This agreement is made between you and Mammoth Media Pty Ltd (“Mammoth”).
You and Mammoth agree in consideration of, among other things, the mutual promises contained in this agreement:
In this agreement:
(a) GameCreate Configuration Website means the website nominated by Mammoth from time to time;
(b) GameCreate Service means communicating electronically over the internet with the GameCreate Client Software on your Host in a manner consistent with information provided by you on the GameCreate Configuration Website;
(c) GameCreate Client Software means the GameCreate client software available for download on Mammoth’s website and any updates to that software made available by Mammoth (if any) during the term of this agreement;
(d) Host means a computer connected to the internet that is not located in Australia;
(e) Monthly Fee means the fee published by Mammoth from time to time or as otherwise notified to you and any applicable Taxes; and
(f) Tax means any tax (including without limitation any applicable goods and services or similar value added tax), levy, charge, impost or duty which is assessed, levied, imposed or collected by any governmental agency and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed in respect of any of the above.
2. GameCreate Licence
(a) Mammoth grants you a non-exclusive, non-transferable, revocable licence on the terms of this agreement to:
(i) install and run the GameCreate Client Software on one or more of your Hosts; and
(ii) access the GameCreate Configuration Website using a web browser,
for the purpose of allowing users outside of Australia to play third party games with each other over the internet.
(b) You acknowledge and agree that other than the licence granted under clause 2(a) nothing in this agreement is intended to give you any intellectual property rights or other rights in any trade marks, know-how, business names, software or other material of Mammoth.
If you comply with this agreement Mammoth will endeavour to provide you the GameCreate Service.
4. THIRD PARTY SOFTWARE
You acknowledge and agree that while Mammoth may, in its absolute discretion, make available to you from time to time third party games server software for use in connection with the GameCreate Service, Mammoth does not license you to use or provide you with any other rights in connection with this software and you must procure a right for you to use such software from an appropriate third party.
5. YOUR obligations
(a) not use the GameCreate Client Software or the GameCreate Configuration Website:
(i) in connection with games servers or users in Australia; or
(ii) other than as expressly permitted under clause 2(a) or the Copyright Act 1968 (Cth); and
(b) comply with any reasonable instructions given to you by Mammoth regarding the use of the GameCreate Client Software, GameCreate Configuration Website or the GameCreate Service;
(c) immediately notify Mammoth in writing upon becoming aware of a claim or threatened claim that use of the GameCreate Client Software by you infringes the intellectual property of a third party;
(d) give Mammoth the option to conduct the defence of any such claim; and
(e) provide Mammoth with such assistance and information that is reasonably requested by Mammoth in relation to such claim.
If you manage two or more physical computers in connection with the GameCreate Service then you must pay Mammoth the Monthly Fee each calendar month in advance.
7. TERM AND TERMINATION
(a) This agreement commences on the date of entry into this agreement and continues until terminated in accordance with this agreement.
(b) You may terminate this agreement by notice to Mammoth in which case the agreement will terminate at the end of the next complete calendar month.
(c) Mammoth may terminate this agreement by notice to you in which case this agreement will terminate on the day the notice is given unless a date of termination is contained in the notice in which case the agreement will terminate on that date.
(d) You acknowledge and agree that no Monthly Fee paid by you to Mammoth will be refunded if this agreement terminates for any reason.
8. Limited liability
(a) Subject to clause 8(b) Mammoth is not liable for any loss or damage, however caused (including, but not limited to, by the negligence of Mammoth), suffered by you in connection with this agreement.
(b) If the Trade Practices Act 1974 (Cth) or any other legislation implies a condition or warranty into this agreement in respect of goods or services supplied, and Mammoth’s liability for breach of that condition or warranty may not be excluded but may be limited, clause 8(a) does not apply to that liability and instead Mammoth’s liability for such breach is limited to, in the case of a supply of goods, Mammoth replacing the goods or supplying equivalent goods or repairing the goods, or in the case of a supply of services, Mammoth supplying the services again or paying the cost of having the services supplied again.
9. NOT ERROR FREE OR ALWAYS AVAILABLE
You acknowledge and agree that:
(a) the GameCreate Client Software is not error free, and may contain errors that causes it to malfunction or not operate in the manner you may expect or as otherwise documented; and
(b) the GameCreate Service and the GameCreate Configuration Website may not be available from time to time.
10. GameCreate Configuration Website
(a) The parties agree that any information or data entered by you into the GameCreate Configuration Website is to be owned by Mammoth (Website Data).
(b) You absolutely and unconditionally assign all intellectual property rights including copyright and future intellectual property rights including future copyright in the Website Data to Mammoth.
(c) To the extent that the assignment in clause 10(b) is not effective to assign such intellectual property rights, you:
(i) agree to assign all such intellectual property rights to, and execute all necessary documents to effect such assignment in favour of, Mammoth; and
(ii) grant Mammoth a global, perpetual licence to use, modify, sublicense or publish the Website Data in any manner Mammoth sees fit until such time as such assignment is effective.
(d) You warrant that you have the authority to make the assignments and grant the licence contemplated by this clause 10.
(e) You indemnify Mammoth in respect of any claim, action, damage, loss, liability, charge, outgoing or payment which Mammoth pays, suffers, incurs or is liable for in connection with a breach of clause 10(d) or any claim or threatened claim that the Website Data infringes the intellectual property rights, moral rights or other rights of a third party.
(a) Upon termination of this agreement you must immediately delete or destroy any copies of the GameCreate Client Software held by you.
(b) This agreement is governed by the laws of Queensland, Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland, Australia.
(c) Mammoth will not be in breach of any obligation under this agreement as a result of any failure or delay in the performance of its obligations if such failure or delay was contributed to, directly or indirectly, by an event outside of Mammoth’s actual control.
(d) You must not assign any of your rights under this agreement. Mammoth may assign its rights under this agreement to a third party or require you to enter into a novation agreement with a third party substituting Mammoth with that third party under this agreement on terms nominated by Mammoth.
(e) Any notice or consent under this agreement must be in writing and sent by e-mail to the other party or delivered to the address of the other party. A notice is taken to be given when an e-mail is sent unless an e-mail is received shortly thereafter indicating that the notice e-mail delivery has failed.
(f) This agreement constitutes the entire agreement between the parties regarding its subject matter.