EXHIBIT 10.116.1
LOGISTICS SERVICE CONTRACT
BETWEEN
The INTER PARFUMS Company, a Corporation with capital of (euro)12,816,594, with
headquarters at 0, Xxxx xxxxx xxx Xxxxxx Xxxxxxx, 00000 XXXXX, registered under
the Commerce and Companies Registry of Paris under the number 350 219 382,
Represented by Xx. Xxxxxxxx XXXXXXX, the President and General Director
Designated hereinafter INTER PARFUMS,
PARTY OF THE FIRST PART,
AND
The SAGATRANS Company, a simplified joint stock company with capital of
(euro)23,880,825, with headquarters at 00/00 xxxx xx Xxxx Xxxxxx, 00000 XXXXXXX,
registered under the Commerce and Companies Registry of NANTERRE under the
number 712 025 691,
Represented by Mr. Philippe CHAMINADE, President
Designated hereinafter SAGATRANS,
PARTY OF THE SECOND PART,
EXHIBIT 10.116.1
SUMMARY
ARTICLE 1 - PURPOSE
ARTICLE 2 - EXCLUSIVITY
ARTICLE 3 - SETUP AND EQUIPMENT
ARTICLE 4 - MERCHANDISE AND PACKAGING
ARTICLE 5 - PROVISIONING AND RECEIPT OF MERCHANDISE
ARTICLE 6 - LOGISTICS SERVICES
ARTICLE 7 - COMPLEMENTARY SERVICES
ARTICLE 8 - RIGHT TO ACCESS
ARTICLE 9 - INVENTORY
ARTICLE 10 - ORDERS
ARTICLE 11 - MERCHANDISE OUTPUT
ARTICLE 12 - REMUNERATION
ARTICLE 13 - EXTRAORDINARY REVIEWS
ARTICLE 14 - RESPONSIBILITIES
ARTICLE 15 - INSURANCE
ARTICLE 16 - ACTS OF GOD
ARTICLE 17 - MANAGING AND ADAPTING THE CONTRACT
ARTICLE 18 - TERM
ARTICLE 19 - AUTONOMY OF THE PARTIES
ARTICLE 20 - CONFIDENTIALITY
ARTICLE 21 - BREACH OF CONTRACT
ARTICLE 22 - TRANSFER
ARTICLE 23 - LIMITS
ARTICLE 24 - HEADINGS
ARTICLE 25 - PARTIAL INVALIDITY
ARTICLE 26 - ELECTION OF DOMICILE
ARTICLE 27 - REGISTRATION
ARTICLE 28 - JURISDICTION
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EXHIBIT 10.116.1
WHICH HAVE AGREED TO THE FOLLOWING BEFOREHAND:
On May 29, 1995, the company SAGATRANS, a company specialized in logistics and
the organization of transportation, and the company INTER PARFUMS, a company
specialized in the creation, manufacture and marketing of perfumes and cosmetic
Products, have signed a Memorandum of Understanding, with retroactive effect to
January 1, 1995, under the terms of which INTER PARFUMS has entrusted to
SAGATRANS, from its site at Xxxxx, Xxxx Maletra street, the management of its
cosmetic Products and perfume stock intended for export. This contract was
amended on December 18 and 20, 1995, and on June 24, 1997.
In order to meet the needs of the company INTER PARFUMS created by the growth of
its activities, and with its decision to entrust SAGATRANS with the storage of
its Products bound for the French market as well as those intended for
exportation, the parties have agreed to transfer storage of the Products
marketed by INTER PARFUMS to a new platform dedicated to INTER PARFUMS'
activity.
Therefore, on May 5, 1998, INTER PARFUMS and SAGATRANS signed a contract for the
provision of services related to the organization and the execution of
operations dealing with reception, storage, preparation of orders for cosmetic
and perfume Products marketed by INTER PARFUMS, within a warehouse with 8,000
m(2) of area, (Building A) leased by SAGATRANS on the site of Rouen Vallee de
Seine Logistique and dedicated solely to INTER PARFUMS' activities. Startup of
the operation began on August 1, 1999.
To meet the needs of INTER PARFUMS, SAGATRANS has secured a lease on a building
to be used as a warehouse located near S.C.I. SOGARIS-PORT OF ROUEN VALLEY OF
THE SEINE beginning November 21, 2001 with a surface area of around 3,000 m(2)
and built as an extension of Building A and to begin operations in July of 2002,
and to pursue, together with the Port Authority of Rouen and SOGARIS, a study
for a project for implementation of a new warehouse with a surface area of
around 6,000 m(2) on the same site.
In the current of the year 2003 and 2004, the parties met regularly to examine
the ways and means necessary to meet the needs caused by the growth announced by
INTER PARFUMS. After concluding the various studies, the parties have agreed to
provide a new extension of the storage capacities on the site of the ROUEN
VALLEY OF THE SEINE. And to sign this contract which, from the date it goes into
effect, will involve the cancellation of the contract dated May 5, 1998 and its
amendments.
WHICH HEREBY AGREE TO THE FOLLOWING:
ARTICLE 1 - PURPOSE
INTER PARFUMS entrusts to SAGATRANS, which accepts, under the terms and
conditions made know hereafter, the organization and execution of operations
related to the reception, storage, and preparation of orders for Products
hereafter defined in article 4, intended for the national market and
exportation.
SAGATRANS commits to set up and adapt the structure, equipment, personnel and
materials necessary for carrying out the service entrusted and required by the
company INTER PERFUM under the conditions of these presents.
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EXHIBIT 10.116.1
ARTICLE 2 - EXCLUSIVITY
INTER PARFUMS entrusts to SAGATRANS exclusivity in the storage operations for
the end Products hereafter defined ("Products") and of the logistics described
in the present contract to the exclusion of all other complementary services.
The Parties agree that this exclusivity is authorized and accepted as long as
SAGATRANS, during the term of this contract, is able to offer to INTER PARFUMS
the structure, equipment, personnel and materials necessary to meet INTER
PARFUMS' storage demand capacity, in accordance with current law in force.
The parties expressly agree that notwithstanding this exclusivity, INTER PARFUMS
reserves the right, should circumstances require it, and especially in an
emergency, in the case of factories located abroad that produce promotional
articles, to handle forwarding its Products using its own means from the
factories and consequently to exclude the sales turnover related with this order
from the calculation of SAGATRANS' remuneration, as defined in article 12.
ARTICLE 3 - SETUP AND EQUIPMENT
3.1. STORAGE AREAS
SAGATRANS has in place and on the site of ROUEN VALLEE DE SEINE LOGISTIQUE a
property with the structure sufficient to carry out the service entrusted and
required by INTER PARFUMS and that shall permit:
- Storage of the Products entrusted to them by INTER PARFUMS at ambient
temperature (above freezing) in Warehouse A,
- Preparation of the orders (picking) for France and those for exportation
- The ability to ensure administrative management of the operations in the
offices contiguous to warehouse A
In order to respond to the request of INTER PARFUMS to increase storage
capacities, SAGATRANS hereby commits to lease, near the SCI constituted between
the Port Authority of Rouen and SOGARIS or any other entity which it may act as
a substitute, the new storage areas located on the public land on the site of
Rouen Vallee de Seine Logistique.
At the current state of the construction project presented by the Port
Authority, the additional storage areas could be put into operation by October
1, 2005. It is agreed that SAGATRANS, which INTER PARFUMS expressly accepts,
shall not be held responsible for any delays in the construction to be carried
out by the Port Authority of Rouen and/or the above mentioned SCI; and that
consequently the realization of this work upon which the effective introduction
of the extension depends, may carry no consequence regarding responsibility
within the existing framework of the contractual relationship between INTER
PARFUMS and SAGATRANS. Nevertheless, SAGATRANS will make its best effort to
implement all necessary resources at the disposition of the SCI in order to
ensure, as far as possible, the preparations for operation of the aforementioned
supplementary storage areas within the expected time.
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EXHIBIT 10.116.1
SAGATRANS agrees to immediately inform INTER PARFUMS of any incident likely to
call into question or delay the construction of the building, in order to allow
the parties to consider new solutions.
Once the additional storage areas are operational, which is planned to take
place on October 1, 2005, SAGATRANS will be able to offer INTER PARFUMS a
storage capacity of 14,000 pallets (100 x 120 base) on the site of PORT DE ROUEN
VALLEE DE SEINE LOGISTIQUE distributed between building A and building B, built
and designed in conformity with the current law in force regarding these types
of facilities and environmental protection. Building B shall be equipped with a
sprinkling system adapted to the nature of the Products and their storage
method. SAGATRANS is committed to increasing, throughout the term of this
contract, its storage capacity to 20,000 pallets (100 x 120 base) as INTER
PARFUMS' needs evolve linked to the development of its activities and as
outlined in Annex 1 of these presents.
3.2. EQUIPMENT
SAGATRANS shall make available all equipment necessary to carry out the services
defined in the present contract and in particular:
- a set of pallet racks which are able to accommodate pallets measuring 100
x 120,
- specific equipment (dynamic) to prepare orders for France including a heat
shrink tunnel,
- a stretch film wrapper for pallets,
- a set of forklifts adapted to the storage arrangement.
It is agreed that SAGATRANS shall increase or supplement its equipment in order
to ensure optimal management of the Product storage entrusted to it by INTER
PARFUMS under this contract.
3.3. COMPUTER INSTALLATION
SAGATRANS has obtained a computer program specific to stock management, which it
reserves the right to modify subject to prior agreement with INTER PARFUMS, and
for which new functionalities, in particular as regards radio frequency and
identification of parcels, will be in operation by January 31, 2005. SAGATRANS
will implement all of these, in order to keep any disruption resulting from the
modifications at a minimum, and should not involve any important function in the
data processing.
A computer link shall be established between SAGATRANS and INTER PARFUMS in
order to allow the latter to directly transmit its orders to SAGATRANS, to know
the whereabouts of the stock, track order preparation, and packing lists.
SAGATRANS commits to perform updates of the new versions of the computer except
for specific functions, which shall be subject to specific terms and conditions
and to a special agreement between the parties.
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EXHIBIT 10.116.1
In the event of dysfunction of any nature involving this computer application,
SAGATRANS shall commit to carry out or shall have any and all maintenance
carried out that might be necessary to make the system operational as soon as
possible, especially, to benefit INTER PARFUMS with maintenance deadlines,
SAGATRANS should provide support with computer maintenance providers that are
nearby. All requests must be attended to within a maximum of 24 business hours.
At the end of the contract, the computer application provided by SAGATRANS will
remain the property of SAGATRANS. Consequently, INTER PARFUMS commits to
restoring said application to SAGATRANS, as well as the modem, interface and all
other materials belonging to SAGATRANS, upon the first request from the latter.
At the end of the contract, SAGATRANS will put automatically terminate the
computer link.
3.4. SUITABILITY OF THE RESOURCES IMPLEMENTED
INTER PARFUMS confirms that in the current state of development of its
activities and the nature of the entrusted Products, the storage areas,
facilities and equipment described above are necessary and sufficient to fulfill
the services which it hereby entrusts to SAGATRANS and is particularly adapted
to the conservation, maintenance, and processing of the flow of merchandise.
Respect for the date established by the parties and that were used as a basis
for dimensioning the resources implemented was an essential point of this
contract.
ARTICLE 4 - MERCHANDISE AND PACKAGING
4.1. INTER PARFUMS entrusts SAGATRANS with the following finished Products:
o perfumes,
o cosmetics and body care products,
o soaps, shampoos and other body cleansing products,
o spray conditioning products,
o in addition to the whole range and line of cosmetic or perfumery products as
well as all accessories marketed by INTER PARFUMS, with the exception of
packaging items such as pumps, stickers, bottles, caps, cases, boxes,
concentrates, extracts, labels.
The parties agree that the brands assigned to the entire line of Products
entrusted to SAGATRANS are all the brands marketed by INTER PARFUMS at the date
of signature of this contract, with the express exception of LANVIN product
sales intended for export which shall be entrusted to SAGATRANS once building B
is in operation.
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EXHIBIT 10.116.1
The parties expressly exclude from this contract all products the storage
of which (due to their nature and quantity) is not validly authorized by
the Magisterial Decrees handed down in reference to categories 1510
(covered warehouse), 1430 (flammable liquids) in accordance with the
regulation of facilities classified for the environmental protection which
include the warehouses located on the site of the ROUEN VALLEY OF THE
SEINE.
It is expressly specified that, in accordance with the Magisterial Decrees
handed down an material to the framework of the regulation of facilities
classified for environmental protection, the volume of alcohol contained in
stored flammable liquids must not exceed 400 m3 in Warehouse A and 100 m(3) in
Warehouse B. In the event the volume authorized is exceeded, the parties will
act in concert to find methods of storage for the surplus of the Products
concerned.
4.2. The Products are packaged on pallets covered with plastic film, indicating
the number of boxes contained in each pallet, and the boxes shall indicate the
number of Products which they contain.
4.3. INTER PARFUMS shall be responsible for providing all information to
SAGATRANS on the characteristics of the Products and especially regarding their
classifications, the volume of alcohol contained, any inherent storage
restrictions in certain Products and incurred risks.
SAGATRANS shall not be held responsible for the consequences of incomplete or
erroneous information, especially in regards to the nature and the composition
of the Products.
SAGATRANS shall have the power to undertake a transfer of the goods (subject of
an erroneous or incomplete statement) to a suitable location, that is to say to
undertake reshipment, in the event said risk is likely to compromise the safety
of its activities, its personnel or third parties.
SAGATRANS shall have the right to refuse the entry of the goods which, due to
their state or their nature, would be in manifest infringement of current laws
and regulations in force.
ARTICLE 5 - PROVISIONING AND RECEIPT OF MERCHANDISE
5.1. The company INTER PARFUMS shall only handle the management of the warehouse
supply goods.
It shall remain the responsibility of the company INTER PARFUMS to make sure
that stock thus generated always be sufficient, in quantity as well as in
assortment, to make it possible for SAGATRANS to prepare the INTER PARFUMS
orders that go through to them.
INTER PARFUMS shall communicate a supply plan for the W+1 week to SAGATRANS so
that they can ensure that the goods are received under optimal conditions.
As such, SAGATRANS shall not be held responsible for the breakage of the stock
which is entrusted to them in this way.
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EXHIBIT 10.116.1
5.2. SAGATRANS shall be in charge of receiving and unloading the goods delivered
to them from Monday to Friday, from 7:30 a.m. to 11:30 a.m. and 1:30 p.m. to
5:15 p.m.
5.3. SAGATRANS shall check the apparent state of the pallets and the boxes as
well as the quantity delivered, shall reserve all rights with regard to the
shippers in the event of damages, of certifiable breakage or missing items, the
claim letter shall be written within the usual timeframe and all the necessary
documents shall be transmitted to INTER PARFUMS in order for them to file a
request for compensation from the shippers.
SAGATRANS shall immediately notify the company INTER PARFUMS of these incidents.
SAGATRANS will also carry out a quantitative and qualitative checking of the
contents by opening of a delivered box and will inform INTER PARFUMS immediately
of the inconsistencies recorded by comparing it against the delivery order.
In the event of significant damage, SAGATRANS shall have the right to require
that INTER PARFUMS enlist the services of an expert in order to retain their
rights with regard to its suppliers and/or transporters, given that that the
transfer of responsibility is carried out during unloading.
5.4. It is expressly agreed that SAGATRANS shall not be held responsible for
errors and/or breakages, no matter what the reason may be, that have occurred
because of the shipper responsible for transporting these goods.
5.5. The Products shall be received on non-returnable pallets and packing.
ARTICLE 6 - LOGISTICS SERVICES
6.1. SAGATRANS will perform the following logistic services for the account of
INTER PARFUMS:
- Unloading of the goods;
- Reception of the goods under the conditions outlined in articles 5.3 and
5.4
- Storage and conservation of the goods at ambient temperature (above
freezing);
- Management of stock (control, inventory, first in
- first out, according to the manner of management retained by INTER
PARFUMS); - Preparation of orders in accordance with the instructions from
INTER PARFUMS and breakdown of the pallets used;
- Computer management of stock that allows the INTER PARFUMS company to
track their own inventory.
6.2. All goods entrusted by the INTER PARFUMS company remain the property of the
latter. Nevertheless, SAGATRANS agrees to give the Products the same care that
it would give to objects belonging to them personally.
SAGATRANS is independent in its management. It accepts the responsibility of
managing the stock of the INTER PARFUMS company by devoting to it all the care
necessary, it is understood that the two parties agree to optimize the
management of the stock through thoughtful organization.
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EXHIBIT 10.116.1
The computer management installed by SAGATRANS makes it possible for INTER
PARFUMS to supervise the regular rotation of its stock.
6.3. If a product or several Products were not to be referred to by INTER
PARFUMS any more, or were to remain in the warehouse for more than six (6)
months with no inventory turnover, SAGATRANS would notify INTER PARFUMS and ask
what possible provisions should to be taken as for their transfer to another
SAGATRANS site located in Normandy.
SAGATRANS cannot be held responsible for the obsolescence of the Products in the
warehouse that have reached their final sell-by dates. SAGATRANS may in no case
be held responsible for the cost of the disposal of such Products.
ARTICLE 7 - COMPLEMENTARY SERVICES
SAGATRANS would be amenable to carrying out several services other than those
given in article 6, at the request of INTER PARFUMS. Those would be the
following, specifically:
o Extraordinary operations regarding inventory control or order preparation
consisting of repackaging of Products; modification of and/or adding labels
to the Products, coding and specific verification of the contents of the
boxes or bottles (in addition to the usage checks at the time the Products
are received and unloaded), verification of product returns of an exceptional
nature;
o Routing of Products at the departure or the destination or from the SAGATRANS
warehouse(s);
o Transporting of goods to other INTER PARFUMS sites and/or within France.
These services shall be subject to separate invoicing. The costs and methods of
payment and execution shall be established beforehand in writing by mutual
agreement between the parties, on a case by case basis, and in particular the
planning of these exceptional operations, so that they do not upset the priority
of processing orders intended for exportation and the French market.
ARTICLE 8 - RIGHT TO ACCESS
INTER PARFUMS shall enjoy free access to the SAGATRANS warehouse, provided, for
reasons of safety, it advises SAGATRANS beforehand of all visits and it will be
necessary that they be accompanied by a representative of SAGATRANS during the
entire visit. These visits must take place during the hours the establishment is
open and only on business days.
At the time of these visits, INTER PARFUMS may not be accompanied by third
parties that are non-members of their group without authorization from
SAGATRANS.
Access to the warehouses by third parties that are partners of INTER PARFUMS, in
order for them to take samples, needed for performing expert testing or to carry
out various control operations must be done under the same conditions as those
which are described above in this article.
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EXHIBIT 10.116.1
ARTICLE 9 - INVENTORY
An annual cross-inventory will be carried out for the entire lot of the Products
present in warehouse at the end of the fiscal year.
Moreover, the first business day of each month, an inventory will be carried out
by SAGATRANS on 20 to 30 exportation order categories and 10 to 15 France order
categories which will be selected by INTER PARFUMS. The inventories will be done
by comparing physical stock with the SAGATRANS computer record of the stock.
The parties agree to use an accounting procedure for Products chosen by way of a
mutual agreement and which is annexed to these presents under number 2.
ARTICLE 10: ORDERS
The company INTER PARFUMS shall send its orders to SAGATRANS by computer
connection by specifying the references, and quantities of Products which make
up the orders to be prepared, as well as the manner to prepare the order, the
destination, the recipient of the goods, the method of transportation considered
and date it will leave the warehouse.
However, finalized orders are systematically communicated to INTER PARFUMS who,
in the event of a disagreement, must make known it to SAGATRANS at least 48
hours before the departure of the order. If notice of disagreement is not
received, the order will be considered in order with the requirements of the
INTER PARFUMS company.
Orders will be prepared according to the FI-FO rule (first in - first out)
unless written instructions to the contrary from INTER PARFUMS are received.
SAGATRANS is committed to processing the orders within D+1 for France and D+3
for exportation. Respecting these deadlines implies that the orders sent by
INTER PARFUMS systematically and that SAGATRANS will be given three weeks notice
of all exceptional operations, except seasonal events, thus allowing the setup
of additional methods.
Pallets, boxes, containers or other packing are ordered by SAGATRANS after
reaching an agreement with INTER PARFUMS that will reflect INTER PARFUMS' needs
in regards to orders that are requested from and invoiced directly to INTER
PARFUMS.
Orders prepared at the request of INTER PARFUMS and that remain in the warehouse
for longer than two months, will be, if SAGATRANS considers it to be useful, and
after reaching a prior agreement with INTER PARFUMS, placed in other warehouses
on standby to later be removed.
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EXHIBIT 10.116.1
ARTICLE 11 - MERCHANDISE OUTPUT
Orders will leave in boxes, on full pallets (complete with origin or
reconstituted) or in containers, according to instructions given by INTER
PARFUMS. Preparation of the boxes or pallets will be carried out by SAGATRANS as
well as loading the containers. SAGATRANS shall be in charge of placing the
shipping labels on the boxes and parcels prepared.
SAGATRANS will oversee loading of the trucks upon request of INTER PARFUMS.
Loading leaving the warehouse will be performed, from Monday to Friday, from
7:30 a.m. to 11:30 a.m. and 1:30 p.m. to 5:30 p.m. A truck loading schedule
shall be agreed upon, so that the lead time is reduced to a minimum.
ARTICLE 12 - REMUNERATION
12.1. Remuneration of SAGATRANS, which shall be applicable beginning January 1,
2005, shall be calculated as a percentage of the sales turnover realized by
INTER PARFUMS according to following conditions, remembering that the total
amount of sales turnover may not include sales turnovers realized on orders
dispatched directly by INTER PARFUMS in accordance with article 2 and article
4.1:
12.1.1. EXPORT SERVICES
EXPORT SALES TURNOVER REMUNERATION
TAX-FREE TAX-FREE
Up to 100,000,000 Euros 1.85% of export sales turnover
From 100,000,000 to 150,000,000 Euros 1.60% of export sales turnover
From 150,000,000 to 200,000,000 Euros 1.50 % of export sales turnover
More than 200,000,000 Euros 1.40 % of export sales turnover
12.1.2. SERVICES IN FRANCE
20 % OF FRENCH TAX-FREE SALES TURNOVER
12.2. However, INTER PARFUMS guarantees a minimum annual remuneration to
SAGATRANS, the amounts of which shall be set as follows:
Year 2005: (euro) 2,100,000 Tax-Free
Year 2006: (euro) 2,600,000 Tax-Free
Year 2007: (euro) 2,600,000 Tax-Free
Year 2008: (euro) 2,700,000 Tax-Free
Year 2009: (euro) 2,800,000 Tax-Free
Year 2010: (euro) 2,900,000 Tax-Free
Year 2011: 9/12 * (euro) 3,000,000 Tax-Free
12.3. SAGATRANS will establish a monthly invoicing system for a lump sum amount
fixed at (euro) 210,000 in the year 2005 and at 1/12 of the amount of the
minimal annual remuneration for the following years.
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EXHIBIT 10.116.1
Monthly invoices will be payable by check at 60 days from the date of the
invoice, which shall be issued on the due date.
12.4. Remuneration due SAGATRANS will be paid semi-annually according to the
sales turnover realized by INTER PARFUMS originating from the SAGATRANS
warehouses. The net sales turnover, without tax, carried out in France and by
exportation, after deducting the returned Products, will be made known through a
certified affidavit issued by the Auditors of the INTER PARFUMS Company, and
will be provided within 30 days after books are closed in the six-month period
in which payment will be made. If the calculated amount, as indicated in article
12.1.1 is higher than the lump sum amount mentioned in article 12.3 for the
six-month period contemplated, SAGATRANS shall establish an invoice representing
the difference between the two amounts, payable upon receipt.
12.5. The remuneration referenced in article 12.1. covers all services performed
by SAGATRANS, pursuant to the terms of this contract, with the exception of:
o Complementary services referred to in article 7;
o Supplies specific to the processing of INTER PARFUMS operations, to wit:
pallets, boxes for certain orders, plastic film for the pallets coming out of
stock, labels, boxes for the preparation of orders within France, labels for
hazardous Products, tissue paper to protect bottles in parcels destined for
France, steel strapping to close boxes for France, packing peanuts for
nonstandard packages, other than all the usual office and computer supplies.
o Possible leasing of containers,
o expenses incurred for express shipping or any other method of fast routing of
envelopes or small parcels.
These services shall be subject to separate invoicing payable at 30 days. Costs
will be fixed beforehand in writing by mutual agreement between the parties, on
a case-by-case basis.
12.6. Any delay of payment shall involve late penalties at the legal rate of
interest x 1.5 at prorata temporis for the number of days of delay, the post
office date stamp shall serve as verification.
ARTICLE 13 - EXTRAORDINARY REVIEWS
Within the framework of this partnership contract, the parties agree that in the
event the information given by INTER PARFUMS changes in such a way that it would
cause new constraints to be placed upon SAGATRANS that were not envisaged on the
date this contract is signed, for example:
- Changes in the nature and characteristics of the Products,
- Changes in service completion periods,
- Changes to the packaging or handling materials,
- Changes to the computer system,
SAGATRANS may require a revision of the financial conditions of the contract
because of the aforesaid changes and resulting constraints in order to maintain
the economic equilibrium of this contract.
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EXHIBIT 10.116.1
In the same way, if new regulations become obligatory, especially regarding
warehouse safety, or if significant changes were to be imposed by INTER PARFUMS
regarding the storage conditions that would likely affect the economic
equilibrium of the contract, an extraordinary revision of the financial
conditions would be implemented within a maximum of one month after the date
when these events occur.
Also, the INTER PARFUMS company may request an extraordinary revision of the
financial conditions of the contract, if a substantial rise in its prices occurs
that is not related to increases in the business cycle.
ARTICLE 14 - RESPONSIBILITIES
14.1. SAGATRANS' RESPONSIBILITY AS A WAREHOUSE OWNER
Throughout the entire period when storage is provided, SAGATRANS shall be
responsible for guarding and conserving both the exterior quantity and exterior
quality of the goods and merchandise which are entrusted to him, in the
conditions hereafter outlined.
14.1.1. BREAKAGE
14.1.1.1. Any breakage found upon receipt of the goods at the platform will be
pointed out immediately by SAGATRANS to the INTER PARFUMS company. As indicated
in article 5.4, the INTER PARFUMS company shall conduct its dispute directly
with the transporters.
The damaged goods will be unloaded and stored in a specific zone where they will
be held at the disposal of the company INTER PARFUMS for a period of 30 days. At
the end of this period, if the goods concerned have not been removed or
destroyed by the INTER PARFUMS company, they will be destroyed or removed by
SAGATRANS at the expense of the INTER PARFUMS company, after having duly
informed INTER PARFUMS.
The cost of storing these goods shall be borne by the INTER PARFUMS company
under the conditions set forth in article 12.5.
14.1.1.2. Breakage discovered inside the warehouse, and which has occurred
because of SAGATRANS shall be stored in a specific area, pointed out to INTER
PARFUMS who will invoice SAGATRANS for the breakage at the resale price that was
quoted in the last audited stock listing; to which an overhead charge set by
mutual agreement between the parties will be added. If these destroyed or
damaged goods are part of an order invoiced by INTER PARFUMS, it will be
invoiced to SAGATRANS at the selling price invoiced by INTER PARFUMS to its
customer.
These goods shall be destroyed at the expense of SAGATRANS.
With the breakage thus noted, the stock is removed from the computer inventory,
and will not be included in the determination of the difference to be subtracted
from the total as set forth in article 14.1.2.2.
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EXHIBIT 10.116.1
14.1.2. MISSING MERCHANDISE
14.1.2.1. Any merchandise found missing upon receipt of the goods at the
platform will be pointed out immediately by SAGATRANS to the INTER PARFUMS
company. As indicated in article 5.4, the INTER PARFUMS company shall conduct
its dispute directly with their transporters and/or providers.
14.1.2.2. SAGATRANS may not be held responsible for the contents for the boxes
and other packaging since those were prepared, packed and closed under the care
of the supplier and the responsibility to check their contents does not lie with
SAGATRANS.
SAGATRANS may not be held responsible for missing stock occurring in the
warehouse and possibly noted at the time of the inventory, if the difference
noted between the physical inventory and computer inventory does not exceed 1.5%
(one and one-half percent).
If higher differences were to be noted, after taking a new physical
cross-inventory to confirm them, they would be invoiced at the quoted resale
price to SAGATRANS as defined in article 14.1.1.2 above.
SAGATRANS is committed however to notifying INTER PARFUMS of all missing
Products noticed when opening boxes or other packages when breaking them down in
the "picking" zone. In the event a batch is discovered to have a significant
number of missing Products, SAGATRANS will have INTER PARFUMS intervene so that
it may explore all recourse it has with its supplier.
In such case, the missing Products thus noted would not be retained in the
calculation of the difference referred to above.
14.2. SAGATRANS' RESPONSIBILITY REGARDING DISTRIBUTION AND TRANSPORTATION
14.2.1. Responsibility for making substitutions:
SAGATRANS remains fully responsible with respect to INTER PARFUMS as well as
with all third parties, for any damages that might be caused to INTER PARFUMS as
well as to itself, by its employees or by any person asked assist or to act in
their behalf, and will therefore assume the obligation as a result of this
contract.
If SAGATRANS becomes liable due to the actions of its subcontractors, it shall
be strictly limited to that liability incurred by the subcontractor and
calculated in accordance with the provisions set forth by the International
Conventions and the national legislation applicable to the subcontractor. When
the limits of liability set for the subcontractor do not result from imperative
or legal provisions, they shall be considered identical to those applying to
SAGATRANS.
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EXHIBIT 10.116.1
14.2.2. If SAGATRANS becomes personally liable, it shall be limited to:
In the event of losses and damages:
a) All attributable damage to the merchandise during transport regarding
losses and harm and for all consequences that may result thereof, with a
ceiling on any compensation to be fixed in accordance to current legal or
lawful provisions in force and applicable to transportation.
b) In any case, where the damage to the merchandise or any consequences
resulting thereof is not due to the action of transportation, at 14 euros
per kilogram of gross weight of missing or damaged goods not to exceed,
whatever the weight, volume, dimensions, nature or value of the goods
concerned, a sum higher than the product of the gross weight of the goods
expressed in tons multiplied by 2,300 euros with a maximum of 50,000 euros
per event.
For all the other damage, and in particular those caused by a delay in the
delivery time agreed upon, reparation due by SAGATRANS, within the framework of
its personal liability, shall be strictly limited to the price of the transport
of the merchandise (excluding all duties, taxes and incidental fees).
In no case shall this compensation exceed that which is due in the event of loss
or of damage of the goods.
INTER PARFUMS shall relinquish and shall make every effort to make the insurers
waive any recourse against SAGATRANS beyond the limits defined in this article.
14.2.3. Responsibilities of INTER PARFUMS
INTER PARFUMS remains solely and completely responsible for its declarations to
the authorities, for any certification or authorization relating to the
detention, importation or distribution of the Products.
ARTICLE 15 - INSURANCE
15.1. INSURANCE OF THE WAREHOUSED GOODS
INTER PARFUMS shall insure itself at its own risks and peril for its own
warehoused goods within the framework of this agreement against risk of theft
due to burglary, riots, wars, be they declared or not, against water or fire
damage, and any other additional risks. INTER PARFUMS will in this way,
personally handle all damage or losses that may occur, due to the risks referred
to above, to the goods belonging to him, within the framework of the
underwritten policies.
Consequently, INTER PARFUMS shall relinquish and shall agree to make the
insurers waive any recourse against SAGATRANS and its insurers for disasters
covered by insurance taken hereto.
SAGATRANS shall be responsible under the conditions set forth in articles 14.1,
for disasters which may occur arising out the cases examined in clause 1, above.
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EXHIBIT 10.116.1
15.2 INSURANCE FOR SAGATRANS' PROPERTY
SAGATRANS shall be personally responsible for insurance covering all other
property belonging to him or that has been placed under its responsibility.
SAGATRANS shall relinquish and shall agree to make the insurers waive any right
to recourse against INTER PARFUMS and its insurers, including any event of
disaster which may occur due to actions of the latter in regards to other stored
goods.
15.3 Each of two parties shall purchase insurance policies necessary to provide
guaranteed protection against any remaining risks for which they are responsible
under the terms of the provisions referred to above. Each party shall pay the
premiums and any deductibles due for the insurance policies thus underwritten.
The limits of the guarantee of said policies shall not be enforceable against
the other party.
The insurance policies shall additionally include an abandonment of the rights
of subrogation of the insurers, in favor of the other party.
Each party will provide, upon the first request from the other party, a copy of
the insurance certificates justifying possession of the required guarantees.
15.4 - INSURANCE ON TRANSPORTED MERCHANDISE
INTER PARFUMS shall purchase its own insurance covering the merchandise during
transport.
ARTICLE 16 - ACTS OF GOD
The following are considered to be Acts of God: All events independent of the
will of the parties, when said events intervene after signing the contract and
thereby prevent the total or partial execution of it.
In the event an Act of God arises, this contract will be automatically suspended
for the entire period of said Act of God, and none of the parties shall be held
responsible by the other party of any contractual non-fulfillment due to such an
event.
For the application of this clause, the following are regarded as, but are not
limited to these events of "force majeure" (Acts of God): A lockout of the
platform, fire, mobilization, requisition, embargo, insurrection, war, declared
or not, civil war, revolution, riot, sabotage, interruption of transport means,
energy restrictions, dealings by any public authority, prohibitions on
importations, exportations or the transfer of goods...
The parties shall meet in order to determine by mutual agreement the conditions
of arrangements or substitutions that will permit a resumption of the
implementation of the contract as soon as possible.
In the event an Act of God occurs preventing the continuation of the contractual
relation, the parties hereby acknowledge that this contract would be broken
without right to compensation from one party or the other.
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EXHIBIT 10.116.1
ARTICLE 17 - MANAGING AND ADAPTING THE CONTRACT
The parties agree to meet as needed, in order to examine how to adapt the
contract to the any evolution due to economic, technical or regulatory factors.
And more particularly, the parties will meet in the event of major events or of
significant changes in the parameters that determined the obligations of one or
the other of the parties.
ARTICLE 18 - TERM
This contract shall enter into effect on January 1, 2005, and shall end on
September 30, 2011.
The parties agree to consult each other 10 (ten) months before the expiration of
the contract, in order to fix the terms and conditions of its possible renewal,
and to provide notification of their decision to renew or to not renew this
contract, by registered letter with return receipt acknowledgment, 7 (seven)
months before September 30, 2011.
It will be renewed at that time for successive periods of 3 (three) years,
except if one of the parties renounces this by its decision to not renew, 7
(seven) months before the expiration, by registered letter with return receipt
acknowledgment.
It may be ended, under the same conditions, after renewing the contract with an
expiration occurring with every 3 (three) years period by providing notice 7
(seven) months in advance.
ARTICLE 19 - AUTONOMY OF THE PARTIES
SAGATRANS shall conduct business, under all circumstances, on its own behalf and
shall act as an independent company and with no possibility of representation.
The parties shall assume the entire responsibility of any obligations for which
they are charged by reason of these presents. Except by express agreement in
writing to the contrary, SAGATRANS has no ability to act in the name of the
company INTER PARFUMS and/or to bind it in any manner, and must take all
measures required to avoid any confusion of third parties in this respect, and
conversely.
ARTICLE 20 - CONFIDENTIALITY
The parties hereby acknowledge that any information which is provided to them
and/or which they may collect during the execution of the contract (customers,
method of management, and all information of a technical, commercial, and
financial nature) shall be of a strictly confidential nature. They do hereby
commit, during the period of the contract as well as after its expiration, not
to reveal this information to third parties, and to take all required measures
necessary, in particular with regard to their personnel, to maintain and
guarantee the secrecy of it.
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EXHIBIT 10.116.1
At the expiration of the agreement, each party shall restore to the other, the
documents belonging to him.
ARTICLE 21 - BREACH OF CONTRACT
21.2. Throughout the entire first period, which shall expire on September 30,
2011, this contract may only be terminated for repeated failure of a party in
its essential obligations or for failure representing serious damage, that is
directly and entirely attributable to one of the parties, thus causing, directly
or indirectly, an important commercial loss to the other party, and after a
notice is sent by registered letter with return receipt acknowledgment addressed
to the party in default has remained unfruitful for one month. For any
contractual failure, voluntary or constitutive of a serious fault, the injured
party shall have the right to require damages be granted.
Beyond the first period that will expire on September 30, 2011, and in the event
of renewal, cancellation will be possible due to non-fulfillment of obligations
by one of the parties, and after a notice is sent by registered letter with
return receipt acknowledgment addressed to the party in default has remained
unfruitful for one month. This contract shall be automatically terminated,
without prejudice to the damages which may be claimed from the party in default.
21.3. In the event of a breach of this contract, for whatever reason that may
be, the INTER PARFUMS company shall be responsible for making its own
arrangements to remove the Products in stock on the platform on the date of this
breach.
21.4. In the event of cancellation for any reason that may be, the parties shall
commit to an agreement of reciprocal non-disparagement with any third party,
since this would possibly harm the reputation and public image of each party as
well as their commercial development and the continuation of logistic
activities.
ARTICLE 22 - TRANSFER
This contract was negotiated and concluded by each party in consideration of the
intuiti personae attachment to the other party. Consequently, no transfer shall
be possible without obtaining a prior express agreement in writing from both
parties.
The following are to be considered a transfer of the contract: corporate
contributions, a merger, a take-over, a transfer of business, a change of
majority in the distribution of the authorized capital by one of the parties and
generally all operations tending to make changes in the contract assets, except
in the case of an internal reclassification within the Group to which each party
belongs.
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EXHIBIT 10.116.1
ARTICLE 23 - LIMITS
The fact that either of the parties relinquishes and/or does not prevailing
itself upon an unspecified provision of the agreement, will in no case
constitute a permanent renunciation applicable to a later violation of this
provision, the obligatory character of which shall remain in full and complete
force.
ARTICLE 24: HEADINGS
The descriptions or headings of the various articles and paragraphs of this
contract were inserted exclusively for reasons of clarity of text and can in no
way be considered to define, limit or circumscribe in any way its field of
application or the purpose of the article or specific paragraph to which they
refer.
ARTICLE 25 - PARTIAL INVALIDITY
In the eventuality that a clause of this contract is declared null or contrary
to essential laws or concerning public law and order, the here undersigned
parties shall agree to consult with each other to seek in good faith an
agreement of a valid clause which shall exert the same effects, inasmuch as
possible, as the invalidated clause.
ARTICLE 26 - ELECTION OF DOMICILE
Any notification from one party to another must be made by registered letter
with return receipt acknowledgment addressed so as to be delivered to the
registered corporate offices of each party.
ARTICLE 27 - REGISTRATION
If one of the parties so requires it, these presents shall be registered at the
expense of the requiring party.
ARTICLE 28 - JURISDICTION
Any disagreement relating to the interpretation and the application of this
contract shall be under the jurisdiction of the Tribunal of Commerce of
Nanterre.
Executed in
On
in two copies
INTER PARFUMS SAGATRANS
XXXXXXXX XXXXXXX PHILIPPE CHAMINADE
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