EX-99.2
9
v052361_ex99-2.htm
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IMPORT AGREEMENT
ITALIAN MOTORS (Service & Sales)
Hong Kong
01.01.1992 —
31.12.1992
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IMPORT
AND DISTRIBUTION AGREEMENT
Between
FERRARI
S.p.A.
and
ITALIAN
MOTORS (Service & Sales) Ltd
Dated
as
of
1st
January 1992
for
the
Territory of
HONG
KONG, MACAU
TABLE
OF CONTENTS
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Page
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CLAUSE
1 — DEFINITIONS 3
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CLAUSE
2 — SCOPE OF THE AGREEMENT
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—
NATURE OF APPOINTMENT (2.1, 2.2, 2.3)
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—
TERMS AND CONDITIONS OF SALES OF CONTRACT PRODUCTS (2.4)
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—
IMPORTER NOT TO ACT OUTSIDE TERRITORY (2.5)
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—
DIRECT SALES BY FERRARI (2.6, 2.7, 2.8)
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—
NON COMPETITION AND BRAND EXCLUSIVITY (2.9)
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—
PROHIBITION TO SELL TO NON—AUTHORIZED RESELLERS (2.10)
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—
EXCLUSIVITY (2.11, 2.12)
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CLAUSE
3 — ORGANIZATION
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—
DIRECT STRUCTURE (3.1)
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—
RETAIL NETWORK (3.2)
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—
ORGANISATIONAL REQUIREMENTS (3.3)
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—
RELATIONS WITH RETAIL NETWORK (3.4)
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—
TRAINING (3.5)
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—
UNIFORM PROCEDURES (3.6)
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—
INFORMATION (3.7)
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—
INSPECTIONS (3.8)
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CLAUSE
4 — SALES AC1’IVITY 11
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CLAUSE
5 — SERVICE ACTIVITY
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—
PRE—DELIVERY SERVICE (5.1)
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WARRANTY AND FREE SERVICE (5.2, 5.3)
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—
RECALL AND SERVICE CAMPAIGNS (5.4)
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REIMBURSEMENT (5.5)
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NON—WARRANTY SERVICE (5.6)
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AVAILABILITY AND USE OF FERRARI ORIGINAL PARTS (5.7)
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—
GENERAL DUTIES RELATING TO SERVICE (5.8, 5.9)
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CLAUSE
6 — ADVERTISING AND CUSTOMER RELATIONS
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—
ADVERTISING EXPENDITURE (6.1)
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—
FAIRNESS OF ADVERTISING (6.2, 6.3, 6.4)
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—
EXHIBITIONS (6.5, 6.6)
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—
SIGNS (6.7)
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—
HEADING OF BUSINESS DOCUMENTS (6.8)
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SUPPLY OF AD MATERIAL BY FERRARI (6.9)
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—
USE OF FERRARI TRADEMARKS (6.10)
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—
CUSTOMER RELATIONS (6.11, 6.12, 6.13)
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CLAUSE
7 — TERMINATION
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—
TERM OF AGREEMENT (7.1)
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—
TERMINATION FOR BREACH OF CONTRACT OR OTHER OCCURRENCES (7.2,
7.3)
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—
OBLIGATIONS DURING NOTICE OF TERMINATION (7.4)
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—
CONSEQUENCES OF TERMINATION (7.5, 7.6, 7.7)
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CLAUSE
8 — MISCELLANEOUS PROVISIONS
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—
NON ASSIGNABILITY OF AGREEMENT (8.1)
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—
CONFIDENTIALITY (8.2)
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—
JURISDICTION (8.3)
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—
GOVERNING LAW (8.4)
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—
NO WAIVER (8.5)
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DEPOSIT (8.6)
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—
NOTICES (8.7)
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—
PREVIOUS AGREEMENTS (8.8)
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—
APPENDICES (8.9)
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—
OTHER PRODUCTS (8.10)
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APPENDIXES
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APPENDIX A:
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SALES
CONDITIONS OF CONTRACT PRODUCTS TO THE IMPORTER
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—
APPENDIX B:
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ORGANIZATION
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—
APPENDIX C:
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DEALER’S
ESSENTIAL OBLIGATIONS
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—
APPENDIX D:
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CONTRACT
AUTOMOBILES
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IMPORT
AND DISTRIBUTION AGREEMENT
AGREEMENT
effective as of the _____ day of __________, _______ between
FERRARI
S.p.A. — having its registered office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇,
(hereinafter referred to as “FERRARI”) and
ITALIAN
MOTORS (Sales & Service) Ltd.
90,
▇▇▇▇
▇▇▇▇ Toi Rd., To Kwa Wan, Kowloon, Hong Kong
(hereinafter
referred to as “IMPORTER”)
IN
CONSIDERATION of the mutual agreements herein contained, the parties hereto
agree as follows:
1. DEFINITIONS
For
the
purposes of this Agreement the following terms shall have the respective meaning
assigned as below:
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1.1.
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“AGREEMENT”
shall mean — in accordance with the context — this Agreement and/or its
Appendixes and/or any other document(s) referred to in this
Agreement.
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1.2.
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“ALLOCATION
PROGRAM” shall mean FERRARI’s estimated forecast of the maximum quantity
of CONTRACT AUTOMOBILES which FERRARI from time to time plans to
manufacture for the TERRITORY in a given period of time as per Appendix
A
hereto.
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1.3.
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“CONTRACT
AUTOMOBILES” shall mean such models or versions of Ferrari passenger cars
as are specified in Appendix I of this Agreement, it being understood
that
said Appendix may be modified by FERRARI, upon notice to the IMPORTER,
if
FERRARI stops to manufacture any such models or versions and/or if
FERRARI
entrustes to the IMPORTER the import, distribution and service, in
the
TERRITORY, of any new model or version of Ferrari passenger
car.
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1.4.
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“CONTRACT
PRODUCTS” shall mean the CONTRACT AUTOMOBILES and the FERRARI ORIGINAL
PARTS, whether Jointly or
separately.
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1.5.
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“RETAIL
NETWORK” shall mean any and all retail sale and/or service dealers
referred to in sub- 3.2 and 3.3 hereof as well as the IMPORTER’s
authorized retail sales and/or service direct outlets referred to
in
sub—clause 3.2 hereof;
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1.6.
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“DIRECT
STRUCTURE” shall mean the import, distribution and service facilities
owned and managed by the IMPORTER as set forth in sub—clause 3.1.
hereof.
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| 1.7. |
“FERRARI
ORIGINAL PARTS” shall
mean the original spare part of Ferrari passenger cars, manufactured
by or
for FERRARI and put in commerce by
FERRARI.
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1.8.
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“FERRARI
TRADEMARKS” shall mean any or all other registered and unregistered names
and trade marks owned or used by
FERRARI.
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1.9.
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“PURCHASE
PROGRAM” shall mean the program of purchases of CONTRACT AUTOMOBILES by
the IMPORTER valid for a given period of time starting from the date
of
its determination and/or communication in accordance with the AGREEMENT,
such program to be determined, from time to time, within the limits
of the
ALLOCATION PROGRAM in accordance with the previsions of sub—clause 4.2.
hereof and with the provisions set forth in Appendix A
hereto.
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1
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1.10.
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“SALES
PROGRAM” shall mean the IMPORTER’s program of sale, delivery and
registration of CONTRACT AUTOMOBILES to end users resident in the
TERRITORY, to be set forth in accordance with sub—clause 4.2
hereof.
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1.11.
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“TERRITORY”
shall mean the following territory:
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Hong
Kong, Macau
2. SCOPE
OF THE AGREEMENT
Nature
of the appointment
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2.1.
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Upon
the terms and subject to the conditions of the AGREEMENT FERRARI
entrusts
to the IMPORTER who accepts the right and obligation
to:
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(i)
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import,
in the TERRITORY, the CONTRACT PRODUCTS and distribute them to the
RETAIL
NETWORK for the purpose of their resale, delivery and registration
to end
users, in the TERRITORY;
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(ii)
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ensure,
in the TERRITORY,
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the
pre-delivery operations of the CONTRACT AUTOMOBILES and the availability of
FERRARI ORIGINAL PARTS;
the
resale and delivery of CONTRACT AUTOMOBILES to end users, the warranty,
non—warranty and free service on Ferrari passenger cars and the resale of
FERRARI ORIGINAL PARTS, through the RETAIL NETWORK,
in
accordance with the terms and conditions of the AGREEMENT.
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2.2.
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The
IMPORTER acknowledges that FERRARI name and Ferrari products enjoy
all
over the world an exceptional commercial reputation and that this
goodwill
must be safeguarded for the lasting success of the
make.
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Consequently
the above appointment is granted by FERRARI in consideration for the IMPORTER
accepting the obligation to use all reasonable efforts to ensure, at all moment,
in the TERRITORY — in addition to a level of sales in line with FERRARI’s
objectives — a distribution, retail sale and service organization of the highest
level, in line with the prestige of the Ferrari trademark and the expectations
of Ferrari customers, as regards the quality of the organization of the sales
and service activities and of the relations with customers.
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2.3.
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The
IMPORTER shall purchase, distribute, service and resell CONTRACT
PRODUCTS
in its own name and on its own behalf and shall carry on its business
at
its own exclusive risks. The IMPORTER is in no way the agent or
representative of FERRARI; accordingly, the IMPORTER shall deal
exclusively in its own name and on its own behalf and shall not in
any
circumstance expressly or impliedly represent itself as FERRARI’s agent or
representative.
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2
Terms
and Conditions of Sales of CONTRACT PRODUCTS
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2.4.
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For
the purpose of sub—clause 2.1. the CONTRACT PRODUCTS shall be purchased by
the IMPORTER and sold to the IMPORTER by FERRARI (and — if and to the
extent that FERRARI so requests — by any company which FERRARI reserves
the right to indicate), upon the terms and conditions set forth in
Appendix
A
hereto.
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IMPORTER
not to act outside the TERRITORY
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2.5.
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The
IMPORTER shall not, directly or indirectly, export, distribute, sell
or
service CONTRACT PRODUCTS outside the TERRITORY nor may it appoint
or use
any agent, broker or other third parties for the purpose of exporting,
distributing, selling or servicing CONTRACT PRODUCTS outside the
TERRITORY.
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Direct
Sales by FERRARI
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2.6.
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FERRARI
reserves the right to make direct sales of CONTRACT AUTOMOBILES,
in the
TERRITORY, to certain categories of customers and in particular
circumstances.
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2.7.
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FERRARI
shall advise the IMPORTER of any sales made under sub—clause 2.6 and the
IMPORTER shall provide FERRARI such co—operation as FERRARI may request
arid FERRARI shall reimburse to the IMPORTER the costs and expenses
incurred by the IMPORTER in providing such
cooperation.
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2.8.
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In
the event that FERRARI resolves to distribute, In the TERRITORY,
new
models or versions of Ferrari passenger cars of limited series, FERRARI
shall have the right to offer to the IMPORTER, in respect of such
models
or versions, special terms and conditions, in derogation to the terms
of
the AGREEMENT. If the terms and conditions so offered by FERRARI
were not
acceptable to the IMPORTER, FERRARI will have the right to sell the
Ferrari passenger cars concerned directly in the TERRITORY in which
case
sub—clause 2.7 shall be applicable.
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Non
competition and brand exclusivity
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2.9.
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The
IMPORTER shall, whether directly or indirectly, not import, purchase,
distribute, sell, service or otherwise deal with motor vehicles,
spare
parts or accessories of’ other makes other than second—hand motor vehicles
traded in against CONTRACT AUTOMOBILES, except as otherwise specified
in
appendix E.
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Prohibition
to sell to non-authorized
resellers
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2.10.
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The
IMPORTER undertakes to sell, in the TERRITORY, CONTRACT AUTOMOBILES
only
to the RETAIL NETWORK and to ensure that the RETAIL NETWORK sells
and
delivers said CONTRACT AUTOMOBILES only to final
consumers.
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The
IMPORTER shall be under the obligation to pay to FERRARI a sum equal to the
difference between the published recommended retail list price, in the TERRITORY
at the time of sale and the net price invoiced by the IMPORTER to the RETAIL
NETWORK for each CONTRACT AUTOMOBILE sold-in violation of the present sub clause
2.10., this sum being a fair and reasonable estimate of damages likely to occur
to FERRARI as a result of a breach of this sub clause. Ferrari has the right
to
revoke the acceptance of any order of the IMPORTER and to refuse delivery of
any
CONTRACT AUTOMOBILE if’ there is reasonable evidence that the purchaser of that
CONTRACT AUTOMOBILE is a reseller not being a member of the RETAIL
NETWORK.
3
The
IMPORTER shall use all reasonable efforts to ensure that FERRARI ORIGINAL PARTS
are sold only for the purpose of servicing or repairing Ferrari passenger
cars.
Exclusivity
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2.11.
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Except
as otherwise set forth in sub clauses 2.6., 2.7. and 2.8., FERRARI
undertakes to supply CONTRACT PRODUCTS, for resale in the TERRITORY,
exclusively to the IMPORTER.
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2.12.
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The
IMPORTER undertakes to purchase the CONTRACT PRODUCTS exclusively
from
FERRARI or from such Company as FERRARI may direct under sub clause
2.4.
foregoing.
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3. ORGANIZATION
DIRECT
STRUCTURE
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3.1.
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The
IMPORTER undertakes to, directly, have available manage and maintain
a
structure of its own, (open areas, premises, staff, inventory, funds
arid
management, etc.) adequate and exclusively affected
to:
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—
import,
storage, pre—delivery and distribution to RETAIL NETWORK of CONTRACT
AUTOMOBILES;
—
organization, training, supervision and control of service on Ferrari passenger
cars;
—
import,
wharehousing, handling and distribution to RETAIL NETWORK of FERRARI ORIGINAL
PARTS.
The
basic
elements of IMPORTER’s DIRECT STRUCTURE are described in Appendix B hereto. The
IMPORTER undertakes not to alter its DIRECT STRUCTURE without having first
requested and obtained the previous consent in writing of FERRARI which shall
not be unreasonably withheld.
RETAIL
NETWORK
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3.2.
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The
IMPORTER undertakes to maintain, at all time, a retail sale and service
network (RETAIL NETWORK) composed
of:
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(1)
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retail
sale and service dealers of CONTRACT PRODUCTS managed by arid staffed
with
first class, highly skilled personnel and suitably equipped with
trading,
wharehousing and service premises and with general and specific equipment.
Such structure to be specifically and exclusively affected to the
storage,
display, pre—delivery, sale and delivery of CONTRACT AUTOMOBILE for
wharehousing arid handling of FERRARI ORIGINAL PARTS, for the service
of
Ferrari motorcars and for the storage and handling of the second—hand
vehicles traded in against new CONTRACT
AUTOMOBILES;
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| (2) |
service
dealers managed by and staffed with highly skilled personnel,
specialized on
Ferrari motorcars and suitably equipped with premises and general
and
special equipment and service manuals, all in accordance with FERRARI’s
standard requirements for a proper service of Ferrari
motorcars;
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4
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(3)
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direct
retail sale and service outlets exclusively affected to FERRARI PRODUCTS
(of composition and quality similar to that of the units referred
to in
(1) above), owned by the IMPORTER or by companies wholly owned by
the
IMPORTER, subject to their having been set up with the prior consent
of
FERRARI.
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The
members of the RETAIL NETWORK at the date of this Agreement are specified in
Appendix B hereto. The IMPORTER undertakes not to alter the composition of
its
RETAIL NETWORK without having first obtained the previous written consent of
FERRARI. FERRARI shall not withheld its consent without specifying the reasons
for its refusal.
In
dealing with the direct outlets referred to in (3) foregoing, the IMPORTER
shall
apply in all respects the same criteria as shall be applied in respect of all
the other members of the RETAIL NETWORK avoiding any discrimination
whatsoever.
Organisational
Requirements
| 3.3. |
The
composition and quality of the DIRECT STRUCTURE and the RETAIL NETWORK,
shall, at all times:
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(1)
|
be
such as to ensure the fulfilment of all of the IMPORTER’s obligations
under the AGREEMENT and shall be in conformity with the principles
set
forth in sub—clause 2.2;
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(2)
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comply
with the technical and commercial standards and requirements which
FERRARI
reserves the right to lay down.
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The
IMPORTER shall undertake any actions as FERRARI may deem reasonably appropriate
for compliance with (1) and (2) above.
Relations
with the RETAIL NETWORK
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3.4.
|
The
IMPORTER shall enter with each member of the RETAIL NETWORK a Retail
and
Service Agreement containing obligations by the dealer which, mutatis
mutandis, correspond to those assumed by the IMPORTER under the AGREEMENT
and such as to enable the IMPORTER to fulfil all of its obligations
under
the AGREEMENT. For such purpose the IMPORTER shall impose upon each
member
of the RETAIL NETWORK, inter alia, such obligations as are set forth
in
Appendix C hereto art those which may be otherwise indicated by FERRARI
under the AGREEMENT.
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Training
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3.5.
|
The
IMPORTER shall arrange at its own costs and risks, for its technical
and
commercial personnel, as well as for the technical and commercial
personnel of RETAIL NETWORK, to participate in training and refresher
courses organised by FERRARI. Furthermore, the IMPORTER undertakes
to
directly organize training and refresher courses for the technical
personnel of the RETAIL NETWORK.
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Uniform
Procedures
|
3.6.
|
The
IMPORTER in supposed to conduct its business as a FERRARI IMPORTER
within
the framework of the FERRARI Commercial Organization which involves
a need
for global uniformity or consistency. The IMPORTER shall therefore
confirm
with the policies and procedures which FERRARI may reasonably consider
necessary and shall cooperate for their implementation in the
TERRITORY.
|
5
For
these
purposes the IMPORTER shall undertake any such specific actions as FERRARI
may
deem appropriate and indicate to the IMPORTER from time to time.
Information
|
3.7.
|
The
IMPORTER shall supply to FERRARI, with the timing reasonably set
forth by
FERRARI and using, if so required, the forms prepared by
FERRARI:
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(a)
|
the
IMPORTER’s annual audited financial statements and balance sheets and such
infra-annual information on the IMPORTER’s financial and economic
condition as FERRARI may reasonably
require;
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(b)
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data
relating to the market in general, as well as information about price
policies and other signifant commercial data of competitive makes,
in the
TERRITORY;
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(c)
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data,
sub—divided for each member of the RETAIL NETWORK, relating to stock
of
CONTRACT PRODUCTS, to sale, delivery and registration to final consumers
of CONTRACT AUTOMOBILES and to the orders of CONTRACT PRODUCTS by
final
consumers;
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(d)
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information
on the performance of CONTRACT PRODUCTS and on claims of final
customers.
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Inspections
| 3.8. |
FERRARI
has the right to send its delegates both to the IMPORTER’s DIRECT
STRUCTURE and to the RETAIL NETWORK in order to check over their
complyance with the requirements set forth by the AGREEMENT and their
proper running, as well as the fulfilment of the IMPORTER’s obligations
under the AGREEMENT.
|
The
IMPORTER undertakes to co—operate with and assist the delegates sent by FERRARI,
to supply any information they may reasonably require to allow access to its
premises and appropriate records and to use its best efforts to facilitate
such
access to the premises and records of the RETAIL NETWORK.
4. SALES
ACTIVITY
|
4.1.
|
In
order to fulfill the obligations assumed under sub clause 2.1. hereof,
the
IMPORTER shall:
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| |
(a)
|
use
its best endeavours to achieve a number and mix of sale, delivery
and
registration of CONTRACT AUTOMOBILES to final consumers residing
in the
TERRITORY in accordance with the SALES PROGRAM from time to time
set forth
under sub clause 4.2.;
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| |
(b)
|
promote
the sale arid use of FERRARI ORIGINAL PARTS and ensure their full
and
constant availability for the prompt and efficient servicing, in
the
TERRITORY, of the motor cars manufactured by
FERRARI;
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| |
(c)
|
purchase,
for the purposes of (a) and (b) foregoing, CONTRACT PRODUCTS .following
planning and ordering criteria separately indicated by FERRARI and
in a
number and mix corresponding with the PURCHASE PROGRAM periodically
set
forth under sub clause 4.2.;
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6
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(d)
|
fulfil
and ensure that the RETAIL NETWORK shall fulfil the criteria set
forth by
FERRARI in relation to stock holding of CONTRACT PRODUCTS as well
as
display and demonstration CONTRACT
AUTOMOBILES.
|
|
4.2.
|
The
SALES PROGRAM, the PURCHASE PROGRAM and other commitments referred
to in
paragraphs from (a) to (d) of Sub—clause 4.1 foregoing shall be
determined, with the timing indicated by FERRARI, by written agreement
between the parties or — in case the parties do not reach such an
agreement — by FERRARI, on the basis of its estimate of its own product
availability arid In accordance with criteria uniformly applied by
FERRARI
in the allocation of the CONTRACT PRODUCTS among the various sales
areas.
|
|
4.3.
|
In
the allocation of CONTRACT AUTOMOBILES among the members of the RETAIL
NETWORK (including the direct outlets referred to in sub—clause 3.2 (3)
and for determination of their SALES PROGRAM, the IMPORTER shall
apply
fair and uniform criteria based on the statistical historical series
of
FERRARI motors cars sales to final customers in the sales area concerned
in such a manner that conditions under Sub—clause 2.2 are
fulfilled.
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5. SERVICE
ACTIVITY
Pre-delivery
Service
|
5.1.
|
The
IMPORTER shall ensure, at its expense, that on each new CONTRACT
AUTOMOBILE sold in the TERRITORY, prior to its delivery to the final
consumer, there are properly carried out all the pre—delivery operations
indicated by FERRARI in accordance with the technical instructions
laid
down by FERRARI. Furthermore the IMPORTER shall ensure that no CONTRACT
AUTOMOBILES sold in the TERRITORY is delivered to the final consumer
unless it is In perfect static and working conditions, fit for its
sale as
a new FERRARI AUTOMOBILE.
|
Warranty
and Free Service
|
5.2.
|
The
IMPORTER -shall give — and shall ensure that the RETAIL NETWORK shall give
— to each purchaser/final consumer of CONTRACT AUTOMOBILE a warranty
the
terms of which are defined in the FERRARI Servicing and Repair Booklet
referred to in sub clause 5.3.
below.
|
|
5.3.
|
For
the purposes of sub clause 5.2. foregoing, the IMPORTER shall ensure
that
to each purchaser/final consumer, together with each CONTRACT AUTOMOBILE
sold, Is handed over the FERRARI Servicing and Repairs Booklet properly
compiled arid duly signed and including the warranty voucher, the
free
service voucher for the initial period of use of the CONTRACT AUTOMOBILE
and the periodical programmed maintenance servicing
vouchers.
|
The
IMPORTER shall ensure that there are promptly carried out towards all users
of
FERRARI motorcars, holding the FERRARI Servicing and Repair Booklet, including
those having purchased the motorcar outside the TERRITORY:
(i) the
operations covered by the warranty voucher and the free service
voucher;
7
(ii) the
other
servicing operations provided for in the FERRARI Servicing and Repair
Booklet.
The
above
shall be performed, free of charge or for payment, in accordance with FERRARI’s
instructions.
Recall
and Service Campaigns
|
5.4.
|
The
IMPORTER undertakes to ensure that on all FERRARI motorcars circulating
in
the TERRITORY even if not imported by the IMPORTER, there are carried
out,
promptly and in strict accordance with FERRARI Instructions, all
the
operations requested by FERRARI within the framework of any special
service or recall or rectification campaign as may be decided from
time to
time by FERRARI.
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Reimbursement
|
5.5.
|
The
terms and conditions of reimbursement of the warranty repairs referred
in
sub clause 5.3 shall be set forth
separately.
|
The
terms
and conditions of reimbursement of the recall, service and rectifications
campaigns referred to in sub clause 5.4. shall be notified by FERRARI from
time
to time.
Non-warranty
Service
|
5.6.
|
The
IMPORTER shall ensure that, at the request of the customer, on all
new or
used FERRARI motorcars circulating in the TERRITORY, whether sold
in the
TERRITORY or not, there is performed non—warranty repair and maintenance
service in an excellent manner. The IMPORTER also undertakes to carry
out
all non—warranty repair and maintenance operations at reasonably
competitive tariffs non exceeding, in any .case, those resulting
from the
application of the criteria indicated by
FERRARI.
|
Availability
and Use of FERRARI ORIGINAL PARTS
|
5.7.
|
The
IMPORTER shall at all time, directly, have available, manage and
maintain
warehouse(s) stocked with FERRARI ORIGINAL PARTS in such quantities
and
mix (proportionate to the number of Ferrari motorcars in circulation
in
the TERRITORY) as shall be laid down by FERRARI according to FERRARI’s
standards. The warehouse(s) will be organised and managed in such
a manner
as to ensure an adequate and continuing availability for the proper
service on all Ferrari motorcars by each and all members of RETAIL
NETWORK.
|
The
IMPORTER undertakes to use — and to have the RETAIL NETWORK to use — only
FERRARI ORIGINAL PARTS when carrying out any kind of service, repair,
modification or maintenance operation on any Ferrari motorcar.
General
duties relating to service
|
5.8.
|
The
IMPORTER shall hold FERRARI harmless from any or all claims or actions
resulting from the breach by the IMPORTER or by the RETAIL NETWORK
of any
obligation set forth by any sub-clause of this clause 5 or relating
to
parts fitted on FERRARI motorcars other than FERRARI ORIGINAL
PARTS.
|
|
5.9.
|
All
activities of repair maintenance and service (pre-delivery operations,
warranty, repair and maintenance service) set forth in this clause
5 must
be carried out corteseously, efficiently, in a proper professional
manner
by highly skilled staff and in accordance with guidelines and instructions
issued by FERRARI from time to
time.
|
8
6. ADVERTISING
AND CUSTOMER RELATIONS
Advertising
Expenditure
|
6.1.
|
The
IMPORTER undertakes to advertise the CONTRACT PRODUCTS and to carry
out
communication activities and public relations in accordance with
the
advertising and image requirements set forth by FERRARI The IMPORTER
shall
spend each year, a sum riot less than that which shall be determined
from
time to time.
|
Fairness
of advertising
|
6.2.
|
The
IMPORTER shall refrain from any advertising and any conduct which
may
mislead the public or otherwise create confusion or in any way adversely
affect the image of FERRARI.
|
|
6.3.
|
The
IMPORTER shall follow in regard to its advertising, the guidelines
laid
down by FERRARI and inform FERRARI of its own. projects which the
IMPORTER
may only implement after receiving approval thereof from FERRARI.
FERRARI’s approval shall not be unreasonably withheld and shall be deemed
to have been given unless FERRARI notifies the IMPORTER to the contrary
within 15 working days after receiving proofs of the
project.
|
|
6.4.
|
Institutional
advertising may be carried out only by FERRARI or in accordance with
specific arid express written instructions issued by
FERRARI.
|
Exhibitions
|
6.5.
|
The
IMPORTER may take part to exhibitions or other displays subject to
FERRARI’s previous written
approval.
|
The
IMPORTER undertakes to share with FERRARI in the expenses borne by FERRARI
for
FERRARI’s participation to such exhibitions in the TERRITORY, as FERRARI may
decide to participate to.
|
6.6.
|
The
IMPORTER undertakes to display and to have the RETAIL NETWORK to
display
the CONTRACT AUTOMOBILES, in show rooms or areas of show rooms exclusively
dedicated to them and complying with the highest level of decorum
and
elegance, in accordance with the requirements laid down by
FERRARI.
|
Signs
|
6.7.
|
The
IMPORTER shall arrange at its own cost arid responsibility for signs
to be
displayed to the exterior and to the interior of the premises of
the
DIRECT STRUCTURE and of the RETAIL NETWORK. The position, design,
lettering, structure and quantity of these. signs shall at all time
be in
compliance with the requirements laid down by
FERRARI.
|
Heading
of business documents
| 6.8. |
The
IMPORTER shall show whether on its business documents (letters, business
cards, invoices, brochures, etc.) or in any advertising or otherwise
its
capacity as a FERRARI authorized importer with a formulation and
graphics
which shall correspond to the requirements laid down by
FERRARI.
|
Supply
of advertising material by FERRARI
|
6.9.
|
FERRARI
shall supply the IMPORTER with advertising materials (printed material,
films, promotional objects, enlargements, etc.) available at FERRARI
and
subject to supply conditions to be agreed from time to
time.
|
9
FERRARI
may supply the IMPORTER with the signs referred to in sub clause 6.7. foregoing
at a cost to be agreed from time to time. The IMPORTER shall be responsible
for
the proper fitting, use, maintenance and efficiency of the signs and the other
material supplied as per above.
The
IMPORTER shall ensure that all the supplied material complies with regulations
and/or other specific requirements of the TERRITORY, prior to its
use.
Use
of FERRARI TRADEMARKS
| 6.10. |
The
IMPORTER undertakes:
|
(a) not
to
include any FERRARI TRADEMARKS, alone or in combination of other words, in
its
corporate name or business name and, more generally, not to use any FERRARI
TRADEMARKS other than in the manner and to the extent expressly authorized
by
this Agreement, and
(b) not
to
act in any way inconsistent with the exclusive rights of FERRARI on FERRARI
TRADEMARKS and in particular, not to register or use names, marks or other
distinctive signs in combination with FERRARI TRADEMARKS or that are graphically
or phonetically similar to them, and not to distribute or sell a kind of
products bearing FERRARI TRADEMARKS but not put into commerce by
FERRARI;
(c) to
immediately advise FERRARI of any case of counterfeiting or unauthorized use
of
FERRARI TRADEMARKS in the TERRITORY and not to engage actions against third
parties unless so instructed or authorized by FERRARI.
Customer
Relations
|
6.11.
|
The
IMPORTER shall ensure that, at all times, its relations and the relations
of the RETAIL NETWORK with customers are conducted with the maximum
courtesy, efficiency and fairness and in such a way as to safeguard,
at
any time, the prestige and reputation of FERRARI with the
public.
|
|
6.12.
|
The
IMPORTER undertakes not to act or make statements in any way adversely
affecting the technical and con reputation of FERRARI and FERRARI
products.
|
|
6.13.
|
The
IMPORTER undertakes to advertise and make at all time available to
the
customers, in its own trading premises and in the trading premises
of the
RETAIL NETWORK the recommended retail price-list of the CONTRACT
PRODUCTS
as well as the tariffs for service and those for services ancillary
to the
sale of CONTRACT PRODUCTS.
|
The
IMPORTER undertakes not to sell — and shall ensure the RETAIL NETWORK not to
sell — CONTRACT PRODUCTS at prices which exceed the recommended retail
price—list and not to receive and have the RETAIL NETWORK not to receive down
payments exceeding the limits agreed between the IMPORTER and
FERRARI.
10
7. TERMINATION
Term
of Agreement
|
7.1.
|
Subject
to earlier termination under sub clauses 7.2. and 7.3. hereof, the
AGREEMENT shall be valid and effective until terminated by either
party by
giving a 180 days advance notice of termination in writing to the
other
and shall expire the 180th day after the date of such notice, it
being
expressly agreed that neither pa. shall give the aforesaid notice
of
termination prior to 31—12—1992 -
|
Termination
for breach of contract or for other occurrences
|
7.2.
|
In
case of any of the breaches listed below, FERRARI may at any time
terminate this Agreement fortwith, without the need of a judicial
decision, by giving notice in writing to the
IMPORTER:
|
| |
7.2.1.
|
the
IMPORTER has not paid any sum due for the purchase of CONTRACT PRODUCTS
or
otherwise;
|
| |
7.2.2.
|
the
IMPORTER has held an unethical conduct which is a tort or is against
the
principles of commercial fairness, such as, without limitation, the
cases
listed as follow:
|
| |
(i)
|
the
IMPORTER has asked FERRARI for reimbursement on the basis of false
documents or statements;
|
| |
(ii)
|
the
IMPORTER has asked the customers for payment of repairs which have
not
been made or for materials which have not been
supplied;
|
| |
(iii)
|
the
IMPORTER has imported, distributed or sold any product bearing FERRARI
TRADEMARKS but not put into commerce by FERRARI or under FERRARI’s licence
or has used or sold spare parts which are not FERRARI ORIGINAL PARTS
without specifically notifying in writing the customer prior to such
use
or sale;
|
| |
(iv)
|
the
IMPORTER has asked for — or consented RETAIL NETWORK to ask for — prices,
tariffs or down payments which exceed those recommended by
FERRARI;
|
| |
(v)
|
the
IMPORTER has made — or consented the RETAIL NETWORK to make — statements
which adversely affect FERRARI’s
reputation.
|
| |
7.2.3.
|
The
IMPORTER has violated any of the provisions of sub—clauses 2.5., 2.9..
2.10 or 2.12.
|
| |
7.2.4.
|
The
IMPORTER has failed to improve its DIRECT STRUCTURE or the RETAIL
NETWORK
in order to fulfil the provisions of sub-clause 2.2., notwithstanding
the
written request of FERRARI to remedy within a time limit of at least
180
days.
|
| |
7.2.5.
|
The
IMPORTER has sold, j any year, less than 80% of the SALES PROGRAM
set
forth in that specific year, unless this is the consequence of FERRARI
deliverying quantities of CONTRACT PRODUCTS which are lower than
the
PURCHASE PROGRAM.
|
| |
7.2.6.
|
The
IMPORTER has failed to remedy the breach of any obligation under
the
AGREEMENT within the d forth by FERRARI which shall not be less than
30
day
|
|
7.3.
|
In
the event of any of the following occurrences, FERRARI shall have
the
right to terminate this Agreement for-with, at any time, by written
notice
addressed to the IMPORTER:
|
11
| |
7.3.1
|
An
application is filed against or. by the IMPORTER for bankruptcy or
for a
commencement of any reorganization procedure or in case of scheme
of
arrangement with creditors or suspension of payments, or other similar
procedures; any IMPORTER’s ▇▇▇▇ is protested or actions of attachment
against its goods are taken.
|
| |
7.3.2.
|
A
criminal proceeding is started against the owner, any of the controlling
shareholders or any of the key managers of the IMPORTER which is
capable
of adversely affecting the commercial reputation of FERRARI or the
orderly
running of the IMPORTER’s business.
|
| |
7.3.3.
|
Changes
of any of such owner(s) and/or such shareholder(s) and/or such key
managers of the IMPORTER’s business and/or such other basic elements of
the DIRECT STRUCTURE of the IMPORTER, as are specified in Appendix
B,
without the prior written approval of
FERRARI.
|
| |
7.3.4.
|
Death,
continued incapacity or abandonment of management by the owner and/or’ any
of the controlling shareholder(s) and/or key managers the IMPORTER,
as are
indicated in Appendix B.
|
| |
7.3.5.
|
Initiation
of any procedure aiming at or bringing to dissolution and/or winding
up
and/or merger or transfer, on whichever basis, of the assets or
organization of the IMPORTER.
|
The
IMPORTER or its successors shall forthwith advise FERRARI writing of any of
the
occurrences above.
Obligations
during notice of termination
|
7.4.
|
During
the period of any notice of termination given under this Agreement,
the
IMPORTER shall not hinder any acts or negotiations of FERRARI, necessary
or appropriate to establish, in the TERRITORY, the new import and/or
distribution and/or resale and/or service organization for CONTRACT
PRODUCTS, so as to ensure therein the orderly carrying on of the
new
organization as from the date of effective termination of this
Agreement.
|
Consequences
of termination
| 7.5. |
Upon
termination of this Agreement:
|
| |
7.5.1.
|
all
orders for the purchase of CONTRACT PRODUCTS issued by the IMPORTER
and
not yet fulfilled by FERRARI shall become null and
void;
|
| |
7.5.2.
|
any
sum owed by the IMPORTER to FERRARI for any reason shall become
automatically due and shall be immediately paid b the IMPORTER to
FERRARI.
|
| |
7.5.3.
|
the
IMPORTER shall forthwith:
|
| |
(a)
|
discontinue
to describe or represent itself, whether in advertising or otherwise,
as
FERRARI’s authorized importer, distributor or reseller or as otherwise
being connected with FERRARI;
|
| |
(b)
|
remove
all signs which display or incorporate in any form, style or combination,
FERRARI TRADEMARKS;
|
| |
(c)
|
discontinue
any use of FERRARI TRADEMARKS under any form or
manner.
|
12
(d)
discontinue
to distribute and sell CONTRACT PRODUCTS;
(e)
return
to
FERRARI all materials and/or products owned by FERRARI;
| |
(f)
|
sell
to FERRARI — or to such person as FERRARI may indicate the specific
equipment for service operation at a price equal to the documented
purchase price reduced on account of their depreciation and
degradation;
|
| |
(g)
|
resell
to FERRARI — which shall be obliged to repurchase — or to such person as
FERRARI may indicate, the new CONTRACT AUTOMOBILES not yet resold
by the
IMPORTER. The resale price shall not exceed the net sale price invoiced
by
FERRARI to the IMPORTER, minus any bonuses, discounts or other similar
reductions granted by FERRARI and reduceded, where appropriate, by
a
further amount to take account of the non perfect state of the product,
of
the period during which it has been held in stock at the IMPORTER’s
premises and of possible damages suffered after the product has left
FERRARI’s premises;
|
| |
(h)
|
re
to FERRARI, or to such person as FERRARI may indicate, the new FERRARI
ORIGINAL PARTS supplied by FERRARI to the IMPORTER, held in stock
at the
IMPORTER’s premises arid in perfect conditions, included in the most
recent “FERRARI ORIGINAL PARTS Price
List”.
|
The
repurchase price, to be agreed, shall not exceed the FERRARI ex—works invoicing
price minus any discount, bonuses or other similar reductions granted to the
IMPORTER by FERRARI.
| |
(i)
|
return
to the Retail Network (and to the direct end—customers if any) any sums
held by the IMPORTER as down payment, deposit or on other similar
basis
for purchase orders of CONTRACT PRODUCT which the IMPORTER is not
able to
perform as a consequence of termination of this
Agreement.
|
In
the
event that, in FERRARI’s opinion, the CONTRACT PRODUCTS repurchased under
paragraph (g) and (h) foregoing, may be resold within the TERRITORY, their
repurchase price shall be increased to take account of any documented costs
for
transportation and any duties paid for their importation into the
TERRITORY.
|
7.6.
|
FERRARI
shall return any guarantee deposit supplied by the IMPORTER and/or
any sum
retained by FERRARI on such basis, within 30 days starting from the
date
in which the IMPORTER shall have payed all its debts to FERRARI and
fulfilled all its obligations under the AGREEMENT and shall have
indemnified FERRARI for the damages caused to FERRARI by any breach
of the
IMPORTER.
|
|
7.7.
|
For
the avoidance of doubt the parties acknowledge and agree that the
IMPORTER
is not entitled to claim any compensation, indemnity or damages or
any
other money regardless of its denomination due to or in relation
with the
termination of the AGREEMENT made in accordance with sub—clauses 7.1, 7.2
or 7.3 hereof.
|
8. MISCELLANEOUS
PROVISIONS.
Non
assignability of AGREEMENT
13
| 8.1. |
Except
as otherwise set forth by sub—clause 2.4 hereof, the AGREEMENT is not
assignable in whole or in part.
|
Confidentiality
|
8.2.
|
The
IMPORTER undertakes not to disclose to third parties, the contents
of the
AGREEMENT or of any communication it receives under the AGREEMENT
or in
relation thereto, including without limitation any information relating
to
plans regarding FERRARI’s activities or products. This obligation shall
survive the termination of this AGREEMENT. FERRARI undertakes not
to
disclose any such confidential information as may be supplied by
the
IMPORTER to FERRARI under par. (a) of sub—clause
3.7.
|
Jurisdiction
|
8.3.
|
The
parties hereto submit to the exclusive jurisdiction and competence
of the
Court of Modena, Italy, any and all disputes which may arise in relation
to the AGREEMENT.
|
Governing
law
|
8.4.
|
The
AGREEMENT shall, for all purposes, be governed and construed exclusively
in accordance with the laws of the Republic of
Italy.
|
No
waiver
|
8.5.
|
No
modification to the AGREEMENT shall have effect unless the same is
agreed
in writing between the parties. Failure by either party at any time
to
enforce any of the provisions of the AGREEMENT and any time or indulgence
granted by either party to the other shall not be construed as a
waiver’
or prejudice any of either party’s rights hereunder •nor prevent either
party from subsequently requiring immediate and full compliance with
such
provisions or from enforcing its remedies for breaches
thereof.
|
Deposit
|
8.6.
|
To
guarantee the fulfilment of its obligations under the AGREEMENT,
the
IMPORTER shall give to FERRARI a guarantee deposit the amount and
the
terms of which are set forth in Appendix A
hereto.
|
Notices
|
8.7.
|
Any
notice to be given hereunder shall be sent by registered letter or
by
telex or telefax confirmed by registered letter. Any such notice
shall be
sent to the following addresses or to any other such address as either
party may notify to the others:
|
FERRARI
S.p.A.
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇. ▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ (▇▇▇▇▇▇), ▇▇▇▇▇▇
All’attenzione
del Direttore Commerciale
ITALIAN
MOTORS (Sales & Service) Ltd.
▇▇,
▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Any
such
notice shall be deemed to have been received five days after the date of
delivery by the sender of the registered letter to the post office or directly
to the receiver or, in the event it happens before, the day in which the telex
or the telefax has been received.
14
Previous
Agreements
|
8.8.
|
The
AGREEMENT cancels and supersedes all previous agreements between
the
parties, whether written or oral.
|
Appendices
|
8.9.
|
Appendices
A, B, C and D hereof constitute an integral part of this
Agreement.
|
Other
Products
|
8.10.
|
FERRARI
distributes, in several countries, a line of diversified articles
manufacturted by or for or under the licence of FERRARI and bearing
FERRARI TRADEMARKS. These articles are included in a specific catalogue
of
FERRARI and are herein referred to as FERRARI IDEA
PRODUCTS.
|
If
so
requested by FERRARI the IMPORTER would be willing to promote distribution
and
sale of FERRARI IDEA PRODUCTS, in the TERRITORY through the RETAIL NETWORK,
on a
non-exclusive basis FERRARI reserves, in any case, the right to import,
distribute and resell in the TERRITORY the FERRARI IDEA PRODUCTS through import,
distribution and sales organization(s) other than the IMPORTER and the RETAIL
NETWORK. It is further understood that in respect of certain articles of the
FERRARI IDEA PRODUCTS, FERRARI may entrust the import, distribution and sale,
in
the TERRITORY, exclusively to third parties. Any cooperation between FERRARI
and
the IMPORTER in respect of FERRARI IDEA PRODUCTS shall not be part of the
AGREEMENT and shall be governed by a separate agreement the terms of which
will
be communicated by FERRARI to the IMPORTER. FERRARI may terminate the agreement
for the FERRARI IDEA PRODUCTS without terminating •the AGREEMENT; however
termination of the AGREEMENT shall automatically cause the termination of the
agreement for FERRARI
IDEA PRODUCTS.
For
FERRARI
__________________________
_________________________
15
The
IMPORTER, having examined the contents of the following clauses of this
AGREEMENT, declares to specifically approve each of them in accordance with
and
for the purposes of Section 1341 o± the Italian Civil Code:
2.5 (Obligation
not to act outside the TERRITORY)
2.9 (Non
competition and Brand Exclusivity)
2.10 (Obligation
not to sell to non authorized resellers)
2.12 (Obligation
to purchase CONTRACT PRODUCTS only from FERRARI)
5.7 (Obligation
to use only FERRARI ORIGINAL PARTS)
7.2 (Immediate
termination for breach of contract by the IMPORTER)
7.3 (Termination
by FERRARI upon the occurrence of certain circumstances)
7.5.2 (Debts
becoming automatically due)
7.7 (No
indemnity or compensation in relation to termination of the
AGREEMENT)
8.3 (Jurisdiction)
8.4 (Applicable
law)
16
APPENDIX
A
SALES
CONDITIONS OF CONTRACT PRODUCTS TO THE IMPORTER
1. Definitions
The
capitalized words and expressions included in Clause 1 of the AGREEMENT and
used
in this Appendix A shall have the meaning respectively given to them by Clause
1
of the AGREEMENT.
2. Planning
and Orders
|
2.1.
|
The
IMPORTER acknowledges that, as a consequence of the excellent reputation
of the FERRARI products, the market demand thereof, in the various
countries, including the TERRITORY, is steadily higher than the maximum
offer of FERRARI and that this situation causes a number of limitations
which materially affect FERRARI’s ability to allocate CONTRACT AUTOMOBILES
to the various markets, to accept purchasing orders and to deliver
the
CONTRACT AUTOMOBILES ordered.
|
|
2.2.
|
FERRARI
shall, periodically, notify to the IMPORTER the maximum total quantity
and
mix of CONTRACT AUTOMOBILES that FERRARI plans to manufacture, for
the
TERRITORY, in a given period of time to come (“ALLOCATION PROGRAM”).
Within the limits of the ALLOCATION PROGRAM so notified by FERRARI
there
shall be agreed or determined by FERRARI the IMPORTER’s PURCHASE PROGRAM
in accordance with sub-clause 4.2 of the
AGREEMENT.
|
|
2.3.
|
FERRARI
shall exert its best efforts to set up its manufacturing programs
in a
manner consistent with the IMPORTER’s PURCHASE PROGRAM and shall, from
time to time, notify the IMPORTER the CONTRACT AUTOMOBILES included
in the
PURCHASE PROGRAM that FERRARI is actually able to manufacture in
a given
period of time and in respect of them shall invite the IMPORTER to
specify
the characteristics (colours, etc.) required and accordingly issue
specific orders within such dead-line as will be indicated by FERRARI,
it
being understood that if within such
dead-line
|
FERRARI
does not receive the specific order(s) requested, the CONTRACT AUTOMOBILE(S)
concerned shall be allocated to a market other than the TERRITORY and shall
be
cancelled from the IMPORTER’s PURCHASE PROGRAM.
Once
the
production of the CONTRACT AUTOMOBILES so ordered has been started by the
factory, FERRARI shall advise the IMPORTER of the estimated non binding time
of
delivery.
The
CONTRACT AUTOMOBILES which by the end of the period of time covered by the
PURCHASE PROGRAM are not yet covered by specific purchasing orders accepted
by
FERRARI will be automatically cancelled from the PURCHASE PROGRAM which will
be
deemed accordingly reduced.
|
2.4.
|
The
criteria, the timing and the mariner of determination and notification
of
the ALLOCATION PROGRAM, the PURCHASE PROGRAM, the issuance arid acceptance
of orders, etc., will be separately notified by FERRARI to the IMPORTER
from time to time on the basis of FE general standards and of’ the
changeable requirements of logistical, commercial and manufacturing
requirements.
|
17
|
2.5.
|
The
IMPORTER, in the TERRITORY, in dealing with the DEALER NETWORK and
with
the end customers, shall act In a manner consistent with the limitations
and criteria referred to in the above provisions. The IMPORTER, in
particular, shall not accept and shall cause the RETAIL NETWORK not
to
accept, orders of CONTRACT AUTOMOBILES which are not within the limits
of
availability resulting from the PURCHASE
PROGRAM.
|
|
2.6.
|
In
no event FERRARI may be obliged to supply CONTRACT AUTOMOBILES other
than
in respect of specific orders issued by the IMPQRTER within the limits
of
the PURCHASE PROGRAM and expressly accepted by FERRARI in writing.
The
IMPORTER shall not send to FERRARI any orders for CONTRACT AUTOMOBILES
to
be delivered or registered to purchasers other than end-users. FERRARI
is
entitled to terminate any order accepted by FERRARI if it is discovered
that the CONTRACT AUTOMOBILE concerned is to be sold, delivered or
registered to a person other than an
end-user.
|
|
2.7.
|
Upon
termination of the AGREEMENT, all orders of the IMPORTER for the
purchase
of CONTRACT PRODUCTS which have riot as yet been fulfilled by FERRARI
shall become automatically null and
void.
|
3. Prices
|
3.1.
|
The
prices of the CONTRACT PRODUCTS to the IMPORTER shall be those from
time
to time notified by FERRARI to the IMPORTER and in force on the date
of
invoicing. They may be altered by FERRARI, at any time, without prior
notice.
|
|
3.2.
|
The
delivery expenses (preparation, packing transportation, insurance,
etc.)
of the CONTRACT PRODUCTS shall be in addition to the prices of the
CONTRACT PRODUCTS, the quotations of which are always intended before
any
tax or duty and for delivery
ex—works.
|
4. Conditions
of Payment
|
4.1.
|
Once
the manufacturing process of the CONTRACT AUTOMOBILE(S) ordered has
reached its final stage, FERRARI shall notify the IMPORTER the date
of
ex—works delivery of the CONTRACT AUTOMOBILE C 5)
concerned.
|
|
4.2.
|
Unless
otherwise agreed in writing between the, parties, the payment of
the price
of the CONTRACT AUTOMOBILE(S) and of the amount charged by FERRARI
for
delivery expenses shall be effected, entirely, by the IMPORTER, in
Italy,
in the currency indicated in the invoice, through a major italian
bank
indicated by FERRARI; prior to such date of ex—works delivery of the
CONTRACT AUTOMOBILE(S) as shall be notified by FERRARI under 4.1.
hereof.
|
|
4.3.
|
The
payment of the price and of the delivery expenses of FERRARI ORIGINAL
PARTS shall be effected, entirely, by the IMPORTER, in Italy, in
the
currency specified in the invoice, through a m italian bank indicated
by
FERRARI, within 30 days from the end of the month of
.invoicing.
|
|
4.4.
|
In
the event that by the time limits set forth in 4.2 and 4.3 foregoing
the
payment of any CONTRACT AUTOMOBILE(S) or FERRARI ORIGINAL PARTS had
not
been made, starting from the day after the time limit concerned,
there
shall accrue in favour of FERRARI interests to be calculated at a
rate
equal to the prime rate prevailing in Italy increased by three
points.
|
18
5. Guarantee
Deposit
|
5.1.
|
As
a deposit in guarantee for the fulfilment of all IMPORTER obligations
to
FERRARI, the IMPORTER shall pay to FERRARI an amount of money which
shall
not bear interests and shall, at all time, be equal to or higher
than the
sum resulting from the percentage (to be separately notified by FERRARI)
calculated on the amount obtained by multiplying all quantities of
CONTRACT AUTOMOBILES included in the IMPORTER’s PURCHASE PROGRAM by the
retail list price before tax, prevailing in the TERRITORY, of the
CONTRACT
AUTOMOBILES concerned.
|
As
at
January 31st of each year, FERRARI shall review the relation between the
guarantee deposit paid by the IMPORTER and held by FERRARI and the value of
the
PURCHASE PROGRAM calculated as per above: in the event that the amount of the
deposit proved lower than the amount given by the above calculation, it shall
be
reintegrated by the IMPORTER at the latest within 15 days for being so notified
by FERRARI; if, on the contrary, the amount of the deposit proved higher FERRARI
within the same time limit shall credit the excess to the IMPORTER.
|
5.2.
|
In
the event that the payment of any CONTRACT PRODUCTS or of any delivery
expenses or of any other amount due to FERRARI had not been made
at the
latest within 15 days from the due date, FERRARI will have the right
to
draw from the IMPORTER’s guarantee deposit a sum equal to the overdue
payment plus interests calculated as per 4.4 hereof, by giving notice
to
the IMPORTER, it being agreed that, in this event, the IMPORTER,
within
the subsequent 15 days, shall promptly reintegrate the full amount
of the
guarantee deposit by paying to FERRARI the amount drawn by FERRARI
as per
above plus interests. In the event that the full amount of the guarantee
deposit was not 50 reintegrated, FERRARI, without prejudice to FERRARI’s
further rights under the AGREEMENT, will have the right to suspend
all
deliveries of CONTRACT PRODUCTS to the
IMPORTER.
|
6. Acceptance
of CONTRACT PRODUCTS
The
CONTRACT PRODUCTS delivered shall be deemed accepted by the IMPORTER without
reservation, unless the IMPORTER notifies its appropriate written claims to
FERRARI within such dead—lines, in accordance with such procedures and
completing such forms, as will be separately indicated by FERRARI.
7. Conditions
of delivery
|
7.1.
|
FERRARI
shall prepare and pack the CONTRACT PRODUCTS for shipment and
transportation by whatever method and form it may deem
appropriate.
|
|
7.2.
|
With
a view to a rational and efficient organization of transportation
and
carriage of the CONTRACT PRODUCTS consistent with its own logistical
and
manufacturing organization, FERRARI reserves the right to use for
transportation and carriage to the IMPORTER and for the latter’s account
such carriers as it shall deem suitable by giving advance notice
to the
IMPORTER. In this case, the foregoing notwithstanding, the delivery
shall
be deemed effected ex-works and all risks of the CONTRACT PRODUCTS
shall
pass to the IMPORTER starting from the moment the CONTRACT PRODUCTS
are
taken up ex-works by the carrier, it being understood that the IMPORTER
shall be beneficiary of’ FERRARI rights and claims to the carrier and/or
insurer in respect of the damages which may occur from the moment
the
CONTRACT PRODUCTS are taken up by the carrier until the moment they
are
taken up by the IMPORTER.
|
19
|
7.3.
|
Subject
to sub-clause 7.2 hereof and until FERRARI’s notice set forth therein is
given to the IMPORTER, delivery of CONTRACT AUTOMOBILES shall be
ex—factory.
|
|
7.4.
|
All
packages or containers with clause of return shall remain the property
of
FERRARI and shall be returned to FERRARI by the IMPORTER In accordance
with the dead-lines and other conditions Indicated separately by
FERRARI.
The IMPORTER shall take up thc CONTRACT PRODUCTS shipped by FERRARI,
in
any case, without prejudice to its claims and warranty rights
hereunder.
|
8. Descriptions
of CONTRACT PRODUCTS
All
descriptions relating to the specifications and performances of the CONTRACT
PRODUCTS are always given by FERRARI by way of non binding description and
none
of these shall involve any responsibility of FERRARI as to their
accuracy.
9. Design
Changes
|
9.1.
|
FERRARI
may at any time and without previous notice alter the design,
specification or equipment of any CONTRACT AUTOMOBILE or may discontinue
production of the same. FERRARI may deliver, without previous notice,
CONTRACT AUTOMOBILES modified In their design, specifications or
equipment
and shall have no obligation to incorporate any such design, specification
or equipment alteration on the CONTRACT AUTOMOBILES ordered by the
IMPORTER. The choice of the make and type of tyres and other components
of
the CONTRACT AUTOMOBILES ordered by the IMPORTER shall be in the
sole
discretion of FERRARI.
|
|
9.2.
|
Having
regard to the particular specifications and performances of FERRARI
motorcars, the IMPORTER shall not — and shall have the RETAIL NETWORK not
to-alter any CONTRACT PRODUCT other than in accordance with any written
instructions of FERRARI from time to
time.
|
10. Warranty
of CONTRACT PRODUCTS
|
10.1.
|
The
only warranty given by FERRARI to the IMPORTER in respect of CONTRACT
AUTOMOBILES is the warranty expressly stated on the warranty voucher
included in the Ferrari Servicing and Repairs Booklet which the IMPORTER,
in accordance with sub-clause 4.3 of the AGREEMENT, is obliged to
deliver
to the purchaser/end user of each CONTRACT AUTOMOBILE, duly filled
and
signed in all its parts, simultaneously with the delivery of the
CONTRACT
AUTOMOBILE concerned.
|
The
terms
of’ such warranty as prevailing at the date of the AGREEMENT are described
below:
“”Ferrari
motorcars are guaranteed for a period of 12 months beginning on the date of
which the motorcar is delivered to the first purchaser by the Ferrari Authorized
Dealer selling the motorcar. The warranty includes exclusively the replacement
or repair, free of charge, of parts which are unusable or inefficient due to
a
manufacturing or design defect identified or acknowledge by FERRARI or by any
Ferrari authorized service dealer, subject to and according to the conditions
set out in the Ferrari warranty voucher.
The
repair or replacement of defective parts is the only obligation assumed by
FERRARI in this warranty; in no event the purchaser may claim the termination
of
the sale contract or any reduction of the purchase price or any indemnification
or compensation for damages caused by any acknowledged defect or any warranty
repairs or any delays in the carrying out of such repairs.
20
The
warranty is subject to submission to FERRARI or a FERRARI authorized service
dealer of the valid warranty voucher contained in this booklet. The warranty
voucher is not valid unless it is completed accurately with all informations
required therein and is duly signed by the FERRARI Authorized Dealer and by
the
purchaser/end user. Weights, dimensions, performances, fuel consumption,
efficiency and other descriptions or illustrations relating to the motorcar
given in this booklet or otherwise are intended to present only a non binding
description, may not be entirely accurate and are subject to change without
prior notice. None of them shall be taken as forming part of any tender contract
or order or as otherwise being guaranteed.
The
following are explessly excluded from the warranty:
| |
(i)
|
maintenance
operations and parts or materials subject to normal wear or consumption
such as lubricants, uilters, brake pads and fluids, clutch discs
and
pressure plates, spark plugs, windshield wiper blades, lamps and
fuses;
|
| |
(ii)
|
fading
and deterioration of paints, chromium platings, upholstery and trim
panels
resulting from normal wear or abnormal conditions of use or exposure
to
abnormal climatic conditions;
|
| |
(iii)
|
any
expenses for towing or transportation of the motorcar to and from
the
Authorized Ferrari Service Dealer, any damages whether direct or
indirect
caused by the immobilization of the motorcar, expenses for transportation,
hotel bills, telephone, etc.;
|
| |
(iv)
|
failures
which have not been caused by defects in material or workmanship,
but by
negligence, accidents, lack of proper maintenance or misuse or from
use in
conflict with FERRARI’s
indications.
|
In
any of
the events listed below, the warranty becomes void:
| |
(a)
|
failure
to have the motorcar serviced by a Ferrari Authorized Service Dealer
in
accordance with the maintenance schedule recommended by
FERRARI;
|
| |
(b)
|
the
motorcar is repaired, modified or disassembled even partially other
than
by a Ferrari Authorized Service
Dealer;
|
| |
(c)
|
the
motorcar has suffered negligence, misuse, major accidents or has
been used
in races;
|
| |
(d)
|
mechanical
or body parts or any system of the motorcar have suffered modifications
which alter, even partially, the conditions of normal operation intended
by FERRARI;
|
| |
(e)
|
the
motorcar originally designed for circulation in a specific country
is
registered in another country and in .order to meet the country’s
homologation standards or legal requirements bears alterations which
have
not received the prior written specific authorization of
FERRARI;
|
| |
(f)
|
there
have been used in the service or repair of the motorcar spare parts
other
than FERRARI ORIGINAL PARTS.
|
In
the
cases referred to in (d) (e) and (f) the person which has requested and/or
carried out the modification and/or the service or repair shall be exclusively
responsible for all damages and other adverse consequences.”
21
In
the
event that the warranty set forth on the warranty voucher contained in the
Ferarri Repair and Servicing Booklet is modified the warranty described above
shall be deemed accordingly modified.
|
10.2.
|
The
warranty relating to FERRARI ORIGINAL PARTS includes the reimbursement
of
the net selling price invoiced by FERRARI to the IMPORTER of FERRARI
ORIGINAL PARTS not usable or inefficient due to a manufacturing or
design
defect acknowledged by FERRARI or, at the option of FERRARI, their
replacement free of charge and where appropriate, the reimbursement
of the
cost of labour used for the replacement of the defective part on
a Ferrari
motorcar unless such labour cost is already reimbursed on the basis
of the
Ferrari motorcar warranty.
|
In
respect of defects which may be identified prior to the assembly of the part
on
the Ferrari motorcar, the period of validity of the warranty is 60 days
beginning on the date of invoice to the IMPORTER. If the defect may not be
identified prior to the assembly of the part on the Ferrari motorcar, the period
of validity of the warranty is 12 months beginning on the date of assembly
on
the Ferrari motorcar by a Ferrari Authorized Service Dealer.
Any
defects due to long or inadequate storage of the part concerned are expressly
excluded from the warranty.
|
10.3.
|
The
express warranties described in 10.1 and in 10.2 are the only warranty
given by FERRARI to the IMPORTER in respect of CONTRACT AUTOMOBILES
and
FERRARI ORIGINAL PARTS, respectively; they are in lieu of the warranty
provided by law and supersede all other express or implied warranties
or
representations. Any IMPORTER’s rights to claim termination of the
contract whereby the defective motorcar or spare part was supplied
or the
indemnification or compensation for damages or the reduction of the
purchase price are expressly
excluded.
|
11. Period
of availability of spare parts
FERRARI
makes spare parts for FERRARI motorcars available for a period set forth from
time to time by FERRARI for each type or version of Ferrari
motorcar.
Such
period, in respect of mechanical parts, is, in principle, at least 5 years
beginning from the date on which the manufacture of the type or version
concerned is discontinued by FERRARI.
12. Governing
Law
The
present conditions of sales shall, for all purposes, be governed and construed
exclusively in accordance with the laws of the Republic of Italy.
13. Jurisdiction
The
parties submit to the exclusive jurisdiction and competence the Court of Modena,
Italy, any and all disputes which may arise in relation to the present
Conditions of Sale.
▇▇
▇▇▇▇▇▇▇▇
▇
(supplemental to the Ferrari
Import and Distribution Agreement entered into
with
Italian Motors (Sales & Service) Ltd on 1st January 1992)
ORGANIZATION
1. CORPORATE
STRUCTURE
The
IMPORTER represents to FERRARI that at the date of the AGREEMENT the following
are the basic elements of its corporate structure:
| |
1.1.
|
Name,
type of company, registered office, principal place of business and
social
capital of the IMPORTER:
|
|
(a)
|
Italian
Motors (Sales & Service) Ltd; limited liability
|
| |
(name
and type of company)
|
| | |
|
(b)
|
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
|
| |
(registered
office)
|
| | |
|
(c)
|
Hong
Kong
|
| |
(principal
place of business)
|
| | |
|
(d)
|
HK$1,000,000.00;
Ordinary Shares; 100,000 shares at $10 each
|
| |
(amount
of social capital, type of shares,
nominal
value of each share)
|
| |
1.2.
|
Full
name and address of all controlling shareholder(s) arid percentage
of
social capital with voting rights respectively
owned:
|
|
(a)
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
DD
224, ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇. Kowloon
| |
37%
|
| |
(full
name and address)
| | |
| | | | |
|
(b)
|
Happy
land Co Ltd
▇/▇,
▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
| |
36%
|
| | | | |
| | | | |
|
(c)
|
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇, ▇▇ ▇▇▇, ▇/▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ Beach Road, Clearwater Bay,
Kowloon
| |
17%
|
| | | | |
| | | | |
|
(d)
| | |
%
|
| | | | |
23
| |
1.3.
|
Full
name arid address of all minority
shareholders:
|
|
(a)
|
▇▇.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
| |
10%
|
| | | | |
|
(b)
| | |
%
|
| | | | |
|
(c)
| | |
%
|
| | | | |
| |
1.4.
|
If
the IMPORTER is not a limited liability company specify full name
and
address of owner(s) or partners of the firm or
company:
|
| |
1.5.
|
Full
name and address of Chief Executive Officer and/or legal representative
of
IMPORTER:
|
| |
1.6.
|
Full
name and address of all members of Board of Directors or, if appropriate,
Supervisory Board and Board of
Management:
|
|
(a)
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
DD
224, ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇
|
| | |
|
(▇)
|
▇▇▇▇▇▇
▇ ▇▇▇▇▇▇
DD
224, ▇▇▇ ▇▇▇, ▇/▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇
|
| | |
|
(▇)
|
▇▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇
|
| | |
|
(d)
|
Ma
▇▇▇ ▇▇
Flat
G, 25/F, Wah Shan Mansion, ▇▇▇ ▇▇▇▇ Terrace Taikoo
Shing,
Hong Kong
|
24
2. KEY
MANAGEMENT POSITIONS
For
each
position specify full name and address of person in charge:
| |
2.1
|
Managing
Director/General Manager
|
| | |
▇▇▇▇▇▇▇
Adarnczyk
DD
224, ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇
|
| | |
(full
name and address of person in
charge)
|
| |
2.2
|
Sales
Manager
|
| | |
▇▇▇▇▇▇
▇ ▇▇▇▇▇▇
DD
224, ▇▇▇ ▇▇▇, ▇/▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇
|
| |
2.3
|
Service
Manager
|
| | |
▇▇▇
▇ ▇▇▇▇▇▇
13D
Sea Bee lane, Recovery Bay, Lantau Island, Hong
Kong
|
| |
2.4
|
Spare
Parts Manager
|
| | |
▇▇▇▇▇
▇▇▇▇▇▇
▇/▇,
▇▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇ Mansion, Riviera Gardens, Tsuen Wan,
N.T.
|
| |
2.5
|
Marketing
Manager
|
| | |
▇▇▇▇▇▇
▇ ▇▇▇▇▇▇
|
| |
2.6
|
Dealers
Development Manager
|
| | |
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
|
3. LOCATION
AND DESCRIPTION OF PREMISES
3.1. Offices
25
| |
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
|
| | |
| |
Owned
o on
lease x
|
3.2. Spare
parts wharehuse
| |
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
|
| | |
| |
Owned o on
lease x
|
3.3. Service
Premises
| |
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
|
| | |
| |
Owned o on
lease x
|
|
3.4
|
▇-▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
|
| | |
| |
Owned o on
lease x
|
4. RETAIL
NETWORK
Retail
sale and service dealers
|
Dealer’s
name and address
|
Dealer’s
sales area
|
| | |
| | |
| | |
| | |
| | |
Direct
Retail and Service Outlets
|
Address
and company name of outlet
|
Outlet’s
sales area
|
| | |
|
▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
|
▇▇▇▇
▇▇▇▇ and Macau
|
| | |
| | |
| | |
| | |
26
Service
Dealers
|
Dealer’s
name and address
|
Dealer’s
service area
|
| | |
| | |
| | |
| | |
| | |
27
APPENDIX
C
(supplemental to the Ferrari
Import and Distribution Agreement: entered into
with Italian Motors (Sales & Service) Ltd on 1st January 1992
DEALER’S
ESSENTIAL OBLIGATIONS
In
accordance with sub—clause 3.3 of the AGREEMENT there are specified below the
clauses of the AGREEMENT and the obligations set out therein which, mutatis
mutandis, shall be included in the IMPORTER’s Dealer Agreement with its RETAIL
NETWORK:
| – |
Sub-clauses
2.2;2.3; 2.5; 2.9; 2.10; 2.12;
|
| – |
Sub-clauses
3.2 (1) and (2); 3.4; 3.5; 3.6; 3.7;
3.8;
|
| – |
Sub-clauses
4.1; 4.2; 4.3;
|
| – |
All
sub-clauses of Clause 5
|
| – |
All
sub-clauses pf Clause 6
|
| – |
Sub-clauses
7.2; 7.3; 7.5;
|
| – |
Sub-clauses
8.1; 8.2; 8.5; 8.10.
|
28
APPENDIX
D
(supplemental to the Ferrari
Import and Distribution Agreement entered into
with
Italian Motors (Sales & Service) Ltd on 1st January 1992
CONTRACT
AUTOMOBILES
En
accordance with sub—clause 1.3 of the AGREEMENT there are specified below the
CONTRACT AUTOMOBILES. Any model/version specified below, the manufacture of
which is discontinued by FERRARI, shall be deemed automatically cancelled from
this Appendix and shall cease to be a CONTRACT AUTOMOBILE.
In
the
event that Ferrari decides to distribute a new model/version in the TERRITORY,
FERRARI will notify to the IMPORTER a new Appendix D amended accordingly.
Starting from the date on which the new model or version is included on the
IMPORTER’S ALLOCATION PROGRAM it will automatically become a CONTRACT
AUTOMOBILE, provided always that In the case of any such new model or version
as
are referred to in sub—clause 2.8, the model or’ version concerned will only be
included in Appendix D if the special terms and conditions offered by FERRARI
under sub—clause 2.8 are accepted in writing by the IMPORTER.
1. Ferrari
348 in the following versions
1.1. 348
TB
1.2. 348
TS
2. Ferrari
Mondial in the following versions
2.1.
Cabriolet T
3. Ferrari
Testarossa
3.1. EB
4. Ferrari
F40 Le Mans
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Other
makes of cars represented by the Importer, as up to date and consented to by
Ferrari:
a) Lancia
b)
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c)
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