In these Terms, Platform refers to MarkerContent’s content platform regardless of how it is accessed. The Platform enables publishers of any type, including writers, bloggers or any producers of content
(a) warrant to MarkerContent that you have reviewed these Terms, and that you understand these Terms;
(b) warrant to MarkerContent that you have the legal capacity to enter into a legally binding agreement with MarkerContent and if you are accepting these Terms on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms; and
(c) agree to use the Platform in accordance with the Terms.
Please read the Terms carefully. You must immediately cease using the Platform if you do not agree to the Terms. In this clause, “you” refers to the Publisher and its affiliates. MarkerContent may, at any time and at its discretion, vary these Terms by publishing the varied terms on the Platform. MarkerContent recommends you check the Platform regularly to ensure you are aware of the current Terms.
2 Platform Summary
2.1 Publishers who have created original content, including text, styles, images, HTML and any other multimedia content, may submit this content to MarkerContent (Content). MarkerContent uses this Content to create articles in various formats (Articles) ready for on-sale to businesses or users on the Platform. MarkerContent:
(a) converts a Publisher’s Content into a searchable archive;
(b) identifies and extracts evergreen material and converts this into Articles;
(c) analyses, tags and categorises Articles;
(d) performs styling and clean-up of Content for conversion to an Article, ready for sale; and
(e) confirms image and text rights with a Publisher, together, the Services.
2.2 MarkerContent reserves the right to change or remove features of the Services from time to time.
2.3 MarkerContent sells Articles to businesses or users on the Platform for a fee (the Article Fee). The Article Fee is set out on the Platform and may differ depending on factors including but not limited to whether an Article is sold individually or as part of a bundle of Articles sold to businesses or users as part of MarkerContent subscription offering.
2.4 You understand and agree that MarkerContent is not an employment agency or labour hire business and Publishers are not MarkerContent employees, contractors or agents.
3.1 A Publisher must create an account in order to submit Content to MarkerContent (Account). Publishers must ensure that any information provided when creating an Account is accurate and up-to-date.
3.2 When a Publisher creates an Account, MarkerContent will provide account details to the Publisher. It is the Publisher’s responsibility to keep its account details confidential. A Publisher is liable for all activity on its Account.
3.3 A Publisher may register for an Account using its Google+, Facebook or other social media network account (Social Media Account). If a Publisher signs in to its Account using its Social Media Account, the Publisher authorises MarkerContent to access certain information on its Social Media Account.
3.4 The Publisher will immediately notify MarkerContent of any unauthorised use of its Account.
3.5 At MarkerContent’s sole discretion, MarkerContent may refuse to allow any person to register or create an Account.
4 Fees and Payments
4.1 It is free to register an Account on the Platform and submit Content to MarkerContent. MarkerContent does not charge a fee for providing the Services.
4.2 Any payment of the Article Fees to Publishers will be made through MarkerContent’s third party payment processor or by any other payment method set out on the Platform.
4.3 At some time after the end of each month, Article Fees will be remitted to a Publisher for the all the Articles created from the Publisher’s Content which have been sold during previous month, less MarkerContent’s service fee (Service Fee). MarkerContent’s Service Fee is set out on the Platform.
4.4 MarkerContent may change the fee and payment terms applying to the Platform and the sale of Articles at its sole discretion and any change is immediately effective upon MarkerContent publishing the change on the Platform and will apply to any use of the Platform or sale of Articles following the change.
5 Limited Payment Collection Agent
5.1 Each Publisher appoints MarkerContent as the Publisher’s limited payment collection agent solely for the purpose of accepting the Article Fees from purchasers of Articles.
5.2 Publishers agree that payment of Article Fees by purchaser of Articles to MarkerContent (as the Publisher’s limited payment collection agent) is to be considered the same as payment made directly by the purchaser of Articles to the Publisher.
5.3 As the limited payment collection agent for the Publisher, MarkerContent agrees to facilitate the payment of Article Fees. In the event that MarkerContent does not remit Article Fees as set out in the Fees and Payment clause above, Publishers will only have recourse against MarkerContent.
6 Content Licensing / Intellectual Property Rights
(a) The Publisher grants MarkerContent a perpetual, non-exclusive, world-wide, royalty free (except as otherwise permitted under these Terms) licence to the Content for the Purpose in accordance with the terms set out in these Terms (Content Licence).
(b) The Publisher acknowledges and agrees that the Content Licence:
(1) applies to each individual piece of Content provided by the Publisher to MarkerContent;
(2) allows MarkerContent in its sole discretion to alter, modify and stylise Content for the purpose of creating Articles; and
(3) allows MarkerContent to sell Articles and sublicence Content on the Platform.
(c) Once these Terms expire or terminate between the Publisher and MarkerContent in accordance with clause 12, MarkerContent’s rights in clauses 6.1(b)(2) and 6.1(b)(3) will also terminate. For the avoidance of doubt, any sub-licence granted by MarkerContent in accordance with clause
6.3 will last in perpetuity. This clause survives the termination of these Terms.
These Terms do not transfer ownership of any Intellectual Property Rights to MarkerContent unless otherwise agreed.
(a) MarkerContent may sublicence the Content, in part or whole, or otherwise deal in any other way with any of its rights under these Terms;
(c) the Publisher acknowledges and agrees that in the event that MarkerContent sublicences
Content to a Third Party, MarkerContent, to the maximum extent permitted by law, will not be held liable for any infringement of any rights held by the Publisher in relation to the Content. This clause survives the termination of these Terms.
6.4 In addition to any other rights and licences granted in this Agreement, the Publisher also grants to MarkerContent a limited licence to copy, trojan horses, viruses or piracy or programming routines that may damage or interfere with the Platform;
(e) anything that might violate any local, state, national or other law or regulation or any order of a court;
(f) using the Platform to find Articles and then completing a transaction independent of the Platform in order to circumvent the obligation to pay any fees related to our provision of the Services;
(g) using the Platform to send unsolicited email messages; or
(h) facilitating or assisting a third party to do any of the above acts.
9.1 Each Party and its Personnel agrees to comply with its obligations under the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines as amended from time to time in relation to personal information collected, used or disclosed by that Party or its Personnel in connection with the Services and these Terms.
9.2 This clause 9 will survive the termination or expiry of these Terms.
10 Representations and Warranties
MarkerContent does not warrant that the Services or the Content will be error-free or will operate without interruption or that, except as set out in these Terms, the Services will be performed in the manner intended by the Publisher or the Services will meet the requirements of the Publisher.
10.2 Publishers On every day during the term of these Terms, the Publisher warrants that, for any Content posted, uploaded, submitted or otherwise transmitted to MarkerContent:
(a) the Content is fit for the Purpose;
(b) the Publisher is the sole and exclusive owner of the Content and the Publisher has all rights, licences, consents and releases that are necessary to grant to MarkerContent the rights in the Content as contemplated by these Terms, including but not limited to obtaining all Third Party consents and waivers to Intellectual Property Rights and Moral Rights in the Content;
(c) where the Publisher has not formally obtained all Intellectual Property Rights in relation to the Content, it warrants that identifying the owner of such rights would be unreasonably difficult; and
(d) neither the Content nor the posting, uploading, publication, submission or transmission of the Content or MarkerContent’s use or sale of the Content on, through or by means of the Platform will infringe, misappropriate or violate a third party’s Intellectual Property Rights and Moral Rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
11 Indemnity and liability
11.1 Despite anything to the contrary (but subject to clause 11.2), to the maximum extent permitted by the law:
(a) MarkerContent’s maximum aggregate Liability arising from or in connection with these Terms (including the Services and/or the subject matter of these Terms) will be limited to, and must not exceed the aggregate amount of the Article Fees paid to the Publisher in the three-month period immediately preceding the event that gave rise to the Liability or €100 if no such Article Fees have been paid; and
(b) MarkerContent will not be liable to the Publisher for any loss of profit (including anticipated profit), loss of benefit (including anticipated benefit), loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings (including anticipated savings), loss of reputation, loss of use and/or loss or corruption of Data or Content, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise.
11.2 Clause 11.1 will not apply to MarkerContent’s Liability to the Publisher under these Terms for any liability which cannot be excluded or limited by applicable law, including:
(a) fraud or criminal conduct; or
(b) death or personal injury.
11.3 Despite anything to the contrary, to the maximum extent permitted by the law, MarkerContent will have no Liability, and the Publisher releases and discharges MarkerContent from all Liability, arising from or in connection with any:
(a) Third Party liability arising from any dispute, allegation or claim in relation to ownership of the Intellectual Property Rights in the Content;
(b) failure or delay in providing the Services; or
(c) breach of these Terms, where caused or contributed to by any:
(d) event of Force Majeure; or
(e) act or omission of the Publisher or its Personnel.
11.4 MarkerContent uses third-party service providers such as Azure to host the Platform. MarkerContent will not be liable for any interruption to the Platform, unavailability or outage, or any interruption, caused by any such third-party service provider.
11.5 Publishers agree that, to the maximum extent permitted by the law, these Terms exclude all terms, conditions and warranties implied by statute, in fact or on any other basis, except to the extent such terms, conditions and warranties are fully expressed in these Terms.
11.6 To the maximum extent permitted by law, the Publisher must indemnify MarkerContent, and hold MarkerContent harmless, against any Liability suffered by MarkerContent arising from or in connection with the Publisher’s use of the Platform or any breach of these Terms or any third party’s claim in relation to Intellectual Property or any applicable laws by the Publisher. This indemnity is a continuing obligation, independent from the other obligations under these Terms, and continues after these Terms end. It is not necessary for MarkerContent to suffer or incur any Liability before enforcing a right of indemnity under these Terms.
11.7 This Clause 11 will survive the termination or expiry of these Terms.
12 Term and Termination
12.1 Term: The initial term of these Terms will commence on the date the Publisher accepts these Terms in accordance with clause 1.1 and will continue for a period of 2 years (Initial Term) unless terminated earlier in accordance with these Terms. After the Initial Term, a Party may, by written notice to the other, terminate these Terms.
12.2 MarkerContent may immediately suspend, terminate or limit a Publisher’s access to and use of the Platform and (where applicable) the Publisher’s Account if the Publisher breaches the Terms and the breach cannot be remedied or is not remedied within 5 Business Days of MarkerContent notifying the Publisher of the breach.
12.3 A Publisher may stop using the Platform at any time for any reason.
12.4 MarkerContent may stop making the Platform (or any part of it) available without prior notice.
13 Events Following Termination
13.1 Upon termination of these Terms:
(a) MarkerContent will immediately stop performing the Services; and
(b) if a Publisher breaches these Terms, MarkerContent may take down or otherwise remove any Articles, created from Content provided by a Publisher.
13.2 The expiry or termination of these Terms for any reason will be without prejudice to any rights or liabilities which have accrued prior to the date of expiry or termination of these Terms.
13.3 Expiry or termination of these Terms for any reason does not affect any licence rights of the Third Parties who have purchased Articles.
13.4 This clause 13 will survive the termination or expiry of these Terms.
14.1 Disputes: Neither Party may commence court proceedings relating to any dispute arising from, or in connection with, these Terms without first meeting with a senior representative of the other Party to seek (in good faith) to resolve that dispute (unless that Party is seeking urgent interlocutory relief or the dispute relates to compliance with this clause).
14.2 Notices: Any notice given under these Terms must be in writing and addressed to MarkerContent at the details set out below or to a Publisher at the details provided when the Publisher registers for an Account. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of email.
14.3 Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partly) in relation to these Terms does not operate as a waiver or prevent a Party from exercising that power or right or any other power or
In these Terms, unless the context otherwise requires: Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays. Claim means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise. Corporations Act means the Corporations Act 2001 (Cth). Data means all of the information, documents and other data provided by the Publisher or their Personnel to MarkerContent, any content uploaded by the Publisher or Personnel to the Platform, or otherwise accessed by MarkerContent in providing the Services. Force Majeure means any event or circumstances beyond the reasonable control of a Party including any fire, lightning strike, flood, earthquake, natural disaster, sabotage, nuclear contamination, terrorism, war or civil riot that occurs to the extent that it:
(a) would be unreasonable to expect the affected Party to have planned for, avoided or minimised the impact of such circumstance by appropriate risk management, disaster recovery or business resumption plan; and
(b) results in a Party being unable to perform an obligation under these Terms on time.
Insolvency Event means the occurrence of any one or more of the following events in relation to a Party:
(a) the Party is or states that it is insolvent or is deemed or presumed to be insolvent under any applicable laws;
(b) an application or order is made for the winding up, bankruptcy or dissolution of the Party or a resolution is passed or any steps are taken to pass a resolution for its winding up or dissolution;
(c) an administrator, provisional liquidator, liquidator or person having a similar or analogous function under the laws of any relevant jurisdiction is appointed in respect of the Party or any action is taken to appoint any such person and the action is not stayed, withdrawn or dismissed within 10 Business Days;
(d) a controller is appointed in respect of any of the Party’s property;
(e) the Party is deregistered under the Corporations Act or other legislation or notice of its proposed deregistration is given to it;
(f) a distress, attachment or execution is levied or becomes enforceable against the Party or any of its property;
(g) the Party enters into or takes action to enter into an arrangement, composition or compromise with, or assignment for the benefit of, all or any class of its creditors or members or a moratorium involving any of them;
(h) a receiver or manager (or both) or trustee in bankruptcy is appointed in respect of the Party or its property;
(i) a petition for the making of a sequestration order against the estate of the Party is presented and the petition is not stayed, withdrawn or dismissed within 10 Business Days or the Party presents a petition against itself; or
(j) anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of the Party. Intellectual Property means any:
(b) registered or unregistered design, patent, trade mark rights;
(c) trade, business, company or domain names;
(d) know-how, inventions, processes, trade secrets or confidential information;
(e) circuit layouts, databases or source codes; or
(f) similar rights in any part of the world,
(g) relating to a Party and/or the operation of its business, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing. Intellectual Property Rights means all present and future rights to:
(b) registered or unregistered designs, patents, trade marks;
(c) trade, business, company or domain names;
(d) know-how, inventions, processes, trade secrets;
(e) circuit layouts, databases or source codes; and
(f) any similar rights in any part of the world, including any application, or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing. Liability means any expense, charge, cost, liability, loss, damage, Claim, demand or proceeding (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent. Moral Rights has the meaning given in the Copyright Act 1968 (Cth). Party means a party to these Terms from time to time, including Publishers and Parties means all of them. Personnel means in relation to a Party, any employee, contractor, officer and agent of that Party. Third Party means a person other than MarkerContent or the Publisher.
In these Terms, unless the context otherwise requires:
(a) the singular includes the plural and vice versa;
(b) headings are for convenience only and do not affect interpretation;
(c) a reference to a clause, paragraph, schedule or annexure is a reference to a clause, paragraph, schedule or annexure, as the case may be, of these Terms;
(d) if any act which must be done under these Terms is to be done on a day that is not a Business Day then the act must be done on or by the next Business Day;
(e) a reference to any legislation or law includes subordinate legislation or law and all amendments, consolidations, replacements or re-enactments from time to time;
(f) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(g) a reference to a natural person includes a body corporate, partnership, joint venture, association, government or statutory body or authority or other legal entity and vice versa;
(h) includes and similar words mean includes without limitation;
(i) no clause will be interpreted to the disadvantage of a Party merely because that Party drafted the clause or would otherwise benefit from it;
(j) a reference to a party to a document includes that party’s executors, administrators, successors, permitted assigns and persons substituted by novation from time to time;
(k) a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;
(l) a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;
(m) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(n) a reference to time is to local time in Dublin, Ireland and
(o) a reference to $ or dollar refers to the currency from time to time.