SERVICE CONTRACT
BETWEEN
The INTER PARFUMS company, a corporation with a capital of
44,472,400 francs, with registered offices at 0 Xxxx Xxxxx
xxx Xxxxxx-Xxxxxxx, 00000 Xxxxx, registered in the
Corporate and Trade Register of Paris under number 350 219
382,
Represented by Xx. Xxxxxxxx Xxxxxxx,
Hereinafter referred to as INTER PARFUMS,
AND
The SAGATRANS company, a corporation with a capital of
159,205,500 francs, with registered offices at 00 xxxx xx
Xxxxx xx xxxx, 00000 Xxxxxxxx Bilancourt, registered in the
Corporate and Trade Register of Nanterre under number 712
025 691,
Represented by Mr. Philippe Chaminade, its Chief Executive
Officer,
Hereinafter referred to as SAGATRANS.
TABLE OF CONTENTS
PART I 3
ARTICLE 1. NEW STORAGE WAREHOUSE 3
1.1 LEASING A WAREHOUSE 3
1.2 EFFECTIVE INTRODUCTION OF THE PLATFORM 4
1.3 TRANSFERRING PRODUCT STOCK FROM THE OLD WAREHOUSE TO
THE NEW PLATFORM 5
1.4 CONTINUATION OF THE MEMORANDUM OF UNDERSTANDING DATED
MAY 29, 1995 5
ARTICLE 2. FAILURE TO PUT THE NEW WAREHOUSE INTO OPERATION 5
ARTICLE 3. EFFECT OF PUTTING THE NEW WAREHOUSE INTO
OPERATION 6
PART II 6
ARTICLE 4. PURPOSE 6
ARTICLE 5. PRODUCTS 7
ARTICLE 6. SUPPLYING THE WAREHOUSE 7
ARTICLE 7. WAREHOUSING - INVENTORY MANAGEMENT 8
ARTICLE 8. ADDITIONAL SERVICES 10
ARTICLE 9. BREAKAGE AND SHORTAGES 10
9.1 BREAKAGE 10
9.2 SHORTAGES 11
ARTICLE 10. INVENTORIES 11
ARTICLE 11. ORDERS 12
ARTICLE 12. GOODS ISSUE 12
ARTICLE 13. REMUNERATION 12
ARTICLE 14. ESCALATION CLAUSE 14
ARTICLE 15. INSURANCE 14
ARTICLE 16. FORCE MAJEURE 15
ARTICLE 17. MANAGEMENT AND ADAPTATION OF THE CONTRACT 15
ARTICLE 18. DURATION 16
ARTICLE 19. INDEPENDENCE OF THE PARTIES 16
ARTICLE 20. CONFIDENTIALITY 16
ARTICLE 21. BREACH OF CONTRACT 16
ARTICLE 22. ASSIGNMENT 17
ARTICLE 23. TOLERANCE 17
ARTICLE 24. HEADINGS 17
ARTICLE 25. PARTIAL NULLITY 17
ARTICLE 26. ELECTION OF DOMICILE 17
ARTICLE 27. REGISTRATION 18
ARTICLE 28. COMPETENCE 18
APPENDIX 1. SAGATRANS' MEANS 19
APPENDIX 2. COMPUTER EQUIPMENT 20
APPENDIX 3. INVENTORY PROCEDURE 21
THE FOLLOWING HAS PREVIOUSLY BEEN STATED:
On May 29, 1995, the SAGATRANS and INTER PARFUMS companies
signed a document of understanding with retroactive effect
to January 1, 1995, according to the terms of which INTER
PARFUMS entrusted SAGATRANS with the management of its
inventory of cosmetic and perfume products intended for
export at its site in Rouen, xxx Xxxx Maletra. Said
contract was supplemented by amendments dated December 18
and 20, 1995 and June 24, 1997.
In order to meet the business growth of the INTER PARFUMS
company and its decision to entrust SAGATRANS with the
storage of its products intended for the French market in
addition to those intended for export, the parties agreed
to transfer the storage of products marketed by INTER
PARFUMS (except packaging in aerosol) to a new platform
dedicated to the business activity of INTER PARFUMS.
A plan to introduce this platform at the Rouen Vallee de
Seine Logistique site (Land Use Project of the self-
sustaining port of Rouen) was adopted by both parties.
In order that the construction record of said warehouse
could enter into a development phase and that SAGATRANS
could commit to leasing said property, the parties agreed
to settle by these presents the terms of its hand-over and
future operation with the understanding that the parties
shall continue to govern their current dealings within the
framework of the contract dated May 29, 1995 until such
time that the warehouse is effectively put into operation.
IT HAS THEREFORE BEEN AGREED AS FOLLOWS:
PART I
ARTICLE 1. NEW STORAGE WAREHOUSE
1.1 LEASING A WAREHOUSE
SAGATRANS agrees to lease from the self-sustaining port of
Rouen or from any entity that may take its place, in
accordance with the wishes of INTER PARFUMS, a building for
use as a warehouse which has an area of approximately 8000
m2 located on the public domain of the port at the site of
Rouen Vallee de Seine Logistique once this can effectively
be made available to it under the terms referred to in
article 1.2 of the presents.
1.2 EFFECTIVE INTRODUCTION OF THE PLATFORM
The warehouse referred to in article 1.1 must be the
subject of construction work which is the duty of the self-
sustaining port of Rouen or any company that might take its
place.
To date, a non-trading real estate investment company
established between the self-sustaining port of Rouen and
the SOGARIS company was approached to do so; a letter of
intent must be signed between SAGATRANS and said non-
trading real estate investment company in order to
establish the terms of construction, the projected
timeframes and terms of availability, as well as the lease
terms of said platform.
In the current state of the construction project and unless
prefectural authorization relating to the environmental
protection statutes governing classified facilities is not
issued and/or unless a construction permit cannot be
obtained (and third party recourse expired), specific
requirements of the DRIRE regarding application of the
environmental protection regulations pertaining to
classified facilities, cases of force majeure and/or delays
in the completion of said work by the non-trading real
estate investment company, the latter must make the
warehouse available to SAGATRANS no later than at the end
of the month of June 1999.
Availability of the warehouse on this date shall enable
SAGATRANS to effectively put the Rouen Vallee de Seine
warehouse into operation no later than August 31, 1999,
subject to the proper transfer of materials as provided in
article 1.3.
SAGATRANS shall inform INTER PARFUMS on a monthly basis of
the progress of the phase of acquiring construction permits
and of the work performed by the self-sustaining port of
Rouen and/or the above-mentioned non-trading real estate
investment company, and particularly of the projected date
for receipt of the warehouse.
It is agreed that SAGATRANS, which INTER PARFUMS hereby
expressly accepts, cannot be held responsible for
conditions of the issuance of construction permits - and
notably the requirements of the DRIRE and/or of any other
administration involved which would make the cost of
construction and consequently the cost of leasing the
platform unacceptable for SAGATRANS; that consequently the
decision that SAGATRANS will therefore have to make shall
not entail any consequence in terms of liability in the
framework of the contractual relationship that exists
between INTER PARFUMS and SAGATRANS, knowing that the
contract referred to in article 1.4 of these presents shall
continue if by some extraordinary circumstance SAGATRANS
should be led to study a new plan for a platform dedicated
to INTER PARFUMS. However, in the event that SAGATRANS
should have to definitively abandon this project, the
present contract shall be terminated by SAGATRANS by
registered mail with acknowledgement of receipt without
indemnity on the part of either party and the contract
referred to in article 1.4 shall solely govern the dealings
between the parties.
It is agreed that SAGATRANS, which INTER PARFUMS hereby
expressly accepts, cannot be held responsible for any
delays related to the construction to be carried out by the
self-sustaining port of Rouen and/or the above-mentioned
non-trading real estate investment company; that
consequently performance of this work which determines the
effective putting into operation of the platform cannot
carry with it any consequence in terms of liability in the
framework of the contractual relationship that exists
between INTER PARFUMS and SAGATRANS, knowing that the
contract referred to in article 1.4. of these presents
shall continue if by some extraordinary circumstance the
time projected above should become significantly increased.
Once the warehouse has been properly made available by the
self-sustaining port of Rouen and/or the above-mentioned
non-trading real estate investment company, SAGATRANS shall
notify INTER PARFUMS by registered mail with
acknowledgement of receipt in order to determine with the
latter the terms for the transfer of INTER PARFUMS products
and to define by mutual agreement the date on which the
platform is to be put into operation. This latter date
shall serve as effective putting into operation of the
present contract. It is herewith specified that the parties
shall make every effort to ensure that the above-mentioned
availability date and the date on which the platform is
effectively put into operation are as close together as
possible, if not as concomitant as possible.
1.3 TRANSFERRING PRODUCT STOCK FROM THE OLD WAREHOUSE TO
THE NEW PLATFORM
The parties shall define by mutual agreement and in a
timely manner the terms and conditions of the transfer of
business activities at the Maletra site to the new
platform, all in such a way that the business activities of
INTER PARFUMS, the delivery of their products and the
operations by SAGATRANS can continue undisturbed insofar as
is possible.
However, it is already agreed between the parties that the
transfer of stored merchandise, and in particular the
transport thereof, shall be carried out under SAGATRANS'
responsibility at the expense of INTER PARFUMS and that
SAGATRANS shall not be expected to implement two parallel
structures in order to have the two sites function
concomitantly. The parties have also already agreed to set
a period of 15 business days maximum in order to make
effective transfer of the products possible, with the
understanding that during this period, no order, receipt of
merchandise or issue of merchandise shall be handled by
SAGATRANS, and that INTER PARFUMS shall conduct its
business with its clients and suppliers so as to arrange
this period.
1.4 CONTINUATION OF THE MEMORANDUM OF UNDERSTANDING DATED
MAY 29, 1995
The memorandum of understanding entered into by the parties
on May 29, 1995, amended by amendments dated December 18
and 20, 1995 and June 17, 1997, shall continue steadfastly
and irrevocably, notwithstanding the provisions of article
16 (Duration) therein, until the date on which the platform
referred to in article 1.2 of these presents is effectively
put into operation.
Until this date, the parties agree that the memorandum of
understanding dated May 29, 1995, including its amendments
and the provisions of the present Part I, shall solely
govern their dealings and shall do so subject to the rate
conditions currently in effect, notwithstanding the
escalation clause provided in article 12 thereof which
shall not be applied by SAGATRANS prior to August 31, 1999.
The memorandum of understanding dated May 29, 1995 shall
also continue for all other cases where this continuation
is expressly provided for by a provision of these presents.
ARTICLE 2. FAILURE TO PUT THE NEW WAREHOUSE INTO OPERATION
If the new warehouse has not been effectively put into
operation by August 31, 1999 for reasons that are strictly
attributable to SAGATRANS, then INTER PARFUMS may call upon
the SAGATRANS company to do so within 15 days by registered
mail with acknowledgement of receipt.
Failure to respect said obligations within the above-
mentioned time period shall give INTER PARFUMS the right to
xxxx SAGATRANS for penalties for delay retroactively to
September 1, 1999 for a sum equal to:
- 10,000 FF (TEN THOUSAND FRANCS) for each late calendar
day;
with a limit not to exceed FOUR HUNDRED AND SEVENTY
THOUSAND FRANCS (470,000 FF)
Application of said penalties for delay shall automatically
be suspended in the event that SAGATRANS has not
effectively put the new warehouse into operation for
reasons that are not attributable to SAGATRANS and shall
once again automatically begin to accumulate as soon as
SAGATRANS is again able to transfer INTER PARFUMS products
in order to use the new warehouse.
At the end of the period in which late penalties apply, or
when the amount of the penalties has reached the sum of
470,000 francs, INTER PARFUMS may give notice to SAGATRANS
by registered mail with acknowledgement of receipt for
termination of the present contract if the failure to put
the new warehouse into operation is attributable to
SAGATRANS.
Such termination shall take effect 15 days after receipt of
this notification by SAGATRANS, unless the new warehouse is
put into operation during this period and INTER PARFUMS is
notified of this by registered mail with acknowledgement of
receipt with the postmark being proof hereof.
It is expressly agreed that termination of the present
contract in the circumstances described above shall not
cause termination of the memorandum of understanding dated
May 29, 1995 and its amendments which alone shall continue
to govern the dealings between the parties.
Neither party can claim any indemnity whatsoever in the
event the present contract is terminated under the terms of
the present article.
ARTICLE 3. EFFECT OF PUTTING THE NEW WAREHOUSE INTO
OPERATION
Subject to the provisions of article 2 above, the
introduction of a new warehouse shall cause immediate
termination without indemnity from either party of the
provisions of the contract dated May 29, 1995 and its
amendments. The dealings between the parties shall
therefore then be governed solely by the provisions of the
present contract, and particularly those set forth in Part
II hereof.
PART II
ARTICLE 4. PURPOSE
The INTER PARFUMS company exclusively grants to SAGATRANS,
which hereby accepts, subject to the terms and conditions
set forth below, the organization and execution of
operations involving receipt, storage and preparation of
product orders as defined below in article 5, which are
intended for the domestic market and for export.
SAGATRANS undertakes to make available and implement the
structure, resources and equipment in personnel and in
materials that are necessary to perform the services
entrusted and requested by the INTER PARFUMS company under
the terms of these presents. It is hereby put forth on a
tentative basis that SAGATRANS expects to implement the
means shown in Appendix 1 in order to handle INTER PARFUMS'
trade, which will be customized by SAGATRANS according to
the variations in traffic of INTER PARFUMS products in its
constant efforts to satisfy its contractual obligations.
ARTICLE 5. PRODUCTS
5.1 The finished goods affected by the present agreement
are the following:
- perfumes;
- cosmetics and body care products;
- soaps, shampoos and other body maintenance products;
- more generally all the ranges and lines of cosmetic or
perfume products, as well as all accessories, which are
marketed by INTER PARFUMS,
with the express exclusion of all products whose conditions
for storage (nature and quantity) are not validly
authorized by the prefectorial order issued in accordance
with the environmental protection regulations for
classified facilities, and particularly products packaged
in aerosol.
The products are packaged on filmed pallets which indicate
the number of cartons contained in each pallet and the
cartons shall indicate the number of products contained
therein.
5.2 SAGATRANS can in no case be held responsible for
reasons related to product compliance with regulations in
effect: labeling, sell-by dates, product structure, weight
as well as generally speaking for any quality discrepancies
pertaining to said products.
ARTICLE 6. SUPPLYING THE WAREHOUSE
6.1 The INTER PARFUMS company shall solely see to the
management of supplying the warehouse with merchandise.
It is the responsibility of the INTER PARFUMS company to
ensure that the inventory generated in this way is always
sufficient, both in quantity and in range, to enable
SAGATRANS to prepare the orders which it receives from
INTER PARFUMS.
The INTER PARFUMS company shall create procurement slips, a
copy of which shall be provided to SAGATRANS so that it can
see to the receipt hereof in optimum conditions.
SAGATRANS shall therefore not be held responsible for
shortages of stock with which it is provided in this way.
The procurements shall respect the storage capacity limits
referred to in article 1.1 above. SAGATRANS shall, however,
make every effort to store any merchandise surplus. The
cost of leasing storage pallets shall then be billed to
INTER PARFUMS under the terms referred to in article 13.4.
of these presents. SAGATRANS shall try to store on a
priority in the Rouen Vallee de Seine warehouse the INTER
PARFUMS merchandise other than that defined in article 7.3
of these presents.
SAGATRANS cannot be held responsible, without a supplement
to these presents having been signed between the parties,
for any substantial and long-standing product surplus, with
the understanding that SAGATRANS has the option of
extending the existing area of the Rouen Vallee de Seine
warehouse that it can reserve for INTER PARFUMS if the
increase in volume of operations handled for its account
justifies such an extension and subject to the terms
approved by the parties to the agreement.
6.2 SAGATRANS shall receive and unload merchandise
delivered to it from Monday to Friday from 7:30 am to 11:30
am and from 1:30 pm to 5:15 pm
The transfer of liability takes place at the time of
unloading.
SAGATRANS shall verify the merchandise and take all
reservation of rights with regard to the transporters in
the event of a wreck, breakage or observed shortages, and
shall make any requests for assumption of wrecks by the
transporters.
SAGATRANS shall immediately notify the INTER PARFUMS
company of these incidents.
In the event of a medium wreck, SAGATRANS may request the
establishment of a certified report by bailiff at the
expense of the INTER PARFUMS company in order to preserve
the rights of the latter with respect to its suppliers
and/or transporters.
6.3 It is expressly agreed that SAGATRANS shall not be held
responsible, for any reason whatsoever, for errors and/or
breakages that may result from an act by the transporters
in charge of handling this merchandise.
6.4 Products shall be received in non-returnable pallets
and packaging.
ARTICLE 7. WAREHOUSING - INVENTORY MANAGEMENT
7.1 In order to provide the service with which it has been
entrusted, SAGATRANS shall carry out the following
logistics services:
- unloading of merchandise;
- storage and safekeeping of merchandise;
- inventory management (checks, inventory, first in
first out);
- preparing orders in accordance with instructions
from INTER PARFUMS and unpacking the pallets in
order to do so;
- computerized inventory management that enables
the INTER PARFUMS company to monitor this.
7.2 SAGATRANS shall administer the storage of merchandise
assigned to it by the INTER PARFUMS company who retains
ownership of said merchandise.
SAGATRANS shall be independent in its management. It
undertakes to manage the inventory of the INTER PARFUMS
company with all due care and attention, with the
understanding that the two parties agree to optimize the
inventory management by smart organization by SAGATRANS and
by regular product rotation by INTER PARFUMS. INTER PARFUMS
agrees to not freeze stock.
For the same sake of optimizing inventory management, INTER
PARFUMS furthermore agrees to communicate to SAGATRANS the
references of products with seasonal rotation.
7.3 If one or more products are no longer referenced by
INTER PARFUMS or have to remain in the SAGATRANS warehouse
for more than three (3) months with no stock action, then
SAGATRANS shall notify INTER PARFUMS of this in order to
find out any steps to be taken with respect to their
transfer to another site, with the understanding that the
stocking and transfer costs of said products shall be borne
by INTER PARFUMS.
These products shall be those affected on a priority in the
additional areas that SAGATRANS must acquire in order to
stock INTER PARFUMS' merchandise due to the surpluses
defined in article 6.1.
Additional billing may be carried out by SAGATRANS in
accordance with the terms set forth in article 13.4.
SAGATRANS cannot be held responsible for the obsolescence
of products in storage and for products reaching their
sell-by date. SAGATRANS can under no circumstances be
required to assume the costs of destroying such products.
7.4 SAGATRANS shall have, upon prior written consent from
INTER PARFUMS, the opportunity to store within its
warehouse other merchandise belonging to SAGATRANS or to
third parties, but must take all necessary measures to
prevent any confusion with respect to the stored
merchandise for the account of the INTER PARFUMS company
and that it cannot be subject to any seizure or any
conservatory measure whatsoever on the part of SAGATRANS'
creditors or any other third party, and vice versa.
SAGATRANS must inform INTER PARFUMS of the nature of these
storage arrangements. If such arrangements should cause an
increase in INTER PARFUMS' insurance premium for increase
of risk, then such increase shall be borne by SAGATRANS,
subject to evidence thereof.
7.5 SAGATRANS has set up a computer program that is
specific to the management of the above-mentioned services
which it reserves the right to modify subject to prior
agreement from INTER PARFUMS. Nevertheless, SAGATRANS shall
make every effort to reduce any disruption that may result
from this modification, which shall not undermine any
material function of the data processing.
A data link shall be established between SAGATRANS and
INTER PARFUMS in order to enable the latter to directly
transmit its orders to SAGATRANS, and to know the position
of stock, preparation of orders and lists of bundling.
In the event of any malfunction of any nature whatsoever of
the computer application, SAGATRANS undertakes to perform
or have a third party perform any maintenance required to
make the system operational as quickly as possible,
particularly by giving INTER PARFUMS the maintenance terms
that SAGATRANS has with its computer maintenance suppliers.
At the end of the contract, the computer application
provided by SAGATRANS shall remain the property of
SAGATRANS. Consequently, INTER PARFUMS agrees to release to
SAGATRANS said application, the modem, the interface and
all other equipment belonging to SAGATRANS, such as
mentioned in Appendix 2 of these presents, upon the first
request of the latter. SAGATRANS shall automatically
terminate this computer connection at the end of the
contract.
7.6 SAGATRANS shall stock products entrusted to it by INTER
PARFUMS at an ambient temperature and above freezing.
INTER PARFUMS agrees to communicate in writing any specific
storage requirements for certain products.
If the restrictions in terms of storage, hygiene and
security, or other areas of activity are imposed upon
SAGATRANS due to any regulations that pertain to the
products with which it has been entrusted, then these shall
be passed on to INTER PARFUMS.
ARTICLE 8. ADDITIONAL SERVICES
SAGATRANS may, at INTER PARFUMS' request, be commissioned
to perform various services other than those set out in
article 7. These primarily involve:
- non-recurring operations regarding stock management or
order preparation, such as repackaging products; changing
and/or adding product labeling, specific verification of
the content of cartons or bottles, verifying returns of
exceptional merchandise, preparing non-dispatched orders;
- routing operations for merchandise leaving from or
heading for the SAGATRANS warehouse;
- transporting merchandise to other INTER PARFUMS sites
and/or in France.
These services shall be invoiced separately. The costs and
terms of payment and execution shall be determined in
advance in writing by joint agreement between the parties,
on a case by case basis, and particularly the planning of
these non-recurring operations shall be determined in such
a way that they do not disrupt the priority of handling the
orders intended for export and for the French market.
ARTICLE 9. BREAKAGE AND SHORTAGES
9.1 BREAKAGE
9.1.1. Any breakage discovered upon receipt at the platform
shall immediately be communicated by SAGATRANS to the INTER
PARFUMS company, as indicated in article 6.2, with the
INTER PARFUMS company settling the case directly with the
transporters.
Damaged merchandise shall be unloaded and stored in a
specific area where it shall be made available to the INTER
PARFUMS company for a period of 30 days. After this period,
if the merchandise in question has not been removed or
destroyed by the INTER PARFUMS company, it shall be
destroyed or removed by SAGATRANS at the expense of the
INTER PARFUMS company, which the latter expressly accepts.
The cost of storing this merchandise shall be borne by the
INTER PARFUMS company under the terms set forth in article
13.4.
9.1.2. Any breakage discovered within the warehouse and
attributable to an act by SAGATRANS shall be stored in a
specific area and communicated to INTER PARFUMS which shall
xxxx SAGATRANS at the blended cost as stated on the last
priced printout of the audited stock plus a ratio of the
handling costs validated by a mutual agreement between the
parties. If this destroyed or damaged merchandise is part
of an order invoiced by INTER PARFUMS, it shall be billed
to SAGATRANS at the sales price billed by INTER PARFUMS to
its client.
This merchandise shall be destroyed at the expense of
SAGATRANS.
Any breakage determined in this way, taken out of the
computerized inventory, shall not be taken into account
when determining the extent of the negative deviation
referred to in article 9.2.2.
9.2 SHORTAGES
9.2.1. Any shortages discovered upon receipt at the
platform shall immediately be communicated by SAGATRANS to
the INTER PARFUMS company, as indicated in article 6.2,
with the INTER PARFUMS company settling the case directly
with its transporters and/or its suppliers.
9.2.2. SAGATRANS cannot be held responsible for the content
of cartons and other packaging as these are prepared,
wrapped and closed by the supplier and it is not the
responsibility of SAGATRANS to verify the content thereof.
Consequently, SAGATRANS cannot be held responsible for
stock shortages that arise in the warehouse and are
possibly discovered during stock-taking, within the extent
of the negative deviation between the physical inventory
and the computerized inventory of 1.5% (one and a half
percent) of SAGATRANS' computerized inventory.
After the third year of operations at the Rouen Vallee de
Seine warehouse, the above rate shall be rolled back to 1%
(one percent).
If greater negative deviations are found, they will be
billed to SAGATRANS after a new counter physical inventory
is carried out to confirm these findings, at the blended
cost as defined in article 9.1.2. above.
SAGATRANS shall, however, notify INTER PARFUMS of any
product shortages that it may find upon opening cartons or
other packaging during their unpacking in the "picking"
zone. In the event a large batch is discovered to have such
a shortage, then SAGATRANS shall call in INTER PARFUMS so
that the latter can take all reserves with regard to its
supplier.
In such cases, shortages discovered in this way shall not
be taken into account when calculating the aforesaid
negative deviation rates.
ARTICLE 10. INVENTORIES
An annual counter inventory shall be carried out for all
products present in the warehouse at the end of the
financial year.
On the first business day of each month, SAGATRANS shall
carry out an inventory of approximately 20 Export
references and approximately 10 France references to be
selected by INTER PARFUMS.
The inventories shall be carried out by comparing the
physical inventory to SAGATRANS's computerized inventory.
The parties have agreed on an accounting procedure for
products which was laid down by mutual agreement between
the two parties and which is appended to these presents
under number 3.
ARTICLE 11. ORDERS
The INTER PARFUMS company shall send its orders to
SAGATRANS by data link specifying the references and
quantities of the products that make up the orders to be
prepared, as well as the location of the destination, the
recipient of the goods, the planned method of
transportation and the date of issue from the warehouse.
It is, however, specified that the finalized orders shall
systematically be communicated to INTER PARFUMS who will
then, in the event of a disagreement, notify SAGATRANS
hereof at least 48 hours prior to the dispatch of said
order. If this is not done, the order shall be deemed
according to the requirements of the INTER PARFUMS company.
The orders shall be prepared according to the FIFO rule
(First In First Out) unless otherwise stipulated in writing
by INTER PARFUMS.
The pallets, cartons, containers and other packaging shall
be ordered by SAGATRANS according to its needs with regard
to the orders placed by and invoiced to INTER PARFUMS.
Orders prepared at the request of INTER PARFUMS which
remain in the warehouse for more than two months may, if
SAGATRANS deems it appropriate, which INTER PARFUMS
expressly accepts, be placed in other warehouses while
awaiting pick up. In such cases, SAGATRANS shall xxxx INTER
PARFUMS for additional storage areas subject to the terms
referred to in article 13.3.
ARTICLE 12. GOODS ISSUE
Orders shall be issued in cartons, entire pallets (fully
new or reconstituted) or by containers according to
instructions communicated by INTER PARFUMS. SAGATRANS shall
prepare the cartons or pallets as well as pack the
containers. SAGATRANS shall be responsible for affixing
shipping tags to the cartons and packages prepared in this
manner.
SAGATRANS shall see to the loading operations of the trucks
positioned at the request of INTER PARFUMS.
Shipments from the warehouse shall be made from Monday to
Friday from 7:30 am to 11:30 am and from 1:30 pm to 5:30
pm.
It is agreed that truck loadings shall be planned so as to
ensure that the waiting time is kept to a minimum.
ARTICLE 13. REMUNERATION
13.1. SAGATRANS's remuneration shall be set according to
the following terms:
13.1.1. Export Performance
Export turnover Exclusive of tax Remuneration Exclusive of tax
-------------------------------- ------------------------------
Up to 300,000,000 FF inclusive 2.25% of the export turnover
exclusive of tax
More than 300,000,000 FF 2.00% of the export turnover
exclusive of tax
13.1.2. France Performance
Remuneration Exclusive of tax
-----------------------------
3.25% of the France turnover exclusive of tax
13.2. INTER PARFUMS shall pay SAGATRANS a minimum
remuneration fixed for the first year of operations for
the new platform at the sum of FIVE MILLION SIX HUNDRED
AND FORTY THOUSAND francs (5,640,000 FF) exclusive of
tax, payable monthly in an amount of FOUR HUNDRED AND
SEVENTY THOUSAND francs (470,000 FF) exclusive of tax.
This total minimum remuneration corresponds to a
minimum monthly remuneration of Export performance of
FOUR HUNDRED THOUSAND francs (400,000 FF) exclusive of
tax and a minimum monthly remuneration of France
performance of SEVENTY THOUSAND francs (70,000 FF)
exclusive of tax. Invoices shall be paid by check 60
days from the date of the invoice, which will be issued
when due.
This remuneration shall be revised every six months
according to the turnover achieved by INTER PARFUMS
from the SAGATRANS warehouse. INTER PARFUMS shall pay
SAGATRANS the greater of the following two amounts:
- the amount mentioned in article 13.1
- the lump sum mentioned in article 13.2
for the six-month period in question.
Export turnover shall be identified by a certified true
statement from the Auditors of Corporate Accounts of the
INTER PARFUMS company.
France turnover shall be communicated to SAGATRANS by INTER
PARFUMS at the end of each six-month period, along with the
total turnover.
In the event that the France turnover is not equal to the
difference between INTER PARFUMS' total turnover and the
Export turnover, then INTER PARFUMS shall communicate to
SAGATRANS, upon the first request of the latter, any items
that make it possible to justify this discrepancy.
The difference between these two amounts shall be invoiced
within 15 days following the six-month period in question
and shall be paid by INTER PARFUMS upon receipt.
13.3. The remuneration referred to in article 13.1 includes
all services performed by SAGATRANS in accordance with the
terms of the present contract with the exception of:
- additional services referred to in article 8;
- the provision of palettes, cartons, labels and
other materials that are necessary to prepare the
orders;
- any leases of containers;
- costs for express transport or any other method
of rapid routing of covers or small packages.
These services shall be billed separately and payable in 30
days. The costs shall be set in advance in writing by
mutual agreement between the parties on a case by case
basis.
13.4. In application of the provisions of articles 6.1 and
7.3 of these presents, if SAGATRANS has to dedicate
additional areas in order to store INTER PARFUMS products,
then these areas shall be billed to INTER PARFUMS according
to a preliminary cost estimate and/or at market price. This
additional invoicing shall be added to the monthly invoice
for remuneration as referred to in article 13.1 above.
13.5. Any delay in payment shall result in late penalties
at the legal interest rate x 1.5 prorata temporis for the
days past due, the proof whereof shall be the date on the
postage xxxx.
ARTICLE 14. ESCALATION CLAUSE
The minimum annual remuneration of 5,640,000 francs shall
be revised on the first of January of each year. The
parties shall meet in regard to this matter prior to
January 31 of the year N+1.
The minimum remuneration of the year N+1 shall be fixed by
mutual agreement between the parties according to the
estimated turnover of INTER PARFUMS for the year N+1, which
shall not be less than the turnover for the year N which
was achieved from the platform, except in extraordinary
circumstances.
In no case shall there be a negative variation in this
minimum remuneration.
ARTICLE 15. INSURANCE
INTER PARFUMS shall insure at its own risk and peril its
own merchandise stored in the framework of the present
agreement for the risks of theft by breaking and entering,
riots, wars whether declared or not, water and fire damage.
INTER PARFUMS shall therefore make it its own business to
deal with any damages or losses that may happen to the
goods which it owns in the context of the policies taken
out in this way.
Consequently, INTER PARFUMS and its insurers surrender the
right to exercise any right of recourse against SAGATRANS
and its insurers for claims stemming from insurance taken
out in this way.
SAGATRANS shall be responsible under the terms of articles
7.1 and 7.2 for disasters other than the cases referred to
in paragraph 1 above.
SAGATRANS shall make it its own business to insure any
other property that belongs to it or is placed under its
responsibility. SAGATRANS and its insurers surrender the
right to exercise any right of recourse against INTER
PARFUMS and its insurers, including in the case of a claim
arising from an act by the latter affecting other stored
merchandise.
Each of the two parties shall take out the necessary
insurance policies to insure themselves against the risks
that remain their responsibility by virtue of the aforesaid
provisions. Each of the parties shall pay the premiums and
deductibles of the insurance policies they take out. The
limit of liability of such policies shall not be
enforceable against the other party.
The insurance policies shall furthermore include a
surrender of subrogation rights of the insurers in favor of
the other party.
Each of the parties shall provide, at the first request of
the other party, a copy of the insurance certificates which
make it possible to justify the required guarantees.
ARTICLE 16. FORCE MAJEURE
Cases of force majeure are considered to be any
circumstances beyond the control of the parties when these
circumstances occur after the contract has been entered
into and when these circumstances prevent full or partial
execution of the contract.
In the unforeseen event of a case of force majeure, the
present contract shall be automatically suspended during
the entire period of force majeure, and neither party can
be held responsible by the other party for any contractual
non-performance due to such an event.
For the application of this clause, circumstances of force
majeure are considered to include, but are not limited to,
the following: strikes by the dock workers or port workers
of the self-sustaining port of Rouen, a platform lock-out,
fire, mobilization, requisition, embargo, insurrection, war
whether declared or not, civil war, revolution, riots,
sabotage, interruption of means of transportation, energy
restrictions, an act by any public authority, import bans,
export bans or bans on the transit of merchandise.
The parties shall meet together in order to determine by
mutual agreement the terms of construction or replacement
which would make it possible to recommence execution of the
contract as quickly as possible.
In view of the precarious nature of the lease of the
platform which comes under the rules of public domaniality,
it will deemed a case of force majeure if the self-
sustaining port of Rouen should decide to terminate the
lease contract referred to in article 1.1 for reasons other
than misconduct on the part of SAGATRANS. In that case, the
parties shall confer with each other in order to determine
the terms under which they could continue their
relationship.
In the event of an insurmountable force majeure that
prevents either party from following through on their
contractual relationship, the parties recognize that the
present contract would be broken without indemnity from
either side.
ARTICLE 17. MANAGEMENT AND ADAPTATION OF THE CONTRACT
The parties agree to meet whenever necessary in order to
examine the ways in which the contract may be adapted to
developments observed in economic or technical factors or
in the regulations.
More particularly, the parties shall meet whenever there is
a major event or significant changes in the parameters used
to determine the obligations of either party.
If the balance of the contract should be modified by
significant changes in business conditions or very notable
changes in the economic conditions that prevailed when
determining their agreements and that they could not
reasonably presume at the time the agreement was entered
into, then the parties shall confer in order to determine
together the manner in which to quickly remedy this
imbalance and to make the necessary amendments to the
contract.
ARTICLE 18. DURATION
The present contract shall enter into effect as of this day
for an initial period which shall expire, except as may
expressly otherwise be provided in these presents, after
the sixth (6th) year following the date on which the
platform referred to in article 1.2. of these presents is
effectively put into operation.
It shall then be extended for successive periods of three
(3) years unless one of the parties opposes such an
extension and gives notice to the other contracting party
six (6) months prior to the expiration date by registered
mail with acknowledgement of receipt.
The renewed contract may also be terminated under the same
terms upon expiration of each period of three (3) years
provided a notice period of six (6) months is observed.
ARTICLE 19. INDEPENDENCE OF THE PARTIES
SAGATRANS shall in all circumstances deal in its own name
and act as independent company and with no opportunity for
representation.
The parties each assume full responsibility for the
obligations placed upon them by virtue of these presents.
Unless specifically otherwise agreed upon in writing,
SAGATRANS has no authorization whatsoever to act in the
name of INTER PARFUMS and/or to commit it in any manner
whatsoever and must take all appropriate steps to avoid any
confusion for third parties in this respect, and vice
versa.
ARTICLE 20. CONFIDENTIALITY
The parties recognize that information provided to them
and/or information gathered by them incidental to the
execution of the agreement (clientele, management methods
and any information regarding technical, marketing and
financial matters) are of a strictly confidential nature.
The parties agree, both during the period of the agreement
and after its expiration, not to divulge such information
to third parties and to take all due care and diligence,
particularly with regard to their personnel, to maintain
and guarantee the confidentiality thereof.
Upon expiration of the agreement, each party shall return
to the other the documents which belong to the other.
ARTICLE 21. BREACH OF CONTRACT
21.1 The present contract cannot be terminated except for
reason of gross negligence and this shall be valid for the
entire duration of the first period of six (6) years. Gross
negligence is explicitly defined as a seriously wrongful,
repeated and intentional failure on the part of either
party to perform its obligations.
After the first period of six (6) years, termination during
the renewal period may take place for reason of negligence
after a formal demand of performance by registered mail
with acknowledgement of receipt sent to the party in
default remains unsuccessful for one month. The present
contract shall be terminated by right without prejudice to
damages and interest that may be claimed against the
defaulting party.
21.2 In the event of a breach of the present contract, for
any reason whatsoever, the INTER PARFUMS company shall make
it its business to repossess products in storage on the
platform on the date of such breach. Any occupancy beyond
this date shall be invoiced to the INTER PARFUMS company
prorata temporis on the basis referred to in article 13.4.
ARTICLE 22. ASSIGNMENT
The present contract cannot be assigned by INTER PARFUMS in
whole or in part without the prior express written consent
of SAGATRANS, and vice versa.
ARTICLE 23. TOLERANCE
If one of the parties should renounce and/or disregard
invoking any provision of the agreement, then this shall
not in any case constitute permanent renunciation
applicable to a subsequent violation of this provision
whose binding character shall remain full and intact.
ARTICLE 24. HEADINGS
The titles or headings of the various articles and
paragraphs of the present contract have been inserted
solely for reasons of clarity of the text and cannot in any
way be considered as a means to define, limit or control in
any manner whatsoever the scope or purpose of the specific
article or paragraph to which it refers.
ARTICLE 25. PARTIAL NULLITY
In the event that a clause in the present contract should
be declared null and void or in conflict with mandatory
laws or public policy, the undersigned parties agree to
take counsel together and to seek in good faith an
agreement regarding a valid clause which resembles the
invalid clause as closely as possible.
ARTICLE 26. ELECTION OF DOMICILE
Any notification from one party to the other must be made
by registered mail with acknowledgement of receipt to the
registered offices of each party.
ARTICLE 27. REGISTRATION
If either party so requires, these presents shall be
recorded at that party's expense.
ARTICLE 28. COMPETENCE
Any dispute with respect to the interpretation and
application of the present contract shall fall under the
jurisdiction of the Trade Court of Rouen.
Drawn up in Boulogne,
On May 5,1998
In duplicate
INTER PARFUMS SAGATRANS
[signature] [signature]
APPENDIX 1. SAGATRANS' MEANS
APPENDIX 2. COMPUTER EQUIPMENT
APPENDIX 3. INVENTORY PROCEDURE
773413_1.DOC
Exhibit 10.95.1
1
