LICENCE AGREEMENT
ASIAN & WESTERN CLASSICS B.V.
AND
VICTORIA CREATIONS, INC.
T H I S A G R E E M E N T is made August 1995
BETWEEN:-
(1) ASIAN & WESTERN CLASSICS B.V. of Xxxxxxxx Xxxxxxxxxxxxx 00,
000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx (hereinafter called "Asian");
and
(2) VICTORIA CREATIONS, INC. of 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X. (hereinafter called "the Licensee")
W I T N E S S E T H as follows:
W H E R E A S :-
(A) Asian is the owner of the famous trademark "Xxxx Xxxxxxxxx" in
its various forms ("the Trade Marks" as defined below) and of
the goodwill and reputation associated with them and
manufactures or has manufactured for it and sells under the
Trade Marks a wide range of luxury goods;
(B) The Xxxx Xxxxxxxxx name enjoys an international reputation as
a prestige luxury brand name and a distinctive and extensive
commercial and technical know-how in the marketing and sales
of Xxxx Xxxxxxxxx luxury goods has been established;
(C) The Licensee is well known and has been engaged under
licence from Asian since 1987, in the manufacture, distribution
and sale of Xxxx Xxxxxxxxx branded luxury costume jewellery
for women, and has made its best efforts to maintain the
prestige of and the goodwill associated in the famous trademark
"Xxxx Xxxxxxxxx"; and
(D) Asian wishes to appoint the Licensee to exclusively
manufacture, distribute and sell under the Trade Marks in
accordance with the terms of this Agreement, a range of Xxxx
Xxxxxxxxx branded products as defined below.
IT IS AGREED as follows:
1. DEFINITIONS:
For the purposes of this Agreement:
(a) "the Commencement Date" means 1st July 1995;
(b) "Contractual Year" shall mean the period commencing on
the Commencement Date and ending on the following 30th
June and any subsequent period of twelve months
commencing on 1st July and ending on the following 30th
June.
(c) "the Products" shall mean the products described in
Schedule 1 hereto as shall be manufactured by the
Licensee and as shall be sold under the Trade Marks with
such variations and additions as Asian may in its absolute
discretion make from time to time to the specifications for
such Products;
(d) "Net Sales Turnover" shall mean in the ordinary course of
business to a customer at arm's length, the gross price
invoiced by the Licensee, less:-
(i) Products returned;
(ii) any relevant tax or duty imposed on the Licensee in
respect of the Products involved;
(iii) shipping, packaging and insurance costs, to the
extent shown as a separate item on customer invoices and
recovered as such from customers;
(iv) invoices which are unpaid by reason of customers
judicially determined insolvency; and,
(v) discounts (to the extent permitted under Clause 7(f)
below), rebates, credit, allowances and any other non-
merchandise items stated on invoices, subject to these not
exceeding fifteen per cent (15%) in total of the Net Sales
Turnover in any Contractual Year.
(e) "Technical Information" shall be designated by Asian to
include any and all know-how and retail information in
connection with, for example, creative and technical
design, image, corporate identity, advertising, promotion
and fashion shows;
(f) "the Territory" shall mean North America excluding duty-
free outlets;
(g) "the Trade Marks" shall mean the trade xxxx "Xxxx
Xxxxxxxxx", in its various forms and shall include (but not
be limited to) the various registrations which have been
obtained, which are pending, or which may be obtained
as are relevant to the Products.
2. MANUFACTURING GRANT:
(a) Asian grants to the Licensee the right to exclusively
manufacture the Products for sale in the Territory under the
Trade Marks.
(b) The Licensee agrees to manufacture each Contractual Year
for distribution in accordance with the terms of this Agreement,
at least two (2) collections of the Products; one (1) for the
Spring/Summer collection and one (1) for the Autumn/Winter
collection. The contents of each collection, including the
number of items, will be defined by Asian or its representative,
after close consultation with the Licensee and such consultation
shall take particular account of technical requirements, sales
forecasts and brand image, subject to the final decision on all
aspects of the collections being that of Asian. All costs of
manufacturing, distributing or otherwise preparing the
collections shall be borne by the Licensee.
(c) Asian agrees, in accordance with Clause 4 below, to
provide or procure to the Licensee all relevant Technical
Information necessary to enable the Licensee to manufacture
the Products.
3. DISTRIBUTION GRANT:
(a) Asian grants to the Licensee upon the terms and
conditions of this Agreement the right:-
(i) to exclusively distribute and sell the Products under
the Trade Marks in
the Territory, through Xxxx Xxxxxxxxx identified
corners and other channels of distribution in
accordance with the provisions of Clause 7 below.
The Licensee agrees that such other channels of
distribution shall be approved by Asian (such
approval not to be unreasonably withheld) with
reference to their location and style and to the
general requirements of the Xxxx Xxxxxxxxx brand
environment.
(ii) to use the Trade Marks for the purposes of
advertising and sales promotion of the Products and
to refer to itself as the distributor of the Products
in the Territory.
(b) The Licensee agrees not to distribute any Products which
do not bear the Trade Marks as set forth in Schedule 2
hereto, as may be varied from time to time by Asian.
(c) Asian shall remain free in the Territory to set up Xxxx
Xxxxxxxxx retail shops or other outlets either directly or
by way of franchise to third parties to sell other Xxxx
Xxxxxxxxx products with the Products. In
such circumstances, the Licensee agrees that both Asian
and such third parties may, subject to the agreement of
favourable terms of supply, obtain the Products from the
Licensee. Asian reserves the right to sell items or
objects similar to the Products in such Xxxx Xxxxxxxxx
retail shops or other channels of distribution, but only if
the Licensee has declined an interest in supplying such
items or objects or if the parties are unable to agree
favourable terms of supply.
(d) Nothing within this Agreement will restrict or prevent the
sale in the Territory in Xxxx Xxxxxxxxx retail shops or
other outlets established under the "Xxxx Xxxxxxxxx" name
and Trade Marks, of French-manufactured items and
products similar to the Products which were designed
originally as accessories to Xxxx Xxxxxxxxx branded apparel
collections.
(e) Asian shall not appoint any other licensee for the
Products in the Territory during the term of this
Agreement except that, for transitional purposes only,
Asian may during the period of six (6) months prior to
the termination hereof appoint the Licensee's successor (if
any) and allow such successor to make itself known as
Asian's future licensee able to do business after the
termination hereof. During that six (6) month period, the
Licensee's successor (if any) may also take orders for the
Products for delivery after the termination hereof.
Notwithstanding the foregoing, Asian shall use all
reasonable efforts to ensure that both it and the new
licensee will take no action which will materially impare
the value of the rights granted hereunder to the Licensee
during the term of this Agreement.
4. DESIGN:
(a) Asian shall be responsible for producing designs for all
Products in accordance with such seasonal collection planning
as shall be agreed between the parties from time to time.
(b) Asian shall in a timely fashion produce or procure to the
Licensee relevant Technical Information including designs in
sketch form together with specifications including materials,
colours, finish and quality relevant to their manufacture or
presentation and any other know-how necessary to enable
the Licensee to manufacture the Products. Asian will advise
the Licensee of any changes in the specifications as they arise
in a timely fashion so that such changes can be implemented by
the Licensee in a commercially reasonable manner. Asian will
provide or procure artistic and technical assistance and
support to the Licensee, in relation to all technical know-how
essential to the manufacture of the Products.
(c) Nothing in this Agreement shall prevent Asian from making
changes in the specifications of the Products so long as such
changes are reasonably capable of implementation and have
reasonable commercial value.
(d) The Licensee may submit a reasonable number of
unpublished designs of its own for the Products, together with
relevant specifications including fabrics and materials, colours,
finish and quality. The final approval on the content of each
collection remains with Asian, or its representatives, and all
designs for the collections prepared and submitted by the
Licensee shall either be presented for such approval while the
Licensee's personnel are visiting Asian, or its representatives,
or, if submitted on other occassions, the design(s) shall be
deemed to have been approved if Asian, or its representatives,
have not rejected them within twenty-one (21) days of receipt.
(e) The parties accept that it is fundamental to this
Agreement that the Licensee agrees not to make a change of
whatever nature in any designs produced, procured or
approved by Asian, without the prior written consent of Asian,
which shall not be unreasonably withheld, and that all designs
produced or approved by Asian shall be the exclusive property
of Asian and shall furthermore be exclusive to the Products
and utilised only in association with the Products as Asian
directs.
(f) All designs forming the collections, including those
submitted by the Licensee, shall be and shall remain the
exclusive property of Asian, and the Licensee shall only have
use of the designs in accordance with the terms of this
Agreement.
5. CREATIVE SERVICES:
(a) Asian will provide or procure creative designs and advice
on materials and the finish of the Products and will approve all
sample merchandise in accordance with seasonal collection
planning.
(b) Subject to a reasonable standard and consistent with
commercial practice, Asian will provide or procure the services
of qualified personnel to assist the Licensee in the manufacture
of the Products, including the selection of materials and
accessories, in accordance with the designs supplied, procured
or approved by Asian, or on its behalf, and in particular Asian
or its representatives shall give the necessary advice to ensure
that the Products comply with the Xxxx Xxxxxxxxx brand image.
(c) Asian will provide or procure that its qualified personnel,
or those of its representatives, visit the Licensee's production
premises, or those of its authorised sub-contractors, or any
other location selected by the Licensee, to inspect the quality
of the Products and to ensure that they correspond exactly
with the approved designs. Should the Products fail to
correspond with the approved designs, the Licensee shall
remedy any such inconsistencies within twenty (20) days of
written notice and should it fail to do so, the Products may not
be sold; provided, however, that Asian will use its best
endeavours to conduct such inspections in a timely manner in
relation to the production schedule of the Licensee so as to
allow necessary changes to be made without undue hardship to
the Licensee.
(d) In accordance with seasonal collection planning and at
least once a year a representative of the Licensee will visit the
Xxxx Xxxxxxxxx design studio for the purposes of developing
closer co-operation and the cost of this and any other visits
made by the Licensee's representatives shall be borne by the
Licensee. The cost of visits by Asian's representatives to the
Territory, for the purposes of providing creative services and
assisting it in the sale, advertising and promotion of the
Products, shall be borne by Asian.
6. STANDARDS OF QUALITY:
The parties recognise that the maintenance of Asian's own
standards of quality, design and presentation is essential in
order to preserve the prestige of the Trade Marks and the
goodwill and reputation associated with them and it is agreed
that Asian shall have total control over the quality of the
Products. The Licensee shall conform to all quality control
guidelines and recommendations given by Asian in this regard
from time to time. In particular the Licensee shall:-
(a) submit a representative number of Products to Asian for
approval, which shall not be unreasonably withheld, before the
manufacture of any of the Products is commenced;
(b) submit for the approval of Asian or its nominee a
representative quantity of printed matter and materials,
including packaging, hang-tags and price tags, catalogues and
labels and display items which must conform with the relevant
Technical Information which Asian will provide to or procure
for the Licensee;
(c) allow Asian and its representatives, agents or nominees at
reasonable times and upon reasonable notice to visit the
Licensee's premises and those of its authorised sub-contractors
in order to inspect the Licensee's stock of the Products and to
examine the manner in which they are manufactured and stored
to ensure that these conform to Asian's standards and quality
requirements; and
(d) not distribute Products or materials specified in Clause
6(b) above which are either not approved or are defective.
7. DISTRIBUTION:
(a) The Licensee shall use its best efforts to maximise sales
of the Products and to develop a distribution network
compatible with the prestige of the Xxxx Xxxxxxxxx name.
(b) Prior to the distribution of the Products within the
Territory, the Licensee shall first obtain Asian's agreement to
the annual marketing plan referred to in Clause 8 below.
(c) The parties agree to the distribution of the Products
through Xxxx Xxxxxxxxx identified corners and other channels
of distribution which are proposed by the Licensee. In that
regard the Licensee shall forward to Asian every six (6) months
a list of such corners and other channels of distribution. It
is agreed that the Licensee shall use its utmost efforts to
ensure that such corners and other channels of distribution
will materially conform with the Xxxx Xxxxxxxxx brand
environment and the relevant Technical Information which Asian
will provide or procure. Asian reserves the right for its
representatives to visit such corners and other channels of
distribution in order to ensure that they do so materially
conform and in the event that they do not, Asian shall require
that the Licensee cease to supply such corners or channels of
distribution.
(d) Asian may at any time propose Xxxx Xxxxxxxxx identified
corners and outlets for the distribution of the Products which
have not been proposed by the Licensee.
(e) The Licensee will ensure that the distribution and the sale
of the Products will only be in a manner which is compatible
with the prestige of the Xxxx Xxxxxxxxx name and is not in
Asian's reasonable opinion likely to diminish the prestige of the
Trade Marks and the Licensee will further ensure that all
material of whatever nature relevant to the Xxxx Xxxxxxxxx
identity or name will be promptly removed from any corner or
outlet which ceases to sell the Products.
(f) The Licensee agrees that the Products may not be sold at
discounts of fifty per cent (50%) or more under the Xxxx
Xxxxxxxxx name or the Trade Marks. Where possible any
Products sold at such a discount will have any reference to the
Xxxx Xxxxxxxxx name or Trade Marks removed or thoroughly
deleted from it or its label and shall be "re-branded".
8. ANNUAL MARKETING PLAN:
(a) The Licensee shall produce a detailed annual marketing
plan which shall include, but not be limited to, any proposals
on a change in brand positioning including general information
on competitors, promotion or promotional expenditure, sales
volumes, projected royalties, outlets, development of the
product range, stock levels, pricing, and price range together
with comparative details for the previous Contractual Year
including details of total turnover and distribution and
turnover as relevant to major outlets.
(b) The annual marketing plan shall be fully discussed in
good faith by the parties and shall be agreed by the parties
each Contractual Year by 31st March for implementation in the
following Contractual Year.
(c) Notwithstanding the content of Clause 8(b) above, the first
annual marketing plan for the first Contractual Year shall be
agreed by the date of this Agreement.
9. ROYALTY:
(a) For and in consideration of the rights granted to the
Licensee and undertakings given by Asian, the Licensee
shall pay to Asian, subject to the due performance of its
obligations, a royalty equal to ten per cent (10%) of the Net
Sales Turnover of all Products manufactured and sold by the
Licensee in any Contractual Year.
(b) Royalties shall be payable for each Contractual Year in
quarterly instalments within thirty (30) days of 30th
September, 31st December, 31st March and 30th June and shall
be accompanied by a detailed royalty statement which shall
include details of the quantities of Products sold, the price
charged, and any discount allowed, Net Sales Turnover, royalty
due, and any other particulars which Asian may reasonably
require.
(c) By 15th August each Contractual Year, the Licensee shall
provide Asian with a certificate from the Licensee's auditors
indicating the volume and value of sales of the Products for
the previous Contractual Year and that the figures contain in
the royalty statements correspond with the entries in the books
of the Licensee. Asian shall have the right to verify that
these details are correct and in the event that a short fall in
the royalties paid is verified the Licensee shall promptly pay
to Asian all costs and expenses of such examination, together
with the additional royalties due to Asian.
(d) Failure by the Licensee to meet any royalty payment by
its due date shall thereafter incur accrued interest at the basic
bank interest rate plus three per cent (3%) per annum charged
by the bank to which the Licensee makes royalty payments.
Payments shall be applied first against any interest which may
have accrued to the date of payment and any balance against
the amount of royalty payment outstanding.
(e) All royalty payments shall be calculated and paid by the
Licensee to Asian as Asian directs, in US dollars.
(f) All payments shall be made without any deductions except
for tax which the Licensee is legally bound to withhold.
10. ADVERTISING AND PROMOTION:
(a) Asian shall at its option provide or procure the artwork
and creative design for all media advertising, promotional
material, packaging and point of sale material which shall then
be the responsibility of the Licensee to place or circulate in
the Territory, failing which the Licensee shall produce all such
material, subject to Asian's prior written approval. Should
Asian choose to supply such material, it must be provided to
the Licensee in a commercially timely fashion in order to allow
the Licensee adequate time to properly place or circulate such
material. The Licensee shall be responsible for organising
demonstrations, fashion shows and displays at trade fairs and
exhibitions subject to both Asian's reasonable approval and it
conforming to the creative design or other relevant Technical
Information which Asian will provide or procure.
(b) The cost of all artwork relevant to advertising and
promotion under Clause 10(d) below, shall be borne by the
Licensee.
(c) In addition, the Licensee agrees to spend in each
Contractual Year a sum to be utilised in advertising. Such
expenditure during the first Contractual Year of this Agreement
will be an amount equal to not less than four per cent (4%) of
the projected Net Sales Turnover for that first Contractual
Year and thereafter during subsequent Contractual Years will
be an amount equal to not less than four per cent (4%) of the
Net Sales Turnover for the immediately proceeding Contractual
Year. Two per cent (2%) shall be allocated to co-operative
advertising and two per cent (2%) to institutional advertising.
(d) The cost of point of sales advertising for the Territory,
such as window signs, displays and window or stand
decoration, and of any specific packaging which the Licensee
may (subject to the prior approval of Asian) elect to use for
the Products, shall be borne by the Licensee or its customers
and such costs shall be included within expenditure under
Clause 10(c) above, subject to point-of-sale advertising not
exceeding 25% of such advertising expenditure in any
Contractual Year. All such point of sale advertising shall be
created by the Licensee or its customer, subject to the prior
approval of Asian or its representatives, under reasonable
procedures and guidelines to be agreed between the parties
hereto.
(e) The Licensee will additionally exploit opportunities for
joint marketing together with retail outlets and there will be
no cost to Asian for such activities, all of which are subject to
Asian's approval to the extent they are not already approved
as part of the Licensee's annual marketing plan.
(f) The parties agree that the media advertising budget
provided for in accordance with this clause shall be managed
by the Licensee in consultation with Asian and in co-ordination
with either the Licensee's in-house staff or an advertising
agency approved by Asian. The parties will discuss at regular
consultative meetings how the budget will be allocated to
maximum effect.
11. TRADE MARKS
(a) Asian hereby represents and warrants that it has the full
power and right to grant to the Licensee this licence to use
the Trade Marks.
(b) Asian is the owner of the Trade Marks, which include
those registered in the Territory and other countries. To the
extent required by Asian to assure the prestige of the Xxxx
Xxxxxxxxx name and the Trade Marks, Asian's policy shall
continue to be, at its own expense and to the extent
practicable, to maintain the Trade Marks and to demand, claim,
bring suit, effect settlement or take any other action against
any third party in order to terminate any infringement of
Asian's rights. Asian shall be entitled to all costs or damages
which may be awarded as a result of any such action or
settlement.
(c) The Licensee acknowledges that Asian is the owner of the
Trade Marks appearing upon or used in relation to the
Products and of the goodwill attaching thereto and that it has
no rights in respect thereof except for the purposes and
during the subsistence of this Agreement in accordance with
the terms hereof. Any rights which the Licensee may acquire
in the Trade Marks by virtue of its activities pursuant to this
Agreement shall vest in and on request be assigned to Asian
absolutely.
(d) The Licensee shall not do or omit to do anything by which
the goodwill and reputation associated with the Trade Marks
might be diminished or jeopardised and agrees that Asian may
unilaterally (and to the extent necessary is hereby authorised
to act on behalf of the Licensee) cancel such registrations upon
termination of this Agreement.
(e) The Licensee undertakes at the request of Asian to enter
into a registered user agreement, where applicable, in respect
of any of the Trade Marks.
(f) The Licensee shall inform Asian immediately of any
infringement, unauthorised use or imitation of the Trade Marks
in the Territory and any acts by third parties which may
constitute unfair competition which may come to its notice and
shall assist Asian at its request in pursuing any action which
Asian considers appropriate. In this regard and also in
respect of any cancellation or opposition actions Asian may
take, the Licensee will take no action on its own account
without obtaining Asian's prior written consent.
(g) To the extent practicable, Asian may require that the
Licensee shall include in all printed matter on which the Trade
Marks appear a legend stating that the Trade Marks are the
property of Asian.
(h) Asian shall own the intellectual property rights in any
fabric, finished Product, models or designs it produces or
approves and no use may be made of such fabrics, models or
designs, other than for the purposes of this Agreement, without
Asian's prior written consent.
(i) Asian agrees that it shall, during the term of this
Agreement, maintain or procure that the Trade Marks are
maintained in full force and effect in the Territory.
(j) The Licensee agrees that it shall not, at any time, directly
or indirectly contest the validity of the registration of the
Trade Marks or their ownership by Asian, its successors and
assigns.
(k) The Licensee agrees not to use the Trade Marks as a part
of its trading name and shall not use in its business any other
trade or service xxxx so resembling the Trade Marks as to be
likely to cause confusion.
(l) The Licensee agrees not to apply the Trade Marks to any
goods to which it does not have title.
12. DURATION AND TERMINATION:
(a) This Agreement shall come into effect on the
Commencement Date and shall continue in force, unless
terminated as provided below, for three (3) Contractual Years
and shall therefore terminate on 30th June 1998. This
Agreement shall therefore cover the seasons from the
Autumn/Winter 1995 - 1996 season to the completion of sales for
the Spring/Summer 1998 season.
(b) Either party shall have the right to terminate this
Agreement forthwith by written notice to the other:
(i) in the event that the other shall be guilty of any
material breach, non-observance or non-performance
of its obligations hereunder or any of them and
shall not have remedied such breach, non-observance
or non-performance (if it is capable of remedy)
within thirty (30) days after receipt of written
notice; or
(ii) in the event that the other shall be unable to pay
its debts in the ordinary course of business or enter
into liquidation or have a Receiver appointed whether
compulsorily or voluntarily or otherwise become
subject to any applicable insolvency laws; or
(iii) in the event that the other shall at any time cease
to carry on a material part of its existing business
or becomes subject to the direct or indirect control
of any third party or group of parties other than
those at present controlling it where such third
party or group of parties may be reasonably deemed
to be in competition with the other party to this
Agreement.
(c) Additionally, Asian may terminate this Agreement if the
Licensee fails to remedy within thirty (30) days after receipt
of written notice any of the following breaches of its
obligations hereunder:-
(i) the Licensee fails to pay the royalties for any
Contractual Year; or
(ii) the Licensee fails to produce an annual marketing
or merchandising plan in accordance with Clause
8 of this Agreement.
(iii) any of the circumstances referred to in Clause 18(e)
below persist for a period of at least three (3)
calendar months.
(d) Termination of this Agreement shall be without prejudice
to any claims for damages or otherwise arising prior to
termination, whether or not the cause of termination.
(e) On notice of termination of this Agreement for any valid
reason in accordance with Clause 12(b) and 12(c) above:-
(i) the Licensee shall immediately determine, in
whatever form, the use of the Trade Marks and shall
promptly supply to Asian an inventory of the
Products and any other materials of whatever nature
bearing the Trade Marks then in stock (or in
transit) and Asian shall have the option exercisable
within two (2) months thereafter of purchasing all or
any of such stock or materials at their wholesale
prices less an appropriate allowance for
deterioration, if any. Any such stock not purchased
by Asian shall be disposed of in such manner as is
mutually agreed between the parties;
(ii) the Licensee agrees not to manufacture, sell or offer
for sale any products (of a type and description)
under or by reference to the Trade Marks or any
confusingly similar xxxx; and
(iii) the Licensee agrees to co-operate with
Asian in cancelling any registration for the
manufacturing and sale of the Products in the
Territory.
(f) On termination of this Agreement for any valid reason,
Asian shall have the unrestricted rights to grant licences for
the manufacture and sale of the Products in the Territory so
as to maintain the goodwill and the international reputation of
the Xxxx Xxxxxxxxx name and the Trade Marks.
13. ASSIGNMENT AND SUB-CONTRACTING:
(a) The rights and obligations of the Licensee under this
Agreement are entirely personal and this Agreement shall not
be assigned without the prior written consent of Asian. It is,
however, agreed that Asian shall not unreasonably withhold its
consent to the assignment of this Agreement to a wholly-owned
subsidiary of the Licensee, provided that the Licensee shall
remain primarily liable for the performance thereof.
(b) Notwithstanding the provisions of Clause 13(a) above,
Asian recognise that the Licensee may from time to time wish
to appoint sub-licensees or to sub-contract with third parties
in connection with this Agreement. The Licensee shall not
appoint any other sub-licensees or sub-contractors without
the prior consent of Asian, which if given, will be on terms
consistent with this Agreement and the Licensee shall be liable
for the due performance of such sub-licensees or sub-
contractors under the terms of this Agreement. The
appointment of such sub-licensees or sub-contractors shall be
for a period no longer than the term of this Agreement and
shall automatically terminate in the event of the termination of
this Agreement, for whatever reason.
(c) Asian may assign the obligations and the benefit of this
Agreement to any of its associates, affiliates and subsidiaries
or to any third party without the prior written consent of the
Licensee, provided Asian shall remain primarily liable for the
performance thereof and the value of the rights granted herein
are not impaired or diminished in any way.
14. WARRANTIES:
(a) Except for the case provided for under Clause 14(b)
below, the Licensee warrants that to the best of its knowledge
the manufacture of the Products will neither infringe the
copyright, registered design or other similar right of any
third party nor, to the best of the Licensee's knowledge, will
the sale of the Products give rise to any claims by any third
party in respect of product liability or any other reason. The
Licensee undertakes to indemnify Asian entirely against all
costs (including reasonable legal fees), claims, actions and
expenses suffered by Asian as a result of any breach by the
Licensee of this warranty.
(b) Asian warrants that to the best of its knowledge the use
of the Trade Marks and designs, artwork or creative designs
and other works provided or procured by Asian will not
infringe the copyright, registered design, trade marks or other
right of any third party in the Territory. Asian undertakes to
indemnify the Licensee entirely against all costs (including
reasonable legal fees), claims, expenses suffered by the
Licensee as a result of any breach by Asian of this warranty.
15. INDEMNITY:
Save for the case provided for under Clause 14(b) above,
the Licensee shall indemnify and hold Asian harmless against
any loss, costs, expenses or claims including all reasonable
legal expenses and costs with respect to any actions, claim or
proceedings which may be instigated, issued or threatened
(whether or not such actions or proceedings are successful) as
a result of any acts or omissions by the Licensee or any of its
agents, employees or sub-licensees in connection with its
performance of it obligations under this Agreement.
16. CONFIDENTIALITY:
Asian has given, and during the period of this Agreement will
continue to give, to the Licensee certain Technical Information
and commercial information relating to the Products in order to
assist the Licensee to carry out its duties hereunder. the
Licensee undertakes:-
(i) to use such information only for that purpose;
(ii) to keep confidential all such information as is not
freely available to the public (including without
limiting the generality thereof, such information as
Asian may from time to time specifically designate as
confidential); and
(iii) to ensure that its staff concerned with the
Products are aware of and observe the provisions of
this clause, both during the subsistence of this
Agreement and thereafter.
17. GOVERNING LAW:
This Agreement shall be governed and interpreted according to
Dutch law and all disputes arising out of or in connection with
this Agreement shall be settled in accordance with the rules of
concilliation and arbitration of the International Chamber of
Commerce by three (3) arbitrators appointed according to such
rules. The arbitration shall take place in Amsterdam, The
Netherlands and in the English language.
18. MISCELLANEOUS:
(a) Nothing in this Agreement shall be construed as
establishing a partnership or joint venture between the parties
and neither party shall have the authority to bind or obligate
the other in any manner outside the scope of this
Agreement.
(b) No failure or delay on the part of either party in
exercising its rights under this Agreement shall be construed
to be a waiver by either party of any rights under this
Agreement and any such waiver shall not prevent the
subsequent enforcement of that right.
(c) Any notice to be served by either party upon the other
shall be deemed to have been duly given seven (7) days after
being sent to the intended recipient at its last known address
by recorded, or registered airmail or express courier, or one
(1) business day (in the recipient's country) after being sent
by confirmed telefax or telex, in each case followed by
confirmation delivered by registered airmail or express courier.
(d) This Agreement provides for the entire understanding of
the parties and supersedes all prior agreements and
understandings between the parties with regard to the
transactions contemplated herein. Any modification or
amendments proposed by either party shall not be binding on
the other without prior written consent.
(e) The parties hereto shall not be responsible for any loss,
damage, consequential or otherwise, detention or delay caused
by fire, law, regulation, civil or military authority, insurrection
or riot, labour strike or wartime embargoes, tempest, act of
God, shortages or by any other cause whatsoever, which is
unavoidable or beyond the relevant party's reasonable control;
provided, however, that any such force majeure shall not
relieve the Licensee from it obligations to make payment of
amounts due and owing to Asian in accordance with the terms
of this Agreement.
(f) Any part of this Agreement which is or may become illegal
or unenforceable shall be severed and the rest of the
Agreement shall remain in force unless the part which has to
be severed requires negotiation of modified terms to restore
the balance of the Agreement.
(g) The clause headings and titles herein are for ease of
reference only and shall not affect the interpretation hereof.
IN WITNESS whereof the parties have executed this Agreement the
day and year first above written
SIGNED by SIGNED by
For and on behalf of For and on behalf of
ASIAN & WESTERN CLASSICS B.V. VICTORIA CREATIONS,
INC.
/s/ X.X. Barhoon /S/ Xxxxxxxx Xxxxxxxx
Managing Director President
SCHEDULE 1
THE PRODUCTS
The Products shall comprise of the following items:-
Luxury costume jewellery for women
SCHEDULE 2
THE TRADE MARKS
Signature of Xxxx Xxxxxxxxx
