Terms & Conditions

Fabulate Pty Ltd

These Terms and Conditions Cover:

  1. Creator Terms and Conditions
  2. Customer Terms and Conditions
  3. Terms and Conditions between Creator and Customer
  4. Distribution terms

1. Fabulate and Creator Terms and Conditions

Supply of creative services by a Creator to a Customer or Fabulate

These Terms apply to you and us if you supply Creative Services to Customers through Fabulate’s systems at fabulate.com.au. The Terms set out our agreement with you and are a binding contract.

If you agree to these Terms then you are entering into a contract with Fabulate Pty Ltd ABN 19 629 887 501, trading as Fabulate. You may not access our services or provide services to our Customers unless you agree to these Terms.

To make this contract easier to read, there are some defined words and phrases.
If we notify you that for a particular Brief and Job that we are the Customer, then any reference to Customer means a reference to Fabulate Pty Ltd.

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth).

Brief means a draft scope of work required by a Customer.

Creative Services means the services, media, goods (electronic or otherwise) and other material that you provide to Customers.

Creators means the people who provide services to Customers through Fabulate Platform.

Customers means the people who receive services from Creators through Fabulate Platform.

Distributors means content distributors and publishers who disseminate Creative Services to the general public.

Fabulate Platform means the web site and systems at www.fabulate.com.au.

IPR means all present and future industrial and intellectual property rights of any kind, including all rights conferred under statute, civil law or common law or equity, including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in confidential information or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or.

Job means an agreed scope of work and contract between Creator and Customer.

Personal Information means information about an individual person as defined in the Privacy Act 1988 (Commonwealth).

Pitch means a submission by a Creator in response to a Brief.

Services means the services set out in the section below “Services we provide”.

Terms means these terms and conditions.

we, us, our means Fabulate Pty Ltd ABN 19 629 887 501 of 13 Imperial Avenue, Bondi, New South Wales, 2026, Australia.

you, your, yourself means the person reading and agreeing to these terms, or if you are agreeing to these terms on behalf of a company or someone else, that other person (including a company).

1. Services we provide

1.1 We are a marketplace, communication, distribution and workflow platform. The Fabulate Platform provides the following Services:

  • (a) facilitating the briefing, pitching for and awarding of work between Customers and Creators;
  • (b) digital asset management (the Vault) for storing digital assets (Assets);
  • (c) managing the data and communications between Customers and Creators;
  • (d) facilitate the distribution of final work through Distributors, and associated payments;
  • (e) collecting fees from Customers and paying the Creators; and
  • (f) payment of Distributors.

1.2 We do not:

  • (a) provide Creative Services to Customers – that’s what the Creators do;
  • (b) accept liability for the acts and omissions of the Creators or Customers;
  • (c) guarantee that Customers will pay us or the Creators; or
  • (d) guarantee the work of Creators.

1.3 When a Customer agrees to a Job with a Creator, a separate contract is formed between the Customer and the Creator. The terms of that contract are set out here.

1.4 The fees payable to you for the Job will be disclosed to you prior to you preparing your Pitch.

2. Information about Creators

2.1 Before we accept you as a Creator on the Fabulate Platform, we will ask you to provide us with information about your experience and qualifications. It is a fundamental term of these Terms that you act in utmost good faith in providing us with this information. You indemnify us against all loss, cost and expense arising out of or in connection with you breaching this obligation.

2.2 We may interview you, request further information about you, and attempt to verify your experience and qualifications. You agree that we may ask any person to confirm or provide information about you. You agree to do all things necessary (including sign authorisations and other documents), if requested by us, to permit us to obtain information about your professional experience, qualifications and criminal record.

2.3 We may refuse to enter into any agreement with you, and exclude you from the Fabulate Platform in our absolute discretion.

2.4 You agree that we are not liable to you for any loss, claim or expense that arises out of inaccurate information provided to us by any person, and you release us accordingly.

2.5 We will not share your personal information with anyone except Customers, our consultants who provide services to us, and in the limited circumstances as set out in our Privacy Policy at https://fabulate.com.au/privacy-policy/. You agree that you have read the Privacy Policy before consenting to give us personal information. We may change our Privacy Policy from time to time and will notify you before we make any changes.

3. Understanding the arrangements between you and us

3.1 In our absolute discretion we may facilitate a Job between you and a Customer. We are not obliged to provide your contact details to any prospective Customers or provide you with Briefs. We may provide the Brief to any Creators in our absolute discretion.

3.2 A Customer may choose a Creator from the list we provide.

3.3 A Job will occur after we provide a Customer with the details of one or more Creators, publish a Brief, you submit a Pitch, and the Customer chooses you to perform the Job.

3.4 When a Job is created then you agree to complete the Job by the time and date agreed in the Brief for the relevant fee.

3.5 Once the Customer selects a Creator and the Job is agreed, then the Customer becomes a client of the Creator for the purposes of the Job. If there is a problem with the content of the Job, then that is a matter between you and the Customer. You must, and do release us from all liability arising out of or in relation to the Job.

4. Fees and payment

4.1 You must agree to the proposed fee published to you prior to accepting a Job.

4.2 After a Job is completed then we will credit you with the value of the fee paid by the Customer for the Job.

4.3 You appoint us as your agent to collect the fee and pay you the amount agreed.

4.4 We will use reasonable commercial efforts to collect the fee, but do not warrant that we will be able to collect the fee from the Customer. We are not obliged to commence court or tribunal proceedings to attempt to collect the fee.

4.5 We will issue a Recipient Created Tax Invoice (RCTI) in respect of each Job if you are registered for GST, or if you are not registered for GST we will create an invoice on your behalf.

4.6 We will pay you your share of the fees within two business days of our receipt of the fees payable by the Customer. The payment terms between Customers and us may be 45 days or more.

4.7 You must provide us with accurate (and keep up to date) your contact and banking details.

4.8 If a Customer raises a dispute in relation to a Job then we may withhold payment with respect to the Job. You appoint us as your agent to resolve the dispute. We may refund some or all of the fees paid by the Customer, and a lesser or no amount will be payable to you.

4.9 If a client terminates a Job and pays a pro-rated fee then we will pay to you your portion of the cancellation fee.

4.10 If we are unable to pay you the fee because you have not provided us with current banking or contact details or you do not respond to communication by us, we may forfeit absolutely the fee or refund the Customer six months after we send written notice to the last email address provided to us by you.

5. Refunds and disputes

5.1 We may provide a Customer with a refund in relation to a Job in some circumstances, including:

  • (a) where the Customer has the benefit of a statutory warranty under the Australian Consumer Law;
  • (b) where we agree to provide a refund for termination of a Job;
  • (c) where we or the Customer consider that the Creator:
  •       (i) was unqualified or misrepresented his or her qualifications or experience,
  •       (ii) failed to provide the Job on time or at all, or
  •      (iii) did not provide the Job in the manner agreed or as set out in the brief.

5.2 Where the Customer is provided with a refund then we have no obligation to pay you any amount.

5.3 If a dispute arises between you and a Customer then you must make prompt and good faith efforts to resolve the dispute. If the dispute is not resolved within 14 days of it being raised then you must notify us and provide us with details of the dispute.

5.4 We may require you to re-perform or re-supply material in relation to a Job where the material does not comply with the Brief and the Pitch as amended by the parties.

5.5 You irrevocably appoint us as your non-exclusive agent to resolve disputes in relation to a Job. We may make any decision and perform any act or omit to do a thing in resolving a dispute in our reasonable discretion, except agree that you will make a payment to a Customer. We may decide that no fee is payable in relation to a Job, or that the fee will be refunded to the Customer.

5.6 You must indemnify us for all loss, claims, expense, costs, legal fees, damages and judgements incurred by us resulting from a dispute in relation to a Job, except to the extent caused by us. We must attempt to mitigate our losses.

6. Documents and information

6.1 We provide a messaging platform that allows you and the Customer to exchange documents and information. We have implemented that platform taking measures to ensure it is secure, but we do not warrant that it cannot be subject to an information security breach. You agree that we are not liable to you for any loss, claim or expense that arises out of a messaging platform security breach.

6.2 We provide the Vault for Assets. We will use reasonable commercial endeavours to make the Vault and Assets available except during maintenance and repair periods. However, Fabulate expressly does not warrant that:

  • (a) the Vault and or Assets will always be available;
  • (b) any particular amount of storage in the Vault will be available to you; or
  • (c) deleted Assets can be restored to the Vault.

6.3 You release us from all liability however arising from unavailability of the Vault or Assets.

7. Your obligations

7.1 You must:

  • (a) promptly and in the agreed time frame complete a Job in accordance with the Brief (as modified from time to time) and reasonably accepted professional standards;
  • (b) use the Fabulate Platform strictly in accordance with any documentation provided or instructions notified to you;
  • (c) not provide services to a Customer outside the Fabulate Platform or in any way circumvent the operation of the Fabulate Platform. This includes accepting a request from a Customer or providing services to a Customer who has been introduced to you by us, or you or the Customer cancelling a Job partially or wholly to go outside the Fabulate Platform. If you had a pre-existing professional relationship with a Customer prior to first using the Fabulate Platform then this restriction does not apply to you. You must supply to us, when requested, documentary evidence of such pre-existing professional relationship;
  • (d) ensure that anything uploaded to the Vault does not contain any malware of any nature;
  • (e) comply with all laws relevant to the Fabulate Platform and/or a Job;
  • (f) not during a Job or in communications with us or a Customer speak or act in a manner that is lewd, profane, insulting, sexual, pornographic, illegal, or defamatory;
  • (g) release us from any liability or claim arising out of the content of the Job, including any third party claims for breach of IPR;
  • (h) indemnify us for any cost, loss or expense we incur arising out of or in connection with any claim by a Customer or third party in relation to a Job, except to the extent caused by us;
  • (i) maintain your own backups of material you submit to the Vault, subject to any IPR held by or transferred to the Customer;
  • (j) not reverse engineer or attempt to re-create the functionality of the Fabulate Platform wholly or in party;
  • (k) keep confidential all information (and particularly Briefs and all communications between you and a Customer) provided to you by a Customer and us, except to the extent consented to by the Customer or us.

8. IPR Licence, assignment and indemnity

8.1 You grant us a royalty-free, perpetual, world-wide and non-exclusive licence to reproduce, publish, perform, communicate, adapt, and use any materials that are comprised in a Job to the extent necessary for us to provide the Services and any incidental internal purposes.

8.2 You must and do assign all IPR, including any future created IPR, in a Job to the Customer, except for commercial third-party material, as at the date of creation of the IPR. If you include third-party material in a Job you must notify the Customer of any licensing requirements for the Customer.

8.3 If we provide you with any third-party sublicence, you must comply with any requirements of the sublicence.

8.4 You must not do anything that infringes the IPR of a Customer, including in relation to material created or supplied for a Job.

8.5 You warrant to us that all Jobs will not infringe the rights of any third party, including infringement of IPR. If a third party makes a claim against us for infringement of their rights in relation to a Job then you must indemnify us for all costs, expenses, damages, legal costs, judgements, fines and any other impost we suffer.

8.6 In relation to every Job, you must irrevocably provide your consent to the Customer to adapt, translate, commercialise, exploit and treat the materials for the Job in any way without your asserting any of your moral rights (as defined under the Copyright Act 1968 (Cth) and its amendments) or any similar right in any jurisdiction, including:

  • (a) without attributing the right of authorship in the materials to you;
  • (b) any false attribution of the authorship of the materials; and
  • (c) without requiring your consent for any use, adaptation, commercialisation, exploitation or treatment of the materials, whether derogatory or not.

9. Reviews and feedback

9.1 Customers can provide a rating and review of a Creator after a Job. A general summary of these is that a review must be honest, objectively correspond with what actually happened during the Job, not be rude or insulting, and not expose you, the Customer or us to any legal liability. We may remove any review in our absolute discretion.

9.2 If you consider that a rating or review is unfair, not based on objective matters, or is illegal or defamatory then you must contact us without delay. We will, in our discretion, remove the rating and or review, or let it remain publicly accessible.

10. Insurance

10.1 We do not require Creators to have insurance such as professional indemnity insurance except in specific circumstances. If you are required by law or have any other obligation to hold insurance then you agree and warrant that you will do so. Breach of this obligation is a material breach of these Terms.

10.2 We may provide professional indemnity insurance and public & products liability insurance on your behalf, as applicable, for Creators supplying Creative Services on the Fabulate Platform. We do not warrant that the insurance will respond for any particular claim against you. You must review the insurance documentation carefully, which is located at https://www.fabulate.com.au/insurance/ 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. You will be responsible for payment of any deductible as a condition of indemnity by the insurer. You must not do any act or omission that may void insurance cover for you, including ensuring that you comply with these terms at all times and notifying us if you have done any act or omission that may void insurance cover for you and your journalistic services. If you become aware of a claim you must promptly and without delay notify us of the circumstances of the claim.

11. Warranties

11.1 Except as required by law (such as the Australian Consumer Law), we expressly exclude any warranties as to the Services, the Job or its content.

12. Australian Consumer Law

12.1 As set out elsewhere in these Terms, we do not provide the content of the Job. The Job is provided by the Creator. We provide the Services as defined above in these Terms.

12.2 Despite anything else in these Terms, where you are entitled to a statutory guarantee under sections 60 to 62 of the Australian Consumer Law in relation to our Services, then to the extent that we fail to comply with such guarantee, our liability for such a failure is limited to, at our option:

  • (a) supplying the services again; or
  • (b) payment of the cost of having the services supplied again,
    unless it is not fair or reasonable for us to rely on this term of the Terms.

12.3 Just to be clear, if there is a breach of the statutory guarantee by the Creator then that is a breach of the arrangement between the Customer and the Creator. If we have not yet passed on a payment to the Creator then we may withhold passing on payment (in our discretion), pending a resolution of a dispute between the Customer and the Creator.

13. Limitation of liability

13.1 To the extent permitted by law, we are not liable to you in contract (including under an indemnity), tort, breach of statutory duty or otherwise in respect of any loss, damage or expense arising out of or in connection with the Services, a Job, or the relationship between the parties, that is:

  • (a) an indirect or consequential loss, even if we have been advised of, know of, or should have known of the possibility of such loss, damage or expense; or
  • (b) for any lost profits, loss of expectation, not achieving a saving, lost revenue, lost data, damage to any goods, or losses arising from business interruption or loss of goodwill.

14. Term and termination

14.1 You or we may terminate this agreement by written notice.

14.2 We may suspend or terminate your participation on the Fabulate Platform at any time in our absolute discretion.

14.3 If this agreement is terminated then you will not be able to complete any Jobs in progress. You release us from any liability arising out of your inability to perform or complete a Job due to suspension of your participation on the Fabulate Platform or termination of this Agreement.

14.4 Each warranty and indemnity under this agreement shall survive termination of this agreement.

15. General

15.1 You are an independent contractor and there is no relationship of employment between us and you.

15.2 These terms contain the whole of the agreement between us and you.

15.3 We may vary these terms on 30 days’ notice to you by publishing the proposed variations on the Fabulate Platform, and these terms will apply to any Job commencing after the notice period.

15.4 We may assign our obligations under this agreement or novate this agreement by notice to you.

15.5 The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, Australia, and this agreement will be construed in accordance with the laws of that jurisdiction.

15.6 Any notice under this agreement may be given by email to the last notified address of a party. Notices to Fabulate must be emailed to contact@fabulate.com.au. Notices by email will be deemed to have been received when the recipient’s mail server has received the email.

2. Fabulate Customer Terms and Conditions

Supply of Fabulate Platform Services to Customers

These Terms apply to Customers of Fabulate Pty Ltd ABN 19 629 887 501, trading as Fabulate (Fabulate) through Fabulate’s systems at fabulate.com.au. The Terms set out our agreement with you and are a binding contract.

If you agree to these Terms then you are entering into a contract with Fabulate. You may not access our services unless you agree to these Terms.

To make this contract easier to read, there are some defined words and phrases used in it.

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth).

Brief means a draft scope of work required by a Customer.

Creative Services means the services, media, goods (electronic or otherwise) and other material provided to Customers.

Creators means the people who provide services to Customers through Fabulate Platform.

Customers means the people who receive services from Creators through Fabulate Platform.

Distributors means content distributors and publishers who disseminate Creative Services to the general public.

Fabulate Platform means the web site and systems at www.fabulate.com.au.

IPR means all present and future industrial and intellectual property rights of any kind, including all rights conferred under statute, civil law or common law or equity, including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in confidential information or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or.

Job means an agreed scope of work and contract between Creator and Customer.

Personal Information means information about an individual person as defined in the Privacy Act 1988 (Commonwealth).

Pitch means a submission by a Creator in response to a Brief.

Services means the services set out in the section below “Services we provide”.

Terms means these terms and conditions.

we, us, our means Fabulate Pty Ltd ABN 19 629 887 501 of 13 Imperial Avenue, Bondi, New South Wales, 2026, Australia.

you, your, yourself means the person reading and agreeing to these terms, or if you are agreeing to these terms on behalf of a company or someone else, that other person (including a company).

1. Services we provide

1.1 We are a marketplace, communication, distribution and workflow platform. The Fabulate Platform provides these Services:

  • (a) facilitating the briefing, pitching for and awarding of work between Customers and Creators;
  • (b) digital asset management (the Vault) for storing digital assets (Assets);
  • (c) managing the data and communications between Customers and Creators;
  • (d) facilitate the distribution of final work through Distributors, and associated payments;
  • (e) collecting fees from Customers and paying the Creators; and
  • (f) payment of Distributors.

1.2 We do not:

  • (a) provide Creative Services to Customers – that’s what the Creators do;
  • (b) accept liability for the acts and omissions of the Creators or Customers; or
  • (c) guarantee the work of Creators.

1.3 When a Customer agrees to a Job with a Creator, a separate contract is formed between the Customer and the Creator. The terms of that contract are here.

1.4 The combined fees for our Services and the Creator's services will be displayed to you before you upload a Brief.

2. Information about Creators

2.1 We require Creators to provide us with information about their experience and qualifications. It is a fundamental term of our agreement with them that they act in utmost good faith in providing us with this information. We rely on the accuracy of the representations of the Creators, and you agree we are not obliged to verify those representations.

2.2 We may refuse to enter into any agreement with a Customer, and exclude Customers from the Fabulate Platform in our absolute discretion.

2.3 You agree that we are not liable to you for any loss, claim or expense that arises out of inaccurate information or material provided to you or us by any person, and you release us accordingly.

2.4 We will not share your personal information with anyone except Creators, our consultants who provide services to us, and in the limited circumstances as set out in our Privacy Policy at https://fabulate.com.au/privacy-policy/. You agree that you have read that Privacy Policy before consenting to give us personal information. We may change our Privacy Policy from time to time and will notify you before we make any changes.

3. Understanding the arrangements between you and us

3.1 In our absolute discretion we may facilitate a Job between you and a Creator. We are not obliged to provide your contact details to any Creators. We may provide the Brief to any Creators in our absolute discretion.

3.2 A Customer may choose a Creator from the list we provide.

3.3 A Job will occur after we provide a Customer with the details of one or more Creators, publish a Brief, one or more Creators submit a Pitch, and you choose a Creator to perform the Job.

3.4 When a Job is created then you agree to pay the relevant fee.

3.5 Once the Customer selects a Creator and the Job is agreed, then the Customer become a client of the Creator for the purposes of the Job. If there is a problem with the content of the Job then that is matter between the Creator and the Customer. You must, and do release us from all liability arising out of or in relation to the Job.

3.6 You may terminate a Job due to creative differences or for convenience. You must pay the fees in according with the following schedule:

Stage of termination % of fees
Termination for convenience after award of Job and before first draft submitted 50%
Termination after first draft 100%

3.7 If you do not respond to a Creator’s first draft within four weeks then we may terminate the relevant Job and you must pay a fee as if you terminated for convenience after the first draft.

4. Fees and payment

4.1 You must pay to us the relevant fee for a Job. We may require you to pay the fee before we provide any Services. If you pay by credit card we may pass our merchant’s fees through to you at cost.

4.2 We will issue a Tax Invoice in respect of each Job.

4.3 We are appointed by the Creator as the Creator’s agent to collect the fee and pay the Creator’s portion of the fee.

4.4 If we permit you to hold a trade credit account with us, you must pay each Tax Invoice within 30 days of us sending you the Tax Invoice unless otherwise agreed in writing. If you fail to pay within these terms then you must pay interest on the outstanding amount at 8% per annum calculated daily.

4.5 You must pay each Tax Invoice in Australian Dollars by one of the methods set out on the Tax Invoice.

5. Content distribution

5.1 If you request us to provide you with content distribution by third parties then we will provide you with a proposed schedule of services and pricing (Proposal).

5.2 If you agree to a Proposal then you must pay us the fees in accordance with the Proposal.

6. Refunds and disputes

6.1 We may provide you with a refund in relation to a Job in some circumstances, including:

  • (a) where you have the benefit of a statutory warranty under the Australian Consumer Law;
  • (b) where we agree to provide a refund for termination of a Job;
  • (c) where the Creator:
  •      (i) was unqualified or misrepresented his or her qualifications or experience,
  •      (ii) failed to provide the Job or time or at all, or
  •      (iii) did not provide the Job in the manner agreed or as set out in the brief.

6.2 If a dispute arises between you and a Creator then you must make prompt and good faith efforts to resolve the dispute. If the dispute is not resolved within 14 days of it being raised then you must notify us and provide us with details of the dispute.

6.3 We may require resolution of the dispute by requiring the Creator to re-perform or re-supply material in relation to a Job where the material does not comply with the Brief and the Pitch as amended by the parties.

6.4 You must indemnify us for all loss, claims, expense, costs, legal fees, damages and judgements incurred by us resulting from a dispute in relation to a Job, except to the extent caused by us. We must attempt to mitigate our losses.

7. Documents and information

7.1 We provide a messaging platform that allows the Creator and the Customer to exchange documents and information. We have implemented that platform taking measures to ensure it is secure, but we do not warrant that it cannot be subject to an information security breach. You agree that we are not liable to you for any loss, claim or expense that arises out of a messaging platform security breach.

7.2 We provide the Vault for Assets. We will use reasonable commercial endeavours to make the Vault and Assets available except during maintenance and repair periods. However, Fabulate expressly does not warrant that:

  • (a) the Vault and or Assets will always be available;
  • (b) any particular amount of storage in the Vault will be available to you; or
  • (c) deleted Assets can be restored to the Vault.

7.3 You release us from all liability however arising from unavailability of the Vault or Assets.

8. Your obligations

8.1 You must:

  • (a) prepare Briefs in a reasonable form so that Creators may prepare a responsive Pitch;
  • (b) use the Fabulate Platform strictly in accordance with any documentation provided or instructions notified to you;
  • (c) not seek services of Creators outside the Fabulate Platform or in any way circumvent the operation of the Fabulate Platform. This includes contacting a Creator outside the Fabulate Platform, or seeking services from a Creator who has been introduced to you by us, or you or the Creator cancelling a Job partially or wholly to go outside the Fabulate Platform. If you had a pre-existing professional relationship with a Creator prior to first using the Fabulate Platform then this restriction does not apply to you.;
  • (d) ensure that anything uploaded to the Vault does not contain any malware of any nature;
  • (e) comply with all laws relevant to the Fabulate Platform and/or a Job;
  • (f) not during a Job or in communications with us or a Creator speak or act in a manner that is lewd, profane, insulting, sexual, pornographic, illegal, or defamatory;
  • (g) release us from any liability or claim arising out of the content of the Job, including any third party claims for breach of IPR;
  • (h) indemnify us for any cost, loss or expense we incur arising out of or in connection with any claim by a Customer, Creator or third party in relation to a Job, except to the extent caused by us;
  • (i) maintain your own backups of material you submit to the Vault, subject to any IPR held by a Creator or third parties;
  • (j) not reverse engineer or attempt to re-create the functionality of the Fabulate Platform wholly or in part;
  • (k) keep confidential all information (and particularly Briefs and all communications between you and a Creator) provided to you by a Creator and us, except to the extent consented to by the Creator or us.

9. IPR Licence, assignment and indemnity

9.1 You grant us a royalty-free, perpetual, world-wide and non-exclusive licence to reproduce, publish, perform, communicate, adapt, and use any materials that are comprised in a Brief or Job to the extent necessary for us to provide the Services and any incidental internal purposes.

9.2 If you include third-party material in a Brief you must notify the Creator of any licensing requirements for the Creator.

9.3 If we provide you with any third-party sublicence, you must comply with any requirements of the sublicence. In particular, if content in a Job is subject to a third party licence (for example, an commercial image provider) then you must only use that content in accordance with the licence.

9.4 You must not do anything that infringes the IPR of any person, including in relation to material created or supplied for a Brief or Job.

9.5 You warrant to us that all Briefs will not infringe the rights of any third party, including infringement of IPR. If a third party makes a claim against us for infringement of their rights in relation to a Job then you must indemnify us for all costs, expenses, damages, legal costs, judgements, fines and any other impost we suffer.

10. Reviews and feedback

10.1 Customers may provide a rating and review of a Creator after a Job. A general summary of these is that a review must be honest, objectively correspond with what actually happened during the Job, not be rude or insulting, and not expose you, the Creator or us to any legal liability. We may remove any review in our absolute discretion.

10.2 If you receive a complaint that a Creator or other person considers that a rating or review is unfair, not based on objective matters, or is illegal or defamatory then you must contact us without delay.

10.3 We may, in our discretion, remove any rating and or review.

11. Insurance

11.1 We may provide professional indemnity insurance and public & products liability insurance on a Creator’s behalf, as applicable, for Creators supplying Creative Services on the Fabulate Platform. We do not warrant that the insurance will respond for any particular claim. Creators are be responsible for payment of any deductible as a condition of indemnity by the insurer.

12. Warranties

12.1 Except as required by law (such as the Australian Consumer Law), we expressly exclude any warranties as to the Services, the Job or its content.

13. Australian Consumer Law

13.1 As set out elsewhere in these Terms, we do not provide the content of the Job. The Job is provided by the Creator. We provide the Services as defined above in these Terms.

13.2 Despite anything else in these Terms, where you are entitled to a statutory guarantee under sections 60 to 62 of the Australian Consumer Law in relation to our Services, then to the extent that we fail to comply with such guarantee, our liability for such a failure is limited to, at our option:

  • (a) supplying the services again; or
  • (b) payment of the cost of having the services supplied again, unless it is not fair or reasonable for us to rely on this term of the Terms.

13.3 Just to be clear: if there is a breach of the statutory guarantee by the Creator then that is a breach of the arrangement between the Customer and the Creator. If we have not yet passed on a payment to the Creator then we may withhold passing on payment (in our discretion), pending a resolution of a dispute between the Customer and the Creator.

14. Limitation of liability

14.1 To the extent permitted by law, we are not liable to you in contract (including under an indemnity), tort, breach of statutory duty or otherwise in respect of any loss, damage or expense arising out of or in connection with the Services, a Job, or the relationship between the parties, that is:

  • (a) an indirect or consequential loss, even if we have been advised of, know of, or should have known of the possibility of such loss, damage or expense; or
  • (b) for any lost profits, loss of expectation, not achieving a saving, lost revenue, lost data, damage to any goods, or losses arising from business interruption or loss of goodwill.

15. Term and termination

15.1 You or we may terminate this agreement by written notice.

15.2 We may suspend or terminate your participation on the Fabulate Platform at any time in our absolute discretion.

15.3 If this agreement is terminated then you will not be able to complete any Jobs in progress. You release us from any liability arising out of your inability to perform or complete a Job due to suspension of your participation on the Fabulate Platform or termination of this Agreement.

15.4 Each warranty and indemnity under this agreement shall survive termination of this agreement.

16. General

16.1 There is no relationship of employment or partnership or subcontractor between us and Creators. We are not your partner.

16.2 These terms contain the whole of the agreement between us and you.

16.3 We may vary these terms on 30 days’ notice to you by publishing the proposed variations on the Fabulate Platform, and these terms will apply to any Job commencing after the notice period.

16.4 We may assign our obligations under this agreement or novate this agreement by notice to you.

16.5 The parties irrevocably submit to the exclusive jurisdiction of the courts of New South Wales, Australia, and this agreement will be construed in accordance with the laws of that jurisdiction.

16.6 Any notice under this agreement may be given by email to the last notified address of a party. Notices to Fabulate must be emailed to support@fabulate.com.au. Notices by email will be deemed to have been received when the recipient’s mail server has received the email.

3. Terms and conditions between Creator and Customer

These are the terms and conditions of the contract between a Creator and a Customer when the contract is created on the Fabulate Platform at https://www.fabulate.com.au

Australian Consumer Law means Schedule 2 to the Competition and Consumer Act 2010 (Commonwealth).

Brief means a draft scope of work required by a Customer.

Creator means the people who provide services to Customers through Fabulate Platform.

Customer means the people who receive services from Creators through Fabulate Platform.

Deliverables means the goods or services provided by a Creator to a Customer in respect of a Pitch.

Fabulate Platform means the web site and systems at www.fabulate.com.au.

IPR means all present and future industrial and intellectual property rights of any kind, including all rights conferred under statute, civil law or common law or equity, including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semiconductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in confidential information or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature.

Job means an agreed scope of work and contract between Creator and Customer.

Pitch means a submission by a Creator in response to a Brief.

Terms means these terms and conditions.

1. Creator obligations

1.1 The Creator sells the Deliverables to the Customer upon payment of any fees with respect to the Deliverables.

1.2 The Creator and Customer must in good faith work together with each other to facilitate the provision of Deliverables by the Creator to the Customer with respect to a Pitch.

1.3 The Creator does not warrant that the Deliverables will in every respect conform with the Pitch.

1.4 The Creator must provide the Deliverables in accordance with the Job and any agreed time for delivery.

2. Intellectual Property

2.1 Unless expressly agreed otherwise in writing, conditional upon payment of any fees payable with respect to the Deliverables, the Creator assigns all existing and future IPR in the Deliverables to the Customer.

2.2 The Creator irrevocably provides consent to the Customer to adapt, translate, commercialise, exploit and treat the Deliverables for the Job in any way without your asserting any of the Creator’s moral rights (as defined under the Copyright Act 1968 (Cth) and its amendments) or any similar right in any jurisdiction, including:

  • (a) without attributing the right of authorship in the materials to the Creator;
  • (b) any false attribution of the authorship of the materials; and
  • (c) without requiring the Creator’s consent for any use, adaptation, commercialisation, exploitation or treatment of the materials, whether derogatory or not.

3. Mutual Obligations

3.1 The parties agree that the Pitch does not bind either party as to the Deliverables required in respect of a Pitch. The parties acknowledge that the Deliverables are a product of discussion, negotiation and creative effort as between the parties.

3.2 The parties agree that all materials, output, Deliverables and communications with respect to a Job must be transmitted to each other on the Fabulate Platform.

3.3 The parties must, in respect of a Job, act in good faith.

4. Warranties

4.1 Except as required by law (such as the Australian Consumer Law), the Creator expressly excludes any warranties as to the Job and Deliverables.

5. Australian Consumer Law

5.1 Despite anything else in these terms, where a Customer is entitled to a statutory guarantee under sections 60 to 62 of the Australian Consumer Law in relation to the Deliverables, then to the extent that the Creator fails to comply with such guarantee, the Creator’s liability for such a failure is limited to, at its option:

  • (a) supplying the services again; or
  • (b) payment of the cost of having the services supplied again,

unless it is not fair or reasonable for the Creator to rely on this term.

6. Limitation of liability

6.1 To the extent permitted by law, neither party is liable to the other in contract (including under an indemnity), tort, breach of statutory duty or otherwise in respect of any loss, damage or expense arising out of or in connection with a Job, the Deliverables or the relationship between the parties, that is:

  • (a) an indirect or consequential loss, even if a party has been advised of, know of, or should have known of the possibility of such loss, damage or expense; or
  • (b) for any lost profits, loss of expectation, not achieving a saving, lost revenue, lost data, damage to any goods, or losses arising from business interruption or loss of goodwill.

Distribution Terms

1. Services

1.1 The Distributor must perform the Services in accordance with a Distribution Package purchased by the Customer.

1.2 If the Services are not performed in accordance with their terms the Distributor must promptly re-perform the Services. If re-performance of the Services will be of little or no utility to the Customer due to the temporal requirements of the Customer then the Distributor must refund part or all of Fees, pro-rated for the Services not supplied in accordance with this Agreement.

1.3 The Services must be performed:

  • (a) in accordance with this Agreement, the relevant Distribution Package and all applicable Laws;
  • (b) with due care, skill and diligence;
  • (c) with due expedition and without delay;
  • (d) in a proper and professional manner, and in accordance with best industry practice; and
  • (e) in accordance with the Customer’s reasonable instructions or requirements.

1.4 The Distributor must:

  • (a) co-ordinate all aspects of the Services;
  • (b) perform the Services within the timeframes and budgets as agreed and as set out in a Distribution Package;
  • (c) promptly provide the Customer with all information in connection with the Services, Distribution Packages and this Agreement that the Customer may reasonably request; and
  • (d) promptly provide the Customer with any information that affects, or may reasonably affect the Customer upon becoming aware of such information.

2. Payment

2.1 The Customer must pay Fabulate Pty Ltd the agreed fees for the Services, and such payment will be a full discharge by the Distributor for the Customer’s obligations to pay for the Services.

3. Confidentiality

3.1 Subject to clause 3.2, a Receiving Party must:

  • (a) keep confidential; and
  • (b) not use or permit any unauthorised use of,

the Confidential Information of a Disclosing Party.

3.2 Clause 3.1 does not apply where:

  • (a) the information is in, or comes into, the public domain (other than by a breach of this clause 3 or any other duty of confidence owed by the Receiving Party);
  • (b) the Receiving Party has the prior written consent of the Disclosing Party;
  • (c) the disclosure is required by law;
  • (d) the disclosure is required in order for the Receiving Party to comply with its obligations under this Agreement; or
  • (e) the disclosure is to the Receiving Party’s personnel, auditors, insurers, agents and professional advisers on a ‘need to know’ basis in relation to matters arising in connection with this Agreement and provided that the Receiving Party ensures the above persons comply with the terms of this clause 3.

3.3 Each Party acknowledges and agrees that monetary damages may not be an adequate remedy for a breach of this clause 3. A Party is entitled to seek an injunction, or any other remedy available at law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 3.

3.4 This clause 3 will survive termination or expiry of this Agreement.

4. Warranties and representations

4.1 Each party represents, warrants and agrees that:

  • (a) it has full legal capacity, right, authority and power to enter into this Agreement, to perform its obligations under this Agreement, and to carry on its business;
  • (b) it is not aware of any actual or potential conflict of interest in providing or acquiring the Services as the case may be, and the execution and performance by it of this Agreement does not conflict with any Law;
  • (c) it is registered for GST purposes.

5. Privacy

5.1 Each party must comply with the requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) (as if it were an “APP entity” as defined in the Privacy Act 1988 (Cth)) and any other applicable legislation or privacy guidelines that may apply to it or the provision of the Services.

5.2 A party may provide the other with access to personal information where necessary for the provision of the Services. A party must only use such information in accordance for the sole purpose of provision of the Services.

5.3 This clause will survive the termination or expiry of this Agreement.

6. Termination

6.1 This Agreement will apply from the commencement of the Services and continue until the Services are complete, unless terminated earlier in accordance with this clause or by law.

6.2 The Customer may terminate this Agreement at any time by giving notice in writing to the Distributor. The Customer must pay pro-rata for Services delivered by the Distributor.

6.3 Upon expiry or termination of this Agreement:

  • (a) the Distributor must immediately stop performing the Services; and
  • (b) each Party must immediately return to the other all property (including Confidential Information and any Intellectual Property) in its possession.

6.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

6.5 This clause will survive the termination or expiry of this Agreement.

7. GST

7.1 If GST is payable on any supply made under this Agreement, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under this Agreement and must be paid in addition to the consideration expressed elsewhere in this Agreement, unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.

7.2 If an adjustment event arises in respect of any supply made under this Agreement, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.

7.3 If the recipient is required under this Agreement to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.

7.4 The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

8. General

8.1 Amendment: This Agreement may only be amended by written instrument executed by the Parties.

8.2 Assignment: A Party must not assign or deal with the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other Party (such consent is not to be unreasonably withheld).

8.3 Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.

8.4 Online execution: This Agreement may be executed by means of such third party online document execution service as we nominate subject to such execution being in accordance with the applicable terms and conditions of that document execution service.

8.5 Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, this Agreement (including any question regarding its existence, validity or termination) (Dispute) without first meeting with a senior representative of the other Party to seek (in good faith) to resolve the Dispute. If the Parties cannot agree how to resolve the Dispute at that initial meeting, either Party may refer the matter to a mediator. If the Parties cannot agree on who the mediator should be, either Party may ask the Law Society of New South Wales to appoint a mediator. The mediator will decide the time, place and rules for mediation. The Parties agree to attend the mediation in good faith, to seek to resolve the Dispute. The costs of the mediation will be shared equally between the Parties. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

8.6 Entire Agreement: This Agreement contains the entire understanding between the Parties, and supersedes all previous discussions, communications, negotiations, understandings, representations, warranties, commitments and Agreements, in respect of its subject matter.

8.7 Further assurance: Each Party must promptly do all things and execute all further instruments necessary to give full force and effect to this Agreement and their obligations under it.

8.8 Governing law: This Agreement is governed by the laws of New South Wales. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in New South Wales and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.

8.9 Notices: Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 3 days in the case of post, or at the time of transmission in the case of transmission by email.

8.10 Relationship of Parties: This Agreement is not intended to create a partnership, joint venture, employment or agency relationship between the Parties.

8.11 Severance: If a provision of this Agreement is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from this Agreement without affecting the validity or enforceability of the remainder of that provision or the other provisions in this Agreement.

9. Interpretation

9.1 In this Agreement, unless the context otherwise requires:

  • (a) a reference to this Agreement or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
  • (b) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
  • (c) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
  • (d) a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
  • (e) a reference to a covenant, obligation or Agreement of two or more persons binds or benefits them jointly and severally;
  • (f) a reference to time is to local time in New South Wales; and
  • (g) a reference to $ or dollars refers to the currency of Australia from time to time.

Definitions

Confidential Information means information which is expressed to be confidential or by its nature is confidential and:

  • (a) is disclosed to the Receiving Party in connection with this Agreement at any time;
  • (b) is prepared or produced under or in connection with this Agreement at any time;
  • (c) relates to the Disclosing Party’s business, assets or affairs; or
  • (d) relates to the subject matter of, the terms of and/or any transactions contemplated by this Agreement,
    whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Customer means the people who receive services through the Fabulate Platform.

Disclosing Party means the party disclosing Confidential Information to the Receiving Party.

Distribution Package means the suite of services, advertisements and other activities comprising the Services.

Distribution Package Fee means the agreed fee for the provision of the Services which Customers pay to us.

Fabulate Platform means the web site and systems at www.fabulate.com.au.

Fees means the fees payable by the Customer for the Services.

Laws means all applicable laws, orders, judgments, rules, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any person with the authority to bind the relevant Party in connection with this Agreement or the performance of the Services.

Receiving Party means the party receiving Confidential Information from the Disclosing Party.

Services means the delivery of a Distribution Package purchased by the Customer.

Terms means these terms and conditions.