Terms and Conditions

• Game Marketing Genie Pty Ltd is now referred to as the Service Provider
• You and/or your company is now referred to as the Client

The Service Provider carries on the business of providing digital marketing services. The Service Provider has agreed to provide the Services to the Client and the Client has agreed to procure the Services from the Service Provider in accordance with the Standard Terms and Conditions and any Statements of Work agreed between the parties during the term of work together and in situations where deliverables are expected to be given later or payments are taking place later. Any work done between you and the service provider remains bound to these terms indefinitely unless specified otherwise in this document (eg. transfer of IP).

Both parties are agreeing to the terms and services upon signing the contract and to ensure the client understands the terms and services a tick box will also be provided to help you acknowledge your understanding and acceptance of these terms.

HOW TO READ THIS AGREEMENT

• MEANING OF CAPITALISED WORDS AND PHRASES

Capitalised words and phrases used in these terms and conditions have the meaning given:

• to that word or phrase in the Statement of Work;
• by the word immediately preceding any bolded and bracketed word(s) or phrase(s); or
• in the definitions in clause 20 of this agreement.

• ORDER OF PRECEDENCE

Unless otherwise expressly stated, in the event of any inconsistency between these terms and conditions and a Statement of Work, these terms and conditions will prevail to the extent of such inconsistency, except for any Special Conditions set out in a Statement of Work, which will prevail over these terms and conditions to the extent of such inconsistency.

DURATION AND RENEWAL OF THIS AGREEMENT

• This agreement will commence on the Start Date, and continues in effect until the End Date set out in clause 1 (Term), unless earlier terminated in accordance with clause 16, or extended in accordance with clause 3(b).
• The parties may agree to extend this agreement by mutual agreement, including by conduct that indicates an intention to extend the Term.
• If any services are supplied by the Service Provider:
  • not being subject to a Statement of Work, but also not being subject to any other written agreement between the parties; or
  • after the expiry of the Term without the parties having entered into a replacement agreement or otherwise having expressly agreed in writing that these terms will not apply, then

the terms of this agreement will apply for those services.

• The duration of any Statement of Work is indicated by the dates set out in the Statement of Work.

ORDERING AND PERFORMANCE OF SERVICES

• ORIGINAL STATEMENT OF WORK

From the Start Date, the Service Provider will perform the Services in accordance with Statements of Work agreed between the parties in accordance with this clause 4.

• WHAT IS A STATEMENT OF WORK

For the purposes of this agreement, a ‘Statement of Work’ is either:

• a document agreed and signed by both parties in the form of the Statement of Work template attached at Schedule 1, which addresses the matters contemplated in that form; or
• an email sent by the Service Provider to the Client, which:
  • addresses the matters contemplated in the form of the Statement of Work template attached at Schedule 1; and
  • is agreed to by the Client before any deadline for agreement specified by the Service Provider.
• ADDITIONAL STATEMENTS OF WORK
  • The parties may agree to Statements of Work under these terms and conditions during the Term.
  • These terms and conditions will apply to all Statements of Work agreed between the parties.
  • If the Client requests an additional Statement of Work, the Service Provider will provide a quote in accordance with the Statement of Work template.
  • The Client will be taken to have accepted an additional Statement of Work if the Client informs or otherwise indicates to the Service Provider that the Client wishes for the Service Provider to proceed with the performance of the additional Statement of Work.
  • An additional Statement of Work will not limit, terminate or otherwise affect any other current Statements of Work between the parties, including if a particular Statement of Work is terminated.
• CHANGES TO STATEMENTS OF WORK
  • The Client must pay a ‘change in scope fee’, in an amount reasonably determined by the Service Provider (Change Fee), for changes to Services requested by the Client which alter the scope set out in the relevant Statement of Work and require the Service Provider to perform additional work or incur additional costs (Changes).
  • Unless otherwise agreed in writing, the Service Provider may at its discretion extend or modify any delivery schedule or deadlines for the Services as may be reasonably required by such Changes.
  • The Service Provider will only be required to perform Changes, if:
    • the Service Provider agrees in writing to perform the Changes;
    • the Client confirms in writing that they wish for the Service Provider to proceed with the Changes and the relevant Change Fee; and
    • the Client pays the Change Fee, in accordance with clause 1 as if it was a Fee.
• FIXED PRICE VS RETAINER SERVICES

Fixed Price Services

• Where a Statement of Work indicates that the Service Provider provides Services at a fixed price (Fixed Price Services) the Fixed Price Services commence on the Start Date as specified in the Statement of Work and continue unless and until the Statement of Work is terminated in accordance with its terms or the Fixed Price Services are completed

Retainer Services

• Where a Statement of Work indicates that the Service Provider provides Services on a retainer or ongoing basis (Retainer Services), the Retainer Services commence on the Start Date as specified in the Statement of Work and continue for the minimum term as specified in the Statement of Work (Minimum Term) unless and until the Statement of Work is terminated in accordance with its terms.
• Except as otherwise agreed between the parties, following the expiry of the Minimum Term (and each Renewed Term), Retainer Services will automatically continue to renew for a further term equal to the Minimum Term (Renewed Term) unless either party provides the other party with at least 30 days’ written notice prior to the expiry of the then current term that the Retainer Services are to be terminated. Termination under this clause will be effective as at the end of the then current Minimum Term or Renewed Term as the case may be.
• The Client may terminate Retainer Services at any time by providing the Service Provider written notice, however, the termination will only take effect at the end of the then current Minimum Term or Renewed Term as the case may be.

• DATES AND TIMES
  • Any dates or times agreed in relation to the Services, including those set out in a Statement of Work, are indicative only and included as a guide for when the Services are expected to be performed.
  • The Service Provider may, due to various reasons beyond its control, need to make reasonable adjustments to any such dates or times.
• REVIEW OF SERVICES

The Client is ultimately responsible for approving all Services that the Service Provider sends to the Client for review, including proofs and ensuring accuracy and suitability. Whilst every effort will be made for accuracy, the Client’s approval to proceed constitutes acceptance of full responsibility for any errors and omissions within the Services. The Service Provider will not accept liability for errors overlooked at the stage of final proofing.

• THIRD PARTY TERMS AND CONDITIONS
  • The Client acknowledges and agrees that the terms & conditions of third party suppliers of goods or services (Third Party Terms) may apply to any part of the Services.
  • The Service Provider will endeavour to notify the Client of Third Party Terms that apply to the Services, in which case:
    • the Client must immediately notify the Service Provider if they do not agree to the Third Party Terms; and
    • if the Service Provider does not receive a notice in accordance with clause 8(b)(i) the Client will be taken to have accepted those Third Party Terms, and the Service Provider will not be liable for any loss or damage suffered by the Client in connection with such Third Party Terms.
  • The Client acknowledges and agrees that if the Client does not agree to any Third Party Terms, this may affect the Service Provider’s ability to meet Key Dates and / or Times.
• DISCLAIMER

The Client acknowledges and agrees that:

• any information provided to the Client as part of or in connection with the Services is general in nature and may not be suitable for the Client’s circumstances; and
• it is the Client’s responsibility to comply with applicable regulations relevant to the Client’s business, including industrial relations laws and privacy laws.

TIMING

• As part of a Statement of Work or in the course of the Service Provider performing the Services, the parties may agree a schedule for providing certain Services and Milestones, including estimated dates of completion, deadlines or schedules (Schedules) which may be stated in a Statement of Work or elsewhere.
• The Service Provider will use its best efforts to meet these Schedules, however whilst the Service Provider always endeavours to meet deadlines, sometimes it is not possible for the Service Provider to meet a deadline and the Client agrees that any deadlines the Service Provider agrees to (including those set out in Schedules) are estimates only and non-binding on the Service Provider.
• The Service Provider reserves the right to revise Schedules in the event that the delay is caused by the Client’s failure to provide:
  • timely feedback;
  • amounts for marketing spend; or
  • other information reasonably requested by the Service Provider in order to perform the Services.

REVIEWS & MODIFICATIONS

• Where the Service Provider creates something for the Client as part of the Services (Development Services), on completion of any Development Services (or parts thereof) the Client will be notified and have the opportunity to review it.
• The Client must notify the Service Provider in writing within 7 days of receiving notification of completion as to whether it is satisfied with the Development Services provided, or whether they require any modifications. Unless otherwise stated in a Statement of Work, one round of modifications is included in the Fee for the Development Services (where applicable), provided that the modifications are in respect of matters specifically contemplated in the Statement of Work, and do not constitute an extra service (as determined by the Service Provider acting reasonably).
• In the event the Client fails to notify the Service Provider that it requires modifications within 7 days, then the Client will be deemed to have accepted the Development Services.
• In the event that the Client notifies the Service Provider that it requires more than one round of modifications, or any modifications constitute extra services, or that the Client requests modifications after it has accepted the Development Services (whether the acceptance actual or deemed), the Client must pay any fees notified by the Service Provider to the Client for such services, which shall be calculated in accordance with the Service Provider’s then current hourly rates.

INTELLECTUAL PROPERTY

• DEFINITIONS

In this clause and any Statement of Work, the following terms have the following meanings in relation to Intellectual Property Rights:

• Material means tangible and intangible information, documents, reports, software (including source and object code), inventions, data and other materials in any media whatsoever.

WARRANTIES

• To the maximum extent permitted by applicable law, all express or implied representations and warranties not expressly stated in this agreement are excluded.
• Nothing in this agreement is intended to limit the operation of the Australian Consumer Law contained in the Competition and Consumer Act 2010 (Cth) (ACL). Under the ACL, the Client may be entitled to certain remedies (like a refund, replacement or repair) if there is a failure with the goods or services provided.

TERMINATION

• TERMINATION BY THE SERVICE PROVIDER

The Service Provider may terminate this agreement or any Statement of Work in whole or in part immediately by written notice to the Client if:

• the Client is in breach of any term of these terms or any part of a Proposal and:
  • fails to rectify the breach upon being given 7 days’ written notice to do so; or
  • the breach is unable to be rectified; or
• the Client becomes subject to any form of insolvency or bankruptcy administration.

• TERMINATION BY THE CLIENT

The Client may terminate this agreement if:

• the Service Provider has committed a material breach of this agreement or a Statement of Work and has failed to remedy the breach within 30 days written notice by the Client;
• the Service Provider consents to such termination, subject to the Client’s fulfillment of any pre-conditions to such consent (e.g. payment of a pro-rata portion of the agreed fees); or
• the Service Provider becomes subject to any form of insolvency or bankruptcy administration.

FORCE MAJEURE

• If a party (Affected Party) becomes unable, wholly or in part, to carry out an obligation under this agreement (other than an obligation to pay money) due to a Force Majeure Event, the Affected Party must give to the other party prompt written notice of:
  • reasonable details of the Force Majeure Event; and
  • so far as is known, the probable extent to which the Affected Party will be unable to perform or be delayed in performing its obligation.
• Subject to compliance with clause 17(a) the relevant obligation will be suspended during the Force Majeure Event to the extent that it is affected by the Force Majeure Event.
• The Affected Party must use its best endeavours to overcome or remove the Force Majeure Event as quickly as possible.
• For the purposes of this agreement, a ‘Force Majeure Event’ means any:
  • act of God, lightning strike, meteor strike, earthquake, storm, flood, landslide, explosion or fire;
  • strikes or other industrial action outside of the control of the Affected Party; or
  • war, terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic, pandemic; or
  • any decision of a government authority in relation to COVID-19, or any threat of COVID-19 beyond the reasonable control of the Affected Party, to the extent it affects the Affected Party’s ability to perform its obligations.

NOTICES

• A notice or other communication to a party under this agreement must be:
  • in writing and in English; and
  • delivered via email to the other party, to the email address specified in this agreement, or if no email address is specified in this agreement, then the email address most regularly used by the parties to correspond regarding the subject matter of this agreement as at the date of this agreement (Email Address). The parties may update their Email Address by notice to the other party.
• Unless the party sending the notice knows or reasonably ought to suspect that an email was not delivered to the other party’s Email Address, notice will be taken to be given:
  • 24 hours after the email was sent; or
  • when replied to by the other party,

whichever is earlier.

GENERAL

• GOVERNING LAW AND JURISDICTION

This agreement is governed by the law applying in Victoria, Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.

• BUSINESS DAYS

If the day on which any act is to be done under this agreement is a day other than a Business Day, that act must be done on or by the immediately following Business Day except where this agreement expressly specifies otherwise.

• AMENDMENTS

This agreement may only be amended in accordance with a written agreement between the parties.

• WAIVER

No party to this agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.

• SEVERANCE

Any term of this agreement which is wholly or partially void or unenforceable is severed to the extent that it is void or unenforceable. The validity and enforceability of the remainder of this agreement is not limited or otherwise affected.

• JOINT AND SEVERAL LIABILITY

An obligation or a liability assumed by, or a right conferred on, two or more persons binds or benefits them jointly and severally.

• ASSIGNMENT

A party cannot assign, novate or otherwise transfer any of its rights or obligations under this agreement without the prior written consent of the other party.

• COUNTERPARTS

This agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this agreement and all together constitute one agreement.

• COSTS

Except as otherwise provided in this agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this agreement.

• ENTIRE AGREEMENT

This agreement embodies the entire agreement between the parties and supersedes any prior negotiation, conduct, arrangement, understanding or agreement, express or implied, in relation to the subject matter of this agreement.

• INTERPRETATION
  • (singular and plural) words in the singular includes the plural (and vice versa);
  • (gender) words indicating a gender includes the corresponding words of any other gender;
  • (defined terms) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
  • (person) a reference to “person” or “you” includes an individual, the estate of an individual, a corporation, an authority, an association, consortium or joint venture (whether incorporated or unincorporated), a partnership, a trust and any other entity;
  • (party) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
  • (this agreement) a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure is a reference to a party, clause, paragraph, schedule, exhibit, attachment or annexure to or of this agreement, and a reference to this agreement includes all schedules, exhibits, attachments and annexures to it;
  • (document) a reference to a document (including this agreement) is to that document as varied, novated, ratified or replaced from time to time;
  • (headings) headings and words in bold type are for convenience only and do not affect interpretation;
  • (includes) the word “includes” and similar words in any form is not a word of limitation; and
  • (adverse interpretation) no provision of this agreement will be interpreted adversely to a party because that party was responsible for the preparation of this agreement or that provision.

DEFINITIONS

In these terms and conditions, the following words and phrases have the following meaning: