1. OUR AGREEMENT WITH YOU
1.1. These Terms will apply whenever you access or utilise Prospecting Assist, regardless of how you receive the benefit of it or interact with us (including but not limited to the internet, email, tablets, smart phones, mobile phones, Agent Portal, tools and data feeds).
1.2. By registering for Prospecting Assist, you agree to be bound by these Terms. You will be bound by them from the Subscription Date until you receive written confirmation from us that:
a) your application to receive Prospecting Assist was unsuccessful; or
b) your Prospecting Assist subscription has been cancelled; or
c) an earlier date, subject to mutual agreement.
1.3. If your registration is successful, you agree that on and from the Subscription Date up until cancellation of your Prospecting Assist subscription, these Terms will be binding and will govern all ongoing referral relationships between you and OpenAgent. Please see Clause 16 (Cancellation of Prospecting Assist) for more information on how you can cancel your Prospecting Assist subscription.
1.4. By registering to use Prospecting Assist, you also accept our Prospecting Policy. Where there is any perceived inconsistency between these Terms and Prospecting Policy, please contact us and await further instructions. If there is any inconsistency between these Terms and the Prospecting Policy, the provisions of these Terms will prevail to the extent of the inconsistency.
1.5. 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 Prospecting Assist after this date (including continued contact with any Successful Contact(s)), 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 our Website.
2. ELIGIBILITY
2.1. Registration for Prospecting Assist is available to real estate agents and real estate agencies in Australia who have full legal capacity and lawful entitlement to authorise the following in connection with Prospecting Assist:
a) the offer and sale of real estate property;
b) the promotion, advertising or marketing of real estate property;
c) making of an offer and the purchase of real estate property for sale.
2.2. You acknowledge and agree that OpenAgent is under no obligation to provide ongoing access to Prospecting Assist to you and this service is non-exclusive.
3. YOUR REGISTRATION
3.1. If you are a real estate agent subscribing on behalf of your employer and/or an entity, business, person, or organisation, you represent and warrant to us that you are duly authorised to bind your employer and/or theentity, business, person, or organisation to the acceptance of these Terms and you consent to the creation of an OpenAgent account featuring you and/or their 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.
3.2. You must provide us with accurate and complete registration information including your contact details in order to be eligible to receive Prospecting Assist.
3.3. 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.
3.4. 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 quality and training purposes.
3.5. You accept that you are solely responsible for maintaining the confidentiality of your log in details to any of Prospecting Assist’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.
3.6. We reserve the right to verify all potential registrations in order to maintain quality of Prospecting Assist and may contact you by telephone or email to verify that your registration information is accurate and correct before engaging with you or providing Prospecting Assist to you.
4. CONTRACT PERIOD
4.1. We will provide you with Prospecting Assist from the Subscription Date for an initial period of 12 months. Your subscription to Prospecting Assist will then automatically renew for successive one (1) year periods under these Terms:
a) subject to any variation agreed upon in writing;
b) subject to any variation by us online, with notice having been provided to you; or
c) except where termination of Prospecting Assist occurs in accordance with Clause 16,
hereafter referred to as the ‘Contract Period’.
4.2. Over the Contract Period, you agree to 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 Prospecting Assist.
5. PROSPECTING ASSIST
5.1. In exchange of the Monthly Conversion Fee, an OpenAgent Representative will undertake the following activities for you:
a) calling your Prospecting List to provide further qualification and analysis for you;
b) emailing your Prospecting List and engaging in general correspondence connected to the Purpose; and
based on the outcomes of sub-clause 5.1 (a)-(b) activities,
c) updating, inserting or modifying your CRM Data where we have been provided access by you; and/or
d) generating analysis and reports to you,
referred altogether as “Prospecting Assist”.
5.2. We will notify you within one (1) business day of any Successful Contacts who have requested immediate contact from you or your Representative.
5.3. To aid in the delivery of Prospecting Assist activities, you may provide us with:
a) a script for preferred dialogue to be used by OpenAgent Representatives when responding to inbound calls and making outbound calls on your behalf; and
b) for emails, use of Approved Marketing Materials and marketing content.
We will inform you of any reasonable changes in respect of those materials prior to such change taking effect.
5.4. We will make four (4) reasonable attempts to contact each customer and verify their information. You agree that we have absolute discretion as to when or if a customer is contacted following those initial four (4) attempts.
5.5. You acknowledge and agree that our ability to provide Prospecting Assist is dependent on you providing us with, or access to, your Prospecting List in accordance with this Clause 5. As such, you agree:
a) to provide us with your Prospecting List in accordance with our reasonable instructions;
b) where available, provide us with accurate, complete and updated Data; and
c) you are solely responsible for the Prospecting List and the consequences of using, disclosing, storing or transmitting it to us.
5.6. In conducting Prospecting Assist activities, 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 Prospecting Assist activities.
5.7. 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 our Prospecting Policy and Privacy Law.
5.8. For reporting and quality assurance purposes, you agree to advise us of:
a) any Privacy Law related complaints by a customer, no later than one (1) business day of you having received knowledge of the complaint;
b) any lack of capability or capacity to service the volume of Analysed Data generated by us throughout the term that you receive Prospecting Assist; and
c) any other relevant matters that may affect this Clause 5, no later than two (2) business days of having been made aware of the matter.
5.9. You agree that we operate as an independent third-party facilitator in respect of any transaction or communication between a customer and you.
6. MONTHLY CONVERSION FEE(S)
6.1. In exchange for conducting the Prospecting Assist activities, over the Contract Period you agree to pay to us (or our nominee) the applicable cost, as identified in your Offer Summary:
|
Applicable Cost |
Minimum Successful Contact(s) |
|
$600 plus GST per month |
50 |
|
or |
for |
|
$1200 plus GST per month |
100 + |
- the payment from month to month, hereafter referred to as the ‘Monthly Conversion Fee’.
6.2. Payment by you to us is available through secure online payments.
6.3. From time to time, we may offer trials of or special offers in connection to Prospecting Assist for a specified period without payment or at a reduced rate (“OA Trial”). We may determine your eligibility for OA Trial(s), and withdraw or modify an OA Trial at any time without prior notice and with no liability, to the extent permitted under applicable law.
6.4. As a condition of eligibility for OA Trial(s), we may require you to provide your payment details. By providing such details you agree that we may automatically begin charging you for the Monthly Conversion Fee on the first day following the end of the relevant OA Trial on a recurring monthly basis or another interval that we disclose to you in advance.
6.5. If you do not want to continue receiving Prospecting Assist following the conclusion of an OA Trial, you must notify us by phone or in writing of your intention to cancel before the end of that OA Trial. 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 OA Trial, and you authorise us (without further notice, unless required by applicable law or as mutually agreed upon) to collect the then-applicable periodic Monthly Conversion Fee, using any payment method we have on file for you.
6.6. We reserve the right, in our absolute discretion, to withdraw or to modify an OA Trial at any time without prior notice and with no liability.
6.7. You agree to:
a) authorise recurring automated payments of the Monthly Conversion Fee from your specified credit card; or
b) pay to OpenAgent (or its nominee) the Monthly Conversion Fee in accordance with the invoice provided to you;
and
c) take responsibility for all fees charged by your financial institution associated with the Monthly Conversion Fee payment; and
d) abide by any relevant payment provider’s terms of service following notification to you.
6.8. If we are unable to charge or process your payment to us of the Monthly Conversion Fee, we reserve the right to:
a) suspend and discontinue Prospecting Assist until you update your payment method; and
b) charge you a $500 suspension fee that, together with any outstanding payment(s) to us of the Monthly Conversion Fee, 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.
6.9. You agree that we may amend the Monthly Conversion Fee at any time, by providing written notice to you. If you do not agree to any amendment made to the Monthly Conversion Fee, you may terminate this Agreement by providing us with 10 business days’ written notice.
6.10. You may request a variation to the Monthly Conversion Fee at any time, by providing written notice to us.
6.11. Payment of any and all amounts referred to and due pursuant to the provisions of this Agreement shall be made solely in Australian dollars.
6.12. Subject to Clause 7 (Invoice Disputes) you agree to pay each invoice in full, in the manner and by the due date specified in the invoice or by mutual agreement.
7. INVOICE DISPUTES
7.1. You may dispute an amount invoiced by us 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:
a) make a written request to us in respect of the specific invoice, providing supporting evidence to support the disputed invoice; and
b) 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 cancelled Prospecting Assist, 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. UNDER-DELIVERY OF MINIMUM SUCCESSFUL CONTACTS
8.1. A ‘Successful Contact’ occurs where we have been in contact with an individual from your Prospecting List after the Subscription Date, and as a result, we have an outcome which will then be made available to you.
8.2. If we do not provide you with the relevant Minimum Successful Contacts for a monthly period, OpenAgent (or its nominee) will provide you with;
a) a credit for the next Monthly Conversion Fee, calculated on a pro rata basis, calculated against the percentage underperformance of that monthly period’s Minimum Successful Contacts.; or
b) an extension of Prospecting Assist, at no additional cost to you; or
8.3. a variation to the ongoing Monthly Conversion Fee, as agreed upon in writing by us and you.
9. HANDLING OF PERSONAL INFORMATION
9.1. By registering for Prospecting Assist, you represent to us that you have read, understood and accepted our Prospecting Policy available here: https://www.openagent.com.au/prospecting-assist-privacy-policy. It sets out the obligations held by us and you whenever you engage with, or use our customer profiling services. If you have not read or understood our Prospecting Policy, you must notify us immediately prior to your use of the Services and before providing us with any personal information.
9.2. We collect Personal Information directly from you and customers in connection with the Services. We use it to provide you with Prospecting Assist and for the other purposes which are detailed in our Prospecting Policy.
9.3. As outlined in our Prospecting Policy, we may share Personal Information with our related body corporates, service providers and third parties. If you have any questions about this, please contact us directly.
9.4. You agree to work with us to ensure that the obligations under Privacy Law are satisfied, including notifying any contacted customer to whom the Personal Information relates of how it proposes to use and disclose their Personal Information in connection with the Services.
9.5. You agree that we are authorised to:
a) review, edit, correction or deletion of any Personal Information held in connection with Customer Profiling 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;
b) collect additional Personal Information beyond that contained in the Prospecting List provided to us;
d) authorise our Representatives to access and use the Analysed Data;
e) invite customers to use additional services in connection with us,
subject to compliance with Privacy Law.
9.6. You agree to keep all information you receive and licence from us in respect of Analysed Data confidential and to use such information strictly for the Purpose except where you have our express written consent or, in strict relation to the Personal Information about an individual contained within the Analysed Data, that individual's consent. Notwithstanding the foregoing, you acknowledge that we may disclose such information if required to do so by law, regulation or order of a court of competent jurisdiction only.
9.7. You must immediately notify us if you become aware of any grounds to believe or suspect that in connection with your use of Prospecting Assist:
a) breach of this Clause 9 has occurred; or
b) 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.
9.8. Immediately after notifying us of a notifiable incident in accordance with sub-clause 9.7., you must:
a) 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
b) 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 in accordance with sub-clause 9.7. has occurred; and
c) 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
d) without limiting your obligations under this Clause 9 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
e) 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
f) implement and provide us with reasonable ongoing updates on the Prevention Plan.
9.9. 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 9.
9.10. This Clause 9 will survive expiry of any Services and cancellation of Prospecting Assist.
10.1. You must 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 Prospecting Assist.
(a) to comply with these Terms and our Prospecting Policy, as well as our reasonable requests or requirements (including in relation to the processing of Personal Information), and all applicable Laws (please see Clause 9);
(b) to provide all assistance, information, documentation, access, facilities, authorities, consents, licences and permissions reasonably necessary to enable us to comply with our obligations under these Terms or at Law;
(c) to only use our Analysed Data for the Purpose. 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;
(d) only to communicate with customers in accordance with our reasonable instructions provided from time to time;
(e) not and must not permit any other person to:
i. use Prospecting Assist in any way which breaches any applicable Laws or which infringes any person’s rights, including Intellectual Property Rights;
ii. use Prospecting Assist to transmit, publish or communicate material that is defamatory, offensive, abusive, indecent, menacing or unwanted;
iii. send any form of harassment via email, or any other form of messaging, whether through language, frequency, or size of messages or use of Prospecting Assist would be in breach of any person’s privacy (such as by way of identity theft of phishing); or
iv. make any representations or warranties to any third parties that could be construed as being representations or warranties from us in relation to the Analysed Data.
10.3. This Clause 10 will survive expiry of any Services and cancellation of Prospecting Assist.
11. CONFIDENTIAL INFORMATION
11.1. You agree to keep confidential all Confidential Information disclosed to you by, and agree not to deal with Confidential Information in any way that might prejudice its confidentiality, or independently use it without proper authorisation from us, except to the extent that you are obliged at law to disclose such information to a third party.
11.2. On expiry or cancellation of the Services, we have the right to request from you to deliver or destroy (and certify destruction of) all documents and other materials in any medium in your possession or control which contain or refer to our Confidential Information. You may retain a single copy of any document or other material containing or referring to the Confidential Information only to the extent you are required to do so by law.
11.3. This Clause 11 will survive expiry of any Services and cancellation of Prospecting Assist.
12. OUR USE OF APPROVED MARKETING MATERIALS
12.1. “Approved Marketing Materials” means any marketing and promotional materials including intellectual property, trademarks and branding that you have provided us to use in connection with the carrying out and delivery of the Services.
12.2. 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 these Terms. 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.
12.3. 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.
12.4. You warrant to us that our use of Approved Marketing Materials will not infringe any third party's Intellectual Property Rights or other rights.
12.5. 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.
12.6. This Clause 12 will survive expiry of any Services and cancellation of Prospecting Assist.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. Each party will retain its Pre-existing Intellectual Property Rights and nothing in these Terms assigns or transfers the Pre-Existing Intellectual Property Rights of one party to the other.
13.2. Please see Clause 12 for your obligations in respect of Approved Marketing Materials.
Prospecting List
13.3. 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, Prospecting Assist.
Prospecting Assist (including Analysed Data)
13.4. You agree that Prospecting Assist is owned and operated by OpenAgent.
13.5. You acknowledge and agree that all Intellectual Property Rights in the Services 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.
13.6. 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 the Services solely for the Purpose.
13.7. 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.
General
13.8. If you or your Representative(s) have any moral rights in any Content or material provided, used or prepared in connection with the Services, 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.
13.9. In the use of any Intellectual Property Rights in connection with these Terms, 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.
13.10. 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 Services.
13.11. Except as granted under these Terms, permission to reprint or electronically reproduce any Content made available to you via the Services 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.
13.12. This Clause 13 will survive expiry of any Services and cancellation of Prospecting Assist.
14. WARRANTIES
14.1. We represent and warrant to you:
a) we have the right to disclose the Analysed Data to you, in accordance with Privacy Law;
b) we will provide the Services in a timely and professional manner, with all due care and skill;
c) we have the right to grant the rights to you under sub-clauses 13.6 and 13.7, and that your use of the Services and Analysed Data will not infringe any third-party's Intellectual Property Rights.
14.2. You represent and warrant that:
a) in respect of the Prospecting List, you have:
i. collected the Data; and
ii. the right to disclose the Prospecting List to us;
iii. the right to allow us to access, review, edit, correct or delete CRM Data
in accordance with our Prospecting Policy, and Privacy Law, which includes the necessary consent of the individual to whom the Personal Information relates to. For avoidance of doubt, you are required to comply with the Privacy Act 1988 (Cth) as if you were an organisation regulated by the Privacy Act 1988 (Cth),
b) you hold all appropriate licenses as required by law and the real estate profession;
c) you will be compliant with any applicable general rules and rules of conduct applying to all licensees and registered persons specific to real estate agents, real estate salespersons and on-site residential property managers, including advertising of property, in relation to the Services;
d) you will not use the Analysed Data for any credit activity without our express confirmation that such activities are appropriately covered by any credit licence obligations under the National Consumer Credit Protection Act 2009 (Cth). (Please note that these Terms do not provide our express consent);
e) our use of the Prospecting List will not adversely impact on our reputation;
f) you have the right to grant the rights granted to us under sub-clauses 12.2 and 13.3, and our use will not infringe any third party's Intellectual Property Rights or other rights; and
g) where you are employed by or acting on behalf of an entity, business, person, or organisation, you are validly authorised to bind that entity, business, person, or organisation to the performance of all obligations, including payment of the Monthly Conversion Fee (see Clause 6) and equivalent privacy and confidentiality obligations, under these Terms.
14.3. Subject to your statutory rights under law (including the Australian Consumer Law), you agree that we make no warranty or representation, express or implied, as to the fitness for purpose or suitability of the Services. You accept that the Services are provided on an "as is" and on an "as available" basis and on that condition, you undertake all responsibility for assessing and considering the reliability, accuracy and delivery of information provided in relation to the Services.
14.4. This Clause 14 will survive expiry of any Services and cancellation of Prospecting Assist.
15. INDEMNITY AND LIABILITY
15.1. 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:
a) a breach of your Warranties under these Terms (see Clause 12 and Clause 14);
b) a breach of Law, including any unauthorised use or disclosure of Personal Information by you;
c) demand, allegation, claim or action that any Data you provide or supply us in connection with the Services or its use by us, infringe the rights (including any Intellectual Property Right) of any person or third-party; and
d) unlawful or fraudulent act or omission or wilful breach by you of these Terms.
Your Liability under this sub-clause 15.1 is not subject to any limit or exclusion of Liability under this Clause 15 generally.
15.2. 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:
a) our access to your Prospecting List;
b) your acts or omissions;
c) any use, application or reliance on the Services or the Analysed Data by you or any other third party;
d) any activity, transaction, communication or other interaction between you and any other party either directly or outsourced through the Services;
e) any Data, works, services, goods, materials or items which do not form part of the Services (as expressed in these Terms), or which have not been provided by us;
f) any errors or omissions from any Content made available to you through the Services including typographical, location, pricing or photographical errors;
g) any technical malfunction, error, virus, delay or interference with the Services, for whatever reason; and/or
h) any event outside of our reasonable control.
15.3. In all other instances the total aggregate Liability of either party arising out of or in connection with Prospecting Assist, whether based upon breach of contract, under common law, statute, tort (including negligence) or otherwise, will not exceed the total amount of the Monthly Conversion Fee/s) received by us from you in exchange for the Prospecting Assist activities. 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.
15.4. To the extent permitted by law, a party's Liability to the other party under or in connection with these Terms 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.
15.5. The limitations and exclusions of the Liability set out in this Clause 15 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.
15.6. This Clause 15 will survive expiry of any Services and cancellation of Prospecting Assist.
16. CANCELLATION OF PROSPECTING ASSIST
16.1. If the first payment of the Monthly Conversion Fee or receipt of your Prospecting List has not been received by us from you within 14 calendar days of the Subscription Date, we reserve the right to terminate the delivery of Prospecting Assist to you.
16.2. We may terminate Prospecting Assist:
a) at any time by providing you with seven (7) days written notice. In doing so, we will provide a refund of the Monthly Conversion Fee received for that calendar month.
b) Immediately upon written notice to you if:
i. you breach any provision of these Terms and that breach has not been remedied within 10 business days of being notified by us;
ii. you fail to provide us with clear or timely instructions or information to enable us to perform our obligations under these Terms;
iii. for any other reason outside our control which has the effect of compromising our ability to provide Prospecting Assist; or
iv. you are unable to pay your debts as they fall due.
c) You may cancel Prospecting Assist by providing us with 30 days written notice, or as otherwise agreed upon in writing with us. For clarity: we will not unreasonably withhold, condition or delay our approval or consent.
16.3. We may terminate the Services immediately upon written notice to you in the following circumstances:
a) non-payment of any amounts owing by you to us;
b) where information you have provided to us is inaccurate, misleading, false or otherwise harmful;
c) where we conclude that your conduct adversely impacts on our name, brand or reputation;
d) where you are in breach of any law or regulation, including where we conclude that your conduct violates our rights or the rights of another party;
e) where we have actual or suspected knowledge that you have been using Prospecting Assist other than expressly permitted under these Terms;
f) where there is an actual or suspected risk to the health and safety of our customers and/or Representatives;
g) where you are in breach or suspected breach of any applicable general rules and rules of conduct applying to all licensees and registered persons specific to real estate agents, real estate salespersons and on-site residential property managers; or
h) for any other reason, provided notice is given to you.
If we elect to exercise our right under sub-clause 16.3, we will provide you with our reasons for doing so in writing.
17. EFFECTS OF CANCELLATION
17.1. Following your cancellation, we will cease Prospecting Assist services as soon as practicable.
17.2. Following notification of termination, the Monthly Conversion Fee continues to be applicable for the 30-day notice period unless waived by us.
17.3. During the Contract Period and following cancellation of Prospecting Assist, each party to these Terms 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.
17.4. Upon expiration or termination of Prospecting Assist, the obligations which by their nature are intended to survive expiration or termination shall survive.
18. ELECTRONIC COMMUNICATION
18.1. Upon registration, you agree to be subscribed to our agent marketing email list.
18.2. 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. In addition, each email sent will contain an unsubscribe link so you can opt-out of that subscription to our agent marketing email list.
18.3. Notices are to be provided to us via the following email: assistant@openagent.com.au. Notice will be deemed to have been given upon completion of successful transmission.
19. FORCE MAJEURE
19.1. We will not be held responsible for any delay or failure in performance under these Terms 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.
19.2. Where a force majeure event occurs, we are entitled to an extension of time for performance of our obligations in connection with Prospecting Assist. 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.
20. GENERAL
20.1. Other than as stated in this sub-clause 20.1 or as explicitly agreed upon in writing between you and us, these Terms represent the entire agreement between you and us in relation to the subject matter of Prospecting Assist and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, made prior to the Subscription Date. There may be certain aspects of your use of the Services which are governed by additional agreements such as, without limitation, a trial or associated offer of the Services. Where such additional terms apply to your use, you will be presented with a related additional agreement and will receive an opportunity to agree to those additional terms. To the extent that there is any irreconcilable conflict between any additional terms and these Terms, the additional terms shall prevail.
20.2. These Terms is not intended to create a partnership, joint venture, employment or agency relationship between you and us. It is the express intention shared between you and us that any such relationships are denied.
20.3. If a provision in these Terms is held to be illegal, invalid, void, voidable or unenforceable, that provision must be read down to the extent necessary to ensure that it is not illegal, invalid, void, voidable or unenforceable. If it is not possible to read down a provision of these Terms as required by this sub-clause 20.3, that provision is severable without affecting the validity or enforceability of the remaining part of that provision or the other provisions in these Terms.
20.4. If we do not act in relation to a particular breach by you of these Terms, this will not be treated as a waiver by us of our right to act with respect to prior, subsequent or similar breaches.
20.5. These Terms may be executed in any number of counterparts, whether electronically or on paper. If this Agreement is executed electronically, by submitting your registration to us, you warrant to us that you agree to these Terms, that you are authorised to enter into this contractual agreement with us, and that these Terms will be legally binding upon you.
20.6. These Terms is governed by the laws of New South Wales and you agree to irrevocably submit to the exclusive jurisdiction of the courts of New South Wales.
21. INTERPRETATION
21.1. In these Terms, unless the context otherwise requires:
a) a reference to these Terms or any other document includes your Offer Summary, these Terms, the Prospecting Policy and your acceptance in accordance with sub-clause 20.5 as well as any schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
c) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
d) a reference to a party to these Terms includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
e) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally; and
f) words used in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of words in the singular herein shall apply to such words when used in the plural where the context so permits and vice versa.
22. DEFINITIONS:
22.1. In these Terms:
Agent Portal means https://agents.openagent.com.au and any other OpenAgent online portal interfacing with the Services or Website.
Analysed Data means the creation and/or verification of Data resulting from Prospecting Assist activities having been carried out by us in connection with the Prospecting List, and for certainty includes Matched Properties.
Confidential Information means the following, whether or not in a material form which is or contains:
(a) your 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:
(e) is authorised in writing to be disclosed by us;
(f) is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms; or
(g) 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 customer, and for clarity, includes CRM Data as well as any information which may or may not contain Personal Information and/or Analysed Data.
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.
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 these Terms.
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 these Terms or otherwise.
Offer Summary refers to the form displayed to you prior to your acceptance of these Terms. Please note: you will have received a copy of these Terms and your finalised Offer Summary upon acceptance. You may request another copy of the Offer Summary at any time by contacting assistant@openagent.com.au.
OpenAgent means OpenAgent Pty Ltd ABN 93 161 595 679. Please note, in these Terms any reference to “our”, “us” and “we” also refers to “OpenAgent”.
Parties refers to us and you.
Personal Information has the meaning given to it in the Privacy Act 1988 (Cth), and (for clarity) includes any information or opinion, whether true or not, and whether recorded in material form or not, about 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 Service(s) (including any improvements, modifications or developments of such Intellectual Property Rights).
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 means customer information, including CRM Data, which you provide, or give us access to.
Prospecting Policy refers to our policy available at https://www.openagent.com.au/prospecting-assist-privacy-policy.
Purpose means facilitating the sale, purchase or rental of real estate property.
Related Body Corporate has the same meaning given to that term as under the Corporations Act 2001 (Cth).
Representative of a party to these Terms 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.
Services means Prospecting Assist’s activities and related obligations.
Subscription Date means the date on which you have submitted to us your agreement to these Terms.
Website means https://www.openagent.com.au and any Agent Portal or other website interfacing with Prospecting Assist (including but not limited to the internet, email, tablets, smart phones, mobile phones, Agent Portal, Prospecting Assist tools and data feeds).
You and your refers to both you and any entity, business, person, or organisation you’re authorised to represent. For certainty: if you are using the Services on behalf of an entity, you represent and warrant that you have authority to bind that entity, business, person, or organisation to these Terms and by accepting these Terms, you are doing so on behalf of that entity, business, person, or organisation (and all references to “you” in these Terms refer to that entity, business, person, or organisation).
If you have any questions about Prospecting Assist, please contact our support team on assistant@openagent.com.au or 13 24 34.