EXHIBIT 10.41
(Jones - Design)
DESIGN SERVICES AGREEMENT dated as of October 18, 1995, by
and between Polo Ralph Lauren Enterprises, L.P. (the "Design
Partnership"), with a place of business at 650 Madison Avenue,
New York, New York 10022 and Jones Apparel Group, Inc. (the
"Company") with a place of business at 250 Rittenhouse Circle,
Bristol, Pennsylvania 19007.
Ralph Lauren ("Lauren") is an internationally famous
designer who has been twice inducted into the Coty Hall of Fame
for his design of men's and women's fashions, is the recipient of
the CFDA Lifetime Achievement Award, and is a creator of original
designs for cosmetics, jewelry, home furnishings and other
products.
Polo Ralph Lauren, L.P., a Delaware limited partnership
("Polo"), holds the right and interest in and to certain
trademarks and trade names, as same may be used in connection
with the manufacture and sale of Licensed Products, as
hereinafter defined, and on even date herewith, the Company has
obtained the right to use a specified trademark (the "Trademark")
in connection with the Licensed Products, pursuant to a license
agreement ("License Agreement") of even date herewith by and
between the Company and Polo.
The value of the Trademark is largely derived from the
reputation, skill and design talents of Lauren, and Lauren,
directly and through his designees, provides design services
through the Design Partnership.
The Company desires to obtain the services of the Design
Partnership in connection with the creation and design of the
Licensed Products.
The Company desires, in order to exploit the rights granted
to it under the License Agreement, to engage and retain the
Design Partnership to create and provide to the Company the
designs for its line of Licensed Products. The Design
Partnership is willing to furnish such designs and render such
services on the basis hereinafter set forth. As used herein, the
term "Licensed Products" shall have the meaning set forth in the
License Agreement.
In consideration of the foregoing premises and of the mutual
promises and covenants herein contained, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Designs; Assistance.
1.1 The parties understand and agree that the Company will
be principally responsible for the development and presentation
to the Design Partnership of designs for Licensed Products, which
designs will be reviewed by the Design Partnership and which the
Design Partnership may approve, disapprove or modify in its sole
discretion, in accordance with the terms and conditions set forth
herein.
- 1 -
2
1.2 The Design Partnership and the Company shall create
each season, from the Design Partnership's ideas, a program of
design themes and concepts with respect to the design of the
Licensed Products ("Design Concepts"), which shall be embodied in
written descriptions of design themes and concepts, designs and
sketches of all looks for the season, and samples of trim and
fabrics in the desired qualities and colors. The Company and the
Design Partnership shall confer on Design Concepts and shall make
such modifications as are required to meet the Design
Partnership's final approval, which final approval may be granted
or withheld in the Design Partnership's sole discretion.
1.3 The Design Partnership may engage such employees,
agents, and consultants operating under the Design Partnership's
creative supervision and control as it may deem necessary and
appropriate.
1.4 From time to time while this Agreement is in effect,
the Design Partnership may (a) develop or modify and implement
designs from the Design concepts or other designs furnished by
the Design Partnership or (b) develop and implement new designs.
1.5 The Company shall be principally responsible for
creating designs for each season consistent in all respects with
the approved Design Concepts for that season, and shall consult
with the Design Partnership in good faith with respect to all
such designs.
1.6 The Company understands that all or portions of the
Design Concepts may be furnished to the Company through or in
cooperation with other entities to which the Design Partnership
has provided design services. The Company upon its prior written
authorization shall pay all costs, including shipping and
handling charges, for fabric swatches or mill chips, sketches,
specifications, paper sample patterns and product samples
furnished to the Company by the Design Partnership or such other
entities.
1.7 All patents and copyrights on designs of the Licensed
Products created or supplied-by the Design Partnership shall be
owned exclusively, and applied for, by the Design Partnership or
its designee, at the Design Partnership's discretion and expense,
and shall designate the Design Partnership or its designee as the
patent or copyright owner, as the case may be, therefor. All
patents and copyrights on designs of the Licensed Products
created or supplied by the Company shall be owned exclusively,
and applied for, by the Company or its designee, at the Company's
discretion and expense, and shall designate the Company or its
designee as the patent or copyright owner, as the case may be,
therefor.
1.8 Company acknowledges that the Licensed Products contain
elements which in concept, execution and/or presentation are
unique. Company agrees that it will not, during the term of the
Agreement, use any designs submitted or modified by the Design
Partnership or any designs which are comparable and/or
competitive with Licensed Products and which may be identified as
Design Partnership designs.
- 2 -
3
2. Design Legends; Copyright Notice and License.
2.1 All designs, patterns, sketches, artwork, logos and
other materials of Licensed Products and the use of such designs,
artwork, sketches, logos and other materials created by the
Design Partnership or the Design Studio, or, subject to paragraph
2.7 hereof, created by or for the Company and reviewed and
approved by the Design Partnership, or developed by or for the
Company from Design Concepts or subsequent design concepts
furnished or approved by the Design Partnership (all of which
shall hereinafter constitute Design Concepts), shall be the
property of the Design Partnership and shall be subject to the
provisions of this paragraph 2.
2.2 All right, title and interest in and to the samples,
sketches, design, artwork, logos and other materials furnished to
Company by the Design Partnership, and in all logos or crests
which become associated with the Trademark, regardless of whether
such logos or crests are created or furnished by the Company or
the Design Partnership, are hereby assigned to and shall be the
sole property of the Design Partnership. The Company shall cause
to be placed on all Licensed Products appropriate notice
designating the Design Partnership as the copyright or design
patent owner thereof, as the case may be. The manner of
presentation of said notices shall be reviewed and approved by
the Design Partnership prior to use thereof by the Company.
2.3. The Design Partnership hereby grants to the Company
the exclusive right, license and privilege ("License") to use the
designs furnished hereunder and all copyrights, if any, and
patents, if any therein; provided, however, that the License is
limited to use in connection with Licensed Products manufactured
and sold, or imported and sold, pursuant to the License Agreement
and only for the seasonal collection for which such Design
Concepts are approved. All other rights in and to the designs
furnished hereunder, including without limitation all rights to
use such designs in connection with products other than Licensed
Products (as defined in the License Agreement) and in territories
other than the Territory (as defined in the License Agreement)
are expressly reserved by the Design Partnership. The License
shall continue only for such period as this Agreement shall be
effective. The Design Partnership shall execute and deliver to
the Company all documents and instruments necessary to perfect or
evidence the License. Upon termination of this Agreement, for
any reason whatsoever, any and all of the Company's right, title
and interest in and to the License shall forthwith and without
further act or instrument be assigned to, revert to and be the
sole and exclusive property of the Design Partnership, and the
Company shall have no further or continuing right or interest
therein, except the limited right to complete the manufacture of
and sell Licensed Products during any Disposal Period, as set
forth in paragraph 6.3 hereof. In addition, the Company shall
thereupon (i) execute and deliver to the Design Partnership all
documents and instruments necessary to perfect or evidence such
reversion, (ii) refrain from further use of any of the Design
Concepts and (iii) refrain from manufacturing, selling or
distributing any products (whether or not they bear the
Trademark) which are confusingly similar to or derived from the
Licensed Products or Design Concepts.
- 3 -
4
2.4 Company shall not sublicense any of the rights granted
hereunder without first obtaining the Design Partnership's prior
written consent in connection therewith, which consent may be
withheld by the Design Partnership in its sole discretion.
2.5 The Design Partnership represents and warrants to the
Company that it has full right, power and authority to enter into
this Agreement, to perform all of its obligations hereunder and
to consummate all of the transactions contemplated herein.
2.6 The Company represents and warrants to the Design
Partnership that the Company has full right, power and authority
to enter into this Agreement, to perform all of its obligations
hereunder and to consummate all the transactions contemplated
herein.
3. Licensed Products.
3.1 All aspects of the design of Licensed Products for each
season, including, but not limited to, the type and quality of
materials, colors, workmanship, styling, detail, dimensions and
construction to be used in connection therewith, shall strictly
adhere to the Design Concepts approved by the Design Partnership
for such season. In addition, all Licensed Products shall be at
least of the same quality as comparable products in the Jones New
York line as of the date of this Agreement.
3.2 In the event that any Licensed Product is, in the
judgment of the Design Partnership, not designed, manufactured or
sold in strict adherence to the approved Design Concepts, or if
the quality is below the standards required hereunder, the Design
Partnership shall notify the Company thereof in writing and the
Company shall promptly repair or change such Licensed Product to
conform strictly thereto. If an item of Licensed Product as
repaired or changed does not strictly conform to the Final
Prototypes and such strict conformity or improvement in quality
cannot be obtained after at least one (1) resubmission, the
Trademark shall be promptly removed from the item, at the option
of the Design Partnership, in which event the item may be sold by
the Company without payment or compensation hereunder.
3.3 The Design Partnership and its duly authorized
representative shall have the right, upon reasonable notice
during normal business hours, to inspect all facilities utilized
by the Company (and its contractors and suppliers) in connection
with the preparation of Prototypes and the manufacture, sale,
storage or distribution of Licensed Products pursuant hereto and
to examine Licensed Products in process of manufacture and when
offered for sale within the Company's operations. The Company
hereby consents to the Design Partnership's examination of
Licensed Products held by its customers for resale provided the
Company has such right of examination. The Company shall take
all necessary steps, and all steps reasonably requested by the
Design Partnership, to prevent or avoid any misuse of the
licensed designs by any of its customers, contractors or other
resources.
3.4 The Company shall comply with all laws, rules
regulations and requirements of any governmental body which may
- 4 -
5
be applicable to the manufacture, distribution, sale or promotion
of Licensed Products. The Company shall advise the Design
Partnership to the extent any Final Prototype does not comply
with any such law, rule, regulation or requirement.
3.5 The Company shall upon request make its personnel, and
shall use its best efforts to make the personnel of any of its
contractors, suppliers and other resources, available by
appointment during normal business hours for consultation with
the Design Partnership. The Company shall make available to the
Design Partnership, upon reasonable notice, marketing plans,
reports and information which the Company may have with respect
to Licensed Products.
3.6 The Company may employ subcontractors for the
manufacture of Licensed Products solely on the terms set forth in
paragraph 16.4 of the License Agreement.
4. Compensation; Accounting.
4.1 As compensation for the designs and services rendered
hereunder, the Company shall pay minimum compensation to the
Design Partnership each year during the term of this Agreement.
The minimum compensation to the Design Partnership in connection
with the manufacture and sale and importation and sale of
Licensed Products for each year shall be as follows:
Year 1 (1997) $0
Year 2 $0
Year 3 $0
Year 4 $5,600,000
Year 5 $5,600,000
Minimum compensation for each year shall be paid on a quarterly
basis, beginning with the minimum compensation payment to be made
for the first calendar quarter of 2000, in the manner set forth in
paragraph 6.2 below. No credit shall be permitted against minimum
compensation payable in any year on account of actual or minimum
compensation paid in any other year, and minimum compensation shall
not be returnable. Minimum Compensation for each year of the "Renewal
Term" (as defined in paragraph 8 of the Licensee Agreement) shall be
an amount equal to ninety percent (90%) of the actual earned
compensation due to the Design Partnership for sales of Licensed
Products in 2001. For the purposes of this Agreement, the term "year"
shall mean a period of twelve (12) months commencing on each January 1
during the term of this Agreement; provided, however, that the "first
year", or "Year 1" shall mean the period commencing on the date hereof
and expiring on December 31, 1997 (although minimum compensation shall
not be due until calendar year 2000).
4.2 The Company shall pay to the Design Partnership earned
compensation based on the net sales price of Licensed Products
manufactured or imported and sold by the Company hereunder.
Earned compensation shall equal [Omitted; Material Filed Separately
With The Securities And Exchange Commission] of the net sales price
of all Licensed Products sold under this Agreement, including, without
limitation, sales made pursuant to paragraph 6.3 hereof; provided,
however,[Omitted; Material Filed Separately With The Securities And
Exchange Commission]. The Company shall prepare or cause to be
prepared statements of operations for the first month in which
Licensed Products are offered for sale to the trade, and for each
month thereafter for so long as the Company is offering Licensed
Products for sale hereunder, which statements shall be furnished to
the Design Partnership together with the earned compensation due for
each such month on the last day of the following month. The statement
and compensation payment provided on the last day of each April (for
the month of March), July (for the month of June), October (for the
month of September) and January (for the month of December) during the
- 5 -
6
term shall also include the Company's minimum compensation obligation
for, the preceding calendar quarter, less the aggregate earned
compensation paid for such calendar quarter. The term "net sales
price" shall mean the gross sales price of all Licensed Products
sold under this Agreement to retailers or, with respect to
Licensed Products that are not sold directly or indirectly to
retailers, other ultimate consumers (as in the case of
accommodation sales by Company to its employees or sales by
Company in its own stores), less trade discounts, merchandise
returns, sales tax.(if separately identified and charged) and
markdowns and/or chargebacks which, in accordance with generally
accepted accounting principles, would normally be treated as
deductions from gross sales, and which, in any event, do not
include any chargebacks or the like for advertising, fixture or
retail shop costs or contributions, or contributions for in-store
personnel. No other deductions shall be taken. Any merchandise
returns shall be credited in the month in which the returns are
actually made. For purposes of this Agreement, affiliates of the
Company shall mean all persons and business entities, whether
corporations, partnerships, joint ventures or otherwise, which
now or hereafter control, or are owned or controlled, directly or
indirectly by the Company, or are under common control with the
Company. It is the intention of the parties that compensation
will be based on the bona fide wholesale prices at which the
Company sells Licensed Products to independent retailers in arms,
length transactions. In the event the Company shall sell Licensed
Products to its affiliates, compensation shall be calculated on
the basis of such a bona fide wholesale price-irrespective of the
Company's internal accounting treatment of such sale unless such
products are sold by its affiliates directly to the end-user
consumer, in which case compensation shall be calculated on the
basis of the price paid by the end-user consumer, less applicable
taxes; provided, however, that compensation on sales to Licensee
Outlet Stores (as defined in paragraph 3.3 of the License
Agreement) shall be calculated on the basis of the actual invoice
price to such Licensee Outlet Stores, but in no event less than
an amount equal to [Omitted; Material Filed Separately With The
Securities And Exchange Commission] less than the regular wholesale
price of such Licensed Products. The Company shall identify
separately in the statements of operations provided to the Design
Partnership pursuant to paragraph 7 hereof, all sales to affiliates.
4.3 The Company shall reimburse the Design Partnership for
all its travel and promotion expenses incurred by the Design
Partnership or Polo in the performance of the Design
Partnership's duties under this Agreement with the prior written
approval of the Company. Amounts payable to the Design
Partnership pursuant to this paragraph shall become due and
payable monthly within thirty (30) days of the date of mailing of
the invoices, accompanied by corresponding receipts, for such
costs incurred during the preceding month.
4.4 If the payment of any installment of compensation is
delayed for any reason, interest shall accrue on the unpaid
principal amount of such installment from and after the date on
which the same became due pursuant to paragraphs 4.1 or 4.2
hereof at the lower of the highest rate permitted by law in New
York and two percent (2%) per annum above the prime rate of
interest in effect from time to time at Chemical Bank, New York,
New York or its successor.
- 6 -
7
4.5 The Company shall at all times keep an accurate account
of all operations within the scope of this Agreement and shall
render a full statement of such operations in writing to the
Design Partnership in accordance with paragraph 4.1 hereof. Such
statements shall account separately for each different product
category and shall include all aggregate gross sales, trade
discounts, merchandise returns, sales of miscuts and damaged
merchandise and net sales price of all sales for the preceding
three (3) month period. Such statements shall be in sufficient
detail to be audited from the books of the Company. Once
annually, which may be in connection with the regular annual
audit of the Company's books, the Company shall furnish an annual
statement of the aggregate gross sales, trade and prompt payment
discounts, merchandise returns and net sales price of all
Licensed Products made or sold by the Company, certified by
Company's independent accountant or chief financial officer.
Each quarterly financial statement furnished by Company shall be
certified by the chief financial officer of the Company or a
certified public accountant who may be in the employ of the
Company. The Design Partnership and its duly authorized
representatives, on reasonable notice, shall have the right, no
more than once in each year during regular business hours, for
the duration of the term of this Agreement and for three (3)
years thereafter, to examine the books of account and records and
all other documents, materials and inventory in the possession or
under the control of the Company and its successors with respect
to the subject matter of this Agreement. All such books of
account, records and documents shall be maintained and kept
available by the Company for at least the duration of this
Agreement, and for three (3) years thereafter. The Design
Partnership shall have free and full access thereto in the manner
set forth above and shall have the right to make copies and/or
extracts therefrom. If as a result of any examination of the
Company's books and records it is shown that the Company's
payments to the Design Partnership hereunder with respect to any
twelve (12) month period were less than or greater than the
amount which should have been paid to the Design Partnership by
an amount equal to three and one-half percent (3-1/2%) of the amount
which should have been paid during such twelve (12) month period,
the Company will, in addition to reimbursement of any
underpayment, with interest from the date on which each payment
was due at the rate set forth in paragraph 4.4 hereof, promptly
reimburse the Design Partnership for the cost of such
examination.
4.6 The obligation of the Company to pay compensation
hereunder shall be absolute notwithstanding any claim which the
Company may assert against Polo or the Design Partnership. The
Company shall not have the right to set-off, compensate or make
any deduction from such compensation payments for any reason
whatsoever.
5. Death or Incapacity of Lauren.
The Design Partnership shall perform its obligations
hereunder notwithstanding any death or incapacity of Lauren and
the Company shall accept the services of the Design Partnership.
6. Term and Termination.
6.1 Unless sooner terminated in accordance with the terms
and provisions hereof, this Agreement shall continue in effect
for so long as the License Agreement is in effect and shall
terminate upon the termination of the License Agreement.
- 7 -
8
6.2 Each of the following shall constitute an event of
default ("Event of Default") hereunder: (i) any compensation is
not paid when due and such default continues for more than ten
(10) days after notice thereof; (ii) the Company shall fail to
timely present for sale to the trade a broadly representative and
fair collection of each seasonal collection of Licensed Products
designed by the Design Partnership or the Company shall fail to
timely ship a material portion of the orders of Licensed Products
it has accepted; (iii) the Company shall use the designs in an
unauthorized or improper manner and/or Company shall make an
unauthorized disclosure of confidential information or materials
given or loaned to Company by the Design Partnership or Polo; or
(iv) the Company defaults in performing any of the other terms of
this Agreement and continues in such default for a period of
thirty (30) days after notice thereof (unless the default cannot
be cured within such thirty (30) day period and the Company shall
have commenced to cure the default and proceeds diligently
thereafter to cure within an additional fifteen (15) day period);
(v) an event of default shall occur under the License Agreement
or any other design agreement entered into between the Company
and the Design Partnership or license agreement between the
Company and Polo; or (vi) the License Agreement shall be
terminated for any reason whatsoever. If any Event of Default
other than that described in paragraph 6.2(vi) shall occur, the
Design Partnership shall have the right, exercisable in its sole
discretion, to terminate this Agreement upon ten (10) days'
written notice to the Company of its intention to do so. Upon
the expiration of such ten (10) day period, this Agreement shall
terminate and come to an end and, subject to paragraph 6.3
hereof, all rights of the Company in and to the designs furnished
or used hereunder and all copyrights and designs patents therein
and their contemplated use shall terminate. If the Event of
Default described in paragraph 6.2(vi) shall occur, this
Agreement and the License shall thereupon forthwith terminate and
come to an end without any need for notice to the Company.
Termination of this Agreement shall be without prejudice to any
remedy of the Design Partnership for the recovery of any monies
then due to it under this Agreement or in respect of any
antecedent breach of this Agreement, and without prejudice to any
other right of the Design Partnership, including without
limitation, damages for breach to the extent that the same may be
recoverable.
6.3 In the event Polo chooses not to exercise the option
referred to in paragraph 10.1 of the License Agreement with
respect to all or any portion of the Licensed Products (as
therein defined), the company may dispose of Licensed Products,
to the extent permitted by and in the manner set forth in
paragraph 10.2 of the License Agreement. Such sales shall be
subject to the payment of earned compensation pursuant to
paragraph 4.2 hereof. Upon the conclusion of the disposal period
all rights and interests in and to the designs furnished or used
hereunder and design patents therein and all copyrights licensed
hereby shall belong to and be the property of the Design
Partnership and the Company shall have no further or continuing
right or interest therein.
6.4 The Company acknowledges and admits that there would be
no adequate remedy at law for its failure to cease the
manufacture or sale of Licensed Products at the termination of
this Agreement, by expiration or otherwise, and the Company
agrees that in the event of such failure, the Design Partnership
shall be entitled to relief by way of temporary or permanent
injunction and such other and further relief as any court with
jurisdiction may deem proper.
6.5 It is expressly understood that under no circumstances
shall the Company be entitled, directly or indirectly, to any
form of compensation or indemnity from the Design Partnership,
Lauren, Polo or their affiliates as a consequence to the
termination of this Agreement, whether as a result of the passage
of time, or as the result of any other cause of termination
referred to in this Agreement. Without limiting the generality
of the foregoing, by its execution of the present Agreement, the
Company hereby waives any claim which it has or which it may have
in the future against the Design Partnership, Lauren, Polo, Polo
Ralph Lauren Corporation or their affiliates, arising from any
alleged goodwill created by the Company for the benefit of any or
all of the said parties or from the alleged creation or increase
of a market for Licensed Products.
- 8 -
9
7. Indemnity.
7.1 The Company shall indemnify and save and hold the
Design Partnership, Lauren, Polo and Polo Ralph Lauren
Corporation, and their directors, officers, servants, agents and
employees, harmless from and against any and all liability,
claims, causes of action, suits, damages and expenses (including
reasonable attorney's fees and expenses in actions involving
third parties or between the parties hereto), which they, or any
of them, are or become liable for, or may incur, or be compelled
to pay by reason of any acts, whether of omission or commission,
that may be committed or suffered by the Company or any of its
directors, officers, servants, agents or employees in connection
with the Company's performance of this Agreement, in connection
with Licensed Products manufactured by or on behalf of the
Company or otherwise in connection with the Company's business;
provided, however, that the Company shall not be responsible for
any liability, claims, causes of action, suits, damages or
expenses incurred or suffered-by the Design Partnership, Lauren,
Polo or Polo Ralph Lauren Corporation, or their directors,
officers, servants, agents and employees in connection with any
suit or proceeding for infringement of another's design patent,
trademark, copyright or other proprietary rights brought against
them as a result of the Company's use of the Trademark, or the
Design Concepts furnished by the Design Partnership hereunder, in
strict accordance with the terms and conditions of this Agreement
and the License Agreement.
8. Disclosure.
The Design Partnership and the Company, and their
affiliates, employees, attorneys, bankers and accountants, shall
hold in confidence and not use or disclose, except as permitted
by this Agreement, (i) confidential information of the other or
(ii) the terms of this Agreement, except upon consent of the
other or pursuant to, or as may be required by law, or in
connection with regulatory or administrative proceedings and only
then with reasonable advance notice of such disclosure to the
other. The Company shall take all reasonable precautions to
protect the secrecy of the materials, samples, sketches, designs,
artwork, logos and other materials used pursuant to this
Agreement prior to the commercial distribution or the showing of
samples for sale and shall not sell any merchandise employing or
adapted from any of said designs, sketches, artwork, logos, and
other materials or their use except under the Trademark.
9. Miscellaneous.
9.1 All notices, requests, consents and other
communications hereunder shall be in writing and shall be deemed
to have been properly given or sent (i) on the date when such
notice, request, consent or communication is personally
delivered, or (ii) five (5) days after the same was sent, if sent
by certified or registered mail or (iii) two (2) days after the
same was sent, if sent by overnight courier delivery or confirmed
telecopier, as follows:
(a) if to the Company, addressed as follows:
Jones Apparel Group, Inc.
250 Rittenhouse Circle
Bristol, Pennsylvania 19007
Attention: Mr. Sidney Kimmel
Telecopier: (215) 785-1795
with a copy to:
Jones Apparel Group, Inc.
1411 Broadway
New York, New York 10018
Attention: Mr. Herbert Goodfriend
Telecopier: (212) 921-5370
- 9 -
10
(b) if to the Design Partnership addressed as follows:
Polo Ralph Lauren Enterprises, L.P.
650 Madison Avenue
New York, New York 10022
Attention: President
Telecopier: 212.318.7186
with a copy to:
Victor Cohen, Esq.
Eighth Floor
650 Madison Avenue
New York, New York 10022
Telecopier: 212.318.7183
Anyone entitled to notice hereunder may change the address to
which notices or other communications are to be sent to it by
notice given in the manner contemplated hereby.
9.2 Nothing herein contained shall be construed to place
the parties in the relationship of partners or joint venturers,
and neither the Design Partnership nor the Company shall have any
power to obligate or bind the other in any manner whatsoever,
except as otherwise provided for herein.
9.3 None of the terms hereof can be waived or modified
except by an express agreement in writing signed by the party to
be charged. The failure of any party hereto to enforce, or the
delay by any party in enforcing, any of its rights hereunder
shall not be deemed a continuing waiver or a modification thereof
and any party may, within the time provided by applicable law,
commence appropriate legal proceedings to enforce any and all of
such rights. All rights and remedies provided for herein shall
be cumulative and in addition to any other rights or remedies
such parties may have at law or in equity. Any party hereto may
employ any of the remedies available to it with respect to any of
its rights hereunder without prejudice to the use by it in the
future of any other remedy with respect to any of such rights.
No person, firm or corporation, other than the parties hereto and
Polo, shall be deemed to have acquired any rights by reason of
anything contained in this Agreement.
9.4 The Design Partnership may assign its right to receive
all or any portion of its compensation under this Agreement and,
in addition, this Agreement and all of the Design Partnership's
rights, duties and obligations hereunder may be assigned by the
Design Partnership to any entity to which the right to own or use
the Trademark has been assigned, or to an affiliate of any such
entity. The Company may not assign its rights and obligations
under this Agreement without the prior written consent of the
Design Partnership, which may be withheld in the Design
Partnership's sole discretion.
9.5 The Company will comply with all laws, rules,
regulations and requirements of any governmental body which may
be applicable to the operations of the Company contemplated
hereby, including, without limitation, as they relate to the
manufacture, distribution, sale or promotion of Licensed
Products, notwithstanding the fact that the Design Partnership
may have approved such item or conduct.
9.6 This Agreement shall be binding upon and inure to the
benefit of the successors, heirs and permitted assigns of the
parties hereto.
9.7 This Agreement shall be construed in accordance with
and governed by the laws of the State of New York, applicable to
contracts made and to be wholly performed therein without regard
to its conflicts of law rules.
- 10 -
11
9.8 If any dispute between the parties leads to litigation,
the parties agree that the courts of the State of New York in the
City of New York, or the federal courts in that City, shall have
the exclusive jurisdiction and venue over such litigation. All
parties consent to personal jurisdiction in the State of New
York, and agree to accept service of process outside of the State
of New York as if service had been made in that state.
Notwithstanding anything to the contrary set forth herein,
neither Polo Ralph Lauren Corporation nor any other general or
limited partner of the Design Partnership shall be liable for any
claim based on, arising out of, or otherwise in respect of, this
Agreement, and the Company shall not have nor claim to have any
recourse for any such claim against any general or limited
partner of the Design Partnership.
9.9 In the event of a breach or threatened breach of this
Agreement by the Company, the Design Partnership shall have the
right, without the necessity of proving any actual damages, to
obtain temporary or permanent injunctive or mandatory relief in a
court of competent jurisdiction, it being the intention of the
parties that this Agreement be specifically enforced to the
maximum extent permitted by law.
9.10 Provisions of this Agreement are severable, and if any
provision shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or
unenforceability shall affect only such provision, or part
thereof, in such jurisdiction and shall not in any manner affect
such provision in any other jurisdiction, or any other provision
in this Agreement in any jurisdiction. To the extent legally
permissible, an arrangement which reflects the original intent of
the parties shall be substituted for such invalid or
unenforceable provision.
9.11 The paragraph headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Any ambiguity in
this Agreement shall not be construed against the party who
prepared this Agreement.
9.12 This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement or caused the same to be executed by a duly authorized
officer as of the day and year first above written.
POLO RALPH LAUREN ENTERPRISES, L.P.
By: Polo Ralph Lauren Corporation,
General Partner
By:
JONES APPAREL GROUP, INC.
By: /s/ Sidney Kimmel
- 11 -