General

1.1 Openn is an online platform where licensed real estate agents acting for sellers of commercial, rural or residential real estate are able to conduct and negotiate a sale digitally (Digital Sale) by an auction process known as Openn Negotiation or private treaty process known as Openn Offers (each a Sales Method).

1.2 These Terms of Use, the privacy policy located at www.openn.com.au/privacy-policy (Privacy Policy) and the Apple Terms and Conditions (or Android Terms and Conditions, as the case may be) (collectively known as the Terms) govern your use of www.openn.com.au (Website) and the Openn mobile application (App) and all content, services and products available at or through Openn (collectively referred to as, Openn).

1.3 Openn is operated by Openn Pty Ltd (ACN 612 338 477) (we, us or our) under license from Openn Tech Pty Ltd (ACN 607 908 636).

1.4 In the Terms a person (User) is anyone other than us using Openn (including Registered Users). Users may be Real Estate Agents, Sellers, bidders or anyone who views a Digital Sale (Observers). Openn enables bidders that meet the pre-registration requirements (Qualified Bidders) to participate in the Digital Sale negotiations and, if successful, enter into a legally binding contract to purchase real estate.

1.5 Please read the Terms carefully. By using Openn or accessing any pages or materials contained in Openn, you agree to be bound by the Terms. If you do not accept the Terms, you are not permitted to use Openn and must refrain from using it.

1.6 Notwithstanding the incorporation of each or either of the Apple Terms and Conditions and the Android Terms and Conditions in these Terms of Use and subject to clause 1.8, you acknowledge and agree that by accepting the Terms, the end user licence agreement so formed is between us and you only.

1.7 You acknowledge that neither Apple nor Android is a party to these Terms of Use and that we, and not Apple and/or Android, are responsible for the App and its content.

1.8 You acknowledge and agree that Apple and/or Android and their respective subsidiaries, are third party beneficiaries of the Terms and that, upon your acceptance of the Terms, Apple and/or Android will have the right (and will be deemed to have accepted the right) to enforce the Terms as a third party beneficiary.

1.9 Any complaints, questions or claims relating to the App can be directed to admin@openn.com.au.

User Registration

2.1 Registration may be required to use Openn. Registration is not completed until you have downloaded the App to your mobile device or visited www.openn.com.au/app/signup, submitted the registration form and we have confirmed your registration as a registered user (Registered User) by sending you your login information to your account (User Account). All information supplied by you upon registration must be true, complete and accurate information (User Data). You must maintain and promptly update your User Data as appropriate from time to time.

2.2 We will use your email address as your username and therefore when registering as a user, you must provide a genuine email address. Users must not impersonate another living person or Registered User.

2.3 We may refuse your registration where we consider your suggested username or password to be inappropriate. Grounds for refusal may include, but are not limited to, offensive content, obscenity, abuse, defamatory content, contempt, incitement, copyright infringement, brand names or registered trademarks, company or organisation names, names of high-profile or public figures or names promoting political, religious, social or economic groups or issues.

2.4 We reserve the right to refuse suggested usernames at our sole discretion and do not have to provide any reasons for such refusal.

2.5 Registered Users may provide a business name or a company name, which is to be associated with the User Account. Registered Users acknowledge and agree that where a business name or company name is associated with their User Account, the Terms are considered to be a contract with the Registered User as an individual (not the business or company) and Registered Users remain solely responsible for all activity undertaken in respect of their User Account.

2.6 We may, at our absolute discretion, refuse to register a person or corporate entity as a Registered User

2.7 Without limiting our other rights under the Terms, if you provide any information that is untrue, inaccurate, or incomplete, or we have reasonable grounds to suspect that such is the case, or we determine (in our sole discretion) your activity on the platform as anything other than genuine and reasonable, we reserve the right to suspend or terminate your User Account and to refuse any and all current or future use of Openn (or any portion of it).

2.8 You agree not to assign, transfer or sublicense your rights as a Registered User of Openn. You further agree not to register more than one account, create an account on behalf of someone else, or create a false or misleading identity in conjunction with your use of Openn.

Your Obligations

3.1 You agree to keep the User Data confidential. You understand and agree that you are fully responsible for all actions and submissions made from your User Account. If you become aware of any unauthorised use of your User Account, you should notify us immediately by email: support@openn.com.au.

3.2 You agree that you will not, directly or indirectly: -hack into or insert malicious code, including viruses, trojans, worms, logic bombs or other harmful or destructive code or data, into the App, Website or any operating system, including through password mining, phishing or other means; -use automated scripting tools or software in connection with the App or Website; -circumvent the App or Website’s structure, presentation or navigational function so as to obtain information that we have chosen not to make publicly available through the App or Website; -attempt to modify, reverse engineer or reverse-assemble any part of the App or Website; -use the App or Website to supply another service, or to obtain information which you either incorporate into your own service or product to enhance your service or product or your business in any way, such as to create potential customer lists or property lists. Any commercial use of the App or Website beyond what is expressly approved in these Terms requires our prior written approval.

IMPORTANT – YOUR ACKNOWLEDGEMENTS

4.1 You acknowledge and agree that: -in contacting or interacting with other users, we are not your agent, attorney, partner or representative and are not a party to or beneficiary of any interaction, transaction or relationship (legal or otherwise) between you and other users; -We are not responsible for your interactions with other users or their interactions with you; and we are not responsible for any loss or damage arising from the misuse, improper use, or unauthorised use of your username and/or Password for the App; -Openn will not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes). You are responsible for keeping the details of your user account confidential and secure and you are responsible for all use and activity carried out under your user account. You must not share your username, password or coupon code with any other person or authorise any other person to use the App. You must not use the App in any manner which could damage, disable, overburden, or impair the App or interfere with any other party's use and enjoyment of the App. You must not use the App in any manner or for any purpose which is contrary to these terms.

4.2 We reserve the right to make changes to Openn without notice to You at any time. We retain complete control over Openn and may alter, amend or cease the operation of Openn at any time in our sole discretion.

4.3 Property information and other material available through Openn is submitted by Real Estate Agents or their associated parties) and other Registered Users. We do not check the accuracy or completeness of this information and are not responsible for the accuracy or completeness of information submitted by Real Estate Agents and other Registered Users. You should undertake such inquires and investigations as are necessary to confirm that the information is accurate and complete before making any decisions relating to that information.

Terms and Conditions relating to Real Estate Sales

5.1 A person (Real Estate Agent) must not use Openn to conduct a sale of a particular property (Property) on behalf of the seller of the Property (Seller), unless: -the Real Estate Agent is a Registered User; -the Real Estate Agent is authorised in writing by us to use Openn to conduct a sale of the Property on behalf of the Seller; -the Real Estate Agent holds all licences, registrations, approvals and accreditations required to use Openn to conduct a Digital Sale of the Property on behalf of the Seller (including, where the Real Estate Agent is not a licensed real estate agent, the Real Estate Agent is lawfully acting as a registered sales representative of a licensed real estate agent); -the Seller has authorised in writing the Real Estate Agent to offer the property by Digital Sale using Openn; -the Seller has agreed in writing to be bound by the agreement or authority to conduct the sale on Openn relevant to the Sale Method, and jurisdiction the Property is in (Openn Authority) and any other materials in respect of the sale; -the Real Estate Agent does not allow a person to participate in the negotiation unless all of the requirements set out in the Terms of Use to become Qualified Bidder / Buyer, relevant to that Sale Method and jurisdiction the Property is in have been met; and -the Real Estate Agent complies with the Terms (including payment of any fees due to us in relation to the Digital Sale).

5.2 A person that is not a Real Estate Agent, Auctioneer, Observer, Qualified Buyer, Qualified Bidder or user who has registered for interest in relation to a Digital Sale must not use Openn to view a Digital Sale unless the person complies with these Terms.

5.3 Each User acknowledges that: -the Real Estate Agent (not us) is solely responsible for the conduct of the Property sale and negotiation, for complying with legislation and for any information relating to a Property which is made available through Openn; -a person is not eligible to participate in negotiations on Openn unless they have registered with the Real Estate Agent including agreeing to be bound by these Terms, any Auction Conditions (where relevant to the Sales Method), any Terms of Use relevant to the Sales Method, other materials in respect of the Property sale and their registration to become qualified has been accepted by the Real Estate Agent on behalf of the Seller; -the User accepts responsibility for any bidding activity on their registered device using their unique identification number regardless of the manner in which the bid was made; and -their use of Openn may be subject to interruption or delay due to the nature of the internet and mobile phone communications. We do not make any warranty that Openn will be error free, without interruption or delay or free from defects.

Content

6.1 You must not add any content to Openn: -unless you hold all necessary rights, licences and consents to do so; -that would cause you or us to breach any law, regulation, rule, code or other legal obligation; -that is or could reasonably be considered to be misleading or deceptive, obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, blasphemous, in breach of confidence or in breach of privacy; -that would bring us, or Openn, into disrepute; or -that infringes the intellectual property rights or other rights of any person.

6.2 We update Openn regularly, however we make no representation as to the accuracy or completeness of any information or services of Openn. All information and services are provided on the basis that you undertake the responsibility for assessing, at your own risk.

Promotion

7.1 We may use information available through Openn (including details of properties that have been uploaded and information about Real Estate Agents and other Users including (business name, logo, images or other media) as part of the services and/or other marketing materials relating to Openn, except where the relevant Real Estate Agent or other User has requested that the information is not used for such purposes.

Intellectual Property Rights

Generally

8.1 Nothing in the Terms constitutes a transfer of any intellectual property rights. You acknowledge and agree that, as between you and us, we and our licensors own all intellectual property rights in Openn.

8.2 We grant you a non-exclusive, non-transferable licence to use Openn in Australia, on a device owned or controlled by you, as permitted by the Usage Rules set forth in Apple’s App Stores Terms of Service (if applicable) and in accordance with the Terms as amended from to time to time.

8.3 You acknowledge that in the event of a third party claim that the App or your use and possession of the App infringes that third party’s intellectual property rights, we alone (and not Apple or Android) are responsible to implement steps and procedures for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.

8.4 All content included on Openn such as, but not limited to, text, images, software, artwork, photographs, text, images, video, audio and logos is our property or our licensors and other content suppliers. Openn is our (or our licensors) copyright property and is protected by Australian and International copyright laws. You may not in any form or means adapt, reproduce, communicate or publish any part of it without written consent from us.

Trade marks

8.5 All trade marks, trade names, branding and get-up (trade dress) on Openn belong to us or our licensors. We do not give you any licence or right to use them.

9.1 On occasion, Openn may be linked to one or more external websites or resources operated by unrelated external websites or an external website may provide a link back to Openn. These links are provided for your convenience only.

9.2 These links should not be deemed to imply that we endorse the external website or any content therein.

9.3 We do not control and we are not responsible or liable for any external website or any content, advertising, products or other materials on or available from such external websites.

9.4 Access to external websites is at your own risk.

Public Communications

10.1 We make Openn available for others to publish information without assuming a duty of care to Real Estate Agents, Bidders or any other Users. We give no warranty, guarantee or representation about the accuracy, reliability or timeliness or otherwise, of the information contained on Openn.

10.2 By uploading materials to Openn or submitting any materials to us (User Materials), you automatically grant (or warrant that the owner of such rights has expressly granted) us a perpetual, royalty-free, irrevocable, non-exclusive right and licence to use, reproduce, modify, adapt, communicate and distribute the User Materials for the purpose of allowing us to operate and provide Openn.

10.3 You consent to any act or omission which would otherwise constitute an infringement of your moral rights, and if you add any content in which any third party has moral rights, you must also ensure that the third party also consents in the same manner.

10.4 The licence in clause 10.2 will survive any termination of the Terms.

10.5 You represent and warrant to us that you have all necessary rights to grant the licences and consents set out in clauses 10.2 and 10.3.

Fees, Services and payment terms for real estate agents

11.1 The terms in this section apply to Real Estate Agents using our services.

11.2 We charge fees for our products and services (Services) including, without limitation, the following Services: -uploading a Property onto Openn to conduct a Digital Sale by a Sales Method or otherwise (Upload); training provided to real estate agents (Training); ancillary and complimentary products and services which aid in the use of Openn such as brochures (Materials).

11.3 You agree to pay us the fees for our Services and you accept these terms.

11.4 Upload: When generating an Upload you can choose between the following fee structures:

  • ‘Upload’ fees are discounted from our standard ‘No Sale No Fee’ or ‘Sale’ fees and are non-refundable once we have provided the Service. You must make a pre-payment in full to access this Service;

  • 'No Sale, No Fee' or 'Sale' fees. If a Property is passed in or withdrawn from Openn, and the Property is not sold within the following 14 days (via Openn OR via any other means), you may be entitled to a refund. To qualify for the refund:

1) You must first make a pre-payment in full to access this Service. The property must then be withdrawn from the Openn platform (properties that are ‘passed in’ must still be withdrawn completely from the Openn platform).

2) You must request a refund in writing to us within 2 weeks of withdrawing the Property from Openn (directed to accounts@openn.com.au). You will forfeit your right to a refund if the property is not withdrawn within 2 weeks from the completion of the Final Bidding Stage (Openn Negotiation), Final Offer Stage (Openn Offers) or Final Submission Date (Openn Tenders). We will pay any refunds due to you for the No Sale No Fee Service within a reasonable time after your request and our validation of the refund eligibility has been completed;

  • 'Bulk Discount' fees for bulk Upload orders are discounted from our standard ‘No Sale No Fee’ or ‘Sale’ fees and entitle you to credits towards Uploads and (at times) bonus Upload credits to be used within 12 months of ordering (Expiry Date). Bulk discounts are non-refundable once we have provided the credit tokens or after the Expiry Date. The Upload Service is taken to be provided by us when your Upload goes live on Openn.

You are not entitled to a refund if you simply change your mind or are dissatisfied with the Service you have ordered.

11.5 Training: The fees (Training Fee) for a Training Service are non-refundable except if we cancel or cannot provide you with the Training. If you elect to choose online certification, the Training Service is taken to be provided once you are given access to the online Training platform. If you choose webinar based or agency Training, the Training Service is taken to be provided by us when we first make the Training available to you (whether or not you are able to attend). If you are unable to attend the Training within 3 months, the Training Fee is non-refundable.

11.6 Materials: The fees for Materials are non-refundable once we have provided the Materials to you.

11.7 Fees for our Services are payable when they are due which unless agreed otherwise is at the time of ordering a Service.

11.8 Prior to ordering a Service that has a fee, you have an opportunity to review and accept the fees that you will be charged based on any applicable schedule of fees and charges as shown on our Website and App, which we reserve the right to change from time to time and will update you by placing updates on our Website and App. We may choose to temporarily change the fees for our Services for promotional events (for example, discounts on memberships) or new Services, and such changes are effective when we post the temporary promotional event or new Service on Openn.

11.9 All prices are listed in Australian Dollars and include GST, unless otherwise indicated.

11.10 Payment processing will not begin until we receive all the information we need (including relevant credit card details).

11.11 Your Property Upload will be launched on Openn only after payment has been successfully processed. Once your payment has been successfully processed, you will receive confirmation of your order and details of your supply order number. You will also receive, by email, a tax invoice for your order. Your tax invoice is your proof of purchase of our Service.

11.12 Please note: -for security reasons we reserve the right to decline any credit cards issued by banks outside of Australia; -debit cards and cheque cards have daily spending limits that may substantially delay the processing of your order; -you may be required to provide further identification for additional security reference checks.

11.13 If we incur a third-party cost to process a card payment or other transaction, we may charge a reasonable transaction fee.

11.14 If any payment of fees on any account with us is overdue, we may suspend any one or more services until payment is made.

Taxes

12.1 You are responsible for paying any taxes, including any stamp duty, goods and services or value added taxes, which may be applicable depending on the jurisdiction of the services provided. These taxes will be added to fees billed to you, if applicable.

12.2 You must also comply with your obligations under income tax provisions in your jurisdiction.

Limitations of Liability, Disclaimers of Warranties and Indemnity

13.1 The Competition and Consumer Act 2010 (Cth) may confer rights, guarantees and remedies on you in relation to our provision of services which cannot be excluded, restricted or modified. We do not exclude those rights. All other terms, rights and guarantees and remedies are excluded.

13.2 Subject to clauses 13.1 and 13.4, our maximum total aggregate liability for all loss, damage, cost or expense arising under or in relation to the Terms, whether in contract, tort (including negligence), equity, under statute, or on any other basis is limited to an amount of AU$20 or the total amount paid for any fees paid under the Terms in the 12 month period preceding the event giving rise to the liability, whichever is greater.

13.3 Without limiting clause 13.1: -content and materials on Openn are provided ‘as is’ and, to the extent permitted by law, without warranties of any kind, either express or implied; -we disclaim all warranties, express or implied, including but not limited to implied warranties of acceptable quality and fitness for a particular purpose, title, compatibility, security, accuracy or non-infringement of intellectual property rights; -we do not warrant that Openn is secure, free from viruses, bugs, worms, interruption, errors, theft or destruction or that Openn will meet your requirements. We are not responsible for any damage to your computer system which arises in connection with your use of Openn or any linked website. You assume all risks associated with using Openn or any linked website; -content and material downloaded or otherwise obtained through the use of Openn is done at your sole risk and you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such content or material; -We are not a party to any transactions between Users arising through their use of the App or Website and accepts no liability for those transactions whatsoever; and -you expressly understand and agree that we and our affiliates shall not be liable for any indirect, incidental, special, consequential, exemplary or punitive damages, or any other damages whatsoever, or for any damages for loss of profits, goodwill, use, data or other intangible losses (even if we have been advised of the possibility of such damages), including those arising out of, or resulting from: -the use or the inability to use Openn; -the use of any material on Openn or any website or websites linked to or accessible from Openn; -unauthorised access to or alteration of your transmissions or data; -statements or conduct of any third party on the Website; or -any other matter relating to Openn.

13.4 Our liability for breach of any consumer guarantee which cannot be lawfully excluded is limited to the supply of the services again or the payment of the cost of having the services supplied again.

13.5 You further agree that in the event of any failure of the App to conform to any applicable warranty (including any statutory warranty as to merchantable quality or fitness for purpose), you may notify each of Apple and/or Android (as the case may be), and Apple and/or Android will refund the purchase price (if any) for the App to you against substantiation of the payment of the purchase price for the App by provision by you of the Store receipt of payment of the purchase price; and that, to the maximum extent permitted by applicable law, neither Apple nor Android will have any other warranty obligation whatsoever with respect to the App to you including liability for any other claims, losses (including current or prospective economic loss), liabilities, damages, costs or expenses attributable to any failure to conform to any warranty aforesaid.

13.6 By accessing Openn, you indemnify, hold harmless and, at our option, defend us and our affiliates, and our and their officers, directors, employees, stockholders, agents and representatives from any and all third party claims, liability, damages and/or costs (including, but not limited to, reasonable lawyers' fees and expenses) arising from or in connection with your use of Openn.

13.7 Our liability to you under or in relation to these Terms is reduced to the extent that your acts or omissions, or those of a third party, contributed to or caused the liability.

13.8 You acknowledge and agree that neither Apple nor Android nor any other Store shall be liable to furnish to you any maintenance and support services with respect to the App.

13.9 You further agree that we alone (and not Apple or Android) are responsible for taking steps and implementing procedures to address any claims by you or any third party relating to the App or your possession and/or use of the App including, but not limited to: -product liability claims; -any claim that the App fails to conform to any applicable legal or regulatory requirement; and -claims arising under consumer protection or similar legislation, -and which claims shall, in any event, be limited to the maximum extent permitted by applicable law.

13.10 You represent and warrant that you are: -not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and -not listed on any U.S. Government list of prohibited or restricted parties.

Privacy

14.1 We undertake to take all due care with any information which you may provide to us when accessing Openn. However, we do not warrant and cannot ensure the security of any information which you may provide to us. Information you transmit to us is entirely at your own risk although we undertake to take reasonable steps to preserve such information in a secure manner.

14.2 We do not share or sell any personally identifiable information obtained via Openn to third parties, nor use the personal information otherwise than for its intended use.

14.3 You consent to the collection and use of personally identifiable information about you in accordance with the Privacy Policy. 14.4 For more information, please review the https://www.openn.com.au/privacy-policy (Privacy Policy) contact us at: support@openn.com.au.

Termination

15.1 The Terms terminate automatically if, for any reason, we cease to operate Openn.

15.2 We may otherwise terminate the Terms immediately, on notice to you, if you have breached the Terms in any way.

15.3 We have no liability for any costs, losses or damages of any kind arising as a consequence of terminating access to Openn.

Force Majeure

16.1 We shall not be liable for any delay in performing any of our obligations under the Terms if such delay is caused by circumstances beyond our reasonable control and we shall be entitled to a reasonable extension of time for the performance of such obligations.

Amendments

17.1 We may amend these Terms of Use from time to time. If we do, the amended Terms of Use will be published on the App or Website and, to the extent practicable, we will identify the amendments made since the Terms of Use were last changed. You agree that it is your responsibility to check for updates to our Terms of Use. You further agree that your continued use of Openn is acceptance of our amendments to the Terms of Use.

Miscellaneous

18.1 If any part of the Terms is found to be void, unlawful, or unenforceable then that part will be deemed to be severable from the balance of the Terms and the severed part will not affect the validity and enforceability of any remaining provisions.

18.2 In the event of any inconsistency or conflict as between these Terms of Use and the Apple Terms and Conditions and/or the Android Terms and Conditions (as the case may be), these Terms of Use shall prevail to the extent of such inconsistency or conflict only.

18.3 The Terms will be governed by and interpreted in accordance with the laws of Western Australia.

18.4 You agree to the jurisdiction of the courts of Western Australia to determine any dispute arising out of the Terms.

Real Estate Agent's Warranties

19.1 You represent and warrant to us that at all times during your use of Openn: you hold all required licences or accreditations to sell all the Property you upload onto Openn, including, but not limited to, a real estate agency licence; you will comply with all applicable laws in each jurisdiction in respect of the sale of the Property uploaded onto Openn; the content you post in respect of the Property is true and correct to the best of your knowledge; you have obtained all necessary documents pursuant to the applicable laws in each jurisdiction to sell the Property on Openn; you have obtained all necessary documents from Qualified Bidders to allow them to bid on the Property (where the Sales Method requires this); and you will maintain all necessary records as required by the applicable laws in each jurisdiction.

Other definitions

20.1 In these Terms of Use, the following words have the meanings set out below: -Android means Google Inc., a Californian corporation with its principal place of business at Mountain View, California, USA, and any Google subsidiary including, but not limited to its related entity, Android Inc. -Android Terms and Conditions means the terms and conditions prescribed by Android in its App Store for the acquisition and use of applications, devices and systems supplied through the App Store including any App Store terms of service published from time to time and claims by Android for copyright, disclaimers and other proprietary notices. -Apple means Apple Inc., a Californian corporation with its principal place of business at One Infinite Loop, Cupertino, California, USA, and any Apple subsidiary. -Apple Terms and Conditions means the terms and conditions prescribed by Apple in its App Store for the acquisition and use of applications, devices and systems supplied through the App Store including any App Store terms of service published from time to time and claims by Apple for copyright, disclaimers and other proprietary notices. -Store or App Store means an electronic store and its storefronts from which you purchased or downloaded the App including, but not limited to an electronic store and/or its storefronts branded, and owned and/or controlled by Apple or an affiliate of Apple or owned and/or controlled by Android or an affiliate of Android.