Terms of Use

Terms of Use

Effective Date: March 23, 2023

 

Open Offers is provided by Openn North America Inc., (“Openn”, “we,” or “us”), together with its Affiliates, as defined below. These Terms of Use (the “Terms”) govern your use of Openn Offers. These Terms constitute a legally binding agreement between you and Openn.

 

THIS TERMS OF USE CONTAINS A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER WHICH MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. PLEASE READ THESE TERMS CAREFULLY.

 

For the purposes of these Terms, capitalized terms are defined as set forth in Section 28.

 

  1. ACKNOWLEDGEMENT
    • By downloading or accessing the App or using Openn Offers, you acknowledge that you have read, understood, and agree to be bound by these Terms of Use. If you do not agree to these Terms of Use, you are prohibited from using Open Offers.
    • These Terms of Use may affect your legal rights. You should read them carefully.
    • You acknowledge that Openn Offers is facilitated by the Seller’s
    • Registrants use the App to list Property for sale on behalf of Sellers pursuant to a written agreement between a Registrant and a Seller, with the intent that the Property will be sold via Open Offers, the process by which multiple Prospective Buyers may submit Offers to purchase the Property, ultimately resulting in the acceptance of a Buyer’s Offer who will enter into a legally binding written Contract to purchase the Property with the Seller on terms acceptable to both parties.

 

  1. REGISTRATION
    • Only individuals who are at least eighteen (18) years old and able to enter into legally binding contracts may use Openn Offers. By registering to use the App, you represent and warrant that: (a) you are at least 18 years old and acknowledge that by agreeing to these Terms, you are entering into a legally binding agreement, and (b) all registration information you provide is true and correct.
    • We may refuse your registration where we suspect you have provided inaccurate, fraudulent, offensive, obscene or inappropriate information, or where we believe you intend to use Openn Offers for unlawful or inappropriate purposes, in our sole discretion.
    • You may provide a business name or a company name as part of the registration data for your Account. However, you acknowledge and agree that, where a business name or company name is associated with your Account, these Terms are considered to be a contract with you, as an individual, and with the business entity, and you represent to Openn that you have the authority to bind the business entity to these Terms.
    • You understand and agree that you are fully responsible for all actions and submissions made from your User Account and agree not to share your username and/or password with any third party. If you become aware of any unauthorized use of your username or password or unauthorized access to your Account, notify us immediately by email at: support@openn.com.
    • Your Account can only be used by you and not by any other individual, including without limitation any relative, friend, employee, or co-worker. You acknowledge that you cannot sell, assign, transfer, or sublicense your rights as a User. 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 Offers.

 

  1. OPENN’S SERVICE
    • Openn does not conduct the Openn Offers Openn:
      • Provides an App that allows Registrants and Sellers to Launch Properties for sale and manage Offers.
      • Is not an auctioneer, nor does Openn Offers constitute an auction;
      • Is not a real estate broker or real estate salesperson and does not claim to be;
      • Is not your agent, attorney, partner, or representative, nor do we have a fiduciary relationship with you;
      • Is not involved in any transactions between Buyers, Sellers, Sellers’ Registrants, and/or Buyers’ Registrants; and
      • Does not own, manage, control, or offer for sale the Property or any property listed on the
    • Openn’s role with respect to Openn Offers is limited to providing the App to facilitate the offer process for the sale of the

 

  1. USER MATERIALS
    • Seller’s Registrant may upload or enter (“Launch”) Property Listings into the App. If you are a Seller’s Registrant, by Launching a Property Listing into the App, you grant us a worldwide, nonexclusive, transferable, perpetual, royalty-free right and license to reproduce, use, adapt, copy, distribute, transmit, transfer, sublicense, broadcast, display to other Users, and create derivatives of the Property Listing for the purpose of operating Openn Offers, offering the Property for sale to Users, and any other purpose set forth in these Terms and our Privacy Policy. The license granted to us in this Section 4.1 shall survive termination of these Terms.
    • Buyer’s Registrant may enter or submit Offers on behalf of Buyer through the App. By submitting an Offer through the App, you grant us a worldwide, nonexclusive, transferable, perpetual, royalty-free right and license to copy, transmit, sublicense, and display to Users the Offer for the purposes set forth in these Terms.
    • You hereby waive any moral rights to the User Materials, and if the User Materials include any content in which any third party has moral rights, you represent and warrant to Openn that the third party has also waived such moral rights.
    • You are solely responsible for all User Materials you submit to us. By uploading, entering, or Launching any User Materials into the App, you represent and warrant that:
      • You hold all necessary rights, licenses, and consents to grant the license in Section 4.1 or Section 4.2;
      • The User Materials do not breach any applicable law, regulation, rule, or code;
      • The Property Listing is an accurate and current representation of the Property;
      • The User Materials are not and could not reasonably be considered to be misleading or deceptive, obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, harassing, liable to incite hatred or violence, discriminatory, blasphemous, in breach of confidence, or in breach of privacy;
      • The User Materials do not contain any viruses, worms, trojan horses, bots, spiders, malware, or other malicious code;
      • If you are submitting User Materials for public display, the User Materials do not contain any confidential information; and
      • The User Materials do not infringe or misappropriate the copyright, trademark, trade secret, patent, moral rights, or other intellectual property rights or other rights of any person.
    • We may not, and are under no obligation to, review any User Materials. We may remove User Materials at any time if we suspect, in our sole discretion, that the User Materials are inaccurate, fraudulent, infringing, defamatory, confidential, harassing, inappropriate, or in violation of these Terms or applicable law.
    • We may use information you submit to the App, including without limitation Property Listings, non-confidential Account information, business name, logo, images, or other media as described in these Terms and our Privacy Policy.
    • We will retain User Materials for ninety (90) days after the Closing Date or the date the Property is no longer actively listed for sale on the App. AFTER THE NINETY (90) DAY PERIOD, ALL USER MATERIALS WILL BE DELETED FROM THE APP. IT IS YOUR RESPONSIBILITY TO DOWNLOAD ANY USER MATERIALS OR DOCUMENATION RELATED TO THE PURCHASE AND SALE OF THE PROPERTY THAT YOU WILL NEED FOR YOUR OWN INTERNAL OR LEGAL PURPOSES.

 

  1. LICENSE AND RESTRICTIONS
    • We grant you a non-exclusive, non-transferable, revocable license to access and use the App and Openn Offers for your own noncommercial purposes, on a device owned or controlled by you, only as permitted by and in accordance with these Terms.
    • You agree that you will not, directly or indirectly:
      • Hack into or insert malicious code, including viruses, trojans, worms, logic bombs, malware, ransomware, or other harmful or destructive code or data, into the App, including without limitation through password mining, phishing, or other means;
      • Use web scraping, spiders, crawlers, or automated scripting tools or software;
      • Circumvent the App’s security, structure, presentation, or navigational function so as to access or obtain information that we have chosen not to make publicly available through the App;
      • Use the App in any manner which could damage, disable, overburden, or impair the App, Openn Offers, or interfere with the function of, or any other party’s use and enjoyment of, the App, including without limitation engaging in conduct that places an unreasonable or disproportionately large load on our infrastructure or systems;
      • Attempt to copy, modify, alter, deconstruct, distribute, create derivatives of, reverse engineer, or reverse-assemble any part of the App;
      • Use the App and any information, Property Listing, or content on the App to supply to or incorporate in another service, or to create a competing product or service;
      • Use the App to send any advertising, solicitation, promotional material, junk mail, spam, offensive or explicit material, or other unwanted communications, in our sole discretion;
      • Use the App for any unlawful, deceptive, fraudulent, or inappropriate purpose, in our sole discretion.
    • Any commercial use of the App beyond what is expressly approved in these Terms requires our prior written approval.

 

  1. OPENN OFFERS PROCESS
    • The Openn Offers process for a Property commences once the Property Listing has been Launched on the App and will continue until the Property has been sold or withdrawn from the App.
    • A Buyer must be recognized as a Prospective Buyer in order to participate in Openn Offers and use the
    • In order to become a Prospective Buyer, the Buyer must have appointed a Buyer’s Registrant to participate in Openn Offers on Buyer’s behalf and must:
      • Download the App or visit www.openn.com;
      • Create an Account;
      • Select the Property in the App; and
      • Enter their Offer in the App.
    • In the Offer Stage, other Prospective Buyers can join Openn Offers which may include after an Accepted Offer pursuant to Section 7.3.
    • A Seller may allow Observers to monitor the Offer Stage by adjusting the transparency settings for a Property Listing. The transparency settings enabled by the Seller shall be displayed on the App to all Prospective Buyers of the Property.
    • During the Offer Stage, the App will display the Unique Identification Number for each Prospective Buyer, provided, however, that the name of each Prospective Buyer will be disclosed to the Seller’s Registrant. Where a seller has adjusted the transparency settings to permit Observers, a Prospective Buyer’s Unique Identification Number may also be displayed to Observers.
    • Before a Buyer can make an Offer, the Registrant will determine whether:
      • The Buyer is eligible to participate in the negotiation for the Property based on the Seller’s pre-screening criteria, where permitted in the Jurisdiction; and
      • If so, the Buyer will become a Prospective Buyer, and the Registrant will approve the Prospective Buyer on the
    • The Buyer acknowledges that the sale of the Property through Openn Offers is not an auction and that the Registrant and the Seller have the authority to sell the Property to any Prospective Buyer at any time, and that Buyer might not have the chance to improve their Each Prospective Buyer will compete with other Prospective Buyers until the Seller accepts an Offer from a Buyer or the Property is withdrawn.
    • Once the Registrant approves the Prospective Buyer on the App, the App will:
      • Send a confirmation notification to the Prospective Buyer; and
      • Provide the Prospective Buyer with a Unique Identification Number that will be used to identify the Buyer in the
    • Prospective Buyers are entitled to participate in Openn Offers, subject to the following:
      • Any Offer made on the App using a Prospective Buyer’s Unique Identification Number will be deemed to have been made by that Prospective Buyer;
      • Subject to the laws in the Jurisdiction, instructions from the Seller, or any agreement that states otherwise, through the App the Registrant may reveal to other Prospective Buyers the Offer Price made by a Prospective Buyer or that an Offer has been made on the Property;
      • The Seller is prohibited from making an offer on the Property either directly or      through a Registrant or other representative, and any such offer shall be considered a Fake Offer; and
      • The Prospective Buyer is solely responsible for its use of the App, internet access, access to their Account, and the making of each Offer by such Prospective Buyer in Openn
    • Buyer’s Registrant must invite Buyer to use the App in order for Buyer to participate in Openn Offers. Buyer’s Registrant may assist the Buyer in taking the steps to become a Prospective Buyer and provide to the Seller and Openn on behalf of the Buyer an appropriate certification as to the Buyer’s status as a Prospective

 

  1. SELECTING THE ACCEPTED OFFER
    • The Seller may, or may direct Seller’s Registrant to, award the Accepted Offer at any time. The Awarded Buyer shall be notified that its Offer has been accepted via the App.
    • The App will identify to other Prospective Buyers when an Accepted Offer has been awarded by the Seller because the Property Listing will identify the Property as “pending,” “under contract,” or similar terms to identify an Accepted Offer. It is the Registrant’s responsibility to change the status of the Property Listing to “pending,” “under contract,” or similar terms to identify that the Seller has selected an Accepted Offer.
    • The Seller may accept any Offer, in Seller’s sole discretion, and is not obligated to accept the highest Offer Price.
    • The Awarded Buyer and the Seller shall execute the Contract, as described in Section 8 below.

 

  1. FORMATION OF CONTRACT
    • The Awarded Buyer must sign and return to the Registrant a Contract for the Property incorporating the terms and conditions of the Accepted Offer within a reasonable time frame after notice that the Accepted Offer has been accepted and in no event later than any timeframe identified by the Registrant.
    • The Contract is between the Awarded Buyer and Seller. Openn is not a party to the Contract and is not liable for the terms, enforceability, or performance of the Contract. In the event of a conflict between the Contract and these Terms of Use or any information contained within the App or Openn Offers, the terms of the Contract shall control between Awarded Buyer and Seller.
    • Upon execution of the Contract, the Registrant shall close the Property Listing. If the Registrant is no longer under an agency relationship with the Seller at the time of closing, it is the responsibility of the Registrant’s brokerage or team to submit a written request to Openn to close the Property Listing.

 

  1. FAKE OFFERS; FAKE LISTINGS
  • Fake Offers, Fake Listings, and/or encouraging another party to engage in Fake Offers or Fake Listings constitutes a breach of these Terms of Use and may also constitute fraud, misleading or deceptive conduct, or other violation of applicable law. Fake Offers or Fake Listings may result in: (a) the termination of your right to use the App and Openn Offers, and (b) legal penalties.
  • You represent, warrant, and covenant that you will not engage in Fake Offers or Fake Listings, or encourage, collude, or agree with any other party to engage in Fake Offers or Fake Listings.
  • If you become aware of Fake Offers, you must inform the Registrant as soon as possible, and the Registrant must exclude from Openn Offers any Fake Offer of which the Registrant becomes aware. If you become aware of a Fake Listing, you must inform Openn as soon as possible.

 

  1. YOUR RESPONSIBILITIES AND WARRANTIES
  • You must keep your App password and Account secure and must not disclose your password to any other person nor allow any other person to access the App on your behalf or use your Unique Identification Number.
  • If you become aware of any unauthorized use of the App, you shall immediately notify Openn. Openn is not responsible for any loss or damage arising from the misuse, improper use, or unauthorized use of their username, password, and/or Account for the
  • It is your responsibility to ensure that you have adequate mobile and/or internet service, speed, and coverage to access the App and Openn Offers.
  • You acknowledge that you have the opportunity and are encouraged to obtain independent legal advice regarding the terms of the Contract and the submission or acceptance of an Offer.
  • You represent and warrant to Openn and other Users that: (a) you will only use the App for the purpose of purchasing or selling real property and in accordance with applicable law, and for no other purpose; (b) you are over the age of 18, or the age of majority in your jurisdiction, and are able to enter into legally binding agreements; and (c) you will comply with these Terms, any other Openn policy, and all applicable laws and regulations.
  • If you are a Seller’s Registrant, you further represent and warrant to Openn and other Users that:
    • You are authorized by an agency relationship with Seller to sell the Property;
    • You are, and will remain, duly licensed to list and sell real property in the Jurisdiction and are in good standing with your state licensing authority;
    • The Seller has authorized you to (i) sell the Property through Openn Offers, (ii) submit the Property Listing to Openn Offers, (iii) manage the Property Listing through Openn Offers, (iv) serve as the point of contact in Openn Offers for inquiries about the Property; (v) communicate with and send documentation to Buyers on the Seller’s behalf, (vi) disclose via Openn Offers when an Offer has been accepted, and (vii) represent the Seller’s interests on Openn Offers. You acknowledge you make these warranties regardless of whether the Seller uses the Website or App or registers for an Account.
    • You have obtained all necessary documents pursuant to the applicable laws in any relevant Jurisdiction to sell the Property through Openn Offers;
    • You have reviewed all Property Listings and documentation you submit through Openn Offers;
    • You have informed the Seller of, and the Seller has agreed to be bound by, these Terms;
    • You will not allow any person to participate in the negotiation or purchase of the Property unless all of the requirements set forth in these Terms to become a Prospective Buyer and the requirements of any applicable law have been met;
    • You have obtained all necessary documents from Prospective Buyers to allow them to make Offers;
    • You will maintain all necessary records as required by applicable law in each jurisdiction; and
    • You will comply with all laws and regulations, including without limitation regulations regarding dual agency, where applicable.
  • If you are a Seller, you further represent and warrant to Openn and other Users that:
    • You own or have the authority to list the Property for sale;
    • You have authorized Seller’s Registrant to Launch the Property for sale in the App; and
    • You will carefully review the terms of a Contract before signing it.
  • If you are a Prospective Buyer, you further represent and warrant to Openn and other Users that:
    • You have the authority to submit Offers;
    • You have read the Property Listing and conducted all reasonable independent verifications of the Property Listing information prior to submitting an Offer;
    • By submitting an Offer, you are making a good faith offer to purchase the Property; and
    • You have at least had the opportunity, whether or not you have actually done so, to:
      • Inspect the Property and undertake due diligence on the Property and are satisfied with the Property (subject to any terms and conditions in your Offer);
      • Obtain independent legal advice regarding the terms of the Contract and your Offer to purchase the
    • If you are a Buyer’s Registrant, you further represent and warrant to Openn and other Users that:
      • You will only invite Buyers with a legitimate interest in purchasing real property and with whom you have an agency relationship to use the App.
      • You are authorized to submit an Offer on behalf of a Buyer by an agency relationship;
      • You have verified the information in any Offer you submit; and
      • You will comply with all laws and regulations, including without limitation regulations regarding dual agency, where applicable.

 

  1. WITHDRAWAL OF PROPERTY FROM SALE

The Seller may instruct the Registrant to withdraw the Property from the App at any point prior to acceptance of the Accepted Offer. The Property Listing shall be removed and all Offers for the Property shall immediately terminate.

 

  1. WITHDRAWAL OR SUSPENSION OF OFFERS

The Registrant may withdraw or remove Offers that he or she thinks are likely to have been made in error or bad faith, at the Registrant’s complete discretion as permitted by applicable law. Subject to the terms of the Offer, a Buyer may terminate their Offer at any time by notifying the Registrant, provided that the Buyer’s Offer has not been accepted by the Seller. Offers that are irrevocable for a particular time period shall automatically expire at the end of the time period, if not accepted, but cannot be withdrawn prior to expiration.

 

  1. FEES AND PAYMENTS

13.1 This Section 13 applies to Buyer’s Registrants and Seller’s Registrants using the App.

13.2 A limited version of the App is available to use free of charge. We may charge fees to Buyers’ Registrants and Sellers’ Registrants for use of the App and Openn Offers. You agree to pay us our current fees for use of Openn Offers in accordance with these Terms and any other Openn payment terms provided to you in writing.

13.3 Prior to ordering the Openn Offers service, you will have an opportunity to review and accept the fees that you will be charged based on the applicable then-current fees and charges shown on the App. By submitting payment card information and/or clicking to accept the fees, you consent to Openn charging that amount to your Account.

13.4 All prices listed in the App are in United States Dollars, unless otherwise indicated.

13.5 We cannot process your payment until we receive all the information we need from you, including relevant credit card details. By providing credit card or other payment details to us, you represent and warrant to us that you are the authorized accountholder and that you consent to such charges.

13.6 Some features of Openn Offers may require Subscription Fees. We will automatically charge the Subscription Fees to your payment card in accordance with your billing plan, which may be monthly or annually. Subscription Fees are charged in advance and are nonrefundable. Your subscription will automatically renew for additional billing cycles until you cancel. YOU ACKNOWLEDGE THAT WE WILL CONTINUE TO CHARGE THE SUBSCRIPTION FEES TO YOUR PAYMENT CARD UNTIL YOU CANCEL. You can cancel at any time by changing the settings in the App.

13.7 We reserve the right to decline any payment for security reasons, suspected fraud, insufficient funds, or any other lawful reason. Processing of payment may be delayed due to daily spending limits or other reasons beyond our control. We may require verification of your identity prior to processing payment for security purposes.

13.8 If we incur a third party cost to process a card payment or other transaction, we may charge a reasonable transaction fee. You will be notified of such transaction fee.

13.9 You are responsible for any taxes associated with the fees, including without limitation any sales, duty, goods, and services, or value added taxes, which may be applicable depending on your jurisdiction. These taxes will be added to the fees billed to you, if applicable.

13.10 We reserve the right to change our fees from time to time and will notify you of such change by placing updates on the Openn Platform and listing the updated fee on the payment screen when you make an Openn Offers purchase. We may choose to temporarily change the fees for promotional events, and such changes are only effective for the limited duration of the event while the promotional fee is posted on the App.

 

  1. TERMINATION; SUSPENSION

14.1 These Terms, including any amendments to these Terms, are effective until terminated by you or us.

14.2 You can terminate your Account by contacting us, subject to the restrictions below.

(a)    If you are a Buyer, you cannot terminate your Account until any Offers you have made are either accepted, rejected, or withdrawn. If you terminate your Account, you are still bound by the terms of any Accepted Offer you made.

(b)    If you are a Seller’s Registrant and you have an active Property listed for sale on the App, you cannot terminate your Account until the Property sells. you are released from the agency relationship with the Seller, or the Property is withdrawn from the App in accordance with Section 11.

14.3 We may terminate these Terms and/or your Account immediately without notice to you if you have breached these Terms or any applicable law, rule, or regulation, or if you have misused the App or Openn Offers. Your access to the App and Openn Offers will be disabled and any User Materials you have entered into the App may be removed.

14.4 We may suspend your use of the App and Openn Offers if, in our sole discretion: (a) we suspect your Account has been subject to unauthorized access or use, (b) we suspect you have provided information that is untrue, inaccurate, incomplete, or fraudulent, (c) you have used the App or Openn Offers for any improper purpose, (c) insufficient or rejected payment, or (d) any other reason allowable by law.

14.5 We may choose to terminate or cease offering the App and Openn Offers at any time.

14.6 We are not liable to you for terminating or suspending your Account and/or removing your User Materials pursuant to this Section 14.

 

  1. WARRANTY DISCLAIMERS

15.1 WE DO NOT VERIFY OR AUTHENTICATE THE IDENTITY OF ANY USER, NOR DO WE CONDUCT BACKGROUND CHECKS OR RUN CREDIT REPORTS ON ANY USER. YOU INTERACT WITH AND PROVIDE INFORMATION TO OTHER USERS AT YOUR OWN RISK. IF YOU SUSPECT ANOTHER USER MAY BE USING A FRAUDULENT IDENTITY, NOTIFY OPENN IMMEDIATELY.

15.2 we do not represent you in, nor do we participate in, nor are we a party to, any interaction, negotiation, transaction, or contract to purchase property.

15.3 Openn and its officers, directors, shareholders, employees, and Affiliates disclaim any warranties, representations, or guarantees of any kind, whether express or implied, regarding the Property, Property listing, or information available on the App concerning, without limitation: (a) the accuracy, completeness, authenticity, or currency of any information OR DATA provided in a Property listing or the authenticity or validity of the property listing itself; (b) the operation or availability of, or the content or materials in, Openn Offers; (c) the value, marketability, condition, zoning, habitability, suitability, SECURITY, quiet enjoyment, or fitness for a particular purpose of any Property; (d) the truthfulness, authenticity, or accuracy of any Offer; (E) the identity of any User; or (f) the compliance of the Property or Contract with applicable laws, building codes, zoning regulations, or other legal requirements. you should conduct your own inquiries and investigations to confirm the accuracy of a property listing prior to making any decisions or making any offers.

15.4 the app and Openn Offers are provided “as is” “as available”. Openn and its officers, directors, shareholders, employees, and Affiliates disclaim any warranties, whether express or implied, including without limitation any warranties of merchantability, title, noninfringement, fitness for a particular purpose, quiet enjoyment, AVAILABILITY, or accuracy with regards to Openn Offers. we do not warrant that the app is secure, free from viruses, bugs, worms, errors, or theft, or that it will meet your requirements. you use the app and openn offers at your own risk.

15.5 we disclaim any warranties that a property will receive offers or sell.

 

  1. LIMITATION OF LIABILITY
  • Openn and its respective officers, directors, shareholders, Affiliates, and employees will not be held liable for, and you hereby release them from any liability for, in any circumstances, any loss or damages, including without limitation any indirect, special, exemplary, or consequential damages, or for any lost profits, lost revenue, business interruption, loss of data, LOSS OF GOODWILL OR REPUTATION, or cost of a substitute service, under any theory of liability, including negligence, which arise out of or are related to:
    • any use, attempted use of, or inability to use the App or Openn Offers;
    • any errors, defects, technical failure, interruption, error in transmission, failure of telecommunication or power lines, mobile carrier failure, or unavailability of the App and/or Openn Offers;
    • your acting, or failing to act, on any information contained on or referred to on the App;
    • any disputes between you and another User;
    • any offer, fake offer, or information related to an offer;
    • any Property listings, including without limitation fake listings; or
    • any other information available through the App.
  • Openn merely provides a software platform by which BUYERs and Sellers may offer to sell and purchase real property. Openn does not review, edit, INSPECT, APPROVE, or control Property listings, OFFERS, or content provided by Users and is not liable for any action, INACTION, CONDUCT, or decision of, or any content provided by Users, including without limitation any Property listings, Offers, or Contracts. Openn does not draft or control, and is not responsible for, the terms of a Contract, or any performance of a Contract by a User. OPENN IS NOT LIABLE to you: (a) IF Awarded BUYER AND SELLER FAIL TO CLOSE THE PROPERTY, (b) IF THE PROPERTY DOES NOT SELL, or (c) FOR THE CONDITION OF THE YOU ACKNOWLEDGE THAT OPENN DOES NOT CONFIRM OR VERIFY TITLE TO THE PROPERTY or any other information related to the property ON THE APP. YOU USE THE APP AND OPENN OFFERS, AND ENTER INTO TRANSACTIONS TO PURCHASE PROPERTY, AT YOUR OWN RISK.
  • Notwithstanding anything to the contrary in these Terms, Openn’s maximum aggregate liability to you in connection with these Terms or Openn Offers shall be limited to the total amount paid by you to Openn for the twelve (12) month period immediately preceding the event giving rise to the claim.
  • 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.
  • 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.
  • 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.

 

  1. INDEMNIFICATION

By accessing or using the App or Openn Offers, you agree to indemnify, defend, and hold harmless Openn and its officers, directors, shareholders, employees, and licensees from and against all actions, suits, demands, claims, losses, damages and costs whatsoever, including reasonable attorney’s fees and legal expenses, whether at law or in equity arising out of: (a) your breach of these Terms of Use or any applicable law; (b) any claim related to your Property Listing or Offer, including without limitation any claims of infringement, inaccuracy, fraud, or misrepresentation; (c) your disclosure of your Account username and/or password or any unauthorized activity on your Account; (d) your performance or breach of the Contract; (e) your actions, inaction, or decisions in connection with your use of Openn Offers; (f) your intentional acts, willful misconduct, or negligence; and (g) your use of Openn Offers

 

  1. COMPLIANCE WITH LAW
    • These Terms of Use are to be interpreted so that they comply with all applicable state, local and U.S. federal laws and Canadian provincial and federal legislation.
    • If any of these Terms of Use are unenforceable, illegal or void then such term shall be severed, and the remainder of the terms of shall remain in full force and effect.
    • By using the App or participating in Openn Offers, you covenant and represent that you will comply with these Terms of Use and all state, local and U.S. federal laws, ordinances and regulations and all Canadian federal and provincial statutes and regulations applicable to the transactions to which Openn Offers applies, including without limitation all laws, ordinances and regulations with respect to required terms of purchase and sale contracts and all consumer protection, disclosure, non-discrimination and fair housing laws.

 

  1. INTELLECTUAL PROPERTY
  • Unless otherwise indicated, Openn owns or has a license to use all intellectual property (including copyright, trademarks and designs) subsisting in the content (including any graphics, images, logos, text, material, software) on the
  • Nothing in these Terms constitutes a transfer of any of Openn’s intellectual property rights. All right, title, and interest in and to Openn Offers and the text, images, software, artwork, photographs, video, audio, designs, and documentation thereof, shall remain with Openn, its Affiliates, and licensors, including without limitation all copyright, trademark, trade secret, patent, and other proprietary rights therein, in all formats, media, derivatives, and translations throughout the world.
  • You understand that you only receive a license to use the App and Openn Offers and acknowledge that you are prohibited from modifying, copying, reproducing, republishing, framing, reverse engineering, transmitting, uploading, adapting, or distributing the App, except as otherwise expressly authorized on the App or with our prior written consent.
  • You agree you will not remove or obscure any proprietary notices from the App or any User Materials, content, or information available through Openn Offers.
  • “Openn,” “Openn Offers,” and all of our other trademarks, servicemarks, trade names, logos, slogans, trade dress, and other branding (collectively, the “Trademarks”) are owned by us. You are strictly prohibited from using any Openn Trademarks without our prior express written consent.

 

  1. PRIVACY

Openn’s Privacy Policy available at www.opennoffers.com/privacy-policy is hereby incorporated into these Terms of Use. By using the App and providing us with any personal information, you consent to the collection, use, and disclosure of your personal information in accordance with the Privacy Policy.

 

  1. THIRD PARTY LINKS

21.1 The App may include links to external websites or resources operated by third parties (“Third Party Sites”), or a third party website or service may link back to the App.

21.2 Links to Third Party Sites are provided for your convenience only. We do not control any Third Party Sites, nor do we review the content, products, services, advertising, privacy practices, or policies of such Third Party Sites. You should review the terms of use of any Third Party Site before you interact with the Third Party Site or provide any information.

21.3 We do not endorse or guarantee any Third Party Site. You access and use Third Party Sites at your own risk.

 

  1. AMENDMENT

22.1 Openn reserves the right to change or modify these Terms of Use at any time in Openn’s sole discretion and without liability to you. Any changes or modifications will be effective upon posting the new Terms here and updating the Effective Date above. It is your responsibility to regularly review these Terms of Use. By continuing to use the App and/or Openn Offers, you accept and consent to the new Terms of Use.

22.2 Openn reserves the right to modify, update, enhance, improve, suspend, or permanently disable the App and/or Openn Offers at any time without notice or liability to you

 

  1. DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA)

If you believe any content or material in the App infringes your copyright rights, please see our Digital Millennium Copyright Act (DMCA) Statement.

 

  1. ACCESSIBILITY

We endeavor to make the Openn Platform accessible for all to use. We have taken steps and regularly assess the Openn Platform to achieve compliance with generally recognized and accepted standards for accessibility. If you have difficulty accessing portions of the Openn Platform, please contact us at support@openn.com.

 

  1. ARBITRATION; CLASS ACTION WAIVER

25.1 YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND OPENN ARISING OUT OF OR RELATING TO THIS TERMS OF USE, YOUR USE OF THE APP OR OPENN OFFERS, OR YOUR RIGHTS OF PRIVACY WILL BE RESOLVED BY BINDING ARBITRATION. Arbitration shall be conducted by the American Arbitration Association in conjunction with its Consumer Arbitration Rules. You hereby expressly waive your right to file a lawsuit or have a trial by jury. Arbitration shall be conducted in Orange County, California by a single arbitrator. Any cause of action you may have under this Terms of Use must be commenced within one (1) year after the claim or cause of action arises.

25.2 The costs of the arbitration shall be shared equally between you and Openn, provided, however, that we will reimburse you for your share of the arbitration costs if the arbitrator determines sharing costs would be inequitable. Each of us shall be responsible for the costs of our own legal counsel at the arbitration. Nothing in this section shall prohibit the arbitrator from awarding attorney’s fees and arbitration costs as part of the judgment.

25.3 The arbitrator’s decision shall be final and binding and judgment may be entered in any court of competent jurisdiction. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with arbitrator’s award, the other party is entitled of costs of suit including a reasonable attorneys’ fees for having to compel arbitration or defend or enforce the award.

25.4 Notwithstanding the foregoing, the requirement to arbitrate shall not apply to any claims seeking injunctive relief or which meet the jurisdictional requirement of a small claims court.

25.5 You agree any claims you bring against Openn will be conducted only on an individual basis and not as part of a class, consolidated, or representative action. You hereby waive your right to participate in a class-action lawsuit or class-wide arbitration for any claims against Openn.

25.6 If a court rules that this class action waiver is void or unenforceable for any reason, or that an arbitration can proceed as a class action, then the arbitration provision set forth above shall be deemed null and void in its entirety and the dispute shall be brought in the federal or state courts in Orange County, California. YOU UNDERSTAND THAT IN THE ABSENCE OF THIS SECTION, YOU WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE A PARTY TO A CLASS OR REPRESENTATIVE ACTION. YOU EXPRESSLY AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.

 

  1. MISCELLANEOUS

26.1 We shall not be liable for any delay in performing any of our obligations under these Terms if such delay is caused by circumstances beyond our reasonable control, including without limitation fire, flood, acts of war, terrorism, failure of telecommunications or power lines, embargos, riots, strikes, pandemics, epidemics, hurricanes, earthquakes, or other natural disasters, and we shall be entitled to a reasonable extension of time for the performance of such obligations.

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

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

26.4 These Terms of Use, and any claims arising out of or in connection with these Terms of Use or their use in a transaction involving any Property shall be governed by and will be construed in accordance with the laws of the State of Delaware.

26.5 Subject to the arbitration requirement in Section 25, you agree to the exclusive venue of the federal and state courts of Orange County, California to determine any dispute arising out of these Terms or your use of Openn Offers.

26.6 The Openn Platform and the materials, data, and content on the App are provided for information purposes only, and should not be construed as providing legal, real estate agency, tax, or other professional advice. You should consult your personal advisors prior to making any decision or taking any action.

26.7 You cannot assign any rights or obligations under these Terms to any third party without the prior written consent of Openn.

26.8 Nothing in these Terms creates a partnership, joint venture, employment, or agency relationship between you and us.

26.9 Any failure by us to enforce any provision of these Terms does not constitute a waiver of such provision.

 

  1. CONTACT US

Any questions or legal notices related to these terms, the App, or Openn Offers can be sent to:

Openn North America, Inc.

1340 Reynolds Ave #116-1095

Irvine, CA 92614

 

  1. DEFINITIONS

Capitalized terms used in these Terms shall have the meaning set forth below. In the event of a conflict between a definition below and the legal definition in a Jurisdiction, the legal definition of the Jurisdiction shall control.

  • Accepted Offer means the Offer for the Property made in the App which has been accepted by the
  • Account means a User’s registered account to use the App.
  • Affiliates means Openn Tech Pty Ltd. and any other entity that owns, is owned by, or is under common control with Openn.
  • App means the offer management software program designed to facilitate sales of residential real estate through Openn Offers.
  • Awarded Buyer means the Prospective Buyer who makes the Accepted
  • Buyer means person intending to make an Offer on a Property acting at the direction of Buyer’s Registrant or acting through Buyer’s Registrant.
  • Buyer’s Registrant means a real estate broker, real estate agent, associate broker, real estate salesperson, or brokerage, duly licensed under the laws of the applicable Jurisdiction, with whom an agreement has been entered into by the Buyer to participate in Openn Offers on behalf of the Buyer and who represents the Buyer and no other party in the Openn Offers process.
  • Closing Date means the date the sale of the Property closes as identified in the Contract.
  • Contract means a contract for the sale and purchase of a
  • Fake Listing means a false or fraudulent Property Listing whereby the individual or entity selling the Property does not own or have the right to sell the Property.
  • Fake Offers means false or fictitious Offers made by non-genuine Buyers with no intention of buying the Property and also includes any real estate offer practices prohibited in the
  • Jurisdiction means the S. state or Canadian province or territory in which the Property is located.
  • Offer means an offer to purchase Property, including the Offer Price, contact information and any terms and conditions of purchase made by a Buyer, through the App and includes any Offer Price
  • Observer means an individual who has: (a) been invited by the Seller or Registrant to observe the Offer Stage of a Property, and (b) has an Account.
  • Offer Price means the purchase price offered for the Property within any
  • Offer Stage means the stage of Openn Offers that commences when the Property is listed on the App and ends at the Closing Date.
  • Openn Offers means the offer management process whereby Sellers sell Property online using the
  • Property means a property offered for sale by the Registrant on the
  • Property Listing means any text, photographs, images, drawings, plans, video, audio, descriptions, links, or other content uploaded by Seller’s Registrant that describes and advertises the Property.
  • Prospective Buyer means a Buyer who has fulfilled the requirements set forth in Section
  • Registrant or Seller’s Registrant means a real estate broker, real estate agent, associate broker, real estate salesperson, or brokerage, duly licensed under the laws of the applicable Jurisdiction, with whom an agreement has been entered into by the Seller to sell a Property and who represents the Seller and no other party in Openn Offers.
  • Seller means the person holding title to the Property and who has appointed the Registrant to sell a Property through the App.
  • Subscription Fees means the recurring fees charged by Openn for ongoing use of certain features of Openn Offers.
  • Unique Identification Number means the unique identifying number provided by the App to each Prospective Buyer to allow them to be identified in the
  • User means any Registrant, Seller, Buyer’s Registrant, Prospective Buyer, Observer, or any other authorized user of the
  • User Materials means an Offer or Property Listing submitted to Openn by a User and any documentation related thereto.