Annual Report by a Foreign Non-Canadian Issuer — Form 20-F — Sect. 13 / 15(d) – SEA’34 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: 20-F Annual Report by a Foreign Non-Canadian Issuer HTML 1.62M
2: EX-2.1 Registration Rights Agreement Between Hudson Ltd. HTML 153K
and Dufry International Ag, Dated February 1, 2018
3: EX-4.1 Master Relationship Agreement Between Dufry HTML 176K
International Ag and Hudson Ltd, Dated February 1,
2018
4: EX-4.4 Hudson Trademark License Agreement Between Dufry HTML 113K International Ag and Hudson Group (Hg), Inc., Dated February 1, 2018
5: EX-4.5 Franchising Agreement Between Dufry International HTML 136K
Ag and Hudson Group (Hg), Inc., Dated February 1,
2018
9: EX-13.1 Certification Pursuant to 18 U.S.C. Section 1350, HTML 38K
as Adopted Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
10: EX-13.2 Certification Pursuant to 18 U.S.C. Section 1350, HTML 38K
as Adopted Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002
11: EX-14.1 Consent of Ernst & Young Ag HTML 40K
6: EX-11.1 Code of Business Conduct and Ethics HTML 52K
7: EX-12.1 Certification Pursuant to Section 302 of the HTML 42K
Sarbanes-Oxley Act of 2002
8: EX-12.2 Certification Pursuant to Section 302 of the HTML 42K
Sarbanes-Oxley Act of 2002
18: R1 Document and Entity Information HTML 64K
19: R2 Combined Statements of Comprehensive Income HTML 113K
20: R3 Combined Statements of Financial Position HTML 113K
21: R4 Combined Statements of Changes in Equity HTML 76K
22: R5 Combined Statements of Cash Flows HTML 133K
23: R6 1. Corporate Information HTML 39K
24: R7 2. Accounting Policies HTML 107K
25: R8 3. Critical Accounting Judgements and Key Sources HTML 49K
of Estimation Uncertainty
26: R9 4. New and Revised Standards and Interpretations HTML 62K
Issued But Not Yet Adopted/Effective
27: R10 5. Segment Information HTML 49K
28: R11 6. Acquisitions of Businesses and Transactions HTML 57K
With Non-Controlling Interests
29: R12 7. Turnover HTML 69K
30: R13 8. Selling Expenses HTML 53K
31: R14 9. Personnel Expenses HTML 45K
32: R15 10. General Expenses HTML 52K
33: R16 11. Investments in Associates HTML 128K
34: R17 12. Depreciation, Amortization and Impairment HTML 48K
35: R18 13. Other Operational Result HTML 60K
36: R19 14. Interest HTML 57K
37: R20 15. Income Taxes HTML 67K
38: R21 16. Earnings Per Share HTML 38K
39: R22 17. Property, Plant and Equipment HTML 159K
40: R23 18. Cash Flow Used for Purchase of Property, Plant HTML 45K
and Equipment
41: R24 19. Intangible Assets HTML 109K
42: R25 20. Cash Flows Used for Purchase of Intangible HTML 42K
Assets
43: R26 21. Deferred Tax Assets and Liabilities HTML 71K
44: R27 22. Other Non-Current Assets HTML 50K
45: R28 23. Inventories HTML 53K
46: R29 24. Trade Receivables HTML 57K
47: R30 25. Other Accounts Receivable HTML 59K
48: R31 26. Share-Based Payments HTML 44K
49: R32 27. Breakdown of Transactions With Non-Controlling HTML 44K
Interests
50: R33 28. Information on Companies With Non-Controlling HTML 73K
Interests
51: R34 29. Financial Debt HTML 103K
52: R35 30. Other Liabilities HTML 50K
53: R36 31. Post-Employment Benefit Obligations HTML 38K
54: R37 32. Related Parties and Related Party Transactions HTML 88K
55: R38 33. Commitments and Contingencies HTML 51K
56: R39 34. Fair Value Measurement HTML 40K
57: R40 35. Financial Instruments HTML 316K
58: R41 36. Events After Reporting Date HTML 39K
59: R42 2. Accounting Policies (Policies) HTML 134K
60: R43 2. Accounting Policies (Tables) HTML 46K
61: R44 5. Segment Information (Tables) HTML 48K
62: R45 6. Acquisitions of Businesses and Transactions HTML 53K
With Non-Controlling Interests (Tables)
63: R46 7. Turnover (Tables) HTML 72K
64: R47 8. Selling Expenses (Tables) HTML 52K
65: R48 9. Personnel Expenses (Tables) HTML 45K
66: R49 10. General Expenses (Tables) HTML 52K
67: R50 11. Investments in Associates (Tables) HTML 128K
68: R51 12. Depreciation, Amortization and Impairment HTML 47K
(Tables)
69: R52 13. Other Operational Result (Tables) HTML 59K
70: R53 14. Interest (Tables) HTML 56K
71: R54 15. Income Taxes (Tables) HTML 67K
72: R55 17. Property, Plant and Equipment (Tables) HTML 158K
73: R56 18. Cash Flow Used for Purchase of Property, Plant HTML 45K
and Equipment (Tables)
74: R57 19. Intangible Assets (Tables) HTML 99K
75: R58 20. Cash Flows Used for Purchase of Intangible HTML 41K
Assets (Tables)
76: R59 21. Deferred Tax Assets and Liabilities (Tables) HTML 74K
77: R60 22. Other Non-Current Assets (Tables) HTML 51K
78: R61 23. Inventories (Tables) HTML 54K
79: R62 24. Trade Receivables (Tables) HTML 59K
80: R63 25. Other Accounts Receivable (Tables) HTML 61K
81: R64 27. Breakdown of Transactions With Non-Controlling HTML 43K
Interests (Tables)
82: R65 28. Information on Companies With Non-Controlling HTML 70K
Interests (Tables)
83: R66 29. Financial Debt (Tables) HTML 102K
84: R67 30. Other Liabilities (Tables) HTML 50K
85: R68 32. Related Parties and Related Party Transactions HTML 89K
(Tables)
86: R69 33. Commitments and Contingencies (Tables) HTML 50K
87: R70 35. Financial Instruments (Tables) HTML 308K
88: R71 1. Corporate Information (Details Narrative) HTML 39K
89: R72 2. Accounting Policies (Details) HTML 40K
90: R73 2. Accounting Policies (Details Narrative) HTML 48K
91: R74 5. Segment Information (Details) HTML 43K
92: R75 5. Segment Information (Details 1) HTML 43K
93: R76 6. Acquisitions of Businesses and Transactions HTML 84K
With Non-Controlling Interests (Details)
94: R77 7. Turnover (Details) HTML 48K
95: R78 7. Turnover (Details 1) HTML 58K
96: R79 7. Turnover (Details 2) HTML 43K
97: R80 7. Turnover (Details 3) HTML 45K
98: R81 8. Selling Expenses (Details) HTML 58K
99: R82 9. Personnel Expenses (Details) HTML 47K
100: R83 10. General Expenses (Details) HTML 63K
101: R84 11. Investments in Associates (Details) HTML 73K
102: R85 11. Investments in Associates (Details 1) HTML 77K
103: R86 11. Investments in Associates (Details 2) HTML 64K
104: R87 12. Depreciation, Amortization and Impairment HTML 51K
(Details)
105: R88 13. Other Operational Result (Details) HTML 66K
106: R89 14. Interest (Details) HTML 59K
107: R90 15. Income Taxes (Details) HTML 56K
108: R91 15. Income Taxes (Details 1) HTML 67K
109: R92 17. Property, Plant and Equipment (Details) HTML 121K
110: R93 18. Cash Flow Used for Purchase of Property, Plant HTML 45K
and Equipment (Details)
111: R94 19. Intangible Assets (Details) HTML 72K
112: R95 19. Intangible Assets (Details 1) HTML 44K
113: R96 19. Intangible Assets (Details 2) HTML 37K
114: R97 19. Intangible Assets (Details Narrative) HTML 39K
115: R98 20. Cash Flows Used for Purchase of Intangible HTML 41K
Assets (Details)
116: R99 21. Deferred Tax Assets and Liabilities (Details) HTML 55K
117: R100 21. Deferred Tax Assets and Liabilities (Details HTML 44K
1)
118: R101 21. Deferred Tax Assets and Liabilities (Details HTML 49K
2)
119: R102 21. Deferred Tax Assets and Liabilities (Details HTML 45K
3)
120: R103 22. Other Non-Current Assets (Details) HTML 47K
121: R104 22. Other Non-Current Assets (Details 1) HTML 46K
122: R105 23. Inventories (Details) HTML 45K
123: R106 23. Inventories (Details 1) HTML 48K
124: R107 24. Trade Receivables (Details) HTML 42K
125: R108 24. Trade Receivables (Details 1) HTML 50K
126: R109 24. Trade Receivables (Details 2) HTML 47K
127: R110 25. Other Accounts Receivable (Details) HTML 68K
128: R111 25. Other Accounts Receivable (Details 1) HTML 45K
129: R112 27. Breakdown of Transactions With Non-Controlling HTML 50K
Interests (Details)
130: R113 28. Information on Companies With Non-Controlling HTML 63K
Interests (Details)
131: R114 28. Information on Companies With Non-Controlling HTML 65K
Interests (Details 1)
132: R115 29. Financial Debt (Details) HTML 49K
133: R116 29. Financial Debt (Details 1) HTML 72K
134: R117 30. Other Liabilities (Details) HTML 61K
135: R118 32. Related Parties and Related Party Transactions HTML 74K
(Details)
136: R119 32. Related Parties and Related Party Transactions HTML 82K
(Details 1)
137: R120 32. Related Parties and Related Party Transactions HTML 46K
(Details 2)
138: R121 33. Commitments and Contingencies (Details) HTML 47K
139: R122 33. Commitments and Contingencies (Details 1) HTML 45K
140: R123 35. Financial Instruments (Details) HTML 57K
141: R124 35. Financial Instruments (Details 1) HTML 103K
142: R125 35. Financial Instruments (Details 2) HTML 95K
143: R126 35. Financial Instruments (Details 3) HTML 56K
144: R127 35. Financial Instruments (Details 4) HTML 46K
145: R128 35. Financial Instruments (Details 5) HTML 122K
146: R129 35. Financial Instruments (Details 6) HTML 111K
148: XML IDEA XML File -- Filing Summary XML 277K
147: EXCEL IDEA Workbook of Financial Reports XLSX 157K
12: EX-101.INS XBRL Instance -- hud-20171231 XML 5.48M
14: EX-101.CAL XBRL Calculations -- hud-20171231_cal XML 233K
15: EX-101.DEF XBRL Definitions -- hud-20171231_def XML 826K
16: EX-101.LAB XBRL Labels -- hud-20171231_lab XML 1.44M
17: EX-101.PRE XBRL Presentations -- hud-20171231_pre XML 1.20M
13: EX-101.SCH XBRL Schema -- hud-20171231 XSD 442K
149: ZIP XBRL Zipped Folder -- 0001654954-18-002560-xbrl Zip 246K
‘EX-4.4’ — Hudson Trademark License Agreement Between Dufry International Ag and Hudson Group (Hg), Inc., Dated February 1, 2018
Other Contractual Relationships Between The Parties
10
Article 23
Severability
10
Article 24
Successors And Assignees
10
Article 25
Independent Parties
10
Article 26
Costs And Taxes
11
26.1
Costs
11
26.2
Taxes
11
Article 27
Force Majeure
11
Article 28
Non-Waiver And Cumulative Rights
11
Article 29
Notices
11
Article 30
Applicable Law
12
Article 31
Dispute Resolution and Arbitration
12
Article 32
Further Assurances
13
HUDSON Trademark License agreement
I. PARTIES
On one side
Dufry
International AG, a Swiss stock corporation duly incorporated and
existing under the laws of Switzerland with registered office at
Hardstrasse 95, CH-4020 Basel, Switzerland
(hereinafter referred to as "DIAG" or the
“Licensor”)
and on the other side
Hudson
Group (HG), Inc., a corporation duly incorporated and existing
under the laws of the State of Delaware, United States of America
with registered office at 1 Meadowlands Plaza New Jersey 07073 East
Rutherford, USA
(hereinafter referred to as "HGI” or the
“Licensee”)
Page 1
HUDSON Trademark licence agreement
II. RECITALS
This
agreement is to be read in conjunction with the Retail Shop Concept Development
Agreement entered into by and between Licensor and Licensee
as of March 16, 2010.
This
agreement makes reference to the following facts:
I.
WHEREAS, the Dufry Group is one of the
world’s leading operators of shops that sells luxury consumer
products and is engaged in the retail business with “duty
free” and “duty paid” concessions located at
airports, borders, on cruise liners, seaports, ferries, railway
stations and city centre locations;
II.
WHEREAS, DIAG is the owner of certain
know-how, intellectual property rights, marks, and confidential
information relating to the design, development, marketing
concepts, operation and management of retail shops, as defined
herein;
III.
WHEREAS, HGI acknowledges the prior
contribution of DIAG to the HUDSON Trademark and marketing
intangibles, including its Development, Enhancement, Maintenance,
Protection and Exploitation (hereinafter referred to collectively
as “DEMPE”);
IV.
WHEREAS, DIAG and HGI acknowledge that
DIAG will be in charge of all DEMPE functions related to the HUDSON
Trademark;
V.
WHEREAS, the Parties have entered into
an Agreement for Development of Retail Shop Concepts ("RSC
Agreement") effective as of the Effective Date January 4, 2010,
under which DIAG engaged HGI to perform services in order to
maintain and further develop the intellectual property associated
with the Hudson Trademark;
VI.
WHEREAS, DIAG has determined that Hudson
Ltd., a company incorporated under the laws of Bermuda and wholly
owned subsidiary of DIAG, will list its Class A Common Shares on
the New York Stock Exchange (the “NYSE Listing”), in
connection with which DIAG will offer a certain number of such
Class A Common Shares for sale in an initial public offering
“(IPO”); and
VII.
WHEREAS, Hudson Ltd. will become the
indirect parent company of HGI as part of a series of transactions
among various direct and indirect subsidiaries of DIAG (the
“Reorganization”), and in connection with the NYSE
Listing, IPO and Reorganization, HGI wishes to acquire, and DIAG is
willing to grant to HGI, (a) a licence to the Trademark for
HGI’s own use as well as the right to sub-licence the
Trademark to subsidiaries of HGI under the terms and conditions of
this Agreement and (b) an exclusive license to utilize the
know-how, intellectual property rights, marks, and confidential
information for the territory and period stipulated in the this
Agreement solely in accordance with the terms and conditions of
this Agreement.
NOW THEREFORE in consideration of the mutual covenants and
agreements hereinafter contained and for other good and valuable
consideration (the receipt and sufficiency of which is acknowledged
by each of the parties hereto) the parties covenant and agree each
with the other as follows:
Page 2
HUDSON Trademark licence agreement
II.
DEFINITIONS AND INTERPRETATION
A.
DEFINITIONS
For the
purposes of this Agreement, the following terms shall have the
following meanings:
●
“Affiliate”
shall mean any subsidiary or controlled affiliate, which includes
any legal entity that is directly or indirectly, through the
majority of voiting rights, equity capital or otherwise by
exercising a controlling influence, controlled by a
Party.
●
“Agreement”
shall mean this Agreement.
●
"Effective Date"
shall mean the date as from which this Agreement shall be deemed
effective in accordance with Article 4 below.
●
“Territory”
shall mean the Territory referred to in Article 2.
●
“HGI
Group” shall mean HGI and its subsididaries and controlled
affiliates.
●
“IP
Rights” shall mean collectively certain trademarks,
trade-name related marketing intangibles or other intellectual
property rights, which are legally and/or economically owned by
DIAG or to which DIAG has a right of use, all as further defined in
Article 3.
●
“Fair
Value” shall mean purchase price determined by an external
valuation report prepared by KPMG Switerland.
●
"The
Dufry Group" shall mean all the companies affiliated to the Parties
by whatsoever corporate links in whatever
jurisdiction.
●
“Party”
or “Parties” shall mean DIAG and HGI referred to alone
or collectively.
●
“Shops”
shall mean brick and mortar travel retail outlets, spaces, or
concessions operated by HGI and its permitted sub-licensees (if
any) in the Territory with the approval of DIAG.
Page 3
HUDSON Trademark licence agreement
B. INTERPRETATION
GUIDELINES
●
A
reference to a person, corporation, trust, partnership,
unincorporated body or other entity includes any of
them
●
A
reference to an article, a clause, a chapter or a schedule is a
reference to an article, a clause, a chapter or a schedule of this
Agreement.
●
The
singular includes the plural and conversely, unless otherwise
expressly indicated.
Page 4
HUDSON Trademark licence agreement
III. COVENANTS
Article
1 Object
Subject
to and in accordance with the terms and conditions of this
Agreement, DIAG agrees to grant and herewith grants to Licensee the
right to use the IP Rights as further defined under Article 3 below
for the purpose of the operation of the Shops in the
Territory.
This
Agreement sets forth the terms and conditions of, as well as the
respective rights and obligations of, both Parties under the terms
of this grant.
Article
2
Territory
The
"Territory" shall mean and include the continental United States,
Hawaii and Canada.
Article
3
IP Rights
The IP
Rights are limited to the following:
●
The HUDSON
Brand/Trademark (including logo and signage, as well as applicable
colours and fonts) (the “Trademark”);
●
Global Brand
Guidelines (technical details regarding application of the
brand);
●
How to utilise the
logo within stores (e.g. on banners, logos, point of sale machines,
sales tickets, plastic bags etc);
●
How to utilise the
brand on stationary (letters, business cards, signage
etc).
Article
4
Validity - Effective Date
This
Agreement shall be effective as from January 1, 2018, which shall
be deemed to be the Effective Date.
This
Agreement has a term of 7 years validity from the Effective Date or
terminated in accordance with Article 18 hereunder.
Article
5
Sub-Licence
HGI has
the full right to sub-licence to its Affiliates. HGI shall under
the terms of this Agreement not have the right to grant any
sub-licences of the Trademark to any other third parties without
DIAG’s prior written consent, which shall not be unreasonably
withheld. HGI shall procure that any of its sub-licensees fully
comply with the terms and conditions of this Agreement and HGI
shall be responsible for any acts (and omissions) of its
sub-licensees as if they were HGI's own acts (and
omissions).
Article
6
Remuneration
The
license granted by this Agreement shall be fully paid and royalty
free. For the avoidance of doubt, this Agreement shall not
supersede any provision of any franchise agreement between DIAG and
any member of the HGI Group
Page 5
HUDSON Trademark licence agreement
Article
7
Licensee’s Rights And Obligations
7.1
Exercise of Trademark
HGI has
the right and the obligation to make full use of the Trademark in
accordance with the terms and conditions of this Agreement and
DIAG's instructions during the term of validity of this Agreement.
Furthermore HGI acknowledges and agrees that the Trademark granted
in this Agreement applies only in connection with the Shops and the
products and – if at all applicable – services sold
therein and may not be used for any other purpose.
HGI
hereby undertakes to exercise the Trademark in such a manner which
is not in any manner detrimental for the business and/or the
reputation of DIAG and/or the Dufry Group.
7.2
Use of Intellectual Property
All use
of the IP Rights shall conform fully with all written policies,
standards and instructions of DIAG supplied to HGI from time to
time. HGI may not use the IP Rights in a manner, which would injure
the reputation or goodwill of DIAG or the Dufry Group. HGI further
agrees that it will not use the IP Rights for activities, products
and services, which are not within the scope of business operation
of the Shops.
HGI
hereby agrees that any use of the IP Rights by HGI outside the
terms and conditions of this Agreement is and shall be deemed as
infringement of DIAG’s rights.
Article
8
DIAG’s Rights And Obligations
8.1
Provision of Materials
DIAG
undertakes to provide HGI with the rights owned by or licensed to
DIAG and with information and materials which DIAG deems reasonably
necessary or convenient in order to enable HGI to exercise its
rights in accordance with this Agreement.
8.2
Exclusivity
DIAG
commits to abstain, as long as this Agreement remains in force,
from granting to any other person or entity a license to the
Trademark for the Territory.
8.3
Trademark Maintenance
Without
prejudice to any other term of this Agreement (including, without
limitation, Articles 13 and 14), DIAG undertakes to use its
commercially reasonable best efforts to maintain and defend the
Trademark during the term of this Agreement. Notwithstanding the
foregoing in this Article 8.3, the Parties agree that DIAG may in
its sole discretion at any time during the term of this Agreement
make changes to the IP Rights, including, without limitation, by
amending the Trademark and/or any of the marketing intangibles
and/or by amending, adding and/or removing trademark registrations
to resp. from the scope of the license grant.
Article
9
Ownership Of Intellectual Property
The
parties hereto hereby acknowledge that between the Parties DIAG is
the exclusive owner or has otherwise the exclusive right to use and
license the IP Rights and all goodwill associated therewith.
Furthermore the parties expressly agree that except as expressly
provided in this Agreement, HGI acquires no right, title or
interest in any of the IP Rights or related marketing intangibles.
HGI shall not in any manner represent that it has any economic
ownership interest in the IP Rights or applications thereof. HGI
may not at any time dispute or contest, directly or indirectly, the
validity, ownership or enforceability of any of the IP Rights, nor
directly or indirectly attempt to dilute the value of the goodwill
attached to any of the IP Rights.
Page 6
HUDSON Trademark licence agreement
Article
10
Registration Of HGI As Registered User
Should
the registration of HGI as registered user of the IP Rights be
possible, necessary or convenient in any public or private
register, HGI agrees, upon request by DIAG made at any time after
the execution of this Agreement, to join DIAG in applying for such
registration as registered user or any analogue registration in
respect to the IP Rights or a part of them. HGI agrees to execute
all documents and do all acts necessary or convenient to obtain
such registration, as well as any documents, which might be
necessary for the variation, completion or cancellation of such
registration.
HGI
shall not at any time during the term of this Agreement or at any
time after its termination use its capacity as registered user of
the IP Rights to do any act or assist any person in doing any act
which may in any way invalidate, impair or prejudice the rights or
title of DIAG, whichever nature these rights might have, in the IP
Rights.
Article
11
Other Marketing Intangibles
As far
as registered or registerable, HGI undertakes hereby not to
register the Trademark and/or marketing intangibles or any
marketing intangibles confusingly similar thereto. Any application
or registration in breach of this Article shall endure to the
benefit of and be beneficially owned by DIAG. HGI shall assign to
DIAG at its request and its own expense all rights, title and
interest in any such application or registration.
HGI
agrees that it shall only exercise the Trademark within the scope
of business of the Shops and that such operation shall conform in
nature and quality and shall be performed by HGI in compliance with
this Agreement, as well as in accordance with the quality standards
and specifications set by DIAG, in its sole discretion from time to
time. Without limiting the foregoing, HGI agrees that the operation
of the Trademark by HGI shall be of high quality standards
prevailing in the sector and consistent with that quality standard
maintained by DIAG in connection with comparable businesses. HGI
further agrees that the operation of the Trademark shall be in
conformity with all laws, rules and regulations applicable to HGI
as well as with the laws applicable in the Territory.
12.2
Inspection
DIAG or
its authorised agents shall have the right at any time to inspect
the Shops, the performance thereof and any relevant documents,
materials and records related to the Shops in order to determine
whether HGI has complied with its obligations under this
Agreement.
12.3
Reporting
HGI
agrees to report to DIAG at the latter's request about the exercise
and use of the Trademark by HGI and its sub-licensees and their
compliance with the terms and conditions of this Agreement. For the
purposes of this reporting, DIAG shall be entitled to provide HGI
with a standard form to be filled in by HGI. HGI undertakes
further, at the request of DIAG, to have its statutory independent
auditors certifying the completeness and accuracy of such
reports.
Page 7
HUDSON Trademark licence agreement
Article
13
Infringement By Unauthorised Persons
HGI
agrees to immediately give notice to DIAG of any conflicting use or
any act of infringement or passing off by unauthorized persons
which comes to its or its sub-licensees attention involving the IP
Rights or any variation or imitation thereof. Upon DIAG's request,
HGI shall provide at its own cost all reasonable support and
assistance to DIAG in any action taken by DIAG to defend against
any infringement of and/or to enforce its rights.
Article
14
HGI’s Infringement of Third Parties’
Rights
HGI
agrees to immediately give notice to DIAG of any demand, claim
and/or action involving the IP Rights that is made or threatened by
any person against HGI and/or any of its sub-licensees. HGI shall,
and shall cause its relevant sub-licensee(s) to, upon DIAG's option
and request, allow (i) either DIAG to undertake the defence against
any such demand, claim and/or action or (ii) defend against such
demand, claim and/or action in accordance with DIAG's instructions.
HGI and/or its sub-licensees shall not agree to any settlement or
any judicial finding or award that is reviewable by a higher
authority without the express prior written approval of DIAG. HGI
shall, and shall cause its relevant sub-licensee(s) to, further
implement the measures identified by DIAG to prevent any further
infringement of any third party rights by the use of the IP
Rights.
Article
15
Confidentiality
Both
parties acknowledge that by virtue of this Agreement they may have
direct or indirect access and acquire knowledge of the other
Party’s confidential information. Both parties undertake
hereby to hold in absolute confidence all and any information and
not to use, disclose, reproduce or dispose of any information in
any manner other than (i) as expressly provided for in this
Agreement, or (ii) required under applicable law or regulation, in
the good understanding that the undertaking contemplated in this
Article 16 shall survive in case of termination of this Agreement,
being irrelevant the reasons of such a termination.
Article
16
Transferability
This
Agreement and all rights and obligations arising here from shall
not be transferred by either party to a third party without the
express previous consent from the other party, which shall be in
writing.
Article
17
No Represenations or Warranties
Notwithstanding
any other provision in this Agreement, HGI acknowledges and agrees
that the IP Rights are made available to HGI on an "as-is" basis
without any representation or warranty, including, without
limitation, without any representation or warranty regarding the
validity, enforceability and/or non-infringement of the IP Rights.
To the maximum extent permitted by applicable law, DIAG hereby
disclaims any liability for any damages or detrimental consequences
which may arise for the HGI as a direct or indirect consequence of
the HGI's exercise of its rights or fulfilment of its obligations
under this Agreement.
Page 8
HUDSON Trademark licence agreement
Article
18
Termination
In the
event either Party defaults on its obligations as provided for in
this Agreement, the other Party shall give the defaulting Party
written notice of said default. If the defaulting Party does not
cure said default to the satisfaction of the other Party and
notifies in writing such other Party of such cure within 10 (ten)
calendar days after receipt of the notice of default, then the
Party having given notice of default may terminate this Agreement.
This termination shall then be effective immediately upon
notification of termination.
Without
limiting the generality of the foregoing statement, and just with
explanatory effect, this Agreement may be terminated by either
party with immediate effect in the following cases:
(i)
if the other party
is in an insolvency, bankruptcy or similar situation or in any
other legal situation which might lead thereto;
(ii)
if there is any
change in the ownership of more than 50% of the other party’s
voting stock (other than in case of Dufry group internal
restructuings), including but not limited to the case of
expropriation, nationalisation or whatsoever manner of exercise of
governmental control upon the other party.
The
Parties further agree that this Agreement shall terminate upon the
effective date of any termination or expiry, if any, of the Master
Relationship Agreement entered into between Franchisor and Hudson
Ltd. dated February 1, 2018.
Article
19
HGI's Obligations On Termination
Upon
the proper termination of this Agreement for any reason whatsoever,
HGI shall immediately cease to be a licensee of DIAG and shall
immediately cease to exercise, directly or indirectly, in any
manner whatsoever any rights arising out of the Trademark and
shall, forthwith upon request by DIAG, sign all documents and take
such actions as may be necessary to cancel any registration in
whatsoever register of HGI as a user of the Trademarks and/or the
marketing intangibles. Further HGI shall return to DIAG, at the
sole discretion of DIAG, all materials which have been provided by
DIAG.
Article
20
No Goodwill Redundancy On Termination
Any and
all goodwill which accrues or which has accrued from the Trademark
has accrued and shall accrue for the benefit of DIAG and if so
requested by DIAG at any time or on the termination of this
Agreement, HGI shall assign all goodwill to DIAG.
For the
case that HGI has prior to the date of execution of this Agreement
already exercised any right inherent to the Trademark, HGI
acknowledges that all such use has been under the control of DIAG.
Insofar as HGI might have been regarded as the proprietor of the IP
Rights for the purposes of any applicable law, HGI hereby confirms
that it has abandoned in favour of DIAG its proprietorship in the
IP Rights.
Consequently,
upon the proper termination of this Agreement for any reason
whatsoever, HGI shall in no case be entitled to receive from DIAG
any kind of compensation, redundancy fee or whatever payment from
DIAG on the basis of any goodwill which might have arisen out of
HGI’s compliance with its obligations under this
Agreement.
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HUDSON Trademark licence agreement
In the
unlikely case that any applicable law would vest HGI with any right
to claim from DIAG any payment based on goodwill, HGI hereby
waives, to the full extend permitted by law, any right to claim
such payment and simultaneously declares hereby that, in case of
its entitlement being compulsory by law, it hereby assigns any
payment in full to DIAG without requesting any compensation
therefore.
Article
21
Entire Agreement
This
Agreement constitutes the entire agreement between the parties in
connection to the subject matter hereof and supersede all prior
agreements, understandings, negotiations and discussions with
respect to the subject matter hereof whether written or oral.
Except as provided in this Agreement, there are no conditions,
representations, warranties, undertakings, promises, inducements or
agreements whether direct or indirect, collateral, expressed or
implied made by DIAG to HGI.
No
supplement, modification or waiver of this Agreement shall be
binding unless executed in writing by authorised officers of DIAG
and HGI.
Article
22
Other Contractual Relationships Between The
Parties
The
parties hereto acknowledge that they have or may have in the future
other contractual relationships between them. It is both
parties’ interest and intention that the different
contractual relationships between the parties are kept separated
from each other and that the matters regulated in this Agreement
shall in no way be affected by any term or condition other than
those set forth in this Agreement.
Article
23
Severability
The
invalidity or unenforceability of any provision or any covenant of
this Agreement in any jurisdiction shall not affect the validity or
enforceability of such provision or covenant in any other
jurisdiction or of any other provision or covenant hereof or herein
contained and any invalid provision or covenant shall be deemed to
be severable. The Parties shall negotiate in good faith in order to
replace the provision declared invalid or unenforceable with a new
provision, valid and enforceable, which preserves the original
intention of the parties.
Article
24
Successors And Assignees
This
Agreement shall endure to the benefit of and be binding upon DIAG
and HGI and their respective legal representatives, successors and
permitted assignees.
Article
25
Independent Parties
HGI is
and will at all times remain an independent party of DIAG and is
not and shall not represent itself to be the agent, joint venturer
or partner of DIAG. No representations will be made or acts taken
by HGI which could establish any apparent relationship of agency,
joint venture or partnership and DIAG shall not be bound in any
manner whatsoever by any agreements, warranties or representations
made by HGI to any other person or with respect to any other action
of HGI. No acts of assistance given by DIAG to HGI shall be
construed to alter this relationship.
Page
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HUDSON Trademark licence agreement
Article
26
Costs And Taxes
26.1
Costs
All
costs related to the implementation of this Agreements and the
execution of any actions therefore, such as but not limited to
HGI’s registration in any relevant register, renewal
procedures thereof or whatsoever governmental fees, shall be borne
by DIAG. For the avoidance of doubt, this Article 26.1 shall not
apply to the costs of the use of the IP Rights, including, without
limitation, the operation of the Shops, by HGI and its
sub-licensees.
26.2
Taxes
DIAG
shall be completely responsible for any taxes now or hereafter
imposed on DIAG with respect to the transactions contemplated
hereunder, and HGI shall be completely responsible for any taxes
now or hereafter imposed on HGI with respect to the transactions
contemplated hereunder.
Article
27
Force Majeure
Neither
DIAG nor HGI shall be liable in damages, or shall be subject to
termination of this Agreement by the other party, for any delay or
default in performing any obligation hereunder if that delay or
default is due to any cause beyond the reasonable control and
without fault or negligence of that party, provided that, in order
to excuse its delay or default hereunder, a party shall notify the
other of the occurrence or the cause, specifying the nature and
particulars thereof and the expected duration thereof, and
provided, further, that within 15 (FIFTEEN) calendar days after the
termination of such occurrence or cause, that party shall give
notice to the other party specifying the date of termination
thereof. All obligations of both parties shall return to being in
full force and effect upon termination of such occurrence or
clause.
For the
purposes of this Agreement, a "cause beyond the reasonable control"
of a party shall include, without limiting the generality of the
phrase, any act of God, act of any government (excepting the causes
contained in Article 19.2), or other statutory undertaking,
industrial dispute, fire, explosion, accident, power failure,
flood, riot, or war (declared or undeclared).
Article
28
Non-Waiver And Cumulative Rights
The
failure of either party to exercise any right, power or option
given hereunder or to insist upon the compliance with the terms and
conditions hereof by the other party shall not constitute a waiver
of the terms and conditions of this Agreement with respect to that
or any other or subsequent breach thereof nor a waiver by the
non-exercising party of its rights at any time thereafter to
require strict compliance with all terms and conditions hereof
including the terms or conditions with respect to which
non-complying party has failed to exercise such right or option.
The rights of each party hereunder are cumulative.
Article
29
Notices
All
notices, consents and approvals (hereinafter referred to as a
"Notice") permitted or required to be given hereunder shall be
deemed to be sufficiently and duly given if written and delivered
personally or sent by courier or transmitted by facsimile
transmission or other form of recorded communication tested prior
to transmission, addressed as follows:
Page
11
HUDSON Trademark licence agreement
If to
DIAG:
Dufry
International AG
Brunngässlein
12
CH-4010
Basel
Switzerland
and if
to HGI:
Hudson
Group (HG) Inc
One
Meadowlands Plaza, 11th Floor
East
Rutherford
New
Jersey, 07073
Any
notice so given shall be deemed to have been received on the date
of delivery if sent by courier, facsimile transmission or other
form of recorded communication, as the case may be. Either party
from time to time by Notice may change its address for the purposes
of this Agreement.
Article
30
Applicable Law
This
Agreement shall be governed and construed in accordance with the
substantive laws of Switzerland, excluding
its conflict of laws principles and excluding the UN Convention on
Contracts for the International Sale of Goods.
Article
31
Dispute Resolution and Arbitration
Any
dispute, controversy or claim arising out of or relating to this
Agreement, or the validity, interpretation, breach or termination
thereof, or any agreement or action contemplated thereby (a
“Dispute”), shall be resolved in accordance with the
procedures set forth in this Article 32, which shall be the sole
and exclusive procedures for the resolution of any such Dispute
unless otherwise specified below.
The
Board of Directors of either Party may submit any Dispute for
resolution by mediation in accordance with the Swiss Rules of
Commercial Mediation of the Swiss Chambers’ Arbitration
Institution in force on the date when the request for mediation was
submitted in accordance with these Rules. The seat of the mediation
shall be Zurich, although the meetings may be held elsewhere. The
mediation proceedings shall be conducted in English.
If a
Dispute is not resolved by mediation as provided in this Article 32
within thirty (30) days of the selection of a mediator (unless the
mediator chooses to withdraw sooner), either Party may submit the
Dispute to be finally resolved by arbitration pursuant in
accordance with the Swiss Rules of International Arbitration of the
Swiss Chambers’ Arbitration Institution in force on the date
when the Notice of Arbitration was submitted in accordance with
those Rules. The Parties consent to a single, consolidated
arbitration for all known Disputes existing at the time of the
arbitration and for which arbitration is
permitted.
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HUDSON Trademark licence agreement
The
number of arbitrators shall be three. The seat of the arbitration
shall be in Zurich. The arbitral proceedings shall be conducted in
English. The arbitration shall be conducted in accordance with the
provisions for expedited procedure.
Article
32
Further Assurances
The
parties hereto agree to do or cause to be done all acts or things
necessary to implement and carry into effect this Agreement to its
full extent, including any kind of public deed or official document
which could be required according to the laws of Switzerland, the
laws of the Territory or to the laws applying to either HGI or the
Trademark.
IN WITNESS THEREOF the parties hereto have entered into this
Agreement on the date and place set hereunder and have executed it
in two originals, both of them together constituting one and the
same document.
For DIAG:
DATED at Basel this 1st day of February 2018
Signature:
/s/
Julián
Díaz González
Signature:
/s/
Andreas
Schneiter
Name:
Julián
Díaz González
Name:
Andreas
Schneiter
Title:
Director
Title:
Director
For HGI:
DATED at Basel this 1st day of February 2018
Signature:
/s/
Julián
Díaz González
Signature:
/s/
Andreas
Schneiter
Name:
Julián
Díaz González
Name:
Andreas
Schneiter
Title:
Director
Title:
Director
Page
13
Dates Referenced Herein and Documents Incorporated by Reference
