any aspect of the business, assets or affairs of OpenAgent or any of its Related Body Corporate(s);
whether or not such information or documentation is reduced to a tangible form or marked in writing as "confidential", and howsoever you receive that information.
Confidential Information does not include information that:is authorised in writing to be disclosed by us;
(e) is in the public domain and/or is no longer confidential, except as a result of a breach of this Agreement; or
(f) must be disclosed by Law or by a regulatory authority, including under subpoena.
Content means information including any combination of data, illustrations, text, video, still images, audio or other material, including agent profile information such as sales history, testimonials and reviews.
CRM means customer relationship management system.
Data means information relating to a Client or customer, and for clarity, includes CRM Data as well as any information which may or may not contain Personal Information and/or Analysed Data.
Insolvency Event in relation to a party, means any of the following events:
(a) the party ceases (or is unable) to pay its creditors (or any class of them) in the ordinary course of business, or announces its intention to cease to do so or, in relation to an individual, that individual is, or is likely to become, bankrupt;
(b) a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to that party or any of its assets;
(c) such party enters into, or resolves or enter into, a scheme or arrangement, compromise or composition with any class of creditors;
(d) a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of that party; or
(e) anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
Intellectual Property Rights means any statutory and other proprietary rights in respect of inventions, innovations, patents, designs, functionality, circuit layouts, mask rights, Content, copyrights (including future copyrights), trade secrets, know-how, software, text, data, algorithms, icons, logos, concepts, sound recordings and graphics comprised in the Website, trade marks and all other rights in respect of intellectual property as defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.
Key Performance Criteria means the following:
(a) 70% of referred Premier Leads have received phone contact from you within one hour of receipt;
(b) 60% successful contact rate, at minimum; and
(c) 30% historic conversion rate, at minimum.
Note: OpenAgent has sole discretion to assess your eligibility against Key Performance Criteria, including by reference to historical performance information. If you require further information on how this works, please contact us via premier@openagent.com.au
Law means all applicable laws (including Privacy Law), regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement.
Lead Volume refers to the volume of Premier Leads sent by us to you as a result of OpenAgent Premier.
Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a party to this Agreement or otherwise.
Offer Summary refers to the table displayed to you prior to your acceptance of this Agreement. Please note: you will have received a copy of this Agreement and your Offer Summary upon acceptance. You may request another copy of the Offer Summary at any time by contacting premier@openagent.com.au.
Off-Market Properties refers to properties that are listed for sale without public advertising or marketing.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth), and includes any information or opinion, whether true or not, and whether recorded in material form or not, about a Client or/and a customer in the Prospecting List who is reasonably identifiable.
Pre-existing Intellectual Property Rights means Intellectual Property Rights owned by that party which are in existence at the Subscription Date or come into existence after the Subscription Date otherwise than in connection with the Subscription Service(s) (including any improvements, modifications or developments of such Intellectual Property Rights).
Pre-Existing Relationship means reciprocal contact between you and a Client, supported by documented evidence, occurring within six months prior to you receiving the Premier Lead.
Premier Lead means a lead where OpenAgent provides you with the contact information of a client.
Privacy Law means any legislation (to the extent you or OpenAgent is subject to it) whether Australian or otherwise, which affects privacy or any Personal Information including the Privacy Act 1988 (Cth), the General Data Protection Regulation (EU) 2016/679 and any codes of conduct, directives, principles or orders made under such legislation.
Prospecting List means customer information, including CRM Data, which you provide or give access to us.
Prospecting Policy refers to our policy available at https://www.openagent.com.au/prospecting-assist-privacy-policy.
Quarterly Period is as follows (dates are inclusive):
(a) 1 January to 31 March;
(b) 1 April to 30 June;
(c) 1 July to 30 September;
(d) 1 October to 31 December.
Related Body Corporate has the same meaning given to that term as under the Corporations Act 2001 (Cth).
Representative of a party to this Agreement means directors, officers, employees, contractors, subcontractors and professional advisors of that party, and includes directors, officers, employees, contractors and subcontractors of any subcontractor or Related Body Corporate.
Website means https://www.openagent.com.au and any Agent Portal or other website interfacing with OpenAgent Premier (including but not limited to the internet, email, tablets, smart phones, mobile phones, Agent Portal, OpenAgent Premier tools and data feeds).
If you have any questions about OpenAgent Premier, please contact our Premier Support team on premier@openagent.com.au or 13 24 34.