Maxgaming Qld Pty Ltd

The Australian Competition and Consumer Commission (ACCC) has accepted a court enforceable undertaking from Maxgaming Qld Pty Ltd (Maxgaming), a wholly owned subsidiary of Tabcorp Holdings Limited, a licensed supplier of electronic gaming machine monitoring, gaming and maintenance services.

Maxgaming is the largest supplier of monitoring, gaming and maintenance services in Queensland.

The ACCC has been investigating Maxgaming in relation to potentially unfair contract terms in its standard form contracts with small business venues for the supply of gaming machine monitoring, gaming and maintenance services (the Relevant Contracts).

The Relevant Contracts included terms that:

• bound a customer of Maxgaming to subsequent contract terms, each equal to the initial contract term, unless the customer cancelled the contract, in writing, within a specified time period, without any countervailing obligation on Maxgaming to provide notice to the customer that the contract was about to expire and that the automatic renewal would otherwise occur (Rollover Clause);
• allowed Maxgaming to increase the fees payable under the contract if equipment provided under the contract became obsolete or required upgrading, replacement or modification without obtaining the customer’s consent (Price Variation Clause); and
• excluded Maxgaming’s liability, and created a broad indemnity in favour of Maxgaming, including for liability due to Maxgaming’s negligence or wilful default, with no corresponding benefit to the customer (Exclusion and/or Indemnity Clause).

Collectively, (the Impugned Terms).

In response to the ACCC’s concerns, Maxgaming has:

• acknowledged that the Impugned Terms may have been unfair within the meaning of section 24(1) of the Australian Consumer Law (ACL);
• written to its customers to amend the terms of the Relevant Contracts; and
• offered an undertaking to the ACCC.

The undertaking from Maxgaming includes commitments to:

• not enforce, or rely on, the Impugned Terms for any Relevant Contract with a venue that is still in force;
• not include the Impugned Terms, or any term that has the same effect as the Impugned Terms, in future contracts with venues;
• provide written notice of the undertaking to all venues with whom Maxgaming has a contract in force for the supply of monitoring, gaming and maintenance services, which includes a hyperlink to the undertaking published on the ACCC’s website; and
• implement a fulsome compliance program that includes undertaking a risk assessment and compliance review as well as implementing staff training for certain Maxgaming employees.

While the undertaking only includes a commitment to amend the Relevant Contracts (small business venues), Maxgaming has written to all venues to amend their contracts, regardless of whether they fall within the definition of a small business under the ACL.