This online platform (Platform) is operated by Fabulate Pty Ltd (ACN 629 887 501) or its successors and assignees (we, our or us). It is available at: www.fabulate.com.au and may be available through other addresses  or channels, including a mobile application.

In these terms and conditions, Platform refers to our marketplace regardless of how you access it. The Platform connects journalists (Journalists) with agencies, online publishers and advertisers (Clients) by facilitating introductions of Journalists with Clients. As a sub-editor you may also have access to the Platform. (Sub-Editors)

Acceptance

By accessing and/or using our Platform, or downloading our mobile application, you; each person, entity or organisation using our Platform (referred to as you) (i) warrant to us that you have reviewed these terms and conditions, including our Privacy Policy (available on the Platform) (Terms), (ii) warrant to us that you are over 18 years of age and have the legal capacity to enter into a legally binding agreement with us; and (iii) agree to use the Platform in accordance with these Terms.

If you are agreeing to these Terms not as an individual but on behalf of a company, your employer, an organisation, government or other legal entity (Represented Entity), then “you” means the Represented Entity and you are binding the Represented Entity to these Terms. If you are accepting these Terms and using our services on behalf of a Represented Entity, you represent and warrant that you are authorised to do so.

If you access or download our mobile application from (i) the Apple App Store, you agree to Apple’s Licensed Application End User License Agreement and any Usage Rules set forth in the App Store Terms of Service); or (ii) the Google Play Store, you agree to the Android, Google Inc. Terms and Conditions including the Google Apps Terms of Service.

Platform Summary

(a)  The Platform provides an introductory service for Journalists and Clients.

(b)  A Client with a requirement for a journalistic service or editing service to be provided (i) is invited to the Platform and provided with an account on the Platform, (ii) and can post briefs for written content for Journalists to view (Brief).

(c)  A Journalist with an ability to perform journalistic services with an ability to perform editing services (i) is invited to the Platform and provided with an account on the Platform and (ii) can view Briefs. A Journalist can submit a pitch in response to the Brief which is then sent to the Client through the Platform (Pitch).

(d)  On the basis of a Pitch received, as applicable, where a Client desires to receive services from a Journalist, the Client may accept the Pitch from a Journalist (which becomes a Job).

(e)  By submitting a Pitch, the Journalist confirms that s/he is legally entitled to and capable of supplying the journalistic services described in the Brief. Each Job will have deadlines for the Journalist to meet milestones within the Job which were set out in the Brief or otherwise agreed between the parties (Deadlines).

(f)  By accepting a Job as a Client, the Client understands that there is a limitation on the number of rounds of edits which can be requested of a Journalist and/ or the Sub-Editor for that Job as set out on the Platform. The Client may be able to purchase extra rounds of edits if required.

(g)  A Journalist may use the Platform to create a page, outlining information about themselves, including (but not limited) to details about their professional experience and their areas of specialisation (Service Provider Page).

(h)  Clients may browse Service Provider Pages for information about a Journalist and use this to locate a Journalist who is relevant to the Brief the Client is posting.

(i)  Once a Client has accepted a Pitch, the Journalist and Client will have access to the work management platform whereby they can manage the Job and they can also communicate privately using our private messaging service. Each time a Platform user receives a message from the Platform messaging service, a notification may be sent to the user via their currently active communication channel.

(j)  During the Job the Client is required to manage the Job via the work management platform.

(k)  Once a Journalist has provided the final version of the written content to the Client as requested by the Brief and as set out in their Pitch via the Platform (Job Content), the Client may receive editing services based on a separate commercial agreement with us and on completion of the Job must provide notice that the Job is complete by using the Platform functionality (Completed Job).

(l)  You understand and agree that the Platform is an online introductory platform only, and that our responsibilities are limited to facilitating the user functionality and availability of the Platform. We are not an employment agency or labour hire business and Journalists are not our employees, contractors, partners or agents.

(m)  We are not a party to any agreement entered into between a Journalist and a Client. We strive to bring experienced Journalists onto the Platform but we have no direct control over the conduct of Journalists, Clients or any other users of the Platform.

(n)  We accept no liability for any aspect of the Client and Journalist interaction, including but not limited to the description of any services requested in a Brief or service offering described in a Pitch, nor the performance of services.

Registration and Profiles

(a) You cannot browse and view the Platform without an account on the Platform. You must be invited to register on the Platform and we will provide you with an account (Account) to access the Platform.

(b) You may only have 1 Account on the Platform as a Journalist. If you are a Client and you own more than one business or have customers, you may be given a separate login for each business or customer. We may also provide you with or allow you to create multiple logins for your personnel.

(c) You must provide basic information when you first login to your Account such as your name, email and you may choose a username and password. The username you choose must not (i) be offensive or in other ways insulting or (ii) contain characteristics which belong to a third party, including names of famous persons, or personal names to which you do not own the rights.

(d)  As a Journalist, approval of your Account set up and your access to the Platform will be contingent on you providing details of your personal indemnity insurance which meet our satisfaction as well as the provision of any other information we reasonably request. If you do not provide us with information we reasonably request or the information provided does not meet our requirements, we may refuse to allow you to access the Platform.

(e)  You must provide accurate, current and complete information during the registration process and you must update such information to keep it accurate, current and complete.

(f)  You are responsible for keeping your Account details and your username and password confidential and you will be liable for all activity on your Account, including Briefs posted and Pitches submitted using your Account details, whether or not you authorised such activities or actions.

(g)  You will immediately notify us of any unauthorised use of your Account.

(h)  At our sole discretion, we may refuse to allow any person or entity to register or create an Account.

User Content

A licence for us to use your content to provide the Platform: You are permitted to post, upload, publish, submit or transmit and receive relevant information and content, including Briefs, Pitches and the Job Content (User Content) on and through our Platform. By making available any User Content on or through our Platform or requesting to receive any User Content through the Platform, you grant to us a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free licence to use the User Content, with the right to use, view, copy, adapt, modify, distribute, license, sell, transfer, communicate, publicly display, publicly perform, transmit, stream, broadcast, access, or otherwise exploit such User Content on, through, or by means of our Platform for the purpose of providing our Platform to you and allowing a Client to request services and the Journalist to provide these requested services.

You agree that you are solely responsible for all User Content that you make available on or through our Platform. You represent and warrant that you are either the sole and exclusive owner of all User Content or you have all rights, licences, consents and releases that are necessary to grant to us the rights in such User Content as contemplated by these Terms.

We do not endorse or approve and are not responsible for any User Content. We may, at any time, at our sole discretion but subject to any other agreements we have in place, remove any User Content.

Job Content

Journalist’s and Sub-Editor’s assignment of intellectual property rights: As a Journalist or Sub-Editor, on and from creation you hereby assign to the relevant Client for a Job all of your intellectual property rights in and to the Job Content. You acknowledge and agree that all future intellectual property rights arising in connection with the Job Content automatically vest exclusively in the Client on creation. You agree to do all acts necessary to assign all intellectual property rights to the Client and to provide all permissions and consents necessary to enable the Client to use the Job Content without infringement of yours or any third party’s rights.

Moral Rights: If as a Journalist or a Sub-Editor, you have any Moral Rights in any material provided, used or prepared in connection with or the Job Content, you consent to any act or omission by the Client which infringes or may infringe any of your Moral Rights. Despite the above, the Client may at its sole discretion choose to attribute and credit the Journalist in the event that the Client publicly posts or displays the Job Content.

Indemnity: As a Journalist or Sub-Editor, you are liable and agree to indemnify, defend and hold us and the Client harmless for and against any and all claims, liabilities, suits, actions and expenses, including costs of litigation and reasonable legal costs, resulting directly or indirectly from your Job Content. This indemnity is a continuing obligation and continues after a Completed Job and after these Terms end.

Confidentiality

As a Journalist or Sub-Editor, you agree to keep confidential the User Content in relation to each Job and not disclose the User Content to any third party (other than the relevant Client or to Fabulate through the Platform) except with the prior written consent of the relevant Client.

Intellectual Property rights

Unless otherwise indicated, we own or licence all rights, title and interest (including intellectual property rights) in our Platform including the information and materials we make available on it (Content). Your use of our Platform and your use of and access to any Content does not grant or transfer to you any rights, title or interest in relation to our Platform or the Content.

You are permitted to use the images available via the Platform in your Job Content where the images are relevant to the Job Content. You may only use the images available via the Platform within the Job Content itself and you may not use the images for any other purposes unless you own the images or have a separate licence which permits you to do so. You must comply with any restrictions or additional terms in relation to the use of the images as notified by us from time to time, including any requirements for crediting the photographer.

You must not, without the prior written consent of ourselves or the owner of the Content (as applicable):

(a)  copy or use, in whole or in part, any Content;

(b)  reproduce, retransmit, distribute, disseminate, sell, publish, broadcast or circulate any Content to any third party; or

(c)  breach any intellectual property rights connected with our Platform, including (without limitation) by:

    1. altering or modifying any of the Content;
    2. causing any of the Content to be framed or embedded in another website; or
    3. creating derivative works from the Content.

Fees and Payments

(a)  It is free to register an Account on the Platform. There is no charge for a Client to post a Brief, or for users to review Briefs or submit Pitches.

(b)  When viewing Briefs on the Platform as a Journalist you will see displayed the net fee you will receive for completing the services requested of you in the Brief (Service Provider Fee).

(c)  We will invoice a Client for the relevant fees based on our commercial arrangement with the Client and the requests in their Brief which may include a journalist’s fees plus our service fee (Brief Fee) at the time that the Client accepts a Pitch via the Platform functionality.

(d)  Upon a Completed Job and us receiving the Brief Fee, the Service Provider Fee will be paid into the Journalist’s Account (as applicable) on the Platform. As a Journalist, you can then, at your discretion, transfer the funds out of your Account into your nominated bank account.

Limited Payment Collection Agent

(a)  Each Journalist appoints us as their limited payment collection agent solely for the purpose of accepting the Service Provider Fee from the Client.

(b)  Journalists agree that payment of the Service Provider Fee by a Client to us (as the Journalist’s limited payment collection agent) is to be considered the same as payment made directly by the Client to the Journalists and will provide the purchased services to the Client as agreed, as if Journalists had received payment directly from the Client.

(c)  Each Journalist agrees that we may refund Clients in accordance with these Terms.

(d)  Each Journalist agrees that our obligation to pay you is subject to and conditional upon successful receipt of the relevant payments from Clients and we guarantee payment to Journalists only for such amounts that we have successfully received from Clients in accordance with these Terms. In accepting appointment as the limited payment collection agent of the Journalist, we assume no liability for acts or omissions of the Journalists.

(e)  In the event that we do not remit Fees as set out in the Payment clause above, Journalists will only have recourse against us and not the Client directly.

Refund and Cancellation Policy

(a)  The cancellation, exchange or refund of services ordered on this Platform is a matter between the relevant users, subject to the following clauses (b) to (e).

(b)  If:

  1. a Client and Journalist mutually agree to cancel a Job; or
  2.  following reasonable attempts by a Client to contact a Journalist for the Journalist to fulfil the Job, the Job is cancelled;and
  3. we are satisfied that the Brief Fee should be returned to the Client,
    we will return the Brief Fee to the Client.

(c)  If, for any reason, a Service Provider Fee cannot be transferred or otherwise made to you, including if you do not provide accurate payment details, or no claim is otherwise made for the Service Provider Fee, the Service Provider Fee will remain in our escrow account until paid or otherwise for up to six months from the date the Service Provider Fee was originally paid into the escrow account.

(d)  Following the six months outlined in clause (c) and provided there is still no dispute in respect of the Service Provider Fee, the Service provider Fee will be automatically credited to the Client where possible.

(e)  As a Client, once you have accepted a Job you cannot cancel a Job for convenience and you will not be entitled to a refund if you do attempt to cancel for convenience.

Ratings and Testimonials

(a)  Clients may rate a Journalist using a star rating system after a Completed Job and this rating will be displayed on the Service Provider’s Page (Rating). A Client may contact us to provide a testimonial about a Journalist or we may contact a Client and request a testimonial about the Journalist’s provision of the services to the Client (Testimonial). There is no requirement to provide a Testimonial and it is at our discretion whether we allow a Testimonial to be published on a Service Provider Page.

(b)  Ratings and any published Testimonials can be viewed by any user and will remain viewable until the relevant Service Provider Page’s Account is removed or terminated.

(c)  Clients must base their Rating on true, fair and accurate information and any Testimonial provided must also be provided based on true, fair and accurate information and based a personal service experience with the Journalist via the Platform within the last 12 months.

(d)  Clients are encouraged to be specific and factual in their Testimonial. If you have been offered an incentive by a user to submit a Testimonial, you should not submit a Testimonial. Incentives include the user offering you a gift, reward, discount or advantage for submitting a Testimonial.

Prohibited conduct

You must not do, or attempt to do, anything that is unlawful; anything prohibited by any laws which apply to our Platform or which apply to you or your use of our Platform; anything which we would consider inappropriate; or anything which might bring us or our Platform into disrepute, including (without limitation):

(a)  using our Platform to find a Client, Journalist and then completing a Job or another transaction independent of our Platform in order to circumvent the obligation to pay any fees related to our provision of the Platform;

(b)  as a Journalist, offering any services and making any Pitches that you do not intend to honour or cannot provide, including agreeing to Deadlines you cannot meet;

(c)  as a Client, making any offers via Briefs that you do not intend to honour;

(d)  anything that would constitute a breach of a third party’s intellectual property, or of an individual’s privacy (including uploading private or personal information without an individual’s consent), or any other legal rights;

(e)  using our Platform to defame, harass, threaten, menace or offend any person;

(f)  interfering with any user using our Platform;

(g)  tampering with or modifying our Platform, knowingly transmitting viruses or other disabling features, or damaging or interfering with our Platform, including (without limitation) using trojan horses, viruses or piracy or programming routines that may damage or interfere with our Platform;

(h)  anything that might violate any local, state, national or other law or regulation or any order of a court, including, without limitation, tax regulations;

(i)  using our Platform to send unsolicited messages; or

(j)  facilitating or assisting a third party to do any of the above acts.

Exclusion of competitors

You are prohibited from using our Platform, in any way that competes with our business such as to procure business which you intend to carry out independent of our Platform. If you breach this term, we will hold you responsible for any loss, damage or expense, howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent (Liability) we suffer, and hold you accountable for any profits that you may make from non-permitted use.

Platform Support

If you have any questions about your use of the Platform you may contact us during Business Hours via the Platform, or our email address at the end of these Terms. We aim to promptly resolve any questions you have. If you are a Client you may also have access to a dedicated support person known as a content concierge who will assist you in tracking and managing your Jobs.

Consumer Guarantees

(a) Certain legislation including the Australian Consumer Law (ACL) in the Competition and Consumer Act 2010 (Cth), and similar consumer protection laws and regulations may confer you with rights, warranties, guarantees and remedies relating to our provision of our services which cannot be excluded, restricted or modified (Statutory Rights).

(b) Nothing in these Terms excludes your Statutory Rights as a consumer under the ACL.

(c) The services provided by Journalists might also confer you certain Statutory Rights.

Warranties, disclaimers and indemnity

To the extent permitted by law, we make no representations or warranties about our Platform, the Content, Journalists, Clients, Briefs, Pitches or Job Content including (without limitation) that:

(a)  they are complete, accurate, reliable, up-to-date and suitable for any particular purpose;

(b)  access will be uninterrupted, error-free and free from viruses;

(c)  our Platform will be secure;

(d)  Briefs will be posted by Clients;

(e)  Journalists will find desirable the Briefs or Clients will find desirable the Pitches or Job Content; or

(f)  the Job Content will be of a particular standard of workmanship or meet the Brief description.

You read, use, and act on our Platform and the Content at your own risk.

Limitation of liability: Despite anything to the contrary, to the maximum extent permitted by law:

(a)  our maximum aggregate Liability arising from or in connection with these Terms (including the services we provide and/or the subject matter of these Terms) will be limited to, and must not exceed the aggregate amount of fees paid by you to us during the three-month period immediately preceding the event that gave rise to the Liability; and

(b)  we will not be liable to you for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity,

loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of data,

whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.

(c) Despite anything to the contrary, to the maximum extent permitted by law, we will have no Liability, and you release and discharge us from all Liability, arising from or in connection with any:

  1. loss of, or damage to, any property, or any injury or loss to any person;
  2. failure or delay in providing the Platform or our services; or
  3. breach of these Terms or any law,

where caused or contributed to by any:

  1. event or circumstance beyond our reasonable control;
  2. a fault, defect, error or omission in your computing environment; or
  3. act or omission of you or your related parties,
  4. and, in any event, any defect, error, omission or lack of functionality or suitability (or the absence of, or reduction in, any anticipated result, outcome or benefit) with respect to the products or services.

(d)  You acknowledge and agree that (i) you use the Platform or our services at your own risk, (ii) the provision of the Platform or our services may be contingent on, or impacted by, third parties, suppliers or other subcontractors (Third Party Inputs), and despite anything to the contrary, the maximum extent permitted by law, we will not be responsible and will have no Liability for any default or breach of these Terms or any law if such default or breach was caused or contributed to by any Third Party Inputs.

(e)  You agree that, to the maximum extent permitted by law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.

(f)  Indemnity: To the maximum extent permitted by law, you must indemnify us, and hold us harmless, against any Liability suffered by us arising from or in connection with your use of our Platform or any breach of these Terms or any applicable laws by you. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end. It is not necessary for us to suffer or incur any Liability before enforcing a right of indemnity under these Terms.

(g)  This clause will survive the termination or expiry of these Terms.

Termination

(a)  As a Journalist, you may cancel your Account and terminate these Terms at any time by sending us an email to the address at the end of these Terms. If you cancel your Account as a Journalist, any Jobs will be automatically cancelled and your Clients will receive a full refund.

(b)  As a Client or Sub-Editor, we may suspend your Account or suspend your login with notice if you breach these Terms.

(c)  As a Client or Sub-Editor, the termination of these Terms by you or us will be subject to the terms of any separate agreement we have in place with you.

(d)  At our sole discretion, as a Journalist, we may suspend your Account or terminate these Terms immediately with notice if (i) you are in breach of these Terms (including transacting with a Client off the Platform), any applicable laws, regulations or third party rights including (without limitation) intellectual property rights (ii) as a Journalist your Job Content at any time fails to meet any applicable fit for purpose, quality or other eligibility criteria, (iii) you have received poor Ratings and feedback or we have received complaints about you including due to repeatedly missing agreed Deadlines or cancellations of Jobs.

(e)  If we suspend your Account or terminate these Terms, we will cancel any existing Jobs and in the case of a Journalist breach, refund the relevant Clients.

Job disputes: We encourage Journalists and Clients to make a genuine attempt to resolve disputes (including claims for returns or refunds) with other users directly before they escalate. We may agree to assist in resolving disputes where a dispute cannot be easily resolved between the users. We will investigate the situation based on the information each party provides and the relevant information available via the Platform and make a determination. We may ask you, as a Journalist, to re-perform or re- supply any part of the Job Content that is not performed or provided to the Client in accordance with these Terms and your agreement made via the Brief, responding Pitch and any further communication with the Client. If such part of the Job Content cannot be re-performed or re-supplied you agree to refund the Client via us as your limited collection agent any amount paid by the Client for the applicable Job. It is in your discretion to choose to refer your user dispute to litigation.

Disputes relating to the Platform: In the event of any dispute arising from, or in connection with, these Terms (Dispute), the party claiming there is a Dispute must give written notice to the other party setting out the details of the Dispute and proposing a resolution. Within 7 days after receiving the notice, the parties must meet at least once to attempt to resolve the Dispute or agree on the method of resolving the Dispute by other means, in good faith. All aspects of every such conference, except the fact of the occurrence of the conference, will be privileged. If the parties do not resolve the Dispute or (if the Dispute is not resolved) agree on an alternate method to resolve the Dispute, within 21 days after receipt of the notice, the Dispute may be referred by either party (by notice in writing to the other party) to litigation.

Collection Notice

(a)  We collect personal information about you in order to enable you to access and use the Platform, to contact and communicate with you, to respond to your enquiries and for other purposes set out in our Privacy Policy.

(b)  We may disclose that information to third party service providers who help us deliver our services (including information technology service providers, data storage, web-hosting and server providers, professional advisors and our business partners) or as required by law. If you do not provide this information we may not be able to provide you with access to our Platform. In certain circumstances, we may disclose your personal information to third parties located, or who store data, outside Australia.

(c)  Our Privacy Policy contains further information about: (i) how we store and use your personal information; (ii) how you can access and seek correction of your personal information; (iii) how you can make a privacy-related complaint; and (iv) our complaint handling process.

(d)  By providing personal information to us, you consent to us collecting, holding, using and disclosing your personal information in accordance with our Privacy Policy.

Information, Links and Discontinuing our Site

Information: Any Content we provide via the Platform is not comprehensive and is for general information purposes only. It does not take into account your specific needs, objectives or circumstances, and is not advice. While we use reasonable attempts to ensure the accuracy and completeness of the Content, we make no representation or warranty regarding it, to the extent permitted by law. The Content is subject to change without notice. However, we do not undertake to keep our Platform up-to-date and we are not liable if any Content is inaccurate or out-of-date.

Third party sites: Our Platform may contain links to websites operated by third parties. Unless expressly stated otherwise, we do not control, endorse or approve and are not responsible for the content on those websites. You should make your own investigations with respect to the suitability of those websites.

Discontinuance: Subject to any other agreements we have in place with you, we may, at any time with notice to you, discontinue our Platform, in whole or in part. We may also exclude any person from using our Platform, at any time at our sole discretion. We are not responsible for any Liability you may suffer arising from or in connection with any such discontinuance or exclusion.

Insurance

We require that Journalists obtain and provide evidence of appropriate personal indemnity insurance for supplying their journalistic services before being accepted onto the Platform. If you are a Journalist and you obtain an insurance policy, please review any relevant insurance documentation carefully, and in particular make sure that you are familiar with and understand any exclusions to, and any deductibles that may apply for, such insurance policy.

General

Licence to use our Platform: We grant you a non-exclusive, royalty-free, revocable, worldwide, non- transferable licence to use our Platform in accordance with these Terms. All other uses are prohibited without our prior written consent.

Variation: We may modify these Terms from time to time with notice to you by posting the amended Terms on the Platform and pushing a Platform based notification to you and notifying you by email. By continuing to use the Platform 30 days after notification, you agree to the amended terms. If you do not agree to the modifications, you must terminate your Account and stop using the Platform.

Assignment: You may not assign, transfer or delegate your rights and obligations under the Terms without our prior written consent. We may without restriction assign, transfer or delegate our rights and obligations under these Terms with 30 days prior notice.

Severance: The provisions of these Terms are severable and if any provision of these Terms is held to be void, invalid, illegal or unenforceable, that provision is severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.

Jurisdiction: Your use of our Platform and these Terms are governed by the laws of New South Wales, Australia. You irrevocably and unconditionally submit to the exclusive jurisdiction of the courts operating in South Australia and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.

For any questions and notices, please contact us at:

Fabulate Pty Ltd (ACN 629 887 501)
Email: contact@fabulate.com.au
Last update: 26 June 2019

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