Terms and Conditions of XGameDev Pty Ltd (“XGameDev”)

Thank you for using XGameDev. These T&C’s will govern the Services provided by us to you. Importantly, it outlines both your responsibilities and ours while providing the Services.

By agreeing to use our Services, you agree that you have read, understand and agree to be bound by the terms outlined in these T&C’s. If you are using our Services on behalf of an organisation, you agree to the terms outlined in these T&C’s, on behalf of such organization.

1. Definitions

In these T&C’s unless the context indicates otherwise, the following words have the following meanings.

Cancellation Date means the date of cancellation of the Services and/or cancellation of engagement of XGameDev by the Customer or by XGameDev.

Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).

Commencement Date means the date on which XGameDev (and all its employees, sub-contractors or agents) shall commence the Services.

Completion Date means the date on which XGameDev is to complete performing the Services or such other date as the Parties may agree.

Customer means you and/or, if you acting on behalf of a company, that company.

Facilities means working space, computer equipment, access to the internet and the Customer’s computer network and telecommunications systems and similar. It includes access to such resources but also use of them to the extent required by XGameDev in order to perform the Services.

Fees refers to the amount as set out in the Specification or other such fees as the Parties may agree.

GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property includes trademarks, patents, copyrights, processes, know-how, registered designs or other like rights or any right to apply for registration of any of the former.

Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever.

Parties means XGameDev and the Customer, and Party means either one of them.

Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth).

Services means the services to be provided by XGameDev under these T&C’s in accordance with XGameDev’s Specification or as otherwise agreed between the parties.

Specification means any statement of works, quote or other similar document supplied to the Customer describing the services to be provided by XGameDev.

XGameDev Personnel means any person or persons that XGameDev designates to perform the Services on XGameDev’s behalf.

2. Services

1. XGameDev will provide the Services to the Customer in consideration for the Customer paying the Fee to XGameDev, subject to the provisions of these T&C’s.
2. XGameDev and the Customer will agree the time period for the performance of the Services, subject to the availability of XGameDev’s staff and agents.
3. XGameDev will use reasonable endeavours to complete the Services by the Completion Date.
4. The Services will be performed by the employees or agents that XGameDev may choose as most appropriate to carry out the Services.
5. XGameDev will commence the Services following payment of any deposit payment required by XGameDev to be paid by the Customer or, if no deposit payment is required, from the Commencement Date.
6. Subject to the terms outlined in this clause 2, XGameDev may provide the Services on one of the following basis:
   1. Monthly – Services are provided on a month-to-month basis, with a minimum contract of one month.
   2. Fixed Term – Services are provided on a fixed-term basis on either 3, 6 or 12 months. At the completion of the fixed term, the Services will be provided on a month-to-month basis automatically unless and until the Services are cancelled by the Customer in accordance with these T&C’s.
   3. One-time – Services are provided on a one-time, fixed duration basis.

3. Location

XGameDev will provide the Services in places and locations as XGameDev considers appropriate to the type and nature of the requirements of the Customer.

4. Fees

1. Payment of Fees
   1. In consideration of the provision of the Services in accordance with these T&C’s, the Customer will pay XGameDev the Fees.
   2. XGameDev’s Fees are charged according to the hours, minutes and seconds worked by XGameDev.
   3. The Customer acknowledges that the Fees are exclusive of any GST that may be charged by XGameDev to the Customer, and therefore, XGameDev will be entitled to add on GST.
2. Invoicing
   1. XGameDev will provide the Customer with a tax invoice in accordance with the GST Law in relation to fees payable under this clause 4.
   2. Payment will be made by the Customer to the XGameDev within seven (7) days after receiving XGameDev’s invoice.
3. Variation of Fees

   XGameDev is entitled to vary the daily or hourly rates (where applicable) during the term of these T&C’s with written notice to the Customer of 7 days prior to the change being implemented.

4. Travel Expenses

   The Customer is liable to pay XGameDev’s reasonable travel costs and expenses in the event XGameDev’s personnel is required to visit the Customer or attend any of the Customer’s offices.

5. Failure to pay

   If the Customer does not make a payment by the date stated in an invoice or as otherwise provided for in these T&C’s, XGameDev is entitled to do any or all of the following:

   1. charge interest on the outstanding amount at the rate of 2% per year above the base lending rate of Australia and New Zealand Banking Group Limited (ANZ), accruing daily which represents a genuine prediction of XGameDev’s loss for failure of the Customer to make payment by the date stated in an invoice or as otherwise provided for in these T&C’s;
   2. require the Customer to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and
   3. not perform any further Services (or any part of the Services).

5. Customer’s obligations

1. During performance of the Services the Customer will:

   1. co-operate with XGameDev as XGameDev reasonably requires;
   2. provide the information and documentation that XGameDev reasonably requires within a reasonable time frame, and ensure that such information and documentation is accurate, current and complete;
   3. make available to XGameDev such Facilities as XGameDev reasonably requires;
   4. ensure that the Customer’s staff and agents cooperate with and assist XGameDev.
   5. ensure that any and all licences, subscriptions and access to third-party databases and software are provided to XGameDev to the extent required for XGameDev to perform the Services.
2. If the Customer does not provide the Facilities that XGameDev reasonably requires (and within the time period) to perform the Services, then any additional costs and expenses which are reasonably incurred by XGameDev will be paid by the Customer.
3. Any delay in the Customer providing any information of documentation as required by these T&C’s may affect the Fees for the provision of the Services, as well as the Completion Date and any other relevant timeframes. Any additional costs and expenses which are reasonably incurred by XGameDev due to this delay will be paid by the Customer.

6. No partnership or employment relationship

1. Nothing in these T&C’s constitutes the relationship of employer and employee between the Customer and XGameDev or between the Customer and XGameDev’ Personnel.
2. It is the express intention of the Parties that any such relationships are denied.

7. Use of subcontractors

1. XGameDev is permitted to use other persons to provide some or all of the Services.
2. XGameDev is responsible for the work of any of XGameDev’s subcontractors.
3. Subject to clause 7(d), any work undertaken by any of XGameDev’ subcontractors will be undertaken to the same standard as stated in these T&C’s.
4. To the extent that the terms of any subcontract stipulate a higher standard for any of the Services than the standards set out in these T&C’s (including as to timing or quality), any Services provided by the relevant subcontractor will be governed by the terms and conditions of that subcontractor’s subcontract.

8. Warranties, liability and indemnities

1. Warranties
   1. XGameDev warrants that it will use reasonable care and skill in performing the Services to the standard generally accepted within the industry, sector or profession in which XGameDev operates for the type of Services provided by XGameDev.
   2. If XGameDev performs the Services (or any part of the Services) negligently or is in breach of these T&C’s, then, if requested by the Customer, XGameDev will re-perform the relevant part of the Services, subject to paragraphs 8.5(a) and 8.5(b) below.
   3. The Customer’s request referred to in paragraph 8.1(b) must be made within seven (7) days of the date XGameDev completed performing the Services that part of the Services.
2. Employees and subcontractors

   XGameDev must comply with legislation applicable to XGameDev’ employees and agents.

3. Compliance with all laws

   Throughout the engagement of XGameDev, the Customer must comply at the Customer’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, and public authorities or other authority. This requirement applies to the Customer or to the Services. The Customer must indemnify XGameDev from and against all actions, costs, charges, claims and demands in respect thereof.

4. No warranties in relation to completion

   XGameDev provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date / the Completion Date or any other date, whether stated in these T&C’s, the Services, the Specifications or elsewhere.

5. Limitation on liability
   1. To the extent permitted by law, XGameDev will not be liable for any injury or loss suffered by the Customer, or for any Claim or Loss of the Customer, under or in connection with these T&C’s whether arising in contract, tort, negligence, breach of statutory duty or otherwise.
   2. Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply to clauses 8.3 or 8.6.
6. Indemnity

   The Customer must indemnify and hold XGameDev harmless from and against all Claims and Losses arising from loss, damage, liability, injury to XGameDev, its employees and third parties, infringement of third party Intellectual Property, or third party losses by reason of or arising out of any information supplied to XGameDev by the Customer, its employees, or supplied to XGameDev by the Customer within or without the scope of these T&C’s.

7. No reliance

   Each of the Parties acknowledges that, in entering into these T&C’s, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in these T&C’s. Any conditions, warranties or other terms implied by statute or common law are excluded from these T&C’s to the fullest extent permitted by law.

8. Limitation of XGameDev’s power

   XGameDev warrants that XGameDev will not incur any liability on behalf of the Customer or in any way pledge or purport to pledge the Customer’s credit or accept any other or make any contract binding upon the Customer without prior approval being given by the Customer.

9. Survival of obligations

   The obligations accepted by XGameDev and the Customer under this clause 8 survive cancellation of the Services or expiry of these T&C’s.

9. Cancellation and Suspension

1. Either Party may cancel the Services by notice in writing to the other if the Party notified:
   1. breaches any term of these T&C’s; and
   2. fails to rectify this breach, to the satisfaction of the notifying Party, following the expiration of one (1) calendar month after notice of the breach being given in writing by the notifying Party to the other Party.

2. Either Party may cancel the Services upon the happening of any of the following events:

   1. If the Customer has a monthly contract, the giving of at least one (1) months’ written notice by one Party to the other Party of the intention to terminate the engagement of the Party receiving notice;
   2. If the Customer has a fixed-term contract, the giving of at least one (1) months’ written notice by one Party to the other Party of the intention to terminate the engagement of the Party receiving notice or the giving of the required amount of notice by the Customer as identified in any automatic-renewal notice sent to the Customer by XGameDev.
   3. if the Customer enters into a deed of arrangement or an order is made for it to be wound up;
   4. if an administrator, receiver or receiver/manager or a liquidator is appointed to the Customer pursuant to the Corporations Act 2001 (Cth); or
   5. if the Customer would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).
3. The Customer may, at its discretion, pay to XGameDev the equivalent amount of the Fees payable by the Customer to XGameDev during the notice period in lieu of any notice period relating to the cancelling of the Services.
4. If the Customer cancels Services being provided on a monthly contract, the Customer will be invoiced, and will be liable to pay, any and all fees due to XGameDev for the month in which the notice for cancellation of Services is given.

10. Intellectual Property Rights

1. In accordance with the Australian Copyright Council the production of any original design work automatically deems XGameDev the author and owner of such work and the owner of the Intellectual Property in the work.
2. Subject to payment of all invoices due in respect of the Services, XGameDev will assign all necessary Intellectual Property in the Services to the Customer.
3. XGameDev retains full ownership of the work it produces in the course of providing the Services including any unused concepts. Once a final concept is delivered to the Customer and full payment is received, the final files will be transferred to the Customer and the Customer will retain usage and ownership in those final works/the final concept.
4. XGameDev reserves the right to use all artwork and concepts produced in providing the Services (including unused concepts) and revisions for the purposes of promoting XGameDev in any forum including but not limited to in print or digital media portfolios, social media and blogs, except where the Customer has specifically requested in writing otherwise.

11. General

1. Force majeure

   Neither Party has any liability under or may be deemed to be in breach of these T&C’s for any delays or failures in performance of these T&C’s which result from circumstances beyond the reasonable control of that Party.

2. Amendment

   XGameDev reserves the right to amend these T&C’s from time to time without notice. However, the latest version of these T&C’s can be found on the XGameDev website. If any amendment meaningfully alters these T&C’s, during the provision of the Services, XGameDev will notify the Customer.

3. Representation

   The Parties confirm that they have not entered into these T&C’s on the basis of any representation that is not expressly incorporated into these T&C’s.

4. Waiver
   1. No failure or delay by XGameDev in exercising any right, power or privilege under these T&C’s will impair the same or operate as a waiver of the same nor may any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
   2. The rights and remedies provided in these T&C’s are cumulative and not exclusive of any rights and remedies provided by law.
5. Severance

   If any provision of these T&C’s is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision will, to the extent required, be severed from these T&C’s and rendered ineffective as far as possible without modifying the remaining provisions of these T&C’s, and will not in any way affect any other circumstances of or the validity or enforcement of these T&C’s.

6. Notices

   A notice or other communication connected with these T&C’s has no legal effect unless it is in writing.

7. Law and jurisdiction

   These T&C’s takes effect, is governed by, and will be construed in accordance with the laws from time to time in force in Victoria, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of Victoria.

8. Change in Circumstances

   The Customer shall give XGameDev not less than fourteen (14) days’ written notice of any change, or proposed change, of ownership of the Customer or any change in the Customer’s name or details.