1. Agreement(a) This website and its related services (together the “Website”) are provided by GALORE Creative Solutions Pty Ltd ABN 51 639 273 082 (“we” or “us”).
(b) We may offer to engage community members from time to time to provide services in relation to creative briefs that we may publish from time to time (each a “Brief”). The Website enables you as a community member to submit a proposal (“Proposal”) in response to a Brief. We may engage you as a contractor to provide services in relation to a Brief (“Services”) on the terms and conditions set out in the Brief, these Terms and Conditions and any additional terms and conditions that we may notify you of (together the Agreement”).
(c) The Agreement governs your use of the Website and sets out the terms and conditions upon which you may provide Services if we engage you as a contractor.
(d) We take your privacy seriously. So, any personal information we collect in relation to you is governed by our Privacy Policy. Our Privacy Policy sets out how we may collect, store and disclose your personal information.
(e) By accepting this Agreement and/or utilising the Website, you agree that:
(i) this Agreement forms a binding agreement between you and us; and
(ii) you consent to the terms of our Privacy Policy.
2. Community Membership and Access to the Website
(a) You may use the Website as follows:
(i) by registering to become a member (“Member”) to become eligible to be engaged by us as a contractor to provide Services; and/or
(ii) without registering and using those elements of the Website available to non-members.
(b) If you do not register to become a Member, you may elect to receive communications from us for free by providing us with your contact details. This information will be used by us in accordance with our Privacy Policy.
(c) You must not:
(i) use any false information, including, a false identity to become a Member;
(ii) register to become a Member if we have previously cancelled your Membership or banned you from using any aspect of the Website;
(iii) change or attempt to change any other person’s Member information; and/or
(iv) do anything that could jeopardise the security of the Website.
(d) You must:
(i) provide accurate and complete information when registering to become a Member (including, without limitation, accurate information in relation to your experience and qualifications);
(ii) update all of your Member details regularly;
(iii) keep your login and password details confidential; and
(iv) immediately notify us if you become aware of any unauthorised access to or use of your Membership in breach of this Agreement.
(e) You acknowledge that:
(i) you are responsible for all use of your log-in and password details whether authorised or not:
(ii) we may at any time cancel a username, login details or password with respect to your use of the Website at any time if we consider that such username, login details or password are offensive or infringe on any third party’s rights; and
(iii) we may refuse your application for Membership or cancel your Membership at any time in our absolute discretion if we consider that your Membership is detrimental to us or any of our clients including, without limitation if:
(A) your application for Membership is inaccurate, fraudulent or inappropriate;
(B) you engage in any conduct which disparages us or any of our clients.
3. Use of the Website
(a) Subject to the terms of this Agreement, we grant you a non-exclusive, revocable, limited licence to use the Website via the media and on the devices for which the Website were developed for the purposes for which the Website are intended. In this regard, the Website is intended to assist us to identify and engage contractors to provide Services in response to a Brief.
(b) You must not:
(i) use the Website for any purpose other than the purposes contemplated by paragraph (a) above;
(ii) engage in any illegal, unethical or immoral conduct using the Website;
(iii) transfer, assign or license your Membership or any benefits associated with it to any person;
(iv) engage in any activity through the use of the Website:
• to mine or collect information or data from the Website, users of the Website or information in transit to and from the Website;
• to bypass any of the Website’s features including any features designed to exclude robots, spiders or scraping applications;
• to manipulate, damage, interfere with or impair the functionality of the Website or any other computer systems or networks (including, without limitation, by way of hacking, uploading of harmful code, using cheats, exploits, automation software, bots or similar software);
• that we consider to be in conflict with the spirit or intent of the Website;
• that is in breach of any applicable law or any third party’s rights;
• to disrupt, overburden or assist in such disruption or overburdening of any computer server or network (including, without limitation, those used to provide the Website);
• that is likely to harass, abuse, harm, threaten any person or group of persons (including, without limitation, any activity that degrades a person based on their religion, gender, age or sexuality) or incites or is likely to incite any such activity; and/or
• that is misleading or deceptive or is intended to mislead or deceive any person.
(c) You must:
(i) use the Website at all times in compliance with this Agreement and any reasonable directions given by us from time to time; and
(ii) immediately report to us any conduct that you consider could be misuse of the Website (Contact Us).
4. Community Guidelines
(a) The Website may include functionality that permits you to post content that is accessible to other Members.
(b) In relation to the posting of any content by you through the Website, including, without limitation, any comments you may post (together “Your Content”):
(i) all comments must be respectful;
(ii) you must not post repetitive or “spamming” comments;
(iii) you must not post content which attacks or abuses any person (including, without limitation, any content that could be considered to be “trolling”);
(iv) no comment should include any person’s personal information (see our Privacy Policy in relation to what is meant by personal information);
(v) the content must not include any content that infringes any third party’s rights (including, without limitation, intellectual property rights), is defamatory, obscene, offensive, discriminatory, incites hatred, depicts tobacco products, alcohol, violence, sexual content of any nature, makes therapeutic claims or which we in our absolute discretion consider to be inappropriate or content that contains links to any of the material referred to in this subparagraph; and
(vi) we may remove any content in our absolute discretion without liability to you.
(c) You hereby grant us a non-exclusive, irrevocable, perpetual, royalty and fee free, unlimited licence (including the right to sub-license) to adapt, modify, communicate, exploit (in any manner) and use Your Content in connection with the development, marketing, promotion and provision of the Website or any of our other business activities.
(d) To the maximum extent permitted by applicable law, you hereby waive your moral rights (if any) in and to Your Content. To the extent that applicable law does not permit the waiver of moral rights, you hereby consent to us and our licensees and contractors undertaking all necessary alternations to Your Content and/or failing to attribute Your Content to you as is necessary for the operation of the Website.
(e) You warrant and represent that:(i) you have the right to use Your Content in connection with the Website;
(ii) to the extent that it is relevant, you have obtained appropriate consents and releases from the creator of Your Content (including, if the creator is a child, obtaining consents and releases from the parent or guardian of the child);
(iii) your use and/or our use of Your Content in as contemplated by this Agreement will not:
• breach any applicable laws or regulations;
• infringe any third party’s intellectual property or other rights;
(iv) Your Content is accurate and not misleading or deceptive;
(v) Your Content is free from viruses or any form of harmful or malicious code;
(vi) you understand that any personal information relating to you contained in Your Content will be dealt with in accordance with our Privacy Policy.
5. Engagement of You as a Contractor
(a) We may seek to engage Members as contractors to provide Services from time to time. If we do so, we may:
(i) offer to engage specific Members who we select for a Brief (“Team Engagement”); or
(ii) invite Members to submit a Proposal in response to a Brief for the provision of Services (“Proposal Engagement”).
(b) If we approach you in relation to a Proposal Engagement:
(i) You must:
(A) submit your Proposal in accordance with the Brief (including, without limitation, in relation to format and/or media specified);
(B) ensure that all aspects of the Proposal are original or fully cleared and do not infringe any third party’s intellectual property or other rights;
(ii) we reserve the right in our absolute discretion to:
(A) reject any Proposal not submitted in accordance with the Brief; or
(B) consider any Proposal that does not comply with the Brief; or
(C) further develop any Proposal;
(iii) we will compile a short list of Proposals and will submit them to our relevant client (“Client”);
(iv) if we notify you that the Client has accepted your Proposal a binding contract will be formed between you and us in relation to the provision of the Services on the terms and conditions of this Agreement;
(v) if the Client does not accept your Proposal, except with our prior written consent, you must not submit the Proposal in relation to any other project or in relation to the provision of any other services (whether the same as or similar to the Services) for a period of 12 months after we notify you that your Proposal has not been accepted;
(vi) you hereby grant us the right to use your Proposal for the purposes of pitching it to a Client.
(c) If we approach you in relation to a Team Engagement and you accept our offer a binding contract will be formed between you and us in relation to the provision of the Services on the terms and conditions of this Agreement.
(d) If we engage you in accordance with this Agreement, we engage you as an independent contractor and not as an employee, partner or joint venturer, or in any other capacity.
6. Provision of Services by You
(a) If we engage you to provide Services:
(i) You must:
(A) provide the Services in a professional manner in accordance with the Brief, the Proposal and the terms and conditions of this Agreement:
(B) meet all deadlines specified in the Brief;
(C) deliver all deliverables specified in the Brief (“Deliverables”) in the format and media set out in the Brief;
(D) provide and are responsible for all costs of all equipment, software and mobile or internet connectivity which are necessary for you to provide the Services;
(E) ensure that all results and proceeds of the Services, including, without limitation, the Deliverables (together the “Works”) are original or fully cleared and do not infringe any third party’s intellectual property or other rights;
(ii) you warrant that you hold any licenses, permits and/or qualifications required in connection with the provision of the Services.
7. Intellectual Property Rights
(a) Subject to Clause 7(g) below:
(i) you acknowledge that the Proposal (if accepted by a Client) and Works, will be our sole and exclusive property; and
(ii) you hereby assign us (with effect as set out in Clause 7(b) below) all Intellectual Property Rights in the Proposal (if accepted by a Client) and the Works.
For the purposes of this Agreement, the term “Intellectual Property Rights” means all rights in or to any patent, copyright, moral rights, database rights, registered design or other design right, utility model, trade mark (whether registered or not and including any rights in get up or trade dress), brand name, service mark, trade name, domain name, company name, eligible layout right, chip topography right and any other rights of a proprietary nature in or to the results of intellectual activity in the industrial, commercial, scientific, literary, or artistic fields whether registrable or not and whenever existing in the world, including all renewals, extensions and revivals of, and all rights to apply for, any of the foregoing rights.
(b) For the purposes of Clause 5(a), if you are engaged by us via:
(i) Team Engagement, assignment of all Intellectual Property Rights in the Works occurs with immediate effect upon creation of the relevant Intellectual Property Rights;
(ii) Proposal Engagement, assignment of all Intellectual Property Rights in the Proposal and the Works occurs with immediate effect upon notification by us that your proposal has been accepted.
(c) You consent to any and all acts or omissions by us and the Client (and each of our and the Client’s successors in title, licensees and assignees) in relation to the Proposal and the Works which would otherwise infringe any of your moral rights.
(d) You warrant that:
(i) you are entitled to assign the Intellectual Property Rights assigned to us under Clause 5(a); and
(ii) the exploitation by us or the Client (or each of our and the Client’s successors in title, licensees and assignees) of the Intellectual Property Rights assigned to us under Clause 5(a) will not infringe any Intellectual Property Rights or moral rights or other rights of any person;
(iii) to the extent that it is relevant, you have obtained appropriate consents and releases from the creator of the Proposal and/or the Works (including, if the creator is a child, obtaining consents and releases from the parent or guardian of the child);
(iv) your use and/or our or a Client’s use of the Proposal or Works in as contemplated by this Agreement will not breach any applicable laws or regulations;
(v) nothing in the Proposal or Works is inaccurate or misleading or deceptive;
(vi) the Deliverables are free from viruses or any form of harmful or malicious code.
(e) You must, at our request, do all things reasonably requested by us (including without limitation, the execution of appropriate documentation) to:
(i) give effect to Clause 5(a); and
(ii) enable us or the Client to register any Intellectual Property Rights arising in relation to the Services throughout the world.
(f) You undertake that you will not and will not facilitate any other person to:
(i) challenge the validity of the assignment under Clause 5(a);
(ii) oppose or otherwise challenge any registration of Intellectual Property Rights arising in relation to the Services;
(iii) challenge our right to use, license or otherwise exploit the Intellectual Property Rights assigned to us under this Agreement; or
(iv) use the Intellectual Property Rights except pursuant to a licence granted by us to you.
(g) To the extent that the Proposal or the Works include pre-existing Intellectual Property Rights that belong to you or a third party (“Existing Rights”):
(i) you must notify us in writing and identify the relevant Existing Rights and the owner of those rights;
(ii) you hereby grant to us a perpetual, non-exclusive, worldwide, irrevocable licence to use, modify, adapt and exploit the Existing Rights; and
(iii) you must obtain all necessary rights and consents from third parties in order to grant the licence in Clause 5(b)(ii) above.
(h) You warrant that:
(i) you are entitled to grant the licence to use the Existing Rights to us under Clause 5(g); and
(ii) the exploitation by us or our successors in title, licensees and assignees of the Existing Rights licensed to us under Clause 5(g) will not infringe any Intellectual Property Right or moral right or other right of any person.
8. Fees and Payment(a) If we engage you via Team Engagement, we will pay you the fee specified in the Brief in accordance with payment schedule in the Brief.
(b) If we engage you via Proposal Engagement:
(i) we will pay you the fee specified in the Brief within 30 days of us notifying you that the Client has accepted your Proposal; and
(ii) if more than one Proposal contains the same or similar responses to a Brief and the Client accepts one of the Proposals, we will in our absolute discretion determine how the fees associated with acceptance of the Proposal will be pro-rated between the relevant Members.
(c) You acknowledge and agree that all payments received by you under this Agreement are gross payments, and that you are solely responsible for your own liabilities, including but not limited to income tax and superannuation.
9. Termination and Suspension
(a) We may with immediate effect terminate, suspend, limit, delete or modify your Membership or terminate your engagement in relation to a Brief if we in our sole discretion consider that:
(i) you have or may have breached or are likely to breach this Agreement;
(ii) you have or may have engaged or are likely to engage in any activity that is likely to have an adverse impact on any person (including without limitation, the Client), us or our related companies or the Website;
(iii) you have or may have infringed or are likely to infringe any third party’s intellectual property or other rights; and/or
(iv) you have or may have engaged in or are likely to engage in activities which could give rise to our liability or which we consider to be inconsistent with our philosophy in relation to the Website.
(b) Without limiting paragraph (a) above, we may with immediate effect suspend or terminate your engagement in relation to a Brief if for any reason the Client suspends or terminates the project to which the Brief relates.
(c) If your engagement is suspended or terminated in accordance with Clause 7(b), we will pay to you a pro-rated amount as determined by us in our sole discretion based on the work you have completed as at the date of suspension or termination.
10. Confidentiality(a) For the purposes of this Agreement, “Confidential Information” means:
(i) information relating to a Client’s or our plans and potential opportunities in and with respect to its current or proposed products and services;
(ii) information relating to us or a Client or their current or proposed products and services which is by its nature confidential or which is identified by us to be confidential;
(iii) any information relating to a Client;
(iv) information relating to us or a Client or the provision of the Services by you which you know or have reason to know is confidential; and
(v) information relating to a Client or our business including without limitation information in relation to our or a Client’s business plans or proposed business plans, marketing and promotional plans, formulae relating to our products or a Client’s products or materials, research information and analysis, trade secrets, business development and marketing strategies, sales data, organisational arrangements, contracts with other persons, client lists, financial data, information comprised in or relating to the financial position and assets or liabilities of a Client or us.
(b) You must:
(i) keep the Confidential Information confidential;
(ii) establish and maintain effective security measures to safeguard the Confidential Information from access or use by third parties;
(iii) keep the Confidential Information under your control;
(iv) only use the Confidential Information for the purpose of providing the Services under this Agreement; and
(v) not copy or disclose the Confidential Information (including to your officers, employees, contractors or advisors) without our prior written consent.
(c) The obligation not to disclose Confidential Information under this Clause 8 does not apply in relation to information that is:
(i) rightfully known to you, or in your possession or control and is not subject to an obligation of confidentiality;
(ii) public knowledge (except because of a breach of the obligations of confidentiality under this Agreement); or
(iii) required by law or the rules of a stock exchange to be disclosed.
11. Advertising and Updates
(a) You acknowledge that:
(i) the Website may contain advertising and links to our products and services and those of third parties;
(ii) you are entirely responsible for any fees or obligations you incur with respect to such third parties;
(iii) we make no warranties or representations in respect of, and do not sponsor or endorse, such third parties or their products and services; and
(iv) third party websites are not under our control and your use of them will be subject to the terms and conditions and privacy policy of the relevant third party.
(b) The Website may from time to time evolve. As a result, you may be required by us to accept updates to the Website. You acknowledge that:
(i) we may at any time update the Website without notice to you; and
(ii) if you do not accept the update and update applicable third-party software, you may not be able to use the Website or enjoy full functionality of the Website.
12. Limitation of liability and idemnity
(a) To the maximum extent permitted by applicable law:
(i) We make no representations or warranties whatsoever to you;
(ii) We hereby exclude all representations, warranties, terms and conditions whether express or implied (and including without limitation, those implied by statute, custom, law or otherwise);
(iii) Our cumulative liability to you for all claims made by you under or in relation to this agreement, the privacy policy or your use of the services will not exceed in aggregate the amount actually due to be paid by you in relation to the provision by you of the services;
(iv) We will not be liable to you in respect of any claim for any loss of profit, data, goodwill or business, for interruption to business, for any failure to realise anticipated savings or for any consequential, indirect, special punitive or incidental damages.
(b) Certain legislation may imply warranties or conditions or impose obligations which cannot be excluded, restricted or modified except to a limited extent. This agreement and the privacy policy must be read subject to those statutory provisions. If those statutory provisions apply, to the extent to which we are entitled to do so, we limit our liability in respect of any claim to, at our option:
(i) in relation to services:
(a) the supply of the services again;
(b) the payment of the cost of having the services supplied again; and
(ii) in relation to goods:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(d) the payment of having the goods repaired.
(c) You indemnify and must keep indemnified, us, our related companies, their directors, officers and employees (together “those indemnified”) against any claims, losses, liability, costs (including legal fees and expenses) incurred by those indemnified arising out of or related to any breach by you of any provision of this agreement or any improper use by you of the website.
13. General(a) We may assign the benefit of this Agreement andPrivacy Policy to any person without your consent. You may only assign this Agreement and Privacy Policy or a right under them with our prior written consent that may be withheld or granted in our absolute discretion.
(b) This Agreement and Privacy Policy constitute the entire agreement between the parties in connection with their subject matter and supersedes all previous agreements or understandings between the parties in connection with its subject matter.
(c) If the whole or any part of a provision of this Agreement and Privacy Policy is invalid or unenforceable in a jurisdiction it must, if possible, be read down for the purposes of that jurisdiction so as to be valid and enforceable. If however, the whole or any part of a provision of this Agreement and Privacy Policy is not capable of being read down, it is severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this Agreement and Privacy Policy or affecting the validity or enforceability of that provision in any other jurisdiction.
(d) A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise by a party of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
(e) This Agreement and Privacy Policy do not create a relationship of employment, trust, agency or partnership between the parties.
(f) The provisions of Clauses [1-8] will survive termination or expiry of this Agreement and Privacy Policy and will continue to bind the parties.
(g) You irrevocably waive your right to seek injunctive or other equitable relief to restrain the operation of any element of the services and you agree to limit your claims against us to claims for monetary damages.
(h) We will have no liability to you for a failure by us to perform our obligations to you due to any causes outside of our reasonable control including acts of God, epidemics, restraints imposed by governments, war, acts of terrorism, riots, fire, change in laws or failure of infrastructure.
(i) This Agreement and the Privacy Policy will be governed by and construed in accordance with the law for the time being in force in New South Wales, Australia and the parties, are deemed to have submitted to the non-exclusive jurisdiction of the courts of that State.
