Contrat Pechiney

8/14/2019 Contrat Pechiney

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Ref: 04-OLC-NAT-COC-1A - Rev. 1 A 1/19

SERVICES FOR SOURCING IN LOW COSTS COUNTRIES

CONDITIONS OF CONTRACT



This document is the property of Aluminium Pechiney.It is STRICTLY CONFIDENTIAL and may on no account be reproduced, copied or divulged without prior authorization.

1A 09/07/04 Update for RFQARCHENAULT N.

MARQUAIS V. DESMOULINS JP RIGAUT C

0A 26/06/04 Original draft version ARCHENAULT N. DESMOULINS JP. RIGAUT C..

Rev. Date Description By Checked Approved

ALUMINIUM PECHINEY 7, Place du Chancelier Adenauer - 75218 Paris Cedex 16 France - N 969 510 940 R.C.S. Paris


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TABLE OF CONTENTS

FORM OF CONTRACT......................................................................................................................... ...... ...... ...... ...4

CONDITIONS OF CONTRACT........................................................................................................... ...... ...... ...... .....6

ARTICLE 1 DEFINITIONS ........................................................................................................................ ...... ..6

ARTICLE 2 SCOPE OF SERVICES..................................................................................................... ...... ...... .72.1. additional instructions................................................................................................. ...... ...... ...... ....72.2. - General standard of performance............................................................................................. ...... ...72.3. - Cooperation.......................................................................................................................... ...... ...... .72.4. Specifications, designs and reports............................................................................. ...... ...... ...... ...7

ARTICLE 3 - PERIOD AND TIME SCHEDULE OF THE SERVICES.............................................................. .....8

ARTICLE 4 ORGANISATION AND PERSONNEL............................................................................ ...... ...... ....84.1 - Organisation.................................................................................................................... ...... ...... ...... .84.2 - Assignment of personnel............................................................................................. ...... ...... ...... .....84.3 - Conformity to laws............................................................................................................... ...... ...... ...9

ARTICLE 5 - VARIATIONS.............................................................................................................................. .....95.1 - Effect on Contract schedule ........................................................................................................... ....95.2 - Effect on Contract price................................................................................................... ...... ...... ...... .9

ARTICLE 6 CONTRACT AMENDMENTS.............................................................................................. ...... .....9

ARTICLE 7 REMUNERATION AND PAYMENT............................................................................... ...... ...... ...107.1 - Prices................................................................................................................................................ 107.2 - Payment................................................................................................................... ...... ...... ...... ......10

7.2.1.- Payment of Lot 1, Lot 2 and Lot 4..................................................................... ...... ....... ...... ...10 7.2.2.- Payment of Lot 3............................................................................................... ...... ...... ...... .....11

7.3 - Release........................................................................................................................................... ..117.4 - Records and audits............................................................................................................... ...... ......11

ARTICLE 8 LIABILITY.................................................................................................................................... .11

ARTICLE 9 INSURANCE............................................................................................................. ...... ...... ...... .13

ARTICLE 10 OWNERSHIP OF REPORTS, RECORDS AND EQUIPMENT................................................ ...1310.1 - Documents prepared by the Consultant.................................................................. ....... ...... ...... ....13

10.2 - Equipment, materials and documents supplied by the Client.........................................................13ARTICLE 11- TERMINATION................................................................................................................... ...... ....14

11.1 - Termination for default......................................................................................... ...... ...... ...... ...... ...1411.2 - Termination for convenience......................................................................................... ...... ...... ......1411.3 - Termination due to Force Majeure......................................................................... ....... ...... ...... ......14

ARTICLE 12 FORCE MAJEURE......................................................................................... ...... ...... ...... ...... ...1412.1 - Definition....................................................................................................................................... ..1412.2 - No breach of Contract.................................................................................................................... .1412.3 - Effect on Contract execution...................................................................................................... .....15

ARTICLE 13 CONFIDENTIALITY............................................................................................. ...... ...... ...... ....15

ARTICLE 14 INDUSTRIAL AND INTELLECTUAL PROPERTY............................................................... ......15

14.1 - Payment of royalties and other fees......................................................................... ....... ...... ...... ...1514.2 - Client right of use....................................................................................................................... .....1614.3 - Defence of claims........................................................................................................... ...... ...... ....1614.4 - Inventions owned by the Client.............................................................................................. ...... ...16



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FORM OF CONTRACT

This Contract is made the of 2004.

BETWEEN ALUMINIUM PECHINEY , a company created and existing under the laws of France , havingits registered office at 7, place du Chancelier Adenauer 75218 Paris Cedex 16 France, with a sharecapital of 34,414,720 Euro, registered with the Commercial and Corporate Registry of Paris under No. B969 510 940, hereafter referred to as the Client , and

AND XXX, a company created and existing under the laws of xxxx , having its registered office at xxx,hereafter referred to as the Consultant

hereafter together referred to as the Parties, and individually also referred to as a Party

WHEREAS

I. The Client, as many international companies, has identified in Low Cost Countries (LCC) thedevelopment of material, equipment and services supplies of acceptable quality and attractivepurchasing conditions. The Client is interested in investigating the potential LCC material,equipment and services suppliers and in assessing the possibility to export and use such

materials, equipment or services in ALCANs smelting projects all over the world.

II. For said investigation and assessment services (Services), the Client has decided to call on theservices of a company specialised in providing sourcing support services.

III. The Consultant, specialised in the business of industrial sourcing and procurement and havingunderstood the needs of the Client as defined above, is capable of performing the sourcing of equipment and materials in low costs countries.

And, whereas the Client has accepted a bid by the Consultant for the performance of the Services.

Now, therefore, the Parties hereto have agreed as follows:

1. In the Contract, words and expressions shall have the same meanings as are respectively assignedto them in the Conditions of Contract.

2. The documents forming the Contract are referred to as the Contract Documents and are as listedhereunder. In case of ambiguities or discrepancies between the Contract Documents, or for thepurpose of interpretation, the priority of documents shall be in accordance with the followingsequence:

I. The Form of ContractII. The Conditions of ContractIII. The Supplier General ServicesIV. The Schedule of Prices



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Any apparent generality in the Contract Documents, or any apparent omission therefrom of detaileddescription concerning any point, shall mean that the best industry practice shall be applied.

3. In consideration of the payments to be made by the Client to the Consultant as hereinafter mentioned, the Consultant hereby agrees with the Client to perform the services in conformity in allrespects with the provisions of the Contract.

4. The Client hereby agrees to pay the Consultant in consideration of the performance of the Servicessuch amounts as may become payable under the provisions of the Contract at the times and in themanner prescribed by the Contract.

In witness whereof the Parties hereto have caused this Contract to be executed the day and year firstabove written

For the Client

By:

Address: Alcan Primary Metal GroupAluminium PechineyCentrAlp - BP 738341 Voreppe Cedex, France

For the Consultant

By:[Signature]

Name and title

Address: ______________________________________ ______________________________________



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ARTICLE 1 DEFINITIONS

Except where the context otherwise requires, or where the contrary is specifically indicated, the followingterms whenever used in this Contract have the following meaning:

Client means the Party named in the Form of Contract, its legal successors andpermitted assignees.

Consultant means the firm or joint venture of firms supplying the Services under thisContract and named in the Form of Contract.

Contract means the agreement entered into between the Client and the Consultant,recorded in the Form of Contract signed by the Parties, including allattachments and appendices thereto and all documents incorporated byreference therein.

Contract Documents means the documents forming the Contract, as defined in the Form of Contract.

Lot means a portion of the Services. The Services are split in 4 Lots, as

defined in the Supplier General Services Document.Packages means the various sets of equipment and materials to be sourced in low

cost country.

Schedule of Prices means the list of the prices to be paid for the Services.

Project Director means the Consultants senior representative who will direct, superviseand coordinate all works carried out in connection with the Services by theConsultants personnel and have overall responsibility for the Services andshall liaise with the Client.

Purchase Order means the Clients order document that is issued in writing to theConsultant by the Client to confirm the purchase of the Services. Inaccordance with the Conditions of Contract and as the case may be, theremay be one purchase order for each Lot.

Services means the work to be performed by the Consultant pursuant to theContract, as described in the Supplier General Services Document.

Sourcing Plan means the programme established by the Consultant to specify theequipments, materials, countries, manpower, and reporting of the Services,as specified in the Supplier General Services Document.

Supplier General Services means the Contract document defining the scope of Services to beDocument provided by the Supplier under the Contract.



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The Consultant shall ensure that the specifications and designs and all documentation relating to theServices, and in particular the selection of suppliers are prepared on an impartial basis so as to promoteinternational competitive bidding.This documentation will be in conformity with the Clients requirements for procurement.

Reports and documents, which must be prepared by the Consultant, are specified in the ContractDocuments.The Consultant will assist the Client in supplying relevant information and preparing reports required byor for the Government.

ARTICLE 3 - PERIOD AND TIME SCHEDULE OF THE SERVICESThe Consultant shall commence and end the Services in the period specified in the Contract Documents.

The time for execution may be extended in case of changes in the scope of Services, in the conditionsmentioned in Article 5 hereunder.

ARTICLE 4 ORGANISATION AND PERSONNEL

4.1 - ORGANISATION

The Consultant shall establish a project organisation under the overall direct management andsupervision of a Project Director who will be assisted by a key personnel and will staff the organisationwith an adequate component of qualified and experienced personnel as required for the efficient andtimely execution of the Services.

4.2 - ASSIGNMENT OF PERSONNEL

The Consultant shall assign its personnel to the execution of the Services whose names and respectiveschedule are shown in the Contract Documents.

In case the Consultant shall have to substitute its personnel with other than those names specified in theContract Documents, the Consultant shall submit curriculum vitae of such personnel whose qualificationand experience is equal or better than the personnel to be substituted, to be received by the Client atleast thirty (30) days before their scheduled assignment. Substitution for such personnel shall not bemade without prior written approval of the Client.

All costs of replacement shall be borne by the Consultant.

The Client reserves the right to request the Consultant to replace any of its personnel whose work and/or activities in the Clients judgement are found unsatisfactory or for reasons of misconduct, misbehaviour or illness is/are considered incapable of working.

The Consultant shall take necessary action and comply with such request, and all costs incurred for suchreplacement shall be borne by the Consultant.

In the event that, contrary expectations, any of the assigned personnel has to be withdrawn from theServices, the Consultant shall substitute at its own cost suitable personnel of equivalent or better qualifications with prior written approval of the Client.



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4.3 - CONFORMITY TO LAWS

The Consultant shall ensure that its personnel will respect and abide by all applicable laws andregulations of the country where the Services are carried out, and political subdivisions thereof. TheConsultant shall obtain and/or maintain the working licenses and any other necessary permits for theConsultants personnel as required by regulations of the governments of such countries.

ARTICLE 5 - VARIATIONS

The Client may, at any time, without invalidating the Contract, furnish to the Consultant such additional

instructions to supplement the Contract Documents as may be necessary to specify the Services to becarried out, and/or make changes of the scope or duration of Contract. Such additional instructions or changes may be in the form of revisions to the Contract Documents and drawings or further technicalspecifications and drawings, and shall be authorised by a change order.

Upon receipt of a change order, the Contract shall be deemed to be amended to incorporate the change.

The Consultant shall not make any change without a change order.Should the Consultant have a problem, which prevents the Consultant from complying with the SourcingPlan, the Consultant shall be authorised to submit to the Client a request for a modification of theSourcing Plan, which modification may consist in additional hours or reorganisation of the Services.The Consultant shall not implement the changes without the Clients prior approval.

Within ten (10) days after receipt of a change order, the Consultant shall submit any claim for adjustmentto the Contract schedule or the Contract price, which it considers justified. Said claim and other adjustments shall be treated as follows.

5.1 - EFFECT ON CONTRACT SCHEDULE

If a change in the Contract schedule is justified, an equitable adjustment in the time for completion of theaffected portion of the Services will be made by the Client and the Contract schedule shall be revised toreflect such adjustment.

5.2 - EFFECT ON CONTRACT PRICE

In the case of a change an equitable adjustment to the Contract price shall be agreed if, the change willcause an increase or decrease in the cost to the Consultant of performing the Services in comparisonwith what the Consultants cost would have been had no change been made.

Any adjustment, whether an increase or decrease in the Contract price shall be calculated as follows:

to the extent set forth in the Schedule of Prices, applicable lump sums or unit prices shall apply; to the extent any such lump sums or unit prices are not applicable, adjustment shall be made on the

basis of a lump sum or on the basis of unit prices as agreed upon between the Parties.

ARTICLE 6 CONTRACT AMENDMENTS



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Except as otherwise provided for in the Contract, and subject to Article 5 above, no variation or modification of the terms of the Contract shall be made except by written amendment signed by theParties.

ARTICLE 7 REMUNERATION AND PAYMENT

7.1 - PRICES

Payments shall be made in Euro.

The prices shall be deemed to be inclusive of any and all taxes and duties related to the Contract.

The Contract prices of the Services stated in the Schedule of Prices shall be fixed and firm for theContract duration.

7.2 - PAYMENT

The Consultants request for payment shall be made to the Client in writing, accompanied (i) by aninvoice indicating the order reference and describing the Services performed, (ii) by documentssubmitted pursuant to the Supplier General Services, and (iii) upon fulfilment of other obligations as maybe stipulated in the Contract.

Payments shall be subject to prior approval by the Client of any such invoice and documents and to theexecution by the Consultant of any and all works included in or necessary to the performance of theServices, to the satisfaction of the Client. Such approval may be denied if the Services for whichpayment is requested are considered by the Client as incomplete or not satisfactory. In this case, theClient shall be entitled to withdraw corresponding payment until full and satisfactory completion of saidServices.

Approval of said invoices and accompanying documents is given only to allow payments to be releasedto the Consultant. It shall not be relied on as conclusive evidence of any matter stated therein nor affector prejudice any right of the Client towards the Consultant.

The Client may, in any payment, give effect to any correction or modification that should properly bemade in respect of any previous invoice or payment, or deduct any amount otherwise due by theConsultant to the Client under the Contract.

In consideration of the Services performed by the Consultant under the Contract, the Client shall pay theConsultant in the manner mentioned hereunder:

7.2.1.- Payment of Lot 1, Lot 2 and Lot 4

The payment of the Services included in Lot 1, Lot 2 and Lot 4 shall be made 100% if and when alldocuments to be provided by the Consultant under the relevant Lot as specified in the Supplier GeneralServices have been validated by the Client.

The Consultants invoice shall be paid within thirty (30) days following the end of month of invoicing.



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7.2.2.- Payment of Lot 3The payment of the Services included in Lot 3 shall be made each month:

100% of the Services performed during the month upon validation by the Client of the Consultantsmonthly report.

The Consultants invoice shall be paid within thirty (30) days following the end of month of invoicing.

The cost of any service not included in the Sourcing Plan and not authorised by the Client as specified inArticle 5 shall be borne by the Consultant.

7.3 - RELEASEAcceptance by the Consultant of the final payment under the Contract shall operate as and shall be arelease of the Client from any and all claims of or liability to the Consultant for anything done or furnishedfor, or in relation to the Services or for any act, omission or negligence of the Client relating to or affecting the Services.

7.4 - RECORDS AND AUDITS

The Consultant certifies that the representations made to the Client at the time of negotiation of thisContract as to actual rates, charges and benefits paid or incurred by the Consultant are true and correct,and the Consultant acknowledges that the Client relies on this certification.

The Consultant shall keep accurate and systematic records and accounts in respect of the Services insuch form and detail as shall be sufficient to establish that the cost and expenditure referred to in theSchedule of Prices have been duly incurred.

The Consultant shall permit, or obtain permission for the Client to inspect and audit from time to timesuch records and accounts and make copies thereof.

In the event that such inspection or audit by the Client reveals that (i) there has been amisrepresentation by the Consultant at the time of negotiation of this Contract as to the rates, chargesand benefits paid or incurred by the Consultant, or (ii) the cost of expenditures referred to in theSchedule of Prices had not been duly incurred, and as a result the Client has made payments in excess

of payments which would otherwise have been made, then the Consultant shall reimburse the Clientpromptly for any such overpayment.

ARTICLE 8 LIABILITY

The Consultant shall keep the Client, both during and after the term of the Contract, fully and effectivelyindemnified, and shall protect and defend at its own expenses the Client from and against all losses,damage, injuries, deaths, expenses, actions, proceedings, costs, claims and liabilities, including, but notlimited to, legal fees and expenses suffered by the Client where such loss, damage, injury or death is aresult of a wrongful action, negligence or breach of Contract by the Consultant, including without limitingthe use and violation of any industrial or intellectual right.

In case of failure of the Consultant to meet any obligation under the Contract, such as, but not limited to,lack in performance, incomplete performance, delay of submission of reports or documents, failure toreport delays promptly, the Client may withhold all related payments due to the Consultant until all



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imitation of a patent, design, drawing, trademark, the Consultant will immediately inform the Clientthereof.

ARTICLE 15 ASSIGNMENT AND SUBCONTRACTING

Except with the prior written approval of the Client, the Consultant shall not assign or transfer thisContract or any part thereof nor engage any subconsultant to perform any part of the Services.

This Contract being concluded intuitu personae, the Consultant hereby undertakes to immediately advisethe Client of any event likely to result in a change of majority control in its company.

The approval by the Client of the assignment of any part of this Contract or to the engagement or subcontracting by the Consultant of any subconsultant or other experts to perform any part of theServices shall not relieve the Consultant of any of its responsibility and obligations under this Contract.

ARTICLE 16 APPLICABLE LAW

This Contract shall be interpreted and governed by the laws of France.

ARTICLE 17 SETTLEMENT OF DISPUTES

If any dispute or difference of any kind whatsoever shall arise between the Parties in connection with or arising out of the Contract, they shall make every effort to resolve amicably such dispute or difference bymutual consultation.

If, after thirty (30) days, the Parties have failed to resolve their dispute or difference by such mutualconsultation, then either Party may give notice to the other Party of its intention to commence arbitration,as hereinafter provided.

Any dispute or difference in respect of which a notice of intention to commence arbitration has beengiven in accordance with this Article 17 shall be finally settled under the rules of conciliation andarbitration of the International Chamber of Commerce by an arbitrator appointed in accordance with thesaid rules. The arbitration shall take place in Paris France. The arbitration procedures shall beconducted in the English language.

Notwithstanding any reference to arbitration herein, the Consultant shall continue to perform theServices.

ARTICLE 18 SEVERABILITY

Should any provision of this Contract become invalid or unenforceable, it shall be considered severedfrom this Contract, and shall not affect the validity of the remainder of the Contract.

ARTICLE 19 EFFECTIVENESS

The Contract is effective from its signature, and the Consultant shall commence the Services related toLot 1 upon issue by the Client of the Purchase Order for Lot 1.Each Lot will be confirmed by a Purchase Order.At the end of each Lot, should the Client not issue the Purchase Order for the following Lot within ninety(90) days after the last payment of the previous Lot, the Contract shall be deemed terminated unlessotherwise agreed by the Parties.



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The Supplier shall not be entitled to any compensation for said termination.



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ARTICLE 20 - NOTICES REQUESTS AND COMMUNICATIONS

Any notice, request or communication to be given or made under this Contract shall be in writing in theEnglish language, addressed to the persons designated hereunder:

For the Client: For the Consultant:Alcan Primary Metal GroupAluminium PechineyCentrAlp - BP 738341 Voreppe Cedex, France

To the attention of Mr. Nicolas Archenault.

ARTICLE 21 MISCELLANEOUS

The Consultant shall in no case, without the prior written approval of the Client, mention the Clientsname as reference in any information or material to any third party such as, but not limited to, customers,prospects, consultants, press or media organisation.

This document is the property of Aluminium Pechiney.