General Terms

General Terms

  1. Introduction
    • These General Terms apply to all services delivered by You Know Media (YKM).
    • These General Terms and each Service Agreement incorporate the dictionary terms in clause 34 of this document.
  2. Service Agreements
    • Unless we agree to a different engagement process, a Service Agreement is formed if we accept a Booking Form from you in writing.
    • A Service Agreement is made up of:
      • these General Terms;
      • a Booking Form;
      • any Special Terms agreed in writing.
    • The parties are free to negotiate the terms of this document.
    • The Parties may optionally enter into a Service Agreement by signing separate copies and exchanging them by post, or email.
    • In the event of conflict between the different parts of a Service Agreement the documents must be read from highest priority to lowest as below:
      • Special Terms agreed in writing;
      • a Booking Form;
      • General Terms.
  3. Charges and payment
    • You must pay all Charges applicable to Services.
    • Charges apply as specified or referenced in our then current Price List, where Charges are not specified in a Booking Form.
    • You must pay each Invoice without set off or deduction by its due date.
    • Overdue amounts incur Interest at the Default Rate, compounding monthly.
    • Unless stated otherwise in a Service Agreement:
      • references to currency are a reference to Australian dollars unless your Service Agreement says otherwise;
      • all charges are exclusive of GST and GST is payable in addition to those Charges. We may invoice, and you must pay, applicable GST in addition to Charges.
    • To the extent permitted by law:
      • charges are non-refundable in part or in whole;
      • any prepaid Charges which are unused are carried over as a credit, which is not redeemable as cash.
    • You are responsible for:
      • any credit card fees incurred in processing your payments;
      • any dishonour fees, late payments fees or any other bank or payment gateway fees incurred by us as a result of your acts or omissions; and
      • any taxes or levies (excluding income taxes) which arise due to your acquisition of Services.
    • Any fees arising under clause 3(g) above are due and payable to us as a term of your Service Agreement.
  4. Billing Disputes
    • You may only dispute a Charge:
      • within 1 month after it is Invoiced; and
      • in accordance with our dispute process in clause 22.
  5. Price variations
    • We may vary our Charges on 30 days’ notice to you, unless a Service Agreement says otherwise.
  6. Term of Service Agreements
    A Service Agreement:
    • starts on its Service Commencement Date;
    • continues for any Minimum Term; and
    • may be terminated by either Party at the end of a Minimum Term, provided 1 month prior written notice has first been given –
    unless terminated earlier under its express terms.
  7. Service commencement
    We will commence delivery of a Service upon commencement of a Service Agreement and payment of our first invoice, and you must then accept the Service.
  8. Representatives
    • Each Party authorises its Representative to do anything with respect to a Service Agreement that the Party itself could do, and authorises the other Party to deal with its Representative as its fully authorised, non-exclusive agent.
    • A Party is deemed to know anything that its Representative knows.
    • A Party may replace its Representative by notice to the other.
  9. Service Standards and Support
    10. We will provide Services with due care and skill and in accordance with an applicable Service Agreement and the Law.
  10. Service suspensions
    We may suspend a Service in whole or part:
    • where we reasonably believe that we must do so in order to comply with the Law;
    • to protect people, or property including a computer network;
    • for an emergency;
    • if you fail to pay an Invoice by its due date;
    • if you do not Cure a Default within 7 days; or
    • as it reasonably requires to allow investigation of any potential breach of a Service Agreement.
  11. Other obligations
    You must:
    • comply with the terms of a Service Agreement;
    • not allow a Service to be used in a way that is contrary to Law or is a nuisance;
    • comply with all Laws including the Privacy Act 1988 (Cth);
    • give us all information, cooperation and assistance reasonably required for the purposes of a Service Agreement;
    • follow our reasonable directions in so far as they are reasonably required to enable us to comply with the terms of a Service Agreement;
    • maintain all permissions required for the use of a Service;
    • respond to our requests and communications promptly;
    • indemnify us against Loss arising in connection with a negligent or wrongful act by you or your People or a breach of a Service Agreement by you;
    • indemnify us against any Claim by you or any person who is an authorized user by you or agent of yours in connection with a Service (including infringement of IP Rights) except to the extent the Claim arises from a negligent or wrongful act by us or our People or a breach of a Service Agreement by us;
    • indemnify us against third party (including advertising partners, game developers) expenses, Claims and liability arising from you entering into a Service Agreement with us; and
    • ensure that your People do nothing that would breach a Service Agreement if done by you.
  12. Early Termination – Us
    We may terminate a Service Agreement by notice if:
    • it ceases to be feasible to provide a Service (in which case we will endeavour to provide you with reasonable notice);
    • we are required to do so by Law or an Authority;
    • you fail to pay money within 14 days of it being due;
    • you are in Default of a term of this agreement;
    • you cease carrying on business;
    • you breach or are likely to break the law or cause us to breach a contract with a third party;
    • you agree; or
    • you undergo a Change of Control or purport to assign interest in a Service Agreement without our written consent.
  13. Early Termination – You
    You may terminate a Service Agreement by notice:
    • if we fail to remedy a Default within 28 days (after receiving written notice of Default); or
    • at the end of a Minimum Term.
  14. No representations
    You:
    • warrant that, in entering a Service Agreement, you have not relied on any information, representation or promise that is not either expressly set out in the Service Agreement or is implied by Law;
    • warrant that you have all approvals and registrations required in order to use our Services.
    • indemnify us against a breach of any warrant under these General Terms.
  15. Confidentiality
    Each party must keep the other’s Confidential Information confidential except for disclosures:
    • to its staff, advertising partners, game producers, agencies, contractors and professional advisers to the extent they reasonably need to know it;
    • authorised by a Service Agreement; or
    • required by Law –
    provided that a disclosing Party takes all reasonable steps to ensure that the disclosee maintains the confidentiality of the disclosed information.  To avoid any doubt, Confidential Information includes our pricing and the other terms of a Service Agreement. For the avoidance of doubt the obligations of confidentiality under these Terms are in addition to any other obligations you may have.
  16. Authorities
    You authorise us to:
    • make any disclosure of information about you required by a government authority or by Law;
    • deal with Personal Information about you in accordance with our Privacy Policy;
    • do any act on your behalf reasonably required to provide a Service for you.
  17. Out of pocket expenses
    • You must pay (and must not set off or deduct from our fees) all bank fees incurred in making payments to us under a Service Agreement.
    • You must pay all out of pocket expenses:
      • that we incur in providing services to you, provided that we first obtain your written consent, unless a Service Agreement authorizes us otherwise.
      • that arises from your early termination of our Service, and any other out of pocket expenses outlined in a Service Agreement.
  18. Data
    1. In addition to our rights in clause 4, you grant us a non-exclusive, worldwide, royalty-free right to use, handle, store, modify and create derivative works of Your Data, to the extent necessary to provide our Services to you.
    2. Subject to compliance with the Privacy Act 1988 (Cth) you consent to:
      • us using your de-identified data for statistical, audit, compliance and marketing purposes;
      • receiving promotional, marketing material or information updates from us, including by way of email delivery;
      • disclosure by us of this information to our Related Entities (as defined by section 9 of the Corporations Act 2001 (Cth)).
    3. It is your sole responsibility to maintain a backup of Your Data, unless you enter into a Service Agreement.
    4. We may retain the data used / obtained under these terms for a period of up to 7 years or such longer period as may be required by law.
    5. We may compile and use de-identified, aggregate and statistical information related to the performance of Services, provided that such information does not incorporate any of Your Data, or identify either You, or End Users, or any of Confidential Information.
  19. Intellectual Property
    1. All intellectual property rights in You Know Media and our Services are owned by us, or where relevant our licensors. You must not:
      • do anything which may infringe, jeopardise or challenge such rights; and
      • commercialise or attempt to commercialise such rights.
    2. Subject to clause 7 we own all IP Rights:
      • and intellectual property (including derivative works) which arise from your use of our Services; and
      • relating to a Service, including knowhow and improvements developed in the course of a Service Agreement.
    3. We own all customisations, modifications, enhancements, adaptations, and updates in our Services, including where you have supplied, suggested, requested or recommended them.
    4. You Know Media and the You Know Media logo are trademarks of You Know Media Pty Ltd. Other trademarks that may appear on our website, proposals, deliverables or publications are the property of our respective licensors or partners.
    5. You must not use any trademark without the prior written consent of the relevant owner.
    6. Except to the extent of any licence expressly granted to you, you obtain no interest in our IP Rights under a Service Agreement.
    7. Subject to the this clause 19, you retain all ownership in Your Data.
  20. Third Party Services
    1. In order to use our Services, you may need to use services or software or third parties, we refer to this as Third-Party Services.
    2. If the use of Third-Party Services are required:
      • we will either (i) specify this in your Service Order; or (i) notify you; and
      • we may invoice you for those Third-Party Services or ask the provider of those services to invoice you directly, and you will be required to pay.
    3. Where you use Third Party Services you acknowledge and agree that:
      • those Third-Party Services are provided subject to (i) their own terms of use and privacy policy; and (ii) any of our specific terms that address our supply or facilitation of those Third-Party Services to you.
      • we may be required to disclose your personal information to the provider of Third-Party Services in or to facilitate the provision of those services or the Services we provide;
      • you release us from any Claim arising from your use of Third-Party Services;
      • other than anything we expressly represent to you in a Service Agreement with you, we do not make any representation or warranty about Third Party Services or their performance.
    4. Fees
      • We will invoice you in accordance with your Service Agreement, however, we may, in our discretion, invoice you at any other time.
      • To the extent permitted by law, if your Service is terminated for any reason other than our breach of a Service Agreement, fees are not refundable in whole or in part, and the liability to pay any outstanding invoice, work in progress and disbursements remains.
    5. Policies and Directions
      You must comply with:
      • lawful directions we may issue;
      • instructions, documentation or other technical requirements; and
      • applicable laws.
    6. Termination and Suspension
      • In addition to our other rights under a Service Agreement, we may suspend your Service where:
        • where you have failed to pay us money by the due date; or
        • you agree.
      • Neither party may terminate a Service Agreement during its Minimum Term except as permitted by these terms, or mutually by written agreement.
    7. Effect of Termination
      • Upon termination of a Service Agreement:
        • you must cease using our Services;
        • all rights of action based on breaches of a Service Agreement before the termination survive;
        • we may delete any information that we hold concerning the Services we provide to you any time after a period of 30 days from termination, however, we may choose in our discretion to store information for a period of 12 months, or longer where required by law.
      • We are never liable to you or anyone else for a loss of data, where we exercise our rights under clauses 9 and 20.10.
      • You release us from any claim for loss or damage for removing Your Data from our infrastructure.
    8. Representations and Warranties
      You represent and warrant to us that:
      • you have the financial capacity to meet your obligations under any Service Agreement you enter into with us;
      • you are legally able to form a binding Agreement with us, and you are not prevented from lawfully using our Services;
      • all information you provide to us is accurate, complete and truthful;
      • where relevant, you are solely responsible for all content on your account including your username and password which are personal and should not be used by any other individual or entity;
      • you acknowledge that you are solely responsible for backing up Your Data and that we are not liable for any loss or damage that arises from your failure to back up Your Data;
      • you will only use our Services only for purposes that are legal proper and according to the terms of this Agreement and any applicable policies or guidelines.
  21. Liability
    • Any representation, warranty, condition or undertaking that would be implied in a Service Agreement by legislation, common law, equity, trade, custom or usage or otherwise is excluded, to the fullest extent permitted by law.
    • Neither party is liable for Consequential Loss.
    • To the extent permitted by law, our liability is capped at the aggregate of fees (excluding disbursements) paid by you to us in the 12 months preceding a claim.
  22. Disputes
    • Each Party must appoint a senior officer to negotiate resolution of any dispute.
    • If negotiations are not successful within 14 days, the dispute may be referred to mediation before an independent mediator – the costs of which must be borne in equal shares by the Parties.
    • Despite anything else, a Party may seek urgent interlocutory relief from a court.
    • The parties must perform the Service Agreement despite a dispute.
  23. Obligations after termination of Service Agreement
    • When a Service Agreement ends for any reason:
      • we may Invoice Charges not previously Invoiced;
      • you must pay all Invoices by their due date/s;
      • accrued rights and obligations survive;
      • Surviving Clauses including clauses 3, 11, 15, 16, 17, 18, 19, 20, 5, 22, 32, and 33 survive –
      and otherwise the Service Agreement is at an end for all purposes.
    • To the extent permitted by law, if you terminate a Service Agreement prior to the expiry of the Minimum Term, you are required to pay the Early Termination Charge.
  24. Notices
    • We may send notices to you by Electronic Messaging.
    • Otherwise, any notice or consent to be given under a Service Agreement must be in writing addressed to the relevant Party at its Contact Address.
  25. Relationship
    26. We are an independent contractor and these General Terms, or any Service Agreement does not create a partnership, joint venture or agency.  No Party may enter any agreement or make any representation on behalf of another.
  26. Entire Agreement
    27. The documents that make up a Service Agreement in clause 2 are the entire agreement of the Parties with respect to its subject matter and supersedes and excludes all previous agreements, understandings, commitments, representations and warranties, whether written or verbal.
  27. Variation
    28. Subject to clause 5, a Service Agreement may only be varied by writing executed by both Parties.
  28. Assignment
    • Subject to Clause 28(b) neither party may assign or novate a Service Agreement without the prior written consent of the other Party, such consent will not to be unreasonably withheld.
    • We may assign or novate a Service Agreement without your prior written consent where we sell or restructure any part of our business or shares.
  29. No waiver
    30. A Party that delays exercise of or partially exercises a right does not waive it.
  30. Force Majeure
    31. We are excused from our obligations under the Service Agreement to the extent that a Force Majeure prevents or hinders us.
  31. Agents
    32. We may delegate our roles and responsibilities to an agent or subcontractor but are liable for their performance as if there was no delegation.
  32. Reading down
    33. A term that is invalid, illegal or unenforceable shall be read down, to the point of severance if necessary.
  33. Governing law and courts
    34. A Service Agreement is subject to and must be interpreted under the law of the exclusive jurisdiction of the State of New South Wales, Australia and the Parties irrevocably submit to the courts of the State of New South Wales.
  34. Dictionary

Booking Form means a written request for our Services in the form specified and accepted by us.

Business Day means a day that is not a Saturday, Sunday or public holiday observed in Sydney, Australia.

Business Hours means between the hours of 9am to 5pm AEST on a Business Day.

Change of Control means, in relation to a corporation, that without our prior written consent: (a) a relevant interest (as defined in the Corporations Act 2001) in more than 25% of the securities of the corporation that in normal circumstance entitle the holder to vote or participate at a meeting of the members of the corporation or to vote or participate in the election or appointment of directors of the corporation, passes to a person or persons who did not have such relevant interest at the time the Service Agreement was entered into; or (b) the ability to control or the actual control (irrespective of whether such control is exercisable on a passive or active basis and irrespective of whether such control is exercisable solely or jointly or directly or indirectly) of the management and policies of the corporation passes to a person or persons who did not have such ability or actual control at the date the Service Agreement was entered into.

Charges means any charge or fee applicable to Services (exclusive of any Taxes or withholdings except where otherwise stated).

Claim means any claim, demand, action, proceeding or legal process (including by way of set off, cross-claim or counterclaim).

Consequential Loss means (a) economic loss; (b) business interruption; (c) loss of revenue, profits, actual or potential business opportunities or contracts; (d) anticipated savings; (e) loss of profits; (f) loss of data; (g) an obligation to indemnify another person; (h) an obligation to contribute to the compensation of loss or damage suffered by another person and (i) consequential loss within the meaning of Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26.

Contact Address means, in relation to a party, the postal or business address, email address or other address or identifier most recently notified as the party’s address for communications (being as notified in a Service Agreement, until further notice.)

Customer means the person so specified in a Service Agreement.

Default means, a breach of these Terms or a Service Agreement for which either party has issued a Default notice outlining the breach.

Default Rate means a rate which is 2% higher than the penalty rate fixed under s3 of the Penalty Interest Rate Act 1983 (Vic) from time to time.

Early Termination means termination of a Service Agreement before the end of any Minimum Term, except where the termination is due to our breach of a Service Agreement.

Early Termination Charge means the aggregate of fees that would have been payable for the remainder of the Minimum Term, which is a reasonable pre-estimate of our loss.

Electronic Messaging means Email, SMS and MMS.

Force Majeure means anything beyond the reasonable control of a party and includes an act of God, a pandemic and a public health declaration.

General Terms means this document.

Information includes the terms of a contract, network designs, customer lists, contact lists, and other information which by its nature is confidential and which is not in the public domain otherwise than by a breach of this clause.

Invoice means a statement of Charges that have accrued and/or are payable in advance.

IP Rights means all industrial and intellectual property rights of any kind which may subsist in Australia or anywhere else in the world, including without limitation: (a) patents, copyright, rights in circuit layouts, designs, trademarks (including goodwill in those marks) and domain names; (b) any application or right to apply for registration of any of the rights referred to in paragraph (a) of this definition; and (c) all rights of a similar nature to any of the rights in paragraphs (a) or (b) of this definition – whether or not such rights are registered or capable of being registered; and (d) Future IP Rights.

Loss means loss or damage suffered by a person and arising in connection with or out of a Service Agreement or any supply made under them (whether pleaded in contract, tort, breach of statutory duty or on any other basis, and whether arising from acts or omissions, and whether or not loss or damage the risk of which another person was or should have been aware), including but not limited to Consequential Loss and an obligation to contribute to or indemnify against loss or damage suffered by a third party.

Minimum Term means a minimum term specified for a Service Agreement.

People means, in relation to a Party, the Party’s management, employees, contractors and agents and, in relation to you, anyone who uses or accesses a Service on your account.

Price List means our then current schedule of fees for our services and can be used interchangeably in these terms.

Representative means a person who is properly authorised to represent a party.

Service means a service provided by us to you, and as detailed in, a Service Agreement.

Service Agreement means an agreement as defined under clause 3 of the General Terms.

Service Commencement Date means the date when we make a service available for use, or such later date as may be specified in a Service Agreement.

Service Order means a Booking Form after we have accepted the order for services contained in it.

Your Data means any data, content, code, video, images or other materials of any type that you (or someone you direct) upload, submit or otherwise transmit to or through this service.

‘We’, ‘Us’ and ‘Our’ is a reference to You Know Media Pty Ltd ACN 602 418 468.

‘You’, and Your’ is a reference to the Customer.

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