Non Disclosure Agreement & Non Compete Agreement

NON-DISCLOSURE AGREEMENT
THIS NON-DISCLOSURE AGREEMENT (the “Agreement”) applies to any parties involved in distribution, networking, affiliation, stockists, consultants, sales representatives, models, anyone that is privy to any Intellectual Property owned physically or digitally by Tuya and its subsidiaries including but not limited to Tuya Colour Cosmetics. This agreement relates to all training material, product information, marketing and advertising property including content created by Tuya or its subsidiaries or persons involved in content creation on behalf of Tuya.

BETWEEN:
Tuya Colour Cosmetics of 278 Harkness Rd, Harkness, Vic, 3337
(the “Client”)
OF THE FIRST PART
– AND –
(the “Contractor”)
OF THE SECOND PART
BACKGROUND:
A. The Contractor is currently or may be retained as an independent contractor with the Client
for the position of:
In addition to this
responsibility or position (the “Retainer”), this Agreement also covers any position or
responsibility now or later held with the Client.
B. The Contractor will receive from the Client, or develop on the behalf of the Client,
Confidential Information as a result of the Retainer (the ‘Permitted Purpose’).

IN CONSIDERATION OF and as a condition of the Client retaining the Contractor and the Client
providing the Confidential Information to the Contractor in addition to other valuable consideration,
the receipt and sufficiency of which consideration is hereby acknowledged, the parties to this
Agreement agree as follows:

Confidential Information
1. All written and oral information and materials disclosed or provided by the Client to the
Contractor under this Agreement constitute Confidential Information regardless of whether
such information was provided before or after the date of this Agreement or how it was
provided to the Contractor.
2. The Contractor acknowledges that in any position the Contractor may hold, in and as a result
of the Contractor’s retainer by the Client, the Contractor will, or may, be making use of,
acquiring or adding to information about certain matters and things which are confidential to
the Client and which information is the exclusive property of the Client.
3. ‘Confidential Information’ means all data and information relating to the business and
management of the Client, including but not limited to, the following:
a. ‘Customer Information’ which includes names of customers of the Client, their
representatives, all customer contact information, contracts and their contents and
parties, customer services, data provided by customers and the type, quantity and
specifications of products and services purchased, leased, licensed or received by
customers of the Client;
b. ‘Intellectual Property’ which includes information relating to the Client’s proprietary
rights prior to any public disclosure of such information, including but not limited to
the nature of the proprietary rights, production data, technical and engineering data,
technical concepts, test data and test results, simulation results, the status and details
of research and development of products and services, and information regarding
acquiring, protecting, enforcing and licensing proprietary rights (including patents,
copyrights and trade secrets);
c. ‘Marketing and Development Information’ which includes marketing and development
plans of the Client, price and cost data, price and fee amounts, pricing and billing
policies, quoting procedures, marketing techniques and methods of obtaining business,
forecasts and forecast assumptions and volumes, and future plans and potential
strategies of the Client which have been or are being discussed;
d. ‘Business Operations’ which includes internal personnel and financial information of
the Client, vendor names and other vendor information (including vendor
characteristics, services and agreements), purchasing and internal cost information,
internal services and operational manuals, external business contacts including those
stored on social media accounts or other similar platforms or databases operated by
the Client, and the manner and methods of conducting the Client’s business;
e. ‘Product Information’ which includes all specifications for products of the Client as
well as work product resulting from or related to work or projects performed or to be
performed for the Client or for clients of the Client, of any type or form in any stage
of actual or anticipated research and development;
f. ‘Production Processes’ which includes processes used in the creation, production and
manufacturing of the work product of the Client, including but not limited to,
formulas, patterns, moulds, models, methods, techniques, specifications, processes,
procedures, equipment, devices, programs, and designs;
g. ‘Service Information’ which includes all data and information relating to the services
provided by the Client, including but not limited to, plans, schedules, manpower,
inspection, and training information;
h. ‘Proprietary Computer Code’ which includes all sets of statements, instructions or
programs of the Client, whether in human readable or machine readable form, that are
expressed, fixed, embodied or stored in any manner and that can be used directly or
indirectly in a computer (‘Computer Programs’); any report format, design or drawing
created or produced by such Computer Programs; and all documentation, design
specifications and charts, and operating procedures which support the Computer
Programs;
i. ‘Computer Technology’ which includes all scientific and technical information or
material of the Client, pertaining to any machine, appliance or process, including but
not limited to, specifications, proposals, models, designs, formulas, test results and
reports, analyses, simulation results, tables of operating conditions, materials,
components, industrial skills, operating and testing procedures, shop practices, knowhow
and show-how;
j. ‘Accounting Information’ which includes, without limitation, all financial statements,
annual reports, balance sheets, company asset information, company liability
information, revenue and expense reporting, profit and loss reporting, cash flow
reporting, accounts receivable, accounts payable, inventory reporting, purchasing
information and payroll information of the Client;
k. Client Database & Contact Information; and
l. Confidential Information will also include any information that has been disclosed by
a third party to the Client and is protected by a non-disclosure agreement entered into
between the third party and the Client.
4. Confidential Information will not include the following information:
a. Information that is generally known in the industry of the Client;
b. Information that is now or subsequently becomes generally available to the public
through no wrongful act of the Contractor;
c. Information rightly in the possession of the Contractor prior to the disclosure to the
Contractor by the Client, the burden being on the Contractor to establish this through
documentation;
d. Information that is independently created by the Contractor without direct or indirect
use of the Confidential Information, the burden being on the Contractor to establish
this through documentation; or
e. Information that the Contractor rightfully obtains from a third party who has the right
to transfer or disclose it, the burden being on the Contractor to establish this through
documentation.
5. Except as otherwise provided in this Agreement, the Confidential Information will remain
the exclusive property of the Client and will only be used by the Contractor for the Permitted
Purpose. The Contractor will not use the Confidential Information for any purpose that might
be directly or indirectly detrimental to the Client or any associated affiliates or subsidiaries.
6. The obligations to ensure and protect the confidentiality of the Confidential Information
imposed on the Contractor in this Agreement and any obligations to provide notice under this
Agreement will survive the expiration or termination, as the case may be, of this Agreement
and those obligations will last indefinitely.
7. The Contractor may disclose any of the Confidential Information:
a. to such employees, agents, representatives and advisors of the Contractor that have a
need to know for the Permitted Purpose provided that:
i. the Contractor has informed such personnel of the confidential nature of the
Confidential Information;
ii. such personnel agree to be legally bound to the same burdens of non-disclosure
and non-use as the Contractor;
iii. the Contractor agrees to take all necessary steps to ensure that the terms of this
Agreement are not violated by such personnel; and
iv. the Contractor agrees to be responsible for and indemnify the Client for any
breach of this Agreement by its personnel.
b. to a third party where the Client has consented in writing to such disclosure; and
c. to the extent required by law.
Avoiding Conflict of Opportunities
8. It is understood and agreed that any business opportunity relating to or similar to the Client’s
current or anticipated business opportunities coming to the attention of the Contractor during
the Contractor’s retainer is an opportunity belonging to the Client. Accordingly, the
Contractor will advise the Client of the opportunity and cannot pursue the opportunity,
directly or indirectly, without the written consent of the Client.
9. Without the written consent of the Client, the Contractor further agrees not to:
a. solely or jointly with others undertake or join any planning for or organization of any
business activity competitive with the current or anticipated business activities of the
Client; and
b. directly or indirectly, engage or participate in any other business activities which the
Client, in its reasonable discretion, determines to be in conflict with the best interests
of the Client.
Non-Solicitation
10. Any attempt on the part of the Contractor to induce others to leave the Client’s employ, or
any effort by the Contractor to interfere with the Client’s relationship with its other
employees and contractors would be harmful and damaging to the Client. The Contractor
agrees that from the date of this Agreement until March 15, 2021, the Contractor will not in
any way, directly or indirectly:
a. induce or attempt to induce any employee or contractor of the Client to quit their
employment or retainer with the Client;
b. otherwise interfere with or disrupt the Client’s relationship with its employees and
contractors;
c. discuss employment opportunities or provide information about competitive
employment to any of the Client’s employees or contractors; or
d. solicit, entice, or hire away any employee or contractor of the Client.
This obligation will be limited in scope to those persons that were employees or contractors
of the Client at the same time that the Contractor was retained by the Client.
Non-Competition
11. Other than through employment with a bona-fide independent party, or with the express
written consent of the Client, which will not be unreasonably withheld, the Contractor will
not, from the date of this Agreement until March 15, 2021, be directly or indirectly involved
with a business which is in direct competition with the particular business line of the Client
that the Contractor was working during any time in the last year of retainer with the Client.
12. From the date of this Agreement until March 15, 2021, the Contractor will not divert or
attempt to divert from the Client any business the Client had enjoyed, solicited, or attempted
to solicit, from its customers, prior to termination or expiration, as the case may be, of the
Retainer.
Ownership and Title
13. The Contractor acknowledges and agrees that all rights, title and interest in any Confidential
Information will remain the exclusive property of the Client. Accordingly, the Contractor
specifically agrees and acknowledges that the Contractor will have no interest in the
Confidential Information, including, without limitation, no interest in know-how, copyright,
trade marks or trade names, notwithstanding the fact that the Contractor may have created or
contributed to the creation of that Confidential Information.
14. The Contractor does hereby waive any moral rights that the Contractor may have with
respect to the Confidential Information.
15. The Confidential Information will not include anything developed or produced by the
Contractor during the term of this Agreement, including but not limited to intellectual
property, process, design, development, creation, research, invention, know-how, trade name,
trade marks or copyright that:
a. was developed without the use of any equipment, supplies, facility or Confidential
Information of the Client;
b. was developed entirely on the Contractor’s own time;
c. does not relate to the actual business or reasonably anticipated business of the Client;
d. does not relate to the actual or demonstrably anticipated processes, research or
development of the Client; and
e. does not result from any work performed by the Contractor for the Client.
16. The Contractor agrees to immediately disclose to the Client all Confidential Information
developed in whole or in part by the Contractor during the term of the Retainer and to assign
to the Client any right, title or interest the Contractor may have in the Confidential
Information. The Contractor agrees to execute any instruments and to do all other things
reasonably requested by the Client (both during and after the term of the Retainer) in order to
vest more fully in the Client all ownership rights in those items transferred by the Contractor
to the Client.
Remedies
17. The Contractor agrees and acknowledges that the Confidential Information is of a proprietary
and confidential nature and that any disclosure of the Confidential Information to a third
party in breach of this Agreement cannot be reasonably or adequately compensated for in
money damages and would cause irreparable injury to the Client. Accordingly, the
Contractor agrees that the Client is entitled to, in addition to all other rights and remedies
available to it at law or in equity, an injunction restraining the Contractor, any of its
personnel, and any agents of the Contractor, from directly or indirectly committing or
engaging in any act restricted by this Agreement in relation to the Confidential Information.
Return of Confidential Information
18. The Contractor agrees that, upon request of the Client, or in the event that the Contractor
ceases to require use of the Confidential Information, or upon expiration or termination of
this Agreement, or the expiration or termination of the Retainer, the Contractor will turn over
to the Client all documents, disks or other computer media, or other material in the
possession or control of the Contractor that:
a. may contain or be derived from ideas, concepts, creations, or trade secrets and other
proprietary and Confidential Information as defined in this Agreement; or
b. is connected with or derived from the Contractor’s services to the Client.
Notices
19. In the event that the Contractor is required in a civil, criminal or regulatory proceeding to
disclose any part of the Confidential Information, the Contractor will give to the Client
prompt written notice of such request so the Client may seek an appropriate remedy or
alternatively to waive the Contractor’s compliance with the provisions of this Agreement in
regards to the request.
20. If the Contractor loses or makes unauthorised disclosure of any of the Confidential
Information, the Contractor will immediately notify the Client and take all reasonable steps
necessary to retrieve the lost or improperly disclosed Confidential Information.
21. Any notices or delivery required in this Agreement will be deemed completed when
a. hand-delivered;
b. delivered by agent;
c. sent by facsimile to the parties at the facsimile numbers contained in this Agreement
or as the parties may later designate in writing, after a successful confirmation report
is received from the facsimile machine used to send the notice; or
d. seven (7) days after being placed in the post, postage prepaid, to the parties at the
addresses contained in this Agreement or as the parties may later designate in writing.
22. The addresses and facsimile numbers for any notice to be delivered to any of the parties to
this Agreement are as follows:
a. Tuya Colour Cosmetics
278 Harkness Rd, Harkness, Vic, 3337
Representations
23. In providing the Confidential Information, the Client makes no representations, either
express or implied as to its adequacy, sufficiency, completeness, correctness or its lack of
defect of any kind, including any patent or trade mark infringement that may result from the
use of such information. The Client will not be liable for any damage or loss that may occur
from such provision or use of the Confidential Information.
Termination
24. This Agreement will automatically terminate on the date that the Contractor’s Retainer with
the Client terminates or expires, as the case may be. Except as otherwise provided in this
Agreement, all rights and obligations under this Agreement will terminate at that time.
Assignment
25. Except where a party has changed its corporate name or merged with another corporation,
this Agreement may not be assigned or otherwise transferred by either party in whole or part
without the prior written consent of the other party to this Agreement.
Amendments
26. This Agreement may only be amended or modified by a written instrument executed by both
the Client and the Contractor.
Governing Law
27. This Agreement will be construed in accordance with and governed by the laws of State of
Victoria.
General Provisions
28. Time is of the essence in this Agreement.
29. This Agreement may be executed in counterpart.
30. Headings are inserted for the convenience of the parties only and are not to be considered
when interpreting this Agreement. Words in the singular mean and include the plural and
vice versa. Words in the masculine mean and include the feminine and vice versa.
31. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be
read and construed independently of each other. If any part of this Agreement is held to be
invalid, this invalidity will not affect the operation of any other part of this Agreement.
32. The Contractor is liable for all costs, expenses and expenditures including, and without
limitation, the complete legal costs incurred by the Client in enforcing this Agreement as a
result of any default of this Agreement by the Contractor.
33. The Client and the Contractor acknowledge that this Agreement is reasonable, valid and
enforceable. However, if a court of competent jurisdiction finds any of the provisions of this
Agreement to be too broad to be enforceable, it is the intention of the Client and the
Contractor that such provision be reduced in scope by the court only to the extent deemed
necessary by that court to render the provision reasonable and enforceable, bearing in mind
that it is the intention of the Contractor to give the Client the broadest possible protection
against disclosure of the Confidential Information.
34. No failure or delay by the Client in exercising any power, right or privilege provided in this
Agreement will operate as a waiver, nor will any single or partial exercise of such rights,
powers or privileges preclude any further exercise of them or the exercise of any other right,
power or privilege provided in this Agreement.
35. This Agreement will inure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors and assigns, as the case may be, of the Client and the
Contractor.
36. This Agreement constitutes the entire agreement between the parties and there are no further
items or provisions, either oral or otherwise.

 

NON-COMPETE AGREEMENT

This Non-Compete Agreement applies to any parties involved in distribution, networking, affiliation, stockists, consultants, sales representatives, models, anyone that is privy to any Intellectual Property owned physically or digitally by Tuya and its subsidiaries including but not limited to Tuya Colour Cosmetics. This agreement relates to all training material, product information, marketing and advertising property including content created by Tuya or its subsidiaries or persons involved in content creation on behalf of Tuya.

Tuya Colour Cosmetics of 278 Harkness Rd, Harkness, Vic, 3337
(the “Client”)
OF THE FIRST PART
(the “Contractor”)
OF THE SECOND PART
BACKGROUND:
A. The Contractor is currently or may be retained as an independent contractor with the Client
for the position of:
In addition to this responsibility or position, this Agreement also covers any position or responsibility now or
later held with the Client (the “Retainer”).
B. As a result of the Retainer, the Contractor will receive from, or develop on behalf of the
Client, certain proprietary or confidential information (the “Confidential Information”) and
the Client has sought assurance this will not be exploited to gain a competitive advantage.
IN CONSIDERATION OF and as a condition of the Retainer and the Client providing the
Confidential Information to the Contractor in addition to other valuable consideration, the receipt
and sufficiency of which consideration is hereby acknowledged, the parties to this Agreement agree
as follows:
Non-Competition
1. The Contractor agrees that during the Retainer and for a period of two (2) years after the end
of that term, the Contractor will not give advice or lend credit, money or the Contractor’s
reputation to any natural person or business entity engaged in a competing business in any
geographic area in which the Client conducts its business, and the Contractor will not,
directly or indirectly, as employee, owner, sole proprietor, partner, director, member,
consultant, agent, founder, co-venturer or otherwise, solely or jointly with others, engage in
any business that is in competition with the business of the Client within the following
geographic area:
– Melbourne.
Non-Solicitation
2. The Contractor understands and agrees that any attempt on the part of the Contractor to
induce other employees or contractors to leave the Client’s workforce, or any effort by the
Contractor to interfere with the Client’s relationship with its other employees and contractors
would be harmful and damaging to the Client. The Contractor agrees that during the
Retainer, and for a period of two (2) years after the end of that term, the Contractor will not
in any way, directly or indirectly:
a. Induce or attempt to induce any employee or contractor of the Client to quit
employment or retainer with the Client;
b. Otherwise interfere with or disrupt the Client’s relationship with its employees and
contractors;
c. Discuss employment opportunities or provide information about competitive
employment to any of the Client’s employees or contractors; or
d. Solicit, entice, or hire away any employee or contractor of the Client for the purpose
of an employment opportunity that is in competition with the Client.
3. This non-solicitation obligation as described in this section will be limited to employees or
contractors who were employees or contractors of the Client during the period that the
Contractor was retained by the Client.
4. During the Retainer, and for two (2) years thereafter, the Contractor will not divert or attempt
to divert from the Client any business the Client had enjoyed, solicited, or attempted to
solicit, from its customers, prior to termination or expiration, as the case may be, of the
Retainer.
Confidential Information
5. The Contractor acknowledges that, in any position the Contractor may hold, in and as a result
of the Retainer, the Contractor will, or may, be making use of, acquiring or adding to
information which is confidential to the Client (the “Confidential Information”) and the
Confidential Information is the exclusive property of the Client.
6. The Confidential Information will include all data and information relating to the business
and management of the Client, including but not limited to, proprietary and trade secret
technology and accounting records to which access is obtained by the Contractor, including
Work Product, Computer Software, Other Proprietary Data, Business Operations, Marketing
and Development Operations, and Customer Information.
7. The Confidential Information will also include any information that has been disclosed by a
third party to the Client and is governed by a non-disclosure agreement entered into between
that third party and the Client.
8. The Confidential Information will not include information that:
a. Is generally known in the industry of the Client;
b. Is now or subsequently becomes generally available to the public through no wrongful
act of the Contractor;
c. Was rightfully in the possession of the Contractor prior to the disclosure to the
Contractor by the Client;
d. Is independently created by the Contractor without direct or indirect use of the
Confidential Information; or
e. The Contractor rightfully obtains from a third party who has the right to transfer or
disclose it.
9. The Confidential Information will also not include anything developed or produced by the
Contractor during the Retainer, including but not limited to, any intellectual property,
process, design, development, creation, research, invention, know-how, trade name, trade-
mark or copyright that:
a. Was developed without the use of equipment, supplies, facility or Confidential
Information of the Client;
b. Was developed entirely on the Contractor’s own time;
c. Does not result from any work performed by the Contractor for the Client; and
d. Does not relate to any actual or reasonably anticipated business opportunity of the
Client.
Duties and Obligations Concerning Confidential Information
10. The Contractor agrees that a material term of this Agreement to keep all Confidential
Information absolutely confidential and protect its release from the public. The Contractor
agrees not to divulge, reveal, report or use, for any purpose, any of the Confidential
Information which the Contractor has obtained or which was disclosed to the Contractor by
the Client as a result of the Retainer. The Contractor agrees that if there is any question as to
such disclosure then the Contractor will seek out senior management of the Client prior to
making any disclosure of the Client’s information that may be covered by this Agreement.
11. The Contractor agrees and acknowledges that the Confidential Information is of a proprietary
and confidential nature and that any disclosure of the Confidential Information to a third
party in breach of this Agreement cannot be reasonably or adequately compensated for in
money damages, would cause irreparable injury to Client, would gravely affect the effective
and successful conduct of the Client’s business and goodwill, and would be a material breach
of this Agreement.
12. The obligations to ensure and protect the confidentiality of the Confidential Information
imposed on the Contractor in this Agreement and any obligations to provide notice under this
Agreement will survive the expiration or termination, as the case may be, of this Agreement
and will continue indefinitely from the date of such expiration or termination.
13. The Contractor may disclose any of the Confidential Information:
a. To a third party where Client has consented in writing to such disclosure; or
b. To the extent required by law or by the request or requirement of any judicial,
legislative, administrative or other governmental body after providing reasonable prior
notice to the Client.
14. If the Contractor loses or makes unauthorised disclosure of any of the Confidential
Information, the Contractor will immediately notify the Client and take all reasonable steps
necessary to retrieve the lost or improperly disclosed Confidential Information.
Avoiding Conflict of Opportunities
15. It is understood and agreed that any business opportunity relating to or similar to the Client’s
current or anticipated business opportunities coming to the attention of the Contractor during
the Retainer is an opportunity belonging to the Client. Accordingly, the Contractor will
advise the Client of the opportunity and cannot pursue the opportunity, directly or indirectly,
without the written consent of the Client.
16. Without the written consent of the Client, the Contractor further agrees not to:
a. solely or jointly with others undertake or join any planning for or organization of any
business activity competitive with the current or anticipated business activities of the
Client; and
b. directly or indirectly, engage or participate in any other business activities which the
Client, in its reasonable discretion, determines to be in conflict with the best interests
of the Client.
17. Without the written consent of the Client, the Contractor further agrees not to directly or
indirectly, engage or participate in any other business activities which the Client, in its
reasonable discretion, determines to be in conflict with the best interests of the Client.
Ownership and Title to Confidential Information
18. The Contractor acknowledges and agrees that all rights, title and interest in any Confidential
Information will remain the exclusive property of the Client. Accordingly, the Contractor
specifically agrees and acknowledges that the Contractor will have no interest in the
Confidential Information, including, without limitation, no interest in know-how, copyright,
trade-marks or trade names, notwithstanding the fact that the Contractor may have created or
contributed to the creation of the Confidential Information.
19. The Contractor waives any moral rights that the Contractor may have with respect to the
Confidential Information.
20. The Contractor agrees to immediately disclose to the Client all Confidential Information
developed in whole or in part by the Contractor during the Retainer and to assign to the
Client any right, title or interest the Contractor may have in the Confidential Information.
The Contractor agrees to execute any instruments and to do all other things reasonably
requested by the Client, both during and after the Retainer, in order to vest more fully in the
Client all ownership rights in those items transferred by the Contractor to the Client.
Return of Confidential Information
21. The Contractor agrees that, upon request of the Client or upon termination or expiration, as
the case may be, of the Retainer, the Contractor will turn over to the Client all Confidential
Information belonging to the Client, including but not limited to, all documents, plans,
specifications, disks or other computer media, as well as any duplicates or backups made of
that Confidential Information in whatever form or media, in the possession or control of the
Contractor that:
a. May contain or be derived from ideas, concepts, creations, or trade secrets and other
proprietary and Confidential Information as defined in this Agreement; or
b. is connected with or derived from the Contractor’s services to the Client.
Remedies
22. The Contractor agrees and acknowledges that the Confidential Information is of a proprietary
and confidential nature and that any failure to maintain the confidentiality of the Confidential
Information in breach of this Agreement cannot be reasonably or adequately compensated for
in money damages and would cause irreparable injury to the Client. Accordingly, the
Contractor agrees that the Client is entitled to, in addition to all other rights and remedies
available to it at law or in equity, an injunction restraining the Contractor, any of its
personnel, and any agents of the Contractor, from directly or indirectly committing or
engaging in any act restricted by this Agreement in relation to the Confidential Information.
Notices
23. In the event that the Contractor is required in a civil, criminal or regulatory proceeding to
disclose any part of the Confidential Information, the Contractor will give to the Client
prompt written notice of such request so the Client may seek an appropriate remedy or
alternatively to waive the Contractor’s compliance with the provisions of this Agreement in
regard to the request.
24. If the Contractor loses or fails to maintain the confidentiality of any of the Confidential
Information in breach of this Agreement, the Contractor will immediately notify the Client
and take all reasonable steps necessary to retrieve the lost or improperly disclosed
Confidential Information.
25. Any notices or delivery required in this Agreement will be deemed completed when
a. hand-delivered;
b. delivered by agent;
c. sent by facsimile to the parties at the facsimile numbers contained in this Agreement
or as the parties may later designate in writing, after a successful confirmation report
is received from the facsimile machine used to send the notice; or
d. seven (7) days after being placed in the post, postage prepaid, to the parties at the
addresses contained in this Agreement or as the parties may later designate in writing.
26. The addresses and facsimile numbers for any notice to be delivered to any of the parties to
this Agreement are as follows:
a. Tuya Colour Cosmetics
278 Harkness Rd, Harkness, Vic, 3337
Representations
27. In providing the Confidential Information, the Client makes no representations, either
express or implied as to its adequacy, sufficiency, completeness, correctness or its lack of
defect of any kind, including any patent or trade mark infringement that may result from the
use of such information. The Client will not be liable for any damage or loss that may occur
from such provision or use of the Confidential Information.
Termination
28. This Agreement will automatically terminate on the date that the Retainer terminates or
expires, as the case may be. Except as otherwise provided in this Agreement, all rights and
obligations under this Agreement will terminate at that time.
Assignment
29. Except where a party has changed its corporate name or merged with another corporation,
this Agreement may not be assigned or otherwise transferred by either party in whole or part
without the prior written consent of the other party to this Agreement.
Amendments
30. This Agreement may only be amended or modified by a written instrument executed by both
the Client and the Contractor.
Governing Law
31. This Agreement will be construed in accordance with and governed by the laws of the State
of Victoria.
Definitions
32. For the purpose of this Agreement the following definitions will apply:
a. ‘Work Product’ means work product information, including but not limited to, work
product resulting from or related to work or projects performed or to be performed for
the Client or for customers of the Client, of any type or form in any stage of actual or
anticipated research and development.
b. ‘Computer Software’ means computer software resulting from or related to work or
projects performed or to be performed for the Client or for customers of the Client, of
any type or form in any stage of actual or anticipated research and development,
including but not limited to, programs and program modules, routines and subroutines,
processes, algorithms, design concepts, design specifications (design notes,
annotations, documentation, flowcharts, coding sheets, and the like), source code,
object code and load modules, programming, program patches and system designs.
c. ‘Other Proprietary Data’ means information relating to the Client’s proprietary rights
prior to any public disclosure of such information, including but not limited to, the
nature of the proprietary rights, production data, technical and engineering data, test
data and test results, the status and details of research and development of products
and services, and information regarding acquiring, protecting, enforcing and licensing
proprietary rights (including patents, copyrights and trade secrets).
d. ‘Business Operations’ means operational information, including but not limited to,
internal personnel and financial information, vendor names and other vendor
information (including vendor characteristics, services and agreements), purchasing
and internal cost information, internal services and operational manuals, and the
manner and methods of conducting the Client’s business.
e. ‘Marketing and Development Operations’ means marketing and development
information, including but not limited to, marketing and development plans, price and
cost data, price and fee amounts, pricing and billing policies, quoting procedures,
marketing techniques and methods of obtaining business, forecasts and forecast
assumptions and volumes, and future plans and potential strategies of the Client which
have been or are being considered.
f. ‘Customer Information’ means customer information, including but not limited to,
names of customers and their representatives, contracts and their contents and parties,
customer services, data provided by customers and the type, quantity and
specifications of products and services purchased, leased, licensed or received by
customers of the Client.
General Provisions
33. Time is of the essence in this Agreement.
34. This Agreement may be executed in counterpart.
35. Headings are inserted for the convenience of the parties only and are not to be considered
when interpreting this Agreement. Words in the singular mean and include the plural and
vice versa. Words in the masculine mean and include the feminine and vice versa.
36. The clauses, paragraphs, and subparagraphs contained in this Agreement are intended to be
read and construed independently of each other. If any part of this Agreement is held to be
invalid, this invalidity will not affect the operation of any other part of this Agreement.
37. The Contractor is liable for all costs, expenses and expenditures including, and without
limitation, the complete legal costs incurred by the Client in enforcing this Agreement as a
result of any default of this Agreement by the Contractor.
38. The Client and the Contractor acknowledge that this Agreement is reasonable, valid and
enforceable. However, if a court of competent jurisdiction finds any of the provisions of this
Agreement to be too broad to be enforceable, it is the intention of the Client and the
Contractor that such provision be reduced in scope by the court only to the extent deemed
necessary by that court to render the provision reasonable and enforceable, bearing in mind
that it is the intention of the Contractor to give the Client the broadest possible protection to
maintain the confidentiality of the Confidential Information.
39. No failure or delay by the Client in exercising any power, right or privilege provided in this
Agreement will operate as a waiver, nor will any single or partial exercise of such rights,
powers or privileges preclude any further exercise of them or the exercise of any other right,
power or privilege provided in this Agreement.
40. This Agreement will inure to the benefit of and be binding upon the respective heirs,
executors, administrators, successors and assigns, as the case may be, of the Client and the
Contractor.
41. This Agreement constitutes the entire agreement between the parties and there are no further
items or provisions, either oral or otherwise.