www.sixhands.com.au
PO BOX 512, POTTS POINT, NSW1335
ABN: 86 670 740 800
CONFIDENTIALITY, INTELLECTUAL PROPERTY RIGHTS AND CODE OF CONDUCT AGREEMENT
THE FOLLOWING TERMS AND CONDITIONS GOVERN ALL DESIGN AND SERVICES PROVIDED BY SIXHANDS. BY CONFIRMING THAT SIXHANDS IS TO COMPLETE THE DESIGNATED WORK, (BY TELEPHONE, E-MAIL, POST MAIL, FACSIMILE OR ANY OTHER CORRESPONDENCE) YOU ARE AGREEING TO THE TERMS AND CONDITIONS AS SET OUT IN THIS CONTRACT.
SIXHANDS OBJECTIVE
SIXHANDS shall perform the design work described and referred to as “project-brief”, “brief” or “project”, and or enter into the leasing of design and or artwork upon agreement of the terms and conditions hereinafter set forth.
SIXHANDS agrees to:
a. Fulfil the agreed design brief to the best of their skills, ability and technical capability;
b. Maintain exclusivity and confidentiality of any client information they become privy to during their involvement with you the client, including information about ranges, motifs and the design or planning of any related marketing, events, promotional strategies or original and exclusive design concepts.
c. Present the items outlined in the SIXHANDS Brief Agreement to you the client or your designated representatives at the address outlined in the aforementioned agreement by 6pm on the agreed scheduled delivery date unless otherwise agreed in writing between both parties.
1. Definitions referring to ‘You’, the Client
This Confidentiality, Intellectual Property Rights Agreement (“Agreement”) between the Client described as “You”, “Your” or “Client”, including its employees and representatives and SIXHANDS, sets forth certain of your obligations respecting your dealings with the SIXHANDS entity.
2. Definitions referring to SIXHANDS
As used in this Agreement, “SIXHANDS” shall mean SIXHANDS business partnership.
3. Confidentiality you agree to:
You agree to hold in strict confidence the business and affairs of SIXHANDS, its affiliates and their respective customer/clients. You agree that during the term of this agreement or any renewal thereof or at any time thereafter that you will not directly or indirectly disclose to any third party or use for any other purpose than that of SIXHANDS, the following:
i. Information disclosed to you by or on behalf of a SIXHANDS business partner, employee or representative.
ii. Information respecting the identity of any client/business resource of SIXHANDS.
iii. Information otherwise disclosed to SIXHANDS on a confidential basis by third parties.
iv. Information disclosed to you with respect to technical requirements, pricing or timing of any contracts.
v. Information disclosed to you with respect to SIXHANDS techniques, programs, present or contemplated developments, trade secrets or marketing strategies.
vi. Information otherwise identified to you as confidential information of SIXHANDS.
Your obligations of confidence described above include, without limiting the generality of the foregoing:
a. Taking every reasonable step to prevent third parties from examining and/or making copies of any documents or papers (whether in electronic or hard copy form) prepared by you or that come into your possession or under your control by reason of your business dealings with SIXHANDS.
b. Using your best efforts to follow all confidentiality policies of SIXHANDS, and upon termination of this agreement, turning over to Entrust all documents or papers (whether in electronic or hard copy form) and any other materials in your possession or under your control that relate to the business of SIXHANDS or its customers/clients.
4. Your obligations of confidence described above do not apply to information that is the following:
i. Available to the public other than by breach of obligations of confidence owed by you;
ii. Rightfully received by you, outside of the course of your business dealings with SIXHANDS, from a third party without confidentiality limitations;
iii. Independently developed by you without recourse to any confidential information of SIXHANDS or its customers/clients;
iv. Known to you prior to first receipt of the same in the course of your business dealings with SIXHANDS. The mingling of confidential information with information that falls within one or more of the exceptions above shall not impair the status of, or obligations of confidence and non-use respecting, the confidential parts.
5. Confidentiality we agree to:
Client and SIXHANDS may disclose confidential information one to the other to facilitate work under this agreement. Such information will be safeguarded and not disclosed to anyone who is not an employee/business partner of SIXHANDS or the client company. Each party shall also strictly protect such information from disclosure to third parties. Unless otherwise agreed to in writing, the terms and conditions of this agreement are confidential.
The clients confidentiality obligations however shall not apply to information which:
i. Is already known to the party to which it is disclosed
ii. Becomes part of the public domain without breach of this contract
iii. Is obtained from third parties who have no obligations to keep confidential to the contracting parties
iv. Is developed by a party receiving confidential information independently from the confidential information.
v. Is disclosed under operation of law
6. Publicity
Client will not use the name of SIXHANDS, nor of any member of SIXHANDS staff, in any publicity without the prior written approval of an authorised representative of SIXHANDS. SIXHANDS will not use the name of the client, nor any client employee, in any publicity without any prior written approval from the client. SIXHANDS may at its own discretion provide a brief listing of this project, including the title and client name for client portfolios. SIXHANDS reserves the right to use artworks produced for this client in publicity or promotion.
7. Upon Termination of project or Breech of contract
Written notice must be given by either party for termination of services and any work carried out by SIXHANDS up to the day the termination contract is delivered to SIXHANDS, is payable by the client in full.
After the calculation of any debts and or credits incurred from commenced work on the terminated project as documented below, and payments already made by you the client; the subsequent outstanding balances will be settled by either party within 14 days of receipt of written project termination.
The client has five (5) working days to respond and rectify a possible breach of this agreement after which time SIXHANDS will terminate all contracts without warning, a non-payment of debts will result in a termination of contract and SIXHANDS will reclaim all intellectual property, and services that have not or will not be paid for.
8. Termination
Performance under this agreement may be terminated by the client upon five (5) working days written notice prior to the commencement of scheduled agreed project brief except in the context of a retainer agreement;
Any concessions relating to cancellation of work and financial loss caused by this termination are at the discretion of SIXHANDS.
Performance may be terminated by SIXHANDS if circumstances beyond its control preclude continuation of the project.
Upon termination, SIXHANDS will be reimbursed by the client for all costs and non-cancellable commitments incurred in the performance of the Project, such reimbursement is not to exceed the total estimated project cost specified in SIXHANDS Brief Agreement.
9. Intellectual property
Any Intellectual property rights supplied by SIXHANDS unless agreed otherwise, shall remain the property of SIXHANDS and equally any intellectual property rights of the client shall remain so unless agreed otherwise. The client is responsible for all intellectual property clearances of the content and shall indemnify SIXHANDS against any possible legal action. Any use of this work by the client and or their assigns is strictly prohibited without written, prior permission by SIXHANDS.
10. Ownership and commercial exploitation of intellectual property
Sale: copyright ownership terms
Intellectual property may include but is not limited to: technical information, know how, copyrights, models, patterns, drawings, specifications, prototypes etc. Upon payment, copyright of the chosen designs shall be owned exclusively by the client for a single end use application for a period of 3 years. For commissioned work the copyright of items specified in their contract shall be owned by the client once paid for in full.
11. Product Disclosure Statement
11a. SIXHANDS will take all reasonable measures to ensure their product is of the highest possible standard. However with digitally printed products up to 3% slight printing faults may occur from time to time. as this is an accepted industry standard Sixhands will only accept responsibility for materials that contain faults over 3% of the ordered quantity in which case the product will be deemed 'faulty' and a replacement of the order will be supplied. In this event SIXHANDS shall arrange the collection of the faulty product and delivery of the replacement. SIXHANDS can take no responsibility for damage to products, caused by or during storage, transport or installation by a third party, retailer, or by you the client.
11b. SIXHANDS will pass on guarantees provided to the client by the substrate or printing supplier. These may include but are not limited to washability, mildew resistance, fire-retardancy, durability, light-fastness and colour-fastness, and application methods or mediums including glues. SIXHANDS can not be held liable for any experience contrary to the information or guarantees provided by SIXHANDS on behalf of the supplier of these products. SIXHANDS takes all reasonable measures to ensure that their chosen suppliers are of the highest standard, meeting all appropriate legal, ethical, safety, quality and environmental standards and requirements. SIXHANDS will attempt to facilitate, to the best of its ability, the satisfactory resolution of any complaint related to the physical, material product of the supplier and its failure to uphold its guarantees.
12. Returns Policy
12a. All wallpaper, furnishing fabrics, surfboards and other goods are produced to order, by SIXHANDS, for the individual client and therefore a no refunds policy applies to these items. There are also no cancellations, exchanges or returns on products after the initial order has been lodged with deposit. SIXHANDS will not order production on any items until 50% deposit has been received. Please note that events such as wilful damage, misuse, unauthorised repair or tampering with a product may prevent a product being accepted for 'faulty' return.
12b. All artwork from the SIXHANDS fashion swatch collection has a strict no returns policy due to intellectual property issues. This policy is agreed to and is signed by the client before any exchange of goods can take place and helps to ensure an exclusive product for all of our clients.
13. Obligations
You acknowledge that you have a fiduciary obligation to SIXHANDS and you agree that you will not during your business dealings with SIXHANDS or within 12 months thereafter, directly or indirectly:
i. Approach or solicit any sub contractor/client, potential sub contractor/client or maturing business opportunity of SIXHANDS or its affiliates in order to attempt to direct any such sub contractor/client, potential sub contractor/client or maturing business opportunity away from SIXHANDS or its affiliates;
ii. Service or deal with any sub contractor/client, potential sub contractor/client or maturing business opportunity of SIXHANDS or its affiliates in order to attempt to direct any such sub contractor/client, potential sub contractor/client or maturing business opportunity away from SIXHANDS or its affiliates
iii. Induce or persuade any sub contractor/client, potential sub contractor/client, supplier, agent or other person under contract or otherwise associated or doing business with SIXHANDS or its affiliates to reduce or alter any such association or business with SIXHANDS or its affiliates; or
iv. Otherwise interfere or attempt to interfere with any of the contractual, business or economic relationships of SIXHANDS or its affiliates with other parties.
14. Breach of terms and conditions
You acknowledge that a breach of any of the foregoing provisions will give rise to irreparable harm and injury non-compensable in damages. Accordingly, SIXHANDS or such other party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing provisions, in addition to any other legal remedies, which may be available. You further acknowledge and agree that the enforcement of a remedy hereunder by way of injunction will not prevent you from earning a reasonable livelihood.
You further acknowledge and agree that the covenants contained herein are necessary for the protection of SIXHANDS legitimate business interests and are reasonable in scope and content.
15. The provisions of this document
The provisions of this document shall survive the termination of the business relationship herein and shall be enforceable notwithstanding the existence of any claim or cause of action by you against SIXHANDS whether predicated upon this agreement or otherwise.
This Agreement shall supersede any and all previous oral or written communications, discussions or agreements between you and SIXHANDS relating to the general subject matter addressed herein.
You shall at any time during and subsequent to your business dealings with SIXHANDS reaffirm this Agreement or execute such further or other agreements with respect to the general subject matter addressed herein as SIXHANDS, or an affiliate company may from time to time require.
In the event that your business dealings with SIXHANDS is succeeded by business dealings with an affiliate company, the terms of this Agreement apply until an agreement relating to this subject matter is signed with the affiliate company, and if You do not execute an agreement with such affiliate company relating to this subject matter, terms identical to those set forth in this Agreement shall apply immediately in favour of such affiliate company upon commencement of Your business dealings with SIXHANDS and until such agreement is executed with such affiliate company.
16. Transaction of completed work
In the case of a transaction of completed work, which does not involve an immediate sign off, unless SIXHANDS is notified to the contrary by the client within three (3) working days following receipt of completed work, these will be deemed to have been accepted by the client according to the terms and conditions of this agreement.
17. Insurance and liability
SIXHANDS shall not be held responsible for any loss to the client whether it be monies, business or goodwill be it as indirect or a consequential result of work or services offered. It is the client’s responsibility to ensure that all content of work and services offered is correct and legal.
18. Payment
All prices indicated on the SIXHANDS website or any SIXHANDS price documentation are approximate and may alter on an individual basis with SIXHANDS reserving the right to alter the price and services offered without prior notification. GST is payable on all prices at the current standard rate.
Payment for work carried out is payable on receipt of the invoice or within 14 days thereof, via one of the following methods: cash cheque, direct deposit, money order or cheque made payable to SIXHANDS.
Exceptions to the aforementioned payment schedule apply for work included within a retainer contract of agreement between the client & SIXHANDS for which a regular payment schedule shall be agreed upon and documented within the Retainer agreement.
Before commencement of quoted fixed price projects the client will be invoiced as agreed. Once any required payments have cleared work will commence.
Cancellations of the project by the client at any time will result in the necessary deductions being made from this amount for work completed and services used.
Failure to do so within seven days will result in additional charges.
19. Limitation
The total financial obligation of the client is limited to the total amount outlined in the client contract, which said amount shall not be exceeded without the written authorisation of the client, given by one of its duly authorised representatives. SIXHANDS shall not be obliged to perform any work beyond the scope of work, which would cause the client to exceed such sum, unless SIXHANDS receives written agreement to the contrary.
20. Circumstances beyond our control
Responsibility is not accepted by SIXHANDS for delays or loses arising from contingencies beyond SIXHANDS control such as war, strikes, lockouts, fire, flood, failure of electricity supply, act of god, act of government or any other force of majeure.