EXHIBIT 10.20
(Jones - Design)
DESIGN SERVICES AGREEMENT dated as of May 11, 1998, by and between Polo Ralph
Lauren Corporation (the "Design Company"), 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.
PRL USA, INC., a Delaware corporation ("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 Company.
The Company desires to obtain the services of the Design Company 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 Company to create and
provide to the Company the designs for its line of Licensed Products. The
Design Company 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 Company of
designs for Licensed Products, which designs will be reviewed by the Design
Company and which the Design Company may approve, disapprove or modify in its
sole discretion, in accordance with the terms and conditions set forth herein.
1.2. The Design Company and the Company shall create each season, from the
Design Company'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 Company shall confer
on Design Concepts and shall make such modifications as are required to meet
the Design Company's final approval, which final approval may be granted or
withheld in the Design Company's sole discretion.
1.3. The Design Company may engage such employees, agents, and consultants
operating under the Design Company'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 Company
may (a) develop or modify and implement designs from the Design Concepts or
other designs furnished by the Design Company 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 Company 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 Company 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
Company or such other entities.
1.7. All patents and copyrights on designs of the Licensed Products created or
supplied by the Design Company shall be owned exclusively, and applied for, by
the Design Company or its designee, at the Design Company's discretion and
expense, and shall designate the Design Company 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
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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 Company or any designs which are comparable and/or
competitive with Licensed Products and which may be identified as Design
Company designs.
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 Company or the Design Studio, or,
subject to paragraph 2.7 hereof, created by or for the Company and reviewed
and approved by the Design Company, or developed by or for the Company from
Design Concepts or subsequent design concepts furnished or approved by the
Design Company (all of which shall hereinafter constitute Design Concepts),
shall be the property of the Design Company 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 Company,
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 Company, are hereby assigned to and shall be the sole
property of the Design Company. The Company shall cause to be placed on all
Licensed Products appropriate notice designating the Design Company 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
Company prior to use thereof by the Company.
2.3. The Design Company 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
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Company. The License shall continue only for such period as this Agreement shall
be effective. The Design Company 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 Company, 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 Company 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.
2.4. Company shall not sublicense any of the rights granted hereunder without
first obtaining the Design Company's prior written consent in connection
therewith, which consent may be withheld by the Design Company in its sole
discretion.
2.5. The Design Company 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 Company 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 Company 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
Company, 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 Company 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
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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 Company, in which event the item may be
sold by the Company without payment or compensation hereunder.
3.3. The Design Company 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 Company'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 Company, 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 be applicable to the
manufacture, distribution, sale or promotion of Licensed Products. The
Company shall advise the Design Company 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 Company. The Company shall make available to
the Design Company, 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 Company each year during
the term of this Agreement. The minimum compensation to the Design Company in
connection with the manufacture and sale and importation and sale of Licensed
Products for each year shall be as follows:
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[OMITTED; MATERIAL FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
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 [OMITTED; MATERIAL FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION], 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 License Agreement) shall be an amount
equal to [OMITTED; MATERIAL FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION]. 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 V shall mean the
period commencing on the date hereof and expiring on December 31, 1999.
4.2. The Company shall pay to the Design Company 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, that
no earned compensation shall be due in respect of sales by Company to Polo's
outlet stores at the discount specified in paragraph 3.3 of the License
Agreement. 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 Company 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 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
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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 outlet
stores owned by the Company shall be calculated on the basis of the actual
invoice price to such 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 Company pursuant to paragraph 7 hereof, all sales to affiliates.
4.3. The Company shall reimburse the Design Company for all its travel and
promotion expenses incurred by the Design Company or Polo in the performance of
the Design Company's duties under this Agreement with the prior written approval
of the Company. Amounts payable to the Design Company 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.
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 Company in accordance with paragraph 4.1
hereof. Such statements shall account separately for each different product
category and shall include all aggregate
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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 Company 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 Company 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 Company 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 Company by an amount equal to three and one-half
percent (3%%) 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
Company 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 Company. The Company shall not have the right to set-off,
compensate or make any deduction from such compensation payments for any
reason whatsoever.
4.7. All accounting statements and payments of compensation due to PRLC shall,
unless PRLC shall otherwise direct by written notice to Company, be made by wire
transfer on the date due, which wire transfer shall be directed to Polo, as
agent for PRLC, as follows:
Chase Manhattan Bank Delaware
1201 Market Street, Wilmington, Delaware, 19801-1167,
ABA#031100267
Account Name and Number: PRL USA, Inc.: 6301-225177-500
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5. Death or Incapacity of Lauren.
The Design Company shall perform its obligations hereunder notwithstanding any
death or incapacity of Lauren and the Company shall accept the services of the
Design Company.
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.
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 Company 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 Company 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 Company 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 Company 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 Company 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 Company,
including without limitation, damages
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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 Company 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 Company
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 Company, Lauren, Polo, PRL USA Holdings, Inc. 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 Company, Lauren or Polo, 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.
7. Indemnity.
7.1. The Company shall indemnify and save and hold the Design Company, Polo,
PRL USA Holdings, Inc. and Lauren, individually, and their directors, officers,
servants, agents and employees, (collectively, "Indemnified Parties") 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
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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 Indemnified Parties 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 Trademarks, or the Design Concepts
furnished by the Design Company hereunder, in strict accordance with the terms
and conditions of this Agreement and the License Agreement.
8. Disclosure.
The Design Company 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
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with a copy to:
Jones Apparel Group, Inc.
1411 Broadway
New York, New York 10018
Attention: Mr. Herbert Goodfriend
Telecopier: (212) 921-5370
(b) if to the Design Company addressed as follows:
Polo Ralph Lauren Corporation
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 Company 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
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Polo, shall be deemed to have acquired any rights by reason of anything
contained in this Agreement.
9.4. The Design Company 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 Company's rights, duties and obligations hereunder may be assigned
by the Design Company 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 Company, which may be
withheld in the Design Company'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 Company 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.
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 Company 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 Company.
9.9. In the event of a breach or threatened breach of this Agreement by the
Company, the Design Company 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.
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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 CORPORATION
By: /s/ Michael Newman
JONES APPAREL GROUP, INC.
By: /s/ Jackwyn L. Nemerov
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