Fabulate Marketplace Terms and Conditions
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).
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.
A licence for us to use your content to provide the Platform: You are permitted to post, upload, publish, store, submit or transmit and receive relevant information and content, including Briefs, Pitches, the Job Content and Assets (User Content) on and through our Platform, including through Vault. 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.
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.
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.
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) and Vault. Your use of our Platform and your use of and access to any Content or Vault does not grant or transfer to you any rights, title or interest in relation to our Platform, the Content or Vault.
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.
Our provision of Vault is solely intended for you to obtain the benefits of the Platform, including posting Briefs and transmitting the Job Content. You agree that any use of Vault that is not in accordance with these Terms, will allow us to terminate these Terms, or charge you additional fees, for such unauthorised use of Vault (for example, back up storage).
At any given time, you will only be able to store 5GB of total Assets in Vault.
We assume no responsibility for the Assets you upload to Vault, to the extent permitted by law. You are solely responsible for the Assets and the consequences of using, disclosing, storing or transmitting it through Vault. It is your responsibility to back up any Assets.
(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 (including or excluding GST as applicable) 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.
(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.
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):
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.
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.
(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.
To the extent permitted by law, we make no representations or warranties about our Platform, Vault, 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:
(4) event or circumstance beyond our reasonable control;
(5) a fault, defect, error or omission in your computing environment; or
(6) act or omission of you or your related parties,
(7) 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.
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.
We will provide the professional indemnity insurance and public & products liability insurance, as applicable, for Journalists supplying their journalistic services on the Platform. If you are a Journalist, please 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. Please do not do any act or omission that may void insurance cover for you as a Journalist, 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.
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. 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 New South Wales and any courts entitled to hear appeals from those courts and waive any right to object to proceedings being brought in those courts.
These Distribution Terms apply to:
for delivery of the Distribution Package.
The Client agrees that it is solely responsible for all User Content that it makes available and which the Online Publisher distributes as part of the Distribution Package (Distribution Content).
Online Publisher acknowledges and agrees that the intellectual property rights in the Distribution Content is and remains at all times the intellectual property of the Client.
Client grants Online Publisher a limited, worldwide, non-exclusive, revocable licence to use, view, copy, adapt, modify, distribute, license, communicate, publicly display, publicly perform, transmit, stream, broadcast, or access the Distribution Content to the extent required to obtain the benefit of the Distribution Package.
We will invoice a Client for the Distribution Package Fee at the time the relevant Online Publisher accepts a request to provide a Distribution Package to that Client. Clients must pay us the Distribution Package Fee within the timeframe agreed in our commercial arrangement with the Client.
We will remit the Distribution Package Fee, less our commission, to the Online Publisher on behalf of the Client.
(a) The cancellation and 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 Online Publisher mutually agree to cancel a Job; or
(2) we are satisfied that part or all of the Distribution Package Fee should be returned to the Client,
we will return part or all of the Distribution Package Fee to the Client, as applicable.
(c) If, for any reason, a Distribution Package 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 Distribution Package Fee, the Distribution Package Fee will remain in our escrow account until paid or otherwise for up to six months from the date the Distribution Package Fee was originally paid into the escrow account.
(d) Following the six months outlined in clause (d) and provided there is still no dispute in respect of the Distribution Package Fee, the Distribution Package Fee will be automatically credited to the Client where possible.
(e) As a Client, once you have accepted a Distribution Package you cannot cancel a Distribution Package for convenience and you will not be entitled to a refund if you do attempt to cancel for convenience.
To the extent permitted by law, we make no representations or warranties about Distribution Packages, Distribution Content, Clients or Online Publishers 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) Clients will seek Online Publishers;
(d) Clients will find desirable the Distribution Packages; or
(e) the Distribution Content will be of a particular standard of workmanship.
You use, and act on our Platform at your own risk.
Distribution Package disputes: We encourage Clients and Online Publishers to make a genuine attempt to resolve disputes (including claims for 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 an Online Publisher, to re-supply any part of the Distribution Package that is not performed or provided to the Client in accordance with these Distribution Terms.
For any questions and notices, please contact us at:
Last update: 11 November 2020
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