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, Spain1, 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, Spain2, 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.
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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.
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 VI
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
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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
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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
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"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.
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1.2
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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 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
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"Supplemental Agreement" shall mean the present Supplemental Agreement.
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1.4
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"Models" shall mean any and all creations specific to the Lacoste Watches, or part thereof.
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1.5
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"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.
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1.6
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"Crocodile" shall mean the pictorial representation of an alligator or crocodile as depicted in Schedule I of this Supplemental Agreement.
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1.7
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"Lacoste Trademarks" shall mean any or all the trademarks relating to the name "Lacoste" and/or the Crocodile belonging to the Licensor.
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1.8
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"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.
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1.9
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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
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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
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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 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.
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1.11
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"Territory" shall mean [COUNTRY SUBJECT OF THE AGREEMENT].
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1.12
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"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).
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1.13
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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.
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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
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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.
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3.2
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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.
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3.3
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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.
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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
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No modified reproduction of the Licensed Trademarks may be used by the Distributor save with the prior written approval of the Licensor.
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3.5
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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.
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3.6
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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
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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".
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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.
ARTICLE 4 - PROTECTION OF THE LICENSOR’S INTELLECTUAL PROPERTY RIGHTS
4.1
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The Distributor hereby acknowledges that the Licensor is the sole owner in the Territory of the Licensed Trademarks and of the Models.
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4.2
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The Distributor undertakes to strictly respect the Licensor's intellectual property rights.
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Consequently, the Distributor:
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4.2.1
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is prohibited from applying for registration of any of the Lacoste Trademarks or for the registration of any trademark
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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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4.2.2
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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.
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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.
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4.2.3
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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
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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
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4.2.4
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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
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4.2.5
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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
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4.2.6
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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
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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
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4.2.7
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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.
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4.3
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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.
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4.4
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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.
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4.5
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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.
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ARTICLE 5 - DURATION
5.1
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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.
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5.2
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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.
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ARTICLE 6 - TERMINATION
Notwithstanding the provisions of Article 5 above, this Supplemental Agreement may be terminated at any time
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6.1.1
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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
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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.
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6.2
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By the Licensor 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.
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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
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Upon termination of this Supplemental Agreement for whatever reason:
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7.1.1
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all rights and licensees granted to the Distributor pursuant to this Supplemental Agreement shall terminate and revert to the Licensor; and
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7.1.2
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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
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7.1.3
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the Distributor shall cancel at its own expense all government clearances it may have obtained with the appropriate governmental authorities; and
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7.1.4
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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.
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7.2
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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.
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7.3
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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.
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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
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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.
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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
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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.
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9.3
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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.
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9.4
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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.
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ARTICLE 10 - CAPACITY OF THE PARTIES
10.1
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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.
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10.2
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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.
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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
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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.
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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
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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.
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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
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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.
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14.2
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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:
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(If the Licensor is Lacoste S.A.), the Directeur Général of Lacoste S.A.; and
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14.2.2
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for the Distributor:
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_________________________________________________
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_________________________________________________
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_________________________________________________
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14.2.3
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for the Master Licensee:
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_________________________________________________
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_________________________________________________
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_________________________________________________
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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
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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.
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14.4
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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.
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14.5
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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
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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.
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ARTICLE 15 - GOVERNING LAW – JURISDICTION
15.1
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This Supplemental Agreement shall be governed by and construed in accordance with the laws of France.
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15.2
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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.
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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)
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MASTER LICENSEE
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[NAME OF SIGNATORY] |
[NAME OF SIGNATORY] |
[NAME OF THE DISTRIBUTOR'S COMPANY]
[NAME OF SIGNATORY]