Fabulate Pty Ltd
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 Suite 2.01 Level 2 Grafton building 201A Kent Street Sydney NSW 2000.
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).
1.1 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.
2.1 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.
3.1 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.
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.
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.
6.1 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.
7.1 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.
8.1 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.
9.1 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.
10.1 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.
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.
12.1 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.
13.1 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.
14.1 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.
15.1 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.
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 Suite 2.01 Level 2 Grafton building 201A Kent Street Sydney NSW 2000.
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).
1.1 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 as agreed for a Job. The fees will include a platform fee and management fee.
The fees may be otherwise agreed between the parties for a Job.
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.
3.1 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:
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.
4.1 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’ sagent to collect the fee and pay the Creator’s portion of the fee. We will pay the Creator their share of the fees within two business days of our receipt of the fees payable by You.
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.
5.1 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.
6.1 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) accept liability for the acts and omissions of the Creators or Customers; or
(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.
7.1 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.
8.1 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.
9.1 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.
10.1 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.
11.1 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.
12.1 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.
13.1 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.
14.1 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.
15.1 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.
16.1 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.
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.
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.
1.1 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.
2.1 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.
3.1 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.
4.1 Except as required by law (such as the Australian Consumer Law), the Creator expressly excludes any warranties as to the Job and Deliverables.
5.1 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.
6.1 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.
These terms apply in addition to any other terms and conditions for the Fabulate Platform, including:
– the Fabulate Creator Terms and Conditions; and
– the Creator-Customer Terms and Conditions;
except to the extent that a term or condition in these Influencer Terms and Conditions directly conflicts with another document, and in such case this document will prevail.
A. Influencer, being (a) an individual influencer on social media platforms and/or with a blog site (Influencer), or (b) an organisation that manages the Influencers (Influencer Agency),has registered with Fabulate’s platform (Platform). Influencer acknowledges that the Platform uses third party suppliers for technology solutions and related services.
B. Influencer has agreed to create Content (meaning articles, social stock videos, social shoot videos, speedy tips videos, social snacks, emotionalsocial videos and other content) for Fabulate‘s clients on the Fabulate Platform (Customers). The Contentwill be submitted to the Platform, approved by the relevant Customer for which the Content was created, and then published on the Influencer’s digital properties or social media platform, and/or amplified by the Customer inaccordance with the Campaign Brief.
1.1 These Fabulate Influencer Terms and Conditions (Terms) commence on the date on which a Brief is awarded to the Influencer by the Customer and shall apply to all Campaign Briefs, booking forms or any other form of order submitted by Customer for the purchase of services from the Influencer (each a Campaign Brief).
1.2 Each Campaign Brief forms a separate agreement with Influencer (Agreement) which comprises these Terms.
2.1 A Customer may submit Campaign Briefs to Influencer under which Influencer will deliver Content for the benefit of Fabulate, its Affiliates, and the relevant Customer(s) for which the Content was created.
2.2 Unless specifically agreed otherwise by the parties in a Campaign Brief, as between these Terms and a Campaign Brief, in the event of any conflicting or additional terms, the terms of the Campaign Brief shall prevail.
3.1 Influencer will deliver or procure delivery of Content to the Platform, and then publish the Content on the Influencer’s digital properties or social media account, in accordance with these Terms (including the Influencer and Blogger Rules attached hereto at Schedule 2 (the Rules) and, where applicable, the Site Requirements attached hereto at Schedule 1 (the Requirements)) and the terms of the relevant Campaign Brief.
3.2 The Campaign Brief may state the start and end date per advertising campaign (Campaign). These dates must be complied with as many Campaigns are time sensitive (i.e. time is of the essence in a Campaign Brief), unless otherwise stated in Campaign Brief.
3.2 The Campaign Brief may state the start and end date per advertising campaign (Campaign). These dates must be complied with as many Campaigns are time sensitive (i.e. time is of the essence in a Campaign Brief), unless otherwise stated in Campaign Brief.
(a) the Site (as defined in clause 5.1 below) on which the Content will be placed complies with the Requirements;
(b) to the extent within Influencer’s control, no Content is placed or attempted to be placed adjacent to editorial containing and/or relating to violence, sex, profanity, racism, sexism, religion, gambling, pornography, abortion, hate speech, extreme political views and fake news or any other highly explosive subject matter; provided, however, that sexual content shall not be in violation of this subsection where provided in an educational and/or informational context; and
(c) Influencer shall not display or permit the display of Content on any Site, or otherwise in any manner associate the Customer or Content with any website, person or entity (or content related thereto), that is in the business of copying, distributing, or publishing, or facilitating or enabling the copying, distribution or publication of material without authorisation from the applicable copyright holders, including but not limited to peer-to-peer sharing sites and sites containing pirated content.
4.2 In the event of a breach by Influencer of clause 4.1 above, Customer shall notify Influencer that specific Content is in breach of clause 4.1, thereafter Influencer will use all reasonable efforts to correct such breach as soon as possible, and in any event Influencer shall ensure that such breach is corrected within a maximum of three hours of notification by Fabulate.
5.1 This clause 6 only applies where Influencer has a blog or other website, and Site shall mean the site or sites owned or controlled by Influencer or the blog site or sites, as applicable.
5.2 Unless otherwise agreed, the Site must accept rich media tags, third party tags or cookies for the purpose of Campaign verification and measurement, and data collection ("Tags") and Influencer hereby agrees to accept and fully implement such Tags. Fabulate and Customer shall have no liability for the effect of Tags on the Site.
5.3 Influencer must ensure that its Site, including mobile optimised sites and mobile applications, contains an adequate privacy policy and disclosures regarding personal data or personally identifiable data, and obtains consent for third party cookies, or other similar technologies, in order to comply with all applicable laws, regulation and regulatory guidelines including Data Protection Law.
6.1 Fraudulent Traffic means generating, presenting or using data that relates to anything other than a natural person viewing content on Influencer’s social media sites, blogs or digital properties in the normal course of using any device. Fraudulent traffic includes any or all of the following: a natural person engaged for the purpose of viewing Content; non-human visitors to Influencer’s social media sites, blogs or digital properties; fake or fraudulent followers on social media; displays not discernible by a human being; and any fraudulent engagement such as fraudulent likes, shares, reactions, or comments on social media.
6.2 Influencer will not procure Fraudulent Traffic to social media sites, blogs or digital properties on which Content will be delivered.
7.1 Influencer (or in the case of an Influencer Agency it shall procure that any Individual Influencer providing Content) represents and warrants that:
(a) it has the full right, power and authority to enter into each Agreement;
(b) it shall comply with all applicable laws and regulations (including but not limited to Data Protection Law, as defined in clause 11.1 below, any Advertising Guidelines, defined in Schedule 2 below);
(c) the execution of each Agreement and performance of its obligations thereunder does not and will not violate any other agreement to which it is a party;
(d) any Content:
(i) shall comply with all applicable laws and Rules;
(ii) shall be original and shall not infringe the rights of any third party;
(iii) shall not be defamatory,, obscene, indecent or pornographic, violent, liable to incite unlawful discrimination or terrorism, relate to illegal drugs or drug paraphernalia, or relate to the sale of weapons or counterfeit goods,
(iv) shall not incorporate any Customer-related intellectual property or branding such as trade marks, unless such incorporation has been expressly agreed in writing with Fabulate (and in which case such incorporation shall be in accordance with any guidelines provided by Fabulate or Customer to Influencer);
(v) shall be in accordance with the standards set out in these Terms and the applicable Campaign Brief, and such standards as are applicable in the relevant industry;
(e) it shall comply with clause 11;
(f) it shall maintain your customary image (including your usual physical appearance and styling) for each personal appearance under the Agreement, except with our prior written consent (not to be unreasonably withheld or delayed);
(g) it is, so far as it is aware, in a state of sufficiently good health to be able to perform its obligations under the Agreement;
(h) it is not the subject of any current or pending legal proceedings, it does not have a criminal record and is not subject to any outstanding criminal investigation; and
(i) it has never received nor been recommended treatment for any form of addiction to alcohol, drugs or gambling.
7.2 Without prejudice to Fabulate’s or Customer’s other rights under the Agreement, in the event that Fabulate or Customer determines (acting reasonably) that there has been a breach of any of the warranties given in clause 7.1, Fabulate or Customer may reject any associated Content and/or require re-delivery of the same by Influencer at no additional cost to Fabulate.
Fabulate or Customer shall be entitled to terminate these Terms and/or a Campaign Brief immediately upon written notice to the Influencer, in the event that the Influencer engages in any conduct which might reasonably be expected to bring the Influencer’s character or Fabulate or the Customer into disrepute or ridicule, or which damages or diminishes the reputation of the Influencer, Fabulate or the Customer.
8.1 Unless otherwise agreed between the parties in writing, Influencer:
(a) retains all right, title and interest in and to the Content; and
(b) grants a worldwide, exclusive (excluding Influencer), assignable and sub-licensable licence to Fabulate and Customer to use your Content in accordance with the agreed Campaign Brief, for the duration of the Campaign.
8.2 In relation to material provided by Customer to Influencer (Customer Materials):
(a) Customer or its licensors shall retain ownership of all intellectual property rights in the Customer Materials (meaning all documents, information, items and materials in any form, owned and/or created by Customer or its licensors).
(b) Customer grants the Influencer a limited, revocable, non-exclusive, non-assignable and non-sub-licensable licence to use the Customer Materials for the duration of the Campaign solely for the purpose of creating the Content pursuant to the Campaign Brief for Customer.
9.1 Influencer shall not use the Content, and shall procure that the Content is not used, for any purpose other than in fulfilment of its obligations under the relevant Campaign Brief, and in particular shall not use Content produced in respect of a particular Customer (and shall procure that such Content is not used) for the benefit of any other Customer (regardless of whether such Customer is a client of Fabulate).
9.2 Unless otherwise agreed in the Campaign Brief, Influencer shall not (or where Influencer is an Influencer Agency it shall procure that the Individual Influencer(s) shall not) publish, post or upload any Content on behalf of a competitor of any Customer that is the subject of a live Campaign Brief or any Campaign Brief completed within the preceding two weeks of the Campaign Content being published and for two months post Campaign Content being published.
10.1 Except to the extent caused or contributed to by Customer or Fabulate, Influencer agrees to defend, indemnify and hold harmless Fabulate, and its officers, employees, agents and the relevant Customer(s) from any and all damages, liabilities, costs and expenses (including reasonable legal fees) incurred or suffered, as a result of, arising out of, or in relation to:
(a) a third-party claim for any breach by Influencer of these Terms or the terms of a Campaign Brief;
(b) any Content; or
(c) any breach of, or failure to adhere to, any law.
10.2 In no event will either party be liable for any indirect or consequential losses whatsoever (including, without limitation, for loss of profits or revenue, business interruption and/or loss of data) incurred by the other party arising out of or in connection with an Agreement, even if such party has been advised of the possibility of such loss.
11.1 Influencer shall not use other third parties to perform the services under this agreement without the prior written consent of Customer. In the event that Customer approves Influencer’s use of third party, Influencer shall contract with such entity as principal (not as an agent) and shall be fully liable for its performance and for all payments to such entity.
11.2 Neither Fabulate nor Influencer may resell, assign or transfer any of its rights or obligations under an Agreement without the prior written consent of the other party. All terms and provisions of an Agreement will be binding upon and benefit the parties hereto and their respective permitted transferees, successors and assignees.
11.3 Fabulate and Influencer will comply at all times with all applicable laws, regulations and codes which are relevant to the performance of their respective obligations.
11.4 Each Agreement constitutes the entire agreement of its parties with respect to its subject matter and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to the subject matter of the Campaign Brief. The parties agree that the relevant Customer may in its own right enforce this Agreement against Influencer.
11.5 Clauses 10 and 11 and all warranties and indemnities shall survive termination or expiry of an Agreement. In addition, upon termination or expiry of an Agreement, each party shall promptly return or destroy the other party’s Confidential Information and remove any Tags.
11.6 Each Agreement shall be governed by and construed in accordance with the laws of New South Wales. Influencer and Fabulate (on behalf of itself and not Customer) agree that the courts of New South Wales shall have exclusive jurisdiction over any claims, legal proceeding or litigation (including of a non-contractual nature) arising in connection with an Agreement.
Where an Influencer owns any other digital properties:
1. Influencer either owns or reasonably believes that you are entitled to use the content displayed on the Sites.
2. Influencer does not knowingly include in the Site any virus or other destructive programming or device that could impair or injure any data, computer system or software and takes reasonable steps to identify and mitigate against the same.
3. Influencer will use all commercially reasonable technology and methodologies to prevent Fraudulent Traffic and detect and report Fraudulent Traffic should it occur.
4. The content of the Site does not:
(a) violate any applicable laws or regulations, including without limitation those relating to advertising, gambling, competitions, and consumer protection, and any Advertising Guidelines (as defined in Schedule 2 below).
(b) violate the rights of any person or entity, including without limitation any intellectual property or other proprietary right, any right of privacy, or by being defamatory.
(c) promote, encourage or incite violence, hatred or discrimination, promote extremist or terrorist views or promote or disseminate so called fake news and You shall use best endeavours to ensure the same.
5. Influencer does not promote or facilitate on the Site any activities that are illegal under applicable law or that infringe the rights of any person or entity, including without limitation the pirating of copyright works, or hacking or other unauthorised access to or modification of devices.
6. Influencer shall operate a notice and takedown policy in accordance with good industry practice that complies with applicable laws in respect of unlawful activity or information on the Site of which Influencer gains knowledge or awareness.
Where Influencer is an Individual Influencer it shall, and where Influencer is an Influencer Agency it shall procure that any Individual Influencer delivering Content pursuant to a Campaign Brief shall, comply with the rules set out below. In these Rules, you and your is a reference to the relevant Influencer, and us is a reference to Fabulate.
1. Read the Campaign Brief and create an original piece of Content that follows the brief and complies with the Content Rules set out below.
2. Submit the Content to the Platform in the format instructed by the Platform on or before the Campaign Submission Deadline. Please do not post it to your social media account or publish it anywhere else online unless you receive confirmation from us that you should do so. Content posted without our approval will not qualify for the Campaign and the Platform will not pay for it. We shall have the right of final approval of all Content.
3. We will review all Content submitted with the Customer and select the Content that we want to include in the Campaign.
4. We will contact you through the Platform and confirm that we wish to license your Content for the Campaign on the terms of this document and also confirm to you the Campaign Go Live Date.
1. Any Content must be created by you specifically in accordance with any requirements (including technical format) specified in the relevant Campaign Brief.
2. If any other person is visible in your Content, or your Content includes any creative work that belongs to someone else, then you must:
(a) explain to them what it will be used for and have their written permission to submit the Content to us and;
(b) have their written permission to give us, our Affiliates, and the Customer the licence described in the Campaign Brief.
3. If your Content includes any creative work that belongs to someone else you will also need permission from them to include it in the Content to be licensed to us, our Affiliates and the Customer. You will be fully responsible for any compensation that such a person seeks for use of their work and if any such person makes a claim against us, our Affiliates or the Customer you will be responsible for the amounts claimed by them.
4. The Content must comply with the rules of the Platform and of any applicable social media platform.
5. The Content must comply with all applicable industry/sector rules, codes, guidelines, and laws, including the Australian Association of National Customers (AANA) Code of Ethics and the Australian Influencer Marketing Council (AIMCO) Marketing Code of Practice, and any rulings and guidance issued by the Ad Standards, and any consumer protection laws enforced by the ACCC, or equivalent rules, codes, guidelines and laws in other jurisdictions (collectively Advertising Guidelines).
1. Do not publish your Content in advance of the confirmed Campaign go live date.
2. All Content should remain on the specified platform for a minimum of 12 months unless otherwise agreed in the Campaign Brief.
3. Do not publish the Content in any location other than as expressly requested by us.
4. When publishing your Content please mark it clearly with one of the following: #ad, #advert, #advertising, #paidpartnership and #paidpromotion and make use of any platform specific declaration tools.
5. Do not publish the Content near to other content which undermines the Campaign or is otherwise derogatory to the Customer or otherwise in a manner which is derogatory.
6. If we ask you to take your Content down for any reason you must do so as soon as reasonably practicable and in any event within twenty four (24) hours of receiving our request.
7. Do not publish the Content in violation the Advertising Guidelines.
8. Comply with all terms and conditions of the third-party platforms, to which the Content will be shared.
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.
2.1 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.
3.1 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.
4.1 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.
5.1 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.
6.1 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.
7.1 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).
8.1 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.
9.1 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.
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.
These terms apply in addition to any other terms and conditions for the Fabulate Platform, including the Fabulate Creator Terms and Conditions; and the Creator-Customer Terms and Conditions;
except to the extent that a term or condition in these Influencer Terms and Conditions directly conflicts with another document, and in such case this document will prevail.
1.1 This document contains the terms and conditions on which We grant You the right to Access and use our SaaS Services. You must read the document from start to finish.
1.2 When You either
(a) click “I Agree” in the sign up process for the SaaS Services on Our Website; or
(b) sign a hard copy or electronic copy of this document; then an agreement is made between:
(c) Us; and
(d) the person who clicks “I Agree”, or if that person is an employee or agent acting in the course of his/her employment, the agreement is made by, and binds, the employer principal of that person (the employer will be deemed to be the entity that is named as the “customer” in the Contract Details), or if that person is acting as agent for another person, the agreement binds the principal named as the “customer” in the Contract Details. The person who clicks “I Agree” and is acting in the course of his/her employmentor as agent warrants to Us that he/she has authority to act on behalf of his/her employer (or the “customer”, as applicable) to enter into the Agreement.
2.1 We grant to You a non-exclusive, non-transferable right toAccess the SaaS Services to receive the features and benefits of the relevant SaaS Services Plan for the Time Period during the Term (and subject to any Minimum Term) for the purpose of processing Your own internal data in a production environment, subject to any other limitations of use, all as specified in the SaaS Services Plan.
2.2 If You wish to vary the SaaS Services, the level of SaaS Services Plan, add any features, benefits or service items that are offered as part of the SaaS Services that are available from Us, end a particular SaaS Service or terminate the Agreement, including all the SaaS Service sThese changes will become effective on the first day of the following. No refunds will be made for any SaaS Services paid for in advance when you end the SaaS Services in this way, including where You end a SaaS Service prior to the end of its Minimum Term.
2.3 If You do not use all of the features/benefits/service items of the SaaS Services during the relevant time set out in the SaaS Services Plan, then, unless expressly stated otherwise in the SaaS Services Plan, such time/feature/benefit/service item is forfeit with no recourse to Us.
2.4 We have appointed a third party who We believe to be a professional and capable contractor to provide us with hosting, disaster recovery and back up service for the SaaS Services and the data entered in it, including Customer Data. The disaster recovery and back up services does not include any Third Party Software. However owing to the nature of hosting, disaster recovery and back ups. We donot warrant or guarantee that:
(a) the SaaS Services will be uninterrupted or error free:
(b) any data, including Customer Data will be backed up and/or recoverable by Us.
2.5 We may change the features, benefits or service items of any SaaS Services from time to time in Our discretion. If the changed features, benefits or service items will deprive You of more than an insubstantial benefit of that SaaS Services then You may give Us written notice of that fact within 15 days of the change. If We receive such a notice from You and are unable to agree with You an acceptable alternative within 30 days of the date that We made the change then You may:
(a) continue to use that SaaS Services and the changed SaaS Services will become the new SaaS Services; or
(b) terminate that SaaS Services at any time up 30 days after the change was made. In this case We will provide You with a pro-rate refund of any Fees that have been paid in advance for the SaaS Services that will not be provided (after deducting any monies owed by You to Us), and such payment will be Our entire liability and Your sole remedy in connection with the changed SaaS Services and/or termination.
2.6 You acknowledge and agree that You:
(a) are solely responsible for the creation, posting, accuracy, updating and maintenance of any Customer Data;
(b) must manage, renew, create, delete, edit, maintain and otherwise control the editorial content of any Customer Data.
2.7 We are not responsible for any delays, delivery failures or any other loss or damage, including breach of Privacy Law, resulting from the transfer of data over communications networks (other thanthe Network) or facilities, including the internet, and You acknowledge and agree that the SaaS Services may be subject to limitations, delays or other problems inherent in the use of such communications.
2.8 During the Term:
(a) You may notify Us of any defect that You believe is in the SaaS Services using the process set out in the SaaS Services and We will use reasonable efforts to remedy any material defects in the SaaS Services in a timely manner;
(b) We may implement any new version of the SaaS Services (including adding new features or removing existing features) as part of Our product roadmap, correct defects in the SaaS Services, perform maintenance, on or vary the Hosted Environment, Network, data center, other infrastructure, hardware, software (including installing updates or newreleases) or other material that supports the SaaS Services in Our absolute discretion, and without liability or prior notice to You. We do not guarantee that any change, addition, deletion, error correction, patch, update or new version of the SaaS Services (or any part of it) will be compatible with any of Your data, applications, Third Party Software, other software or interfaces that connect to or interface with the SaaS Services.
2.9 At the end of the Term this Agreement shall renew on a month to month basis, terminable by either party on not less than one full month’s notice and will be on the terms and conditions, Fees and Taxes, descriptions of the SaaS Services in the SaaS Services Plan and limitations of use that are applicable at the time of renewal.
3.1 Nothing in this Agreement permits You to:
(a) copy, adapt, translate, publish, communicate to the public, or create any derivative work or translation of the Software or SaaS Services, unless expressly permitted by law or this Agreement;
(b) process the data of any third party as part of any time sharing, outsourced service, shared service or other service that uses any of the SaaS Services for the benefit of any other person;
(c) sub-license, lease, rent, loan, assign, novate or otherwise transfer any part of the Software or SaaS Services or the benefit or burden of this Agreement in whole or in part to any third party;
(d) disclose the Software or SaaS Services to any third party other than to any of Your contractors and Customer Group Members who are bound by obligations of confidentiality which are no less restrictive than those specified in clause 9 and who are using the Software or SaaS Services solely for Your authorised use of the SaaS Services;
(e) unless permitted in writing, remove, alter or obscure any of Our Marks, or any proprietary or restricted use notice on the Software or SaaS Services;
(f) use the SaaS Services for the purpose of building a competitive product or SaaS Service or copying its features or user interface;
(g) attempt to download or Access the object code or source code of the Software;
(h) use the SaaS Services to display, store, processor otherwise use any data (in any format, and whether readable by humans or by machines, and including data that is Customer Data) that, in Our opinion:
(i) infringes any person’s Intellectual Property Rights, right to privacy, right to keep confidential information confidential, right to publicity or induces any person to breach a contract;
(j) is unlawful (including breaching laws relating to the wrongful distribution of email or other electronic messages “spam”), discriminatory, derogatory, defamatory, slanderous, malicious, obscene, contains child pornography or is immoral;
(k) contains any virus, Trojan horse or other malicious code, or is used to gain unauthorised access to, does harm to, wrongfully intercepts, expropriates, accesses or uses for any wrongful purpose, any person’s hardware, software, network or data;
(l) wrongly identifies, or disguises, the sender or place of origin of any communication;
(m) contains links to any other website that contains information that is of a type described in this clause (i);
(n) access, monitor or copy any content of the SaaS Services using any robot, spider, scraper or automated process or manual process, or deep link or any part of Our SaaS Services;
(o) bypass or circumvent, or attempt to bypass or circumvent any measure that is designed to limit access to any part of the SaaS Services, including any SaaS Services Management Functionality;
(p) frame, mirror or otherwise include any part of the SaaS Services in any other website or application;
(q) use the SaaS Services in any way that could endanger, disable, impair or compromise Our systems or security, or interfere without other users;
(r) allow any part of the SaaS Services to become the subject of any charge, lien, encumbrance or security interest; or
(s) deal in any other manner with any or all of Your rights and obligations under this Agreement.
3.2 You acknowledge and agree that:
(a) the SaaS Services includes comprehensive audit and verification features, which track and record individual’s use of the SaaS Services in detail;
(b) We may inspect the usage logs, audit and verification features in the SaaS Services for the purposes of ensuring that You are complying with the terms of this Agreement; and
(c) We may delete the relevant Customer Data and/or suspend or prevent Access to the SaaS Services if:
(d) You breach the provisions of clause 3.1(h) or the law; or
(e) We act in good faith to comply with Our understanding of the law as it relates to requiring Us to delete or not display or publish certain data.
4.1 We will provide the SaaS Services in accordance with or in excess of the Service Levels., but despite any provision of this Agreement, if We breach a Service Level then You may choose one of two exclusive remedies: (1) claim Service Credits; or (2) claim damages and exercise any other right under this Agreement.
4.2 The parties agree that each of the amounts of Service Credits specified as payable under this Agreement represent a genuine pre-estimate of loss and are not a penalty.
4.3 If Service Credits are payable under this Agreement then You may deduct the Service Credits from any amounts You owe to Us.
4.4 We will backup the SaaS Services server daily in a manner we determine.
5.1 We will provide support in accordance with Schedule 2 – Support Policy.
6.1 We will use all commercially reasonable efforts to ensure that the Hosted Environment on which the Software operates and the Network are Available to the percentage set out in the relevant SaaS Services Plan in each full calendar month during the SaaS Services Period, subject to any Scheduled Maintenance or outage caused or contributed to by any Reasonable Excuse.
6.2 We will attempt to perform all Scheduled Maintenance on a Sunday. We will use all commercially reasonable efforts to ensure that Scheduled Maintenance does not exceed 8 hours per calendar month.
Warranty against Defects
6.3 Where You are entitled to the benefits of the statutory guarantees under clauses 54 to 59 and/or 60 to 62 of the Australian Consumer Law, then Regulation 90 (issued under that Act) applies.
6.4 Fabulate provides You with the following information as is required by Regulation 90:
(a) The services that are provided to remedy any defect in the SaaS Services are a “Warranty Against Defects” as defined in Regulation 90. These services are provided by Fabulate Pty Ltd.
(b) In order to make use of this service You must contact Our support desk during the period of Your agreement using the web form on Our Website support webpages.
(c) When You make use of these services, We will use Our commercially reasonable efforts to provide a remedy or a workaround for any defect in the SaaS Services in a time period that reflects the impact on Your business.
(d) The costs for this service is included within the Fees stated in this Agreement. No additional fees are payable by You for this service. You are responsible for any expenses You incur in using this service.
(e) The benefits that we provide to consumers under our Warranty Against Defects are in addition to any other rights or remedies a consumer may have in respect of these goods or services under the Australian Consumer Law.
6.5 Where You are entitled to a statutory guarantee under clauses 60 to 62 of the Australian Consumer Law then to the extent that We fail to comply with such statutory guarantee, Our liability for a failure to comply with such statutory guarantee is limited to one of the following, at Your 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 termof the Agreement.
Payment for SaaS Services
7.1 Where We enter into and/or renew an agreement for the SaaS Services then You must pay Us the Fees and related Taxes. If not pre-paid, we will issue You with an invoice and you must pay the Fees and related taxes in accordance with agreed terms, or if no terms are agreed, seven days.
7.2 Where our Fees are charged based on a Time Period or other component/features/benefits/service items of the SaaS Services then at the end of each month or other date determined by Us We will calculate the Fees due based on your usage of the SaaS Services and We will issue You with an Invoice. You must pay the Fees and related taxes within 30 days of the date of invoice.
7.3 If We allow You to pay the Fees in instalments or in periodic payments, it is acknowledged and agreed that the entire amount (the sum of all instalments or periodic payments) is due on the first day ofthe SaaS Services (as applicable), but payment may be received in the instalments or periodic payments. You must pay the instalment or periodic payment by the date of the installment or periodic payment.
Payment and GST
7.4 All amounts that are payable under this Agreement by You are non-cancellable and non-refundable.
7.5 In addition to the Fees payable in accordance with the Agreement, You must pay to Us an additional amount equal to the GST that is payable on the supply (GST Amount), such GST amount must be paid at the same time as the relevant Fees.
7.6 If a party has to reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 7.5.
7.7 If the GST payable by You on any supply arising out of or in connection with the Agreement varies from the GST Amount paid or payable by You under clause 7.5 such that the further amount of GST is payable in relation to the supply or a refund or credit of GST is obtained in relation to the supply, then You will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from You.
7.8 Any payment, credit or refund under clause 7.7 is deemed to be a payment, credit or refund of the GST Amount payable under clause 7.5.
7.9 You must pay a late charge for any failure to make any payment by the date required under the Agreement, calculated daily using a rate that is 8% over the Reserve Bank of Australia’s Cash Rate, from the date that the payment first becomes overdue, to the date that the payment is received by Us, both dates inclusive.
8.1 As between You and Us, You own all CustomerData.
8.2 You grant Us, Our Affiliates and their respective contractors the right to use, copy and modify any Customer Data in so far as is necessary, convenient or desirable for Us to perform Our obligations, or exercise Our rights, under this Agreement or for Us to meet any obligation under the law.
8.3 All Intellectual Property Rights that are created by any person that are adaptations, translations and derivative works in the Software or SaaS Services are and shall remain the exclusive property of Us (and Our licensors, if any) or shall vest in or be transferred to Us immediately upon creation, as the case may be.
8.4 Except for the rights expressly granted by Us to You under this Agreement:
(a) We and Our licensors, if any, reserve all right, title and interest in or to the Software, SaaS Services and all Intellectual Property Rights in them; and
(b) no right, title or ownership interest in or tothe Software and SaaS Services whether by implication, estoppel or otherwise, is granted, assigned or transferred to You under or in connection with this Agreement.
8.5 You acknowledge and agree that the unauthorised disclosure, use, reproduction or copying of the Software or SaaS Services may cause Us serious financial loss that may not be adequately compensated by monetary damages. Accordingly, in the event of any unauthorised disclosure, use, reproduction or copying of the Software or SaaS Services, You agree that We shall have the right to seek injunctive relief to stop such unauthorised disclosure, use or copying.
8.6 If You provide Us with any feedback, comments or suggestions relating to Our products or SaaS Services (Feedback), You grant Us an irrevocable, non-cancellable, worldwide, royalty-free, license to use, copy, adapt, translate, create derivative worksfrom, sub-license or otherwise exploit in any way (including without hindrance, restriction or subject to any exercise of any person’s moral rights) that Feedback for any purpose, including to assist Us to develop or improve current products or SaaS Services or to assist Us develop or improve future products and services.
9.1 Use and location of Customer Data:
We must not, and must ensure that Our Personnel do not:
(a) use Customer Data for any purpose other than in connection with its supply of the Services;
(b) purport to sell, let for hire, assign rights in or otherwise dispose of Customer Data;
(c) alter Customer Data in any way, other than to provide the Services in accordance with this Agreement; or
(d) store or access Customer Data at or from (or permit Customer Data to be accessed from), locations outside of Australia, orany locations within Australia other than the Sites, without Your prior written consent.
10.1 If We become aware of a breach of any of the requirements of clause 9 or 10, any loss or unauthorised disclosure of Personal Information or Your Confidential Information, or an actual, suspected or attempted circumvention of either party's security measures or procedures, (each a Data Security Breach) We must immediately notify You, specifying the details of the Data Security Breach.
11.1 For any claim that is not provided for inclauses 6.5, then to the extent permitted by law, and subject to clause 11.1, Our liability to You for any claim whether it be in contract (including under an indemnity), tort (including negligence), breach of statutory duty or otherwise, arising out of or in connection with Agreement shall be limited to the greater of:
(a) two x the Fees paid or payable under this Agreement for the past 12 months; or
(b) the Fees paid for the Software, Service, Professional Service from which the claim arises.
11.2 We are not liable for any loss, damage or expense which is:
(a) failure to realise expected savings, indirect, consequential, special, punitive or exemplary, even if We have been advised of, knows of, or should have known of the possibility of such loss, damage or expense.
11.3 The exclusions and limitations of liability inclause 11.1 and 11.2, do not apply to a party’s liability:
(a) for fraud, wilful misconduct, breach of confidentiality, infringement of Intellectual Property Rights, breach of privacy obligations, personal injury, death or property damage;
(b) arising out of or in connection with any repudiation of this Agreement;
11.4 You acknowledge and agree that owing to the nature of the Software or Services. We do not represent or warrant that:
(a) the Software or Services will meet Your or any users’ particular needs or purposes;
(b) the quality, accuracy, features, functions, benefits or availability of any Third Party Software;
(c) the Software will be, or remain compatible with, any Third Party Software; or
(d) Access to the Software or Services will be continuously available; or
(e) the Software, Service will be error free.
11.5 You must indemnify Us, Our Affiliates and all their respective contractors and pay any loss, damage or expense (including reasonable lawyers’ fees) suffered or incurred by any of them arising out of or in connection with:
(a) breach of any of the provisions in clauses 3.1, any clause that provides You with an obligation to make payment to Us, 13.5 or 13.6; or
(b) any action taken by Us in connection with clause 3.2(c),
except to the extent that the loss, damage or expense was directly caused by our breach of contract or negligence.
12.1 We may immediately terminate this Agreement and /or suspend Access to the SaaS Services by giving You written notice if:
(a) You breach any of the provisions of clauses 2.1, 7, 13.5 and 13.6;
(b) You breach any other provision of the Agreement and You do not remedy it within 14 days of Us providing You written notice of the breach;
(c) if You are a company, You cease to carry on business, are unable to pay Your debts as they fall due, enter into liquidation or has a controller, managing controller, liquidator or administrator appointed or suffers any similar event in any jurisdiction;
(d) if You are a partnership, You have the partnership dissolved or wound up (or a similar event occurs to You in Your jurisdiction); or
(e) You merge with another entity, or sell substantially all of Your assets.
12.2 In addition to Your right to terminate the Agreement for convenience as set out in the clause 2.2., You may immediately terminate this Agreement for cause by giving Us written notice if We:
(a) breach any provision of this Agreement and We do not remedy it within 30 days of You providing Us written notice of the breach; or
(b) cease to carry on business, are unable to pay Your debts as they fall due, enter into liquidation or has a controller, managing controller, liquidator or administrator appointed.
12.3 You may immediately terminate this Agreement for cause by giving Us written notice if We breach any provision of this Agreement and We do not remedy it within 30 days of You providing Us written notice of the breach.
12.4 You may also terminate this Agreement in accordance with any rights you may have under the Australian Consumer Law.
12.5 If this Agreement terminates:
(a) any right to Access and use the SaaS Services terminates immediately;
(b) any unpaid instalments or periodic payments mustbe paid immediately; and
(c) each party must immediately return to the other (or at the other party’s request destroy) any of the other’s Confidential Information.
12.6 You are solely responsible for ensuring that You have extracted any of Your information, including Customer Data that is in the SaaS Services prior to the end of the Term. We may, but are under no obligation to, delete all Your information, including Customer Data that is in the SaaS Services at any time after the end of the Term.
12.7 Any termination of this Agreement shall not prejudice, limit or restrict any other rights or remedies either party may have arising prior to such termination. To the extent permitted by law, We shall be under no obligation to refund any amounts paid by You for any of the SaaS Services that have been provided or performed prior to any termination of this Agreement.
References
13.1 We may ask you to allow reference to You and our relationship under this Agreement in Our marketing presentations, marketing materials, lists of customers and websites, as well as in discussion with prospective resellers and customers, and industry/financial analysts. If you agree (and you are not obliged to do so) then We may use Your logos and trade marks in connection with such materials and websites, in accordance with Your prior written consent and any brand guidelines you provide.
Notices3
13.2 Any notice that is given under this Agreement:
(a) by Us; may be:
(b) posted using pre-paid priority letter post to You at any address that You have provided Us for sending any invoice or Your registered office;
(c) emailed to You at any email address provided by You; or
(d) included on any invoice (which may be emailed or posted to You);
(e) by You; must be emailed to us, or posted to Us using pre-paid priority letter at the address stated on the Our Website as Our office and addressed to the
Chief Executive Officer.
13.3 A notice is deemed to be received:
(a) when posted from Australia to an address in Australia using pre-paid priority letter; within 5 Business Days after the date when it was posted;
(b) when posted with pre-paid post internationally, within 7 Business Days of the date when it was posted;
(c) when emailed; within 1 Business Day of the time that the email was sent, provided no notice of failure has been received by the sender within that Business Day; or
(d) within 10 days of being posted on the Website. You are responsible for ensuring that You check Our Website regularly to see any notice that is posted there.
13.4 You may send Us any notice relating to a claim under the Australian Consumer Law in accordance with the Australian Consumer Law.
Compliance with Laws
13.5 Each party must comply with all laws (including without limitation all Modern Slavery Laws) which are relevant to that party in performing its obligations under this Agreement in its relevant capacity.
Assignment
13.6 You must not assign or transfer this Agreement or any rights or obligations under this Agreement, in whole or part, without Our prior written consent.
13.7 We may assign or transfer this Agreement, in whole or part, without Your consent. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Not withstanding clause 9, We may disclose any of Your Confidential Information or Personal Information which is reasonably necessary to affect any assignment or transfer.
Waiver
13.8 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
Remedies
13.9 Except as specifically provided otherwise in this Agreement, the rights and remedies provided under this Agreement are cumulative and in addition to, and not exclusive of, any rights or remedies provided by law.
Severability
13.10 If any part of this Agreement is determined to be invalid, illegal or unenforceable by any court or competent authority, such part will be severed from the remainder of the Agreement and the remaining provisions will continue in force.
Force Majeure
13.11 Except for Your obligations to pay Us under this Agreement, neither party shall be in breach of this Agreement nor liable to the other party for any failure or delay in performance caused by events beyond its reasonable control.
Agreement
13.12 Subject to clauses 2.2 and 2.9, this Agreement, or any part of it, may be varied by the parties agreeing to the Variation in writing (and the Variation will be binding when both parties have signed the Variation).
13.13 The parties are entitled to rely on any notice or communication in electronic format, including any facsimile or email, that on its face appears authentic, and that has the purported author’s name on it to the same extent as if it were a document written by the author. The parties consent to this Agreement being signed or varied through electronic communication.
13.14 To the extent permitted by law this Agreement constitutes the entire agreement between the parties regarding the subject matter and supersedes all prior or contemporaneous agreements, arrangements, understandings and communications, whether written or oral.
13.15 All clauses which naturally survive termination of the Agreement will survive termination of this Agreement.
Governing Law
13.16 This Agreement will be governed by the laws of New South Wales, without regard toits conflict of law principles. The parties submit to the exclusive jurisdiction of the court in New South Wales, Australia.
14.1 In this Agreement, unless the contrary intention appears:
(a) the singular includes the plural and vice versa, and a gender includes other genders;
(b) another grammatical form of a defined word or expression has a corresponding meaning;
(c) a reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or schedule or annexure to, this Agreement, as amended from time to time in accordance with this Agreement;
(d) a reference to a document or instrument includes the document or instrument as novated, altered, supplemented or replaced from time to time;
(e) a reference to a statute includes any regulation, ordinance, by-law or other subordinate legislation under it and any consolidations, amendments, re-enactments or replacements of it;
(f) a reference to A$, $A, dollar or $ is to Australian currency;
(g) a reference to time is to Sydney, New South Wales, Australia time;
(h) a reference to a party is to a party to this Agreement, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assigns and substitutes;
(i) a reference to a person includes a natural person, partnership, body corporate, association, governmental or local authority or agency or other entity;
(j) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions;
(k) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and
(l) headings are for ease of reference only and do not affect interpretation.
15.1 In this Agreement the following capitalised words have the following meaning given to them, unless the context requires otherwise.
15.2 Access means obtaining access to the SaaS Services via the internet.
15.3 Agreement means the terms and conditions in this document and in relation to the SaaS Services: the Contract Details completed or selected by You when You sign up for the SaaS Services on Our Website, as may be amended by Us from time to time in our discretion.
15.4 Affiliate means means, as to a party, any corporation, partnership, firm, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, governmental organisation or body, or other entity that directly or indirectly controls, is under common control with, or is controlled by, such party. For the avoidance of doubt, in the case of Customer, its Affiliates include the Customer Group Entities. As used in this definition, “control” and its derivatives mean possession, directly or indirectly, of power to direct or cause the direction of the board or management or policies of suchentity, organisation or body, whether through ownership of voting securities orotherwise.
15.5 Australian Consumer Law means the Competitionand Consumer Act 2010 (Cth).
15.6 Availability (and Available) means any period when the Hosted Environment on which the Software is running and the Network are operating in accordance with the manufacturer’s or supplier’s documentation.
15.7 Business Day means any weekday that is not a public holiday in New South Wales.
15.8 Confidential Information means any non-trivial information however recorded, preserved, disclosed or communicated (whether directly, indirectly, orally or by writing), disclosed by either party or its Representatives to the other party or its Representatives in connection with this Agreement that, if disclosed in writing is marked as “Confidential” or “Proprietary,” or, if disclosed orally is identified as“Confidential” or “Proprietary” at the time of disclosure and is specifically identified as confidential in a written document provided by Discloser to Recipient within thirty (30) days after the oral disclosure, or which is, or ought to have been, understood by the parties, using reasonable business judgment, to be confidential.
15.9 Contract Details means Your identity, the identity of Your employer, billing details and other details that are selected or completed by You or at the time that You make a change using the SaaS Services Management Functionality.
15.10 Customer Data means:
(a) data, information and other materials providedto (except by Us), or obtained or generated by, Us relating to Customer or any of its operations, administration, facilities, suppliers, customers, Personnel, strategic or marketing plans, assets and programs (including Personal Information) (Raw Data); and
(b) data, information and other materials in any format whatever generated, stored, processed, retrieved, printed or produced by or on behalf of Us utilising the Raw Data.
15.11 Customer Group means Customer, Customer’s Affiliates (including the Customer Group Entities), and Customer’s and Customer’s Affiliates’ respective Representatives, and Customer Group Member means each of them.
15.12 Customer Data includes any software, materials, code, data, text (whether or not perceptible by users), metatags, multimedia information (including sound, data, audio, video, graphics, photographs, or artwork), e-mail, chat room content, bulletin board postings, or any other items or materials that are provided by or otherwise permitted by, You to be entered in, or processed by, the SaaS Services (including data accessed from or in connection with Third Party Software).
15.13 Discloser means the party that makes a disclosure of Confidential Information.
15.14 Fabulate Discovery Services means discovery and outreach of social influences on specified platforms.
15.15 Fees means in relation to the SaaS Services: the amount payable for the SaaS Services, including any features, benefits or other service items set out in the SaaS Services Plan, as well as any Fees for using an Approved Payment Mechanism, exclusive of Taxes, as specified on the Website;
15.16 Hosted Environment means the server and/or processing capacity operating system software, database and other equipment provided as part of the Hosted Environment, (whether using shared, virtual or dedicated software and/or equipment) on which the Software operates.
15.17 Intellectual Property Rights means copyright, moral rights, trade mark, design rights, service marks, patent, semiconductor or circuit layout rights, trade secrets, know-how, database rights or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing in anywhere in the world, or protected by statute from time to time.
15.18 Minimum Term means the minimum periodfor which You must pay to Access and use the relevant SaaS Services, feature, benefit or service item.
15.19 Network means the telecommunications network comprised of equipment, wiring and circuits within and between the network backbone nodes (points of presence) and the servers in the Hosted Environment. The term Network does not include any:
(a) circuits to a backbone node, customer premises or any network or equipment not owned or controlled by Us; or
(b) third party networks or equipment not owned or maintained by Us, including connections to peer networks and the internet.
15.20 Online Help Documentation means the documentation related to the SaaS Services that is available online as part ofthe SaaS Services, which We may change from time to time, in Our discretion.
15.21 Our Marks means all trade marks, service marks, logos or other words or symbols identifying the Software or SaaS Services or Our business.
15.22 Personal Information means any information or data that is subject to any Privacy Law.
15.23 Personnel of a person means the directors, officers, employees and agents of that person or its Related Bodies Corporate or Affiliates.
15.24 Privacy Law means any law, regulation or common law which governs the use of information that is about, identifies or can be used to identify, any identifiable individual, or which is generally understood in the relevant jurisdiction to protect an individual’s privacy and/or to govern the collection, use, disclosure or transmission of Personal Information or data.
15.25 Reasonable Excuse means:
(a) a failure or degradation of performance or malfunction resulting from scripts, data, applications, equipment, infrastructure, software, penetration testing, performance testing, or monitoring agents directed or provided or performed by You;
(b) planned outages, Scheduled Maintenance or announced maintenance or maintenance windows, or outages initiated by Us at the request or direction of You for maintenance, activation of configurations, backups or other purposes that require the service to be temporarily taken offline;
(c) unavailability of management, auxiliary oradministration services, including administration tools, reporting services, utilities, or other services supporting core transaction processing;
(d) outages occurring as a result of any actions oromissions taken by Us at the request or direction of You;
(e) outages resulting from Your equipment, third party equipment or the data centre infrastructure (including the data centres’ network connections to our Network) not within Our sole control;
(f) events resulting from an interruption or shutdown of the services due to circumstances reasonably believed by Us to be a significant threat to the normal operation of the services, the operating infrastructure, the data centre from which the services are provided, access to, or the integrity of Customer Data (e.g., a hacker or a virus attack);
(g) outages due to system administration, commands, or file transfers performed by Your users or representatives;
(h) outages due to denial of service attacks, natural disasters, changes resulting from government, political, or other regulatory actions or court orders, strikes or labor disputes, acts of civil disobedience, acts of war, acts against parties (including carriers and Ourother vendors) and other force majeure events;
(i) inability to access the services or outages caused by Your conduct, including negligence or breach of Your obligations under the Agreement, or by other circumstances outside of Our control;
(j) lack of availability or untimely response time of You to respond to incidents that require Your participation for source identification and/or resolution, including meeting Your responsibilities for any services; or
(k) outages caused by failures or fluctuations in electrical, connectivity, network or telecommunications equipment or lines due to Your conduct or circumstances outside of Our control.
15.26 Recipient means the party that receives a disclosure of Confidential Information.
15.27 Related Body Corporate has the meaning set out in section 50 of the Corporations Act 2001 (Cth).
15.28 Representatives means the employees, agents, contractors of a party, or those of any Affiliate, and the professionalr epresentatives of a party providing advice in relation to the Agreement, including the lawyers, bankers, auditors, accountants and insurers of a party.
15.29 SaaS Services means:
(a) being granted Access to the Software specifiedon the SaaS Services Plan, and any new version of the Software that may be implemented into the SaaS Services by Us, in Our discretion and related Online Help Documentation, from the Hosted Environment via the Network (but excludes the internet and any data center facility networking that connects the end users’ device to Our Network);
(b) the provision of the website though which You Access the SaaS Services via the internet; and
(c) any other feature, benefit or service item that is specified in the SaaS Services Plan.
15.30 SaaS Services Plan means the description of the SaaS Services, the SaaS Services levels, the features, benefits or other service items, the Term, the Minimum Term (if any), any limitations of use, the Fees, including the metric used to calculate the Fees, related Taxes, and other details that are selected or completed by You at the time when You complete the sign on process to the SaaS Services on the Website or at the time that You make a change using the SaaS Services Management Functionality.
15.31 Services means SaaS Services.
15.32 Service Levels means the service levels for the Services set out in Schedule 1.
15.33 Scheduled Maintenance means the routine maintenance for the Software, Network and Hosted Environment that is recommended by the manufacturer or supplier of the Hosted Environment, Network or data center facility to prevent failures or defects, and includes any Software updates or new releases, and any updates, new releases, engineering changes or replacement/substitutions to any part of the Hosted Environment, Network or data center facility.
15.34 Service Levels means the standards of service set out in Schedule 1.
15.35 Software means the object code version of Our software program (including the Online Help Documentation) that is part of the SaaS Services, and any update and new release that may be made availableby Us in Our discretion. The term Software does not include any Third Party Software.
15.36 Taxes includes goods and services taxes, sales taxes, duties, withholding taxes, levies, imposts, charges orduties levied by any federal, state or local government which arise out of or in connection with the Software, SaaS Services or this Agreement, and any interest, penalties or liabilities incurred on such amounts, but excludes taxes based on Our net income.
15.37 Term means the period for which You have acquired the right to Access the SaaS Services, which shall be a month unless specified otherwise in the SaaS Services Plan.
15.38 Third Party Software means software that is owned by any person other than Us or Our Affiliates and with which the SaaS Services is designed to integrate with, as well as any data that is stored in or processed by the Third Party Software which is accessed or used in any way by the SaaS Services, and the details of which are set out in the Online Help Documentation.
15.39 Time Period means the maximum number of minutes/hours/calendar days/24 hour periods or other time based metric set outin the SaaS Services Plan for which You are entitled to Access the relevant SaaS Services, feature, benefit or service item.
15.40 Variation means any addition, deletion or substitution to any part of this Agreement that is made in accordance with this Agreement.
15.41 You (and other grammatical forms of You) means the entity referred to in clause 1.2(d).
15.42 We, Us, Our means Fabulate Pty Ltd.
15.43 Website means Our website, currently at https://fabulate.com.au
