Des restrictions sont apportées pour la publicité en faveur de l’alcool et du tabac, qui doivent être prises en compte dans le cadre des opérations de sponsoring.
En effet, la loi Evin du 10 janvier 1991 prohibe toute publicité en faveur de l’alcool, de manière directe ou indirecte, incluant en cela la simple mention d’un signe rappelant l’alcool, sous peine d’une amende d’un montant de 75 000 euros.
Des dispositions similaires existent en matière de tabac(*), sous peine d’une amende de 100 000 euros.
Par ailleurs, la directive communautaire européenne du 26 mai 2003 interdit, quant à elle, toute publicité en faveur du tabac dans la presse et à la radio, ainsi que tout parrainage de manifestations ou d’activités concernant plusieurs États membres.
En ce qui concerne la retransmission télévisuelle en France de manifestations sportives se déroulant à l’étranger et non soumises aux dispositions de la loi Evin, l’article L. 3511-3 du Code de la santé publique autorise « la retransmission des compétitions de sports mécaniques qui se déroulent dans des pays où la publicité pour le tabac est autorisée ».
En dehors des sports mécaniques, il convient de se reporter au code de bonne conduite du Conseil supérieur de l’audiovisuel (CSA) distinguant le cas des manifestations sportives multinationales ou binationales ne s’adressant pas en priorité au public français et ne tombant pas sous le coup de la loi Evin, du cas des manifestations binationales, qui imposent aux diffuseurs de mettre en œuvre les moyens disponibles pour prévenir l’apparition des publicités illicites. Cette approche a fait l’objet d’une confirmation par la Cour de justice de l’Union européenne (CJUE).
This agreement is entered into by and between :
Supplier, Head Office : …, represented by …, acting in his capacity as …, refered to hereafter as « the Supplier ».
XXX Head Office : …, represented by …, acting in his capacity as …, refered to hereafter as « the Partner ».
The supplier is a manufacturer and seller of xxx which are sold internationaly they have acquired a certain know-how and an acknowledged réputation in this field.
The Partner is a major sponsor and coordinator of the professional team in xxx referred to hereafter as «The Team»;
The Team will take part to all professional – national and international – races as per its program for the contracted period, beginning in the race season 20xx.
The Supplier wishes to become the exclusive supplier of xxx of the Team.
Now therefore, the parties have agreed on the following :
Article 1 – Purpose of contract
The purpose of this contract is to define the conditions under which the Supplier will be the exclusive xxx sponsor of the Team during the «Contract Period» (see article 2).
Article 2 – Contract Period
The term of this Contract shall commence January 1st, 20xx and shall continue for a period of at least xxx years, for the entire 20xx and 20xx seasons concluding December 31st, 20xx. …… has the option to extend the present Contract for two other years, corresponding to 20xx and 20xx seasons. The Supplier has to exercice the aforementioned option by October 31th, 20xx.
Upon the expiry or termination of this agreement for whatever reason, the Partner shall cease its use of the products that were made available to it under the scope of this agreement and shall return these products to the supplier promptly.
Upon the expiry or termination of this agreement, unless caused by a failure to comply with its obligations by the Supplier, the Supplier shall for a period of 3 (three) months have the right, to continue to use products, packaging and other materials already produced using the Partners endorsement under this agreement.
For an unlimited period after the expiry or termination of this agreement, the Supplier shall have the right to use the Partner’s performance record during the Contract Period or when otherwise using the Supplier products after the Contract Period. This use includes without limitation images of and references to the Team during the Period.
Article 3 – The Supplier’s obligations
The Supplier agrees to become the Partner’s supplier of the products listed in Appendix 1 so that the Partner can equip the Team for the xxx season. The Supplier will therefore be the Team exclusive supplier for the products listed in Appendix 1 during the term of this contract.
On this basis, the Supplier undertakes to :
a) supply, for the 20xx and 20xx seasons and for the exclusive use by the Team in the products Appendix 1 which will not exceed the following maximum quantities :
The aforementioned goods will be invoiced to the partner at the market price.
The partner will issue an invoice to the Supplier for sponsoring. Those invoices will be compensated i.e. no cash exchange will be involved in the transaction.
b) guarantee that it holds ail industrial and intellectual property rights for the products that it supplies to the Partner and the Team under this contract. It also guarantees that all the products supplied under this contract are free from all material defects, appearance flaws and, generally speaking, all patent and latent defects and that they comply with all the operative legislative and regulatory provisions. Partner agrees and acknowledges that it is responsible for any assembly of the products and that the Supplier cannot be made liable for any result of incorrect assembly and/or use of the products.
Article 4 – The Partner’s obligations
The Partner, representing the Team, agrees that :
a) each member of the Team use only and exclusively products supplied by the Supplier during the Contract Period and whenever they compete in racing events anywhere ;
b) products supplied by the Supplier will not be sold or donated to any third parts ;
c) the Partner itself at the end of the year will issue the Supplier a counter-invoice compensating the Supplier’s ones for the sponsoring ;
d) the Partner itself will return upon request of the Supplier used or defected or damaged products ;
e) at the end of the season, all remaining products (not used) will be returned to the Supplier ;
f) the Supplier will have the title of « Official Partner of the Team XXX » ;
g) the Supplier logo will appear on (À préciser). The Supplier’s logo will also appear on all the Team posters, on the Team website, on all official Team communication, the Supplier has already given the Partner its logo through file ;
h) the Supplier has the right to establish a web site link to the Team web page and the Supplier has the official right to use team athletes for promotional and advertising activities, provided that these events do not interfere with the athlete’s prior scheduling, training and competitions.
i) the Supplier also has the rights to use the name and logo of the Team, the names of the Team athletes, photos of the Team and of any single athlete in advertising, promotion and packaging. In fact, the Partner itself undertakes to keep the Supplier updated with all the Team results and to provide the Supplier with all the Team pictures and information.
j) The Partner will assemble all their equipments products. Furthermore all promotional items (catalogues, web sites, press releases, postcards) will be developed with the Supplier products on the equipments.
k) The Partner represents and warrants that it is authorized to enter into this agreement and that it has a binding agreement with the Team, the Team athletes and other parties involved with the Team authorizing the Supplier unconditionally to grant the Supplier the rights as mentioned in this agreement.
I) In its sponsorship agreement with the Team, the Partner shall stipulate, for the benefit of the Supplier, a penalty for termination by the Team of the sponsorship agreement before the end of the agreed term. This penalty (or, in the event the Partner also includes a penalty for its own benefit, the Supplier’s part of the penalty) shall amount to 100 % of the total value for each contractual year that the Agreement is terminated earlier than the agreed term.
In the event the Team terminates the sponsorship agreement with the Partner before the end of the agreed term, the Partner shall immediately inform the Supplier thereof, shall vigorously exercise its penalty rights as described hère above and shall transfer the penalties exercised to the Supplier within 30 (thirty) days of its receipt thereof.
m) The Partner shall ensure that Partner itself, the Team, the Team athletes and personnel, shall do nothing, either by act or omission, to harm the reputation, image or goodwill of the Supplier and the Supplier’s trademarks.
n) The Partner agrees and acknowledges that if any of the Team athletes are implicated and/or found guilty of a doping offense in any way, it shall promptly notify the Supplier. In this event, the parties shall mutually and in good faith agree on appropriate measures, which measures shall be followed up by the Partner immediately and accurately. In the event the parties fail to reach an agreement or if the Partner fails to implement the agreed measures within a period of 10 (ten) days, and/or if the Partner fails to comply with the AMA anti doping policies, the Supplier shall have the right to terminate this agreement immediately and without notice of failure being required.
o) The Partner will forecast in December all the products deliveries for the oncoming sport season. Supply will be scheduled on a three-delivery basis of, roughly, 1/3 of the total quantity for each delivery (January, April, July).
Article 5 – Confidentiality
Each party will consider all information provided by the other party, including technical and commercial exchanges, as confidential and undertakes to refrain from disclosing such information communicated in the course of its services to any third party whatsoever, in any manner whatsoever, and from using it for purposes other than those specified by the other party. Moreover, each party undertakes to refrain from assigning and/or transferring this information to third parties, whether free of charge or in return for payment, to refrain from copying, reproducing or duplicating this information in whole or in part, to take ail necessary steps to protect the strict confidentiality of this information and to ensure compliance with thèse provisions by ail its members of staff, any partners and, generally, any private individual or légal entity involved in achieving the purpose of this contract.
On the expiry of this contract, irrespective of the reason, each party will return all documents containing the other party’s confidential information supplied in the course of this contract and all copies thereof, except for its copy of the contract, to the other party, or will destroy same.
Article 6 – Intellectual Property Rights
The Partner acknowledges that the the Supplier’s name and logo, as well as the intellectual property rights connected with the products, are owned exclusively by the Supplier and/or its licensors. Nothing in this agreement may be construed as a transfer of any of these intellectual property rights to Partner. The Partner agrees not to remove or destroy any proprietary markings or logos placed upon or contained within the products.
Article 7 – Law and powe rof jurisdiction
This contract is subject to French law. Any dispute that the parties are unable to resolve by private agreement will be submitted to the competent courts in the jurisdiction of the Supplier’s head office.