1
EXHIBIT 10.43
EXCLUSIVE DISTRIBUTORSHIP AGREEMENT
BETWEEN:
CEBE INTERNATIONAL S.A., a corporation duly registered under the laws of France,
with its head office at 00, xxxxxx Xxxxxxx xx Xxxxxx, 00000 Xxxxx (Xxxxxx), duly
represented for the purposes hereof by its Chairman and CEO, Xx. Xxxxx Cahierre,
Hereinafter referred to as "Manufacturer" AND:
PRIVATE EYES SUNGLASS CORPORATION, A corporation duly registered under the laws
of the state of Washington (USA), with its head office at 00 Xxxxxx Xxxx Xxxxx,
Xxxxxxxx X0, Xxxxxxx, Xxxxxxxxxxxxx, 00000 XXX, duly represented for the
purposes hereof by its President, Xx. Xxxxxxx X. Xxxxxx Xx.,
Hereinafter referred to as "Distributor"
2
RECITALS
A. Manufacturer is engaged in the business of designing and manufacturing
certain products as of sunglasses and optical frames and other eyewear
related products;
B. Manufacturer has been granted all rights and title to use freely the
trademark "Xxxxxxxxxx Xxxxx" pursuant to a contract executed with the
Xxxxxxxxxx Xxxxx company on December 2, 1996 (hereinafter referred to as
the "License Contract"), which will terminate on November 30, 2001.
Manufacturer entered into the License Contract with Xxxxxxxxxx Xxxxx, a
company duly registered under the laws of France, (hereinafter
"Xxxxxxxxxx Xxxxx SA").
It is expressly agreed between the parties that this agreement may be
terminated, without indemnity and after a maximum notice corresponding
to that of the License Contract, in case of termination of the License
Contract for any reason whatsoever.
Such cause of termination is a condition precedent of this agreement
without which Manufacturer would not have been willing to enter into
this agreement.
C. Manufacturer now desires to promote the sale of said products in the USA
and Canada;
D. Distributor is engaged in the business of the sale and distribution of
eyewear related products in the USA and Canada;
E. Distributor desires to distribute in the Territory (as hereinafter
defined) Manufacturer's products through optical stores, department
stores and other specialty sunglasses stores;
F. The parties desire to enter into an initial commercial distribution
arrangement for the distribution in the Territory (as hereinafter
defined) as described in, and as evidenced by, this agreement.
G. Manufacturer represents that it has entered into this agreement in
consideration of the presence of Xx. Xxxxxxx X. Xxxxxx Xx. as the
President of Distributor. It is therefore of the essence of the
agreement that, for a certain period of time, the obligations and duties
of Distributor under this agreement be performed under the supervision
and responsibility of Xx. Xxxxxx Sr.
If during the first two and a half (2 1/2) years of this agreement, Xx.
Xxxxxx Sr.'s employment with Distributor ceases for any reason,
including death or disability, then Manufacturer shall have the right to
terminate for cause this agreement if, in Manufacturer's judgment,
Distributor has not found a suitable replacement for Xx. Xxxxxx Sr.
3
AGREEMENT
NOW, THEREFORE, the parties hereto, in consideration of the covenants and
undertakings contained herein, mutually agree as follows:
SECTION 1. DEFINITIONS
As used herein, the following terms shall have the indicated meanings
1.1 Products shall mean exclusively Manufacturer's products sold under the
trademark "Xxxxxxxxxx Xxxxx".
Such Products are of an exclusive nature and are not and shall not be
sold through customers other than the Customers; in particular they
shall not be offered for sale to other distributors in the Territory.
1.2 Territory shall mean the United States of America and Canada.
1.3 Customers shall mean exclusively optical stores, department stores and
other specialty sunglasses stores located in the Territory.
1.4 Distributor shall mean Distributor and/or any person or party related to
or affiliated with Distributor.
1.5 Manufacturer shall mean Manufacturer and/or any person or party related
to or affiliated with Manufacturer.
1.6 Trademark shall mean the "Xxxxxxxxxx Xxxxx" trademark exclusively.
SECTION 2. EXCLUSIVE ENGAGEMENT
2.1 Manufacturer hereby engages, for the term of this agreement,
Distributor, to act as Manufacturer's distributor and service
representative in the Territory in order to distribute the Products on
an exclusive basis to the Customers.
Distributor shall purchase its requirement of the Products exclusively
from Manufacturer.
As far as is compatible with the laws and regulations in force,
Manufacturer shall not appoint, allow, permit or authorize, subject to
the provisions hereof, any other person to distribute, directly or
indirectly, the Products to the Customers.
Manufacturer shall promptly direct to Distributor any Customer inquiry
or order for Products.
4
2.2 Distributor shall not solicit customers for Products outside the
Territory, nor shall it establish any branch or maintain any warehouse
outside the Territory for the sale of the Products.
Distributor shall not sale to Customers having any branch, subsidiary,
affiliated company or any outlet whatsoever outside the Territory,
Products for sale outside the Territory.
Distributor shall not sell the Products to persons having their place of
business, or to purchasing agencies, located outside the Territory nor
shall it sell, transfer or otherwise make the Products available to any
person whom Distributor knows, or should reasonably know, intends to
ship and/or sell the Products outside the Territory.
SECTION 3. MINIMUM PURCHASES AND ORDERS
3.1 Minimum purchases. Distributor shall purchase the Products from
Manufacturer in amounts that equal or exceed the amounts indicated
below. For purposes of this section 3.1, a purchase of Products shall
only be taken into account when Manufacturer is paid for such Products.
YEAR MINIMUM PURCHASES
---- -----------------
1997 [*]Dollars
1998 [*]Dollars
1999 [*]Dollars
2000 [*]Dollars
2001 [*]Dollars
It is understood and agreed that the Distributor's undertaking to
fulfill such minimum purchase quantities as above mentioned is a
material obligation of Distributor without which Manufacturer would not
have been prepared to enter into this agreement. In the event that such
minimum quantities are not achieved, Manufacturer reserves the right to
terminate this agreement in accordance with Section 11 hereof.
3.2 Designs and Orders. Distributor shall be informed regularly by
Manufacturer of the Product designs of the following calendar year.
Distributor shall, working together with Manufacturer, determine from
time to time those models and styles in Manufacturer's collection of
Products which will be distributed by Distributor in the Territory (the
<>). Distributor shall include the full
Distributor's Collection in its sales programs.
5
According to its business requirements, Distributor shall place firm
orders to Manufacturer monthly in writing or by fax in the English
language. An orders and/or modifications placed by Distributor under
this agreement shall be subject to acceptance by Manufacturer and no
such order and/or modifications shall be binding until accepted by
Manufacturer. Acceptance shall be deemed to have been given if
Manufacturer does not, within ten days of actual receipt of an order,
notify Distributor of its rejection thereof.
Distributor may not cancel an accepted order without Manufacturer's
prior written consent.
The terms of this agreement shall in all events supersede any terms and
conditions of any order forms used by Distributor.
3.3 Delivery. Manufacturer undertakes to deliver the Products in the
quantities and on the dates set forth in the orders mentioned in Section
3.2. Such delivery schedules are given as an indication only and shall
not be binding upon Manufacturer. However, Manufacturer shall use its
best efforts to meet such delivery schedules.
Delivery shall take place ex-works [ Manufacturer's address in Morez I
(EXW INTERCOM 1990).
SECTION 4. PRICES / ROYALTIES
4.1 Prices. Manufacturer shall sell to Distributor, and Distributor shall
purchase exclusively from Manufacturer its requirements of the Products.
The prices and payment terms for the period ending June 30th, 1997 are
set on Exhibit A attached hereto. In May of each year during the term of
this agreement, the parties shall meet and agree upon prices for the
subsequent calendar year as well as a suggested retail price for the
Products which Distributor shall at all times suggest to the Customers.
4.2 Payment Terms. Manufacturer shall invoice Distributor on the date of
shipment for the Products and the royalty as hereunder detailed.
AR payments are due and payable on or before the expiration of sixty
(60) days from the date of invoice. AR payments shall be made by wire
transfer funds. The invoices shall be made in US Dollars.
4.3 Penalties in case of payment delays. Late payment by Distributor of
Manufacturer's invoices shall automatically be subject to an interest at
the then applicable French prime bank rate plus two points (2%) from the
expected date of payment to the actual date of receipt of the funds by
Manufacturer's bank.
4.4 In accordance with section 4.1 above, the price structure for the
Products shall be as detailed in Exhibit A attached hereto.
6
4.5. In consideration of the exclusive rights on the Trademark granted under
the term and conditions of this agreement, Distributor shall pay a
royalty equivalent to [*] percent [*]% of any and all amount paid to
Manufacturer for the Products.
Such royalty shall be calculated and payable together with its
corresponding invoice for the Products.
SECTION 5. RELATIONSHIP OF THE PARTIES
The parties expressly intend and agree that Distributor is acting as an
independent contractor and not as an employee, partner or agent of
Manufacturer. Distributor shall retain sole and absolute discretion,
control and judgment in the manner and means of carrying out
Distributor's selling, marketing and service activities except as to the
policies and procedures set forth herein. Manufacturer/Distributor shall
not and has no power expressed or implied to make any promise, warranty
or representation on behalf of Distributor/Manufacturer or to bind
Distributor/Manufacturer to third parties in any manner, unless approved
by Distributor/Manufacturer.
In particular, in all relevant correspondence and other dealings
relating directly or indirectly to the sale or other disposition of the
Products, Distributor shall clearly indicate that it is acting as
principal and it shall in no circumstances expressly or impliedly do any
act or thing which may cause it to be considered by third parties as
acting as an agent of Manufacturer.
SECTION 6. TRADEMARK LICENSE AND PROTECTION OF THE TRADEMARK
6.1 Distributor shall be freely authorized to use in the Territory the
Trademark when necessary for the sale and distribution of the Products
in the Territory under the terms and conditions provided for in this
agreement.
6.2 Distributor specifically acknowledges that its use of the Trademark
shall not create, whether in the Territory or abroad, for Distributor
title or interest in the Trademark and that every use of the Trademark
by Distributor shall enure to the benefit of Manufacturer.
6.3 Distributor shall not use, whether in the Territory or abroad, the
Trademark in any way whatsoever with respect to products, goods, things
or services other than the Products.
Distributor shall at all times use the Trademark when displaying,
selling or using in any way whatsoever the Products.
7
6.4 Distributor shall not register or try to register or cause to be
registered, in any country, including the Territory, in any class, the
Trademark or any trademark related to or similar to the Trademark or
trademarks associated with the Trademark.
6.5 Distributor shall forthwith discontinue any use of the Trademark for any
reason whatsoever upon Termination of this agreement.
6.6. Distributor shall forthwith discontinue any use of the Trademark upon
termination, for any reason whatsoever, upon termination of the License
Contract.
As an amplification of the provisions of section 11.4 hereunder
Distributor shall not be entitled to claim any damage to Manufacturer in
case of such termination.
6.7 In the event that Distributor knows of a third party having made any use
and/or infringement whatsoever of the Trademark in the Territory,
Distributor shall forthwith inform in writing Manufacturer thereof, and
take all necessary steps, including but not limited to, the institution
of legal procedures, to safeguard the rights of the Manufacturer on the
Trademark and generally assist Manufacturer in defending such rights.
The reasonable expenses of Distributor in such respect will be paid by
Manufacturer.
6.7 In the event that any third party claims in the Territory that the use
of the Trademark is an infringement of its rights, Distributor shall
forthwith inform in writing Manufacturer thereof, and Manufacturer may
decide to take the conduct of the defense in any proceedings that may be
instituted on such grounds.
SECTION 7. DUTIES OF THE DISTRIBUTOR
7.1 Promotion
7.1.1 Best efforts. Distributor shall use its commercially reasonable
best efforts to promote, maintain and increase the demand for and sale
of the Products to all Customers. In accordance with article 3.2 hereof,
Distributor shall at all times include the full collection of Products
in its sales program.
In particular, Distributor shall at all times take all necessary steps
to preserve and maintain the brand image of the Products and the
Trademark and make sure that the Products are never offered to the end
consumers in downgrading conditions.
Distributor shall maintain adequate facilities and employ and maintain
at its expense sufficient personnel for such purpose.
Distributor shall take all necessary steps to insure that those sales
and service personnel who are assigned by Distributor the task of
marketing the Products are fully familiar with the Products and trained
accordingly.
8
7.1.2 Advertising. Each year, Distributor shall spend, for the
advertising and promotion of the Products, various amounts that equal or
exceed the amounts indicated below (hereinafter the <>):
- fifty per cent (50%) of the royalties paid to Manufacturer in
accordance with article 4.5 hereof, plus
- an amount calculated as a fixed percentage of the Minimum Purchases
mentioned in article 3.1 hereof
MINIMUM NON
YEAR MINIMUM PURCHASES ROYALTY-RELATED
(US Dollars) ADVERTISING EXPENSES
(US Dollars)
1997 [*] [*]
1998 [*] [*]
1999 [*] [*]
2000 [*] [*]
2001 [*] [*]
For the computation of the Minimum Advertising Expenses, one shall only
take into account the purchase of advertising space, therefore excluding
monies spent in exhibitions or trade-shows but including monies spent on
the Sunglass Hut catalog,
and such expenses shall be itemized and reported to Manufacturer by
Distributor in accordance with Section 7.5.
7.2 Service/Technical Assistance. Distributor shall:
(i) instruct Customers in the correct operation and safe use of the
Products and give prompt and satisfactory service of the
maintenance and repair of Products, if needed;
(ii) maintain a fully equipped repair department with adequate tools
and equipment for the efficient maintenance of the Products;
(iii) employ such number of technically qualified and trained
personnel as may be necessary to ensure the prompt and efficient
provision of both after-sales and guarantee service for the
Products;
(iv) maintain a sufficient stock of spare and replacement parts for
the Products to meet anticipated demand for both after-sales and
guarantee work in the Territory.
9
For safety reasons, Distributor shall buy the spare parts only
from Manufacturer or from suppliers priorly approved in writing
by Manufacturer, which approval shall not be unreasonably
withheld;
(v) make available after-sales services and service to all users of
the Products situated in the Territory in accordance with the
marketing needs and good standing image of the Products and in
order to ensure such image in the long run;
(vi) permit the Manufacturer or its authorised representatives at all
reasonable times to inspect the repair shop of the Distributor,
its stock of spare parts for the Products, and its tools and
equipment for performing both the after-sales service and
guarantee work and to watch and supervise the carrying out of
both after-sales service and guarantee work of the Products.
7.3 Inventory.
7.3.1 Products inventory. Distributor shall constantly maintain in stock
an inventory of Products equivalent to at least four (4) weeks of its
sales targets.
7.3.2 Spare Parts inventory. Manufacturer shall deliver and Distributor
shall purchase and maintain sufficient inventories of spare parts for
each Product, if needed, in such quantities as is necessary or
appropriate to enable Distributor to service the Customers without
unreasonable delay or complaint.
7.4 Packaging. Distributor shall:
(i) sell the Products only in the packaging supplied for that
purpose by Manufacturer and in particular shall not affix to the
Products or their packaging any additional labels or signs.
(ii) not deface or alter the Products or their packaging in any
manner whatsoever for any reason whatsoever and in particular
shall not alter remove or in any way temper with the Trademark
or numbers on the Products.
7.5 Regular Reports.
Distributor shall
(i) keep Manufacturer regularly informed of the progress and
development of the market for the Products in the Territory and
of all regulations affecting the import, distribution and sale
of the Products therein.
10
In particular, every calendar quarter, Distributor shall provide Manufacturer
with the following information in writing:
1. number of sales outlets of Distributor selling the Products in the
Territory (per State in the USA and per Province in Canada);
2. net sales made with the Products by Distributor (per State in the USA
and per Province in Canada);
3. list of Products and number of Products sold in the Territory;
4. forecasts of the sales of the Products by Distributor for the next
calendar quarter;
5. inventory level for each of the Products;
6. amounts spent by Distributor for the promotion and advertising of the
Products (Distributor shall provide a fully-detailed description of the
nature and cost of each advertising and promotion).
(ii) send to Manufacturer upon reasonable request such details of
future sales and stocks and other statistical forecasts as
Manufacturer may reasonably require for budgetary purposes and
for programming future production.
(iii) generally, deliver to Manufacturer, upon request, reports
setting forth matters of common interest to the parties as may
be reasonably requested by Manufacturer. The said obligation to
keep Manufacturer informed shall not extend to the disclosure of
the identity of Customers, during the term of this agreement.
7.6 Customs Duties. All costs and expenses for inbound customs duties
incurred in connection with the Products shall be paid by Distributor.
7.7 Government Studies. Unless required by government laws or regulations,
Distributor shall not commit the Products to any governmental safety or
efficiency study for whatever purpose without Manufacturer's prior
written approval.
7.8 Governmental Approvals. Manufacturer shall obtain and maintain at
Manufacturer's cost and expense, any and all Government or Agency
Approvals necessary for the Products.
At all times during the continuance of this agreement, Distributor shall comply
with all laws, rules and regulations applicable within the Territory, governing
the sales, distribution, shipment or import of any and all Products.
11
At all times during the continuance of this agreement, Distributor shall have '
in effect all licenses, permits and authorizations from all governmental
agencies within or without the Territory to the extent that the same are
necessary for the performance by Distributor of any and all obligations herein
undertaken by it.
SECTION 8. DUTIES OF THE MANUFACTURER
8.1 Products available.
8.1.1 Change of products. Manufacturer reserves the right from time to
time, without thereby incurring any liability to Distributor or
Customers to terminate, limit or change its production (including
without limitation changes in specifications of the Products) of any
Product upon 180 days notice to the Distributor.
8.1.2 Spare Parts. Manufacturer shall use its commercially reasonable
best efforts to have available for sale to and for use by Distributor in
providing service and repair services for Products acquired by
Distributor, spare parts for a period of two years after the last sale
of Products by Manufacturer to Distributor hereunder.
8.2 Manufacturer shall, at the cost and expense of Distributor, receive at
its premises such numbers of employees of Distributor as both parties
shall together consider appropriate for training in the technical
characteristics of the Products and the servicing thereof. The content
and duration of such training program shall be determined by
Manufacturer after consultation with Distributor.
Manufacturer may at its cost and expense periodically send one or more
executives to assist Distributor's staff assigned to the sale of the
Products.
SECTION 9. WARRANTIES
9.1 Insurance. Both parties shall maintain customary and adequate general
liability and products liability insurance coverage covering claims for
injury to persons or property caused by the Products or by their own
officers, directors, employees or agents.
9.2 Transfer of title and risk of loss. Unless otherwise agreed to in
writing by the parties hereto, the ownership of the legal title and
beneficial rights to, the risk of loss and the right to possession and
control over, all the Products to be sold by Manufacturer to
Distributor, shall pass to Distributor at the time and place that the
Products are delivered EXW in accordance with Section 3.3 hereof (or any
other Incoterm which the Parties may mutually agree upon in the future).
Manufacturer shall have no responsibility for any damage or loss
attributable to the carriers.
12
Distributor shall be responsible for and shall adequately insure the
Products from and after delivery on board the vessel. Until full payment
of the purchase price for the Products in question, Manufacturer shall
be automatically and fully subrogated in Distributor's rights to receive
all such insurance payments.
9.3 Distributor Warranty to Customer. In connection with its Products,
Distributor shall not give to Customers any warranty or warranties
greater than those granted by Manufacturer herein. In the event that,
notwithstanding the foregoing sentence, Distributor makes any warranties
to Customers greater than or in addition to those made by Manufacturer
hereunder, Distributor shall disclose, for compliance with any such
warranty or warranties, that Customers shall have no rights whatsoever
in connection therewith against Manufacturer. Distributor shall
indemnify, defend and hold harmless Manufacturer from any and all such
warranties.
9.4 Manufacturer's Warranty. Without in any way limiting or expanding, and
without being liable for, any additional warranty Distributor may
provide, Manufacturer warrants each Product to be free from defects in
design, material and workmanship under normal use and service
(hereinafter the "Warranty").
In case (i) any Product fails to conform to the Warranty and (ii)
Distributor notifies such failure to Manufacturer pursuant to the
procedure set forth hereunder, Manufacturer shall correct such defect
by, in Manufacturer's discretion, repairing or replacing such defective
Product at its expenses.
In order to ensure a continuous standard of high quality for the
Products and to benefit from such correction, Distributor shall
compulsorily notify Manufacturer in writing, within sixty (60) days as
from the date of reception of such Product(s), of any defective Product
by indicating the serial number, if available, of the defective Product
and by describing in detail the nature of the defect.
After such sixty (60) day period, Manufacturer shall have no obligation
in this respect.
The warranties set forth in this Section 9.4 shall be of no force and
effect with respect to any Product that (i) has been repaired by anyone
other than Distributor or an authorized retailer, or (ii) has been
altered or subjected to abuse, misuse, negligence or accident, or (iii)
has been used in any manner other than in accordance with the
instructions provided by Manufacturer.
THE WARRANTIES SET FORTH IN THIS SECTION 9.4 AND THE REMEDIES THEREFOR
ARE EXCLUSIVE AND IN LIEU OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR PARTICULAR PURPOSE OR OTHER WARRANTY OF QUALM WHETHER
EXPRESS OR IMPLIED.
13
IN NO EVENT SHALL MANUFACTURER BE LIABLE TO DISTRIBUTOR OR TO ANY THIRD
PARTY PURCHASING THROUGH DISTRIBUTOR FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES OR LOSSES, FOR INJURY TO PERSON OR PROPERTY OR FOR COMMERCIAL
LOSSES.
9.5 Litigation. Distributor shall be liable upon request of Manufacturer and
to a reasonable extent to give its supports of all kind if Manufacturer
within the Territory is a party concerned in matters of product
liability, trademarks, patents, licenses or other matters connected to
Products or to Manufacturer's various rights to Products. Nothing
contained in this Section 9.5 shall require Distributor to incur any
out-of pocket expense.
SECTION 10. PROPRIETARY INTEREST AND CONFIDENTIALITY
10.1 Proprietary Interest.
All patents, trademarks, trade names, copyrights and designs now and in
the future held by Manufacturer in relation to the Products and any
literature supplied by Manufacturer in connection therewith shall be and
remain at all times the full property of Manufacturer or Xxxxxxxxxx
Xxxxx SA.
Distributor recognizes the proprietary interest of Manufacturer and
Xxxxxxxxxx Xxxxx SA in the techniques, designs, specifications,
drawings, tests, procedures and other technical data relating to the
Products and other marketing and confidential business information
provided by the other party from time to time.
Distributor acknowledges and agrees that such techniques, designs,
specifications, drawings, tests, procedures and other technical data
relating to the Products and other marketing and confidential business
information constitute trade secrets of Manufacturer or Xxxxxxxxxx Xxxxx
SA and that all such information shall be and is the exclusive property
of Manufacturer or Xxxxxxxxxx Xxxxx SA.
Together with all patents, trademarks, trade names, copyrights and
designs now and in the future held by of Manufacturer or Xxxxxxxxxx
Xxxxx SA in relation to the Products and any literature supplied by
Manufacturer in connection therewith, the techniques, designs,
specifications, drawings, tests, procedures and other technical data
relating to the Products as well as other marketing and confidential
business information shall herein be referred to as "Proprietary
Information".
10.2 Confidentiality. Each party acknowledges and agrees that the other is
entitled to prevent its competitors from obtaining and utilizing its
secrets. Thus, each party shall hold the other's trade secrets in
strictest confidence and agrees not to disclose them or allow them to be
disclosed directly or indirectly to any other person or entity, other
than to persons engaged by such party for the purpose of performance
hereunder without the other's prior written consent.
14
Each party shall treat any such confidential information of the other in
a manner no less protective of such information than such party uses for
its own confidential information. Neither party shall, either during the
term of this agreement or at any time after expiration or sooner
termination of this agreement or during any extension hereof, disclose
to anyone other than persons engaged by it for the purpose of
performance hereunder any confidential or proprietary information or
trade secrets of the other obtained during the term hereof. Each party
shall place any persons to whom said information is disclosed for the
purpose of performance under this agreement under the legal obligation
to treat such information as strictly confidential.
Upon Termination of this agreement each party hereto shall return to the
other all of the Proprietary Information that was provided by such other
party during the term of this agreement as well as any copy or tangible
records whatsoever thereof.
SECTION 11. TERM AND TERMINATION
11.1 Term. This agreement shall be in force from its date of execution by
both parties and shall continue to be in full force and effect until
November 30, 2001 at the latest.
11.2 Termination for cause. Either party shall also have the right to
terminate this agreement in its entirety upon the occurrence of any of
the following, and the expiration of any applicable period of cure: (a)
failure of the other party to make any payment when due and the
expiration of thirty (30) days thereafter without cure ; (b) the failure
of the other party to comply with any term or condition of this
agreement and/or its recitals, and the expiration of thirty (30) days
from written notice thereof, specifying the nature of such default,
without cure ; (c) the dissolution or liquidation of the other party ;
(d) the insolvency or bankruptcy of the other party ; (e) the
institution of any proceeding by or against the other party under the
provisions of any insolvency or bankruptcy law ; (f) the appointment of
a receiver of any of the assets or property of the other party ; and (g)
the issuance of an order for an execution on the property of the other
party pursuant to a judgment.
11.3 Termination.
Upon Termination, Manufacturer shall repurchase from Distributor (at
Distributor's option) all Products held by Distributor in inventory for
less than twelve (12) months as of such date, which Distributor wishes
to sell back to Manufacturer. Such repurchase shall be:
at the initial purchase cost discounted by 30 % (invoiced purchase price
therefore excluding transportation and insurance) ; and
Distributor shall bear all freight insurance, brokerage and customs fees
for such repurchased Products.
15
11.4 Rights upon Termination. Should this agreement not be renewed at any
time and/or be terminated for any reason whatsoever, neither party
hereto shall be entitled to claim any compensation or damage from the
other save in the case of termination arising out of a breach by either
party hereto of any term or provision of this agreement and save for the
case set for in the next paragraphs.
It is expressly agreed that Manufacturer shall not be liable to pay any
compensation to Distributor for loss of profits or loss of goodwill or
for any other loss or damage howsoever arising as a result of
Termination of this agreement for any cause whatsoever.
In addition, the parties shall make their best efforts so that the sale
of the Products in the Territory shall not be discontinued. For such
purposes, they shall negotiate in good faith in order (i) to determine
which elements are necessary for the continuation of the on-going
business and (ii) to valuate fairly such elements and (iii) to transfer
those elements to the Manufacturer or any third party the Manufacturer
may elect to subrogate.
SECTION 12. INDEMNIFICATION
12.1 Distributor shall without any further responsibility or liability of or
recourse to Manufacturer or its affiliates, indemnify, defend and hold
harmless Manufacturer and its affiliates, officers, directors and
employees from and against any loss, damage, injury, liability, claims,
causes of action or other expenses, including reasonable attorneys fees,
that Manufacturer and/or its affiliates, officers, directors or
employees may suffer arising out of or resulting from acts or omissions
of the Distributor in connection with the distribution, service,
assembling, repackaging or repair of Products distributed by the
Distributor.
The provisions of this Section 12.1 shall not apply in the event of any
loss, damage, injury, liability, claims, causes of action or other
expenses, including reasonable attorney's fees, arising out of or
resulting from acts or omissions of Manufacturer.
12.2 Manufacturer shall without any further responsibility or liability of or
recourse to Distributor or its affiliates, indemnify, defend and hold
harmless Distributor and its affiliates, officers, directors and
employees from and against any loss, damage, injury, liability, claims,
causes of action or other expenses including reasonable attorney's fees,
that Distributor and/or its affiliates, officers, directors or employees
may suffer arising out of or resulting from acts or omissions of the
Manufacturer relating to Manufacturer's design, manufacture, service
assembling, packaging or repair of any product or claims of patent
infringement brought relating to Products distributed by Distributor.
The provisions of this Section 12.2 shall not apply in the event of any
loss, damage, injury, liability, claim, causes of action or other
expenses including reasonable attorneys' fees arising out of the
resulting from acts or omissions of Distributor.
16
12.3 The indemnity obligations of Sections 12.1 and 12.2 shall survive the
Termination of this agreement.
SECTION 13. GENERAL PROVISIONS
13.1 Assignment. The rights and obligations binding upon Distributor under
this agreement are personal and may not be transferred or assigned
without the prior written consent of Manufacturer which consent shall
not be unreasonably withheld, and any assignment or transfer in
violation of this agreement shall be null and void without formality.
A merger or sale of stock leading to a change of control of Distributor
shall be deemed an assignment for purposes of this agreement.
Notwithstanding the above paragraphs, Distributor may appoint assistant
or subsidiary dealers in the Territory for the purpose of selling and
distributing the Products. Distributor agrees to advise Manufacturer of
the names and addresses of any proposed assistant or subsidiary dealers
and the appointment thereof shall be subject to the prior written
approval of Manufacturer
Upon signature of any agreement with such assistant or subsidiary
dealers, true copies thereof shall be immediately sent to Manufacturer.
Distributor agrees to be responsible to ensure that the conduct of any
such assistant or subsidiary dealers does not conflict with any of the
terms and conditions of this agreement and Distributor further agrees
that, unless Manufacturer otherwise agrees, all orders to Manufacturer
for Products shall be placed through Distributor and Distributor shall
be responsible for payment therefor.
Distributor shall not create or imply any obligation whatsoever of
Manufacturer to any such assistant or subsidiary dealers.
13.2 Causes Beyond Control. Manufacturer and Distributor shall not be
responsible for any loss or breach due to delay in delivery or
performance hereunder caused by other parties, governmental regulations,
controls or directions, outbreak of a state of emergency, acts of God or
hostilities, civil commotion, riots, epidemics, perils of the sea or
other natural casualties, fires, strikes, walkouts or other similar
cause or causes beyond the control of the parties.
13.3 Administrative Intervention. If at any time during the term of this
agreement, any government, governmental authority or agency having
jurisdiction over this Agreement, should raise, formally or informally,
any complaint, objection, demand, request or recommendation of any
nature affecting, in any manner howsoever, the implementation or
performance hereof or should require directly or indirectly, alteration
or modification of any term or condition hereof in a manner which has a
material effect on either party hereto, then such party may, in its sole
discretion, give written notice to the other party hereto setting forth
its objection thereto and requesting mutual consultation in relation
thereto.
17
Not later than thirty (30) days after the despatch of such notice, the
parties hereto shall discuss in good faith the possibilities of a
mutually satisfactory solution to such objection ; provided, however,
that in the event that the parties shall fail to reach agreement in
writing on any such mutually satisfactory solution within ninety (90)
days after the date of despatch of such notice the party hereto which
has given said notice shall have the rights at its sole discretion, to
terminate this agreement by a ninety (90) days written notice to the
other party hereto.
13.4 Entire agreement. This agreement and the documents referenced herein
constitute the entire agreement between the parties in connection with
the subject matter hereof and shall supersede all prior agreements,
whether oral or in writing, whether explicit or implicit, which have
been entered into prior to the execution hereof.
13.5 No Waiver. Failure by either party hereto to enforce at any time any
term or condition under this agreement shall never be considered to be a
waiver of the right to act on the failure of such term or condition and
shall not impair or waive that party's right thereafter to enforce each
and every term and condition of this agreement.
13.6 Notices. Any communication under this agreement shall be given as
follows
13.6.1 International. General correspondence may be given by facsimile
transmission, and the confirmation of transmission shall be conclusive
evidence of delivery and receipt at the following 'facsimile" number or
such other 'facsimile' number as either party may at any time notify to
the other party by facsimile transmission.
Facsimile Number
Manufacturer: (33.3) 84 33 25 80
Distributor: (1.617) 878 73 84
13.6.2 Notices. Notices may be given by prepaid certified or registered
airmail at the addresses set forth below, or such other addresses as
either party may at any time notify to the other party in writing in
accordance with this Section. Notices shall be deemed to have been
received upon the expiration of seven (7) business days from delivery to
the postal service.
18
MANUFACTURER:
CEBE INTERNATIONAL S.A.
Attn: Xx. Xxxxx Cahierre, President
12, avenue Xxxxxxx xx Xxxxxx
00000 Xxxxx
Xxxxxx
DISTRIBUTOR:
PRIVATE EYES SUNGLASS Corporation
Attn: Xx. Xxxxxxx X. Xxxxxx Xx., President
00 Xxxxxx Xxxx Xxxxx,
Xxxxxxxx X0,
Xxxxxxx,
Xxxxxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
13.7 Modification. No modification in the terms of this agreement shall be
binding on either party unless in writing and executed by the then duly
authorized representatives of each party.
13.8 Paragraph Headings. The headings of the several paragraphs of this
agreement are inserted solely for convergence of reference and are not a
part of and are not intended to govern, limit or aid in the construction
of any term or provision hereof.
13.9 Language/ Number and Gender. This agreement is executed in the English
language which shall be prevailing at all times.
All words used herein in the singular/plural number shall include the
plural/singular and the present/future tense shall include the
future/present and the neuter gender shall include the masculine and
feminine.
13.10 Attorney's fees. In the event of any legal proceeding to enforce the
provisions of this agreement, the prevailing party in such legal
proceeding shall be entitled to reasonable attorney's fees as fixed by
the Court.
13.11 Jurisdiction. All disputes arising in connection with this agreement,
which could not be settled amicably, shall be exclusively submitted to
the Paris Commercial Court.
This agreement is expressly submitted to the laws of France to construe
and govern the terms and performance of this agreement.
19
Notwithstanding the provisions of the above paragraph, the parties shall
be entitled to have recourse to relevant courts and jurisdictions in order
to request any provisional measure that might be needed in order to
preserve their rights resulting from this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed
by their duly authorized representatives as of the date hereunder written.
MANUFACTURER: DISTRIBUTOR:
By: /S/ ARMEL CAHIERRE By: /S/ XXXXXXX XXXXXX
Title: President and Director Title: President
Date: October 25, 1997
Place: France
Four original copies, two for each party
EXHIBIT
Exhibit A Price Structure
