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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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Please see below regarding IP developed by my fiance Trevor

Customer Question

Please see below regarding IP for software developed by my fiance Trevor Cushen. Here is the website of the product www.cimglobalsolutions.com.au. This website was paid by Trevor Cushen (under new company name CIM Global Solutions).
The CIM platform has previously been allowed to operate under Blackdot Solutions on the verbal agreement that the developer i.e. Mr Trevor Cushen would hold a 50% profit share and 50% on the sale of the CIM platform.
Unfortunately formal contract agreements broken down as a result of:
a. Blackdot Solutions insistence of 100% ownership of the CIM platform IP
b. Reluctance to start a separate company with only CIM platform with 50% shares
c. resistance to seek further investment to allow for future growth
Trevor has currently contributed approximately over 1,600 hours of architecture and coding. Based on consultancy and average IT development fees consulting fees of $180 per hour = $288,000. Based on his present consulting fee of $250 per hour = $400,000
Blackdot Solutions have not paid Mr. Trevor Cushen for any development or architecture on work completed on the CIM platform to date. Neither has support effort been paid for and no contract either verbal or otherwise grants BDS 100% ownership of the platform infrastructure; design or development. Hosting is within Amazon AWS is in the account of Mr Trevor Cushen.
Blackdot Solutions contracted Kelly Hutchinson (business name - WOW Training) on the 17th of January 2015 on a 6 month agreement with a annual agreed $100,000 pa. to promote Blackdot Solutions products and services which included (but did not specify) the CIM platform (from April 2015). The contact expired on the 17th of July 2015 and no other contact has been signed since then.
Blackdot Solutions has reimbursed Kelly Hutchinson (WOW training) & Trevor for the hosting of their Client platforms and a demo platform (for marketing) since April 2015. The original development platform has been live since February 2015 in the name of Trevor and remains solely in the name of Trevor. Only Trevor has access to the hosted platforms as the root/administration user and account holder. WOW training as part of the contract to provide services to BDS customers was reimbursed for hosting costs. Trevor has at no point received monies from BDS.
Blackdot Solutions reimbursed Kelly Hutchinson (WOW training) for the additional external contractors to assist with customising and administration of Blackdot Solutions Clients to the CIM platform totaling 100.5 hours @ $60 per hour = $6,030. This was part of providing services to BDS clients and all invoicing and revenue has been paid by same clients to BDS in full. Additional BDS services such as consultancy, document writing, and videoing were also sold by WOW training (Kelly Hutchinson) and all revenue was paid in full dirt to BDS. No invoicing was raised by Trevor and no monies were paid to Trevor for any of the work done or support of BDS clients done in addition to third party contractors.
CIM Global Solutions Pty. Ltd. was officially formed on the 29th of November 2015.
Due to the above circumstances, Kelly Hutchinson resigned as a contractor for Blackdot Solutions on the 1st of December and was appointed Managing Director of CIM Global Solutions (CIMGS)
CIMGS will agreed to continue servicing existing Clients of Blackdot Solutions who are using the CIM platform at an agreed support and hosting fee.
CIMGS will agreed to allow Blackdot Solutions promote the CIM platform, however will charge standard CIM platform hosting fee and $5,000 set-up/admin fees. In addition we will agree to a 50% share of $20 per store a month for the platform for all existing and new clients. Failure to agree on these terms, CIMGS will have the no option but to terminate the service to BDS existing clients or sign them on as exclusive to CIMGS
Current Blackdot Solutions (paying) clients on the CIM platform include. Approx revenue is $399 per month for hosting and $20 per store per month. Set up fee was wavered for these first clients which is normally $5,000 to customise platform:
a. Coffee Guru - 29 stores
b. Soul Origin - 35 stores
c. Coco Cubano - 13 stores
d. Skinnys Cafe - 1 store
The whole premise of the contract was so we could approach investors as we are just about to win a few huge tenders, but do not have enough funds to hire more staff. We wanted to start another company to make it easy for investors to separate the CIM platform software from BDS other services.
We have since spoken to them on the phone but they are not backing down. Are we ok to proceed with operating under a new business name since Trevor owns (in our opinion) the IP?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise Please understand this is not legal advise but a guide to assist you.

When you mention IP are you talking about copyright or also Trade Marks?

Are you a company officer?

Customer: replied 1 year ago.
intellectual property yes i am a company office
Customer: replied 1 year ago.
r u there
Expert:  Leon replied 1 year ago.

There are many types of IP

Which one are you referring to?

As officers of the company, if you go into competition against this company you can be sued and fines up to $200,000.00 apply under the corporations act.

You have a duty to this company not to use information you have against them such as client lists etc.

Here is some information.

http://www.companydirectors.com.au/~/media/resources/director-resource-centre/publications/books/books-content-campaigns/duties-and-responsibilities-20th-edition-chapter-1-extract.ashx?la=en.

Customer: replied 1 year ago.
no i am not the officer of blackdot solutions i was previously a contractor of blackdot solutons
Customer: replied 1 year ago.
I now work for CIM Global Solutions
Customer: replied 1 year ago.
hello?
Expert:  Leon replied 1 year ago.

the company you will be competing against is it CIM or Blackdot?

Customer: replied 1 year ago.
Blackdot
Expert:  Leon replied 1 year ago.

Blackdot Controls CIM form your Question.

I have concerns about their connections.

If this is the case then you are competing against CIM even though Blackdot uses its name.

Your knowledge can result ion a breach

Customer: replied 1 year ago.
are you in australia
Customer: replied 1 year ago.
you are terrible i have cancelled