EATIVITY CLASSIFIED DIRECTORY TERMS OF USE

These Terms of Use (“Terms”) apply to all Suppliers and Users using the Services provided on this website. In using our website and Services, you agree to be bound by these Terms as well as any other terms and conditions posted on our website from time to time.

If you do not accept these Terms, you are not permitted to use our website. We may modify and update these Terms at any time, without notice. You need to ensure you review the Terms from time to time. In using our website, you agree to be bound by these Terms.

Notification of the amended Terms may also be sent to registered users by email or as a general notice posted to each registered user’s account.

The amended Terms will take effect from the next time you log into the website or use the website.  If you do not agree with the amendments, then you must stop using your account and the website.  Your continued use of the website is subject to our current Terms as amended from time to time.

1. DEFINITIONS

“Advertising Fees” means the fees paid by Suppliers for Advertising Material about Suppliers published on the website as part of the Advertising Services.

“Advertising Material” means any type of advertising material, including without limitation, text, layouts, artwork, graphics, scripts, presentations, drawings, documents, logos, designs, charts, images, photos, films, registered trade marks, unregistered trade marks and copyrights for any type of advertising material including, but not limited to banners, text ads, pop-ups and any other type of a promotional message for the purpose of publicizing products or services, uploaded to the website by the Supplier or by any independent contractor, employee or agent.

“Advertising Services” means the additional advertising and promotional services offered in respect to Advertising Material published on the website, including but not limited to:

• a featured page on the website where one or more Suppliers may advertise;
• banners, text ads, pop-ups and other advertising technologies delivered on the website; and
• hourly advertising that will be the main feature on the main page of the website where advertisers will be visible before any further navigation takes place. The hourly advertising will be off-peak as well as a peak period, as described in the advertising packages published on the website.

“Content” means any and all classified listings, service descriptions, biographical information, testimonials and information about goods or services that the Supplier submits or links to the website for inclusion in the Supplier Directory or Advertising Services (or both).

“GST” means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

“Intellectual property rights” includes (a) legal rights in unregistered trade marks or registered trade marks; (b) rights recognised under the Designs Act 2003 (Cth) or any equivalent statute; (c) rights recognised under the Copyright Act 1968 (Cth) or any equivalent statute; or (d) legal rights recognised in the confidentiality of information.

“Services” means the advertising and promotional services for any Supplier we provide on the website including, but not limited to, the Supplier Directory and the Advertising Services.

“Registered trade mark” means any trade mark or service mark registered under the Trade Marks Act 1995 (Cth) or any equivalent statute.

“Subscription Fees” means the fees paid by Suppliers for the listing of information about Suppliers in the Supplier Directory on the website during any twelve (12) month Subscription Term.

“Subscription Term” means the 12-month period of time for which Suppliers subscribe for the listing of information about Suppliers in the Supplier Directory on the website, including any renewal of the subscription.

“Supplier” means an advertiser of goods or services or other approved service providers, where the advertiser is an individual, sole trader, partnership, company, trading trust or other legal entity that has been accepted to participate in Advertising Services on the website or for listing in the Supplier Directory.

“Supplier Directory” means the section of the website that provides lists of providers of food news and associated lifestyle, recipes, health, products etc., which allows users of the website to search or browse Suppliers by category, specialisation, suburb or geographic location and by other criteria.

“Testimonial(s)” means any statement or recommendation testifying to the conduct, character, skills, expertise or qualifications of a Supplier or any partner, associate, consultant, employee or independent contractor of a Supplier or the quality, performance or any attributes of any goods or services of a Supplier.

“Unregistered trade mark” means any product names, brand names, product get-up, logos, trade mark or service mark used to identify the source of goods or services, which are not registered under the Trade Marks Act 1995 (Cth) or any equivalent statute.

“User” or “Users” means any member of the public who accesses the website.

“Website” means eativitynews.com

“we”, “our” and “us” means Fab Media Group Pty Ltd t/a Eativity (ABN 93 638 090 276).

“You” or “Your” means in the context of each provision of these Terms either a Supplier or User (or both).

2. ROLE OF WEBSITE

• Suppliers and Users acknowledge and agree that we are acting as a neutral facilitator only by providing an information and classified service that brings together Suppliers and Users. We are not a party to any transaction or the supply of goods or services between any Suppliers and Users that may be initiated through any Content or Advertising Material published on the website.
• Any transactions or dealings between a Supplier and a User that may result from any Content, Advertising Material or other information available on the website is a direct contractual relationship between the Supplier and the User and any complaints, disputes, claims, demands or causes of action are to be dealt with directly between the Supplier and the User and we will not to be involved as a party to the dispute.

3. REGISTRATION BY SUPPLIERS

• In order to use our Services, you need to register and set up an account.
• To be eligible to subscribe to our Services, you acknowledge and agree to the following:
  • If you are an individual, you are 18-years of age or older and able to form a legal binding contract;
  • You will not share your password or login details with any other person and you will keep your contact, payment and other information updated;
  • You warrant that all information you provide is true, correct, up-to-date and accurate personal information and details;
  • You will not transfer, sub-license or grant access to any of our Services to any other person, company, business except as agreed in these Terms; and
  • It is your responsibility to keep your contact and payment details up to date. If we do not receive payment of our Subscription Fees, we have the right to suspend your subscription.

• You agree to maintain the confidentiality of your password or login details and are fully responsible for all liability and damages resulting from your failure to maintain that confidentiality and all activities that occur through the use of your password or login details.
• You are responsible for all usage and activity on your account with us, including use of the account by any employee, independent contractor, agent or other third party authorised by you.
• You must notify us by e-mail at contact@eativitynews.com or directory@eativitynews.com as soon as you become aware of any confirmed or suspected unauthorised use of your account, or any confirmed or suspected loss or unauthorised disclosure of your password or login details.

4. SUBSCRIPTION FEES AND ADVERTISING FEES

• The listing by Suppliers in the Supplier Directory will be on a twelve (12) month subscription basis, with the Subscription Fees set out on the subscriber sign-up page of the website.
• Subscribers do not need to do anything to renew an existing subscription as it is automatically renewed for the following twelve (12) month period, until you notify us of your decision to terminate your subscription. Accordingly, you agree that your Subscription Fee will be billed automatically at the beginning of each renewal period.  We will send you an opt-out email 30 days prior to the auto subscription renewal so that you can choose to opt out of the renewal of your subscription and avoid the credit card charge for the renewed subscription.
• We reserve the right to increase the Subscription Fees payable following any renewal of the subscription, however you may opt out of renewing your subscription to the website at the increased Subscription Fees.
• No refunds or credits of the Subscription Fee will be provided for any unused portion of a Subscription Term, if you choose to cancel your subscription during the initial term or any renewal of the Subscription Term.
• If Suppliers choose to use our Advertising Services, your Advertising Fees must be paid on time in accordance with our invoice terms. Any late payment or failure to pay may result in the removal of your Advertising Material without notice.
• All Subscription Fees and Advertising Fees are exclusive of GST and other governmental charges.
• We do not process any payments on the website or store credit card information on the website. In the event payment transactions occur on our website, we pass credit card information to Stripe (a third-party payment processor) using secure payment technology and Stripe processes the transaction and sends us the confirmation of payment: For further information about Stripe visit their website. www.stripe.com/au

5. ADVERTISING MATERIAL AND CONTENT

• A Supplier warrants that they have the full legal authority to use and to authorise others to publish the Content or Advertising Material (or both) submitted to us for insertion on the website, including without limitation:
• the names, likenesses, biographical information and/or any other identifying attributes of any individual who is identifiable in the Content or Advertising Material (or both);
• all elements of the Content or Advertising Material (or both) that are subject to protection under any and all intellectual property rights law of any jurisdiction in which the Content or Advertising Material (or both) may be published; and
• all testimonials, endorsements and sponsorships (or any of these) contained in the Content or Advertising Material (or both).
• The Content or Advertising Material (or both) must not mislead or deceive any person about the quality, price, availability or any other attribute of your goods or services and the Content must not contain any material misrepresentations, including by falsely representing that any goods or services are of a particular standard, quality, value, grade, composition, style or model or have performance characteristics, accessories, uses or benefits that the goods or services do not have.
• By submitting or posting any Content or Advertising Material (or both) to the website, the Supplier warrants that:
• the Content or Advertising Material (or both) does not infringe any third party rights, including, but not limited to, the publication of any registered trade marks or unregistered trade marks included in the Content or Advertising Material (or both) does not infringe the rights of any owner or registered user of such marks; and
• the Supplier is not breaching any laws, regulations, rules, standards, codes or guidelines by publishing the Content or Advertising Material (or both) on the website.
• Each Supplier authorises us to use, reuse and to grant others the right to publish and re-publish your Content or Advertising Material (or both) and any reproduction or communication to the public of your Content or Advertising Material (or both) in any form of media or technology for any purpose related to the website.

6. SUPPLIER DIRECTORY

When Suppliers supply Content and other information for listing in the Supplier Directory, the Suppliers are responsible for the accuracy of the Content and other information including updating the Content and other information from time to time during the Subscription Term.

7. ADVERTISING SERVICES

• We reserve the right, without any liability whatsoever, to reject, omit or exclude any Advertising Material for any reason at any time, with or without notice to the Supplier, and whether or not such Advertising Material was previously accepted or published.
• We do not guarantee any given level of circulation, distribution, reach or readership for any Advertising Material nor any increase in business.

8. CANCELLATION OF ADVERTISING SERVICES AND REFUND OF ADVERTISING FEES

• Suppliers may cancel any order for Advertising Services in writing five (5) days in advance of the start date of the Advertising Services.
• Suppliers who cancel any order for Advertising Services in accordance with clause 8.1 may request a return of the balance remaining on their account for Advertising Services, we will deduct $150 to cover our administrative and processing costs.

9. TERMINATION

• TERMINATION BY SUPPLIER: If we do not fulfil a material obligation defined in these Terms, Suppliers have the right to terminate this agreement fourteen (14) days following written notice to us, provided that such material breach remains uncured, within such notice period.

• TERMINATION PROCEDURE: Suppliers are solely responsible for cancelling your account to use the Services provided on website. You must cancel in writing by notifying us at contact@eativitynews.com or directory@eativitynews.com
• WE MAY TERMINATE YOUR ACCOUNT AT ANY TIME: We have the right to terminate the account of any Supplier for any reason, at any time. You agree that we may, in our sole discretion, terminate or suspend your access to the website with or without notice and for any reason, including, without limitation, breach of these Terms. Any suspected fraudulent, abusive or illegal activity may be grounds for terminating your account and may be referred to the appropriate law enforcement authorities.
• Upon such termination, regardless of the reasons, the Supplier’s right to use the website immediately ceases and you agree we may immediately deactivate or delete your account and all related Advertising Material, Content and other information and files. We may also bar you from any further access to our website.
• On cancellation or termination of your subscription, all of your Advertising Material, Content, and other information and files will be deleted.
• We are not liable to the Supplier or any third party for any claims or damages arising out of any termination or suspension or any other action taken by us in connection with termination or suspension of your account.
• We are not required to provide any refund or part thereof to you for such termination or suspension of any Subscription Fees.

10. MODIFICATION OF WEBSITE AND CONTENT

• We may, but are not obligated to, remove any Content or Advertising Material that we determine in our sole discretion may be unlawful, offensive, defamatory, obscene, or otherwise objectionable or violates a third party’s intellectual property rights or these Terms.
• We reserve the right at any time and from time to time to remove, delete, alter or amend any Content, Advertising Material or the website. In particular, if we believe the Content or Advertising Material to be inappropriate, potentially breaches any statutes or regulations, or we receive complaints from any person or for any other reason and in our reasonable discretion, we may remove or modify Content or Advertising Material at any time without notice. We shall not be liable to you or any third party for any modification when it is required.

11. WARRANTIES

• Each Supplier warrants that:
• Any goods or services you provide to consumers via the website complies with applicable laws, codes and regulations;
• You will not use our Services for any illicit, unlawful, fraudulent, inappropriate, offensive or otherwise illegal activities;
• You also agree to ensure that you adhere to good practice service standards for the supply of goods and services to Consumers in a timely and responsive manner; and
• You will not transmit any viruses, malware, worms, etc. of any kind and that you will not upload, post, host or transmit unsolicited material or messages to the website.
• Each Supplier warrants that:
  • You will at all times abide by the Australian Consumer Law (‘ACL’) requirements and guarantees, including but not limited to the re-supply or refund of the cost of any goods or services you supply or provide which do not meet ACL requirements;
  • Your Content or Advertising Material (or both) must not mislead or deceive any person about the quality, price, availability or any other attribute of your goods or services and the Content or Advertising Material (or both) must not contain any material misrepresentations, including by falsely representing that any goods or services are of a particular standard, quality, value, grade, composition, style or model or have performance characteristics, accessories, uses or benefits that the goods or services do not have; and
  • You will ensure that your Content or Advertising Material (or both) complies with all applicable laws, codes and regulations and all material and Content or Advertising Material (or both) is accurate, reliable, up-to-date, lawful, and not misleading.

12. DISCLAIMERS REGARDING THE OPERATION OF THE WEBSITE

• We make no warranty that the website or the Services will meet the requirements of any Supplier or User or be available on an uninterrupted, secure or error-free basis. We will use our best endeavours to ensure the website is always available and virus free but from time-to-time, and in some instances, this may not be the case as it may be out of our immediate control. We will endeavour to notify you if the website becomes unavailable for any lengthy or unusual time period.
• We make no warranty or guarantee of increase in any Suppliers’ business, revenue, clients, traffic to their website or otherwise as a result of the Services.
• The Content and Advertising Material is for general information and educational purposes only. Nothing contained in the Content and Advertising Material is, or is intended to be construed as advice to any User.
• We do not and cannot verify the information or opinions that Suppliers upload to the website nor can we guarantee the goods or services they offer. We are not involved in, are not responsible for and we assume no liability in respect of any goods or services supplied to Users by any Suppliers. We urge Users to make your own enquiries and ensure you do your own due diligence to verify any information about Suppliers and any goods or services offered by Suppliers.

13. LIMITS TO OUR LIABILITY

• Each Supplier agrees and acknowledges that we are not liable for any direct, indirect, consequential or incidental loss or damage which may result from your use of our website, including but not limited to:
• any delays in the production, delivery and/or non-delivery of any Content or Advertising Material on the website as the result of an act of God, action by any government entity, network difficulties, electronic malfunction or any condition or event beyond our control;
• errors or omissions in the Content or Advertising Material as it is published on the website and communicated to the public; and
• any unavailability or inoperability of the internet, technical malfunction, computer error, data corruption or loss of information.
• To the extent that we are able to limit the remedies available under the Australian Consumer Law (ACL), all conditions and warranties that may be implied by the ACL are expressly excluded. All other conditions, warranties or guarantees, which may be implied by custom, or any statute other than the ACL, are expressly excluded by these Terms.
• We expressly limit our liability to Suppliers for breach of a non-excludable statutory guarantee under the ACL to the following remedies:
• the supply of the goods or services again; or
• the payment of the cost of having the goods or services supplied again.
• In no event will our liability hereunder towards any Supplier exceed the Subscription Fees paid by the Supplier during the preceding twelve (12) months preceding the date of the breach.
• Our failure to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision.

14. INDEMNITY

• Each Supplier agrees to indemnify, defend and hold harmless Fab Media Group Pty Ltd t/a Eativity (ABN 93 638 090 276) and any related body corporate and their respective directors, officers, employees, independent contractors, agents and successors, from and against any and all claims, demands, causes of action, costs, expenses and damages, judgement or liability, threatened or adjudicated, of any kind (including, without limitation, reasonable attorney’s fees and expenses, settlement costs and disbursements) incurred by us, arising out of or in connection with:
• any breach or default by a Supplier in the performance of any of its obligations set out in these Terms;
• any breach by a Supplier of any representation, warranty, covenant or agreement set out in these Terms;
• any breach of any intellectual property rights or other legal rights of any person arising from our publication of any Content or Advertising Material uploaded by you for publication on the website; and
• any transaction or dealings between a Supplier and a User, including without limitation, any purchases by a User of goods or the supply of services to a User by a Supplier.
• The Suppliers’ indemnification obligations shall survive termination or expiration of the agreement set out in these Terms.

15. INTELLECTUAL PROPERTY

• All custom graphics, icons, logos, brand names and service names used to brand the website are registered or unregistered trade marks or service marks of Fab Media Group Pty Ltd t/a Eativity (ABN 93 638 090 276) or otherwise are the copyright of Fab Media Group Pty Ltd t/a Eativity (ABN 93 638 090 276).
• All other trademarks or service marks within this website are the property of their respective owners.
• Each Supplier or User is solely responsible for obtaining written permission before reusing any copyrighted material that is available on this website. Any unauthorized use of the materials appearing on this website may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.

16. PRIVACY

• We are committed to protecting the privacy of Suppliers or Users. We at all times, respect the privacy and confidentiality of personal information provided to us and we will comply with the Privacy Act 1988 (Cth) and the Australian Privacy Principle in relation to our collection, use and disclosure of personal information.
• We may be required, in certain circumstances, to disclose personal information in good faith and where we are required to do so in the following circumstances: by law or by any court; to enforce the terms of any of our agreements with Suppliers and other users of our website; or to protect the rights, property or safety of our customers or third parties.
• We reserve the right to disclose the name and any other personal information of any Supplier or User to any law enforcement authority or other competent authority or to any person for the purpose of legal proceedings, prosecution, and investigation of any breach, alleged breach of the law or these Terms.

17. RELATIONSHIP

No agency, partnership, joint venture, or employment is created as a result of these Terms.

18. DISPUTE RESOLUTION
    • If a dispute arises, both parties agree that confidentiality is paramount to the reputation of both parties. At no time must any communications or discussions be made public, including but not limited to any social media websites of either party. Any public discussion or comments about either party are considered defamatory, negative or otherwise damaging and will be the subject of compensation in any mediation or litigation claim.

• In the event of any dispute between the parties that cannot be resolved, both parties agree to obtain an independent professional arbitrator/dispute resolution specialist to make a determination on the dispute and each of us agrees to pay our own costs.

19. NOTICES

All notices and approvals desired or required to be given to either party hereunder will be in writing and shall be deemed given when delivered via (i) certified mail, return receipt requested, all charges prepaid; (ii) any courier service, with proof of delivery;  (iii) hand delivery, with proof of delivery (iv) email, to the email address of the Supplier set out in their account or to our email account published on the website, with acknowledgement of receipt, or proof of transmission, in each case to the other party’s email address.

20. EXCLUSION OF UNENFORCEABLE TERMS

Where any provision of these Terms would by any applicable statute be illegal, void, or unenforceable in any State or Territory then such a clause shall not apply in that State or Territory and shall be deemed never to have been included in these Terms and Conditions in that State or Territory. Such a clause if legal and enforceable in any other State or Territory, shall continue to be fully enforceable and part of this Agreement in those other States and Territories. The deemed exclusion of any term pursuant to this paragraph shall not affect or modify the full enforceability and construction of the other clauses of these Terms and Conditions.

21. GOVERNING LAW

These Terms are governed by the laws of the State of New South Wales, Australia which are in force from time to time and both you and we agree to submit to the exclusive jurisdiction of the Courts of the State of New South Wales for determining any dispute concerning these Terms.

These Terms were last modified March 2022 and are effective from that date.