Welcome to OpenAgent! We make it easier for Australians to buy and sell their properties!
1. YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS
1.1. Our website, OpenEstimates functionality, the Buyer's Network, and the Vendor Research services (the Services) provided through http://www.openagent.com.au and over other communication means (together referred to as the Website) are owned and operated by OpenAgent Pty Ltd ABN 93 161 595 679 (OpenAgent, Our, Us, We).
1.3. We may revise these User Terms from time to time by updating the User Terms on the Website. The revised User Terms will take effect upon notice to You, which We may provide to You electronically by posting on the Website, sending by e-mail or any other means. If You continue to use the Services or the Website, You will be taken to have accepted these Terms as amended.
1.4. You also agree to End User Terms means CoreLogic’s End User Terms and Conditions reproduced at http://www.corelogic.com.au/endusertermsconditions
In using the Services and the Website, You agree to be bound by these User Terms. If You do not accept, You must not continue to use Our Services or Website.
2. INTELLECTUAL PROPERTY
2.1. All intellectual property in relation to the Website (including the content on the Website, the functionality of the Website and the software, design, text, data, algorithms, icons, logos, copyrights, designs, trade marks, concepts, sound recordings and graphics comprised in the Website) (Intellectual Property) belongs to OpenAgent or its licensors, advertisers, associated or related entities or affiliates.
2.2. OpenAgent and its associated or related entities retain all rights, title, and interest in and to the Website and the Intellectual Property, and nothing You do on or in relation to the Website, or any of the related content will transfer any rights, in the Intellectual Property or otherwise, to You, or license to You any such rights unless expressly stated otherwise in these User Terms.
2.3. You agree not to do anything that interferes with or breaches Our Intellectual Property rights.
2.4. You agree not to copy, modify, create a derivative work, reverse engineer, reverse assemble, attempt to discover source code or algorithms, sell, assign, sub-license, grant a security interest in or otherwise transfer any content on, or functionality in, the Website.
2.5. You may download and view content or print a copy of material on the Website for personal, non-commercial use, provided that You do not modify content in any way (including any copyright notice).
2.6. Except as granted under these User Terms, permission to reprint or electronically reproduce the Website, or any related content generated through the Services or functionality in whole or in part for any other purpose is expressly prohibited, unless prior written consent is obtained from Us. You may contact Us via the communication methods available on the Website if You wish to obtain such consent.
2.7. To the fullest extent of the law, You waive any moral rights in Content (see below) for the purposes of its submission to, publication on the Website and use by OpenAgent.
2.8. By uploading, transmitting, posting or otherwise making available any information including any combination of data, illustrations, text, video, still images, audio or other material via the Services (Content), You:
(a) grant OpenAgent a non-exclusive, worldwide, royalty-free, perpetual, licence to use, adapt, modify, publish, display, sub-license, reproduce, edit and exploit the Content in any form and for any purpose;
(b) except where expressly stated otherwise, also grant each user of the Services a non-exclusive, worldwide, royalty-free, perpetual, licence to use, reproduce, edit and exploit the Content in any form for any purpose, subject to these User Terms;
(c) warrant that You have the right to grant the abovementioned licences;
(d) warrant that the Content does not breach any of the User Terms; and
(e) unconditionally waive all moral rights (as defined by the Copyright Act 1968) which You may have in respect of the Content.
2.9. You agree that OpenAgent has the right to:
(a) review, modify, reformat, reject or remove any Content which You upload, post, transmit or otherwise make available (or attempt to upload, post, transmit or otherwise make available) on the Services;
(b) monitor use of and engagement with the Services, and store or disclose any Content that We collect, including in order to investigate compliance with these User Terms and for the purposes of any police investigation or governmental request.
2.10. You accept that OpenAgent is not responsible for, and has no liability with respect to, any Content uploaded, posted, transmitted or otherwise made available on the Services by any person other than Us.
2.11. You agree that OpenAgent will not be taken to have uploaded, posted, transmitted or otherwise made a Content available on the Services by facilitating other members of OpenAgent to post, transmit or other make Content available.
3. MEMBERSHIP - ACCOUNT REGISTRATION AND CANCELLATION
3.1. You must register Your membership with OpenAgent in order to make use of the Services and the Website.
3.2. Registration on the Website is free and You agree and acknowledge that:
(a) You shall provide Us with accurate, complete and updated registration information including the contact details and all property details;
(b) You may cancel Your registration with Us at any time by notifying Us via email at email@example.com. We will then use Our best efforts to cancel Your registration within 21 working days of Our receipt of Your request.
3.3. OpenAgent reserves the right to verify all potential registrations in order to maintain quality of the Services and may contact You by telephone or email to verify that Your registration information is accurate and correct before engaging.
3.4. 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.
3.5. OpenAgent may terminate Your use and access to the Services and the Website at any time, for any reason and without notice including but not limited to the following reasons:
(a) actual or suspected engagement in any of the activities listed in Clause 3.10;
(b) breach of any applicable law including the Australian Consumer Law and other applicable consumer protection laws and regulations or breach of any of these User Terms;
(c) where We conclude that Your conduct adversely impacts on Our name or reputation;
(d) where We conclude that Your conduct violates Our rights or those of another party, including a buyer and/or vendor;
(e) where Your registration information is inaccurate, misleading, false or otherwise harmful to any third party in any way;
(f) where You are not the owner of the property registered;
(g) where You have not attained the minimum age of 18 years or otherwise do not have the full legal capacity to use the Services to enter into any transaction sourced or derived from Your use of the Services or the Website;
(h) 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.
3.6. You accept that You are responsible for maintaining the confidentiality of Your log in details, including Your user name and password (Registered Member), and as such, You agree that OpenAgent will not be liable for any loss or damage of any kind arising from Your failure to comply with Clause 3.10 and Clause 9.
3.7. You acknowledge that OpenAgent has no responsibility or liability for the deletion or failure to store any communications or Content posted on the Services or the Website.
3.8. OpenAgent makes no warranty, representation or promise as to the availability of the Services or the Website. You acknowledge that OpenAgent may, in Our sole discretion and without notice, vary, suspend or discontinue, temporarily or permanently, any or all of the Services or the Website and You agree We are not liable to You or any third party for such variation, suspension or discontinuance.
3.9. OpenAgent does not warrant that functions contained in the Services or the Website, including OpenEstimates, and any, hyperlinks, will be uninterrupted or error free, that defects will be corrected or that OpenAgent or Our hosting server, are free of viruses or bugs.
3.10. Prohibited Activities
You agree that You will not send or post Content which
(a) is prohibited by this Agreement;
(b) infringes the rights of any third party;
(c) is materially incorrect;
(d) constitutes or encourages conduct that would be considered a criminal or civil offence in Australia or any other country in the world;
(e) contains personal information or imagery of any third person used without their permission or any property other than the subject property;
(f) contains a cartoon or illustration (other than for the purposes of accurately illustrating a property or part thereof where a photograph is not possible or would not accurately represent the property);
(g) promotes racism, bigotry, hatred, harassment, or physical harm of any kind against any group or individual; and
(h) promotes information that is false, misleading or deceptive or capable of being misleading or deceptive.
and You agree that You will not:
(a) send, post, distribute or reproduce any copyright material, trademarks, proprietary information or intellectual property without obtaining the prior written consent of the owner;
(b) impersonate any person or entity;
(c) solicit money from any other person or entity outside the restrictions of a lawful transaction;
(d) harass any person or entity through the Services or use of the Website generally;
(e) imply or expressly make statements under the endorsement of OpenAgent, without Our specific prior written consent;
(f) attempt to modify, adapt, translate, sell, reverse engineer, decompile or disassemble any portion of the Services and the Website (including any source code or algorithms).
(g) post, download or communicate any file or material posted by another user of the Services or the Website, if You know, or reasonably ought to know, that the file or Content cannot legally be downloaded or communicated in that matter;
(h) use any robot, spider, or other device or process to retrieve, index, or in any way reproduce, modify or circumvent the navigational structure, security or presentation of the Services or the Website.
(i) interfere with the computer systems which support the Services; overload a service; engage in a denial-of-service attack; or attempt to disable a host;
(j) post, communicate or transmit any file which contains viruses, worms, “Trojan horses” or any other harmful, contaminating or destructive features;
(k) access or attempt to access information resources You are not authorized to use;
(l) collect or store personal data about other users of the Services and the Website.
3.11. By using the Services, You agree not to contact any advertiser of a property on the Services for any purpose other than to potentially purchase or list for sale an advertised property.
4. VENDOR SERVICES AND OBLIGATIONS
4.1. As a member of OpenAgent, You acknowledge and agree that You are required to submit various forms of personal information and information related to the property You wish to sell or rent-out which will be read and assessed by OpenAgent (Submission).
4.2. In providing a Submission to OpenAgent, You must provide correct, accurate and honest details of the property in which You, in good faith, plan to sell or rent-out.
4.3. OpenAgent shall then assess the information provided by You to select certain real estate agents who, in OpenAgent’s opinion meets the requisite skills, knowledge and ability to effectively facilitate the sale or rental of Your property.
4.4. You agree that OpenAgent will provide details of Your Submission to various real estate agents and will request information from such Agents in respect of facilitating the sale or rental of the property.
4.5. OpenAgent will provide You with the outcome of research on real estate agents based on Your Submission (where such analysis shall be at the sole discretion of OpenAgent), after which You may decide, at Your own discretion, which real estate agent to contact, interview and potentially contract with in respect of facilitating the sale or rental of Your property.
4.6. You agree that the selection process in respect of real estate agents presented to You is based on the opinion of OpenAgent only, and the research OpenAgent undertakes and, accordingly, OpenAgent has no responsibility, liability nor obligation in respect of Your selection of a real estate agent in respect of the sale or rental of Your property.
4.7. You acknowledge and agree that OpenAgent will receive a fee from the real estate agent that You selected to sell or rent-out Your property (via Your interaction with the Website and other communication means) upon the sale or rental of such property. Please note that only the real estate agent is required to pay the referral services fee to OpenAgent and You have no liability toward OpenAgent in this regard.
4.8. OpenAgent makes no warranty or representation, express or implied, as to the fitness for purpose or suitability of the real estate agent for Your needs as a vendor. The information We provide is merely a reference tool to empower You to make Your own decisions.
4.9. This clause 4 is material and essential to these User Terms.
5. BUYER'S NETWORK SERVICES AND OBLIGATIONS
5.1. Through the Buyer’s Network, OpenAgent provides advertising and marketing services which allow You to advertise, facilitate, promote and search services related to real estate.
5.2. You understand and agree that OpenAgent remains independent from any advice, content, correspondence, information or representations given therein by either the real estate agent, a buyer or a vendor. OpenAgent does not and will not act as an agent for You or any real estate professional involved in the use of the Buyer’s Network.
5.3. You understand and accept that information on the Buyer’s Network platform and in any related OpenAgent Website publication should not be regarded as a substitute for professional legal, financial, credit or real estate advice.
5.4. OpenAgent reserves the right to change or discontinue any website, feature or service (including pricing for any chargeable feature or service) on the Buyer’s Network at any time.
5.5. While You may request a suburb report or price estimate via Our platform, You understand and accept that this information is of a general, unverified and historical nature only. It does not constitute professional advice to be relied upon by You, or any other person.
5.6. You agree not to make statements or create Content on the Buyer's Network, that is incorrect or likely to create a false impression. This includes advertising the price of a property that is less than a reasonable estimate of the property’s likely selling price.
5.7. By submitting information or creating Content on the Buyer's Network, You agree to OpenAgent disclosing this information and Content to third-party services for the purposes of providing tailored product or service offers that could be of interest to You; or to generate and report aggregate statistics to advertisers and business partners.
6. OPENESTIMATES SERVICES AND OBLIGATIONS
6.1. OpenEstimates is a tool available (subject to these User Terms) on the Website to assist Your research about properties and real estate agents in Your area (OpenEstimates). It is for Your personal use and research only. You use OpenEstimates at Your sole risk and You are responsible for all decisions You make in connection with, or reliance on, OpenEstimates.
6.2. To the extent permitted by law, OpenAgent makes no representation, warranty or promise that the Website including OpenEstimates will be available or secure, or will produce results that are accurate, reliable, complete, sufficient, up to date, suitable for Your requirements or fit for the purpose You intend to use them for.
6.3. The price suggested by OpenEstimates is an estimate and is influenced by the subjective information You provide. The price suggested may vary substantially from any property price actually realised. OpenAgent does not give financial or credit advice and OpenEstimates does not take into account Your personal needs, financial situation or circumstances. For a complete valuation of Your property, OpenAgent recommends You seek expert valuation advice or speak to a real estate agent.
7. CREDIT SERVICES
7.1. OpenAgent may also provide You with a referral to a credit provider or a commercial partner that engages in credit activities other than as a credit provider (Credit Partner). Please see OpenAgent's Credit Guide for more information.
7.2. In providing referrals to Our Credit Partners, OpenAgent:
(a) does not provide You with credit assistance by suggesting or assisting You to apply for, increase or remain in a particular credit contract;
(b) does not provide any recommendations or advice concerning loans to You;
(c) does not charge You a fee for the referral;
(d) will only inform You that We are able to arrange a referral to a Credit Partner but cannot specify any particular product;
(e) will inform You of any commissions or other benefits We will receive in relation to the referral. You can also request from Us a reasonable estimate of the amount of commission payable to Us from a Credit Partner to help You understand how it is all worked out; and
(f) will not pass on Your name, contact details or a description of the purpose for which You may want the credit to a Credit Partner without Your consent.
7.4. OpenAgent does not warrant the accuracy of any information on a Credit Partner and recommends that You confirm it with the Credit Provider before acting on it. Any Credit Partner product and service information is for information purposes only.
7.5. To the extent that any OpenAgent data, ratings or commentary constitutes general advice, this advice has been prepared by Our Credit Partners and does not take into account Your financial circumstances or needs. Any such information provided on and available from Credit Partners does not constitute credit, financial, taxation or other professional advice from OpenAgent and should not be relied upon as such. OpenAgent always recommends that, before You make any financial decision, You seek independent professional advice from a suitably qualified adviser.
8. OPENAGENT'S RELATIONSHIP TO YOU
8.1. OpenAgent operates as an independent third party facilitator in respect of any transaction and communication between members of OpenAgent and their real estate agents and We remain independent from any advice, content, correspondence, information or representations given therein. Buyers, vendors and real estate agents engaging the Services of OpenAgent shall undertake full responsibility for the decision to engage with one another.
8.2. The services, advice, information, suggestions and opinions provided by any party via the Services and the Website are strictly that party’s own.
8.3. As a result of both 8.1 and 8.2, OpenAgent takes no responsibility for the quality, safety or legality of the services, correspondence, monies, information and/or opinions provided by a Credit Partner, a real estate agent or You as a buyer or vendor, or the accuracy, truthfulness or reliability of the information supplied by a Credit Partner, a real estate agent, buyer or a vendor.
8.4. You agree that the information is provided to You “as is” and on an “as available” basis and on the condition that You undertake all responsibility for assessing and considering the accuracy of Content and rely on it at Your own risk.
8.5. OpenAgent is not a real estate agent or credit provider and We do not act for You in the financing, purchase, sale or rental of land or property.
8.6. OpenAgent is in no way party to and will not be liable for or have any relationship with enforcing any agreement made between members or any real estate agent or Credit Partner whom You appoint or contract with.
8.7. You understand that OpenAgent may act as an introducer to third-party partners or entities with whom OpenAgent has a commercial relationship but has no authority to enter into any agreement with You or any other person on behalf of a third-party partner or entity, and does not hold itself out as having such authority or otherwise as an agent, employee, officer or franchisee of a third-party partner or entity.
9.1. You warrant that You have received independent financial, legal, or other professional advice in respect of real estate transactions and credit activities.
9.2. In using the Services, You warrant that that You have full legal capacity and lawful entitlement to authorise the following where relevant:
(a) the offer and sale of the subject property;
(b) promotion, advertising or marketing of the subject property;
(c) making an offer and purchasing the subject property for sale.
9.3. You warrant that You will not engage in behaviour – including information sharing, promotions and advertising of real estate, that is false, misleading or deceptive or capable of being misleading or deceptive under the Australian Consumer Law or any terms implied by applicable consumer protection laws or real estate industry regulations.
9.4. You warrant and agree that You will undertake Your own checks, independent verification and independent advice to satisfy the legal identity and capacity of any other party involved in any transaction facilitated by the Services; and the suitability and particulars of, matters affecting any real estate, real estate transaction or interest in real estate that is published, disclosed, marketed, advertised or promoted using the Services.
9.5. You understand and agree that OpenAgent does not represent or endorse the accuracy or reliability of any of the Service’s Content, linked websites, advice, opinion, statement or other information displayed, uploaded or distributed by OpenAgent, Credit Partners, Our commercial partners, or any site user or any other person or entity.
9.6. You represent and warrant that You will not use the Website for any purpose that is unlawful or prohibited by these User Terms and that You will ensure that these User Terms are binding on Your legal heirs, assignees, successors and personal representatives.
9.7. You agree and accept that OpenAgent makes no warranty or representation of any kind to You regarding the legal capacity or validity of any real estate transaction through the Services.
9.8. You agree and accept that OpenAgent does not warrant that the Services will meet Your expectations or requirements and that OpenAgent does not warrant the performance of any real estate transaction or provision of credit through the Services.
10. INDEMNITY AND LIMITATION OF LIABILITY
10.1. Nothing in these User Terms limits, excludes or modifies the consumer guarantees provided under the Australian Consumer Law or any terms implied by applicable consumer protection laws or regulations, except where legally permitted to do so.
10.2. To the extent permitted by law, You agree that OpenAgent is excluded from all conditions and warranties relating to Your use of the Services and the Website that are not expressly set out in these User Terms. To the extent that Our liability for breach of any implied warranty or condition cannot be excluded by law, Our liability will be limited, at Our option, the re-supply of the Services; or the payment of the cost of having the Services re-supplied.
10.3. In relation to any express warranty or condition set out in these User Terms in connection with the Services supplied or offered by Us via the Website, Our liability to You will be limited to the amount paid by You in respect of those Services or if in relation to Your use of the Website, it will be limited to $100 (AUD).
10.4. You agree to defend, indemnify and hold harmless OpenAgent, its officers, directors, employees, agents, subcontractors, licensors, associated or related entities and/or suppliers, from and against all claims, actions, demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with Your use of the Services and the Website, or resulting from, or alleged to result from, Your use of Services and the Website, a breach of Your representations and warranties or Your violation of any of these User Terms.
10.5. You further agree to defend, indemnify and hold harmless OpenAgent, its officers, directors, employees, agents, subcontractors, licensors, associated or related entities and/or suppliers, from and against all claims, actions, demands, liabilities and settlements, including, without limitation, reasonable legal and accounting fees, arising in connection with any dealings You have or instigate with any buyers, vendors, real estate agents, agencies and any other third parties.
10.6. Notwithstanding anything to the contrary in these User Terms, in no circumstances will We be liable to You or any third party for any indirect, punitive or consequential loss or damages, loss of income, profits, goodwill, data, contracts, use of money or any loss or damages arising from or in any way connected to business interruption of any type, whether in tort, contract or otherwise, in relation to:
(a) OpenAgent’s failure or omission to comply with obligations under these User Terms;
(b) Your use of the Services;
(c) any activity, transaction, communication or other interaction between You and any other party either directly or outsourced by the Services;
(d) any errors or omissions from any information on the Services including typographical, location, pricing or photographical errors;
(e) any technical malfunction, error, virus, delay or interference.
10.7. You agree to pursue any claim or action against any other site user or Registered Member arising from use of the Services independently of and without any demands from or claims, liability and damages connected to OpenAgent.
11.1. In conducting Our business and providing the Website and the Services, We (and Our associated or related entities) may collect and use the personal information You provide to Us. We may also receive personal information about You from those organisations, entities or persons after We have referred You to them.
12.1. Access to the Services and the Website is governed by the law in the State of New South Wales, Australia, and You agree to submit to the exclusive jurisdiction of the courts in New South Wales.
12.2. These User Terms supersede all other (prior or contemporaneous) communications or displays whether electronic, oral, or written, between Us and You in relation to the Website and the Services.
12.3. The Services and the Website may include links to third party sites which are not related to OpenAgent and in relation to which OpenAgent has no control or interest. The appearance of those links on this site does not indicate any relationship between OpenAgent and that third party or any endorsement by OpenAgent of that third party, its site or the products or services which it is advertising on the Services or the Website.
12.4. To the extent permitted by law, the information on the Services and the Website is provided ‘as is’, without express or implied warranty. The inclusion of any link does not imply that We endorse the linked site. You agree that You use the Services and the Website, associated information and links at Your own risk.
12.5. OpenAgent reserves the right to verify registration information on the Services, as well as any other information provided relating to properties featured on the Services.
12.6. The real estate agent is obliged to keep all information it receives and collects in respect of the vendor confidential. However, the real estate agent may need to disclose such information if required to do so by law, regulation or by order of a court of competent jurisdiction only.
12.7. OpenAgent reserves the right to investigate and take appropriate internal measures, as well as legal action, against anyone who breaches these User Terms or is involved with the breach of these User Terms.
12.8. If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, Clause 9 and Clause 10, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these User Terms shall continue in effect.
12.9. If We do not act in relation to a particular breach by You of these User Terms, this will not be treated as a waiver by Us of Our right to act with respect to subsequent or similar breaches.
If You have any questions about these User Terms, please contact Us at firstname.lastname@example.org or on 13 24 34