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Terms & Conditions

Terms of Use

General

1.1 Openn is an online venue where licensed real estate agents acting for clients with residential real estate are able to conduct transparent digital auctions. Users may be agents, owners, bidders or viewers. Openn enables persons that meet the pre-registration requirements to participate in digital auctions and if successful enter into a legally binding contract to purchase residential real estate.

1.2 These Terms of Use, the Privacy Policy located at https://app.openn.com.au/privacy (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 (Residential Sales) 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 PP Valley Pty Ltd ACN 612 338 477 (PPV, we, us or our) in conjunction with its local partners.

1.4 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.

1.5 In the Terms, User refers to any person other than PPV using Openn (including Registered Users).

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 You and PPV 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 Openn 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 Openn 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, submitted the registration form and PPV has confirmed 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 PPV will use your email address as your user name 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 PPV may refuse your registration where PPV considers your suggested user name 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 PPV reserves the right to refuse suggested usernames at its sole discretion and does 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 Openn's 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, 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 PPV immediately by email: admin@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 PPV has 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 the prior written approval of PPV.

IMPORTANT – YOUR ACKNOWLEDGEMENTS

4.1 You acknowledge and agree that:

in contacting or interacting with other users, PPV is not your agent, attorney, partner or representative and is not a party to or beneficiary of any interaction, transaction or relationship (legal or otherwise) between you and other users;

PPV is not responsible for your interactions with other users or their interactions with you; and

Openn will not operate on a continuous basis, and may be unavailable from time to time (including for maintenance purposes).

4.2 PPV reserves the right to make changes to Openn without notice to You and at any time. PPV 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 Auction Agents (as defined below) and other Registered Users. Openn and its local partners do not check the accuracy or completeness of this information and are not responsible for the accuracy or completeness of information submitted by Auction 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 Auctions

5.1 A person (Auction Agent) must not use Openn to conduct an auction of a particular property (Property) on behalf of the owner of the Property (Seller), unless:

the Auction Agent is a Registered User;

the Auction Agent is authorised in writing by PPV to use Openn to conduct an auction of the Property on behalf of the Seller;

the Auction Agent holds all licences, registrations, approvals and accreditations required to use Openn to conduct a digital auction of the Property on behalf of the Seller (including, where the Auction Agent is not a licensed real estate agent, the Auction Agent is lawfully acting as a registered sales representative of a licensed real estate agent);

the Seller has authorised in writing the Auction Agent to offer the property for sale by digital auction using Openn (Auction);

the Seller has agreed in writing to be bound by the Openn Auction Conditions relevant to the Property and other Auction Materials in respect of the Auction;

the Auction Agent does not allow a person to bid at an Auction unless all of the requirements set out in clause 5.2 of the Terms have been met; and

the Auction Agent complies with the Terms (including payment of any fees due to PPV or its local partner in relation to the Auction).

5.2 A person (Bidder) must not use Openn to submit bids at an Auction of a Property conducted by an Auction Agent using Openn unless:

the Bidder is a Registered User;

prior to the Auction, the Bidder has:

in accordance with the directions of the Auction Agent agreed in writing to be bound by the Openn Auction Conditions (relevant to the Property) and other Auction Materials in respect of the Auction;

in a manner approved by the Auction Agent set out any Special Conditions that are to be incorporated into bids submitted by the Bidder during the Auction; and

received written notification from the Auction Agent stating whether or not the Seller has approved any Special Conditions proposed by the Bidder;

the Bidder is willing and able to enter into a contract to purchase the Property at the price specified in the Bidder’s bid in accordance with the Openn Auction Conditions (relevant to the Property) and other Auction Materials read subject to any Special Conditions submitted by the Bidder prior to the Auction and approved by the Auction Agent on behalf of the Seller as forming the basis of the Bidder’s bidding terms; and

the Bidder complies with the Terms and the Openn Auction Conditions (relevant to the Property) in relation to the Auction.

5.3 A person that is not an Auction Agent or a Bidder in relation to an Auction must not use Openn to view an Auction unless the person complies with the Terms (including payment of any fees due to PPV or its local partner in relation to the Auction).

5.4 Each User acknowledges that:

the Auction Agent (not PPV or its local partners) is solely responsible for the conduct of the Auction and for any information relating to a Property which is made available through Openn;

a person is not eligible to bid at an Auction unless they have registered with the Auction Agent including agreeing to be bound by the Openn Auction Conditions and other Auction Materials in respect of the Auction and their registration has been accepted by the Auction Agent on behalf of the Seller;

by bidding at an Auction a User makes an offer to purchase which if accepted will constitute a legally binding contract to purchase the Property from the Owner in accordance with Openn Auction Conditions and other Auction Materials read subject to any Special Conditions submitted by the User prior to the Auction and acknowledged by the Auction Agent on behalf of the Owner as forming the basis of the User’s bidding terms;

the User accepts responsibility for any bidding activity on their registered device using their access code regardless of the manner in which the bid was made; and

their use of Openn (at any time, but particularly during an auction) may be subject to interruption or delay and due to the nature of the internet and mobile phone communications PPV does 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 PPV updates Openn regularly, however PPV makes 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 PPV and its local partners may use information available through Openn (including details of properties that have been auctioned and information about Auction 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 Auction 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 Openn App or your use and possession of the Openn 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.

Copyright

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 the property of PPV or its 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 PPV or its licensors. PPV does not give you any licence or right to use them.

Links to External Websites

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 PPV endorses the external website or any content therein.

9.3 PPV does not control and is 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.

10. Public Communications

10.1 PPV is making Openn available for others to publish information without assuming a duty of care to Auction Agents, Bidders or any other Users. PPV gives 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 the App.

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.

11. Fees and Services

Fees

11.1 We may charge fees for certain services, such as using Openn to conduct an auction or registering to view an auction.

11.2 When you use 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, which we may change from time to time and will update you by placing updates on our Website. 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.

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

Payment processing

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

11.5 We process payments after you click the ‘Accept’ button. Once your payment has been successfully processed, you will receive confirmation of your order which will advise you of your supply order number and purchase details. You will also receive, by email, a tax invoice confirming your order. Your tax invoice is your proof of purchase.

11.6 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.

12. 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.

13. 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 the provision by PPV 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;

PPV is 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 PPV and its 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 Openn 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 Openn App to you against substantiation of the payment of the purchase price for the Openn 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 Openn 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 PPV’s option, defend PPV and its affiliates, and its 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 Openn 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 Openn App or your possession and/or use of the Openn App including, but not limited to:

product liability claims;

any claim that the Openn 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.

14. 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 Privacy Policy or contact us at: admin@openn.com.au.

15. 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.

16. Force Majeure

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

17. 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 the App is acceptance of our amendments to the Terms of Use.

18. 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.

19. Definitions

19.1 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 Openn 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.

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