This Commission Agreement acts as a Non-Disclosure of Proprietary Information agreement, and an Intellectual Property Agreement. The agreement is between You (User, you, your) and Fantom Wear (ABN 57 933 455 254) (Fantom Wear, we, our, us), whom are hereinafter called ‘the Parties’.
You indicate that you have understood and accepted this agreement by completing any of the following actions on fantomwear.com website (Site):
- Completing and submitting the form for a Custom made product.
- Completing and submitting the form for a Commission
- Completing the order and payment process for a Made-to-Order
- Requesting a custom, commission or Made-to-Order product from Fantom Wear using a contact email address found on the Site (e.g. firstname.lastname@example.org or email@example.com or firstname.lastname@example.org, etc.).
‘Responsibility for Your Content
You create and provide us with Your Content at your own risk and you are personally responsible and liable for Your Content. By uploading and publishing Your Content, you acknowledge that it does not contain any confidential information and may be seen by others.
Fantom Wear has discretion of the use of Your Content on the Site. We are not obliged to use, maintain or display Your Content on the Site. If we do use Your Content we may use it to publicise and promote us and the Site. You are not entitled to any payment from us for Your Content or our use of it.
Prohibitions on Your Content
Your Content must not include anything which:
(a) you do not have the right to disclose under law or an obligation you have to a third party (such as confidentiality agreements);
(b) reveals your or another person’s identity or sensitive information, such as names, email addresses, phone numbers or addresses;
(c) infringes or can possibly infringe rights, including intellectual property rights (such as copyrights and trademarks of others); or
(d) is or can be taken by any others as being harmful, threatening, abusive, harassing, vulgar, obscene, invasive of privacy, immoral or otherwise offensive or illegal.
If you fail to abide by these prohibitions on your content, you may receive an email from Fantom Wear informing you why your contribution has been refused or edited. This email will also include a warning that continuing to break the rules may result in action being taken against your account or accounts. This action may include any content posted by you being checked before allowed to go on the site or a temporary or permanent suspension of your ability to participate in any or all areas of Fantom Wear.
Our use of Your Content
By submitting Your Content through the Site, you grant us (our successors and our related bodies corporate, partners and their successors) a royalty-free, irrevocable, non-exclusive licence to use in any way, part or all of Your Content in any medium (including but not limited to the Site), by any means and for any purpose (including commercial purposes), and to authorise others to do so. Fantom Wear, our successors, assignees and licensees may do or omit to do anything to Your Content which may infringe your moral rights in Your Content, including editing, altering and reproducing Your Content in any manner or context, in perpetuity throughout the world.
Monitoring, modification and removal of Content
We do not monitor, verify, approve, endorse, sanction, encourage, support or agree with Your Content or User Content including without limitation any comments, opinions or statements submitted, uploaded or otherwise posted on the Site.
We may, but have no obligation to, amend, supplement, delete or update Our Content (defined below), Your Content or User Content, without notifying you and at our sole discretion. However, we may remove any defamatory, misleading, false, offensive or otherwise illegal material (including in Your Content) that we become aware of, without notifying you.
Interactions with other Users
You indemnify and hold us harmless for any actions of any other User and any dispute or claim that you may make against any other User, irrespective of whether it relates to the use of the Site.
No illegal use
You must not use the Site in any manner or for any purpose which is illegal.
All materials displayed on the Site, including without limitation, all text, graphics, advertisements, names, logos, trade marks, applications and software (whether registered or not) (Our Content) are our property or the property of their respective owners (including our licensors and other Users) and are protected by copyright, trade mark and other intellectual property laws.
You may use Our Content for your personal, non-commercial purposes, such as to obtain information about Products and/or place an order for Products using this Site. Except where the law expressly allows, you may not use, reproduce, modify, distribute, post, transmit, distribute, publish or create derivative works from, or use for any commercial purpose, any part of Our Content.
To the extent allowed by law, Fantom Wear does not guarantee the accuracy, completeness, security or currency of Our Content or User Content and we have no liability to you for your use or reliance on Our Content or User Content.
Any unauthorised use of the materials appearing on this Site may violate copyright, trade mark and other applicable laws and could result in criminal or civil penalties.
Fantom Wear reserves all other rights not expressly granted.’
It is acknowledged that you and Fantom Wear possess Proprietary Information (as defined below) and Intellectual Property (as defined below) and desire to prevent the unauthorised use and disclosure of such Intellectual Property by and to any other person, firm, corporation, partnership, joint venture, association, limited liability client or other entity except as agreed for the completion of contracted work.
It is acknowledged that Fantom Wear is providing services to you and desires to confirm the rights and obligations with regards to your Intellectual Property.
In consideration of the above and the mutual undertakings and covenants set forth below and the timely remission of project fees or other considerations as payable in respect of work undertaken on behalf of you by Fantom Wear, the parties hereby agree as follows:
Section 1. – Recognition of Your Rights; Non-Disclosure.
- For the purposes of this agreement, Proprietary Information shall include details pertaining to transactions, customers and data appertaining to you and made available to Fantom Wear by you for discharge of work which Fantom Wear has agreed or contracted to undertake for you. Specifically, this agreement warrants that:
- At all times during the term of the professional relationship as a consultant or independent contractor with you (the “Professional Relationship”) and thereafter, Fantom Wear will hold in strictest confidence and will not disclose, publish or promulgate any of the your Proprietary Information, unless the you expressly requests or authorizes such disclosure in writing;
- Fantom Wear affirms that you and your assigns shall be the sole owner of all Proprietary Information and all other rights throughout the world in connection therewith.
- For the purposes of this agreement, the term “Intellectual Property” means trade secrets, confidential knowledge, data or any other Intellectual Property of your or Fantom Wear’s. By way of illustration but not limitation, “Intellectual Property” includes
- trade secrets, inventions, mask works, ideas, processes, formulas, source and object codes, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques (collectively, the “Intellectual Property”);
- information regarding plans for research, development, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; and
- information regarding the skills and compensation of other employees or independent contractors of yours.
Section 2. — Third Party Information.
Fantom Wear understands that you have received and in the future will receive from third parties confidential or Proprietary Information (“Third Party Information”) subject to a duty on your part to maintain the confidentiality of such information and to use it only for certain limited purposes. During the term of Fantom Wear’s Professional relationship with you and thereafter, Fantom Wear will hold Third Party Information in the strictest confidence and will not disclose (to anyone other than your personnel who need to know such information in connection with their work for you) or use, except in connection with his work for you, Third Party Information unless expressly requested or authorized by you in writing.
Section 3. — Assignment of Intellectual Property.
It is acknowledged that you has Intellectual Property which existed prior to the Professional Relationship between you and Fantom Wear (hereafter referred to as ‘pre-existing Intellectual Property’) and which will be divulged to Fantom Wear in pursuance of the Professional Relationship between Fantom Wear and you.
It is acknowledged that Fantom Wear has Intellectual Property which existed prior to the Professional relationship between you and Fantom Wear (hereafter referred to as ‘pre-existing Intellectual Property’) and which may be divulged or otherwise made available to you by Fantom Wear.
It is acknowledged that the new Intellectual Property may be created by Fantom Wear in the discharge of his agreed or contracted work for you and on your behalf (hereafter referred to as ‘new Intellectual Property’).
Section 3.1 — Assignment.
Except as explicitly agreed in writing you and Fantom Wear shall each retain their rights to all pre-existing Intellectual Property.
Fantom Wear affirms during the term of the professional relationship with you and thereafter, Fantom Wear will hold in strictest confidence and will not disclose, use, lecture upon or publish any of your pre-existing Intellectual Property, unless you expressly requests or authorizes such disclosure in writing.
Fantom Wear confers non-exclusive rights of use of pre-existing Intellectual Property which he divulges or makes available to you in the course of the Professional Relationship. Moreover Fantom Wear provides permission for you to sell or dispose of products which contain pre-existing Intellectual Property, provided all available measures are undertaken to ensure the protection and security and secrecy of Fantom Wear Intellectual Property within the said products.
Fantom Wear hereby assigns to you all his right, title and interest in and to any new Intellectual Property patentable or registerable under copyright or similar statutes, made or conceived or reduced to practice or learned by Fantom Wear, either alone or jointly with others, in pursuit of Fantom Wear’s Professional Relationship with you.
Section 4. — Enforcement of Rights to Intellectual Property.
- Fantom Wear agrees to assist you in every reasonable way to obtain and from time to time enforce your rights under this agreement relating to Intellectual Property. To that end Fantom Wear agrees to execute, verify and deliver such documents and perform such other acts (including appearances as a witness) as you may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing rights with respect to such Intellectual Property and the assignment thereof providing you shall advance or reimburse (at Fantom Wear’s discretion) Fantom Wear for all costs incurred in pursuance of the provision of such assistance.
- Fantom Wear’s undertaking to assist you with respect to Intellectual Property in any and all countries shall continue beyond the termination of his Professional relationship with you, but you shall compensate Fantom Wear at a reasonable rate after such termination for the time actually spent by Fantom Wear at your request on such assistance, and shall accept sole responsibility for any and all expenses incurred in providing such assistance.
- You agree to act in every reasonable way to protect and enforce Fantom Wear’s pre-existing Intellectual Property rights in any and all countries.
- Fantom Wear hereby waives and quitclaims to you any and all claims, of any nature whatsoever, which Fantom Wear now has or may hereafter have for infringement of any Intellectual Property assigned hereunder to you.
Section 5. — Obligation to Keep the Other Party Informed.
- During the period of Fantom Wear’s Professional relationship with you and for six (6) months after termination thereof, Fantom Wear agrees to disclose at your request, details of all Intellectual Property authored, conceived or reduced to practice by him in the course of agreed or contracted work for and on behalf of you, whether created alone or jointly with others.
Fantom Wear will keep in confidence and will not disclose to third parties without your consent any Intellectual Property disclosed in writing to you pursuant to this Agreement that qualifies fully for protection under any applicable law.
Fantom Wear will preserve the confidentiality of any pre-existing client Intellectual Property or any new Intellectual Property as defined by this agreement that does not fully qualify for protection under any applicable law.
- Fantom Wear agrees to keep and maintain adequate and current records (in the form of notes, sketches, drawings and in any other form that may be required by you) of all Intellectual Property developed by him during the period of his Professional relationship with you, which records shall be available to you on request.
- You agree to disclose to Fantom Wear details of any patent applications filed by him or on his behalf within a period of one (1) year after conclusion of the Professional relationship. At the time of each such disclosure, Fantom Wear will advise you in writing of any pre-existing Intellectual Property that he believes fully qualifies for protection under any applicable law; and he will at that time provide to you in writing all evidence necessary to substantiate that belief.
You will keep in confidence and will not disclose to third parties without Fantom Wear’s consent any pre-existing Intellectual Property disclosed to you pursuant to this Agreement that qualifies for protection under any applicable law.
Section 6. — Pre-Existing Intellectual Property.
Inventions or other Intellectual Property, if any, patented or unpatented, made by Fantom Wear outside or prior to Fantom Wear’s Professional relationship with you are excluded from the scope of this Agreement except insofar as non exclusive rights are conferred by their inclusion in work provided to you by Fantom Wear.
Section 7. — Non-Solicitation.
- During the term of Fantom Wear’s Professional relationship with you and for a period of one (1) year after Fantom Wear’s Professional relationship with you concludes, Fantom Wear will not, directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation or business entity of any type, hire, solicit, assist or in any way encourage any current employee or consultant of yours, any business entity affiliated with you, or any other person who has furnished information or data to you or otherwise participated in the development of Intellectual Property, to terminate his, her, or its relationship with you.
- Fantom Wear will not hire or solicit the employment services of any former employee of yours or any business entity of yours whose business relationship with you has been concluded within the preceding six months. For a period of six months after Fantom Wear’s Professional relationship with you concludes, Fantom Wear will not, directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation or business entity of any type, solicit, contact, call upon, communicate with, or attempt to communicate with, any Customer of yours. For purposes of this section, “Customer” shall mean any client or business entity that Fantom Wear had contact with or that Fantom Wear or you have performed services for during Fantom Wear’s Professional relationship with you.
- During the term of your Professional relationship with Fantom Wear and for a period of one (1) year after your Professional relationship with Fantom Wear concludes, you will not, directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation or business entity of any type, hire, solicit, assist or in any way encourage any current employee or consultant of Fantom Wear, any business entity affiliated with Fantom Wear, or any other person who has furnished information or data to Fantom Wear or otherwise participated in the development of Intellectual Property, to terminate his, her, or its relationship with Fantom Wear.
Section 8. No Improper Use of Materials.
During Fantom Wear’s Professional relationship with you, Fantom Wear will not improperly use or disclose any confidential information or trade secrets, if any, of any other person to whom he has an obligation of confidentiality, and Fantom Wear will not send or bring onto your premises any unpublished documents or any property belonging to any other person or entity to whom an obligation of confidentiality is owed.
Section 9. No Conflicting Obligation.
Fantom Wear represents that the performance of all the terms of this Agreement does not and will not breach any agreement to keep in confidence any information acquired prior to its Professional Relationship with you. Fantom Wear has not and agrees that it will not enter into any agreement either written or oral in conflict herewith.
Section 10. Return Of Your Documents.
Upon conclusion of this Agreement, upon your request, Fantom Wear will destroy or return to you any and all drawings, notes, memoranda, specifications, devices, formulas, and documents, together with all copies thereof, and any other material containing or disclosing any Inventions, Intellectual Property or Third Party Information provided to Fantom Wear by you regardless of the form in which any of the foregoing is stored.
Section 11. General Provisions.
11.1 This Agreement will be governed by and construed according to the laws of the State of Victoria, Australia without regard to its conflicts of laws principles.
11.2 Notices. Any notices required or permitted hereunder shall be given to the appropriate party at such address as the party shall specify in writing. Such notice shall be deemed given upon personal delivery to the appropriate address or if sent by certified or registered mail, three (3) days after the date of mailing from an address within the same continent or ten days from an intercontinental address.
11.3 Severability. The parties agree that if any arbitration panel, court of competent jurisdiction or other authority finds any the provisions hereof to be too broad in any respect, any and all such provisions shall be reformed to whatever extent such arbitration panel, court of competent jurisdiction or other authority deems to be reasonable and shall thereafter be enforced to the fullest extent possible.
11.4 Successors and Assigns. You may assign or transfer this Agreement providing that the assignee explicitly accepts both the rights and obligations which accrue to you. Fantom Wear may not assign, transfer or delegate any of his duties or obligations hereunder however he may assign or transfer any of his rights hereunder.
11.5 Survival. The provisions of this Agreement shall survive the conclusion or termination of the Professional Relationship between Fantom Wear and you (whether such conclusion or termination occurs as a result of an action or inaction by Fantom Wear or you).
11.6 Waiver. No waiver by you or Fantom Wear of any breach of this Agreement shall be construed as a waiver of any preceding or succeeding breach. No waiver by the you or Fantom Wear of any right under this Agreement shall be construed as a waiver of any other right. The parties shall not be required to give notice to enforce strict adherence to all terms of this Agreement.
11.7 Injunctive Relief. The parties acknowledges that a remedy at law for any breach or threatened breach of the provisions hereof would be inadequate, and Fantom Wear therefore agrees that you shall be entitled to injunctive relief in case of any such breach or threatened breach.
11.8 Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing and signed by the relevant parties.
We, the parties to this agreement agree wholly and without limitation to its terms and confirm that it will take effect when a fully executed copy has been lodged with each party.
Fantom Wear provides the Site as a venue for people to access information and to place orders for products that are offered for sale by Fantom Wear through the Site (Products).
You may be able to upload and publish materials to or through the Site, including text, images, information, comments and other data, via email, comment, post, blog, enquiry or other means (Content). You own any Content you upload and publish (Your Content). Other Users own any Content they upload and publish (User Content).
HERE ARE THE STANDARD STEPS WE EXPECT THAT A MADE-TO-ORDER, CUSTOM, OR COMMISSION ORDER WILL GO THROUGH:
Customer completes Custom/Commission form and submits
Fantom Wear replies with some illustrations, a quote (invoice) and reasonable expected completion date (or time frame).
Customer approves quote via reply email (or sends amendment for design until happy to confirm, due date (or timeframe) will be adjusted based on final confirmation date). Confirmation is legally binding. Customer pays the invoice.
After receipt of email approval and funds to the sum of the invoice, Fantom Wear will begin work as agreed and deliver by the agreed due date. No changes can be made to the order from this time.
This agreement applies to any orders or requests for a quote that are placed using the fantomwear.com websites or in correspondence with Fantom Wear, it’s staff, subsidiaries or associates. These conditions are applicable to any Made-to-Order, Custom, or Commission orders and enquiries (Referred to as Commission or Commissions from here onward).
If Fantom Wear decides to change our Commission Agreement, we will post those changes on this page, and update the Commission Agreement modification date below.
This policy was last modified in June 2015.
If you have any questions about this Commission Agreement (Memorandum of Understanding) please contact us using the information below:
12/52 Westgarth Street
Northcote VIC 3070
ABN: 57 933 455 254