Welcome to OpenAgent!
2. Who are we?
OpenAgent Pty Ltd ACN 161 595 679 (OpenAgent, our, us, we) is passionate about making buying and selling easier for Australians. In doing so, we want to provide you with services that help you to understand what's involved, and allow you to streamline that process.
3. Application of these terms
3.3. If you are using the Website on behalf of someone else (including another entity) you may only do so if you have the authority to bind that third party to these Terms . By accepting these Terms, you represent and warrant to us, that you are authorised to do so on behalf of that third party (and all references to you in these Terms refer to that third party).
3.4. What this means is that these Terms and End User Terms govern your use of the Website. If you are a real estate agent, we’ll ask you to agree to separate terms and conditions, which will apply alongside these ones (Other Terms).
3.5. If there is any inconsistency between these Terms and Other Terms, the provisions of these Terms will prevail to the extent permitted by law.
Changes to these Terms.
3.6. We may revise these Terms from time to time by updating our Website. If you don’t agree with the amended terms, you must stop using our Website at any time.
3.7. You should review these Terms periodically so that you are updated on any changes. Any variation or change will be effective immediately. Any material revisions of the Terms which will have a material and detrimental impact on your rights and obligations will be notified to you by a posting on the Website, via e-mail or any other means.
3.9. You should review these Terms periodically so that you are updated on any changes. Any variation or change will be effective immediately. Any material revisions of the Terms which will have a material and detrimental impact on your rights and obligations will be notified to you by a posting on the Website, via e-mail or any other means.
4.1. You must register your membership with OpenAgent in order to make use of the services provided through our Website.
4.2. Registration is free. By registering you accept that:
a) you must provide us with accurate and complete registration information including your contact details and all property details;
c) you can cancel your registration with us at any time by notifying us via email at email@example.com. Note: we will then use our best efforts to cancel your registration within 21 working days of our receipt of your request;
d) you have been provided to a link to these Terms prior to submitting your registration, and as a result, your decision to register is one of fully informed consent.
4.3. We reserve the right to verify all potential registrations in order to maintain quality of our Website or related services and may contact you by telephone or email to verify that your registration information is accurate and correct before engaging with you.
4.4. 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.
4.5. At the beginning of each phone call to you, we will notify you that the phone call will be recorded. Subject to any notifcation from you to us 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 stated purposes.
4.6. You accept that you are responsible for maintaining the confidentiality of your log in details to the Website, including your user name and password, and as such, you agree that OpenAgent will not be liable for any loss or damage of any kind arising from your failure to maintain the confidentiality of your login details, or your failure to comply with these Terms.
4.7. OpenAgent may terminate your use and access to our services at any time, for any reason and without notice including but not limited to the following reasons:
a) where we conclude that your conduct adversely impacts on our name or reputation;
b) where you have not attained the minimum age of 18 years or otherwise do not have the full legal capacity to use the Website or to enter into any arrangement or transaction sourced or derived from your use of our services;
c) 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;
d) actual or suspected engagement in any of the Prohibited Activities (see Clause 16 below).
5. Our Role
5.1. OpenAgent operates as an independent third-party facilitator in respect of any transaction and communication between users of the Website and its related services. We remain independent from any advice, User Content, correspondence, information or representations given therein.
5.2. While OpenAgent may act as an introducer to third-party partners or entities with whom OpenAgent has a commercial relationship, you accept it 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.
5.3. Users engaging with the Website undertake full responsibility for the decision to engage with one another. This includes with real estate agents or Credit Partners. For clarity, OpenAgent is in no way party to and will not be liable for or have any relationship with enforcing any agreement made between users or any real estate agent or Credit Partner appointed or contracted with.
5.4. You accept that OpenAgent is not responsible for, and has no liability with respect to, any User Content uploaded, posted, transmitted or otherwise made available on the Website by any person other than us.
5.5. We may, in our sole discretion and without notice, vary, suspend or discontinue, temporarily or permanently, any or all of the Website or our related services. You agree we are not liable to you or any third-party for such variation, suspension or discontinuance.
6. Property Reports
6.1. While you may request a suburb report or price estimate via our Website, 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.
6.2. You understand and accept that content on the Website or in any related publication in connection to the Website should not be regarded as a substitute for professional legal, financial, credit or real estate advice.
6.3. You agree that any Website content provided to you is on an “as is” and “as available” basis and on the condition that you undertake all responsibility for assessing and considering the accuracy of that content and must rely on it at your own risk.
6.4. By using and accessing the Website, you agree that you acknowledge that communications are not strictly private communications and you are solely responsible for any User Content posted by you, and that OpenAgent assumes no responsibility or liability arising from any such User Content.
7. The Vendor Research Services
7.1. Our vendor research services enable you to search for and select real estate agents who, in our opinion, meet the requisite skills, knowledge and ability to facilitate the sale or rental of real estate property.
7.2. You will need to register your details in order to receive the vendor research services. In doing so, you must provide correct, accurate and honest details of the residential property in which you, in good faith, plan to sell or rent-out.
7.3. We will then assess those registration details to recommend real estate agents to you. Some agents may not be considered in the results due to commercial arrangements, area or availability. Commercial arrangements we have with OpenAgent may impact your search results. If you would like further information about this, please let us know.
7.5. After we provide you with our search results, you may decide, at your own discretion, which real estate agent to contact, interview and potentially contract in relation to your property.
7.6. 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 property. Please note that only the real estate agent is required to pay a professional services fee. You are not liable for payment of the professional services fee.
7.7. The selection process in respect of real estate agents presented to you is based on our opinion only, and the research we undertake and, accordingly, we have no responsibility, liability nor obligation in respect of your selection of a real estate agent in respect of the rental or sale of your property.
7.8. 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. The information we provide is merely a reference tool to empower you to make your own decisions.
8. The Off-Market Network
8.1. We provide a platform for you to communicate with other users to facilitate the sale and purchase of real estate property. It includes marketing and advertising services. We act as a third-party facilitator and are not a party to any real estate transaction that may take place following interactions on our platform.
8.2. By using the Off-Market Network you accept and agree to the following:
a) OpenAgent remains independent from any advice, Content, correspondence, information or representations given therein by either a real estate agent, a buyer or a vendor in connection with the website;
b) if you are a vendor, you must:
i. prepare a contract for sale for the sale of the registered property which is listed on the Off-Market Network, and which meets the requirements at law; and
ii. any details or information provided to us about your property is complete, true and accurate in all material respects.
c) if you are a potential purchaser of property, you warrant that:
i. you are a genuine potential purchaser of property; and
ii. the details or information you provide to us about your purchase specifications is complete, true and accurate in all material respects.
d) your use of the Website will result in your personal information being shared with a real estate agent, vendor and/or buyer (without limitation).
e) any outcomes facilitated by our provision of the Off-Market Network are subject to and conditional upon a valid contract of sale being entered into.
f) A contract of sale is subject to and conditional on the following:
- cooling off periods;
- finance conditions;
- building and pest inspections;
- satisfaction of any other conditions specified in the contract of sale and/or under applicable law.
For certainty: OpenAgent is not a party to any contract of sale entered into by users of the Off-Market Network.
8.3. OpenAgent reserves the right to change or discontinue any website, feature or service (including pricing for any chargeable feature or service) in connection to the Off-Market Network at any time.
8.4. You agree not to provide User Content via or in connection to the Off-Market Network, that is incorrect or likely to create a false impression or is or likely to be construed as misleading and deceptive. This includes advertising the price of a property that is less than a reasonable estimate of the property’s likely selling price.
Analysed Market Assessments
8.5. If you make an Analysed Market Assessment (Assessment) Request, you must complete the Residential Instruction Form provided to you prior to the Assessment taking place. In doing so, you agree:
a) to use the Assessment prepared solely for you (and any other person expressly requested by and agreed by us in writing) for the purpose specified on the Residential Instruction Form. You must not use an Assessment for any other purpose without our prior written consent;
b) to seek our prior written consent before disclosing the Assessment to a third party;
c) an Assessment is not suitable nor to be relied upon for high percentage lending or mortgage insurance purposes;
d) the Assessment does not constitute a valuation in the same meaning as a valuation conducted in accordance with the General Concepts, Principles and Standards as detailed and defined by the Australian Property Institute which is based on a physical inspection of the property; and
e) markets and the value of an asset may change significantly and unexpectedly over a relatively short period (including as a result of general market movements, factors specific to the particular property, fluctuations in economic conditions, or other contingencies and uncertainties).
8.6. Assessments cannot be considered advice as to taxation, investment or financial strategy nor should the contents be viewed as legal or accounting advice, nor are they recommendations with respect to the investment or non-investment in, or the sale or purchase of, property or for any other decision which may be made as a consequence of, the use of the Assessment.
8.7.The property will not be inspected and you agree to the non-inspection of the property by OpenAgent’s independent contractor and confirm that in producing the Assessment, the usual range of enquiries that a valuer is customarily required to make by valuation standards will not be carried out and you accept the inherent risk of diminished accuracy arising therefrom.
The Assessment does not constitute a valuation.
Photography and 3D Scans
8.8. You consent to the appointment of OpenAgent or its duly authorised contractor to photograph and publish any photographs taken or visual recordings (including 3D or 360-degree image scans) made of the inside of the subject residential premises for the Assessment in which personal possessions may be visible for the purpose of advertising the residential premises on the Off-Markets Network, for sale and letting (including routine inspections and condition reports).
8.9. Any photographs taken or visual recordings (including 3D or 360-degree image scans) are subject to the terms set out under Intellectual Property (Clause 11). For certainty, OpenAgent retains all of ownership rights in photographs taken or visual recordings by us or our duly authorised contractor. You must seek our prior written consent before using the photographs or visual recordings in connection with a third party service provider.
9.1. Your use of the OpenEstimates tool is for your personal use and research only.
9.2. The price estimated is a computer generated analytic and is influenced by the information you choose to provide (Estimate). The Estimate may vary substantially from any property price actually realised by a professional real estate agent or valuer of real estate property, and as such, the Estimate must not be construed as or relied upon as a professional appraisal or valuation. Depending on the unverified information entered, an estimate is generated by using a mathematical model that relies on limited available data. Such data may not be current, accurate or complete, and does not factor in the physical features and condition of the subject property, any market conditions (local or otherwise) or your personal circumstances. These factors may affect the market value of the subject property. For certainty, in using OpenEstimates, you represent to us that you understand the Estimate suggested may vary substantially from any property price actually realised.
9.3. You accept sole risk and responsibility for all decisions you make in connection with, or reliance on, OpenEstimates.
9.4. To the extent permitted by law, OpenAgent expressly excludes any liability for any loss or damage howsoever arising suffered in connection with your use of or reliance on the Estimate, as well as any warranty or representation that the Estimate or any service provided by us in connection with the Estimate 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 it for.
9.5. You accept that OpenAgent does not give financial or credit advice in connection to your use of OpenEstimates. Further, you understand that OpenEstimates does not take into account your personal needs, financial situation or circumstances.
9.6. You understand that you should consult a professional valuer or real estate agent to receive advice on the value of a real estate property.
10. Referrals to Credit Providers
10.1. Following your consent, we may refer you to a third party for activities which relate to a type of credit or consumer lease to which the National Credit Code applies (Credit Provider).
10.2. In providing referrals to Credit Providers, OpenAgent:
a) will not charge you a fee for the referral;
b) will not provide you with credit or financial assistance;
c) will only inform you that we are able to arrange a referral to a Credit Provider but cannot specify any particular product; and
d) will inform you of any commissions or other benefits received by us in relation to the referral. (Note: 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).
10.3. To the extent that any OpenAgent data, ratings or commentary constitutes general advice, this advice has been prepared by our Credit Providers and does not take into account your individual circumstances or needs. Any such information provided on and available from Credit Providers does not constitute credit, financial, taxation or other professional advice from OpenAgent and should not be relied upon as such.
10.4. We do not warrant the accuracy of any information on a Credit Provider and recommend that you confirm it with the Credit Provider before acting on it. We also recommend that, before you make any credit or financial decision, you seek independent professional advice from a suitably qualified adviser.
11. Intellectual Property
11.1. We and/or our associated or related entities retain all rights, title, and interest in and to the Website’s intellectual property, and nothing you do on or in relation to the Website 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 Terms.
11.2. We grant to you a worldwide, royalty-free and non-exclusive licence to view and use our Website for the term of your registration, and only for the limited purpose of receiving the benefit of the Website as contemplated by us, and subject to your compliance with these Terms.
11.3. To the fullest extent of the law, you waive any moral rights (as defined by the Copyright Act 1968) in User Content for the purposes of its submission to or publication on the Website, as well as its general use by us.
11.4. You must not use or duplicate the Website, or material on the Website without our express written consent. You may print off one copy, and may download extracts, of any page(s) from our Website for your personal use and you may draw the attention of others to content posted on our Website. However, our status (and that of any identified contributors) as the authors of content on our Website must always be acknowledged.
11.5. You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
11.6. If we provide social media features such as the ability to share content, you may take such actions as are enabled by such features.
11.7. You must not delete or alter any copyright, trade mark or other proprietary rights notices from copies of materials from this Website.
11.8. Clause 12 and 13 apply to User Content submitted on the Website.
12. User Content
12.1. This Website may include information and materials uploaded by other users of the Website, including to comment threads. This information and these materials have not been verified or approved by us. The views expressed by other users on our Website do not represent our views or values.
12.2. This Website may contain comment threads, personal web pages or profiles, forums, bulletin boards and other interactive features (collectively, Interactive Services) that allow users to post, submit, publish, display or transmit to other users or other persons (post) content or materials (collectively, User Contributions) on or through the Site.
12.3. If you post User Content, you must also have all necessary third-party permissions and licenses. If we are notified by a third-party that any content infringes intellectual property rights, we may in our sole discretion remove such content from our Website, or take other steps that we deem appropriate, without prior notification to the user who supplied or posted that content.
12.4. All User Contributions must comply with the content standards set out in Clause 13 of these terms.
12.5. Any User Contribution you post to the Website will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, however by providing any User Contribution on the Website, you grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material for any purposes.
12.6. We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our Website constitutes a violation of their intellectual property rights, or of their right to privacy.
12.7. We have the right to remove any posting you make on our Website if, in our opinion, your post does not comply with our Content Standards.
12.8. You are solely responsible for securing and backing up your content.
12.9. You represent and warrant to us that:
(a) You own or control all rights in and to your User Contributions and have the right to grant the license granted above to us and [our affiliates and service providers, and each of their and] our respective licensees, successors and assigns.
(b) All of your User Contributions do and will comply with these terms.
(c) You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you (and not us) have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness.
12.10. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Site.
12.11. We have the right to remove, refuse to post or take any action with respect to any User Contributions for any or no reason in our sole discretion. If you wish to complain about information and materials uploaded by other users please contact us on firstname.lastname@example.org
13. Content Standards
13.1. These Content Standards apply to any and all User Contributions and use of social media features. User Contributions must in their entirety comply with all applicable federal, state, local and international laws and regulations. In particular, you warrant that your User Contributions will not:
(a) contain any material which is defamatory, obscene, abhorrent, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
(b) contain or promote sexual or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
(c) infringe any patent, trade mark, trade secret, copyright or other intellectual property or other rights of any other person.
(e) be likely to deceive any person.
(f) promote any illegal activity, or advocate, promote or assist any unlawful act.
(g) cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
(h) impersonate any person, or misrepresent your identity or affiliation with any person or organisation, including with us.
(i) involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
(j) give the impression that they emanate from or are endorsed by us or any other person or entity, if this is not the case.
13.2. Whenever you make use of a feature that allows you to upload content to our Website, or to make contact with other users of our Website, you must comply with the content standards in this Clause 13.
13.3.You warrant that any such contribution complies with these standards, and you will be liable to us and indemnify us for any breach of that warranty. This means you will be responsible for any loss or damage we suffer as a result of your breach of warranty. We may report any breach of your warranty to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Website will cease immediately.
15.1. In no event will we, our affiliates or their licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use, our Website, any websites linked to it, any content on our Website or such other websites or any services or items obtained through our Website or such other websites, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
15.2. Nothing in this clause affects any liability which cannot be excluded or limited under applicable law. We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors and for fraud or fraudulent misrepresentation. Where our liability cannot be excluded, we limit our liability to the fullest extent permitted by the Australian Consumer Law.
15.3. You agree to defend, indemnify and hold us, our affiliates, licensors and service providers, and each of their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns, harmless from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of these terms or your use of the Site, including, but not limited to your User Contributions, your use of any information obtained from the Website and any use of the Website’s content, services and products other than as expressly authorised in these terms.
15.4. Different limitations and exclusions of liability will apply to liability arising as a result of the supply of any service to you, which will be set out in our terms governing the provision of that service.
15.5. If you have rights in relation to the supply of services that cannot lawfully be excluded, to the extent permitted by law, our liability in respect of any such right is limited to the lesser of:
(a) the supply of the services again; or
(b) the payment of the cost of having them supplied again.
15.6. If you have rights in relation to any information used by you as a consequence of your use of the Website and its related services that cannot lawfully be excluded, to the extent permitted by law, our liability in respect of any such right is limited to the lesser of:
(a) the price paid by you for that information; or
15.7. Use of the content and any use of the Website and our related services generally are at your sole risk. For example, as you may not always be able to access the Website or our services as a result of scheduled or unscheduled maintenance, or for other reasons, you should consider this in situations that are time-sensitive such as when you need to provide us with information by a particular date and time.
15.8. We do not guarantee that our Website will be secure or free from bugs or viruses or any other type of malicious code or software. You are responsible for configuring your technology to access our Website. You should use your own antivirus software.
16. Prohibited Activities
16.1. You may use the Website only for lawful purposes and in accordance with these terms. You agree not to use the Website:
(a) in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from other countries);
(b) for the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise;
(c) to send, knowingly receive, upload, download, use or re-use any material which does not comply with our Content Standards;
(d) to transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation
(e) to impersonate or attempt to impersonate us, any of our employees, another user or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing); or
(f) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm us or users of the Site or expose them to liability.
16.2. Additionally, you agree not to:
(a) use the Website in any manner that could disable, overburden, damage, or impair the Website or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website;
(b) use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website;
(c) use any manual process to monitor or copy any of the material on the Website or for any other unauthorised purpose without our prior written consent;
(d) use any automatic or manual process to reverse engineer or decompile any part of the Website;
(e) use any device, software or routine that interferes with the proper working of the Website
(f) introduce any viruses, trojan horses, worms, logic bombs, spyware, computer code, file, program or material which is malicious or technologically harmful;
(g) attempt to gain unauthorised access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website
(h) attack the Website via a denial-of-service attack or a distributed denial-of-service attack; or
(i) otherwise attempt to interfere with the proper working of the Website.
16.3. We may report any of the activities above to the relevant law enforcement authorities and we will cooperate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our Website will cease immediately.
16.4. All engagement with our product offerings through our Website or other transactions for the provisions of product offerings performed through the Website or as a result of visits made by you are governed by the terms applicable to that product offering, including these Terms.
17. Electronic Communications
17.1. Upon registration, you will be subscribed to our marketing email list.
17.2. From time to time, we may send you electronic communications about marketing opportunities, promotions, reminders and contests. These mayinclude marketing information about OpenAgent and/or our selected business and commercial partners, including without limitation real estate agents.
17.3. In connection with electronic communications, we may provide details of your registration to various real estate agents to facilitate the rental or sale of property where you authorise us to do so, including without limitation, by nominating or advising us of your communication preferences.
17.4. If you wish to unsubscribe from our marketing email list, you may do so by sending an email to email@example.com. In addition, each email sent to you via our marketing email list will contain an unsubscribe link so that you can opt-out of that subscription.
18. Third Party Links
18.1. Our Website may include links to third-party sites which are not related to us and in relation to which we have no control or interest. The appearance of those links on our Website or related services does not indicate any relationship between OpenAgent and that third-party or any endorsement by OpenAgent of that third-party, its site or the products or services which it is advertising on the Website or our related services.
18.2. You agree that if you choose to access links to third-party sites via the Website or our related services, you do so at your own risk.
19.1. Your use of our 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, Australia.
19.2. If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, 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 Terms shall continue in effect.
19.3. OpenAgent reserves the right to investigate and take appropriate internal measures, as well as legal action, against anyone who breaches these Terms or is involved with the breach of these Terms. 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 subsequent or similar breaches.
19.4. The rights and obligations under these Terms which by their nature are intended to survive the termination or expiry of any of our Website or our related services will continue in full force and effect after these Terms end.