EXHIBIT 10.1
LICENSE AGREEMENT
By and between:
Lacoste S.A.
, a French corporation organized and existing under the laws of France whose registered office and principal place of business is located at 23-25 rue de Provence, 75009 Paris (France), represented by its
Directeur Général, Monsieur José-Luis DURAN,
hereinafter referred to as "
Lacoste
",
Sporloisirs S.A.,
a Swiss corporation organized and existing under the laws of Switzerland whose registered office and principal place of business is located at 6, rue Cornavin, CP 1880, 1211 Geneva 1 (Switzerland), represented by its Directors,
Monsieur Ron AUFSEESSER and Monsieur Gotthard HEGI,
hereinafter referred to as "
SPL
",
Lacoste Alligator S.A.
, a Swiss corporation organized and existing under the laws of Switzerland whose registered office and principal place of business is located at 6, rue Cornavin, CP 1880, 1211 Geneva 1 (Switzerland), represented by its Directors,
Monsieur Ron AUFSEESSER and Monsieur Gotthard HEGI,
hereinafter referred to as "
LCA
",
all three together hereinafter referred to as the "
Licensor
",
and:
MGI Luxury Group, S.A.
, a company organized and existing under the laws of Switzerland whose registered office and principal place of business is located at 2B Place de la Gare, CH-2501 Bienne (Switzerland), acting on its behalf and on behalf of the entities controlling, controlled by
MGI Luxury Group, S.A.
or under common control with
MGI Luxury Group, S.A.
, represented by its Directors, Mr. Flavio PELLIGRINI and Mr. Richard COTÉ,
hereinafter referred to as the "
Master Licensee
".
WITNESSETH:
WHEREAS, the
Licensor
has created and developed over a period of many years a well-known and distinctive line of articles of sports and leisure apparel for men, women and children for sport and leisure (the "
Lacoste Apparel Products
", as such term is hereinafter defined); and
WHEREAS, in addition to the
Lacoste Apparel Products
, the
Licensor
has created and developed other lines of products such as toiletries, sunglasses and frames for optical glasses, leisure and sports bags, luggage, leathergoods, shoes, terry towels, bath towels, bath robes, household linen, umbrellas, belts, fashion jewelry (the "
Other Lacoste Products
", as such term is hereinafter defined); and
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CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED FROM PAGES 7, 37, 41, 42, 45, 50, 52, 55 AND 57 AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION (“SEC”) PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (“1934 ACT”).
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WHEREAS, the
Licensor
has also contributed to the creation and the development of a line of watches and time-keeping devices (the "
Lacoste Watches
", as such term is hereinafter defined); and
WHEREAS, the
Lacoste Apparel Products
, the
Other Lacoste Products
, as well as the
Lacoste Watches
, which are characterized by an emblem consisting of the pictorial representation of an alligator or a crocodile (the "
Crocodile
", as such term is hereinafter defined), are renowned and sold worldwide under the trade name of "Lacoste", the word "Lacoste" recalling the name of René Lacoste the famous tennis champion who invented the original shirt, and the
Crocodile
recalling his nickname on the tennis courts; and
WHEREAS, the
Lacoste Apparel Products
, the
Other Lacoste Products
and the
Lacoste Watches
are manufactured and/or distributed by partners selected by the
Licensor
; and
WHEREAS, the
Models
(as such term is hereinafter defined) making up the lines of the
Lacoste Watches
together with their specifications shall be the property of the
Licensor
to be used exclusively by the
Master Licensee
within the scope of this
Master Agreement
(as such term is hereinafter defined), it being understood however that certain elements of the
Models
may, in certain circumstances, belong either to third parties or, in the case of elements previously used by the
Master
Licensee
, to the
Master
Licensee
; and
WHEREAS, in order to protect its rights, the
Licensor
has registered, directly or indirectly, its trademarks (the "
Lacoste Trademarks
", as such term is hereinafter defined) world-wide, the principal representations of which are appended hereto as Schedule I; and
WHEREAS, the ownership of such registrations ensures the
Licensor
a clear exclusive right to use or license the right to use the
Lacoste Trademarks
for many different classes of products (including class 14 of the international classification, for watches and watches' accessories) in most countries around the world; and
WHEREAS, despite its ownership of the
Lacoste Trademarks
, the
Licensor
is not however in a position to warrant without limitation unimpeded use of all the
Lacoste Trademarks
in certain countries, due (a) to the existence of conflicting registrations (in particular in various far-east Asian jurisdictions, amongst which the People's Republic of China), or (b) to the lack of registration of certain of the
Lacoste Trademarks
, or (c) to the specificities and uncertainties generally associated with trademark law in certain jurisdictions; and
WHEREAS, the
Lacoste Trademarks
in the countries listed in Schedule III.a are the property of
Lacoste
; and
WHEREAS, the
Lacoste Trademarks
in the countries listed in Schedule III.b are the property of
SPL
; and
WHEREAS, the
Lacoste Trademarks
in the countries listed in Schedule III.c are the property of
LCA
; and
WHEREAS, through the development of the different lines of the
Lacoste Apparel Products
,
Other Lacoste Products
and
Lacoste Watches
, the
Licensor
has acquired a significant know-how in the fields of their styling,
marketing and merchandising, advertising and promotion (the "
Styling Know-how
", the "
Marketing and Merchandising Know-how
", and the "
Advertising and Promotion Know-how
", as such terms are hereinafter defined); and
WHEREAS, in view of the worldwide development of the sales of the
Lacoste Apparel Products
,
Other Lacoste Products
and
Lacoste Watches
, it is more than ever necessary, in the best interest of all the licensees of the
Lacoste Trademarks
, that without interfering in the running of their day-to-day business, the
Licensor
be able to maintain the standards and quality of the
Lacoste Trademarks Image
(as such term is hereinafter defined), particularly in coordinating the styling, the marketing and the merchandising, the advertising and the promotion of all
Lacoste Apparel Products
,
Other Lacoste Products
and
Lacoste Watches
; and
WHEREAS, in order to guarantee the authenticity of its creations and to ensure the homogeneity of their distribution at an international level, the
Licensor
has implemented selective distribution systems wherever and whenever practicable, so as to allow all its licensees and distributors to select and approve their retailers on the basis of objective criteria both with respect to quality and sales techniques; and
WHEREAS, the selective distribution systems implemented by the
Licensor
in connection with the
Lacoste Apparel Products
consist of the
"Approved Apparel Retailers" Selective Distribution System
(as such term is hereinafter defined) and of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
(as such term is hereinafter defined); and
WHEREAS, the selective distribution systems implemented by the
Licensor
in connection with each of the
Other Lacoste Products
incorporate, in addition to approved retailers, and for certain categories of
Other Lacoste Products
, a certain number of shops and special locations in shops dedicated to the sale of such
Other Lacoste Products
; and
WHEREAS, the selective distribution system implemented by the
Licensor
in connection with the
Lacoste Watches
incorporates
Approved Watches Retailers
; and
WHEREAS, the
Master Licensee
is a company specialized in the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of watches and time-keeping devices, and has acquired a significant know-how in such fields (the "
Watches Know-how
", as such term is hereinafter defined); and
WHEREAS, pursuant to a license agreement signed on March 23 and 24, 2006, and modified by an amendment dated July 20 and 23, 2009, the
Licensor,
wishing to develop world-wide the manufacture and the distribution of the
Lacoste Watches,
has granted to the
Master Licensee
the necessary rights in connection with the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of the
Lacoste Watches
in the
Territory
(as such term is hereinafter defined), until December 31, 2014; and
WHEREAS, the
Licensor
and the
Master Licensee
are willing to continue their license relationship after December 31
st
, 2014, subject to an update of said relationship’s contractual terms and conditions; and
WHEREAS, consequently, the
Licensor
and the
Master Licensee
have agreed to enter into a new license agreement (the present
Master Agreement
, as such
term is hereinafter defined), which shall be effective as from January 1
st
, 2015.
THE PARTIES HEREBY AGREE AS FOLLOWS:
ARTICLE
1
- DEFINITIONS
As used herein, the following terms shall be defined as set forth below:
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1.1
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"Approved Apparel Retailers" Selective Distribution System
" shall mean the group of approved retailers which has been organized by
Devanlay
in accordance with the specific guidelines of the
Licensor
with the purpose of selling the
Lacoste Apparel Products
and which comply with specific criteria with respect to client service, merchandising, presentation, advertising, promotion and respect of the
Lacoste Trademarks Image
.
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1.2
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"
Approved Watches Retailers
" shall mean the selected retailers (the categories of which are listed in Schedule VII.a) which have entered with the
Master Licensee
, its
Sub-Licensees
or its
Distributors
, whenever possible, into specific agreements defining, or which otherwise are determined to satisfy, the conditions which need to be fulfilled and applied for the sale of the
Lacoste Watches
through the
Lacoste Watches Selective Distribution System
.
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1.3
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"
Commercial Surface
" shall mean the total surface of a
Lacoste Boutique
or a
Lacoste Corner
, excluding the stock premises.
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1.4
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"
Crocodile
" shall mean the pictorial representation of an alligator or a crocodile, the principal representation of which is depicted in Schedule II.
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1.5
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"
Date of Termination
" shall mean the date on which the
Master Agreement
terminates for any reason after the required notice period(s) if any.
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1.6
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"
Devanlay
" shall mean the worldwide exclusive licensee of the
Licensor
for
Lacoste Apparel Products
.
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1.7
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"
Distribution Agreement
" shall mean an agreement entered into by and between the
Master Licensee
and a
Distributor
in execution of the undertakings of the
Master Licensee
under the terms of Article 2.3.3 hereinafter.
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1.8
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"
Distributor
" shall mean any entity (not including any entity controlling, controlled by or under common control with the
Master Licensee
) selected by the
Master Licensee
and approved by the
Licensor
for the wholesale distribution of
Lacoste Watches
in one or more countries.
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1.9
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"
Factory Outlets
" shall mean the stores in the
Territory
owned and operated by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
, which stores have been approved by the
Licensor
for the ongoing disposal of end-of-season
Lacoste Watches,
Seconds
and, as the case may be, of certain
Other Lacoste Products
; provided, however, that notwithstanding anything to the contrary contained
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herein, all such stores operated by the
Master Licensee
shall automatically be deemed approved
.
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1.10
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"
Factory Outlets Sales
" shall mean the actual invoice price on sales of
Lacoste Watches
by the
Factory Outlets
(unless such sales have been taken into account for the calculation of
Sales to Distributors
) to consumers in the
Territory
, excluding any taxes on sales collected from the
Factory Outlets
by any governmental authority.
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1.11
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"
Lacoste
" shall mean
Lacoste S.A.
, a French corporation organized and existing under the laws of France whose registered office and principal place of business is located at 23-25 rue de Provence, 75009 Paris (France), acting on its behalf and on behalf of the companies controlled by
Lacoste S.A.
with the exception
of
SPL
and
LCA.
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1.12
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"
Lacoste Apparel Products
" shall mean those articles of clothing (the categories of which are listed in Schedule V) bearing the
Lacoste Trademarks
.
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1.13
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"
Lacoste Apparel Products Distributor"
shall mean those parties in certain countries to which the distribution of the
Lacoste Apparel Products
in such countries has been granted by
Devanlay
.
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1.14
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"
Lacoste Boutiques
" shall mean the stand alone shops belonging to independent retailers or to
Devanlay
or to
Lacoste Apparel Products Distributors
and devoted exclusively to the sale of the
Lacoste Apparel Products
and, subject to the provisions of Article 7.2 hereinafter, of certain
Lacoste Watches
and/or
Other Lacoste Products
, using various fittings, displays, appliances, original furniture and equipment specially designed or approved by the
Licensor
and are authorized to use the name "Lacoste" and the
Crocodile
as signboards and as service marks for retail services. Among the
Lacoste Boutiques
shall be included, if the economic conditions of the markets in question so permit, certain
Lacoste Boutiques
known as
"global stores"
, of a sufficient size to be organized for the sale on a large scale not only of the
Lacoste Apparel Products
but also of certain
Other Lacoste Products
and/or
Lacoste Watches
.
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1.15
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"
Lacoste Boutiques and Lacoste Corners" Selective Distribution System
" shall mean the group of
Lacoste Boutiques
and
Lacoste Corners
organized by
Devanlay
in accordance with the specific guidelines of the
Licensor
and which comply with specific criteria with respect to client service, merchandising, presentation, advertising, promotion and respect of the
Lacoste Trademarks Image
.
The
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
is distinct from the
Lacoste Watches Selective Distribution System
and from the "
"Approved Apparel Retailers" Selective Distribution System
"
(as such term is hereinafter defined), as well as from each of the selective distribution systems existing for each of the
Other Lacoste Products
.
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1.16
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"
Lacoste Brand Site(s)
" shall mean the
single brand name website, authorized by the
Licensor
to use the
"Lacoste"
trade name and to sell the
Lacoste Apparel Products
, the
Other Lacoste Products
and
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the
Lacoste Watches
, which has been or may be set up in each country of the
Territory.
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1.17
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"
Lacoste Corners
" shall mean the locations in certain shops of high standing which are devoted exclusively to the sale of the
Lacoste Apparel Products
and, subject to the provisions of Article 7.2 hereinafter, of certain
Lacoste Watches
and/or
Other Lacoste Products
, using various fittings, displays, appliances, original furniture and equipment specially designed or approved by the
Licensor
and are authorized to use the name "Lacoste" and the
Crocodile
as signboards and as service marks for retail services.
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1.18
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"
Lacoste Trademarks
" shall mean any or all trademarks relating to the name "Lacoste" and/or the
Crocodile
owned by the
Licensor,
the principal representations of which are appended hereto as Schedule I.
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1.19
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"
Lacoste Trademarks Image
" shall mean the presently existing identification in the principal markets where the
Lacoste Apparel Products
, the
Other Lacoste Products
and the
Lacoste Watches
are distributed, between the
Lacoste Trademarks
and good taste, authenticity, quality, functionality, modernity, elegance, high-end sports and leisure, however at competitive quality/price ratios. The
Lacoste Trademarks Image
shall be judged in relation to all the elements making up the perception by the consumer of the
Lacoste Watches
as to their style, quality, price, marketing and merchandising, advertising and promotion.
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1.20
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"
Lacoste Watches"
shall mean the watches and time-keeping devices belonging to class 14 of the
Classification Internationale des Produits et des Services
(as listed in Schedule IV) as well as any accessory thereto (straps, cases, etc.), packaging and wrapping bearing the
Licensed Trademarks,
manufactured and marketed by the
Master Licensee
itself and/or under its control and responsibility under the terms of this
Master Agreement
.
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1.21
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"
Lacoste Watches Selective Distribution System
" shall mean the group of
Approved Watches Retailers
organized by the
Master Licensee
in the
Territory
in accordance with the specific guidelines of the
Licensor
to sell the
Lacoste Watches
through one or more
brick and mortar point(s) of sale and/or online shop(s), while respecting the specific criteria in the area of client service, merchandising, presentation, advertising, promotion and respect of the
Lacoste Trademarks Image
.
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1.22
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"
LCA
" shall mean
Lacoste Alligator S.A.,
a Swiss corporation organized and existing under the laws of Switzerland whose registered office and principal place of business is located at 6, rue Cornavin, CP 1880, 1211 Geneva 1 (Switzerland), acting on its behalf and on behalf of the companies controlled by
Lacoste Alligator S.A.
with the exception
of
Lacoste
and
SPL.
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1.23
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"
Licensed Trademarks
" shall mean the
Lacoste Trademarks
the right to use of which is granted by the
Licensor
to the
Master Licensee
in the
Territory
as will be specified by the
Licensor
on a country by country basis according to the provisions of Article 12.1 hereinafter in connection with the creation, development,
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manufacture, distribution, marketing, merchandising, advertising, promotion and sale of the
Lacoste Watches
.
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1.24
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"
Licensor
" shall mean
Lacoste
,
SPL
and
LCA
taken all three together or (as the case may be) any one of them.
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1.25
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"
Main Countries
" shall mean *
in the
Territory
.
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1.26
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"
Marketing and Merchandising Know-how
" shall mean all accumulated expertise, which is implemented world-wide by the
Licensor
, concerning the distribution of the
Lacoste Apparel Products
, the
Lacoste Other Products
and the
Lacoste Watches
according to the
Lacoste Trademarks Image
including the level of quality and the techniques of such distribution (
i.e.
, the selection, training, supervision, etc. of the retailers), all of which know-how is regularly updated and improved as a result of the
Licensor
's research, and which know-how is owned by or originated from the
Licensor
and is made available to the
Master Licensee
and to other
Licensor
's licensees through the
Licensor
and which the
Licensor
is not otherwise obliged to hold in confidence.
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1.27
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"
Master Agreement
" shall mean the present license agreement.
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1.28
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"
Master Licensee
" shall mean
MGI Luxury Group, S.A.
, a company organized and existing under the laws of Switzerland whose registered office and principal place of business is located at 2B Place de la Gare, CH-2501, Bienne (Switzerland), acting on its behalf and on behalf of the entities controlling, controlled by
MGI Luxury Group, S.A.
or under common control with
MGI Luxury Group, S.A.
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1.29
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"
Models
" shall mean any and all creations specific to the
Lacoste Watches
, or part thereof, already in existence at the time of execution of this
Master Agreement
or which shall be developed during its life by the
Licensor
and/or the
Master Licensee
and/or any
Sub-Licensee
alone or in co-operation with one another, it being understood however that certain elements of the
Models
may, in certain circumstances, belong either to third parties, or, in the case of elements previously used by
Master
Licensee
, to
Master
Licensee
.
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1.30
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"
Net Sales
" shall mean the actual invoiced
price for sales in the
Territory
of all
Lacoste Watches
(whether sold at regular prices or at reduced prices, such as end-of-season prices, provided that such reduced prices shall not include any reduction which is otherwise not permitted pursuant to this Article) by the
Master Licensee
, its
Sub-Licensees
or its
Distributors,
to
Approved Watches Retailers
, to
Off-Price Retailers
(if not already taken into account for the calculation of
Sales to Distributors
, as such term is hereinafter defined)
,
and to members of the "
Lacoste Boutiques and Lacoste Corners" Selective Distribution System
, as well as the sales covered in the last two paragraphs of this Article
1.30
, less returns, rebates, bad debts, trade discounts, shipping charges, insurance effectively paid by the
Master Licensee
, its
Sub-Licensees
or its
Distributors,
on deliveries made by the
Master Licensee
, its
Sub-
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CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
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Licensees
or its
Distributors
, and such sales taxes as are imposed on the
Master Licensee
, its
Sub-Licensees
or its
Distributors
by any governmental authority.
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For the purposes of this
Master Agreement,
rebates
and trade discounts shall
mean
exclusively those rebates and discounts which may be deducted from gross sales for the determination of net sales according to the accounting rules of the
French
Plan Comptable Général.
Without prejudice to the generality of the preceding sentence
,
no deduction
whatsoever
may be made
at any time
for any price reduction or credit given or
to be given or
payment
made or to be
made by
the
Master Licensee
, its
Sub-Licensees
or its
Distributors
in compensation
or otherwise as consideration
for any service or product received by
the
Master Licensee
, its
Sub-Licensees
or its
Distributors
, such as (but not limited to) the contribution(s) to be paid under the terms of Article
7.2.6
hereinafter, or any marketing, merchandising
,
advertising
or promotion
contribution paid (in form of any price reduction or credit given or
to be given or
payment
made or to be
made or in any other form) by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
(including, but not limited to, any such contribution paid in connection with the sale of
Lacoste Watches
on the
Lacoste Brand Sites
).
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Whenever
Net Sales
cannot be determined by the
Master Licensee
for any reason, or if the
Master Licensee
at its sole discretion decides that it prefers to refer to
Sales to Distributors
, and whenever the determination of
Net Sales
is necessary for the application of any of the terms of this
Master
Agreement
,
Net Sales
shall then be calculated on the basis of the corresponding
Sales to Distributors
multiplied by one point five (1.5).
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With regard to sales in the
Territory
of all
Lacoste Watches
to or through the
Lacoste Brand Sites
,
Net Sales
for each reference of the
Lacoste Watches
shall be calculated on the basis of the unit volume of such reference of the
Lacoste Watches
sold to or through such
Lacoste Brand Sites
multiplied by the relevant arms-length, average price of such products charged by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
to
Approved Watches Retailers
or members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
(or, whenever such average price cannot be determined, multiplied by one point five (1.5) times the relevant arms-length, average price of such products charged by the
Master Licensee,
its
Sub-Licensees
or its
Sub-Contractors
to
Distributors)
in the relevant country, less returns, rebates
(in compliance with the above-mentioned provision)
,
bad debts, trade discounts
(in compliance with the above-mentioned provision)
,
shipping charges (in compliance with the above-mentioned provision)
and insurance (in compliance with the above-mentioned provision)
on deliveries made by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
, and such sales taxes as are imposed on the
Master Licensee
, its
Sub-Licensees
or its
Distributors
by any governmental authority.
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With regard to direct sales by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
to consumers through their own retail outlets, including through
their own duly approved online shops
,
Net Sales
, for each reference of the
Lacoste Watches
shall be calculated on the basis of the unit volume of such reference of the
Lacoste
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Watches
sold through such outlets multiplied by the appropriate arms-length, average wholesale prices of such products charged in such country by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
to their
Approved Watches Retailers
, less returns, rebates (in compliance with the above-mentioned provision), bad debts, trade discounts (in compliance with the above-mentioned provision), shipping charges (in compliance with the above-mentioned provision), and insurance (in compliance with the above-mentioned provision) on deliveries made by the
Master Licensee
, its
Sub-Licensees
or its
Distributors,
and such sales taxes as are imposed on the
Master Licensee
, its
Sub-Licensees
or its
Distributors
by any
governmental authority.
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1.31
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"
Off-Price Retailers
" shall mean the stores in the
Territory
operated by third parties, which stores have been approved by the
Licensor
for the ongoing disposal of end-of-season
Lacoste Watches,
Seconds
and, as the case may be, of certain
Other Lacoste Products.
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1.32
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"
Other Lacoste Products
" shall mean the products listed in Schedule
VI
bearing the
Lacoste Trademarks
. For the avoidance of doubt, the
Other Lacoste Products
shall include neither the
Lacoste Apparel Products
nor the
Lacoste Watches
.
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1.33
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"
Presentation Surface
" shall mean, within the
Sales Surface
of each
Lacoste Boutique
or
Lacoste Corner
, the total surface actually dedicated to the presentation and the sale of products on the furniture (fixed to the walls or free-standing) or displays, determined according to the rules specified in Schedule XII.
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1.34
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"
Promotion and Advertising Know-how
" shall mean all accumulated expertise which is implemented world-wide by the
Licensor
in maintaining a high quality promotion and advertising policy for the
Lacoste Trademarks Image
, the
Lacoste Apparel Products
, the
Other Lacoste Products
and the
Lacoste Watches
through selected and controlled channels, all of which know-how is regularly updated and improved as a result of the
Licensor
's research, and which know-how is owned by or originated from the
Licensor
and is made available to the
Master Licensee
and to other
Licensor
's licensees through the
Licensor
and which the
Licensor
is not otherwise obliged to hold in confidence.
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1.35
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"
Quarter
" shall mean any three-month period ending on March 31, June 30, September 30 or December 31 of each year.
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1.36
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"
Sales Surface
" shall mean, within the
Commercial Surface
of each
Lacoste Boutique
or
Lacoste Corner
, that surface of the floor used for the presentation and the sale of products on the furniture (fixed to the walls or free-standing) or displays, excluding any area used for customers traffic in the point of sale and excluding the shop-windows.
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1.37
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"
Sales to Distributors
" shall mean the actual invoiced price in the
Territory
of all
Lacoste Watches
(whether made at regular prices or at reduced prices, such as end-of-season prices, in compliance with the provisions of Article
1.30
hereinabove) sold by the
Master Licensee
, its
Sub-Licensees
or its
Sub-Contractors
to
Distributors,
less returns, rebates (in compliance with the provisions of Article
1.30
hereinabove), bad debts, trade discounts (in compliance
|
|
|
with the provisions of Article
1.30
hereinabove), shipping charges and insurance (in compliance with the provisions of Article 1.30
hereinabove) on deliveries made by the
Master Licensee
to
Distributors,
and
such sales taxes as are imposed on the
Master Licensee
, its
Sub-Licensees
or its
Sub-Contractors
by any governmental authority.
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|
1.38
|
"
Seconds
" shall consist of
Lacoste Watches
containing minor defects affecting the appearance, but not the operation of the watches.
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|
1.39
|
"
SPL
" shall mean
Sporloisirs S.A.,
a Swiss corporation organized and existing under the laws of Switzerland whose registered office and principal place of business is located at 6, rue Cornavin, CP 1880, 1211 Geneva 1 (Switzerland), acting on its behalf and on behalf of the companies controlled by
Sporloisirs S.A.
with the exception
of
Lacoste
and
LCA.
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|
1.40
|
"
Styling Know-how
" shall mean all accumulated elements of product research implemented by the
Licensor
for the
Lacoste Apparel Products
, the
Lacoste Other Products
and the
Lacoste Watches
, according to the
Lacoste Trademarks Image
and more precisely materials, colors, designs and specifications, all of which know-how is regularly updated and improved as a result of the
Licensor
's research, and which know-how is owned by or originated from the
Licensor
and is made available to the
Master Licensee
and to other
Licensor
's licensees through the
Licensor
and which the
Licensor
is not otherwise obliged to hold in confidence.
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|
1.41
|
"
Sub-Contracting Agreement
" shall mean an agreement entered into by and between the
Master Licensee
and a
Sub-Contractor
in execution of the undertakings of the
Master Licensee
under the terms of Article 5.2.1 hereinafter.
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|
1.42
|
"
Sub-Contractor
" shall mean any entity selected by the
Master Licensee
for the manufacture (but not the distribution) of certain
Lacoste Watches
.
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|
1.43
|
"
Sub-License Agreement
" shall mean an agreement entered into by and between the
Master Licensee
and a
Sub-Licensee
in execution of the undertakings of the
Master Licensee
under the terms of Article 2.2.3 hereinafter.
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|
1.44
|
"
Sub-Licensee
" shall mean any entity selected by the
Master Licensee
and approved by the
Licensor
for the manufacture and distribution of certain
Lacoste Watches
in certain countries.
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|
1.45
|
"
Supplemental Agreement
" shall mean an agreement entered into by and between the
Licensor
, the
Master Licensee
and a
Sub-Licensee
or a
Distributor
in execution of the undertakings of the
Master Licensee
under the terms of Articles 2.2.4 and 2.3.4 hereinafter.
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|
1.46
|
"
Supplier
" shall mean any entity selected by the
Master Licensee
or a
Sub-Licensee
or a
Sub-Contractor
for the manufacture of components, packaging, merchandising, advertising or promotional items, furniture and/or any element of any kind bearing or representing the
Licensed Trademarks
to be used for or in connection with the
Lacoste Watches
.
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|
1.47
|
"
Supply Agreement
" shall mean an agreement entered into by and between the
Master Licensee
or a
Sub-Licensee
or a
Sub-Contractor
and a
Supplier
in execution of the undertakings of the
Master Licensee
under the terms of Article 5.3.1 hereinafter.
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|
1.48
|
"
Territory
" shall mean the whole world.
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|
1.49
|
"
Watches Know-how
" shall mean all accumulated world-wide expertise of the
Master Licensee
concerning the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of watches and time-keeping devices at a high quality level and according to selected and controlled techniques
and fixtures designed to facilitate the distribution of watches (including, but not limited to, the design of display materials and showcases)
, which know-how is regularly updated and improved by the
Master Licensee
and is owned by or originated from the
Master Licensee
and is made available to the
Licensor
and to other
Licensor
's licensees through the
Licensor
and which the
Master Licensee
is not otherwise obliged to hold in confidence.
|
ARTICLE 2 - RIGHTS GRANTED
|
2.1
|
The
Licensor
hereby grants to the
Master Licensee
, and the
Master Licensee
hereby accepts such grant, the exclusive right and license to use the
Licensed Trademarks
, including in particular the name "Lacoste" and the
Crocodile
, the
Models
, the
Styling Know-how
, the
Marketing and Merchandising Know-how
and the
Promotion and Advertising Know-how
in connection with the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of the
Lacoste Watches
in the
Territory
.
|
For the avoidance of doubt, the
Licensor
hereby confirms that, for the duration of this
Agreement
and subject only to the specific provisions of this
Agreement
, it shall not grant to any party other than the
Master Licensee
any rights in connection with the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of watches or time-keeping devices bearing the
Lacoste Trademarks
.
|
2.2
|
The
Master Licensee
may sub-license the rights granted to it pursuant to Article 2.1 hereinabove to
Sub-Licensees
designated by it under the following conditions:
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|
2.2.1
|
The
Sub-Licensees
selected by the
Master Licensee
shall have to comply with the following criteria:
|
|
a)
|
a proposed
Sub-Licensee
shall have to prove to the
Master
Licensee
and, if requested, the
Licensor
, an adequate and appropriate technical, commercial ability; and
|
|
|
b)
|
a proposed
Sub-Licensee
shall have to demonstrate to the
Master
Licensee
and, if requested, the
Licensor,
a healthy financial situation in proportion with its forecasted activities with respect to the
Lacoste Watches
; and
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|
|
c)
|
a proposed
Sub-Licensee
shall have to clearly establish the identity of its financing sources, which must be in line with the
Lacoste Trademarks Image
; and
|
|
|
d)
|
a proposed
Sub-Licensee
or any of its shareholders holding in excess of ten percent of the voting power in such proposed
Sub-Licensee
, senior managers or executives shall not be in any way involved in the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of products in competition with the
Lacoste Apparel Products
, the
Other Lacoste Products
or the
Lacoste Watches
except if the
Sub-Licensee
can justify an independent structure exclusively dedicated to the
Lacoste Watches
; and
|
|
|
e)
|
a proposed
Sub-Licensee
, any of its shareholders holding in excess of ten percent of the voting power in such proposed
Sub-Licensee
or senior managers or executives are not or never have been involved in any way in acts of counterfeiting, imitation or unfair competition nor convicted of any other type of criminal activity (excluding misdemeanors).
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|
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2.2.2
|
The
Master Licensee
shall submit to the
Licensor
a detailed file concerning each of the proposed
Sub-Licensees
including
inter alia
the necessary information allowing the
Licensor
to check the
Sub-Licensee
's conformity with the criteria defined in Article 2.2.1 hereinabove. The
Licensor
shall have a thirty day (30) period to agree to or refuse in writing the proposed
Sub-Licensee
on the grounds of the criteria defined in Article 2.2.1 hereinabove. The
Licensor
shall not unreasonably withhold its approval, and shall be deemed to have given its approval if it has not notified the
Master
Licensee
of any objection within thirty (30) days of receipt of the
Master Licensee
's proposals.
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|
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2.2.3
|
The
Master Licensee
shall enter with its
Sub-Licensees
into written
Sub-License Agreements
which shall conform to a general model previously approved in writing by the
Licensor
, and shall include the main provisions relating to the
Licensor
's intellectual property rights and to the
Lacoste Trademarks Image
and, in addition to the rights and obligations which the
Master Licensee
wishes to sub-license, all obligations that the
Master Licensee
would otherwise have had to fulfill with respect to the rights sub-licensed to the
Sub-Licensee
and that the
Sub-Licensee
shall have to undertake to carry out (
inter alia
the obligation imposed on the
Master Licensee
under Articles
3 to 8, 12 and 14
hereinafter). The
Master Licensee
shall deliver to the
Licensor
a copy of each
Sub-License Agreement
as soon as practicable after it has been signed. The
Master Licensee
agrees that the
Licensor
may request from the
Master Licensee
that it takes action against a
Sub-Licensee
(including claims for damages in favour of the
Licensor
, injunctions and any other appropriate remedies) and/or terminates forthwith a
Sub-License Agreement
in case of breach by such
Sub-Licensee
of any of its essential
|
obligations under such
Sub-License Agreement
which also constitutes a breach of the
Master Licensee'
s obligations hereunder that is not cured by such
Sub-Licensee
within thirty (30) days after receiving notice of such breach; and
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|
2.2.4
|
In each case where the
Master Licensee
desires to enter into a
Sub-License Agreement
with any
Sub-Licensee
, the
Master Licensee
shall enter with the
Licensor,
owner of the
Licensed Trademarks,
and with such
Sub-Licensee
into a written
Supplemental Agreement
which shall define, for each country covered by such sub-license, those
Licensed Trademarks
licensed to the
Sub-Licensee
, and include all appropriate terms and conditions concerning the protection of the
Licensed Trademarks
, and, if agreed upon by and between the
Licensor
and the
Master Licensee
, the sales minima as well as all appropriate terms and conditions concerning the payment of the royalties due by the
Master Licensee
to the
Licensor
. Subject to the provisions of Article
2.2.3
hereinabove, the
Master Licensee
agrees that any breach by a
Sub-Licensee
of any of its essential obligations under a
Supplemental Agreement
shall not be the responsibility of or considered as a breach by the
Master Licensee
of any of its essential obligations under this
Master Agreement
, except that the
Master Licensee
hereby undertakes to remain responsible to the
Licensor
for the payment in full and without delay of all amounts due to the
Licensor
by the
Master Licensee'
s
Sub-Licensees
under the terms of Articles 16 and 17 hereinafter.
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2.3
|
The
Master Licensee
may sub-license the right to distribute the
Lacoste Watches
granted to it pursuant to Article 2.1 hereinabove to
Distributors
designated by it under the following conditions:
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|
|
2.3.1
|
The
Distributors
selected by the
Master Licensee
shall have to comply with the following criteria:
|
|
|
a)
|
a proposed
Distributor
shall have to prove to the
Master
Licensee
and, if requested by the
Licensor
, to the
Licensor
an adequate and appropriate technical, commercial ability; and
|
|
|
b)
|
a proposed
Distributor
shall have to demonstrate to the
Master
Licensee
and, if requested by the
Licensor
, to the
Licensor
, a healthy financial situation in proportion with its forecasted activities with respect to the
Lacoste Watches
; and
|
|
|
c)
|
a proposed
Distributor
shall have to clearly establish the identity of its financing sources, which must be in line with the
Lacoste Trademarks Image
; and
|
|
|
d)
|
a proposed
Distributor
or any of its shareholders holding in excess of ten percent of the voting power in such proposed
Distributor
, senior managers or executives shall not be in any way involved in the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of products in competition with the
Lacoste
|
|
|
Apparel Products
or the
Other Lacoste Products
. Whenever possible, the
Distributor
shall put in place an independent structure exclusively dedicated to the
Lacoste Watches
; and
|
|
|
e)
|
a proposed
Distributor
, any of its shareholders holding in excess of ten percent of the voting power in such proposed
Distributor
or senior managers or executives are not or never have been involved in any way in acts of counterfeiting, imitation or unfair competition nor convicted of any other type of criminal activity (excluding misdemeanors).
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|
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2.3.2
|
The
Master Licensee
shall submit to the
Licensor
a detailed file concerning each of the proposed
Distributors
including
inter alia
the necessary information allowing the
Licensor
to check the
Distributor
's conformity with the criteria defined in Article
2.3.1
hereinabove. The
Licensor
shall have a thirty day (30) period to agree to or refuse in writing the proposed
Distributor
on the grounds of the criteria defined in Article
2.3.1
hereinabove. The
Licensor
shall not unreasonably withhold its approval, and shall be deemed to have given its approval if it has not notified the
Master
Licensee
of any objection within thirty (30) days of receipt of the
Master Licensee
's proposals.
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|
|
2.3.3
|
The
Master Licensee
shall enter with its
Distributors
into written
Distribution Agreements
which shall conform in all material respects to a general model previously approved in writing by the
Licensor
, and shall include the main provisions relating to the
Licensor
's intellectual property rights and to the
Lacoste Trademarks Image
and, in addition to the rights and obligations which the
Master Licensee
wishes to sub-license, all obligations that the
Master Licensee
would otherwise have had to fulfill with respect to the rights sub-licensed to the
Distributor
and that the
Distributor
shall have to undertake to carry out (
inter alia
the obligation imposed on the
Master Licensee
under Articles
3
,
6
to
8, 12
and
14
hereinafter). The
Master Licensee
shall deliver to the
Licensor
a copy of each
Distribution Agreement
as soon as practicable after it has been signed. The
Master Licensee
agrees that the
Licensor
may request from the
Master Licensee
that it takes action against a
Distributor
(including claims for damages in favour of the
Licensor
, injunctions and any other appropriate remedies) and/or terminates forthwith a
Distribution Agreement
in case of breach by such
Distributor
of any of its essential obligations under such
Distribution Agreement
which also constitutes a breach of the
Master Licensee'
s obligations hereunder that is not cured by such
Distributor
within thirty (30) days after receiving notice of such breach. In all circumstances, the
Master Licensee
hereby undertakes to remain responsible to the
Licensor
for the payment in full and without delay of all amounts due to the
Licensor
by the
Master Licensee'
s
Distributors
under the terms of Articles
16 and 17
hereinafter.
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|
|
2.3.4
|
In each case where the
Master Licensee
desires to
enter into a
Distribution Agreement
with a
Distributor
, the
Master Licensee
shall enter with the
Licensor,
owner of the
Licensed Trademarks,
and with such
Distributor
into a written
Supplemental Agreement
which shall define, for each country covered by such
Distribution
Agreement
, those
Licensed Trademarks
licensed to the
Distributor
, and include all appropriate terms and conditions concerning the protection of the
Licensed Trademarks
, which
Supplemental
Agreement
shall be in the form attached hereto as Schedule
VIII
. Subject to the provisions of Article
2.3.3
hereinabove, the
Licensor
agrees that any breach by a
Distributor
of any of its essential obligations under a
Supplemental Agreement
shall not be the responsibility of or considered as a breach by the
Master Licensee
of its essential obligations under this
Master Agreement
.
|
|
2.4
|
No rights or licenses are granted by the
Licensor
to the
Master Licensee
, expressly or by implication, except as herein provided.
|
|
|
2.4.1
|
The
Licensor
does not give the
Master Licensee
any guarantee whatsoever with respect to the extent of the rights it holds or will acquire or lose during the entire term of this
Master Agreement
concerning the
Licensed Trademarks
, the
Models
, the
Styling Know-how
, the
Marketing
and
Merchandising Know-how
and the
Promotion and Advertising Know-how
.
|
|
|
2.4.2
|
Notwithstanding the above, the
Licensor
undertakes to, at its exclusive expense, (i) take all necessary steps during the entire term of this
Master Agreement
for the registration and renewal of the
Licensed Trademarks
, (ii) set up and/or maintain the adequate structures for the watch and defense of the
Licensed Trademarks
.
|
|
|
2.4.3
|
The
Licensor
undertakes to vigorously defend the
Licensed Trademarks
and to take all appropriate and necessary anti-counterfeiting actions, subject to the provisions of Article 14.3.5 hereinafter. The
Licensor
shall in this regard only be held to an obligation of means, and not to an obligation of results.
|
ARTICLE 3 - GENERAL BUSINESS POLICIES
|
3.1
|
The
Master Licensee
shall use its best efforts to develop its activities as manufacturer and distributor of the
Lacoste Watches
and shall use the
Models
, the
Styling Know-how
, the
Marketing and Merchandising Know-how
and the
Promotion and Advertising Know-how
in conjunction with its
Watches Know-how
in order to promote the image, sales and distribution of the
Lacoste Watches
in the
Territory
, in conformity with such policies as are prescribed and coordinated world-wide by the
Licensor
for the
Lacoste Trademarks Image
.
|
|
3.2
|
The
Master Licensee
shall cooperate closely in each market with the
Licensor
and with the
Licensor
's other licensees and/or distributors for
Lacoste Apparel Products
and
Other Lacoste Products
so as to give world-wide and in each market an identical and homogeneous
|
|
|
image of the
Lacoste Trademarks
and of all the families of products bearing the
Lacoste Trademarks
and shall keep the
Licensor
informed of its direct contacts with said
Licensor
's other licensees and/or distributors.
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|
3.3
|
The
Master Licensee
shall take all necessary steps to ensure that the
Lacoste Watches
manufactured and distributed by it or by its
Sub-Licensees
or
Distributors
pursuant to this
Master Agreement
are of high quality, and suitable for a clientele that demands the highest standard of merchandise.
|
|
3.4
|
The
Master Licensee
shall take all measures necessary so that the
Lacoste Watches
are sold exclusively through the
Lacoste Watches Selective Distribution System
, through the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System,
through
Factory Outlets
and
Off-Price Retailers,
and through
the
Lacoste Brand Sites
.
|
|
3.5
|
The
Licensor
undertakes to obtain from and to have respected by its licensees for the
Lacoste Apparel Products
and the
Other Lacoste Products
the same commitments.
|
ARTICLE 4 - CREATION, STYLING AND TECHNICAL CO-OPERATION
The
Master Licensee
shall bear the sole responsibility for the creation and the development of the
Lacoste Watches
and shall assume all the corresponding costs and expenses. However, in the scope of the contribution by the
Licensor
of its
Styling Know-how
and by the
Master Licensee
of its
Watches Know-how
, the
Master Licensee
and
the
Licensor
shall co-operate closely in the creation and the development of the
Lacoste Watches
in order, more particularly, to strengthen the
Lacoste Trademarks Image
.
The
Master Licensee
undertakes to study and implement with diligence any evolution of the collections proposed by the
Licensor
and intended to better adapt the
Lacoste Watches
to the evolution of the markets and to consumers' expectations; provided that similar evolutions, to the extent applicable, are required of
Licensor
’s other licensees.
|
4.1
|
Obligations of the
Licensor
|
The
Licensor
shall provide the
Master Licensee
with those components of the
Styling Know-how
that the
Licensor
, in its best opinion, shall consider to be beneficial to the
Master Licensee
in the fulfillment of the purpose of this
Master Agreement
, and shall assist the
Master Licensee
in the use thereof.
|
4.2
|
Approval of product designs
|
|
4.2.1
|
The
Master Licensee
shall submit design proposals for
Lacoste Watches
to the
Licensor
in the following manner:
|
|
|
The
Master Licensee
shall submit to the
Licensor
design drawings for approval. After approval according to this Article 4.2, the
Master Licensee
shall submit to the
Licensor
a pre-production prototype for approval. The
Master Licensee
warrants that final production will conform to approved pre-production prototypes.
|
|
|
Each collection of
Lacoste
Watches
shall consist of a sufficient selection of
Models
so as to constitute a well-balanced line of watches. The
Licensor
shall, with respect to each submission made by the
Master Licensee
for approval, notify the
Master Licensee
in writing without undue delay, and in any event within ten (10) business days, as to whether the
Licensor
approves the submission. Unless the
Licensor
notifies the
Master Licensee
within the specified time period that it disapproves any submission, such submission shall be deemed approved.
|
|
4.2.2
|
In the event the
Licensor
disapproves any submission, the
Licensor
shall furnish the
Master Licensee
with the reasons for rejection and provide the
Master Licensee
with suggestions for modifying the rejected submission. The
Master Licensee
shall, as promptly as practicable, correct the rejected submission, resubmit the relevant material to the
Licensor
and seek the
Licensor
’s approval under the same terms and conditions as set forth above.
|
|
4.3
|
Obligations of the
Master Licensee
|
|
4.3.1
|
The
Master Licensee
shall inform the
Licensor
of the
head of product development who shall have primary responsibility for
the creation of the
Lacoste Watches
whom the
Master Licensee
plans to use. The
Licensor
shall have thirty (30) days to notify the
Master Licensee
that it objects to such individual, but may only do so for serious reasons necessary for the protection of the
Lacoste Trademarks Image
.
|
|
4.3.2
|
In order to enforce the cooperation between the
Licensor
and the
Master Licensee
and/or its
Sub-Licensees
for the creation, the development and the manufacture of the
Lacoste Watches
and to allow the
Licensor
to give the approval provided for in Article 4.2 hereinabove as quickly as possible, coordination meetings shall be organized between the
Licensor
, the
Master Licensee
and/or its
Sub-Licensees
for each collection at the following stages:
|
|
a)
|
definition of the product range after analysis of the sales results and of the needs of the different markets; and
|
|
b)
|
definition of the models contemplated for the different lines of the
Lacoste Watches
; and
|
|
c)
|
study of the prototypes of the models for the different lines of the
Lacoste Watches
as well as of their packaging, displays and point-of-sale equipment, the development and manufacture of which shall be at the
Master Licensee'
s exclusive expense.
|
|
4.3.3
|
The
Master Licensee
shall not manufacture, distribute, advertise, promote or offer for sale any model of the
Lacoste Watches
, nor any display or point-of-sale equipment which has not been presented to the
Licensor
and approved
|
|
|
in writing by the
Licensor
under the same conditions as those provided in Article 4.2 hereinabove.
|
|
4.4
|
Ownership of the
Models
|
|
4.4.1
|
The
Models
shall be and remain in all circumstances during the entire term of this
Master
Agreement
the sole property of the
Licensor
.
|
|
|
4.4.2
|
The
Master Licensee
undertakes to use the
Models
exclusively within the scope of this
Master Agreement
.
|
|
|
4.4.3
|
The
Master Licensee
undertakes to use its best efforts to ensure that the
Models
do not infringe any intellectual property rights of any third party in the fields of authors' rights, copyrights, models, designs and/or patents.
|
|
|
4.4.4
|
The
Licensor
undertakes to take all necessary steps during the entire term of this
Master Agreement
to register in the sole name of the
Licensor
any
Models
which shall be reasonably necessary, as may be determined solely by the
Licensor
, taking into account the commercial potential of such
Models
, to protect such
Models
, as well as to all renewals of such
Models
at their due dates.
|
|
|
4.4.5
|
The
Licensor
shall pay all expenses incurred in connection with the registration and/or the renewal of the
Models
.
|
ARTICLE 5 - MANUFACTURE, QUALITY
|
5.1
|
Obligations of
Master Licensee
|
|
|
5.1.1
|
The
Master Licensee
undertakes to use its
Watches Know-how
and to make all reasonable investments necessary in order to organize an international manufacture and supply network with the capacity of meeting the needs for the
Lacoste Watches
in the
Territory
, and to develop the sales of such in a timely fashion.
|
|
|
5.1.2
|
The
Master Licensee
undertakes that the
Lacoste Watches
as well as their packaging shall always be manufactured with reliable materials, carefully constructed, and clean in detail, and undertakes to take all necessary measures to that effect.
|
|
|
5.1.3
|
The
Master Licensee
shall use all reasonable endeavours to ensure that the highest standard of workmanship is maintained for the manufacture of the
Lacoste Watches
and shall organise appropriate controls in order to avoid the production of any defective goods.
|
In all cases, the
Master Licensee
shall be solely responsible toward the
Licensor
for the quality of the
Lacoste Watches
produced by the
Master Licensee
(or under the control of the
Master Licensee
) by the
Sub-Licensees
or by the
Sub-Contractors
of the
Master Licensee
.
|
|
5.1.4
|
Whenever practicable, the
Master Licensee
shall cause either (a) each
Lacoste Watch
manufactured under this
Master Agreement
or (b) each package unit of
Lacoste Watches
distributed under this
Master Agreement,
as determined by the
Master Licensee
in its sole discretion, to be serialized thereby allowing tracking by the
Master Licensee
if necessary, as such necessity is mutually agreed upon by the
Licensor
and the
Master Licensee
.
|
|
|
5.1.5
|
The
Master Licensee
undertakes to cause its
Sub-Licensees
to make such investments as are required to create and/or maintain the organization for the manufacture of the
Lacoste Watches
in a manner that allows such
Sub-Licensees
to fulfill the undertakings of Articles 5.1.1 to 5.1.4 hereinabove.
|
|
5.2
|
Sub-Contractors
|
|
|
5.2.1
|
The
Master Licensee
(and its
Sub-Licensees
) shall have the right to have
Lacoste Watches
entirely manufactured by
Sub-Contractors
designated by it, provided however the
Master Licensee
i) has previously informed the
Licensor
of their name and the precise location of their manufacturing units ii) has entered with its
Sub-Contractors
into written
Sub-Contracting Agreements
which shall conform in all material respects to a general model previously approved in writing by the
Licensor
, and shall include, in addition to the rights and obligations which the
Master Licensee
wishes to grant, all obligations the
Master Licensee
would otherwise have had to fulfill with respect to the rights granted to the
Sub-Contractor
as well as the undertaking by the
Sub-Contractors
not to manufacture for third parties any watches substantially identical to the
Lacoste Watches
manufactured by the
Sub-Contractor
.
|
The
Sub-Contractors
shall have to undertake to sell the
Lacoste Watches
they have manufactured exclusively to the
Master Licensee,
its
Sub-Licensees
or its
Distributors
,
and the
Master Licensee
, its
Sub-Licensees
and its
Distributors
undertake irrevocably before the
Licensor
to buy from the
Sub
-
Contractors
all the
Lacoste Watches
manufactured by the
Sub-Contractors
, and to have destroyed at their expense any and all defective
Lacoste Watches
manufactured by the
Sub-Contractors
.
|
|
5.2.2
|
The
Master Licensee
shall deliver to the
Licensor
a copy of each
Sub-Contracting Agreement
as soon as practicable after it has been signed. The
Master Licensee
agrees that
Licensor
may request from
Master Licensee
that it takes action against a
Sub-Contractor
(including claims for damages in favour of
Licensor
, injunctions and any other appropriate remedies) and/or terminates forthwith a
Sub-Contracting Agreement
in case of breach by such
Sub-Contractor
of any of its essential obligations under such
Sub-Contracting Agreement
which also constitutes a breach of the
Master Licensee'
s obligations hereunder that is not
|
|
|
cured by such
Sub-Contractor
within thirty (30) days after receiving notice of such breach.
|
|
5.3
|
Suppliers
|
|
|
5.3.1
|
The
Master Licensee
, its
Sub-Licensees
and the
Sub-Contractors
shall have the right to have certain components, packaging, advertising and promotional items, furniture and/or any element of any kind bearing or representing the
Licensed Trademarks
to be used for or in connection with the
Lacoste Watches
manufactured by
Suppliers
designated by it, provided however the
Master Licensee
, its
Sub-licensees
and/or the
Sub-Contractors
have entered with their
Suppliers
into written
Supply Agreements
which shall conform in all material respects to a general model previously approved in writing by the
Licensor
, and shall include, in addition to the rights and obligations which the
Master Licensee
or the
Sub-Licensees
and/or the
Sub-Contractors
wish to grant, all obligations the
Master Licensee
or the
Sub-Licensees
and/or the
Sub-Contractors
would otherwise have had to fulfill with respect to the rights granted to the
Suppliers.
|
|
|
5.3.2
|
The
Master Licensee
shall deliver to the
Licensor
a copy of each
Supply Agreement
as soon as practicable after it has been signed. The
Master Licensee
agrees that
Licensor
may request from
Master Licensee
that it takes action or that it causes the appropriate
Sub-Contractor
to take action against a
Supplier
(including claims for damages in favour of
Licensor
, injunctions and any other appropriate remedies) and/or terminates forthwith a
Supply Agreement
in case of breach by such
Supplier
of any of its essential obligations under such
Supply Agreement
which also constitutes a breach of the
Master Licensee'
s obligations hereunder that is not cured by such
Supplier
within thirty (30) days after receiving notice of such breach.
|
|
5.4
|
Visits and control
|
|
|
5.4.1
|
The
Master Licensee
, upon request of the
Licensor
, shall authorize or have the
Licensor
authorized to visit, in the presence of representatives designated by the
Master Licensee
, any premises in which the
Lacoste Watches
or parts thereof or any items bearing or representing the
Licensed Trademarks
are manufactured by the
Master Licensee
, or by any one of its
Sub-Licensees
and/or
Sub-Contractors
and/or
Suppliers
.
|
|
|
5.4.2
|
The
Master Licensee
undertakes to authorize or have the
Licensor
authorized to make or have made any necessary and/or appropriate control at any stage of the manufacture of the
Lacoste Watches
or part thereof or of any item bearing or representing the
Licensed Trademarks
by the
Master Licensee
, or by any of its
Sub-Licensees
and/or
Sub-Contractors
and/or
Suppliers
in order to ascertain that the quality of the
Lacoste Watches
and of their components and of the items bearing or representing the
Licensed Trademarks
conforms to the provisions of this
Master
|
|
|
Agreement
and
inter alia
with the provisions of Articles
3.3 and 5.1.2
hereinabove.
|
|
5.5
|
Ethical Charter
|
|
|
5.5.1
|
The
Master Licensee
undertakes (a) to comply with and to ensure that its
Sub-Licensees
,
Distributors
,
Sub-Contractors
and
Suppliers
comply at all times with the relevant provisions of any treaty, law or regulation in relation to the protection of human rights and in particular childhood, salaries, duration and condition of workmanship, and with the relevant provisions of any treaty, law or regulation in relation to the protection of the environment, (b) to take all necessary and appropriate measures to immediately bring an end to any violation of such provisions, and (c) to guarantee and indemnify the
Licensor
and its assignees and successors from any claims, known or unknown, liabilities, demands, damages, causes of action, costs, expenses, dues, covenants, suits, indemnities, judgments which any third party hereafter can, shall or may have in connection with or arising out of any alleged violation by the
Master
Licensee
, any
Sub-Licensee
,
Distributor
,
Sub-Contractor
or
Supplier
of any such provision.
|
|
|
5.5.2
|
The
Master Licensee
undertakes to comply with and to ensure that its
Sub-Licensees
,
Sub-Contractors
and
Suppliers
comply at all times with the
Licensor
’s
Code of conduct
attached hereto as Schedule IX, throughout the entire product lifecycle (product development, manufacturing, transportation, etc.), as well as regarding all promotional, marketing and communication tools (packaging, POS materials, etc.) related to the
Lacoste Watches
. All
Sub-Licensees
,
Sub-Contractors
and
Suppliers
shall sign the
Licensor
’
Code of conduct.
|
T
he
Master Licensee
shall make its best efforts so that its
Sub-Licensees
,
Sub-Contractors
and
Suppliers
hold valid WRAP certifications (or similar internationally recognized certifications). If, in spite of such best efforts, some of the
Sub-Licensees
,
Sub-Contractors
or
Suppliers
would not hold the above-mentioned certifications, such
Sub-Licensees
,
Sub-Contractors
or
Suppliers
would at least need to demonstrate compliance with such certifications.
|
|
5.5.3
|
The
Master Licensee
shall ensure that the provisions of this Article
5.5
are included in each
Sub-Licensing Agreement
,
Sub-Contracting Agreement
and
Supply
Agreement
, and that the provisions of Article
5.5.1
are included in each
Distribution Agreement
.
|
ARTICLE 6 - MARKETING AND MERCHANDISING
|
6.1
|
Obligations of the
Licensor
|
|
|
The
Licensor
shall assist the
Master Licensee
in the marketing, merchandising, the distribution and sale of the
Lacoste Watches
in
|
the
Territory
by providing the
Master Licensee
with its
Marketing and Merchandising Know-how
and through frequent visits and contacts among their respective personnel. To this effect, and in particular
to maintain the homogeneity of the
Lacoste Trademarks Image
, the
Licensor
shall:
|
|
6.1.1
|
regularly advise the
Master Licensee
of its requirements within the field of marketing and merchandising, such as specifications concerning the presentation of the
Lacoste Watches
in the shop-windows or inside shops, the point-of-sales advertising materials, etc., that the
Master
Licensee
shall have to implement within the
Territory;
and
|
|
|
6.1.2
|
carry out, in cooperation with the
Master Licensee
, all appropriate studies relating to the fitting, decoration and architecture of the points-of-sale and to the creation of the furniture and other elements to be used in connection with the sale of the
Lacoste Watches
by the
Approved Watches Retailers
.
|
|
|
|
The costs related to such studies shall be equally shared between the
Master Licensee
and the
Licensor
; and
|
|
|
6.1.3
|
authorize the
Master Licensee
to have manufactured by
Suppliers
, under the terms provided in Article 5.3 hereinabove, the specific furniture and display units intended to be used in connection with the sale of the
Lacoste Watches
. Said
Suppliers
shall have to strictly conform to the blueprints and recommendations of the
Licensor
with respect to the shapes, designs, quality and specifications imposed on by the
Licensor
for said furniture and display units; and
|
|
|
6.1.4
|
give the
Master Licensee
complete access to any and all market surveys, statistics, reports and information it may have (which it is not obliged, vis-à-vis third parties, to hold in confidence) regarding the
Lacoste Trademarks Image
and the market position of the
Lacoste Watches
among competitors, retail customers and consumers; and
|
|
|
6.1.5
|
at
Master Licensee
's request, assist the
Master Licensee
in the selection of any outside consultant as may be necessary and help the
Master Licensee
with the interpretation of the reports prepared by such consultants; and
|
|
6.2
|
Obligations of the
Master Licensee
|
The
Master Licensee
shall take all necessary measures to promote the distribution and sale of the
Lacoste Watches
within the
Territory
by conforming to such policies as are prescribed and coordinated world-wide by the
Licensor
for the
Lacoste Trademarks
and by using the
Marketing and Merchandising Know-how
provided by the
Licensor
together with its own resources. To this effect, the
Master Licensee
shall (or shall procure that its
Sub-Licensees
or its
Distributors
shall):
|
|
6.2.1
|
make such investments as are reasonably necessary to create and/or to maintain the organization necessary for the
|
|
|
|
distribution, marketing, merchandising, promotion and advertising of the
Lacoste Watches
in a manner that may be reasonably deemed satisfactory by the parties hereto. Such organization shall either be dedicated exclusively to the
Lacoste Watches
, or, wherever an exclusive organization cannot be set up or appointed, the
Master Licensee
shall see to it that the distribution, marketing and merchandising, promotion and advertising of the
Lacoste Watches
be done so as to avoid any risk of confusion by the retail trade or the consumers with other brands offered by the
Master Licensee
,
its
Sub-Licensees
or its
Distributors;
and
|
|
|
6.2.2
|
designate one of its senior managers as the principal correspondent with the
Master Licensee
on all business matters pertaining to this
Master Agreement
; and
|
|
|
6.2.3
|
provide the
Licensor,
once a year on the occasion of the provision of the
Three-Year Plan
(as defined in Article 6.2.4 hereinafter)
,
with an estimate of the sales (i) in units of the collection presently being delivered as well as of the immediately following collection itemized, for each of the lines of
Lacoste Watches
, by category of
Lacoste Watches
(as defined in Schedule IV), and (ii) by country, with a comparison with the sales of the comparable collections during the two (2) prior years; and
|
|
|
6.2.4
|
provide the
Licensor,
once a year, at the latest on May 15
th
, with its estimated
Net Sales,
Sales to Distributors
and
Factory Outlets Sales
by country in units and in turnover for the following three (3) calendar years itemized, for each of the lines of
Lacoste Watches
, by category of
Lacoste Watches
(as defined in Schedule IV) and by type of points of sale (as defined in Schedule VII) (hereinafter the "
Three-Year Plan
"); and shall update these estimates for the first calendar year of this
Three-Year Plan
:
|
|
|
-
|
A first time four (4) months later (at the latest on September 15
th
of the year of provision of the
Three-Year Plan
),
|
|
|
-
|
a second time ten (10) months later (at the latest on March 15
th
of the relevant calendar year),
|
|
|
-
|
a third time twelve (12) months later (at the latest on May 15
th
of the relevant calendar year),
|
|
|
-
|
a fourth time sixteen (16) months later (at the latest on September 15
th
of the relevant calendar year),
|
|
|
-
|
and a fifth time nineteen (19) months later (at the latest on December 15
th
of the relevant calendar year),
|
each time taking into consideration the actual
Net Sales
,
Sales to Distributors
and
Factory Outlets Sales
of the elapsed
Quarter(s)
and adding the estimated
Net Sales
,
Sales to Distributors
and
Factory Outlets Sales
, with any
necessary revisions as the case may be, for the
Quarter(s)
to come; and
|
6.2.5
|
provide the
Licensor
with:
|
|
|
a)
|
the relevant calendar year’s actual
Net Sales
,
Sales to Distributors
and
Factory Outlets Sales
by country, in units and in turnover, at the latest on February 15
th
of the following calendar year; and
|
|
|
b)
|
the relevant calendar year’s actual
Net Sales
,
Sales to Distributors
and
Factory Outlets Sales
by country, in units and in turnover, itemized, for each of the lines of
Lacoste Watches
, by category of
Lacoste Watches
(as defined in Schedule IV) and by type of points of sale (as defined in Schedule VII), at the latest on May 15
th
of the following calendar year; and
|
|
6.2.6
|
provide the
Licensor
once a year on the occasion of the provision of the
Three-Year Plan
(as defined in Article 6.2.4 hereinabove)
,
with a list of all the points of sale of the
Lacoste Watches,
itemized by type of point of sale (as defined in Schedule VII); and
|
|
6.2.7
|
in a general manner :
|
|
|
a)
|
invite the
Licensor
's personnel to attend (at
Licensor
's expense) all commercial meetings and to participate in all commercial trips concerning
Lacoste
Watches
that the
Licensor
may wish in order to enable the
Licensor
to fulfill its role in particular with respect to the co-ordination of the marketing, merchandising, advertising and promotion of the
Lacoste Trademarks Image;
and
|
|
|
b)
|
give the
Licensor
complete access to any and all market surveys, reports and information it may have (which it is not obliged to third parties to hold in confidence) regarding the market position of the
Lacoste Watches
among competitors, retail customers and consumers in the
Territory
; and
|
|
|
c)
|
use reasonable efforts to reply to any request from the
Licensor
concerning additional details or statistics regarding
Lacoste Watches
based on sales; and
|
|
|
d)
|
in the interests of both parties, enable
Licensor
's personnel (at
Licensor
's expense) to carry out their role of assistance to and consultation with the
Master Licensee
and supply them with such help and information as may be reasonably available for the accomplishment of their role and, in particular, provide all available information and surveys reasonably necessary for the analysis of the retail outlets sales activity so as to permit the
Licensor
to better define the conditions and the trends of the market; and
|
|
|
e)
|
ensure that the members of the
Lacoste Watches Selective Distribution System
implement and conform to the marketing and merchandising policy agreed with the
Licensor
; and
|
|
|
f)
|
ensure that the
Approved Watches Retailers
conform to the specifications concerning the fittings, the decoration and architecture of the points-of-sale and use the furniture and other elements developed jointly by the
Licensor
and the
Master Licensee
according to the provisions of Article 6.1.2 hereinabove to be used in connection with the sale of the
Lacoste Watches
; and
|
|
|
g)
|
in the best interest of the
Lacoste Trademarks Image,
use its best efforts so that the members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
(and in particular the "global stores") which meet the criteria set out in Article 7.1.1 hereinafter be supplied whenever possible with the
Lacoste Watches
.
|
ARTICLE 7 - DISTRIBUTION AND SALES
The
Master Licensee
shall carry out the distribution of the
Lacoste Watches
in the
Territory
exclusively through:
|
a)
|
the members of the
Lacoste Watches Selective Distribution System
, previously selected in each country of the
Territory
and to which, whenever possible, it shall be contractually linked, through
Factory Outlets
and through
Off-Price Retailers
; and
|
|
b)
|
the members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
, subject to the terms and conditions set forth in Article 7.2 hereinafter; and
|
|
c)
|
the
Lacoste Brand Sites.
|
|
7.1
|
Approved Watches Retailers
|
So as to provide the consumer with the best service, to ensure the homogeneity of the high quality of the distribution of the
Lacoste Watches
throughout the world and to guarantee their authenticity, the
Master Licensee
shall select, and require its
Sub-Licensees
and
Distributors
to select
Approved Watches Retailers
on the basis of the following objective criteria as regards both quality and techniques, and shall use reasonable commercial efforts to establish with them, and require its
Sub-Licensees
and
Distributors
to establish with them, whenever possible, a contractual relationship including the terms and conditions set forth in the form of the
Lacoste Watches Approved Retailer Contract
annexed hereto as Schedule X, and/or the
Approved Lacoste Watches Internet Retailer Contract
annexed hereto as Schedule XI.
The
Master Licensee
acknowledges and agrees that each point of sale, either brick-and-mortar or online, contemplated by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
for the sale of
Lacoste Watches
shall be selected and approved as per the provisions
of this Article
7.1
, irrelevant of the fact that such point of sale is operated by a retailer already operating approved brick-and-mortar and/or online points of sale.
|
A)
|
Selection / approval of brick-and-mortar points of sale
|
|
|
7.1.1
|
Conditions of approval
|
The
Master Licensee
shall select, and shall cause its
Sub-Licensees
and
Distributors
to select, as
Approved Watches Retailers
from among retailers operating a brick-and-mortar point of sale exclusively those which meet the standards of performance as set forth in the
Lacoste Watches General Conditions of Distribution
annexed to the
Lacoste Watches Approved Retailer Contract,
for the following criteria:
|
|
a)
|
the location and environment of the point of sale (type and category of the building, location in the town in question, type of shops in the neighborhood, sales area of the shop, quality of the frontage, length of the shop window); and
|
|
|
b)
|
its fittings (quality of the shop sign, window-dressing, quality of the furnishings and lighting); and
|
|
|
c)
|
the type, brand and nature of the products sold in the point of sale; and
|
|
|
d)
|
the qualification of the personnel; and
|
|
|
e)
|
the financial capabilities and solvency guarantees.
|
|
|
7.1.2
|
Approval of the brick-and-mortar points of sale
|
|
|
For every potential point of sale, (excluding the points of sales already approved by the
Licensor
and currently operated by
Approved Watches Retailers
as of the effective date of this
Master Agreement
) the
Master Licensee
shall submit or cause to be submitted to the
Licensor
, for approval, a copy of a completed application, that shall include a filled-in evaluation form evidencing that the potential point of sale is satisfying the objective criteria set forth under Article
7.1.1
. The
Licensor
shall have ten (10) business days to approve in writing a potential point of sale based upon the objective criteria set forth under Article
7.1.1
hereinabove and the
Licensor
shall not unreasonably withhold, delay or condition its approval, and shall be deemed to have given its approval if the
Licensor
does not notify the
Master Licensee
that it disapproves of such proposed point of sale with ten (10) business days of receipt of the completed application.
|
The
Licensor
reserves the right to verify that every point of sale operated by an
Approved Watches Retailer
continues to conform to the criteria set forth in Article
7.1.1
.
|
|
7.1.3
|
Duties of the
Approved Watches Retailers
with respect to the operation of brick-and-mortar points of sale
|
In addition to the obligations usually undertaken by retailers, the
Master Licensee
shall ensure that the agreements between itself and the
Approved Watches Retailers
with respect to the operation of
brick-and-mortar points of sale expressly provide that the
Approved Watches Retailers
agree that:
|
|
a)
|
the standing of the point of sale and its environment remain at all times compatible with the
Lacoste Trademarks Image
, as established and coordinated by the
Licensor
; and
|
|
|
b)
|
the sales area in the store is always sufficient to permit the presentation of the
Lacoste Watches
in a sufficient shopping space without disproportion with the other brands offered for sale and allowing to distinguish them; and
|
|
|
c)
|
each point of sale always contains an adequate range of the
Lacoste Watches
; and
|
|
|
d)
|
the sales personnel of each point of sale is always well qualified and trained in presenting and selling the
Lacoste Watches
; and
|
|
|
e)
|
unless prohibited by applicable law, e.g., in the United States of America, no generalized discount sales policy is applied; and
|
|
|
f)
|
no misleading advertising is made; and
|
|
|
g)
|
the counters, posters, demonstration and other advertising material are displayed in a prominent position in each store and set up with the
Master Licensee
's approval; and
|
|
|
h)
|
any notice provided by the
Licensor
, as the case may be, stating "
Approved Watches Lacoste Retailer
" (or any similar expression) is displayed in a prominent position in the window or near the
Lacoste
Watches
display area.
|
B)
Selection / approval of online shops
The
Licensor
is desirous to protect in the
Territory
the
Lacoste Trademarks Image
, the
Models
, the
Lacoste Watches
as well as the
Lacoste Apparel Products
and the
Other Lacoste Products
sold under the
Licensed Trademarks
. The
Licensor
also desires to protect the consumer from counterfeits and desires to offer the consumer an appropriate environment and a high quality service. The above-mentioned objectives are achieved in particular through the implementation and maintenance of the various selective distribution systems of the
Licensor
.
Therefore, the sale of
Lacoste Watches
on the Internet may only be made so as to allow the presentation of the
Lacoste Watches
and the
Lacoste Trademark Image
in a qualitative environment, and is only authorized in the following cases and provided that the following conditions are strictly complied with.
|
|
7.1.4
|
Conditions of approval
|
The
Master Licensee
shall pre-select, and shall cause its
Sub-Licensees
and
Distributors
to pre-select, as
Approved Watches Retailers
from among retailers operating an online shop exclusively those which meet the standards of performance as set forth in the
Lacoste Watches Internet General Conditions of Distribution
annexed to the
Approved Lacoste Watches Internet Retailer Contract
. In particular, the following conditions shall have to be met:
|
|
a)
|
the name, the environment, the presentation and the general standing of the website as well as the way it functions shall be compatible with the
Lacoste Trademarks Image
; and
|
|
|
b)
|
the website shall offer to consumers a high quality service for the
Lacoste Watches
; and
|
|
|
c)
|
the manner in which the
Models
and the
Licensed Trademarks
are presented on the website in connection with the advertising and/or the sale of the
Lacoste Watches
shall be submitted to
Licensor
for
Licensor
's written approval.
|
The
Approved Watches Retailers
may use the services of any outside supplier of their choice to assist them in the design, the placing online, the marketing, the logistics or any other service in relation with the operation of the relevant online shops.
The
Approved Watches Retailers
may not include or use any of the
Lacoste Trademarks
in a domain name or an e-mail address.
|
|
7.1.5
|
Approval of the online shops
|
The online shops on which the
Lacoste Watches
are to be sold shall be:
|
|
a)
|
pre-selected by the
Master Licensee
on the basis of the selection criteria as set forth in the
Lacoste Watches Internet General Conditions of Distribution
annexed to the
Approved Lacoste Watches Internet Retailer Contract
, and
|
|
|
b)
|
submitted to the approval of the
Licensor
by the
Master Licensee
before any
Lacoste Watches
are sold through said online shops.
|
So as to allow the
Licensor
to grant or deny its prior approval of the websites efficiently, the
Master Licensee
shall provide the
Licensor
with the following information:
|
|
a)
|
domain name of the website / URL address, and
|
|
|
b)
|
graphic chart, general appearance, design and ergonomics of the website, and
|
|
|
c)
|
(in the event the website is being created) mock-up of the website.
|
|
|
The
Licensor
shall have a fifteen (15) day period to approve or reject in writing the proposed website from the date of receipt of a complete request for approval, provided that the reasons for any refusal shall also be given in writing. The lack of written rejection by the
Licensor
shall be deemed to constitute an approval. The
Licensor
may reconsider any authorization given in case there is any change in the environment, presentation or general standing of the website approved which is likely to adversely affect the prestige of the
Lacoste Trademarks Image
.
|
Insofar as the necessary approvals shall have been given, the
Master Licensee
shall use reasonable commercial efforts to establish with the relevant
Approved Watches Retailers
, or require its
Sub-Licensees
and
Distributors
to establish with them, whenever possible, a contractual relationship in the form of the
Approved Lacoste Watches Internet Retailer Contract
annexed hereto as Schedule
XI
.
|
|
7.1.6
|
Duties of the
Approved Watches Retailers
with respect to the operation of online shops
|
In addition to the obligations usually undertaken by retailers, the
Master Licensee
shall ensure that the agreements between itself or its
Distributors
and the
Approved Watches Retailers
with respect to the operation of online shops expressly provide that the
Approved Watches Retailers
agree that:
|
|
a)
|
the standing of the online shop remains at all times compatible with the
Lacoste Trademarks Image
, as established and coordinated by the
Licensor
; and
|
|
|
b)
|
the
Lacoste Watches
presented on the online shop must be clearly separated from products that by their proximity may disparage the image of the
Lacoste Trademarks
and/or of the
Lacoste Watches
; and
|
|
|
c)
|
the online shop offers for sale an adequate and representative range of the
Lacoste Watches
; and
|
|
|
d)
|
the staff responsible for providing potential buyers with information and advice regarding the
Lacoste Watches
is always well qualified and trained in presenting and selling the
Lacoste Watches
; and
|
|
|
e)
|
unless prohibited by applicable law, e.g., in the United States of America, no generalized discount sales policy is applied; and
|
|
|
f)
|
all advertising and promotional actions of the
Approved Watches Retailers
concerning the
Lacoste Watches
are in line with the prestige and image of the
Lacoste Trademarks
, and no misleading advertising is made; and
|
|
|
g)
|
a mention stating that the
Approved Watches Retailer
is an "
Approved Watches Lacoste Retailer
" (or any similar expression) and that the online shop has been approved for the sale of
Lacoste Watches
, is displayed in a prominent position on the online shop’s homepage or on the pages where the
Lacoste Watches
are offered for sale.
|
|
|
h)
|
the online shop offers conditions of delivery and return of the
Lacoste Watches
in line with those offered for internet sales of products of high repute, and, in any event, at least equivalent to the minimal requirements of applicable regulations.
|
|
|
i)
|
the
Approved Watches Retailer
always complies with applicable regulations with regard to secure online payment and data protection.
|
|
|
7.1.7
|
Online sales’ reporting
|
To the extent that the
Master Licensee
has obtained such information, it shall provide the
Licensor
upon the
Licensor
’s request with true and accurate quarterly or half-yearly statements of the sales (in quantity and value) of
Lacoste
Watches
made by each of the approved online shops. In any event, the
Master Licensee
agrees to provide the
Licensor
with any relevant information the
Master Licensee
would receive with respect to the sales of
Lacoste
Watches
made by the approved online shops.
The
Licensor
and the
Master Licensee
shall regularly review together the evolutions in the field of internet sales on the main markets from a commercial, technological and legal point of view, and shall review the possibility of amending, completing or changing the terms of this Article 7.1.B).
C)
Provisions applicable to offline and online sale of
Lacoste Watches
|
|
7.1.8
|
The
Master Licensee
shall ensure that all elements bearing or representing the
Licensed Trademarks
(such as awnings, pennants, etc.) used by the
Approved Watches Retailers
on the façade, in the window or inside their shops, or, as the case may be, within online shops, are exclusively those supplied by the
Master Licensee
or, exceptionally those which have received the prior and express written approval of the
Master Licensee
.
|
To this end, a specific provision shall be included in the relevant agreements with the
Approved Watches Retailers
.
|
|
7.1.9
|
The
Master Licensee
shall offer an appropriate warranty on the
Lacoste Watches
of at least one (1) year starting from the date of purchase of such
Lacoste Watches
, and shall put in place and organize an after-sale service of the level appropriate with the
Lacoste Trademarks Image
.
|
|
7.2
|
Special provisions applicable to the members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
|
Nothing contained in this
Master Agreement
, and in particular this Article 7.2 and Articles 1.17 or 1.14, shall be construed as meaning that
Lacoste Watches
shall be offered for sale in each and every
Lacoste Boutique
and
Lacoste Corner
fulfilling the requirements of Article 7.2.1 hereinafter.
|
|
7.2.1
|
Presentation
Surface
of the
Lacoste
Watches
and/or of the
Other
Lacoste
Products
in the
Lacoste
Boutiques
and
Lacoste
Corners
|
|
|
a)
|
So as to make sure that at the same time the
Lacoste Boutiques
and
Lacoste Corners
remain principally devoted to the sale of
Lacoste Apparel Products
and only on a subordinate basis of the
Lacoste Watches
and/or of the
Other Lacoste Products
and to allow the development of the
Lacoste Watches
together with the
Other Lacoste Products
, the
Lacoste Boutiques
with a
Commercial Surface
exceeding 50m² and the
Lacoste Corners
with a
Commercial Surface
exceeding 40m² shall be authorized to sell the
Lacoste Watches
and all the categories of the
Other Lacoste Products
that they wish to sell.
Devanlay
shall reserve for the
Lacoste Watches
together with the
Other Lacoste Products
in each of these
Lacoste Boutiques
and in each of these
Lacoste Corners
at least ten percent (10%) and at most twenty percent (20%) of the
Presentation Surface
of such
Lacoste Boutique
or
Lacoste Corner
.
|
For the
Lacoste Boutiques
with a
Commercial Surface
exceeding 150m², the
Presentation Surface
reserved for the
Lacoste Watches
together with the
Other Lacoste Products
shall be at least fifteen percent (15%) but at most twenty percent (20%) of the
Presentation Surface
of such
Lacoste Boutique
.
Devanlay
or the relevant
Lacoste Apparel Products
Distributor
shall decide with the owner of each
Lacoste Boutique
and of each
Lacoste Corner
, within the limits fixed above, the percentage of the
Presentation Surface
reserved for the
Lacoste Watches
and for the
Other Lacoste Products
.
Devanlay,
or the relevant
Lacoste Apparel Products Distributor,
shall decide with the owner of each
Lacoste Boutique
and of each
Lacoste Corner
the manner in which the space reserved for the
Lacoste Watches
and for the
Other Lacoste Products
shall be allocated.
The owner of each
Lacoste Boutique
and of each
Lacoste Corner
shall comply scrupulously and in all respects with the instructions of
Devanlay
, or of the relevant
Lacoste Apparel Products Distributor,
concerning
the merchandising of the
Lacoste Watches
and of the
Other Lacoste Products
in
the
Lacoste Boutiques
and in the
Lacoste Corners.
Within this framework, the owners of the
Lacoste Boutiques
and of the
Lacoste Corners
are free to decide if they want to present
Lacoste Watches
in their points of sale and to choose the categories of
Other Lacoste Products
which they wish to present in their points of sale.
|
|
b)
|
Provided that they have been authorized beforehand and in writing by
Devanlay
, the
Lacoste Boutiques
with a
Commercial Surface
smaller than or equal to 50m² and the
Lacoste
Corners
with a
Commercial Surface
smaller than or equal to 40m² may sell certain
Lacoste Watches
and/or
Other Lacoste Products
in the same conditions as those provided for by the present
Agreement
. Given the size of these points of sale, the parties agree that no reservation of a minimum
Presentation Surface
shall apply to them.
|
|
|
7.2.2
|
Selection of the collections of the
Lacoste
Watches
for the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
|
The presence of the
Lacoste Watches
together with the
Other Lacoste Products
alongside the
Lacoste Apparel Products
in the
Lacoste Boutiques
and in the
Lacoste Corners
is desirable in the interest of the
Lacoste Trademarks Image
and of the development of the "lifestyle" image of the Lacoste brand. The purpose is to define for each
Lacoste
Boutique
and for each
Lacoste Corner
a well-balanced solution, preserving both the
Lacoste Trademarks Image
and the interests of the
Lacoste Apparel
Products
, the
Other Lacoste Products
and the
Lacoste Watches
.
|
|
a)
|
The collections of the
Lacoste Watches
for the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
shall be selected in each country among the worldwide collections approved by the
Licensor,
by mutual agreement between each of the distributors of the
Lacoste Watches
and the
Lacoste Apparel Products Distributor
in such country.
|
The selection of the collections of the
Lacoste Watches
means the determination, by territory, on the one hand, of the product ranges (choice of models among those existing) of the
Lacoste Watches
collections, among which the owner of the point of sale shall be free to choose when placing his orders and, on the other hand, of the total number of references/color of
Lacoste Watches
and of
Other Lacoste Products
which may be commercialized during a season in each category of point of sale according to its size and its lay-out. The determination of the product ranges shall be such as to offer the owners of the points of sale the
opportunity to exercise their choice among collections having, for the
Lacoste Watches
and for each category of
Other Lacoste Products
, a reasonable representativeness.
|
|
b)
|
Subject to the terms of paragraph a) hereinabove, such selection shall be made taking into account :
|
-
the availability of the collections of the
Lacoste Watches
in such country, and
-
the commercial interest that the
Lacoste Watches
may offer to the
Lacoste Boutiques
and the
Lacoste Corners
, and
-
the purchasing behavior and habits of such country, and
-
the periodicity appropriate to the
Lacoste Watches
.
|
c)
|
The collections of the
Lacoste Watches
chosen for the "
Lacoste Boutiques
and
Lacoste Corners" Selective Distribution System
in each country shall be updated with the appropriate periodicity (season, year) following the rules specified in paragraphs
a) and b)
hereinabove.
|
|
|
d)
|
In the event of a disagreement between a distributor of
Lacoste Watches
and a
Lacoste Apparel Products Distributor
about the selection of collections of
Lacoste Watches
for the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
in a given country, the
Licensor
and
Devanlay
shall make their best efforts to find together a well-balanced solution which preserves together the
Lacoste Trademarks Image
, the development of the "lifestyle" image of the Lacoste brand and the interests of the
Lacoste Apparel Products
and of the
Lacoste Watches
. The final decision shall rest with
Devanlay
.
|
|
|
e)
|
Once the ranges of the
Lacoste Watches
and of the
Other Lacoste Products
and the total number of references/color of the
Lacoste Watches
and/or of the
Other Lacoste Products
have been selected, the owners of the
Lacoste Boutiques
and of the
Lacoste Corners
will be free to decide, within this framework, the quantities of
Lacoste Watches
and/or of
Other Lacoste
Products
to be ordered.
|
|
|
7.2.3
|
Supply of the
"Lacoste Boutiques
and
Lacoste Corners" Selective Distribution System
by the distributors of the
Lacoste Watches
|
|
|
a)
|
The distributors of the
Lacoste Watches
shall present the collections selected by country directly to the
Lacoste Boutiques
and to the
Lacoste Corners
, which shall place their orders and repeat orders directly with them according to their specificities (size, location, customers). In each territory, the distributors of the
Lacoste Watches
shall transmit electronically to the
Lacoste Apparel Products Distributor
concerned a copy of each order placed by the
Lacoste Boutiques
and the
Lacoste
Corners
located in such territory. These orders shall be sent to the
Lacoste
|
Apparel
Products Distributor
upon receipt by the distributors of the
Lacoste Watches
, and shall specify the anticipated delivery dates. Upon receipt of the copies of the orders and within 10 days at most, the
Lacoste Apparel
Products Distributors
may contact the concerned distributor(s) of the
Lacoste Watches
if, after examining the orders, it appears that the selection of the collection for a specific point of sale does not comply with the terms of Article 7.2.2. hereinabove. In such an event, the
Lacoste Apparel Products
Distributor
shall have the right to request the distributor(s) of the
Lacoste Watches
concerned not to accept these orders insofar as they do not conform with the pre-agreed terms relating to the selection of ranges of
Lacoste Watches
set forth in Article
7.2.2
hereinabove. The distributors of the
Lacoste Watches
undertake to act in accordance with the request of the
Lacoste Apparel Products Distributor
. In the absence of reaction from the
Lacoste Apparel Products Distributor
within 10 days following the receipt of the copies of the orders for the beginning of the season, such orders may be implemented as such. Notwithstanding the foregoing, repeat orders may be delivered by the distributor of the
Lacoste Watches
as soon as they are received.
|
|
b)
|
The
Lacoste Boutiques
and the
Lacoste Corners
shall be supplied and invoiced directly by the distributors of the
Lacoste Watches
.
|
|
|
c)
|
The distributors of the
Lacoste Watches
for each country shall send each semester to the
Lacoste Apparel Products Distributor
a detailed recapitulative statement of the invoices of
Lacoste Watches
sent to each
Lacoste Boutiques
and
Lacoste Corner
. Copies of these statements shall be sent simultaneously to the
Licensor
, to
Devanlay
and to the
Master Licensee
.
|
|
|
d)
|
In the event of a violation by a
Lacoste Boutique
or a
Lacoste Corner
of the limits of the
Presentation Surface
established for the
Lacoste Watches
together with the
Other Lacoste Products
in the point of sale or of the selection of the collections of the
Lacoste Watches
and of the
Other Lacoste Products
intended to be commercialized in this point of sale, or of the maximum number of references/color of
Lacoste Watches
and/or of
Other Lacoste Products
which may be commercialized in such
Lacoste Boutique
or
Lacoste Corner
, or in the event that the purchasing turnover of
Lacoste Apparel Products
during a semester is less than eighty percent (80%) of the total purchasing turnover of the relevant
Lacoste Boutique
or
Lacoste Corner
during the same period,
Devanlay
, or the
Lacoste Apparel Products Distributor
concerned, shall be entitled on a first instance to issue a warning to the relevant
Lacoste Boutique
or
Lacoste Corner
and, if any of these occurrences should be repeated, to forbid such point of sale to commercialize
Lacoste Watches
and
Other Lacoste Products
during at least one season.
|
The
Licensor
and the
Master Licensee
shall be informed of such measures taken by
Devanlay
. The
Master Licensee
undertakes to comply with these measures by suspending all orders and deliveries to such point of sale.
|
|
7.2.4
|
Selective Distribution Systems
|
|
|
a)
|
The
Master Licensee
acknowledges that the
Lacoste Boutiques
and the
Lacoste Corners
are points of sale with specific characteristics resulting
inter alia
from the fact that all the products sold in these premises bear the
Lacoste Trademarks
, as well as from the fact that these points of sale are principally devoted to the sale of
Lacoste Apparel Products
and only on a subordinate basis of
Lacoste Watches
together with
Other Lacoste Products
, contrary to the members of the
"Approved Apparel Retailers" Selective Distribution System
who can sell products of different brands and who are devoted to the sale of the
Lacoste Apparel Products
, unless they are selected as approved retailers for
Lacoste Watches
and/or
Other Lacoste Products
.
Therefore, the
Lacoste Boutiques
and the
Lacoste Corners
constitute together the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
organized by
Devanlay
which is distinct from the
"Approved Apparel Retailers" Selective Distribution System
comprising the approved
retailers for the
Lacoste Apparel Products
.
The
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
is also distinct from the
Lacoste Watches Selective Distribution System
organized by the
Master Licensee
.
|
|
|
b)
|
The
Master Licensee
therefore undertakes, in its own name and in the name of its
Sub-Licensees
and its
Distributors
, to take all appropriate measures to ensure the integrity of the
Lacoste Watches Selective Distribution System
, the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
and the
"Approved Apparel Retailers" Selective Distribution System
.
|
|
|
7.2.5
|
Assistance of
Devanlay
and/or of the
Lacoste Apparel Products Distributors
to the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
in connection with the
Lacoste Watches
and/or the
Other Lacoste Products
|
In connection with the
Lacoste Watches
and/or the
Other Lacoste Products
that will be offered in the
"Lacoste Boutiques
and
Lacoste Corners" Selective Distribution System
under the terms of this Article
7.2
,
Devanlay
and/or the
Lacoste Apparel Products Distributors
have agreed that:
|
|
a)
|
in the field of merchandising, they shall :
|
|
-
|
ensure the coherence of the merchandising for the
Lacoste Apparel Products
, the
Lacoste Watches
and/or the
Other Lacoste Products
, and
|
|
-
|
present in a suitable fashion the
Lacoste Watches
following the rules contained in the merchandising guide (called the "Green Book") and its seasonal editions developed by
Devanlay
, which shall be updated by the
Licensor
and
Devanlay
and approved by the
Licensor
, and
|
|
-
|
present completely, in particular in the shop-windows, the lines of
Lacoste Apparel Products
,
Lacoste Watches
together with
Other Lacoste Products
, so as to express fully the Lacoste "way-of-life", and
|
|
-
|
use their best efforts to include the
Lacoste Watches
together with the
Other Lacoste Products
in their local or national advertising and promotion campaigns.
|
|
|
b)
|
in the field of reporting, they shall :
|
|
|
-
|
do their best efforts to ensure that the
Lacoste Boutiques
progressively put in place IT systems allowing a detailed reporting of their sales of
Lacoste Apparel Products
,
Lacoste Watches
and
Other Lacoste Products
, and
|
|
|
-
|
for those
Lacoste Boutiques
who have not yet put in place, and as long as they have not done so, continue providing the
Licensor
and the
Master Licensee
with reports similar to those available as of March 1, 2004, and
|
|
|
-
|
supply the
Lacoste Boutiques
with such elements as may be necessary for the IT treatment and the reporting of their sales of
Lacoste Watches
, subject to having received the basic data about the
Lacoste Watches
necessary to the operation of such a system from the
Licensor
, who shall have obtained it himself from the
Master Licensee
,
and
|
|
|
-
|
prepare and submit to the
Licensor
and to the
Master Licensee
, for the
Lacoste Boutiques
which have put in place the necessary IT systems and have received the necessary basic data about the
Lacoste Watches
:
|
|
(i)
|
on a monthly basis and under the same conditions and terms as for the sales of the
Lacoste Apparel Products
by the
Lacoste Boutiques
, the information relating to the sales of the
Lacoste Watches
in each
Lacoste Boutique
. This information shall include for each
Lacoste Boutique
the detail of the sales to the consumer of the
Lacoste Watches
, and
|
|
(ii)
|
on a semi-annual basis the information relating to the sales by reference of the
Lacoste Watches
in each of the
Lacoste Boutiques
.
|
|
|
7.2.6
|
Contribution of the
Master Licensee
|
|
|
a)
|
In consideration of the merchandising and reporting services and of the reservation of the
Presentation Surfaces
made for the
Lacoste Watches
by the
Lacoste Apparel Products Distributors
, the
Master Licensee
shall pay, or shall ensure that its
Sub-licensees
and its
Distributors
pay,
each six (6) months, in each country to
Devanlay
, or, if the distribution of the
Lacoste Apparel Products
in this country has been granted to a
Lacoste Apparel Products Distributor
, to such
Lacoste Apparel Products Distributor
, a contribution representing a fixed percentage of * of the purchases of the
Lacoste Watches
made by the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
in such country.
|
In view of the importance of the
Lacoste Boutiques
having a
Commercial Surface
larger than 400m² due to their role as showcases on prime locations and due to their high operations cost, the
Master Licensee
shall pay, or shall ensure that its
Sub-licensees
and its
Distributors
pay, to
Devanlay
, or, if the distribution of the
Lacoste Apparel Products
in this country has been granted to a
Lacoste Apparel Products Distributor
, to such
Lacoste Apparel Products Distributor
, a contribution representing a fixed percentage * mentioned hereinabove, of the purchases of the
Lacoste Watches
by the
Lacoste Boutiques
having a
Commercial
Surface
larger than 400m².
|
|
b)
|
The amount of the contribution of the
Master Licensee
(or of the
Sub-Licensees
or
Distributors,
as the case may be)
shall be determined on the basis of their
Net Sales
to the
Lacoste Boutiques
and the
Lacoste Corners
.
|
|
|
c)
|
These amounts shall be calculated on June 30 and December 31 of each year and the corresponding contribution shall be paid no later than August 31 and February 28 of each year, by the
Master Licensee
or the
Sub-Licensees
or
Distributors
to
Devanlay
, or if in such country the distribution of the
Lacoste Apparel Products
has been granted to a
Lacoste Apparel Products Distributor
, to such
Lacoste Apparel Products Distributor
.
|
|
|
d)
|
If the contribution due by the
Master Licensee
has not been fully paid at the dates specified in paragraph
c)
hereinabove to
Devanlay
(or to the appropriate
Lacoste Apparel Products Distributors
), the
Lacoste Group
shall have the right, thirty (30) days after a notice given by registered mail with certified receipt which will not have been followed by complete payment of all and any due and unpaid contributions, to instruct forthwith the
Master Licensee
to stop any further deliveries of the
Lacoste Watches
to the members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
anywhere in the world, and the
Master Licensee
agrees to forthwith comply with such instructions.
|
|
*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
|
7.2.7
|
Furniture and sales equipment used for the
Lacoste Watches
|
The furniture and other sales equipment used for the
Lacoste Watches
in the
"Lacoste Boutiques
and Lacoste Corners" Selective Distribution System
shall exclusively be those developed by the
Licensor
in cooperation with
Devanlay
and/or the
Master Licensee
.
Devanlay
and the
Lacoste Apparel Products Distributor
shall be the sole entities responsible for the lay-out of the
Lacoste Boutiques
and the
Lacoste Corners
, subject to the terms of this Article
7.2.
|
|
7.2.8
|
End-of-season goods
|
The rules applied by the
Lacoste Boutiques
and the
Lacoste Corners
for the sale of end-of-season goods shall be those applicable to the
Lacoste Apparel Products
, but, to the extent possible, shall also have to follow those applicable to the
Lacoste Watches
.
|
|
7.2.9
|
Specific agreements
|
In the event that specific agreements, departing from the provisions set forth hereinabove in Articles
7.2.1 to 7.2.8
are concluded either between
Devanlay
and the
Master Licensee
, or between a distributor of
Lacoste Watches
and the
Lacoste Apparel Products Distributor
in a given territory, the terms of such specific agreements shall prevail over the provisions set forth hereinabove in Articles
7.2.1 to 7.2.8
. The
Master Licensee
shall promptly inform the
Licensor
of any such specific agreement.
|
|
7.2.10
|
Breach of the obligations of the
Master Licensee
under the provisions set forth in Articles
7.2.1 to 7.2.9
|
The
Master
Licensee
acknowledges that in the event of a breach in one or several countries in the
Territory
by the
Master
Licensee
or by a
Sub-Licensee
or a
Distributor
of their obligations under the provisions set forth hereinabove in Articles
7.2.1 to 7.2.9
, the
Licensor
has undertaken towards
Devanlay
and the
Lacoste Apparel Products Distributors
to use its best efforts to obtain from the
Master
Licensee
or from its
Sub-Licensee
or
Distributor
that it remedies such breach. The
Master
Licensee
further acknowledges that in the event such efforts remain unsuccessful, the
Licensor
has agreed that
Devanlay
and the
Lacoste Apparel Products Distributors
shall no longer be bound by any of their commitments concerning the presence or the sale of the
Lacoste Watches
in the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
in such country(ies), which the
Master
Licensee
and its
Sub-Licensee
or
Distributor
accept.
|
7.3
|
Factory Outlets
and
Off-Price Retailers
|
The
Master Licensee
shall submit to the
Licensor
its proposal for the opening within the
Territory
of
Factory Outlets
or
Off-Price
Retailers
for the disposal under the best possible conditions of
end-of-season close-outs of
Lacoste Watches
and of
Seconds,
under the conditions and according to the methods set forth hereinafter:
|
|
7.3.1
|
The
Master Licensee
shall submit to the
Licensor,
for prior approval, for each
Factory Outlet
or
Off-Price Retailer
, a detailed application specifying
inter alia
the location of the
Factory Outlet
or
Off-Price Retailer
as well as its size, the number of
Approved Watches Retailers
in the area, and the brand environment, in the point of sale and in the area.
|
|
|
7.3.2
|
The
Licensor
reserves the right to verify that every point of sale selected by the
Master Licensee
as a
Factory Outlet
or an
Off-Price Retailer
conforms to the marketing policy established by the
Licensor
in the
Territory,
based both on the application itself and on the commercial policy (including the selective distribution policy) adopted by the
Licensor
in the
Territory
.
|
The
Master Licensee
shall submit for approval or cause to be submitted for approval to the
Licensor
a copy of the completed application for every potential point of sale. The
Licensor
shall inform the
Master Licensee
of its decision, in writing, within fifteen (15) business days from the date of receipt of the completed application. In the absence of any notification from the
Licensor
within fifteen (15) business days from the date of receipt of the completed application, the proposed point of sale shall be deemed refused.
|
|
7.3.3
|
The
Master Licensee
shall ensure that all precautions are taken in order to avoid confusion in the mind of the consumers between the
Factory Outlets
and the
Off-Price Retailers
on the one hand and the other points of sale for
Lacoste Watches
on the other hand, particularly by using different furniture and display units, and shall ensure that the sales made by the
Factory Outlets
and the
Off-Price Retailers
are not in any way harmful to the
Lacoste Trademarks
Image
.
|
|
|
7.3.4
|
The
Master Licensee
shall send on a monthly basis to the
Licensor
the list of the sales of
Lacoste Watches
as well as, as the case may be, of
Other Lacoste Products
made by each of the
Factory Outlets
in the
Territory
, as well as all other relevant information which may be requested by the
Licensor
, in a form satisfactory for the
Licensor
.
|
|
|
7.3.5
|
Subject to the prior written authorization of the
Licensor
,
the
Master Licensee
shall not object to the sale of the
Other Lacoste Products,
by their respective distributors or licensees in the
Territory,
to the
Factory Outlets
, provided that such
Factory Outlets
are large enough and that the lease permits it, as determined by the
Master Licensee
in cooperation with the
Licensor
.
|
|
7.4
|
Marketing policy
|
|
|
7.4.1
|
The
Master Licensee
undertakes to apply a marketing policy which takes into account the characteristics of the main markets of the
Territory
and the policies practiced on each of these markets for products of comparable quality and commercial standard, so as to preserve the
Lacoste Trademarks Image.
The
Master Licensee
shall use reasonable efforts to assure that such marketing policy is properly applied by any relevant party as long as such party is entitled to market and distribute the
Lacoste Watches
, including, for instance, during notice periods
prior to termination of this
Master Agreement
.
|
|
|
7.4.2
|
The
Master
Licensee
shall be free to fix its wholesale prices to the members of the
Lacoste Watches Selective Distribution System
and the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
so as to facilitate the diffusion of the
Lacoste Watches
and the development of sales within the
Territory
. The
Master Licensee
shall keep the
Licensor
informed on a regular basis of its pricing policy. More specifically, the
Master
Licensee
shall inform the
Licensor
of any modification in its price structure as soon as practicable after such modification.
|
ARTICLE 8 - PROMOTION AND ADVERTISING
|
8.1
|
In order to allow the
Licensor
to coordinate in the
Territory
a promotional and advertising policy for the sale of the
Lacoste Watches
compatible with the prestige of the
Lacoste Trademarks
and of the name Lacoste and which support a satisfactory development of sales, the
Licensor
and the
Master Licensee
agree that:
|
|
|
8.1.1
|
the development of the advertising of the
Lacoste Trademarks Image
shall be made by the
Licensor
at the
Licensor
's costs. The
Licensor
shall draw up twice a year at the latest before November 30 and May 31 of each year the strategy defining the policy to be implemented for the advertising of the
Lacoste Trademarks Image
as well by the
Master Licensee
as by the
Licensor
's other licensees (briefings) and recalling the basic permanent or semi-permanent rules to be followed for said advertising, more particularly with respect to the use of the
Lacoste Trademarks
(Charter); and
|
|
|
8.1.2
|
the development of the advertising for the
Lacoste Watches
shall be made by the
Master Licensee
at the
Master Licensee
's costs, respecting as closely as possible the
Promotion and Advertising Know-how
put at the
Master Licensee
's disposal by the
Licensor
including the
Lacoste Trademarks Image
advertising policy defined by the
Licensor
according to the provisions of Article
8.1.1
hereinabove. The costs relating to the exploitation of the advertising of the
Lacoste Watches
(media buying etc…) shall be borne by the
Master Licensee
, its
Sub-Licensees
and its
Distributors
and shall be deemed to constitute an integral
|
|
|
part of the promotion and advertising budgets defined in Article
8.2.2
hereinafter; and
|
|
|
8.1.3
|
the
Lacoste Trademarks Image
's promotional programs (professional sportsmen, product placement in motion pictures, etc.) shall be :
|
|
|
a)
|
when they have an international impact, developed by the
Licensor
after having consulted the
Master Licensee
. The costs related to these promotional programs shall be equally shared (subject to the provisions of Article
8.5.1
hereinafter) between, on one side, the
Master Licensee
(and, as the case may be, if said programs concern the
Lacoste Apparel Products
and/or the
Other Lacoste Products
, the
Licensor
's licensees and/or distributors for such products) and on the other side, the
Licensor
. The
Master Licensee
’s share of costs shall be deemed to constitute an integral part of the promotion and advertising budgets defined in Article 8.2.2 hereinafter; and
|
|
|
b)
|
when they have essentially a national impact, developed by the
Master Licensee
after having consulted the
Licensor
respecting as closely as possible the
Promotion and Advertising Know-how
put at the
Master Licensee
's disposal by the
Licensor
including the policy defined by the
Licensor
for the promotion of the image of the
Lacoste Trademarks
according to the provisions of Article 8.1.3a) hereinabove. The costs relating to these promotional programs shall be borne exclusively by the
Master Licensee
, its
Sub-Licensees
and
its
Distributors
and shall be deemed to constitute an integral part of the promotion and advertising budgets defined in Article
8.2.2
hereinafter.
|
|
8.2
|
To this effect, the
Master Licensee
:
|
|
8.2.1
|
shall participate (or shall ensure that its
Sub-Licensees
and its
Distributors
participate)
in the coordination meetings organized at least twice a year in each of the
Main Countries
within the
Territory
by the
Licensor
with the other main licensees and/or distributors for the
Lacoste Apparel Products
and
Other Lacoste Products
in order to ensure the consistency of the different promotional and advertising campaigns; and
|
|
8.2.2
|
shall allocate (or procure that its
Sub-Licensees
and its
Distributors
allocate) for the promotional and advertising actions listed in Schedule XIII an annual advertising and promotional budget representing no less than * as declared according to the provisions of Article 6.2.5 hereinabove. At the latest on September 15
th
of each year, the
Master Licensee
shall submit to the
Licensor
its advertising and promotion budget for the following year, detailed by country and itemized as given in Schedule XIII, according to its up-to-date forecasts of
Net Sales
for the concerned year, as well as a description of its main
|
|
*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
promotional and advertising actions or campaigns. This advertising and promotion budget shall be updated on the occasion of the provision to the
Licensor
of the information detailed under Article 6.2.5 hereinabove; and
|
8.2.3
|
shall allocate (or shall procure that its
Sub-Licensees
and its
Distributors
allocate) for the trade marketing actions listed in Schedule XIV an annual trade marketing budget representing no less than * as declared according to the provisions of Article 6.2.5 hereinabove. At the latest on September 15
th
of each year, the
Master Licensee
shall submit to the
Licensor
its trade marketing budget for the following year, detailed by country and itemized as given in Schedule XIV, according to its forecasts of
Net Sales
for the concerned year, as well as a description of its main actions or campaigns. This trade marketing budget shall be updated on the occasion of the provision to the
Licensor
of the information detailed under Article 6.2.5 hereinabove; and
|
|
|
8.2.4
|
shall take all reasonable steps to ensure in particular that not only the
Lacoste
Trademarks Image
, but also the personal reputation of Mr. René Lacoste and his family are safeguarded; and
|
|
|
8.2.5
|
shall use exclusively the lettering, labels and logos created by the
Licensor
when advertising or promoting the "Lacoste" image and the
Lacoste Watches
; and
|
|
|
8.2.6
|
if any apparel or other products of the type comprising the
Lacoste
Apparel
Products
or the
Other
Lacoste
Products
are to be depicted in any advertising or promotional material for
Lacoste
Watches
, shall use in such advertising and promotional material for the
Lacoste Watches
exclusively the
Lacoste Apparel Products
and/or
Other Lacoste Products
or accessories bearing the
Lacoste Trademarks
whenever such exist and are available; and
|
|
|
8.2.7
|
shall consult with the
Licensor
before retaining any promotion, communication or advertising agency for work in relation with the
Lacoste Watches
; and
|
|
|
8.2.8
|
shall in a general manner, consult the
Licensor
when planning its advertising and promotional programs and inform the
Licensor
of the particulars of such programs before they are finalized by its advertising agents, in particular with the purpose of allowing the coordination of these programs with those of the other licensees of the
Licensor
(media plans); and
|
|
|
8.2.9
|
prior to the first use thereof, shall submit to the
Licensor
a copy or a photograph of its advertising or promotional projects (press and TV advertising, catalogues, posters, circulars and in general all publi-promotional material) and/or sales aids such as, in particular, the furniture, the booths for trade shows and the private or public salesrooms intended to facilitate or promote the
|
|
*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
|
|
distribution and sale of the
Lacoste Watches.
The
Licensor
shall have a fifteen (15) day period to notify in writing
Master
Licensee
that it approves or disapproves the content, the form and/or the media used for these projects. Should the
Licensor
not respond within said fifteen (15) days period, it will be deemed to have given its approval; and
|
|
|
8.2.10
|
shall allow the
Licensor
and the
Licensor'
s other licensees to use free of charge for their activities, subject only to the payment of the creative and authors' rights, such advertising and promotional creations and ideas; and
|
|
|
8.2.11
|
shall ensure that the
Approved Watches Retailers
comply with the conditions mentioned in Articles 8.2.4 to 8.2.10 hereinabove and 8.3 hereinafter, should they themselves elect to advertise and promote the sale of the
Lacoste Watches
and in particular, include a special clause in its general sales conditions and/or agreements with such
Approved Watches Retailers
to this effect; and
|
|
8.3
|
Control of advertising and promotional / trade marketing expenses
|
|
8.3.1
|
The
Master Licensee
shall provide the
Licensor
once a year, on the occasion of the provision of the
Three-Year Plan
(as defined in Article 6.2.4 hereinabove), with a report on the amounts spent on advertising and promotion, according to the provisions of Article 8.2.2 hereinabove, and on trade marketing actions, according to the provisions of Article 8.2.3 hereinabove, during the previous calendar year, by country, itemized as provided respectively in Schedules XIII and XIV.
|
|
8.3.2
|
The
Master Licensee
shall keep (and make sure that its
Sub-Licensees
and its
Distributors
keep) available to the
Licensor
, for a minimum period of two (2) years following the provision of the report mentioned in Article 8.3.1 hereinabove, all documents evidencing the expenses of the
Master Licensee
(its
Sub-Licensees
and its
Distributors
) on advertising and promotion and on trade marketing actions.
|
|
|
Sufficient evidence of advertising and promotional actions or trade marketing actions shall include (the following list is not limitative): copies of contracts or invoices evidencing the cost of the relevant actions; pictures, footages, copies of press or internet articles, or samples illustrating the relevant actions.
|
|
8.3.3
|
The
Master Licensee
shall, and shall ensure that its
Sub-Licensees
and its
Distributors,
allow representatives of the
Licensor
, from time to time upon reasonable request, to examine and audit, for any country, such documentation evidencing the expenses of the
Master Licensee
(its
Sub-Licensees
and its
Distributors
) on advertising and promotional actions or trade marketing actions during the past years. Expenses declared by the
Master Licensee
and which are not justified with
the adequate documentation shall not be taken into account by the
Licensor
in its
|
assessment of the
Master Licensee
’s (its
Sub-Licensees’
and its
Distributors’
) expenses on advertising and promotional actions or trade marketing actions.
If, as a result of any audit carried out as per this Article, it appears that actual expenses for advertising and promotional actions and trade marketing actions in any calendar year were less than eighty percent (80%) of the required expenditure for such year, the
Master Licensee
(its
Sub-Licensees
or its
Distributors
) shall bear the cost of such audit.
|
|
8.3.4
|
Should the
Licensor
, either upon review of the yearly report to be provided by the
Master Licensee
according to Article 8.3.1, or on the occasion of an audit of the
Master Licensee
’s (its
Sub-Licensees’
and its
Distributors’
) expenses on advertising and promotional actions or trade marketing actions in any country of the
Territory
, find that the
Master Licensee
(or one of its
Sub-Licensees
or
Distributors
) failed to spent the entirety of the yearly advertising and promotion budget or of the yearly trade marketing budget for a given country, the due balance shall be paid directly to the
Licensor,
which shall use these amounts for the development of the promotional programs mentioned in Article
8.1.3a
)
hereinabove.
|
|
8.4
|
The
Master Licensee
, its
Sub-Licensees
and its
Distributors
shall not, except after having obtained the previous written agreement of the
Licensor
, and in such event according to the
Licensor
's prescriptions, register a domain name including the name "Lacoste" or "Crocodile".
|
The
Master Licensee
, its
Sub-Licensees
and its
Distributors
may be granted visibility on web pages in the sites created by or for the
Licensor
in certain countries of the
Territory
, provided such sites are to be shared among the different
Licensor
's licensees and/or distributors and the content of which shall be provided by the
Master Licensee
, its
Sub-Licensees
and its
Distributors
to the
Licensor
.
The
Master Licensee
, its
Sub-Licensees
and its
Distributors
shall provide the
Licensor
with the necessary information to update said web pages, whenever requested by the
Licensor
.
Should the
Master Licensee
, its
Sub-Licensees
or its
Distributors
wish to include in their own institutional web sites a web page in relation with the
Licensed Trademarks
and the
Lacoste Watches
, or links with the sites of the
Lacoste Group
, the
Master Licensee
, its
Sub-Licensees
and its
Distributors
shall have to submit their plans to the
Licensor
and obtain its prior written approval before going on line. The same procedure shall apply for the updating of said web page.
|
8.5
|
The
Licensor
shall, for its part:
|
|
|
8.5.1
|
continue the promotional and advertising activities that it has carried out for many years throughout the world. It is specified that, should the
Licensor
undertake operation
|
|
|
which are in the world-wide interest of the
Lacoste Trademarks
and which may be used or have direct or indirect repercussions with respect to the distribution of the
Lacoste Watches
or the promotion and advertising of the
Lacoste Trademarks Image
(and in particular either the promotional actions described in Article
8.1.3a)
hereinabove, or the expenses for the advertising of the
Lacoste Trademarks Image
as provided in Article
8.1.1
hereinabove), the
Master Licensee
shall have to contribute financially to such operations, as follows: each year, upon receipt of the report mentioned in Article
6.2.5a)
hereinabove, the
Licensor
shall send to the
Master Licensee
an invoice corresponding to such contribution, which shall amount to * . The
Master Licensee
shall pay such annual contribution in Euros, in full amount without any deduction of any kind, within thirty (30) days from receipt of the
Licensor
’s invoice. Interest calculated at the two months EURIBOR rate plus two percent (2%) shall be due and paid on any amount in arrears up to thirty (30) days and at the two months EURIBOR rate plus five percent (5%) on any amount in arrears over thirty (30) days.
|
The amount spent by the
Master Licensee
for such operations shall be deemed to constitute an integral part of the advertising and promotion budget provided for in Article
8.2.2
hereinabove. If the
Licensor
does not use up such right during any one (1) year, then the amount not used up during such year may not be carried forward in the following year
Should the
Licensor
, on the occasion of an audit performed according to the provisions of Article
17.5
hereinafter, identify that, for any audited year, actual
Net Sales
were exceeding the
Net Sales
figures reported by the
Master Licensee
according to the provisions of Article
6.2.5
, the
Licensor
shall be entitled to claim for the
Master Licensee
’s
payment of the unpaid share of the relevant year’s contribution; and
|
|
8.5.2
|
supply the
Master Licensee
from time to time, at cost price, with any advertising material used by the
Licensor
that the
Master Licensee
may wish to purchase; and
|
|
|
8.5.3
|
use reasonable efforts to keep the
Master Licensee
informed of the actions of its other licensees and distributors in the field of their marketing, merchandising, promotion and advertising programs, for instance at the time of the coordination meetings regularly organized by the
Licensor,
to which the
Master Licensee
shall attend as provided by Article 8.2.1
hereinabove; and
|
|
|
8.5.4
|
ensure that its licensees and distributors for the
Lacoste Apparel Products
and the
Other Lacoste Products
fulfill the same obligations in respect of advertising and promotion as are binding upon the
Master Licensee
as regards to the
Lacoste Watches
pursuant to Article
8.2
hereinabove.
|
|
|
|
|
*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
ARTICLE 9 -
PROVISION OF
LACOSTE WATCHES
TO THE
LICENSOR
The
Master Licensee
shall supply the
Licensor
free of charge two complete lines of
Lacoste Watches
each year during the term of this
Master Agreement
.
The
Lacoste Watches
purchased by the
Licensor
from the
Master Licensee
to be sold or given as gifts for the purpose of marketing or P.R. operations, as well as the other
Lacoste Watches
the
Licensor
may need for its own use shall be invoiced by the
Master Licensee
to the
Licensor
at the same price as the price charged to the entity in charge of the distribution of the
Lacoste Watches
in France.
ARTICLE 10 - END-OF-SEASON GOODS AND
SECONDS
|
10.1
|
End-of-season close-outs of
Lacoste Watches
(
Lacoste Watches
no longer included by
Master Licensee
in the core collection of
Lacoste Watches
) may be sold with the
Licensed Trademarks
by the
Master Licensee
, its
Sub-Licensees
and its
Distributors
exclusively through the normal channels of distribution for the
Lacoste Watches
and through the
Factory Outlets
and the
Off-Price Retailers
.
|
|
10.2
|
Seconds
may be sold with the
Licensed Trademarks
by the
Master Licensee
, its
Sub-Licensees
and its
Distributors
exclusively through
Factory Outlets
and
Off-Price Retailers.
No advertising may be carried out in association with the sale of
Seconds
by the
Factory Outlets
and the
Off-Price Retailers
.
|
|
10.3
|
Damaged or defective
Lacoste Watches
,
i.e.
Lacoste Watches
presenting major defects in their appearance and/or any defects in their operation, which cannot be repaired may in no circumstances be sold in any manner whatsoever, and shall be destroyed at their expense by the
Master Licensee
, its
Sub-Licensees
or its
Distributors
.
|
|
10.4
|
The
Master Licensee
shall supply the
Licensor
, twice a year, during the months of January and July, with a detailed inventory of
Seconds
and end-of-season close-outs of
Lacoste Watches
held by the
Master Licensee
, in a form reasonably satisfactory to the
Licensor
.
|
ARTICLE 11 - UNFAIR COMPETITION
In consideration of the rights hereby granted to the
Master Licensee
under this
Master Agreement
, the
Master Licensee
undertakes:
|
11.1
|
not to reproduce, manufacture, distribute or sell during the term of this
Master Agreement
for its own account or for the account of third parties, directly or indirectly, any product identical with or confusingly similar to the
Lacoste Watches
or likely to create confusion in the mind of the public, or having certain characteristics unique to any
Model
of the
Lacoste Watches
, such undertaking to remain in full force and effect for five (5) years after the
Date of Termination
of this
Master Agreement
; and
|
|
11.2
|
to never manufacture, distribute or sell for its own account or for the account of third parties, directly or indirectly, any product bearing a name, trademark or emblem confusingly similar to the
Lacoste Trademarks
, or likely to be confused with the
Lacoste Trademarks
. This prohibition is permanent.
|
|
11.3
|
to be vigilant and, promptly after it becomes aware of any such opposition, to alert the
Licensor,
about any prior right asserted by any third party in opposition to the development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of the
Lacoste Watches
worldwide.
|
ARTICLE 12 -
LICENSED TRADEMARKS
USE
|
12.1
|
The
Licensor
shall supply the
Master Licensee
with the list of the
Licensed Trademarks
country by country and shall inform the
Master Licensee
of any modification of such list. The
Licensor
undertakes that in each country of the
Territory
at least one (1) representation of the Crocodile and one (1) word-mark including the name "Lacoste" are available for use by the
Master Licensee
. To the knowledge of the
Licensor
, as of the date of this
Master
Agreement
, no claim has been asserted in writing against the
Licensor
or any licensee of
Licensor
alleging that the use of
the
Licensed Trademarks
by the
Licensor
or by any such licensee infringes the intellectual property rights of any third party.
|
|
12.2
|
The
Licensed Trademarks
shall be affixed on the
Lacoste Watches
and the
Master Licensee
shall describe the ownership and right to use the
Licensed Trademarks
only in such form and manner as may be approved from time to time by the
Licensor
. The
Lacoste Watches
shall bear no other name or mark or wording which may or would in the normal course of event lead third parties to believe that the
Licensed Trademarks
are owned by any person, firm or corporation other than the
Licensor
.
|
|
|
Any additional mark or wording required by the laws and regulations in force in certain of the countries of the
Territory
shall have to be submitted to the prior written approval of the
Licensor
, which will have the right to decide of their size or placement whenever possible.
|
|
12.3
|
No representation of the
Licensed Trademarks
or combinations thereof shall be put in use by the
Master Licensee
without the prior written approval of the
Licensor
.
|
|
12.4
|
The
Master Licensee
acknowledges that the representation of the
Licensed Trademarks
has a significant effect upon the public's perception and understanding of the
Lacoste Trademarks Image
, and that changes in such representation need to be few and carefully planned. If the
Licensor
desires to change the form or manner of use of any
Licensed Trademarks
from that previously approved by it, such change shall either take effect after (and as soon as) the
Master Licensee
's components and elements using such
Licensed Trademarks
as previously approved are used up, or shall take effect at once if the
Licensor
agrees to hold the
Master Licensee
harmless against actual losses incurred by the
Master Licensee
as a result of such change.
|
|
|
The
Licensor
shall give notice to the
Master Licensee
of any such change six (6) months at least before its implementation.
|
|
12.5
|
The
Master Licensee
undertakes to never use any pictorial representation of an alligator, crocodile, lizard- or saurian-like reptile on or in connection with products other than the
Lacoste Watches
.
|
|
12.6
|
The
Master Licensee
undertakes to use any word relating to an alligator, crocodile, lizard or saurian-like reptile only on or in connection with the
Lacoste Watches
, or in connection with the description of materials/components of other products manufactured or distributed by the
Master
Licensee
.
|
|
12.7
|
The
Master Licensee
shall always respect good trade practices in the manner and use of the
Licensed Trademarks
and adhere to such reasonable opinion as may be provided from time to time by the
Licensor
's trademark counsels for such use.
|
|
12.8
|
In order to maintain adequate protection for the
Licensed Trademarks
and notwithstanding the exclusivity of the rights granted to the
Master Licensee
, the
Licensor
shall retain the right to sell, directly or indirectly, if the
Master Licensee
for any reason is not able to do so itself, appropriate quantities of
Lacoste Watches
within certain parts of the
Territory
, provided that the
Licensor
shall first provide the
Master Licensee
the opportunity to make any such sales
. The
Licensor
shall keep the
Master Licensee
informed of any such sales, and shall make all reasonable efforts to coordinate its actions in this regard with those of the
Master Licensee
.
|
ARTICLE 13 - PACKAGING AND CASES
|
13.1
|
The packaging, cases, etc. for the
Lacoste Watches
shall be created and developed in the same conditions as the
Lacoste Watches
themselves, as provided in Article 4.3.2 hereinabove. The mock-ups and designs for the packaging, cases, etc. shall be submitted by the
Master Licensee
to the
Licensor
under the same conditions as those provided for the
Lacoste Watches
themselves in Article 4.3.3 hereinabove.
|
|
13.2
|
The
Master Licensee
undertakes to never use neither such packaging, cases, etc., nor any part thereof, for any purpose other than in connection with the
Lacoste Watches
.
|
|
13.3
|
Any packaging, case, etc., bearing or representing the
Licensed Trademarks
to be used in connection with the
Lacoste Watches
shall be purchased exclusively by the
Master Licensee
from
Suppliers
. Appropriate
Supply Agreements
shall be entered into in writing between the
Master Licensee
and such
Suppliers
.
|
|
|
The molds, prints, tools and computer data bearing or representing the
Licensed
Trademarks
or allowing their reproduction shall remain at all times the property of the
Master Licensee
, shall be handled carefully and protected
in order to avoid theft or any unauthorized use of such. The molds, prints, tools and computer data shall be returned to the
Master Licensee
at the end of each of the
Supply Agreements
.
|
|
13.4
|
The
Master Licensee
shall keep detailed accounts showing the flow of the packaging, cases, etc. bearing or representing the
Licensed Trademarks
.
|
|
13.5
|
At regular intervals, the
Master Licensee
shall, as instructed by the
Licensor
, destroy at its own expense all defective packaging, cases, etc. in its possession, and shall inform the
Licensor
of such destruction.
|
ARTICLE 14 -
LACOSTE TRADEMARKS
AND
MODELS
|
14.1
|
The
Master Licensee
undertakes not to use the
Lacoste Trademarks
or the
Models
otherwise than within the scope and the limits of this
Master Agreement
and for the sale of the
Lacoste Watches
.
|
|
14.2
|
The
Master Licensee
hereby acknowledges that the
Licensor
is the sole owner, worldwide, of the
Lacoste Trademarks
and the
Models
.
|
|
14.3
|
The
Master Licensee
undertakes to strictly respect the
Licensor
's intellectual property rights.
|
Consequently, the
Master Licensee
:
|
|
14.3.1
|
shall not apply for registration of any of the
Lacoste Trademarks
nor for the registration of any trademark confusingly similar to, or resembling the
Lacoste Trademarks
anywhere in the world, nor shall it assist any party other than the
Licensor
to do so except with the prior written consent of the
Licensor
, such prohibitions applying to each and every kind of goods or services in any class of the
International Classification of Goods and Services
; and
|
|
|
14.3.2
|
undertakes to facilitate during the term of this
Master Agreement
all applications for the registration of trademarks which the
Licensor
may apply for at
Licensor
’s own expense anywhere in the world to protect the
Lacoste Trademarks
in any class or category of a national or international classification, it being hereby expressly acknowledged by the
Master Licensee
that any such trademark or any other right thus obtained shall be the exclusive property of the
Licensor
; and
|
|
|
14.3.3
|
shall, during the term of this
Master Agreement
, uphold and assist the
Licensor
in maintaining, at the
Licensor
's exclusive expense, adequate trademark registration of the
Licensed Trademarks
within the
Territory
; and
|
|
|
14.3.4
|
shall not apply for the registration of any of the
Models
nor for the registration of any model confusingly similar to the
Models
anywhere in the world, nor shall it assist any party other than the
Licensor
to do so, except jointly with the
Licensor
; and
|
|
|
14.3.5
|
shall be vigilant in watching for any infringement of the
Licensor
's rights in the
Lacoste
Trademarks
or the
Models
,
|
|
|
and shall consequently promptly notify the
Licensor
after becoming aware of the same of any act that may constitute a counterfeit, an usurpation or an imitation of the
Licensed Trademarks
or the
Models
, as well as of any act of unfair competition. The
Licensor
alone shall be responsible for taking action against infringers but the
Master Licensee
shall assist the
Licensor
in every possible way, and shall ensure that its
Sub-Licensees
, its
Distributors
, its
Sub-Contractors
and the
Suppliers
assist it also in every possible way.
|
|
|
The
Master Licensee
shall bear a share of the
Licensor
’s costs relating to the enforcement of the
Licensor
’s intellectual property rights in the
Lacoste Watches
, including related law enforcement trainings, brick and mortar and online monitoring, investigations (i.e. fees and costs of private detectives and bailiffs, test purchases, etc.) reasonably incurred by the
Licensor
. This share shall amount to one-half of:
|
*
Where "E" means the
Licensor
’s overall expenses in the
Territory
relating to the enforcement of the
Licensor
’s intellectual property rights in the
Lacoste Apparel Products
, the
Other Lacoste Products
and the
Lacoste Watches
, and
Where "Y" means the equivalent of
Net Sales
for the
Lacoste Apparel Products
and the
Other Lacoste Products
, as declared by the
Licensor.
|
|
The
Licensor
shall inform the
Master Licensee
annually of the amount corresponding to "E" referred to above for the relevant year. The
Master Licensee
shall be entitled to the same share of the damages that might be awarded as a result of the
Licensor
’s actions relating to the enforcement of the
Licensor
’s intellectual property rights in the
Lacoste Watches.
; and
|
|
|
14.3.6
|
shall defend at its own costs and expenses any action for unfair competition, passing-off, copyright, patent or design infringement, including advertising or other related cause of action arising out of its use of the
Licensed Trademarks
or the
Models
, and
shall give prompt notice in writing to the
Licensor
of any such action. The
Licensor
shall always have the right to participate in such an action at its sole discretion. In this event the expenses of the proceedings as well as any damage arising from such action shall be shared equally. In any event, the
Licensor
shall provide its assistance to the
Master Licensee
in such defense; and
|
|
|
14.3.7
|
shall in no circumstances, and whatever may have been the duration of this
Master Agreement
or the reason for its termination, be entitled to any claim to the ownership of
|
|
|
|
|
*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
|
|
the
Lacoste Trademarks
, or, after the
Date of Termination
, of the
Models
.
|
|
14.4
|
In no circumstances, the
Licensor
may be held liable by the
Master Licensee
for any loss the
Master Licensee
may suffer due to acts of counterfeiting, imitation, usurpation or unfair competition committed by third parties.
|
|
14.5
|
Notwithstanding the foregoing, either party shall have the right to prosecute by law any third party for unfair competition according to its own interest and at its own expense.
|
|
14.6
|
The
Master Licensee
shall use all appropriate efforts to ensure that the
Lacoste Watches
do not infringe third parties intellectual property rights in the field of copyright, models, designs and patents.
|
ARTICLE 15 - CONFIDENTIALITY
|
15.1
|
The
Licensor
and the
Master Licensee
recognize that this
Master
Agreement
and all the terms thereof shall be kept strictly confidential by both parties. Notwithstanding the foregoing, each party shall have the right to disclose the terms hereof (i) to its financial and legal advisors (but only to the extent that such advisors are advised of the confidentiality hereof and agree to be bound by this confidentiality agreement), (ii) pursuant to order or legal process of any court or governmental agency or authority provided that each party shall give prompt written notice to the other party so that appropriate protective relief may be sought and (iii) to the extent disclosure is required by law.
|
|
15.2
|
The
Licensor
and the
Master Licensee
recognize that the information (including the
Styling Know-how
, the
Marketing
and Merchandising Know-how
the
Promotion and Advertising Know-how
and the
Watches Know-how
) they have so far received and shall receive in the future, related directly or indirectly to this
Master Agreement
(a) shall remain the exclusive property of the party which has provided it, (b) shall be kept strictly confidential by both parties, (c) shall only be used within the scope and during the term of this
Master Agreement
by the party which has not provided it, while the party which has provided it may use it freely, either during the entire term of this
Master Agreement
(subject to the terms of Articles
2 a
nd
11
hereinabove) as well as after its expiration or termination for whatever reason, and (d) shall not be revealed to third parties by the party which has not provided it without having obtained the prior written agreement of the party which has provided such information. The information which is already fully in the public domain, received from third parties which are not required to keep it confidential or which one of the parties is required to reveal by virtue of legal or regulatory requirements, shall not be covered by this Article
15.2
.
|
|
15.3
|
However, and as an exception to the provisions of Article
15.2
hereinabove, the
Licensor
may disclose to its affiliate companies, as well as to its other licensees and distributors, the confidential marketing and communication information received from the
Master Licensee
and use such information in the context of its agreements
|
with its other licensees and distributors, to the extent that a) such confidential information offers a direct interest for the development of the "Lacoste" activity of said licensees and distributors and b) does not relate to manufacturing or production costs of the
Master Licensee
for the
Lacoste Watches
.
|
15.4
|
The
Licensor
and the
Master Licensee
undertake to have third parties (such as advertising agencies, marketing research offices, etc.) to whom they may have recourse sign commitments according to which they shall undertake to never reveal to any party the confidential information of any nature whatsoever which shall have been given to them by the
Licensor
or the
Master Licensee
in the framework of the services required or which they shall have learned by chance, as well as to never use for the benefit of third parties or to transmit to said third parties the creations or studies carried out for the benefit of the
Licensor
or the
Master Licensee
, except with the prior written approval of
the
Licensor
and of the
Master Licensee
.
|
|
15.5
|
The provisions contained in this Article
15
shall remain in force even after the termination of this
Master Agreement
for a period of ten (10) years after said termination.
|
ARTICLE 16 - COMPENSATION
|
16.1
|
For and in consideration of the rights and licenses granted or to be granted to it herein, the
Master Licensee
shall pay :
|
|
|
16.1.1
|
to
Lacoste
when relating to
Lacoste Watches
sold in the countries listed in Schedule
III.a
; and
|
|
|
16.1.2
|
to
SPL
when relating to
Lacoste Watches
sold in the countries listed in Schedule
III.b
; and
|
|
|
16.1.3
|
to
LCA
when relating to
Lacoste Watches
sold in the countries listed in Schedule
III.c
|
as a royalty such sum or sums as shall, after deduction therefrom of all taxes and charges applicable thereto, amount to:
*
|
16.2
|
In addition to the royalties set forth in Article
16.1
, the
Licensor
shall receive from the
Master Licensee
as a royalty such sum or sums as shall, after deduction therefrom of all taxes and charges applicable thereto, amount to * of the
Factory Outlets
Sales
.
|
|
16.3
|
Whenever the
Licensor
can obtain tax credits or other credits of any nature for the taxes and charges paid by the
Master Licensee
, then
Licensor
shall notify
Master
Licensee
of such credits and the
Master Licensee
may deduct such taxes and charges from the corresponding royalty payments.
|
|
|
|
|
*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
ARTICLE 17 - REPORTS OF ROYALTIES AND PAYMENTS
|
17.1
|
As regards the implementation of Article
16
hereinabove, the
Master Licensee
shall maintain, and shall ensure that its
Sub-Licensees
and its
Distributors
maintain true, accurate and complete records of
Net Sales
,
Sales to Distributors
and
Factory Outlets
Sales
of each model of each line of
Lacoste Watches
, and shall provide the
Licensor
with true and accurate quarterly statements of such
Net Sales, Sales to Distributors
and
Factory Outlets
Sales
in a form reasonably satisfactory to the
Licensor
, no later than two (2) weeks after the end of each
Quarter
, showing separately by country:
|
|
|
17.1.1
|
the total number of each model of said
Lacoste Watches
, sold during each month of the preceding
Quarter
as well as the total number of each model of
Lacoste Watches
returned; and
|
|
|
17.1.2
|
Net Sales
,
Sales to Distributors
and
Factory Outlets
Sales
and the details of their computation from gross and net receipts from the sales of each model of said
Lacoste Watches
during each month of such
Quarter
; and
|
|
|
17.1.3
|
the amount or amounts due to the
Licensor
under Article 16 hereinabove for each month of such
Quarter
.
|
|
17.2
|
Subject to receipt of the statements mentioned in Article
17.1
hereinabove, the
Licensor
shall send to the
Master Licensee
its invoice(s) for the royalties due under Article
16
hereinabove
.
The
Master Licensee
shall pay to the
Licensor
according to the provisions of Article
16.1
hereinabove, at such address as
Lacoste, SPL, or LCA
may designate in writing, the amount or amounts due respectively to
Lacoste, SPL, or LCA
, within thirty (30) days after receipt of such invoice. Any overpayment (by reason of later returns, rebates or discounts actually given) for any one
Quarter
may be credited to amounts due for any subsequent
Quarter
.
|
|
17.3
|
Interest calculated at the two months EURIBOR rate plus two percent (2%) shall also be due and paid on any amount in arrears up to thirty (30) days and at the two months EURIBOR rate plus five percent (5%) on any amount in arrears over thirty (30) days.
|
|
17.4
|
All sums due pursuant to this
Master Agreement
are to be paid in Euros, in full amount without any deduction of any kind.
|
The rate of exchange used for the conversion of any currency into Euros shall be the rate of exchange published by the
Wall Street Journal
on the first day of the month for which a statement of
Net Sales
and
Sales to Distributors
is being furnished and/or for which payment is being made.
|
17.5
|
The
Master Licensee
shall, and shall ensure that its
Sub-Licensees
and its
Distributors
, provide to and permit representatives of the
Licensor
, from time to time upon reasonable request, to examine and audit such records maintained under the terms of Article
17.1
hereinabove at the expense of the
Licensor
. If, as a result of any such audit, it appears that the amounts paid are less than the amounts due by three percent (3%) or more, the
Master Licensee
shall bear the cost of the audit, and such difference shall bear interest
|
|
|
from the date when it should have been paid to the date on which it is actually paid calculated on the basis of the rules set forth in Article 17.3 hereinabove.
|
|
17.6
|
Within fifteen (15) days after the
Date of Termination
and each sixty (60) days thereafter, the
Master Licensee
shall render to the
Licensor
a statement similar to that required by Article
17.1
hereinabove together with full detail of the disposal, by sale or otherwise, of all the
Lacoste Watches
including the complete identification of all persons to whom such
Lacoste Watches
were sold and the number of units and sales price of such products covering the period from the latest date covered by the last preceding statement to the
Date of Termination
or the final disposal of all such
Lacoste Watches
, whichever is latest.
|
|
17.7
|
Within one (1) month after the
Date of Termination
and each sixty (60) days thereafter, subject to receipt of the statements mentioned in Article
17.6
hereinabove, the
Licensor
shall send to the
Master Licensee
its invoice(s) for the royalties due under Article
16
hereinabove. Within thirty (30) days after receipt of such invoice, the
Master Licensee
shall pay to the
Licensor
according to the provisions of Article
16.1
hereinabove, at such address as
Lacoste, SPL, or LCA
may designate in writing, the amount or amounts due respectively to
Lacoste, SPL, or LCA
.
|
Any over payment (by reason of late return, rebates or discount actually given) for any one period may be credited to amounts due for any subsequent payment.
ARTICLE 18 - DURATION
|
18.1
|
This
Master Agreement
shall enter into force on January 1, 2015.
|
|
18.2
|
This
Master Agreement
shall terminate on December 31, 2022.
|
|
18.3
|
This
Master
Agreement
shall not be tacitly renewable at the end of such term.
|
At least eighteen (18) months before the end of such term,
the parties may decide (but shall not be compelled) to enter into discussions regarding the conditions for a possible continuation of their relationship after December 31, 2022. Each party may at its discretion elect not to enter into such discussions, the effect of which is that this
Master Agreement
will terminate on December 31, 2022. In case discussions are initiated as per the first sentence of this Article
18.3
, and as a basis therefor, the
Master Licensee
shall provide the
Licensor
with a detailed business plan. These discussions shall be carried out in good faith but shall not entail an obligation to enter into a new agreement or to continue or renew this
Master Agreement
. Continuation of the parties’ relationship after December 31, 2022 shall in any event be subject to the parties’ signature of a new license agreement at least twelve (12) months before the end of such term.
ARTICLE 19 - SALES MINIMA
The
Master Licensee
undertakes to sell in the
Territory
taken as a whole quantities of
Lacoste Watches
representing
Net Sales
of no less than :
* from January 1, 2015 to December 31, 2015
* from January 1, 2016 to December 31, 2016
* from January 1, 2017 to December 31, 2017
* from January 1, 2018 to December 31, 2018
* from January 1, 2019 to December 31, 2019
* from January 1, 2020 to December 31, 2020
* from January 1, 2021 to December 31, 2021
* from January 1, 2022 to December 31, 2022
ARTICLE 20 - TERMINATION
|
20.1
|
This
Master Agreement
may be terminated by either of the parties, in the event of a material breach of this
Master Agreement
by the other, provided that it has given sixty (60) days written notice of such breach to the other party and that the other party has failed to cure such breach within such period or failed to take action within such period clearly sufficient to remedy said breach without prejudice of any compensation or damages whatsoever.
|
The provisions of the hereinabove paragraph of this Article 20.1 shall not apply if the minima fixed by Article 19 hereinabove are not reached, which situation shall be ruled by the provisions of Article 20.4 hereinafter.
|
20.2
|
This
Master Agreement
may be terminated at any time by either of the parties, upon notice, in the event that the other shall have defaulted under any substantial agreement with any material creditor, or (l) be dissolved; (2) apply for or consent to the appointment of a receiver, trustee or liquidator for its properties or assets; (3) admit in writing its inability to pay its debts as they mature; (4) make a general assignment for the benefit of creditors; (5) file a voluntary petition or be the subject of an involuntary petition in bankruptcy (which is not dismissed within sixty (60) days) or an answer seeking reorganization in arrangement with creditors, or take advantage of any bankruptcy, reorganization, insolvency or readjustment of debt law or statute, or file an answer admitting the material allegations of a petition filed against it in any proceedings under such a law or statute, or take any action for the purposes of effecting any of the foregoing; or (6) have any order, judgment or decree entered against it without the application, approval or consent of the concerned party, by any court of competent jurisdiction approving a petition seeking reorganization of its properties or assets or the appointment of a receiver, trustee or liquidator for it.
|
|
20.3
|
This
Master Agreement
may be terminated by the
Licensor
, in the event that any royalties or other amounts due to the
Licensor
by the
Master Licensee
have not been received within sixty (60) days after their due date, provided that it has given thirty (30) days written notice of such event to the
Master Licensee
and that the
Master Licensee
has failed to pay such amount within such thirty (30) day
|
|
|
|
|
*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
|
|
period without prejudice to any proceedings for forced collection and to damages which may be filed by the
Licensor
.
|
|
20.4
|
If the minimum provided for the
Territory
taken as whole as set forth in Article
19
hereinabove has not been reached (whatever the reason may be) for any two (2) consecutive yearly periods, then, within ninety (90) days after the end of the yearly period in which such event occurs, this
Master Agreement
may be terminated by the
Licensor
, provided that it has given twelve (12) months written notice of such event to the
Master Licensee
.
|
|
20.5
|
This
Master Agreement
may be terminated at any time by the
Licensor
, subject to a six (6) months prior written notice, without any indemnity, damages, or compensation whatsoever to the
Master Licensee
or any of its
Sub-Licensees
or
Distributors
, in the event that
any person or group,
that, as of the date of this
Master
Agreement
, (i)
directly or indirectly, beneficially or of record, owns shares or options or other rights to acquires shares representing in the aggregate more than twenty-five per cent (25%) of the total voting power of all classes of securities issued by the
Master
Licensee
or any of its controlling entities or (ii) that directly or indirectly, whether through the ownership of securities, by contract or otherwise, has the right to appoint at least one-third of the members of the board of directors of the
Master
Licensee
or any of its controlling entities
, every such person or group for purposes of this Article
20.5
being hereafter referred to as a "
Control Person
") ceases to qualify as a Control Person under this Article
20.5
(i) or (ii). For purposes of this Article
20.5
: (a) the term "group" means two or more persons who agree to act together to acquire, hold, vote or dispose of any equity securities of the
Master
Licensee
or its controlling entities and (b) the term "any person or group" does not include an entity which, as of the date of this
Master
Agreement
, controls, is under common control with or is controlled by
Master Licensee
, or any entity controlled by any such entity.
|
|
20.6
|
It is expressly stipulated that the termination or the non-renewal of any of the
Supplemental
Agreements
shall entail within the same period the termination or non-renewal of the corresponding
Sub-license
Agreements
or
Distribution Agreements
.
|
ARTICLE 21 - PROVISIONS AT TERMINATION
|
21.1
|
At the
Date of Termination
of this
Master Agreement
whatever the origin and the reason:
|
|
|
21.1.1
|
except as otherwise provided herein, all rights and licenses granted to the
Master Licensee
pursuant to this
Master Agreement
shall terminate immediately and revert to the
Licensor
; and
|
|
|
21.1.2
|
the ownership of all intellectual property rights which the
Master Licensee
may hold at that time solely in connection with the
Lacoste Watches
, shall immediately be transferred free of charge to the
Licensor
; and
|
|
|
21.1.3
|
the
Master Licensee
shall cease to trade as a "Lacoste" licensee on the
Date of Termination
and to use the
Styling Know-how,
the
Marketing and Merchandising Know-how
and the
Promotion and Advertising Know-how
, and except as otherwise provided in Article 21.1.7 hereinafter the
Licensed Trademarks
and the
Models,
and shall not assist any third party to do so; and
|
|
|
21.1.4
|
the
Master Licensee
shall proceed at its own expense with all actions necessary to cancel all administrative agreements or registrations it may have obtained with respect to the implementation of this
Master Agreement
; and
|
|
|
21.1.5
|
the
Master Licensee
shall deliver free of charge to the
Licensor
or to any third party designated by the
Licensor
, all remaining advertising and promotional material, and in general all documents and items bearing or representing the
Lacoste Trademarks
(catalogues, technical documents, etc.) emanating from the
Licensor
unless the
Licensor
has elected under Article 21.1.7 to purchase less than all of
Master Licensee’s
inventory of
Lacoste Watches
in which event
Master Licensee
shall make delivery of such material at the end of the period referred to in Article 21.17 during which
Master Licensee
is continuing to sell its remaining inventory of
Lacoste Watches
; and
|
|
|
21.1.6
|
the
Master Licensee
shall deliver free of charge to the
Licensor
or to any third party designated by the
Licensor
, all the molds, prints, computer bands or cards and, in general, all tools bearing, representing or used to replicate the
Licensed Trademarks;
and
|
|
|
21.1.7
|
the
Licensor
shall have the right, at its sole option, either to repurchase or have any third party it may wish to appoint repurchase all or part of the inventory of
Lacoste Watches
which the
Master Licensee
may have on hand at the
Date of Termination
at a price * .
If less than all of
Master Licensee
’s inventory of
Lacoste Watches
is purchased, the
Master Licensee
shall have the right to sell its remaining inventory for up to six (6) months thereafter, on the condition that such sales are exclusively made to the
Approved Watches Retailers,
the
Factory Outlets
and the
Off-Price Retailers
, or the
members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
in quantities not exceeding those normally sold to said
Approved Watches Retailers
,
Factory Outlets,
Off-Price Retailers
and members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
during the previous year and provided the
Master Licensee
pays the
Licensor
the royalties stipulated in Articles
16
and
17
hereinabove.
|
In such event, the
Master Licensee
shall provide to the
Licensor
the detail, by reference, of the inventory of
|
|
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*
|
CONFIDENTIAL PORTION OF THIS EXHIBIT OMITTED AND FILED SEPARATELY WITH THE SEC PURSUANT TO RULE 24b-2 OF THE 1934 ACT
|
Lacoste Watches
that the
Master Licensee,
its
Sub-Licensees
or its
Distributors
shall have in their possession, at least twice: at the beginning and at the end of this six (6) month period.
Unless prohibited by applicable law, e.g., in the United States of America
,
in no event, shall the
Master Licensee
apply, starting from the date of notification to the other party of the termination of this
Master Agreement
, a price policy which could prejudice the
Lacoste Trademarks Image
.
At the end of such six (6) month period, the
Master Licensee
, unless otherwise agreed upon with the
Licensor
, shall destroy any remaining inventory of the
Lacoste Watches
the
Master
Licensee,
its
Sub-Licensees
and its
Distributors
may have on hand at that time (excluding any such inventory in the stock of any retail stores owned by the
Master
Licensee
or any of its affiliates), without having any right to any indemnification from the
Licensor
.
|
21.2
|
Moreover, it is hereby agreed that the expiration or the termination of this
Master Agreement
shall automatically entail, at the
Licensor
’s choice:
|
|
|
21.2.1
|
(i) the immediate termination, or (ii) the assignment to a new licensee for the
Lacoste Watches
as soon as such new licensee will have been chosen and approved by the
Licensor
and/or to the
Licensor,
of the commercial agreements which the
Master Licensee
, its
Sub-Licensees
or its
Distributors
may have entered into with the
Approved Watches Retailers, Factory Outlets,
Off-Price Retailers
and members of the "
Lacoste Boutiques and Lacoste Corners" Selective Distribution System
. The
Master Licensee
, its
Sub-Licensees
and its
Distributors
shall include appropriate terms to this effect in the agreements they shall enter into with the
Approved Watches Retailers, Factory Outlets,
Off-Price Retailers
and members of the "
Lacoste Boutiques and Lacoste Corners" Selective Distribution System
. The
Master Licensee
agrees that the
Licensor
shall not bear nor share, either with the
Master Licensee
, or with its
Sub-Licensees
or
Distributors
any liability for any claim that the
Approved Watches Retailers, Factory Outlets,
Off-Price Retailers
and members of the "
Lacoste Boutiques and Lacoste Corners" Selective Distribution System
may present to the
Master Licensee
in view of the termination or the non-renewal of such commercial agreements, and the
Licensor
shall not be liable for any indemnities, damages or money whatsoever in this regard.
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21.2.2
|
(i) the immediate termination, or (ii) the assignment to a new licensee for the
Lacoste Watches
as soon as such new licensee will have been chosen and approved by the
Licensor
and/or to the
Licensor,
of the agreements entered into between the
Master Licensee
and the
Sub-licensees
, the
Distributors
, the
Sub-Contractors
and the
Suppliers
, provided that bona fide orders placed with them be honored by the party having issued such. The
Master Licensee
shall include appropriate terms to this effect in the agreements
|
it shall enter into with the
Sub-licensees
, the
Distributors
, the
Sub-Contractors
and the
Suppliers
. The
Master Licensee
agrees that the
Licensor
shall not share with the
Master Licensee
any liability for any claim that the
Sub-licensees
, the
Distributors
, the
Sub-Contractors
and the
Suppliers
may present to the
Master Licensee
in view of the termination or the non-renewal of such agreements, and the
Licensor
shall not be liable for any indemnities, damages or money whatsoever in this regard.
|
21.3
|
In case of termination of this
Master Agreement
, the
Master Licensee
undertakes to maintain (or to cause any third party previously providing such service to maintain) the warranty provided by the terms of Article 7.1.9 hereinabove for a two (2) year period starting from the
Date of Termination
, unless a new licensee for the
Lacoste Watches
is chosen by the
Licensor
, in which case such new licensee shall assume the burden of such warranty.
|
|
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The
Master Licensee
shall keep (or shall use reasonable efforts to cause any third party previously providing such service to maintain) the necessary inventory of parts and/or finished goods so as to be able to maintain such warranty, and shall transfer at its cost price this inventory to the new licensee for the
Lacoste Watches
of the
Licensor
.
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21.4
|
The
Master Licensee
undertakes, during the twelve (12) months immediately preceding the termination of this
Master Agreement
as per Article
18.3
hereinabove, or during the notice period following any notice given in accordance with the terms of Article
20
hereinabove, to do whatever may be reasonably necessary to protect and safeguard the
Lacoste Trademarks Image
and facilitate the transition with a new licensee for the
Lacoste Watches
which may be chosen and/or approved by the
Licensor
or with the
Licensor
itself. In particular, but not exclusively, and notwithstanding the stipulations of Article
2
.
1
hereinabove and any other stipulation of this
Master Agreement
, during the twelve (12) months immediately preceding the termination of this
Master Agreement
as per Article
18.3
hereinabove, or during the notice period following any notice given in accordance with the terms of Article
20
hereinabove, the
Master Licensee
undertakes that it shall not:
|
|
21.4.1
|
object in any manner whatsoever that a new licensee for the
Lacoste Watches
which may be chosen and/or approved by the
Licensor
and without claiming for this purpose any compensation, indemnities or remuneration from the new licensee for the
Lacoste Watches
which may be chosen and/or approved by the
Licensor
may:
|
|
|
a)
|
visit any clients, take any orders, directly or indirectly, for any quantity of
Lacoste Watches
for delivery after the
Date of Termination
, and
|
|
|
b)
|
use the
Licensed Trademarks,
including in particular but not exclusively, the name "Lacoste" and the
Crocodile
, the
Models
, the
Styling Know-how
, the
Marketing and Merchandising Know-how
and the
Promotion and Advertising Know-how,
in the
Territory
in connection with the development, manufacture,
|
|
|
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distribution, marketing, merchandising, advertising, promotion and sale of the
Lacoste Watches
in the
Territory
, it being however specified that the new licensee for the
Lacoste Watches
which may be chosen and/or approved by the
Licensor
or the
Licensor
itself may not deliver any
Lacoste Watches
before the
Date of Termination
, and
|
|
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c)
|
participate in the conventions of the
Licensor
, make general public statements or take general and public communication actions, which may include the names of the relevant entities, concerning the fact that a new licensee for the
Lacoste Watches
has been selected by the
Licensor.
|
|
21.4.2
|
manufacture or have manufactured, directly or indirectly, any quantity of
Lacoste Watches
for delivery after the
Date of Termination
, and
|
|
21.4.3
|
take any orders, directly or indirectly, for any quantity of
Lacoste Watches
for delivery after the
Date of Termination.
|
|
21.5
|
The
Master Licensee
acknowledges and agrees that it is entering into this
Master Agreement
on the express understanding that its receipt from sales of
Lacoste Watches
under this
Master Agreement
are intended to be sufficient to compensate it fully for all risks, costs and expenses incurred in connection with this
Master Agreement
regardless of its duration, including,
i.e
., all costs and expenses incurred by the
Master Licensee
for its sales, marketing, merchandising, advertising and promotion efforts to create what is commonly known as "goodwill" for the
Lacoste Trademarks
and
the
Models
.
|
|
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Accordingly, upon termination of this
Master Agreement
and regardless of its duration, for whatever reason (except by reason of termination by
Master
Licensee
as the result of
Licensor
’s material breach of this
Master
Agreement
), the
Master Licensee
shall have no right to, and shall not claim from the
Licensor
, any further payment, indemnity, damages or compensation whatsoever for the transfer of its ownership rights in the
Models
, for loss of goodwill or for any risks, costs or expenses incurred or developed by the
Master Licensee
during the term of this
Master Agreement
or in connection with this
Master Agreement
.
|
ARTICLE 22 - ASSIGNMENT
This
Master Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective authorized successors and assignees under the provisions of this
Master Agreement
.
It is expressly understood and agreed that this
Master Agreement
or any interest therein or rights or obligations thereunder shall not be in part or as a whole directly or indirectly sold, assigned, pledged or otherwise encumbered or transferred in any manner whatsoever (including without limitation by operation of law or otherwise) by the
Master Licensee
without the prior written consent of the
Licensor
.
The
Master Licensee
is also prohibited from assigning, selling, pledging or otherwise encumbering to any third party in the same conditions as hereinabove whether in part or as a whole any of the rights hereby granted to it, be it in a given part of the
Territory
save as expressly provided for in the present
Master Agreement
and, among other, under the provision of Articles
2.2, 2.3, 5.2 and 5.3
hereinabove, provided however, that the foregoing shall not apply to an assignment by operation of law that does not result in a right on the part of Licensor to terminate this
Master Agreement
under Article 20.5 hereinabove.
ARTICLE 23 - FORCE MAJEURE
|
23.1
|
The parties shall not be liable for any damages or loss of any kind, arising from any delay or failure to perform (partially or totally) the obligations provided for in this
Master Agreement
caused by an event of force majeure, without there being however fault or negligence of the parties which rely thereon. Moreover, a reason for exoneration of responsibility under this Article
23.1
excludes thereby the possible right of the other party to terminate or cancel this
Master Agreement
due to the corresponding non-performance.
|
For the purposes of this
Master Agreement
, an event of force majeure is any event or cause which presents an unpredictable, irresistible character and is not within the will of the parties and which has for effect, directly or indirectly, to prevent or to render impossible the performance of an obligation set forth in this
Master Agreement
(
i.e
., for the purposes of this
Master Agreement
, and without limitation, any war, insurrection, strike, serious economic crisis, national restriction in transfer of royalties,...).
After the occurrence of an event of force majeure, the party concerned shall promptly send notice by letter, telex or fax, informing the other party of all the details of such event.
In all cases, the party who relies thereon shall take all useful and necessary measures to assure as rapidly as possible the normal resumption of the performance of this
Master Agreement
.
|
23.2
|
If the circumstances go beyond six (6) months and once the continuation of the
Master Agreement
appears to be possible upon adaptation, the parties shall co-ordinate to modify in good faith and in equity the necessary amendments.
|
|
23.3
|
If these negotiations do not produce results in a period of one (1) month, the
Master Agreement
shall be readapted by a third party designated by the
Centre international d'expertise de la Chambre de Commerce Internationale
.
|
|
23.4
|
If the continuation of the
Master Agreement
does not appear to be possible even upon adapting this
Master Agreement
, the parties shall negotiate in good faith the provisions permitting the termination of this
Master Agreement
.
|
ARTICLE 24 - MISCELLANEOUS
|
24.1
|
The
Master Licensee
and the
Licensor
shall, each at its own expense, execute any documents required to comply with the laws and requirements of the respective countries with respect to declaring, recording or otherwise rendering this
Master Agreement
effective.
|
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24.2
|
Any notices, demands, requests, consents, approvals or other communications, faxes or telexes, hand delivery notices, given or made, or required to be given or made to a party under this
Master Agreement
shall be deemed effective on the earlier of the date of actual personal delivery or deposit, air mail, postage prepaid, in the registered mail of the country of origin, sent to :
|
|
|
24.2.1
|
for the
Licensor
:
|
the
Directeur Général
of
Lacoste
, with a copy to
SPL
and
LCA
; and
|
|
24.2.2
|
for the
Master Licensee
:
|
the President of
MGI Luxury Group, S.A.
, with a copy to General Counsel,
Movado Group, Inc.
, 650 From Road, Paramus, NJ 07652, USA
.
to the addresses hereinabove set forth for such party. Any change of address shall be accomplished only by providing written notice to the other party to this
Master Agreement
.
|
24.3
|
No rights of any party arising out of this
Master Agreement
, or any provision hereof, shall be waived except in writing. Failure by either party to exercise or enforce, in any one or more instances, any of the terms or conditions of this
Master Agreement
shall not constitute or be deemed a waiver of that party's right thereafter to enforce the terms and conditions of this
Master Agreement
.
|
|
24.4
|
This
Master Agreement
and the Schedules hereto constitute the entire understanding of the parties with respect to the subject matter hereof, and supersede all prior undertakings, both written and oral, between the
Licensor
and the
Master Licensee
with respect to the subject matter hereof. The rights, obligations, and interests of any party as they may pertain herein may not otherwise be changed, modified or amended except by the written agreement of the party to be charged.
|
|
24.5
|
If at any time any party hereto shall deem or be advised that any further assignments, licenses, assurances in law or other acts or instruments, including lawful oaths, are necessary or desirable to vest in it the rights provided for herein, the parties hereto agree to do all acts and execute all documents as may reasonably be necessary or proper for that purpose or otherwise to carry out the intent of this
Master Agreement
.
|
|
24.6
|
The rights and obligations of the parties hereto under this
Master Agreement
shall be subject to all applicable laws, orders, regulations, directions, restrictions and limitations of the Government having jurisdiction on the parties hereto.
|
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24.7
|
In the event, however, that any such law, order, regulation, direction, restriction or limitation, or construction thereof, shall substantially alter the relationship between the parties under this
Master Agreement
or the advantages derived from such relationship, or shall prevent the performance of any provision of this
Master Agreement
, the adversely affected party may request the other party hereto to modify this
Master Agreement
, and if within ninety (90) days subsequent to the making of such request, the parties hereto are unable to agree upon a mutually satisfactory modification hereof, then the adversely affected party may terminate this
Master Agreement
by giving thirty (30) days’ notice not later than thirty (30) days following the end of such ninety (90) day period.
|
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24.8
|
Notwithstanding, anything contained herein to the contrary no third party other than a party hereto is intended to or shall have any legal or equitable right, remedy or claim under this
Master Agreement
or any part thereof, as against any party to this
Master Agreement
, it being understood that the provisions of this
Master Agreement
are for the sole benefit of the parties hereto and no other party shall be or be deemed a third party beneficiary of this
Master Agreement
.
|
|
24.9
|
This
Master Agreement
shall be binding upon the parties, their successors, and their assigns to the extent consistent with the provisions of Article 22 hereinabove.
|
|
24.10
|
This
Master Agreement
may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
|
|
24.11
|
Paragraph headings of this
Master Agreement
are for convenience only and shall not be construed as a part of this
Master Agreement
or as a limitation on the scope of any terms or provisions of this
Master Agreement
.
|
ARTICLE 25 - INDEMNIFICATION-INSURANCE
|
25.1
|
Indemnification
|
|
|
25.1.1
|
The
Master Licensee
confirms that, on its behalf and on behalf of the
Sub-Licensees
,
Distributors
,
Sub-Contractors
and
Suppliers
, it shall be solely responsible for the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of the
Lacoste Watches
on or in connection with which the
Licensed Trademarks
and the
Models
are used and for the making of all representations, warranties and disclaimers used in the marketing and sale of the
Lacoste Watches
.
|
|
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25.1.2
|
The
Master Licensee
shall accordingly both defend the
Licensor
against all claims, actions, suits or proceedings and indemnify and hold the
Licensor
harmless from any and all resulting losses, liabilities, costs (including any and all related legal fees and expenses incurred by the
Licensor
) and damages (including punitive and exemplary damages) arising out of or in any way connected with tort liability arising from its retail activity or with the
|
|
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creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale or defective performance of the
Lacoste Watches
on or in connection with which the
Licensed Trademarks
and/or the
Models
are used.
|
|
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Such indemnification shall include, but not be limited to, losses, liabilities, costs and/or damages alleged to be based upon (i) intentional or negligent conduct, (ii) strict liability, (iii) breach of warranty, (iv) misrepresentation, (v) Intellectual Property rights infringement (excluding any claim based upon the
Licensed
Trademarks
), (vi) breach of contract or (vii) any other theory of liability pursuant to which damages and/or injunctive relief is sought against the
Licensor
as the result of the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of the
Lacoste Watches
.
|
|
|
25.1.3
|
Each party shall give prompt written notice to the other of any such claim, action, suit or proceeding which may be brought against them.
|
|
25.2
|
Product Liability
|
|
|
25.2.1
|
The
Master Licensee
shall have, and maintain at its own expense for the full term of this
Master
Agreement
and for a two (2) year period following the
Date of Termination,
on its behalf and on behalf of the
Sub-Licensees, Distributors, Sub-Contractors
and
Suppliers,
general world-wide general liability including product liability and umbrella insurance policies (which shall explicitly cover the U.S.A. and Canada), including the
Lacoste Watches
issued by a carrier with an AM Best rating of at least A-VII, and having coverage in a minimum amount of five millions US dollars (US$ 5'000'000) in the aggregate and standard terms for the US market (hereinafter the "
Insurance Policy
").
|
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25.2.2
|
The
Insurance Policy
shall be for the benefit of the
Master
Licensee
itself, its
Sub-Licensees
,
Distributors
,
Sub-Contractors
and
Suppliers
and of the
Approved Watches Retailers
,
Factory Outlets
,
Off-Price Retailers
, members of the
"Lacoste Boutiques and Lacoste Corners" Selective Distribution System
and of the
Licensor
itself. The
Insurance Policy
shall provide coverage for bodily injury or property damage arising out of actual or alleged defects in goods or products manufactured, sold, handled, distributed or disposed of by
Master
Licensee
occurring away from the
Master Licensee
's premises and after physical possession has been relinquished to others.
|
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25.2.3
|
The
Insurance Policy
shall provide for at least ten (10) working days prior written notice to the
Licensor
and the
Master Licensee
in the event of cancellation or substantial modification of the policy.
|
|
|
25.2.4
|
The
Master Licensee
shall, once a year, supply a certificate of insurance as evidence to the
Licensor
of the maintenance of the
Insurance Policies
.
|
|
|
25.2.5
|
The
Master Licensee
and the
Licensor
hereby agree that, notwithstanding the termination of this
Master Agreement
, this Article 25 shall survive and continue in full force for two (2) years after the
Date of Termination
.
|
ARTICLE 26 - CAPACITY OF THE PARTIES
|
26.1
|
It is expressly agreed that, within the framework of this
Master Agreement
, the
Master Licensee
manufactures, purchases and resells the
Lacoste Watches
for its own account and acts as an independent trader both with respect to the
Licensor
and with respect to the
Sub-Licensees
, the
Distributors
, the
Sub-Contractors
, the
Suppliers
and its customers.
|
Consequently, under no circumstances shall it enter into any agreement or take any action purporting to obligate the
Licensor
to third parties.
|
26.2
|
Nothing in this
Master Agreement
shall be construed to render either party liable for any debts or obligations of the other party and the parties shall in no way be considered agents or representatives of each other. Neither party shall have the authority to act for or bind the other.
|
ARTICLE 27 - GOVERNING LAW
This
Master Agreement
shall be governed by and construed in accordance with the laws of France.
ARTICLE 28 - ARBITRATION
|
28.1
|
All disputes arising out of or in connection with this
Master Agreement
shall finally be settled by arbitration under the
Rules of Arbitration of the International Chamber of Commerce
by one or more arbitrators appointed in accordance with said
Rules
.
|
|
28.2
|
Notwithstanding the provision of Article 28.1 hereinabove the parties may submit their dispute to the
Pre-arbitral Referee Procedure
of the
International Chamber of Commerce
and they will be bound by the provision of the said
Procedure.
|
|
28.3
|
Any such arbitration proceedings shall take place in Paris (France), and shall be conducted in the English language.
|
|
28.4
|
Each party shall be bound by, and agrees to perform in accordance with, any award resulting from the arbitration proceedings (or pre-arbitral proceedings, as the case may be) described above. Such award, when issued, shall be final and non-appealable, and judgment upon the award may be entered in any Court having jurisdiction thereof.
|
IN WITNESS WHEREOF, the parties hereto have caused this
Master Agreement
to be executed in four (4) originals by their duly authorized officers in Basel (Switzerland), on March 28
th
, 2014,
| Lacoste S.A. | Sporloisirs S.A. | |||||
|
/s/ José Duran
|
/s/ R. Aufseesser /s/ G. Hegi | |||||
|
José-Luis DURAN
|
R. AUFSEESSER G. HEGI | |||||
|
|
||||||
| Lacoste Alligator S.A. |
MGI Luxury Group, S.A.
|
|||||
|
/s/ R. Aufseesser
|
/s/ G. Hegi
|
/s/ F. Pelligrini
|
/s/ R. Coté
|
|||
|
R. AUFSEESSER
|
G. HEGI
|
F. PELLIGRINI
|
R. COTÉ
|
|||
SCHEDULE II
The
Crocodile
SCHEDULE III
III.a
- Countries in which the
Lacoste Trademarks
belong to
Lacoste
Afghanistan, Albania, Algeria, Andorra, Angola, Armenia, Australia, Austria, Azerbaijan, Bahrain, Belarus, Belgium, Benin, Bhutan, Bosnia & Herzegovina, Botswana, Brunei Darussalam, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Cayman Islands, Central African Republic, Chad, China, Congo, Croatia, Cyprus, Czech Republic, Democratic Republic of Congo, Denmark, Djibouti, Egypt, Estonia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Gibraltar, Greece, Guernsey, Guinea, Guyana, Hong Kong, Hungary, Iceland, India, Indonesia, Iran, Iraq, Ireland, Israel, Italy, Ivory Coast, Japan, Jersey, Jordan, Kazakhstan, Kenya, Kosovo, Kuwait, Kyrgyzstan, Laos, Latvia, Lebanon, Lesotho, Liberia, Libya, Liechtenstein, Lithuania, Luxembourg, Macao, Macedonia, Malawi, Malaya, Malaysia, Maldives, Mali, Malta, Mauritania, Mauritius, Moldova, Monaco, Mongolia, Montenegro, Morocco, Mozambique, Myanmar, Namibia, Nepal, Netherlands, New Zealand, Niger, North Korea, Norway, Oman, OAPI countries, Pakistan, Papua New Guinea, Philippines, Poland, Portugal, Qatar, Romania, Russian Federation, Rwanda, Sabah, San Marino, Sarawak, Saudi Arabia, Senegal, Serbia, Sierra Leone, Singapore, Slovakia, Slovenia, South Africa, South Korea, Spain
1
, Sri Lanka, Sudan, Swaziland, Sweden, Switzerland, Syria, Taiwan, Tajikistan, Tangiers, Tanzania (Tanganyika, Zanzibar), Thailand, Togo, Tunisia, Turkey, Turkish FS Cyprus, Turkmenistan, Uganda, Ukraine, United Arab Emirates, United Kingdom, Uzbekistan, Vietnam, Zambia, Zimbabwe.
III.b
- Countries in which the
Lacoste Trademarks
belong to
SPL
Anguilla, Antigua & Barbuda, Argentina, Aruba, Bahamas, Barbados, Belize, Bermuda, Bolivia, Brazil, British Virgin Island, Chile, Colombia, Costa Rica, Curacao, Dominica, Ecuador, El Salvador, Guatemala, Honduras, Jamaica, Mexico, Montserrat, Netherlands Antilles, Nicaragua, Panama, Paraguay, Peru, St Kitts and Nevis, St Lucia, St Martin, St Vincent and the Grenadines, Spain
2
, Suriname, Turks and Caicos Islands, Uruguay, Venezuela.
III.c
- Countries in which the
Lacoste Trademarks
belong to
LCA
Canada, Cuba, Dominican Republic, Haiti, Puerto Rico, Trinidad & Tobago, United States of America.
_________________________________
1
In other classes than classes 24, 25 and 26 of the International Classification of Goods and Services.
2
In classes 24, 25 and 26 of the International Classification of Goods and Services.
SCHEDULE IV
The
Lacoste Watches
Watches for men, women, children
Time-keeping devices
Cases for watches and time-keeping devices
Bracelets, straps and components for watches
SCHEDULE
V
The
Lacoste Apparel Products
.a)
-
Men's clothing - light products
Bathing suits, rugby shirts, short-sleeved polos, long-sleeved polos, sweaters, sweatshirts, tee-shirts, turtle-neck shirts, cut-and-sown long-sleeved shirts, cut-and-sown short-sleeved shirts, various.
b)
-
Men's clothing - heavy products
Bermudas, windbreakers, parkas, jackets, shorts, trousers, trainings and trousers for trainings,
in knit or in woven fabric.
c)
-
Women's clothing
Bathing suits, rugby shirts, short-sleeved polos, long-sleeved polos, sweaters, sweatshirts, tee-shirts, turtle-neck shirts, cut-and-sown long-sleeved shirts, cut-and-sown short-sleeved shirts, various.
Bermudas, windbreakers, parkas, jackets, skirts, dresses, shorts, trousers, trainings and trousers for trainings,
in knit or in woven fabric.
d)
-
Children's clothing
Bathing suits, rugby shirts, short-sleeved polos, long-sleeved polos, sweaters, sweatshirts, tee-shirts, turtle-neck shirts, cut-and-sown long-sleeved shirts, cut-and-sown short-sleeved shirts, various.
Bermudas, windbreakers, parkas, jackets, skirts, dresses, shorts, trousers, trainings and trousers for trainings,
in knit or in woven fabric.
e)
-
Other clothing
Socks, wrist- and headbands, hats, caps,
other headgear, gloves, scarves, ties, underwear.
SCHEDULE V
I
The
Other Lacoste Products
Toiletries
Sunglasses and eyeglass frames
Terry towels, bath towels, bath robes
Household linen
Sport and Leisure bags
Luggage
Shoes
Belts
Leather goods
Umbrellas
Fashion jewelry
Any other product that the
Licensor
may develop in the future
SCHEDULE
VII
Points of sale
VII.a
- Approved Watches Retailers
Approved Retail stores / Online Shops operated by the
Master Licensee,
its
Sub-Licensees
and/or
Distributors
Specialized Watch Shops
Specialized Watch Corners of Department Stores
Sport Shops
Sport Corners of Department Stores
Duty-free Shops
Online Shops (stand-alone websites; shops hosted by online market places)
Other retailers fulfilling the requirements of the
Lacoste Watches Selective Distribution System
VII.b
-
Members of the
"Lacoste Boutiques and Lacoste
Corners" Selective Distribution System
VII.c
- Factory Outlets
and
Off-Price Retailers
SCHEDULE
VIII
Supplemental Agreement
LACOSTE WATCHES SUPPLEMENTAL AGREEMENT
By and between:
Lacoste S.A.
,
(or Sporloisirs S.A. or Lacoste Alligator S.A. as the case may be) a [COUNTRY
(
NAME OF THE COUNTRY FROM WHERE THE COMPANY ORIGINATES
)
]corporation organised and existing under the laws of [COUNTRY]
whose registered office and principal place of business is located at [ADDRESS], represented by its [TITLE]
,
[NAME OF SIGNATORY]
,
hereinafter referred to as the "
Licensor
",
And:
MGI Luxury Group S.A.
, a Swiss corporation organised and existing under the laws of Switzerland whose registered office is located at 2B Place de la Gare, CH-2501, Bienne (Switzerland) , represented by its [TITLE]
,
[NAME OF SIGNATORY],
hereinafter referred to as "
Master Licensee
",
And:
[NAME OF THE COMPANY
]
,
a [COUNTRY
(
NAME OF THE COUNTRY FROM WHERE THE COMPANY ORIGINATES
)
] corporation organised and existing under the laws of [COUNTRY] whose registered office and principal place of business is located at [ADDRESS], represented by its [TITLE], [NAME OF SIGNATORY].
hereinafter referred to as the "
Distributor
".
WITNESSETH:
WHEREAS, the
Licensor
has created and developed over a period of many years a well-known and distinctive line of articles of sports and leisure apparel for men, women and children (hereinafter referred to as the "
Lacoste Apparel products
") as well as other lines of products such as toiletries, shoes, leisure and sport bags, luggage, leathergoods, umbrellas, belts, terry towels, bath towels, bath robes, household linen, sunglasses and frames for optical glasses, fashion jewelry (hereinafter together referred to as the "
Other Lacoste Products
"), it being specified that the
Other Lacoste Products
include neither the
Lacoste Apparel Products
nor the
Lacoste Watches
; and
WHEREAS, the
Licensor
has also contributed to the creation and the development of a line of watches and time-keeping devices (the "
Lacoste Watches
", as such term is hereinafter defined) including numerous models (hereinafter referred to as the "
Models
"); and
WHEREAS, the
Lacoste Watches,
the
Lacoste Apparel Products
and
Other Lacoste Products
, which are characterised by an emblem trademark consisting of the pictorial representation of an alligator or a crocodile (hereinafter referred to as the "
Crocodile
"), are renowned and sold worldwide under the trade names of "Lacoste", recalling the name of René Lacoste the famous tennis champion who invented the original shirt, and the "
Crocodile
" recalling his nickname on the tennis courts; and
WHEREAS, in order to protect its rights, the
Licensor
has registered numerous trademarks among which the
Licensed Trademarks
(as such term is hereinafter defined) throughout the world and more specifically in the
Territory
(as such term is hereinafter defined) in the relevant classes of products and services; and
WHEREAS,
each of the
Models
whether registered or not making up the lines of the
Lacoste Watches
together with their specifications is the sole property of the
Licensor
; and
WHEREAS, the
Licensor
has entered into a License Agreement with the
Master Licensee
dated [DATE] (hereunder referred to as the "
Master Agreement
"), granting to the
Master Licensee
worldwide the exclusive rights to use the
Licensed Trademarks
, the
Models
and the
Know-How
(as such term is hereinafter defined) in connection with the creation, development, manufacture, advertising, distribution, marketing,
merchandising, promotion, and sale of the
Lacoste Watches
; and
WHEREAS, under the terms of the
Master Agreement
, the
Master Licensee
is entitled to sub-license the rights granted to it with respect to the marketing, merchandising, promotion, advertising, distribution and sale of the
Lacoste Watches
to distributors of its choice subject in such event:
|
-
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to the approval by the
Licensor
of the selected distributors proposed by
Master Licensee
; and
|
|
-
|
to the signing of a distribution sub-license agreement between the
Master Licensee
and the distributors including the main provisions relating to the protection of the
Licensor
’s Intellectual Property Rights and of the
Lacoste Trademarks
Image
(as such term is hereinafter defined) as well as, in addition to the rights and obligations which
Master Licensee
wishes to sub-license, also all obligations
Master Licensee
would otherwise have had to fulfil with respect to the rights sub-licensed to the distributors and that the distributors shall undertake to personally carry out; and
|
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-
|
to the signing of a supplemental agreement between the
Licensor
, the
Master Licensee
and the distributors selected by
the
Master Licensee
, defining the list of the
Licensed Trademarks
authorized to be used by said distributors in the concerned country as well as all its duties and obligations regarding the
Licensed Trademarks, Models
and the protection of the
Lacoste Trademarks Image
; and
|
WHEREAS, the
Master Licensee
has decided to appoint the
Distributor
as its distributor and grant it certain rights in connection with the marketing, merchandising, promotion, advertising, distribution and sale of the
Lacoste Watches
in the
Territory
and has entered into the appropriate sub-license agreement (hereinafter referred to as the "
Distribution Agreement
") with the
Distributor
; and
WHEREAS, the
Licensor
is willing to enter with
Master Licensee
and the
Distributor
into the appropriate supplemental agreement (hereinafter referred to as the "
Supplemental Agreement
") according to the provisions set forth in the
Master Agreement
referred to above.
NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS:
ARTICLE 1 - DEFINITIONS
For the purpose of this
Supplemental Agreement
the terms hereinafter shall have the following meanings:
|
1.1
|
"
Approved Watches Retailers
" shall mean the selected points of sale that are approved by the
Licensor
and/or the
Master Licensee
for the retail sale of
Lacoste Watches
.
|
|
1.2
|
"
Lacoste Watches Selective Distribution System
" shall mean the group of
Approved Watches Retailers
organized by the
Master Licensee
in the
Territory
in accordance with the specific guidelines of the
Licensor
to sell the
Lacoste Watches
while respecting the specific criteria in the area of client service, merchandising, presentation, advertising, promotion and respect of the
Lacoste Trademarks Image
.
|
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1.3
|
"
Supplemental Agreement
" shall mean the present
Supplemental
Agreement.
|
|
1.4
|
"
Models
" shall mean any and all creations specific to the
Lacoste Watches
, or part thereof.
|
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1.5
|
"Know-How
" shall mean the
Licensor
’s
Marketing and Merchandising Know-How
and
Promotion and Advertising Know-How
for the distribution and advertising of the
Lacoste Watches
and the
Licensed Trademarks
.
|
|
1.6
|
"
Crocodile
" shall mean the pictorial representation of an alligator or crocodile as depicted in Schedule I of this
Supplemental
Agreement
.
|
|
1.7
|
"
Lacoste Trademarks
" shall mean any or all the trademarks relating to the name "Lacoste" and/or the
Crocodile
belonging to the
Licensor.
|
|
1.8
|
"
Licensed Trademarks
" shall mean those of the
Lacoste Trademarks
authorized to be used by the
Distributor
within the
Territory
according to the
Licensor
’s directions and in connection with the distribution, marketing, merchandising, promotion, advertising and sale of the
Lacoste Watches
and which are appended hereto as Schedule II to this
Supplemental Agreement
.
|
|
1.9
|
"
Lacoste Trademarks Image
" shall mean the presently existing identification in the principal markets where the
Lacoste Apparel Products,
the
Other Lacoste Products,
and the
Lacoste Watches
are distributed, between the
Lacoste Trademarks
and good taste, authenticity, quality, functionality, modernity, elegance, high-end sports and leisure, however at competitive quality/price ratios. The
Lacoste Trademarks Image
shall be judged in relation to all the elements making up the perception by the consumer of the
Lacoste
|
|
|
Apparel Products
, the
Other Lacoste Products
, and the
Lacoste Watches
as to their style, quality, price, marketing and merchandising, advertising and promotion.
|
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1.10
|
"
Lacoste Watches"
shall mean the watches and time-keeping devices belonging to class 14 of the
Classification Internationale des Produits et des Services
(as listed in Schedule III) as well as any accessory thereto (straps, cases, etc.), packaging and wrapping bearing the
Licensed Trademarks
manufactured and marketed by the
Master Licensee
itself and/or under its control and responsibility under the terms of the
Master Agreement
, or marketed prior to the
Master Agreement
by any previous licensee of
Licensor
.
|
|
1.11
|
"
Territory
" shall mean [COUNTRY SUBJECT OF THE AGREEMENT].
|
|
1.12
|
"
Termination Date
" shall mean the date on which this
Supplemental Agreement
shall end or shall not be renewed for whatever reason at the end of any notice period (if any).
|
|
1.13
|
The words which appear in the present
Supplemental Agreement
in bold and which are not defined in this Article shall have the meaning given in the
Distribution Agreement
.
|
ARTICLE 2 - RIGHTS GRANTED
The
Licensor
hereby confirms to the
Distributor
that it is authorised to use, during the life of this
Supplemental Agreement
and within the limits herein defined of this
Supplemental Agreement
, the
Licensed Trademarks
, and the
Models
in connection with the marketing, merchandising, promotion and advertising, distribution and sale of the
Lacoste Watches
in the
Territory
.
The
Licensor
does not give the
Distributor
any guarantee whatsoever with respect to the extent of the rights it holds or will acquire or lose during the entire term of this
Supplemental Agreement
concerning the
Licensed Trademarks
, the
Models
, or the
Know-how
.
Notwithstanding the above, the
Licensor
undertakes to, at its own costs, (i) take all necessary steps for the registration and renewal of the
Licensed Trademarks
, (ii) set up and/or maintain the adequate structures for the watch and defense of the
Licensed Trademarks
and, subject to the provisions of Article 4.2.5, to take all appropriate and necessary anti-counterfeiting actions.
ARTICLE 3 -
LICENSED TRADEMARKS
’ USE
|
3.1
|
The
Distributor
undertakes not to use the
Licensed Trademarks
and the
Models
otherwise than within the scope and the limits of this
Supplemental Agreement
and of the
Distribution Agreement
and for the distribution and sale of the
Lacoste Watches
.
|
|
3.2
|
The
Distributor
undertakes to take all the necessary measures, in the field of its marketing, merchandising, advertising and promotional programmes, to follow the general worldwide policy, prescribed and coordinated by the
Licensor
with respect to the image of the
Lacoste Trademarks
, it being understood, however, that
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|
|
Distributor
shall have no obligation to incur any expense in this regard except as set forth in the
Distribution Agreement
.
|
|
3.3
|
The
Distributor
shall be entitled to claim the use of the
Licensed Trademarks
only in the manner prescribed by the
Licensor
. The
Lacoste Watches
shall bear no other name or mark or wording which could make third parties believe that the
Licensed Trademarks
belong to other entity than the
Licensor
.
|
Any additional name or mark or wording required by the laws and regulations in force in the
Territory
shall have to be submitted to
Master Licensee
which shall submit the same for the prior written approval of the
Licensor
which will have the right to specify their size and location whenever possible.
|
3.4
|
No modified reproduction of the
Licensed Trademarks
may be used by the
Distributor
save with the prior written approval of the
Licensor
.
|
|
3.5
|
The
Distributor
undertakes to always respect irreproachable trade and legal practices in the manner and use of the
Licensed Trademarks
and adhere to such reasonable opinion as may be provided from time to time by the
Licensor
’s intellectual property counsels for such use.
|
|
3.6
|
When using the
Licensed Trademarks
for the promotion or advertising of the
Lacoste Watches
and of the image of the
Lacoste Trademarks
, the
Distributor
shall take all necessary steps to ensure in particular that not only the image of the
Lacoste Trademarks
but also the personal reputation of Mr René LACOSTE and his family are safeguarded and in this scope to use exclusively the designs, lettering, labels and logos created by the
Licensor
.
|
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3.7
|
The
Distributor
shall not, and shall ensure that its
Approved Watches Retailers
do not, without the prior written agreement of the
Licensor
(and in such event according to the
Licensor
’s prescriptions) register a domain name or create a web site or create an e-mail address including the words "Lacoste" or "Crocodile
"
.
|
Should the
Distributor
wish to include a section dedicated to the
Licensed Trademarks
and/or the
Lacoste Watches
in its own institutional web site, it shall submit its draft to the
Master Licensee
and obtain its prior approval before placing it on line. The same procedure shall apply for the updating of said web page.
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|
ARTICLE 4 - PROTECTION OF THE
LICENSOR
’S INTELLECTUAL PROPERTY RIGHTS
|
4.1
|
The Distributor
hereby acknowledges that the
Licensor
is the sole owner in the
Territory
of the
Licensed Trademarks
and of the
Models.
|
|
4.2
|
The
Distributor
undertakes to strictly respect the
Licensor
's intellectual property rights.
|
Consequently, the
Distributor
:
|
|
4.2.1
|
is prohibited from applying for registration of any of the
Lacoste Trademarks
or for the registration of any trademark
|
|
|
|
confusingly similar to or resembling the
Lacoste Trademarks
within the
Territory
or in the rest of the world, nor shall it assist any party other than the
Licensor
to do so unless
Master Licensee
shall have obtained the prior written approval from the
Licensor
, such prohibitions applying to each and every kind of goods or services in any class of the
International Classification of Goods and Services
;
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|
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4.2.2
|
shall not apply for the registration of any of the
Models
nor for the registration of any model confusingly similar to the
Models
within the
Territory
or in the rest of the world.
|
|
|
The
Distributor
is prohibited from taking any action before any authority which may have as a consequence, the contesting or seeking the cancellation of any registration of the
Licensed Trademarks
or the
Models
.
|
|
|
4.2.3
|
undertakes to facilitate in the future all applications for the registration of trademarks, models, or patents which the
Licensor
may apply for at Licensor’s own expense within the
Territory
to protect the
Lacoste Watches
and/or
Lacoste Trademarks
or
any other creations in any class or category of national classification or
International Classifications of Goods and Services
, it being hereby expressly recognised by the
Distributor
that any such trademark, model, patent application or registration or any other right thus obtained shall be the exclusive property of the
Licensor
; and
|
|
|
In addition, the
Distributor
shall never file any legal or administrative action which may have a consequence or which aim at the withdrawal or cancellation of the
Licensed Trademarks
and/or the
Models
; and
|
|
|
4.2.4
|
shall, during the term of this
Supplemental Agreement
, uphold and assist the
Licensor
in maintaining, at the
Licensor
's exclusive expense, adequate trademark registration of the
Lacoste Trademarks
within the
Territory
and the
Models
; and
|
|
|
4.2.5
|
shall be vigilant in watching for any infringement of the
Licensor
's rights in the
Lacoste Trademarks
or the
Models
and shall consequently promptly notify the
Licensor
and
Master Licensee
after becoming aware of the same or of any act that may constitute a counterfeit, an usurpation or an imitation of the
Licensed Trademarks
and the
Models
as well as of any act of unfair competition. The
Licensor
alone shall be responsible, for taking action against infringers but the
Distributor
shall assist the
Licensor
in every possible way; and
|
|
|
4.2.6
|
shall defend at its own costs and expenses any action for unfair competition, passing-off, copyright, patent or design infringement, including advertising or other related cause of action arising out of its use of the
Licensed Trademarks
or the
Models
, and
shall give prompt notice in writing to the
Licensor
of any such action. The
Licensor
|
|
|
|
shall always have the right to participate in such an action at its sole discretion. In this event the expenses of the proceedings as well as any damage arising from such action shall be shared equally. In any event, the
Licensor
shall provide its assistance to the
Master Licensee
in such defense; and
|
|
|
4.2.7
|
shall in no circumstances, and whatever may have been the duration of this
Supplemental Agreement
or the reason for its end, termination or non-renewal, be entitled to any claim to the ownership of the
Lacoste Trademarks
or the
Models
.
|
|
4.3
|
Under no circumstances, shall the
Licensor
be held liable by the
Distributor
for any loss the
Distributor
may suffer due to acts of counterfeiting, imitation, usurpation or unfair competition committed by third parties.
|
|
4.4
|
Notwithstanding the foregoing, the
Distributor
shall have the right to prosecute by law any third party for unfair competition according to its own interest and at its own expense.
|
|
4.5
|
Should it be necessary, according to the laws and regulations in force in the
Territory
, to declare on record this
Supplemental Agreement
, the
Licensor
shall take the necessary appropriate steps at the
Distributor
’s costs. The
Distributor
undertakes to assist the
Licensor
in such steps.
|
ARTICLE 5 - DURATION
|
5.1
|
This
Supplemental Agreement
shall enter into force as of the date the
Distribution Agreement
shall enter into force and shall remain in full force and effect for the duration of the
Distribution Agreement
.
|
|
5.2
|
Subject to earlier termination as hereinafter mentioned in Article 6, this
Supplemental Agreement
shall automatically end on the same date the
Distribution Agreement
will end for whatever reason.
|
ARTICLE 6 - TERMINATION
Notwithstanding the provisions of Article 5 above, this
Supplemental Agreement
may be terminated at any time
|
6.1
|
By any party:
|
|
|
6.1.1
|
in the event of a material breach of this
Supplemental Agreement
by any other of the parties, provided that it has given sixty (60) days written notice of such breach to the other party and that the other party has failed to cure such breach within such period or failed to take action within such period clearly sufficient to remedy said breach without prejudice of any compensation or damages whatsoever.
|
|
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6.1.2
|
forthwith, in the event that any other of the parties shall (l) be dissolved; (2) apply for or consent to the appointment of a receiver, trustee or liquidator for its properties or assets; (3) admit in writing its inability to pay its debts as they mature; (4) make a general assignment for the benefit of creditors; (5) file a voluntary petition or be the subject of an involuntary petition in bankruptcy (which is not dismissed within sixty (60) days) or an answer seeking reorganization in arrangement with creditors, or take advantage of any bankruptcy, reorganization, insolvency or readjustment of debt law or statute, or file an answer admitting the material allegations of a petition filed against it in any proceedings under such a law or statute, or take any action for the purposes of effecting any of the foregoing; or (6) have any order, judgment or decree entered against it without the application, approval or consent of the concerned party, by any court of competent jurisdiction approving a petition seeking reorganization of its properties or assets or the appointment of a receiver, trustee or liquidator for it.
|
|
6.2
|
By the
Licenso
r within fifteen (15) days of the sending of a registered letter, with notification of receipt, notifying the termination, without giving rise to any damages or compensation whatsoever, in the event of a change in control of the
Distributor
or if an individual or company directly or indirectly in competition with the activities of the
Licensor
, including a licensee, a sub-licensee, a distributor, a sub-distributor, an agent or a customer of the
Licensor
should become a shareholder, even a minority shareholder, of the
Distributor
.
|
The
Distributor
then undertakes to inform the
Licensor
and
Master Licensee
of the occurrence of any of the events hereinabove described within 8 days thereof.
The
Licensor
nevertheless shall be entitled to postpone its right to terminate this
Supplemental Agreement
to assess the compatibility of such change with its own commercial conceptions and interest.
If within three months following the receipt of the
Distributor
's notice of the occurrence of such events, the
Licensor
has not implemented its right to terminate the
Supplemental Agreement
, it shall continue in force until its normal term subject to the execution of the other provisions contained in this Article 6.
This
Supplemental Agreement
shall be terminated upon the termination or non-renewal of the
Distribution Agreement
within the same period of time.
ARTICLE 7 - PROVISIONS AT TERMINATION
|
7.1
|
Upon termination of this
Supplemental Agreement
for whatever reason:
|
|
|
7.1.1
|
all rights and licensees granted to the
Distributor
pursuant to this
Supplemental Agreement
shall terminate and revert to the
Licensor
; and
|
|
|
7.1.2
|
subject to any rights the
Distributor
may have under the
Distribution Agreement
to sell off its remaining inventory of
Lacoste Watches
, the
Distributor
shall immediately cease to trade as a Lacoste distributor on the
Termination Date
, shall cease to use the
Know-How,
the
Licensed Trademarks
and the
Models
and shall not assist any third party to do so; and
|
|
|
7.1.3
|
the
Distributor
shall cancel at its own expense all government clearances it may have obtained with the appropriate governmental authorities; and
|
|
|
7.1.4
|
the
Distributor
shall deliver immediately, at its cost, to the
Licensor
or to any third party designated by the
Licensor
, all remaining advertising and promotional material, and in general all documents and items bearing or representing the
Licensed Trademarks
(catalogues, technical documents, etc.) emanating from the
Licensor.
|
|
7.2
|
The
Distributor
acknowledges and agrees that it is entering into this
Supplemental
Agreement
on the express understanding that its receipt from sales of
Lacoste Watches
under the
Distribution Agreement
and this
Supplemental Agreement
are intended to be sufficient to compensate it fully for all risks, costs and expenses incurred in connection with this
Supplemental Agreement
, including, i.e., all costs and expenses incurred by the
Distributor
for its advertising and promotion efforts to create what is commonly known as "goodwill" for the
Licensed Trademarks
.
|
|
7.3
|
Accordingly, upon termination of this
Supplemental Agreement
and regardless its duration, for whatever reason, the
Distributor
shall have no right to any further payment, indemnity or compensation for loss of goodwill or for any risks, costs or expenses incurred or developed by the
Distributor
during the term of this
Supplemental Agreement
.
|
ARTICLE 8 - ASSIGNMENT
This
Supplemental Agreement
shall be binding upon and inure to the benefit of the parties hereto and their respective authorised successors and assignees under the terms of this
Supplemental Agreement
.
It is expressly understood and agreed that this
Supplemental Agreement
or any interest therein shall not be in part or as a whole directly or indirectly sold, assigned, pledged or otherwise encumbered by the
Distributor
without the written consent of the
Licensor
and
Master Licensee
.
The
Distributor
is also prohibited from assigning, selling, pledging or otherwise encumbering to any third party in the same conditions as hereabove whether in part or as a whole any of the rights hereby granted to it, be it in a given part of the
Territory
save as expressly provided for in the present
Supplemental Agreement
.
ARTICLE 9 - FORCE MAJEURE
|
9.1
|
The parties shall not be liable for any damages or loss of any kind, arising from any delay or failure to perform (partially or totally) the obligations provided for in this
Supplemental Agreement
caused by an event of force majeure, without there being however fault or negligence of the parties which rely thereon. Moreover, a reason for exoneration of responsibility under this Article 9.1 excludes thereby the possible right of the other party to terminate or cancel this
Supplemental Agreement
due to the corresponding non-performance.
|
For the purposes of this
Supplemental Agreement
, an event of force majeure is any event or cause which presents an unpredictable, irresistible character and is not within the will of the parties and which has for effect, directly or indirectly, to prevent or to render impossible the performance of an obligation set forth in this
Supplemental Agreement
(i.e., for the purposes of this
Supplemental Agreement
, and without limitation, any war, insurrection, strike, serious economic crisis, national restriction in transfer of royalties,...).
After the occurrence of an event of force majeure, the party concerned shall promptly send notice by letter, telex or fax, informing the other party of all the details of such event.
In all cases, the party who relies thereon shall take all useful and necessary measures to assure as rapidly as possible the normal resumption of the performance of this
Supplemental Agreement
.
|
9.2
|
If the circumstances go beyond six months and once the continuation of the
Supplemental Agreement
appears to be possible upon adaptation, the parties shall coordinate to modify in good faith and in equity the necessary amendments.
|
|
9.3
|
If these negotiations do not produce results in a period of one month, the
Supplemental Agreement
shall be readapted by a third party designated by the
Centre international d’expertise de la Chambre de Commerce Internationale
.
|
|
9.4
|
If the continuation of the
Supplemental Agreement
does not appear to be possible even upon adapting this
Supplemental Agreement
, the parties shall negotiate in good faith the provisions permitting the termination of this
Supplemental Agreement
.
|
ARTICLE 10 - CAPACITY OF THE PARTIES
|
10.1
|
It is expressly agreed that, within the framework of the
Distribution Agreement
and this
Supplemental Agreement
, the
Distributor
purchases and resells the
Lacoste Watches
for its own account and acts as an independent trader with respect to the
Master Licensee
, the
Licensor
and with respect to its customers. Consequently, under no circumstances shall it enter into any agreement or take any action purporting to obligate the
Licensor
or the
Master Licensee
to third parties, other than as may be specifically provided in other written licenses or agreements entered into by the parties hereto.
|
|
10.2
|
Nothing in this
Supplemental Agreement
shall be construed to render any party liable for any debts or obligations of any other party and the parties shall in no way be considered agents or representatives of each other. No party shall have the authority to act for or bind any other.
|
ARTICLE 11 - CANCELLATION OF PREVIOUS AGREEMENTS
This
Supplemental Agreement
cancels and replaces any previous verbal and/or written agreements entered into between the
Master Licensee
, the
Licensor
and the Distributor.
ARTICLE 12 - CONFIDENTIALITY
|
12.1
|
The
Distributor
recognizes that any information (styling, technical, marketing,...) it has so far received and shall receive in the future, related directly or indirectly to this
Supplemental Agreement
, to the
Licensed Trademarks,
to the
Models
, the
Know-How,
the
Lacoste Watches
, the
Master Licensee
and to the
Licensor
are strictly confidential.
|
Consequently, the
Distributor
formally undertakes not to use such information other than in the scope of this
Supplemental Agreement
and to strictly respect the confidential character of such information and to continue so to do indefinitely after its termination or non-renewal.
|
12.2
|
On its part, the
Licensor
acknowledges that the information it has received or shall receive concerning directly or indirectly the
Distributor
is confidential and undertakes not to use it other than within the scope and during the life of this
Supplemental Agreement
.
|
ARTICLE 13 - LEGAL AND ETHICAL REQUIREMENT
The
Distributor
shall at its own expense ensure that all local and national laws, rules, regulations and other requirements and codes of practice applicable in the
Territory
and all policies and ethical and other standards from time to time specified by
Master Licensee
in respect of the treatment of any persons involved in the sale of any
Lacoste Watches
or otherwise in respect of any human rights or other issues are complied with in relation to all activities of the
Distributor
and/or its authorized suppliers under this
Supplemental Agreement
.
The
Distributor
shall observe at all times the relevant provisions of any treaty, law or regulation in relation to the protection of the environment.
The
Distributor
shall indemnify the
Master Licensee
and its assignees and successors for any claims, known or unknown, liabilities, demands, damages, cases of action, costs expenses, dues, covenants, suits, indemnities and judgements which any third party shall make arising out of or in connection with the
Distributor
’s obligations hereunder or under the
Distribution Agreement
.
ARTICLE 14 - MISCELLANEOUS
|
14.1
|
The
Distributor
shall, at its own expense, in the
Territory
and the
Licensor
shall, at its own expense, in France (or in Switzerland), execute any documents required to comply with the laws and requirements of the respective countries with respect to declaring, recording or otherwise rendering this
Supplemental Agreement
effective.
|
|
14.2
|
Any notices, demands, requests, consents, approvals or other communications, faxes or telexes, hand delivery notices, given or made, or required to be given or made to a party under this
Supplemental
Agreement
shall be in writing and deemed effective on the earlier of the date of actual personal delivery or deposit, air mail, postage prepaid, in the registered mail of the country of origin, sent to:
|
|
|
14.2.1
|
for the
Licensor
:
|
(If the
Licensor
is
Lacoste S.A.
), the
Directeur Général
of
Lacoste S.A
.; and
|
|
14.2.2
|
for the
Distributor
:
|
|
|
_________________________________________________
|
|
|
_________________________________________________
|
|
|
_________________________________________________
|
|
|
14.2.3
|
for the
Master Licensee
:
|
|
|
_________________________________________________
|
|
|
_________________________________________________
|
|
|
_________________________________________________
|
to the addresses hereinabove set forth for such party. Any change of address shall be accomplished only by providing written notice to the other party to this
Supplemental
Agreement
.
|
14.3
|
No rights of any party arising out of this
Supplemental
Agreement
or any provision hereof, shall be waived except in writing. Failure by either party to exercise or enforce, in any one or more instances, any of the terms or conditions of this
Supplemental
Agreement
shall not constitute or be deemed a waiver of that party's right thereafter to enforce the terms and conditions of this
Supplemental
Agreement
.
|
|
14.4
|
The rights and obligations of the parties hereto under this
Supplemental
Agreement
shall be subject to all applicable laws, orders, regulations, directions, restrictions and limitations of the Government having jurisdiction on the parties hereto.
|
|
14.5
|
In the event, however, that any such law, order, regulation, direction, restriction or limitation, or construction thereof, shall substantially alter the relationship between the parties under this
Supplemental
Agreement
or the advantages derived from such relationship, or shall prevent the performance of any provision of this
Supplemental
Agreement
, the adversely affected party may
|
|
|
request the other party hereto to modify this
Supplemental
Agreement
, and if within ninety (90) days subsequent to the making of such request, the parties hereto are unable to agree upon a mutually satisfactory modification hereof, then the adversely affected party may terminate this
Supplemental
Agreement
by giving thirty (30) days’ notice not later than thirty (30) days following the end of such ninety-day period.
|
ARTICLE 15 - GOVERNING LAW
– JURISDICTION
|
15.1
|
This
Supplemental Agreement
shall be governed by and construed in accordance with the laws of France.
|
|
15.2
|
All disputes arising out or in connection with this
Supplemental Agreement
which cannot be amicably settled by consultation, shall be finally settled by arbitration in Paris under the rules of the International Chamber of Commerce by three arbitrators appointed in accordance with said rules. Each party shall be bound by any arbitration award so rendered and any judgment upon such award may be entered as a non-appealable, final judgment in any court having jurisdiction thereon. The proceedings shall be carried out in the English language.
|
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Agreement
to be executed by their duly authorised officers at Paris (France), on [DATE OF SIGNATURE].
|
LACOSTE S.A.
(or Sporloisirs S.A.
or Lacoste Alligator S.A.
as the case may be)
|
MASTER LICENSEE
|
| [NAME OF SIGNATORY] | [NAME OF SIGNATORY] |
[NAME OF THE
DISTRIBUTOR
'S COMPANY]
[NAME OF SIGNATORY]
SCHEDULE I
The
Crocodile
SCHEDULE III
The
Lacoste Watches
Watches for men, women, children
Time-keeping devices
Cases for watches and time-keeping devices
Bracelets, straps and components for watches
INDEX OF CONTENT
|
ARTICLE 1 - DEFINITIONS
|
3
|
|
ARTICLE 2 - RIGHTS GRANTED
|
4
|
|
ARTICLE 3 - LICENSED TRADEMARKS’ USE
|
4
|
|
ARTICLE 4 - PROTECTION OF THE
LICENSOR
’S INTELLECTUAL PROPERTY RIGHTS
|
5
|
|
ARTICLE 5 - DURATION
|
7
|
|
ARTICLE 6 - TERMINATION
|
7
|
|
ARTICLE 7 - PROVISIONS AT TERMINATION
|
8
|
|
ARTICLE 8 - ASSIGNMENT
|
9
|
|
ARTICLE 9 - FORCE MAJEURE
|
10
|
|
ARTICLE 10 - CAPACITY OF THE PARTIES
|
10
|
|
ARTICLE 11 - CANCELLATION OF PREVIOUS AGREEMENTS
|
11
|
|
ARTICLE 12 - CONFIDENTIALITY
|
11
|
|
ARTICLE 13 - LEGAL AND ETHICAL REQUIREMENT
|
11
|
|
ARTICLE 14 - MISCELLANEOUS
|
12
|
|
ARTICLE 15 - GOVERNING LAW – JURISDICTION
|
13
|
SCHEDULE IX
Code of conduct
|
PARTNERS’ CODE OF CONDUCT
The Lacoste brand (hereinafter referred to as “Lacoste”) has always been committed to developing its activities in accordance with the highest ethical standards and in compliance with the laws of France and of all the other countries in which Lacoste conducts its business.
The Lacoste Partners’ Code of Conduct (hereinafter referred to as the “
Code of Conduct
”), which is in line with the GSCP (
Global Social Compliance Program
) reference code, defines these ethical principles and specifies Lacoste’s expectations vis-à-vis its direct partners: manufacturers, subcontractors, suppliers, licensees and distributors (hereinafter together referred to as the “
Partners
” or the “
Lacoste Partners
”), on the ethical, social and environmental grounds.
Lacoste expects from its Partners strict compliance with the principles listed in this Code of Conduct. Lacoste also asks its Partners to make sure that the principles listed in this Code of Conduct are respected by their own manufacturers, sub-contractors, and suppliers, in particular when such manufacturers, sub-contractors, and suppliers provide components or materials used for the manufacturing of a Lacoste product.
Lacoste respects the Human Rights, and makes sure that the Human Rights are respected by its Partners, all along its manufacturing and supply chains. This infers compliance with international principles such as:
|
·
|
The principles detailed in the Universal Declaration of Human Rights;
|
|
·
|
The principles detailed in the International Labor Organization (ILO) Declaration on Fundamental Principles and Rights at Work;
|
|
·
|
The principles detailed in the related ILO conventions;
|
|
·
|
The directing principles of the OECD;
|
|
·
|
The principles detailed in the UN Global Compact.
|
Lacoste will only do business with Partners who guarantee that their activities, and the activities of their own manufacturers, sub-contractors, and suppliers, comply with the applicable conventions, laws and regulations, as well as with the principles detailed in this Code of Conduct. Moreover, Lacoste will only do business with Partners who accept, and make sure that their own manufacturers, subcontractors, and suppliers accept, control and assessment of their compliance with the principles detailed in this Code of Conduct.
Undertakings of the Lacoste Partners
No provision of this Code of Conduct shall exempt a Lacoste Partner from strictly complying with local or international legal rules, in particular when such rules are stricter than those of this Code of Conduct with regard to the fundamental principles and rights at work.
SOCIAL RESPONSIBILITY
Forced and prison Labor
:
The Lacoste Partners shall in no event resort to forced labor and/or prison labor that do not conform to the ILO Conventions 29 & 105. Work shall only be provided voluntarily, and not under the menace of a sanction or a penalty. The Lacoste Partners shall in no event require their employees to lodge “deposits” or identity papers upon commencing employment.
Bonded labor is strictly forbidden and the Lacoste Partners shall in no event allow or encourage their personnel to get indebted through recruitment costs, fines or other.
|
|
Forced labor is strictly forbidden: the Lacoste Partners shall respect their personnel’s right to terminate their employment, subject to the respect of any legal prior notice, or to leave the workplace at the end of their work hours.
Child Labor
:
The Lacoste Partners shall in no event hire persons who have not reached the legal working age according to the relevant local regulations, and in any case, persons who are less than 15 years’ old. This compulsory age limit shall be fixed at 18 in case of night work, of working conditions that would expose the personnel’s health, security or moral integrity, and/or of work that would jeopardize the employees’ physical, mental or social development.
Discrimination, harassment, abuse
:
The Lacoste Partners shall treat their employees with respect and dignity. No employee shall be subject to physical, sexual or psychological harassment or abuse.
The Lacoste Partners shall not submit any person to any kind of discrimination, as such term is defined by local regulations and/or local practices, on the basis of gender, race, religion, age, disability, sexual orientation, nationality, political opinion, or social or ethnic origin, which would have any consequence on the person’s employment, including on its hiring, salary, benefits, advancement, discipline, termination or retirement. Decisions on hiring, assignment, salary, benefits, advancement, disciplinary measures, dismissal and pensioning off shall be based solely on the employee’s ability to fit with the job.
Disciplinary procedures shall be defined in writing. Any disciplinary action or sanction shall be clearly and precisely explained to the concerned employee, and duly documented.
Freedom of association and right to collective bargaining
:
The Lacoste Partners shall acknowledge and respect their employees’ right to freely associate. They shall not practice any kind of hiring discrimination because of membership in a union. They shall not threaten to coerce workers seeking to establish or join workers organizations or unions.
Workers are entitled to adhere and enter into collective bargaining, without any prior agreement, obstruction or interfering from the Partners’ management.
Whenever the above-mentioned rights are limited by local laws, the Lacoste Partners shall in any case make sure that they comply with any relevant international regulations which would be more in favor of their employees.
Health and Safety
:
The Lacoste Partners shall provide a safe and healthy working environment to prevent accidents and injuries to health arising out of, linked with, or occurring in the course of work or as a consequence of the work. The Lacoste Partners shall not expose workers to situations in or outside of the workplace that are hazardous, unsafe or unhealthy.
The Lacoste Partners shall appoint a member of their management as the health & safety manager, and define and implement clear and adequate procedures as regards health and safety at work.
The Lacoste Partners shall set up and implement adequate evaluation, risk reduction and risk management procedures, defined according to their activities and premises (mechanical, chemical, electrical risk, fire safety, lighting, ventilation…) The Lacoste Partners shall provide their employees, if necessary, with adequate protective equipment, collective as well as individual. The above-mentioned procedures shall be formalized in writing and the Partners’ personnel shall be informed of such procedures, in such a way that would be understandable to anybody. In the event of use of chemical substances, some safety data sheets (SDS), in the local language, shall be provided to the personnel. The instructions provided by such SDS shall be strictly followed (please refer to ILO Convention 170).
The Lacoste Partners shall provide their employees with sufficient sanitary facilities (toilets, safe drinking water). Kitchen and housing facilities, when available, shall provide enough space. They shall be installed and maintained so as to preserve health and safety of workers.
The Lacoste Partners shall ensure, and finalize in writing, that all personnel receive regular and recorded health and safety training, and that such training is repeated for new and reassigned personnel.
The Lacoste Partners shall establish a system to detect, avoid or respond to potential threats to the health and safety of all personnel (in particular, through the organization of trainings regarding health and safety at work and first-aid trainings). The Lacoste Partners shall make sure that a first-aid kit is always available in their premises.
The Lacoste Partners must always and at any time fully comply with all applicable workplace conditions, safety and environmental laws.
They shall provide their personnel with adequate protection, in particular fire-protection, and shall see that their premises and equipment are adequately resistant, secure and stable. The Lacoste Partners shall provide their employees with adequate training regarding waste management, handling and riddance of dangerous products and chemicals.
Terms of employment, wages and benefits
:
The Lacoste Partners recognize that wages are essential to meeting their employees’ basic needs.
Work shall always be based on employer/employee relationships complying with the local laws, regulations and practices, as well as with all relevant international rules (whichever provides the employee with the best protection). Clear information about the conditions of employment, salaries, compensation for overtime hours, shall be provided to each employee before commencing employment.
The Lacoste Partners shall provide each employee with a written pay sheet for every pay period, detailing the employee’s working hours and the wages paid for the relevant period. They shall not make any deductions from such wages that would not be authorized by the applicable local laws.
Wages, overtime compensation, benefits and paid leave shalt be effectively and regularly settled upon the agreed date. The Lacoste Partners shall pay employees at least the minimum wage required by the local laws and/or the applicable standard in the relevant line of business and/or the applicable collective bargaining agreement, regardless of whether they pay by the piece or by the hour, and shall provide legally mandated benefits.
Overtime hours shall be compensated as legally required in the relevant country, or as the case may be, as required by the relevant contractual agreement, it being specified that such rate shall not be lower than the regular compensation rate.
Working hours
:
The Lacoste Partners shalt not require their employees to work more than the limits on regular and overtime hours allowed by the law of the relevant country. Devanlay Partners employees shall be entitled to the number of days off determined by the applicable laws, and at least one day off in every seven day period, in the absence of any regulation which would be more in favor of the employees. Bank holidays and annual leave shall be granted.
ENVIRONMENTAL RESPONSIBILITY
The Lacoste Partners shall at least comply with all applicable laws and regulations regarding the protection of environment in the countries where they carry out their activities. The Lacoste Partners shall also have obtained all licenses and clearances needed to pursue their activities.
The Lacoste Partners shall apply ail necessary precautions when faced with issues affecting the environment, shall take all appropriate measures to limit the impact of their activities on air pollution, ground pollution, and more generally on the environment, and favor the upgrading and distribution of technologies which respect the environment.
Chemicals management
:
Lacoste pays special attention to the chemicals present in its products, as well as to those used at the various stages of its products’ manufacturing. The Lacoste Partners shall strictly comply with Lacoste’s requirements (which shall be communicated in writing) regarding the use of chemicals. Chemicals the use of which would be dangerous to the environment and to the people shall be thoroughly recorded, and managed in such a manner that would guarantee safe handling, transportation, storage, recycling, and evacuation.
Emissions to water / air
:
The Lacoste Partners shall methodically monitor, control and properly treat, before their evacuation, all emissions to water or to air caused by their activities.
Waste management
:
The Lacoste Partners shall take all necessary measures with regard to the conception, the layout, and the operation of their premises to guarantee a good waste management and to limit as much as possible waste production.
Procedures and standards for waste management, handling and disposure of chemicals and other dangerous materials, emissions and effluent treatment must meet or exceed minimum legal requirements.
Monitoring and enforcement
The Lacoste Partners undertake to have the present Code of Conduct signed by any manufacturer, sub-contractor or supplier which they would resort to for the purpose of their Lacoste activities, if possible before working with such manufacturers, sub-contractors or suppliers, or at least set up and apply all procedures necessary to the choice and assessment of manufacturers, sub-contractors or suppliers in the light of this Code of Conduct’s expectations.
Lacoste reserves the right to carry out compliance audits, either with or without prior notice, in all premises used for the manufacturing of products or components, the production of materials or the supply of services for the account of Lacoste or the Lacoste networks. Lacoste may also resort to a third party of its choice for the performance of such audits. During such audits, the Lacoste Partners shall provide, or shall make sure that their manufacturers, sub-contractors or suppliers provide, unrestricted access to their whole premises and personnel. The Lacoste Partners, their manufacturers, sub-contractors or suppliers shall grant to the auditors access to all relevant documentation showing compliance with this Code of Conduct.
Such compliance audits do not absolve the Lacoste Partners from their own responsibility to carry out any relevant audit and control of their manufacturers, sub-contractors or suppliers.
Once an audit has been carried out, the concerned Lacoste Partner (or manufacturer / sub-contractor / supplier) shall have the possibility to take corrective actions, unless some major breach to the provisions of this Code of Conduct was identified.
Lacoste shall follow up the corrective action plan, and check that all necessary measures are taken within the agreed period. If it is not the case, Lacoste shall be entitled to end its relationship with the concerned Lacoste Partner.
In the event that an audit disclosed a major breach to the provisions of this Code of Conduct, Lacoste shall be entitled to end, with immediate effect, its relationship with the concerned Lacoste Partner.
The Lacoste Partners shall answer their employees’ requests, and the requests of any interested third party, regarding compliance / non-compliance to the Code of Conduct. The Lacoste Partners shall refrain from taking any disciplinary sanctions against, or mistreating, an employee who would have disclosed information regarding non-compliance to this Code of Conduct.
Undertakings of Lacoste
Lacoste undertakes to cooperate with the Lacoste Partners and shall make sure that its requirements do not prevent the Lacoste Partners from implementing this Code of Conduct. Lacoste undertakes to support the Lacoste Partners, whenever possible, for the best implementation of any corrective actions. The Lacoste Partners are required to inform Lacoste about any areas of improvement, in order to strengthen implementation of the principles of this Code of Conduct
By signing this Code of Conduct, the Lacoste Partner agrees to strictly comply with the above-listed provisions.
The five (5) pages of this Code of Conduct are initialed (on pages 1 to 5) and signed (on page 5).
| Date: |
|
Lacoste Partner:
|
|||
|
(Name and legal form of the company)
|
|||
|
Legal Representative:
|
|||
|
(Name)
|
|||
|
(Title)
|
|||
|
Signature:
|
|||
This Code of Conduct was initially issued in the French language. English translation is for the Lacoste Partners’ convenience; in the event of divergence between French and English versions, French version shall prevail.
This Code of Conduct was updated January 2014.
SCHEDULE X
Lacoste Watches Approved Retailer Contract
The
Master
Licensee
shall adapt the draft below to the various jurisdictions where the
Lacoste Watches
are sold, in keeping with
Master
Licensee
’s obligations
to the
Licensor
, especially its obligation to distribute the
Lacoste Watches
exclusively through selective distribution systems
.
LACOSTE WATCHES APPROVED RETAILER
CONTRACT
Between:
(name of the company)
having its registered office at
_______________________
, duly represented by Mr
______________________
, which is the exclusive distributor of Lacoste Watches (hereinafter referred to as the "
Lacoste Watches
") in (country concerned) (hereinafter referred to as the "
Territory
").
hereinafter referred to as the
"Distributor
",
And:
(name of the company)
having its registered office at
_______________________
, duly represented by
______________________
, which runs one or more points of sale situated at the addresses specified in Appendix I annexed hereto under the trade name
_______________________
(hereinafter referred to as "the
Point(s) of Sale
").
hereinafter referred to as the "
Approved Retailer
".
WITNESSETH:
WHEREAS, MGI Luxury Group SA (hereinafter referred to as the "
Licensee
") is the exclusive worldwide licensee of the companies Lacoste S.A., Lacoste Alligator S.A. and Sporloisirs S.A. (hereinafter collectively referred to as the "
Lacoste Group
") for the
Lacoste Watches
and
Licensee
has appointed
Distributor
as the exclusive distributor of the
Lacoste Watches
in the
Territory
under the terms of a distributorship agreement between
Licensee
and
Distributor
(hereinafter referred to as the "
Distribution Agreement
").
WHEREAS, for the reasons stated in the general conditions of distribution of the
Distributor
(hereinafter referred to as the "
General Conditions of Distribution
") annexed hereto as Appendix II, the
Lacoste Watches
are distributed through a selective distribution system, that is the
Lacoste Watches
are distributed at the points of sale which satisfy the selection criteria (hereinafter referred to as the "
Selection Criteria
") defined by the
Lacoste Group
, which are detailed in the
General Conditions of Distribution
.
WHEREAS, the
Distributor
has visited and evaluated the
Point(s) of Sale
.
WHEREAS, further to such evaluation it appears that the
Point(s) of Sale
and the sales staff employed by the Approved Retailer at the
Point(s) of Sale
satisfy the
Selection Criteria
.
WHEREAS, consequently, the
Distributor
may enter into this contract with the
Approved Retailer
for the distribution of the
Lacoste Watches
at the aforementioned
Point(s) of Sale
.
THE PARTIES HEREBY AGREE AS FOLLOWS:
ARTICLE 1 - RIGHTS GRANTED
The
Distributor
hereby grants, and the
Approved Retailer
hereby accepts for the duration of the present contract (hereinafter referred to as the "
Contract
"), the non-exclusive right to sell the
Lacoste Watches
through the
Point(s) of Sale
in accordance with the terms and conditions set forth herein.
The
Contract
, its Appendices and the
General Conditions of Distribution
in force determine the rights and obligations of the two parties.
ARTICLE 2 - MATERIAL CONDITIONS OF CONTRACT
The execution and existence of the
Contract
are subject to the
Distributor
certifying that the
Point(s) of Sale
of the
Approved Retailer
and the sales staff of the
Point(s) of Sale
satisfy the
Selection Criteria
.
ARTICLE 3 – OBLIGATIONS OF THE APPROVED RETAILER
|
3.1
|
The
Approved Retailer
undertakes, for the duration of the
Contract
, that the
Point of Sale(s)
and the sales staff of the
Point(s) of Sale
satisfy the
Selection Criteria
.
|
|
3.2
|
Fittings and Management of the
Point(s) of Sale
|
|
|
3.2.1
|
The sales area of the
Point(s) of Sale
shall always permit the presentation of the
Lacoste Watches
in a sufficient area.
The
Approved Retailer
shall display the
Lacoste Watches
separately from other brands sold at the
Point(s) of Sale
. The counters, posters and other POS materials, which shall be supplied to it by the
Distributor
, shall be well positioned.
The
Approved Retailer
shall affix prominently on the window of the
Point(s) of Sale
or display inside the
Point(s) of Sale
, a sign or sticker which shall be furnished by the
Distributor
confirming its quality as
Approved Retailer
for
Lacoste Watches
.
|
|
|
3.2.2
|
All items bearing any trademark owned by the
Lacoste Group
(“
Lacoste Trademarks
”) used by the
Approved Retailer
on its shop front (such as awning, sign, etc…) in the shop window or inside the
Point(s) of Sale
shall be exclusively those supplied by the
Distributor
or exceptionally those which have received the prior and express written approval of the
Distributor
.
|
|
|
3.2.3
|
The
Approved Retailer
shall comply with current or future legal obligations on the collection, processing, transmission and security of personal data and guarantees the
Distributor
and the
Lacoste Group
against any claim by third parties relating thereof.
|
|
3.3
|
Supplies
|
To the extent permitted by applicable law, the
Approved Retailer
shall purchase the
Lacoste
Watches
exclusively from the
Distributor
in accordance with the terms and conditions contained herein, in the
General Conditions of Distribution
and, as the case may be, in the
Distributor
’s general terms and conditions of sale.
Nevertheless, if the
Approved Retailer
is located within the European Economic Area (i.e. European Union + Iceland, Liechtenstein, and Norway)
(hereinafter referred to as the "
EEA
")
the
Approved Retailer
is also entitled to buy the
Lacoste Watches
from (i) any authorized exclusive distributor located within the EEA, appointed by and under contract with the
Licensee
for the distribution of the
Lacoste
Watches
and (ii) any other approved retailer approved by and under contract with
Licensee
or a
Lacoste Watches
distributor
for the retail sale of the
Lacoste
Watches
located in the EEA, except to or from Lacoste boutiques and Lacoste corners which are principally devoted to the sale of Lacoste apparel products and only on a subordinate basis other Lacoste products including
Lacoste Watches
. Because of their strong specificity, the Lacoste boutiques and the Lacoste corners constitute a selective distribution system which is distinct from the selective distribution system organised for the
Lacoste Watches
. Any
Approved Retailer
located within the EEA is also entitled to sell the
Lacoste Watches
to any authorized distributor referred to in (i) above located within the EEA and to any approved retailer referred to in (ii) above located within the EEA, except to Lacoste boutiques and Lacoste corners, for the above-mentioned reasons. The
Approved Retailer
shall ensure before any such transaction that the seller is an authorized distributor or approved retailer of
Lacoste
Watches
and that any buyer is an authorized distributor or approved retailer of
Lacoste Watches
located within the EEA. The
Approved Retailer
shall keep for a minimum period of twelve (12) months as from the date of any such transaction, a copy of all invoices relating thereto. The
Distributor
shall be entitled to inspect and copy these invoices if it reasonably determines that the
Approved Retailer
may have purchased or sold
Lacoste Watches
otherwise than in compliance with this Article 3.3.
|
3.4
|
Sales
|
|
|
3.4.1
|
The price at which the
Lacoste Watches
will be sold by the
Distributor
to the
Approved Retailer
and other sales conditions applicable to the
Lacoste
Watches
will be the one applicable in the
Territory
at the date the order is received.
|
|
|
3.4.2
|
The
Approved Retailer
shall continuously offer for sale an appropriate assortment of the
Lacoste Watches
. The
Approved Retailer
shall endeavour to create and maintain a brand environment compatible with that of the
Lacoste Trademarks
. To this end, the
Approved Retailer
shall make its best efforts to start, as from the date of its approval, and thereafter to continue selling, in the
Point of Sale
, watches of at least two (2) brands belonging to the same environment as the
Lacoste Trademarks
and whose prestige and reputation is at least similar to those of the
Lacoste Trademarks
.
|
|
|
3.4.3
|
The
Approved Retailer
shall ensure that the
Lacoste Watches
are only sold in their original presentation and shall respect the recommendations made by the
Distributor
concerning the merchandising of the
Lacoste Watches
.
|
|
|
3.4.4
|
The
Approved Retailer
shall not sell at its
Point(s) of Sale
other products in immediate proximity to the
Lacoste Watches
likely to damage or devalue the image of the
Lacoste Trademarks
and/or the
Lacoste Watches
.
|
|
|
3.4.5
|
Subject to Article 3.3, the
Approved Retailer
undertakes not to sell the
Lacoste Watches
other than at the addresses of the
Point(s) of Sale
specified in Appendix I and exclusively to the ultimate consumer.
|
|
|
3.4.6
|
The
Approved Retailer
shall not sell
Lacoste Watches
by mail order or by internet, unless the
Approved Retailer
has (i) received a prior written approval from the
Distributor
confirming that the objective selection criteria set up for this kind of sale are satisfied and (ii) signed a specific
Approved
Lacoste Watches
Internet Retailer Contract
..
|
|
|
3.4.7
|
The
Approved Retailer
shall be free to fix its resale prices according to the laws and regulations in force. The breakdown of the recommended prices that may be communicated to the
Approved Retailer
by the
Distributor
are only indicative.
|
|
3.5
|
Advertising and promotional activities of the
Approved Retailer
|
Should the
Approved Retailer
wish to carry out advertising and promotional activities of any sort itself, it shall obtain the prior written approval of the
Distributor
on the content and means of such activities with the exception of price.
In any event, the
Approved Retailer
shall in such advertising and promotional activities:
|
|
-
|
use exclusively the visual designs, lettering, emblems and logos approved by the
Distributor
;
|
|
|
-
|
ensure that the standing and image of the Lacoste trademarks but also personal reputation of Mr. René Lacoste and his family are protected.
|
ARTICLE 4 - PROTECTION OF LACOSTE INTELLECTUAL PROPERTY RIGHTS
The
Approved Retailer
acknowledges that the
Lacoste Trademarks
and models of the
Lacoste Watches
are the exclusive property of the
Lacoste Group
and undertakes to strictly respect the intellectual property rights of the latter.
Consequently, it expressly undertakes not to use the
Lacoste Trademarks
other than solely for purposes of performing its obligations under this
Contract
. Under no circumstances shall the
Approved Retailer
use the Lacoste trademarks as a business name, company name, shop sign or any other use or print them on the commercial documents of its business.
In addition, the
Approved Retailer
undertakes to immediately notify the
Distributor
of any act by a third party of which it may have knowledge and which is likely to constitute a counterfeit or an imitation of the Lacoste trademarks or models of the
Lacoste Watches
.
ARTICLE 5 - DURATION
The
Contract
comes into force on
________________
and shall terminate on (one year after)
_______________
, unless sooner terminated in accordance with the conditions set out in the
Contract
or by mutual consent of the parties. It shall be automatically renewed for successive renewal periods of one (1) year each unless either party sends a termination notice to the other at the latest three (3) months before the expiration of the initial period or of any subsequent renewal period(s).
ARTICLE
6
- TERMINATION
|
6.1
|
Without prejudice of what is elsewhere provided in the
Contract
, the
Distributor
shall be entitled to terminate partially (
i.e.
, for certain
Point(s) of Sale
only) or totally the
Contract
at any time without having to pay indemnity of any nature to the
Approved Retailer
:
|
|
|
6.1.1
|
If any
Point of Sale
(i) no longer satisfies the
Selection Criteria
, six (6) months after notice thereof by the
Distributor
to the
Approved Retailer
or (ii) is closed during a period greater than two (2) months. In these cases, termination shall apply only to the concerned
Point(s) of Sale
.
|
|
|
6.1.2
|
In the event that the
Approved Retailer
fails to comply with any of its other obligations thirty (30) days after notice thereof by Distributor and no remedy of the breach having been effected. This delay of thirty (30) days is reduced to fifteen (15) in case of payment default.
|
|
|
6.1.3
|
Without notice, in case of termination or non-renewal of (a) the master licence agreement between
Licensee
and
Lacoste Group
, or (b) of the
Distribution Agreement
, regardless of cause.
|
|
|
6.1.4
|
Without having to give prior notice should (a) the legal form of the
Approved Retailer
be modified, (b) the
Approved Retailer
’s business or part of the business be sold, (leased, hired, purchased, contributed to another business, pledged or subject to a management contract, (c) the
Approved Retailer
be dissolved, or (d) the
Approved Retailer
’s business be discontinued
;
or
|
|
|
6.1.5
|
Without prior notice, in the event of the
Approved Retailer
’s voluntary or compulsory liquidation, bankruptcy, legal settlement or placement of a receiving order or in any equivalent situation.
|
The
Approved Retailer
shall inform the
Distributor
if one of the events covered by Articles 6.1.4 and 6.1.5 occur as soon as the event occurs, the
Distributor
being the sole party to decide on its continuance of the
Contract
.
|
|
6.1.6
|
Notwithstanding anything to the contrary contained herein, with full and immediate effect:
|
|
|
-
|
in the event the
Approved Retailer
fails to comply with Articles 3.2.2, 3.3, 3.4.5 or 3.4.6 of the
Contract
;
|
|
|
-
|
if the
Approved Retailer
is involved in the manufacturing and/or sale of counterfeits.
|
|
6.2
|
In the case of termination or non-renewal, for whatever reason, of the
Distribution Agreement
this
Contract
shall likewise terminate within the same time limits, and the
Approved Retailer
shall be informed with reasonable notice period. The
Lacoste Group
may nevertheless decide at its sole option to assign the
Contract
to the new Lacoste exclusive distributor in charge of the distribution of
Lacoste Watches
in the
Territory
.
|
ARTICLE 7 - SITUATION OF THE PARTIES IN THE EVENT OF TERMINATION OR NON-RENEWAL OF THE
CONTRACT
|
7.1
|
In the event of non-renewal or termination of the
Contract
, the
Distributor
shall have the right, at its own discretion:
|
|
|
-
|
to repurchase or to have a third party it may appoint repurchase immediately, all or part of the stock of
Lacoste Watches
of the
Approved Retailer
at the price paid by the
|
|
|
Approved Retailer
after deduction of depreciation of the
Lacoste Watches,
and/or,
|
|
|
-
|
to grant the
Approved Retailer
a period of up to three (3) months to sell such stock. At the end of the said period of three months the
Approved Retailer
shall not be entitled to resell the stock, except with the approval of the
Distributor
.
|
The
Approved Retailer
shall return to the
Distributor
all elements bearing the Lacoste trademarks, if need be, furniture and the sticker "Approved Lacoste Watches Retailer" including, without limitation, all POS material. Nevertheless, it may retain the furniture provided that all references to Lacoste and to Lacoste trademarks are removed.
In addition, the termination or the non-renewal of the
Contract
shall entail the immediate cancellation of all pending orders.
|
7.2
|
In case of partial termination affecting certain
Point(s) of Sale
only, Article 7.1 shall apply
mutatis mutandis
, pursuant to the
Distributor
’s
decision.
|
|
7.3
|
It is expressly agreed between the parties that under no circumstances whatsoever will the end, termination or non-renewal of the
Contract
provide the
Approved Retailer
with the benefit of any right of indemnity of whatever nature, regardless of the cause of or reason for the end, non-renewal or termination, the revenue that the
Approved Retailer
derived from the sales of the
Lacoste Watches
during the application of the
Contract
having fully defrayed all risks, costs and expenses incurred by the
Approved Retailer
during its performance throughout the duration of the
Contract
.
|
ARTICLE 8 - LIABILITY
Approved Retailer
shall, at its own cost and expense, keep and maintain in full force and effect for the duration of this
Contract
, a policy of commercial general liability insurance insuring
Approved Retailer
’s activities with respect to the
Point(s) of Sale
against loss, damage or liability for personal injury or death or loss or damage to property with limits not less than those customarily maintained by similar retail operations in the
Territory
.
Approved Retailer
shall inform
Distributor
of the terms of said insurance upon request from time to time.
Approved Retailer
hereby releases
Distributor
,
Licensee
, the
Lacoste Group
and each of their respective affiliates from liability, and waives all right of recovery against each of them, for any injury, loss or damage, whether due to negligence or any other cause, if such injury, loss or damage is caused by any of the perils which are covered by the foregoing insurance policy or are required to be covered by such insurance pursuant to this
Contract
.
ARTICLE 9 - APPLICABLE LAW / JURISDICTION
The
Contract
is governed by the law of _____________
(to be completed)
.
The Court of _____________ (to be completed) shall have the exclusive jurisdiction on any litigation resulting from the interpretation or execution of this
Contract
.
ARTICLE 10 – NOTICES
Any notices required in accordance with any of the provisions hereof shall be in writing and delivered or mailed by registered mail, or by an internationally recognized overnight courier service (e.g., Federal Express), to the address of the parties set forth on the first page hereof.
ARTICLE 11 –
MISCELLANEOUS
|
11.1
|
Neither party hereto shall be liable for any delay or failure in fulfilling the obligations hereunder (except for the payment of money) when such delay or failure is caused by riots, war (declared or not), or hostilities between any nations; acts of God, fire, storm, flood or earthquake; strikes, labor disputes, shortage or delay of carriers, or shortage of raw materials, labor power or other utility services; any governmental restrictions; or any other unforeseeable contingencies beyond the control of the party.
|
|
11.2
|
In view of the fact that this
Contract
has been entered into because of the confidence that Distributor has in
Approved Retailer
, it is understood that the terms and conditions hereof shall be performed by
Approved Retailer
from the
Point of Sale
only and that this
Contract
may not be assigned, whether by operation of law or otherwise, without the prior written approval of
Distributor
which
Distributor
may withhold or grant in its sole and absolute discretion and any such purported assignment by
Approved Retailer
without such approval by
Distributor
shall be void and of no effect.
|
|
11.3
|
This
Contract
, including the terms and conditions incorporated by reference, constitutes the entire agreement of the parties with respect to the subject matter hereof and prevails over and supersedes all prior agreements, whether written or oral, relating to the subject matter hereof and may not be altered, waived, modified, or discharged except by an express writing referring to this
Contract
signed on behalf of the parties hereto by their duly authorized representatives.
|
|
11.4
|
The failure of either party hereto to enforce at any time any of the provisions or terms of this
Contract
, or any rights in respect thereof, or the exercise of or failure to exercise by either party any rights or any of its elections herein provided, shall in no way be considered to be a waiver of such provisions, terms, rights or elections or in any way to affect the validity of this
Contract
.
|
|
11.5
|
Should any provision of this
Contract
be held invalid, incomplete or unenforceable, this will not affect the validity or enforceability of the other provisions.
|
|
|
The parties shall replace the invalid incomplete or unenforceable provision by terms which come closest to the commercial goal that the parties intended to achieve on the conclusion of this
Contract
by the invalid, uncompleted and unenforceable provision.
|
Executed in two original copies at
_________________
on
_________________
|
The Distributor
|
The Approved Retailer
|
APPENDIX I
List of approved
Point(s) of Sale
(please specify the address of each
Point of Sale
)
The parties agree that this Appendix shall be automatically updated as
Point(s) of Sale
are approved or terminated pursuant to the
Contract
APPENDIX II
LACOSTE WATCHES GENERAL CONDITIONS OF DISTRIBUTION
I/
The Lacoste Group
(designating jointly Lacoste S.A., Sporloisirs S.A., Lacoste Alligator S.A.), wants to: (i) preserve the image of Lacoste trademarks worldwide, the models and Lacoste products sold under Lacoste trademarks (hereinafter referred to as the "
Lacoste Trademarks"
); (ii) prevent counterfeiting of the
Lacoste Trademarks
in the interest of consumers; and (iii) offer to consumers an adequate setting and good quality service for Lacoste watches (hereinafter referred to as the "
Lacoste Watches
") (together with all other goods sold under the
Lacoste Trademarks
, hereinafter to as "
Lacoste Products
"). For these reasons, the Lacoste Group has decided that
Lacoste Watches
, as with all
Lacoste Products,
shall be sold worldwide through a selective distribution system. The Lacoste Group has also appointed MGI Luxury Group S.A. as its exclusive worldwide licensee for the creation, development, manufacture, distribution, marketing, merchandising, advertising, promotion and sale of
Lacoste Watches
(hereinafter referred to as the "
Master
Licensee
"). The Lacoste Group and the
Master Licensee
require that
Lacoste Watches
be distributed only through selected retailers. In order to become an approved Lacoste Watches retailer (hereinafter referred to as the "
Approved Retailer
") within the Lacoste selective distribution network set up for the
Lacoste Watches
, a retailer shall meet the standards of performance as detailed below for Lacoste watches selection criteria (hereinafter referred to as the "
Selection Criteria
").
The trade name of the point of sale or of the department store, or of the space in which the point of sale or the watches department or the point of sale is located, must always reflect the prestige of the Lacoste brand. Consequently, the shop sign must be compatible with the principles which govern the distribution of the
Lacoste Watches
, which are luxury and high quality products. Thus, the Lacoste brand shall not be sold by retail outlets under trade names whose image is associated with an absence of or limited customer service, prestige or sophisticated in-store design. No signage at the point of sale may include terms or logos which reasonably might depreciate the image of the Lacoste brand or the
Lacoste Watches
.
|
|
a)
|
The location and environment of the point of sale (type and category of the building, location in the town in question, type of shops in the neighbourhood) shall remain at all times compatible with Lacoste brand image. The sale area shall be sufficient to permit the presentation of the
Lacoste Watches
in a sufficient shopping space without disproportion with the other brands offered for sale and allowing to distinguish them. The frontage shall be made of materials of good quality, well maintained and attractive.
|
|
|
b)
|
The shop sign shall be well maintained and attractive. The window dressing shall be of good quality and sophisticated. The floor, walls, ceilings shall be qualitative, clean and well maintained and the furniture and shelves used for the display of watches shall be of good quality and sophisticated. The lighting shall be sufficient and sophisticated.
|
|
|
c)
|
The type, brand and nature of the products sold in the outlet shall be compatible with Lacoste brand image.
|
|
|
d)
|
The sale personnel shall be well qualified.
|
|
|
e)
|
The financial capabilities and solvency guarantees shall be good.
|
II/ Application procedure to open an account
|
|
a)
|
Any application (hereinafter referred to as the "
Application
") to open an account to become an approved retailer for the sale of
Lacoste Watches
shall be made in writing to the authorized wholesale distributor of
Lacoste Watches
in the country where the prospective point of sale is located (hereinafter referred to as the "
Distributor
"). The
Distributor
shall promptly send the completed
Application
to the
Master
Licensee
.
|
|
|
b)
|
Within a maximum delay of four months as from the receipt of the
Application
, the
Master
Licensee
shall evaluate the point of sale in order to determine if the point of sale, subject to the
Application
, and its sales personnel satisfy the
Selection Criteria
.
|
|
|
c)
|
Following this evaluation :
|
|
|
(i)
|
if the point of sale and staff do not satisfy the
Selection Criteria
, the
Master
Licensee
shall notify the
Distributor
which shall so inform the applicant in writing and shall list in writing the elements which do not satisfy the
Selection Criteria
. Consequently, the
Distributor
shall turn down the
Application;
|
|
|
(ii)
|
if the point of sale and staff satisfy the
Selection Criteria
, the
Master Licensee
shall notify the
Distributor
which shall so inform the applicant in writing and provide the applicant (which shall then be deemed an
Approved Retailer
) with a Lacoste Watches Approved Retailer contract.
|
III/ Satisfaction of Selection Criteria
The
Distributor
shall regularly check, through an evaluation, that the
Approved Retailer
and its sales personnel continue to satisfy the
Selection Criteria
. If as a result of such evaluation the
Approved Retailer
and its sale personnel continue to satisfy the
Selection Criteria
, the
Distributor
shall inform the
Approved Retailer
and the
Master Licensee
in writing.
If as a result of such evaluation, the
Approved Retailer
or its sales personnel no longer appear to satisfy the
Selection Criteria
, the
Distributor
shall notify the
Master
Licensee
in writing which shall review such evaluation and, after consultation with
Distributor
, determine whether the
Approved Retailer
continues to satisfy the
Selection Criteria
. If, after such review, the
Master
Licensee
determines that the
Approved Retailer
no longer satisfies the
Selection Criteria
, it shall so notify
Distributor
which:
|
|
-
|
shall inform the
Approved Retailer
in writing and shall list the elements which do not satisfy the
Selection Criteria
;
|
|
|
-
|
shall also ask the
Approved Retailer
to take the appropriate measures so that the
Selection Criteria
be satisfied, within a delay of six (6) months as from the date of receipt of the above mentioned letter.
|
At the end of the of six month delay, a new evaluation shall be carried out by the
Distributor
and forwarded to the
Master
Licensee
for review, and after this new evaluation and review:
|
(i)
|
either the
Master
Licensee
shall determine that the
Selection Criteria
are satisfied and so inform the
Distributor
which
shall inform the
Approved Retailer
in writing accordingly;
|
|
(ii)
|
or the
Master Licensee
shall determine that the
Selection Criteria
are still not satisfied and so inform the
Distributor
which
shall inform the
Approved Retailer
in writing and shall list the elements which still do not satisfy the
Selection Criteria
. In such a case the
Distributor
shall, upon instruction from the
Master Licensee
, terminate the Lacoste watches approved retailer contract signed with the
Approved Retailer
(hereinafter referred to as the "
Contract
") pursuant to the relevant terms of said contract. Nevertheless, if the
Approved Retailer
has started repairs or demonstrates that it decided to do so, the
Distributor
may then grant another delay of six (6) months. At the end of this delay, a new evaluation shall be carried out within the same conditions as the one described above in (i) and in the first two sentences of (ii).
|
INDEX OF CONTENTS
|
ARTICLE 1 - RIGHTS GRANTED
|
2
|
|
ARTICLE 2 - MATERIAL CONDITIONS OF CONTRACT
|
2
|
|
ARTICLE 3 – OBLIGATIONS OF THE APPROVED RETAILER
|
2
|
|
ARTICLE 4 - PROTECTION OF LACOSTE INTELLECTUAL PROPERTY RIGHTS
|
5
|
|
ARTICLE 5 - DURATION
|
5
|
|
ARTICLE
6
- TERMINATION
|
5
|
|
ARTICLE 7 - SITUATION OF THE PARTIES IN THE EVENT OF TERMINATION OR NON-RENEWAL OF THE CONTRACT
|
6
|
|
ARTICLE 8 - LIABILITY
|
7
|
|
ARTICLE 9 - APPLICABLE LAW / JURISDICTION
|
8
|
|
ARTICLE 10 – NOTICES
|
8
|
|
ARTICLE 11 – MISCELLANEOUS
|
8
|
SCHEDULE XI
Approved Lacoste Watches Internet Retailer Contract
The
Master Licensee
shall adapt the draft below to the various jurisdictions where the
Lacoste Watches
are sold, in keeping with the
Master
Licensee
’s obligations
to the
Licensor
, especially its obligation to distribute the
Lacoste Watches
exclusively through selective distribution systems
.
Between:
(Name of the company)
_______________________, whose registered office is at
_______________________,
represented by ______________________, exclusive distributor of Lacoste watches ("
Lacoste Watches
") in
(name of the country concerned)
_______________________ (the "
Territory
"),
hereinafter referred to as the "
Distributor
",
and:
(Name of the company)
_______________________, whose registered office is at _______________________, represented by ______________________ operating a website accessible via the following address _______________________ (the "
Website
"), hereinafter referred to as the "
Retailer
".
WHEREAS:
MGI Luxury Group SA (hereinafter referred to as the "
Licensee
") is the exclusive worldwide licensee of the companies Lacoste S.A., Lacoste Alligator S.A. and Sporloisirs S.A. (hereinafter collectively referred to as the "
Lacoste Group
") for the
Lacoste Watches
and
Licensee
has appointed
Distributor
as the exclusive distributor of the
Lacoste Watches
in the
Territory
under the terms of a distributorship agreement between
Licensee
and
Distributor
(hereinafter referred to as the "
Distribution Agreement
")
Lacoste Watches are distributed through a selective distribution system composed of retailers operating one or more points of sale and/or websites approved for the sale of Lacoste Watches (the "
Approved Watches Retailers Selective Distribution System
") and a selective distribution system composed of Lacoste boutiques and Lacoste corners, which can also operate websites approved for the sale of Lacoste Watches (the ""
Lacoste Boutiques and Lacoste Corners
"
Selective Distribution System
"). The "Lacoste Boutiques and Lacoste Corners" Selective Distribution System is principally devoted to the sale of Lacoste
apparel products and only, on a subordinate basis, other Lacoste products including Lacoste Watches.
Members of these systems are authorized to sell Lacoste Watches on the internet only if their websites meet the selection criteria (
"
Internet Selection Criteria
"
) detailed in the Lacoste Watches Internet General Conditions of Distribution (the current version of which is attached as Appendix I).
The Distributor has evaluated the Website, established that it meets the Internet Selection Criteria and thus approved the Website.
The Retailer is approved as a member of the
Approved Watches Retailers Selective Distribution System and is
authorized to sell Lacoste Watches on the Website.
The commercial conditions between the parties hereto are not governed by this contract.
NOW, THEREFORE, T
HE PARTIES AGREE AS FOLLOWS:
Article 1 –
Rights Granted
The Distributor grants the Retailer, who accepts, for the term of this contract (the "
Contract
") the non-exclusive right to sell Lacoste Watches on the Website under the Lacoste trademarks (the "
Lacoste Trademarks
").
The Contract and the Lacoste Watches Internet General Conditions of Distribution in force [enclosed as Appendix I of the Contract
– OPTIONAL / if not in Appendix, cf. Art 8.1 hereafter
] determine the rights and obligations of the parties.
Article 2 – Conditions of Approval
This Contract is entered upon the material condition that:
|
-
|
the Website satisfies the Internet Selection Criteria and consequently has been approved by the Distributor;
|
|
-
|
the Retailer operates the Website directly (its trading name clearly appears on the Website; it is the Retailer that issues invoices and banks the proceeds of sale of the Lacoste Watches).
|
Article 3 – Obligations of the Retailer
|
3.1
|
The Website shall permanently meet the Internet Selection Criteria. The Distributor may verify it at any time.
|
|
3.2
|
The Retailer shall indicate on the homepage or on the pages where Lacoste Watches are presented that it is an independent merchant and a member of the Approved Watches Retailers Selective Distribution System and that the Website has been approved for the sale of the Lacoste Watches. If the Retailer operates physical points of sale approved by the Distributor for the sale of Lacoste Watches, the Website shall supply in a qualitative and appealing manner all the relevant information on these points of sale (address, telephone, email, access map, etc.).
|
|
3.3
|
The use of the Lacoste Trademarks on the Website for selling the Lacoste Watches shall be previously approved by the Distributor and shall comply with the graphic charter provided by the Distributor. In any case, the Retailer shall not use the Lacoste Trademarks and/or the word “Lacoste”, in a domain name, or in an email address. The Distributor may at the request of the Retailer, provide the Retailer with visuals and icons, as well as photos of the Lacoste Watches if available at the date of the request. Such items can only be used for the sale of Lacoste Watches on the Website.
|
|
3.4
|
No product that might lead to confusion in the minds of potential buyers with Lacoste Watches due to the similarity of its trademark, name and/or packaging can be sold on the Website.
|
|
3.5
|
The Retailer shall endeavour to create and maintain a brand environment compatible with that of the Lacoste Trademarks. To this end, the Retailer shall make its best efforts to start, within a reasonable time as from the date of the Website’s approval, and thereafter to continue selling on the Website watches of at least two (2) brands belonging to the same environment as the Lacoste Trademarks and whose prestige and reputation is at least similar to those of the Lacoste Trademarks.
|
|
3.6
|
The Lacoste Watches must be clearly separated from products that by their proximity may disparage the image of the Lacoste Trademarks such as food or maintenance products, domestic electrical appliances, and/or products that undermine wholesome moral values. In case of doubt, the Retailer should consult the Distributor.
|
|
3.7
|
If the Retailer advertises and/or carries out promotional actions of any sort (including by email) for the Website concerning the Lacoste Watches, it will have to obtain the prior and written agreement of the Distributor on the type and method of these actions (including the use of the Lacoste Trademarks) except for the price. The Retailer shall ensure that the prestige and image of the Lacoste Trademarks are safeguarded. In any case, it shall abide by all laws and statutes applicable to the sale and promotion of goods (advertisement, display of general commercial terms, pricing, specific legislation on e-commerce, etc.) and respect third parties’ intellectual property rights.
|
|
3.8
|
The Retailer shall offer on the Website and hold in stock a representative range of the Lacoste Watches of the current season. If the Retailer organizes season of sales of
Lacoste
Watches on the Website it shall insure that this does not damage the image of the Lacoste Trademarks. The Retailer shall not sell damaged and/or defective Lacoste Watches and/or Lacoste Watches without tags.
|
|
3.9
|
Staff responsible for providing potential buyers with information and advice concerning the Lacoste Watches on the Website shall have solid experience in the sale of products of the same nature on the internet and shall be trained by the Retailer on the specificities of the Lacoste Watches. The answers given to potential buyers can be checked by the Distributor.
|
|
3.10
|
The Website shall provide full information concerning the Lacoste Watches.
|
|
3.11
|
The Retailer shall only sell the Lacoste Watches in their original presentation and packaging.
|
|
3.12
|
The Lacoste Watches shall be delivered to the buyer within reasonable deadlines in line with those customary for internet sales for products of high repute. The buyer shall benefit from at least the deadline set by the applicable law to return a Lacoste Watch in order to exchange it or be reimbursed. Returns of defective Lacoste Watches shall also be accepted.
|
|
3.13
|
The Retailer shall comply with the legislation on secure online payments and shall take out an insurance scheme protecting buyers or potential buyers
|
against all frauds with regard to remote payments.
|
3.14
|
Each season, the Retailer shall supply the Distributor with the total number of Lacoste Watches sold on the Website and a breakdown by item (SKU).
|
|
3.15
|
To the extent permitted by applicable law, the Retailer shall (i) purchase the Lacoste Watches exclusively from the Distributor and (ii) sell Lacoste Watches exclusively to end-consumers located in the Territory.
|
Nevertheless, if the Retailer is located within the European Economic Area (i.e. European Union + Iceland, Liechtenstein, and Norway) (hereafter the
"EEA"
)the Retailer is entitled to:
|
(a)
|
Purchase the Lacoste Watches from (i) any authorized distributor located within the EEA, appointed by and under contract with the Licensee for the distribution of the Lacoste Watches and (ii) any other EEA retailer approved by and/or under contract with Licensee or an authorized Lacoste Watches EEA distributor, except from the Lacoste boutiques and Lacoste corners.
|
|
(b)
|
Sell the Lacoste Watches to (i) any consumer located in the EEA, (ii) any authorized distributor located within the EEA, appointed by and under contract with the Licensee for the distribution of the Lacoste Watches and (iii) any other retailer located within the EEA approved by and/or under contract with Licensee or with an authorized Lacoste Watches EEA distributor, except to the Lacoste boutiques and Lacoste corners.
|
The Retailer shall ensure before any such transaction that the seller/purchaser fulfils the conditions listed in Article 3.15(a) or (b). The Retailer shall keep for a minimum period of twelve (12) months as from the date of any such transaction, a copy of all invoices relating thereto. The Distributor shall be entitled to inspect and copy these invoices if it reasonably determines that the Retailer may have breached the provisions of this Article 3.15.
|
3.16
|
The Retailer shall ensure that the quantities of Lacoste Watches sold to a buyer on the Website, correspond to an order for personal use. An order is nonstandard if it concerns more than ten (10) Lacoste Watches (as a whole or four (4) identical items / colours even with different sizes). The Retailer shall send to the Distributor information on nonstandard orders immediately after a request of the Distributor to that end. More generally, the Retailer shall refuse to sell Lacoste Watches to a buyer that it knows or has reason to believe is (re)selling Lacoste Watches on the grey market or is involved in the manufacture and/or (re)sale of counterfeited Lacoste Watches.
|
|
3.17
|
The Retailer shall comply with current or future legal obligations on the collection, processing and security of personal data and guarantees the Distributor against any claim by third parties relating to the creation of such files, their use and access to them.
|
|
3.18
|
The Retailer shall permanently protect the Website and personal data with updated tools.
|
|
3.19
|
The Retailer shall alone incur all expenses for producing, operating, protecting and promoting the Website.
|
Article 4 – Protection of the Lacoste Group’s Intellectual Property Rights
The Retailer recognizes that the Lacoste Trademarks and the styles of the Lacoste Watches are the exclusive property of the Lacoste Group and undertakes to respect the latter’s intellectual property rights.
Consequently, it shall only use them for the purpose of the Contract. All use of the Lacoste Trademarks on or in relation to the Website shall comply with the Lacoste graphic charter or other similar rules communicated by the Distributor from time to time. The Retailer shall not use them as a trading name, company name, sign, or for any other purpose, or use them on its company documents.
The Retailer shall notify immediately the Distributor of any third party action, which it becomes aware of that is likely to constitute forgery or imitation of the Lacoste Trademarks or of the styles of the Lacoste Watches.
Article 5 –
Term
The
Contract
enters into force on
_______________________
and will end on
_______________________ [a year after]
, subject to it being terminated as provided below or by agreement between the parties. It will be tacitly renewed for one (1) year periods. Each party shall have the option to prevent renewal of the Contract by written notice sent three (3) months at least before the expiry of the initial period of the Contract or of one of the renewal periods.
Article 6 –
Termination
|
6.1
|
The Distributor will be entitled to terminate the Contract at any time:
|
|
(i)
|
If the Retailer does not fully comply with any of its obligations, thirty (30) days after a notice to cure sent by the Distributor;
|
|
(ii)
|
If the Website no longer satisfies the Internet Selection Criteria. In this case, the Contract shall terminate, at the Distributor’s option, at the end of the current season or (30) days after a notice was sent by the Distributor;
|
|
(iii)
|
Immediately if the Retailer breaches Article 3.15 or if the Retailer is involved in the manufacture and/or sale of counterfeits;
|
|
(iv)
|
Immediately if the Distributor no longer holds the distribution rights of the Lacoste Watches in the Retailer’s country; in such a case, the Distributor shall have the option to transfer the Contract to any entity succeeding him in the distribution rights, which the Retailer accepts
|
|
(v)
|
Immediately in case: (a) of transfer of the Retailer’s business, in whole or in part, (b) of dissolution of the Retailer’s company, (c) the Website is no longer operating;
|
|
(vi)
|
Immediately if the Retailer is placed in official receivership or is liquidated or is declared bankrupt or in case of composition, sequestration or any similar circumstance.
|
|
(vii)
|
The Retailer shall immediately notify the Distributor of the occurrence of any event covered by paragraphs (v) and (vi), and the Distributor shall, within the limits of the applicable legal framework, decide alone to maintain or not the Contract.
|
|
6.2
|
All notices and termination notices given under this Article 6 shall be served by registered mail with acknowledgement of receipt or any similar method involving an acknowledgement of receipt (fax and emails excluded).
|
Article 7 – Position of the parties in case of cancellation or non-renewal of the Contract
In case of non-renewal or termination of the Contract for any reason:
|
7.1
|
The Retailer will automatically cease to be a member of the Approved Watches Retailers Selective Distribution System and the Website’s approval to sell Lacoste Watches shall be automatically withdrawn.
|
|
7.2
|
The Distributor alone will have the option:
|
|
a)
|
either to take back or to ask a third party it designates to take back immediately all or part of the stock of the Lacoste Watches from the Retailer at the Retailer’s purchase price, less depreciation of the Lacoste Watches;
|
|
b)
|
or to grant the Retailer a period of three (3) months after the effective termination of the Contract to sell all or part of said stock. At the end of this period of three (3) months, the Retailer is no longer authorised to sell the Lacoste Watches.
|
|
7.3
|
However, if the
Retailer is operating physical points of sale
approved by the Distributor for the sale of Lacoste Watches, (a) the Distributor may not apply article 7.2 and authorize the Retailer to sell the Lacoste Watches in its approved
physical points of sale
and (b) termination hereof shall not affect the Retailer’s membership of the Approved Watches Retailers Selective Distribution System for its approved
physical
points of sale, except
inter alia
in case of termination under Article 6.1 (iii) in which case the Retailer shall be entirely excluded from such system.
|
|
7.4
|
Current orders for Lacoste Watches from the Distributor shall automatically be cancelled unless agreed otherwise.
|
|
7.5
|
The Retailer shall withdraw all the visual reproductions and representations of the Lacoste Trademarks from the Website.
|
|
7.6
|
The Retailer shall not have any right to compensation of any sort, the profit that the Retailer has derived from the sales of the Lacoste Watches under the Contract having completely covered the risks, costs and expenses incurred by the Retailer during the performance of the Contract.
|
Article 8 –
Miscellaneous
OPTIONAL / the Lacoste Watches Internet General Conditions of Distribution may also be enclosed in Appendix of the Contract
[
8.1 The Retailer acknowledges the supply by the Distributor of a copy of the Lacoste Watches Internet General Conditions of Distribution.]
|
8.2
|
The Retailer undertakes not to disclose any technical, commercial, financial or contractual information disclosed by the Distributor during the term of the Contract and after its expiry.
|
|
8.3
|
The parties expressly agree that the Retailer shall purchase and sell the
Lacoste Watches
hereunder in its name and for its own account and shall act as an independent dealer vis-à-vis both
|
the Distributor and its own clients. No section of the Contract shall be construed so that a party may be held liable for debts and obligations entered into by the other party and the parties shall never be considered as one another’s agent or representative.
|
8.4
|
The
Retailer
should take out and maintain in its name with a leading insurance company during the term of the
Contract
the necessary insurance cover against risks inherent to its activities (damages, civil liability) guaranteeing it notably against all claims relating to physical, material and consequential losses that may arise, including relating to e-commerce activity and in case it would be qualified as editor and for which it would be liable. In such a case, the
Retailer
shall not implead the
Distributor
,
Devanlay
and/or the
Lacoste
Group
in any manner.
|
|
8.5
|
The Contract cancels and replaces all previous written and verbal agreements between the parties and having the same object. If a clause of the Contract should be void or impossible to perform for legal reasons, the validity of the other provisions will not be affected. In such a case, the parties will agree to replace the aforesaid clause by another valid provision as close as possible to the goal sought.
|
|
8.6
|
The Contract is subject to _______________________ law. By express agreement between the parties, any disagreement that arises from the validity, execution, interpretation or termination of the Contract, and which cannot be resolved by private agreement, will be subject to the competent jurisdiction applicable to the Distributor’s registered office.
|
Made in _________________, on _________________.
Executed in two original copies, one for each party.
| The Distributor | The Retailer | |||
|
[Name of the signatory]
|
[Name of the
signatory]
|
|||
|
[Title of the signatory]
|
[Title of the
signatory]
|
APPENDIX I
Lacoste Watches Internet General Conditions of Distribution
I/
The Lacoste Group (designating jointly Lacoste S.A., Sporloisirs S.A., Lacoste Alligator S.A.), intends to protect the prestige and image of the Lacoste trademarks (the "
Lacoste Trademarks
"), the styles and the Lacoste products sold under the Lacoste Trademarks. The Lacoste Group also actively fights against counterfeits of the aforementioned items for the benefit of both its licensees and consumers. Finally, the Lacoste Group strives to offer consumers an adequate setting and a quality service for the Lacoste products. For all these reasons, the Lacoste Group has decided that the Lacoste watches (the "
Lacoste Watches
") shall be sold internationally via a selective distribution system composed of retailers operating one or more points of sale and/or websites approved for the sale of Lacoste Watches by the Lacoste Watches’ distributors located in the retailers’ countries (the "
Approved Lacoste Watches Selective Distribution System
") and via a selective distribution system composed of Lacoste boutiques and Lacoste corners, which can also operate websites approved for the sale of Lacoste Watches (the "
Lacoste Boutiques and Lacoste Corners Selective Distribution System
").
Consequently, the advertising and/or sale of Lacoste Watches on the internet is subject to the prior, written approval of the Lacoste Watches’ distributor located in the applicant retailer’s country (hereafter, the "
Distributor
") and the execution, by the retailer, of a specific agreement for the sale of Lacoste Watches on the internet.
Approval is granted if the following conditions are satisfied:
|
a)
|
the image and name of the portal, of the website or of the pages identifiable by potential buyers on which the Lacoste Watches are or will be sold must (i) permanently be consistent with the image of the Lacoste Trademarks and consequently, (ii) be compatible with the principles governing the selective distribution of the Lacoste Watches, which are luxury and high quality products; and (iii) at no time include content likely to disparage or devalue the image of the Lacoste Trademarks and the Lacoste Watches. Likewise, the image and name of the portal, site or pages on which the Lacoste Watches are or will be sold must not be associated with a lack of, or limitations affecting, the advising services provided to potential buyers, the standing of the website or visual design; and.
|
|
b)
|
the website shall satisfy an evaluation assessing the following elements (the "
Internet Selection Criteria
") in various pages of the website (homepage, category landing page, brand listing page, product detail page): Information on retailer’s Lacoste approved
physical
points of sale (if any), quality of the graphics and pictures, presentation of brands, quality of contents (aesthetics, narratives…) overall product offering on the concerned page, environment (goods presented on same page), presentation of brands, products staging, presentation and display (quality and size of sketches or pictures, presence and quality of models…), description and information on products, views of products (focus, enlargement, 360° view…), customer service efficiency, website technical specification (for standard users equipment, mobile technologies, tablets/pads…) functionality for initial search (ergonomics, search engine), easiness of navigation, shopping cart (position and use) payment security, shipping cost and ordering process, order tracking, after-sale service efficiency, return policy.
|
II/ Procedure for seeking approval of a website for the sale of Lacoste Watches
The applicant (the
"
Applicant
") shall supply all the information necessary for its file to be considered by completing the information form in Appendix 1.
The Distributor shall, within a maximum period of forty-five (45) days as from the date of receipt of the written and complete application of the Applicant:
|
-
|
evaluate the website through which the Applicant wishes to sell the Lacoste Watches,
|
|
-
|
inform the Applicant in writing of its decision to approve or not the website. If its decision is negative, it shall inform the Applicant in writing of the areas in which the website does not satisfy the Internet
Selection Criteria.
|
If approval is given by the Distributor, a contract shall then be signed between the Applicant (the "
Approved Retailer
") and the Distributor. This contract (the "
Internet
Contract
") sets out the terms under which Lacoste Watches may be sold on the approved website (the "
Website
").
III/ Continuous satisfaction of the Internet Selection Criteria
The Distributor shall make sure that the Website continues to satisfy the Internet Selection Criteria by evaluating the Website at any time it deems appropriate.
If the evaluation reveals that the Website no longer satisfies the Internet Selection Criteria, the Distributor shall:
|
a)
|
inform the Approved Retailer in writing and list the areas not meeting the Internet Selection Criteria.
|
|
b)
|
ask the Approved Retailer to take, within a period of three (3) months, the measures required for the Website to again satisfy the Internet Selection Criteria.
|
At the end of the three (3) month period, a new evaluation will be carried out by the Distributor.
|
(i)
|
if the Internet Selection Criteria are satisfied, the Distributor will then inform the Approved Retailer in writing;
|
|
(ii)
|
if the Internet Selection Criteria are not satisfied, the Distributor shall then inform the Approved Retailer in writing and list the areas which do not meet the Internet Selection Criteria. In this case, the Distributor will have the right to end the Internet Contract pursuant to its "Termination" section. Nevertheless, if the Approved Retailer shows that it has decided or started to take appropriate measures, the Distributor may then grant a new three (3) months deadline. At the end of this period, a new evaluation will be carried out, and be subject to the same rules as those given in point (i) and in the two first sentences of this point (ii).
|
|
Information accompanying every approval request for the sale of Lacoste Watches on the internet
|
Operator
|
Name and trading name (if different) of the company operating the website:
|
|
|
Company registration number (if applicable):
|
|
|
Name of legal representative(s):
|
|
|
Address of registered office:
|
|
|
City:
|
|
|
Zip code / Postal code:
|
|
|
Telephone:
|
|
|
Fax:
|
|
|
Email address:
|
|
|
Number and addresses of “physical” points of sale owned or managed by the company operating the website (if applicable):
|
|
|
Date when the operator started to sell Lacoste products in its "physical" approved points of sale (if applicable):
|
Website
|
Website address:
|
|
|
Email address:
|
|
|
Hosting address:
|
|
|
Hotline number:
|
|
|
Main categories of products sold on the web site:
|
|
|
Number of unique visitors per month:
|
|
|
Opening date of website:
|
|
|
Annual Sales:
|
|
|
Google natural search results (Page # when you enter the name of the website)
Date of the last major redesign work of the website:
|
SCHEDULE
XII
Rules for the calculation of the
Presentation surfaces
METHODOLOGY
The
Presentation surface
represents, within the
Sales surface
, the total surface effectively used for the presentation and the sale of products on the furniture (fixed to the walls or free-standing) or displays, excluding the cash counter, the shop windows, the fitting rooms, the areas used for customers traffic, the security issues.
The
Presentation surface
is calculated by adding the surfaces of each part of the furniture (as an example: surface of a shelf of a piece of furniture fixed to the walls, free-standing furniture in whole or in part, etc.) divided by the set number of elements ("ratio") that can be placed atop of one another allowing the presentation or the sale of the Lacoste products within the
Lacoste Boutique
or the
Lacoste Corner
.
The attached schedules list the main pieces of furniture, according to the different generations of the Lacoste furniture (1999, 2000 and 2002), including the furniture specific to the
Other Lacoste Products
and the
Lacoste Watches
. This schedule gives the values in sq. m. of each piece of furniture and therefore allows the calculation of the total
Presentation surface
.
Any new piece of furniture, or any new generation of furniture, shall be included in a supplementary schedule established under the same principles.
Therefore, in a
Lacoste Boutique
or in a
Lacoste Corner
, a simple counting of the elements according to this schedule shall allow all interested persons to calculate :
|
|
-
|
the total
Presentation surface
|
|
|
-
|
the
Presentation surface
of the
Lacoste Apparel Products
|
|
|
-
|
the
Presentation surface
of the
Lacoste Watches
and of the
Other Lacoste Products
|
|
|
-
|
the percentage of the
Presentation surface
of the
Lacoste Watches
and of the
Other Lacoste Products
/ the total
Presentation
surface
.
|
SCHEDULE XIII
Promotion and advertising
Media
Traditional Media Buy (Print + Outdoor)
Digital Media Buy
Traditional Production (including shooting)
Digital Production (including shooting)
Rights purchases and agency fees (related to Media)
Coop advertising
PR & Events
Product Placement
Press & public relations
Product Placement
Sponsoring
Brand events
Agency fees (related to PR & Events)
CRM
SCHEDULE XIV
Trade Marketing
Windows animations
Merchandising visuals & Displays
Trade events & professional fairs
Other (Goodies+ catalogues)
INDEX OF CONTENTS
|
ARTICLE 1 - DEFINITIONS
|
4
|
|
ARTICLE 2 - RIGHTS GRANTED
|
11
|
|
ARTICLE 3 - GENERAL BUSINESS POLICIES
|
15
|
|
ARTICLE 4 - CREATION, STYLING AND TECHNICAL CO-OPERATION
|
16
|
|
ARTICLE 5 - MANUFACTURE, QUALITY
|
18
|
|
ARTICLE 6 - MARKETING AND MERCHANDISING
|
21
|
|
ARTICLE 7 - DISTRIBUTION AND SALES
|
25
|
|
ARTICLE 8 - PROMOTION AND ADVERTISING
|
40
|
|
ARTICLE 9 - PROVISION OF
LACOSTE WATCHES
TO THE
LICENSOR
|
46
|
|
ARTICLE 10 - END-OF-SEASON GOODS AND
SECONDS
|
46
|
|
ARTICLE 11 - UNFAIR COMPETITION
|
46
|
|
ARTICLE 12 - LICENSED TRADEMARKS USE
|
47
|
|
ARTICLE 13 - PACKAGING AND CASES
|
48
|
|
ARTICLE 14 - LACOSTE TRADEMARKS AND MODELS
|
49
|
|
ARTICLE 15 - CONFIDENTIALITY
|
51
|
|
ARTICLE 16 - COMPENSATION
|
52
|
|
ARTICLE 17 - REPORTS OF ROYALTIES AND PAYMENTS
|
53
|
|
ARTICLE 18 - DURATION
|
54
|
|
ARTICLE 19 - SALES MINIMA
|
55
|
|
ARTICLE 20 - TERMINATION
|
55
|
|
ARTICLE 21 - PROVISIONS AT TERMINATION
|
56
|
|
ARTICLE 22 - ASSIGNMENT
|
61
|
|
ARTICLE 23 - FORCE MAJEURE
|
61
|
|
ARTICLE 25 - INDEMNIFICATION-INSURANCE
|
63
|
|
ARTICLE 26 - CAPACITY OF THE PARTIES
|
65
|
|
ARTICLE 27 - GOVERNING LAW
|
65
|
|
ARTICLE 28 - ARBITRATION
|
65
|