Exhibit 10.23
TECHNICAL SERVICES AGREEMENT
between
NOVELIS DO BRASIL LTDA.
and
ALCAN INTERNATIONAL LIMITED
WITH RESPECT TO THE TECHNICAL SERVICES TO THE
ARATU, PETROCOQUE AND OURO PRETO FACILITIES
LOCATED IN BRAZIL, SOUTH AMERICA
DATED O, 2004
WITH EFFECT AS OF THE EFFECTIVE DATE
TABLE OF CONTENTS
1. DEFINITIONS..............................................................................................2
2. SCOPE OF AGREEMENT.......................................................................................5
3. TECHNOLOGY...............................................................................................6
4. TECHNICAL ASSISTANCE LIMITATIONS.........................................................................6
5. OWNERSHIP AND RIGHT TO USE...............................................................................7
6. CONSIDERATION............................................................................................7
7. PROTECTION OF INFORMATION...............................................................................10
8. TERM AND TERMINATION....................................................................................11
9. SURVIVAL OF OBLIGATIONS.................................................................................12
10. REPRESENTATIONS AND WARRANTIES..........................................................................12
11. DISCLAIMER OF WARRANTY AND INDEMNITY....................................................................13
12. TRADEMARK, TRADE NAME AND LOGO..........................................................................13
13. NON-WAIVER..............................................................................................13
14. NO PARTNERSHIP, JOINT VENTURE...........................................................................13
15. FURTHER ASSURANCES......................................................................................13
16. NOTICES.................................................................................................14
17. ASSIGNMENT..............................................................................................14
18. LIMITATION OF LIABILITY AND INDEMNIFICATION.............................................................14
19. ENTIRE AGREEMENT........................................................................................16
20. CONFLICTS...............................................................................................16
21. DISPUTE RESOLUTION......................................................................................16
22. FORCE MAJEURE...........................................................................................16
23. CONSTRUCTION............................................................................................17
24. LANGUAGE................................................................................................17
25. AMENDMENTS..............................................................................................17
26. GOVERNING LAW...........................................................................................17
27. SEVERABILITY............................................................................................17
28. EXECUTION IN COUNTERPARTS...............................................................................18
SCHEDULE 2.1.....................................................................................................
TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT is dated December o, 2004, with effect as of the Effective Date.
BETWEEN: NOVELIS DO BRASIL LTDA., a Brazilian limited liability company
incorporated under the laws of Brazil ("NOVELIS BRASIL");
AND: ALCAN INTERNATIONAL LIMITED., a company organized and existing under
the laws of Canada ("ALCANINT").
RECITALS:
WHEREAS Alcan Inc. and Novelis Inc. have entered into a Separation Agreement
pursuant to which the Parties (as defined hereinafter) set out the terms and
conditions relating to the separation of the Separated Businesses from the
Remaining Alcan Businesses (each as defined therein) such that the Separated
Businesses are to be held, as at the Effective Time (as defined therein),
directly or indirectly, by Novelis Inc. (such agreement, as amended, restated or
modified from time to time, the "SEPARATION AGREEMENT").
WHEREAS Alcanint develops, owns and manages certain technology on behalf of and
for the benefit of Alcan Inc. and other members of Alcan Group (as defined
below).
WHEREAS in connection with the Separation Agreement, Novelis Inc. and Alcan Inc.
desire that Alcanint, a member of Alcan Group, provide Novelis Brasil, a member
of Novelis Group (as defined below), with certain technical assistance following
the Effective Time, and that Novelis Brasil provide Alcanint with certain
services following the Effective Time, subject to the terms and conditions of
this Agreement.
WHEREAS Alcanint is willing and in a position to provide Novelis Brasil with
such technical assistance, and Novelis Brasil is willing and in a position to
provide Alcanint with such services, subject to the terms and conditions of this
Agreement.
WHEREAS the Parties have entered into this Agreement in order to set forth such
terms and conditions.
NOW THEREFORE, for and in consideration of the agreements set forth below,
Novelis Brasil and Alcanint agree as follows:
1. DEFINITIONS
For the purposes of this Agreement, the following words and expressions
and variations thereof, unless another meaning is clearly required in
the context, shall have the meanings specified or referred to in this
Article 1:
"ADDITIONAL PART I SERVICES" has the meaning set forth in Section 6.2.
"ADDITIONAL PART II SERVICES" has the meaning set forth in Section 6.2.
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"ADDITIONAL PART I SERVICES FEE" has the meaning set forth in Section
6.2.
"ADDITIONAL PART II SERVICES FEE" has the meaning set forth in Section
6.2.
"AFFILIATE" of any Person means any other Person that, directly or
indirectly, controls, is controlled by, or is under common control with
such first Person as of the date on which or at any time during the
period for when such determination is being made. For purposes of this
definition, "CONTROL" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities or other interests, by contract or otherwise and the terms
"CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"AGREEMENT" means this Technical Services Agreement, including all of
the Schedules and Exhibits hereto.
"ALCAN GROUP" means Alcan Inc. and its Subsidiaries from time to time
after the Effective Time.
"APPLICABLE LAW" means any applicable law, statute, rule or regulation
of any Governmental Authority or any outstanding order, judgment,
injunction, ruling or decree by any Governmental Authority.
"ALCANINT" means Alcan International Limited.
"ALCANINT INDEMNIFIED PARTIES" has the meaning set forth in Section
18.2.
"ALCANINT TECHNICAL ASSISTANCE SERVICES" has the meaning set forth in
Section 2.1.
"BUSINESS CONCERN" means any corporation, company, limited liability
company, partnership, joint venture, trust, unincorporated association
or any other form of association.
"BUSINESS DAY" means any day excluding (i) Saturday, Sunday and any
other day which, in the City of Montreal (Canada), in the City of New
York (United States) or in the City of Sao Paulo, Brazil, is a legal
holiday or (ii) a day on which banks are authorized by Applicable Law
to close in the City of Montreal (Canada), in the City of New York
(United States) or in the City of Sao Paulo, Brazil.
"CONSENT" means any approval, consent, ratification, waiver or other
authorization.
"DOLLARS" or "$" means the lawful currency of the United States of
America.
"EFFECTIVE DATE" means the date shown on the certificate of arrangement
issued by the Director under the Canada Business Corporations Act
giving effect to the Arrangement as defined in the Separation
Agreement.
"EFFECTIVE TIME" means 12:01 a.m. Montreal time on the Effective Date.
"FACILITIES" means the South American facilities located in Aratu,
Petrocoque and Ouro Preto, in Brazil, South America.
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"FORCE MAJEURE EVENT" has the meaning set forth in Article 22.
"GOVERNMENTAL AUTHORITY" means any court, arbitration panel,
governmental or regulatory authority, agency, stock exchange,
commission or body.
"GOVERNMENTAL AUTHORIZATION" means any Consent, license, certificate,
franchise, registration or permit issued, granted, given or otherwise
made available by, or under the authority of, any Governmental
Authority or pursuant to any Applicable Law.
"GROUP" means Alcan Group or Novelis Group, as the context requires.
"INFORMATION" means, without being limitative, all Results and all
data, documents and information relating to the Technology as well as
to any Alcanint Technical Assistance Service, improvement, know how,
engineering, manufacturing and other techniques and procedures,
including systems, plans, methods, processes and techniques of
inspection, quality control and tests, made available to Alcanint or
Novelis Brasil under this Agreement.
"LAB YEAR" means the services equating to one qualified technical
person for one year spread reasonably evenly throughout the time period
during which the Alcanint Technical Assistance Services are to be
provided.
"LIABILITIES" has the meaning ascribed thereto in the Separation
Agreement.
"LICENSE AGREEMENT" means the agreement entitled "IP Agreement between
Alcan International Limited and Novelis Inc.", as amended, restated or
modified from time to time, and constituting an Ancillary Agreement to
the Separation Agreement.
"NOVELIS GROUP" means Novelis Inc. and its Subsidiaries from time to
time after the Effective Time.
"NOVELIS INDEMNIFIED PARTIES" has the meaning set forth in Section
18.2.
"NOVELIS BRASIL" means Novelis Do Brasil Ltda.
"PART I SERVICES" has the meaning set forth in Section 6.1.
"PART II SERVICES" has the meaning set forth in Section 6.1.
"PART I SERVICES BASIC FEE" has the meaning set forth in Section 6.1.
"PART II SERVICES BASIC FEE" has the meaning set forth in Section 6.1.
"PARTY" means each of Alcanint and Novelis Brasil as a party to this
Agreement and "PARTIES" means both of them.
"PERSON" means any individual, Business Concern or Governmental
Authority.
"REIMBURSABLE COSTS" has the meaning set forth in Section 6.3.
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"RESULTS" means data, reports and conclusions produced in the course of
providing the Alcanint Technical Assistance Services.
"SALES TAXES" means any fee, tax or commission of whatever nature,
including any withholding, registration fee, remittance fee, notarial
fee, stamp tax, duty or charge imposed by a Governmental Authority
pursuant to Applicable Law.
"SEPARATION AGREEMENT" has the meaning set out in the Preamble to this
Agreement.
"SERVICES" means the services provided by either Party to the other
under this Agreement.
"SUBSIDIARY" of any Person means any corporation, partnership, limited
liability entity, joint venture or other organization, whether
incorporated or unincorporated, of which of a majority of the total
voting power of capital stock or other interests entitled (without the
occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person.
"TECHNOLOGY" means any and all patents, patent applications, trade
secrets, inventions, designs and similar rights either conceived or
first reduced to practice in the course of providing the Alcanint
Technical Assistance Services hereunder, but excludes any and all
Results.
"TERM" has the meaning set forth in Section 8.1.
"THIRD PARTY" means a Person that is not a Party to this Agreement,
other than a member of Alcan Group or a member of Novelis Group and
that is not an Affiliate of any such Group.
"THIRD PARTY CLAIM" has the meaning set forth in the Separation
Agreement.
2. SCOPE OF AGREEMENT
Alcanint will provide technical assistance services and, as the case
may be, other services to Novelis Brasil. The Parties shall mutually
agree on the scope, timing and content of the services to be provided
in each area identified to the extent not expressly provided herein.
Such services are divided into the following main categories:
2.1 TECHNICAL ASSISTANCE SERVICES BY ALCANINT
The technical assistance services to be provided by Alcanint or other
members of Alcan Group to Novelis Brasil during the Term of this
Agreement (the "ALCANINT TECHNICAL ASSISTANCE SERVICES"), taking into
account Alcanint's resources, will consist of such services as the
Parties mutually agree from time to time during the Term of this
Agreement.
The Parties currently anticipate that the Alcanint Technical Assistance
Services to be rendered by Alcanint to Novelis Brasil during the Term
of this Agreement are those services described in Part I and Part II of
SCHEDULE 2.1.
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3. TECHNOLOGY
3.1 INFORMATION EXCHANGE
In connection with the planning, managing, providing and
communicating the results of the Alcanint Technical Assistance
Services, Alcanint and Novelis Brasil shall communicate and
meet periodically as mutually agreed. The topics to be
discussed shall be agreed before each meeting and recorded on
an agenda. Actual discussion topics shall be recorded in
minutes of the meeting. A written record of other
communications shall also be retained.
3.2 REPORTING OF RESULTS
All Results generated in the course of providing the Alcanint
Technical Assistance Services shall be promptly reported to
Novelis Brasil. These reports may be oral or written as
specified by Novelis Brasil. The preparation of such reports
shall be considered part of the provision of the Alcanint
Technical Assistance Services.
4. TECHNICAL ASSISTANCE LIMITATIONS
4.1 Nothing herein limits in any way the rights and benefits
granted to Alcanint and Novelis Brasil in the License
Agreement.
4.2 Subject to Section 4.1 but notwithstanding anything contained
elsewhere in this Agreement, Alcanint and Novelis Brasil shall
be under no obligation to:
4.2.1 provide any Information, the disclosure of which is
restricted due to contractual obligations; or
4.2.2 provide Information the transmission of which is
prohibited by Applicable Law, protocol or directive
of the Governmental Authority of the country from
which it is to be provided.
4.3 The Parties agreement to have Alcanint provide to Novelis
Brasil the Alcanint Technical Assistance Services described in
Section 2.1 is conditional upon the continued availability of
the personnel identified for the provision of such Alcanint
Technical Assistance Services. In the event that one or more
individuals who was identified for performance of any portion
of the Alcanint Technical Assistance Services becomes
unavailable to continue to provide the Alcanint Technical
Assistance Services, the Parties shall meet and discuss
appropriate actions and each Party shall have the option to
modify the description of the Alcanint Technical Assistance
Services and the corresponding obligation to pay for such
services and to delete any portion of the Alcanint Technical
Assistance Services expected to have been performed by such
person but not actually performed by such person.
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5. OWNERSHIP AND RIGHT TO USE
5.1 Novelis Brasil shall receive and own all Results generated in
the course of performing the Alcanint Technical Assistance
Services, including any copyright therein.
5.2 This Agreement does not restrict Novelis Brasil or Alcanint
from obtaining technology from other sources as long as
Information acquired from the other Party is not disclosed.
5.3 Any equipment and supplies purchased pursuant to the
Reimbursable Cost mechanism described in Section 6.3 and not
actually consumed at the termination of this Agreement shall
be the property of the Party that funded their purchase. The
Parties shall cooperate in the packaging, shipment or other
disposal of such equipment and supplies, provided, however,
that all related costs shall be for the account of the Party
that owns the equipment or supplies.
6. CONSIDERATION
In consideration for the Alcanint Technical Assistance Services
rendered by Alcanint under this Agreement, Novelis Brasil shall pay to
Alcanint the following fees:
6.1 BASIC FEE PAYABLE BY NOVELIS BRASIL
Novelis Brasil shall pay to Alcanint during the Term of this
Agreement, the following amounts:
6.1.1 for the provisions of such Services which are
described in Part I of SCHEDULE 2.1 (the "PART I
Services") an annual fee of *** (the "PART I
SERVICES BASIC FEE"); and
6.1.2 for the provisions of such Services which are
described in Part II of SCHEDULE 2.1 (the "PART II
SERVICES") an annual fee of *** (the "PART
II SERVICES BASIC FEE").
6.2 ADDITIONAL SERVICES AND ADDITIONAL FEES
In the event the charges for the Part I Services actually
provided by Alcanint to Novelis Brasil during any calendar
year of the Term of this Agreement exceed the charge for the
Part I Services included in the Part I Services Basic Fee on a
cumulative basis for such calendar year (the "ADDITIONAL PART
I SERVICES"), then Novelis Brasil shall pay Alcanint for such
Additional Part I Services at the rate of *** per
person per day (the "ADDITIONAL PART I SERVICES FEE").
Additionally, in the event the charges for the Part II
Services actually provided by Alcanint to Novelis Brasil
during any calendar year of the Term of this Agreement exceed
the charge for the Part II Services included in the Part II
Services Basic Fee on a cumulative basis for such calendar
year (the "ADDITIONAL PART II SERVICES"), then Novelis Brasil
shall pay for such Additional Part II
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Services at the rate of *** per person per day (the
"ADDITIONAL PART II SERVICES FEE").
The Parties shall attempt to manage (i) the level of the Part
I Services to correspond to the Part I Services Basic Fee for
such Services and (ii) the level of the Part II Services to
correspond to the Part II Services Basic Fee for such
Services.
No refund shall be payable or due to Novelis Brasil in the
event Novelis Brasil does not request (i) Part I Services at
least equal to the Part I Services included in the Part I
Services Basic Fee, or (ii) Part II Services at least equal to
the Part II Services included in the Part II Services Basic
Fee.
A mutually agreeable reduction in the Part I Services Basic
Fee will be made in the event Alcanint does not perform Part I
Services, as the case may be, in accordance with the levels of
services agreed upon by the Parties with respect to the Part I
Services and a mutually agreeable reduction in the Part II
Services Basic Fee will be made in the event Alcanint does not
perform Part II Services, as the case may be, in accordance
with the levels of services agreed upon by the Parties with
respect to the Part II Services.
6.3 REIMBURSABLE COSTS
With respect to all the Services rendered to Novelis Brasil
inside or outside of Brazil, metal and equipment acquisition
costs, special project costs and travel related expenses
reasonably incurred, such as air tickets, cost of car hires
and other travelling expenses, transportation of personnel
baggage, accommodation, meals including beverages, sundry
items, laundry services, etc., are not included in the Part I
Services Basic Fee, the Part II Services Basic Fee or the
daily rates set forth in Section 6.2 and they shall be
reimbursed at cost (the "REIMBURSABLE COSTS"). All travel
related expenses shall be incurred and reimbursed in
accordance with Alcanint's travel policy.
6.4 PAYMENT TERMS
Payments shall be made as follows:
6.4.1 Part I Services Basic Fee and Part II Services Basic
Fee
Alcanint will invoice Novelis Brasil for: (i) one
quarter (1/4) of the annual Part I Services Basic Fee
and (ii) one quarter (1/4) of the annual Part II
Services Basic Fee, at the beginning of each quarter
during the Term of this Agreement, with the payment
due within sixty (60) days from the date of the
invoice, provided the Brazilian Central Bank's
approval for the remittance to Alcanint of the sums
payable hereunder by Novelis Brasil to Alcanint has
been previously obtained by Novelis Brasil, provided
that if such approval is not obtained within the said
sixty-day period, then the payment shall be made by
Novelis
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the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Brasil to Alcanint as soon as said approval from the
Brazilian Central Bank is obtained by Novelis Brasil.
6.4.2 Additional Fees
Alcanint will invoice the Additional Part I Services
Fees and the Additional Part II Services Fees accrued
per Section 6.2 to Novelis Brasil at the end of each
quarter, if applicable, during the Term of this
Agreement, with the payment due within sixty (60)
days from the date of the invoice, provided the
Brazilian Central Bank's approval for the remittance
to Alcanint of the sums payable hereunder by Novelis
Brasil to Alcanint has been previously obtained by
Novelis Brasil, provided that if such approval is not
obtained within the said sixty-day period, then the
payment shall be made by Novelis Brasil to Alcanint
as soon as said approval from the Brazilian Central
Bank is obtained by Novelis Brasil.
6.4.3 Reimbursable Costs
Alcanint will include in the invoices referred to in
subsections 6.4.1 and 6.4.2 any applicable
Reimbursable Cost. All invoices will be against a
purchase order and will be supported, as applicable,
by reasonably detailed reports and documentation
about time spent and expenses incurred.
6.4.4 Taxes and Charges
All amounts payable hereunder shall be made in full
and net of all Sales Taxes. Each Party shall pay all
Sales Taxes applicable to Services performed for the
benefit of such Party or to such Party's payments
under this Agreement, and shall remit the amount of
such Sales Taxes to the prescribed Person as required
by Applicable Law. All invoices shall separately
identify Sales Taxes payable in respect of the
Services.
6.4.5 Payment Address
All amounts due under this Agreement shall be paid to
Alcanint by electronic transfer to Alcanint's account
number specified by Alcanint to Novelis Brasil, with
a confirmation of such transfer sent to the corporate
Secretary of Alcanint at the address provided in
Article 16 or in such manner as Alcanint may from
time to time notify to Novelis Brasil.
6.5 SET-OFF
Unless otherwise agreed, neither Party shall be entitled to
set-off against any amounts due to the other under this
Agreement any amounts due to it from such other Party under
this Agreement. Notwithstanding any set-off, any amount in
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respect of Sales Taxes required to be remitted by one Party to
the other Party pursuant to this Agreement shall be remitted
in full as if no set-off had occurred.
7. PROTECTION OF INFORMATION
7.1 Each of Alcanint and Novelis Brasil hereby agree that the
Information produced or developed for the other Party at any
time is confidential information of the Party that requested
that the Services be performed and shall not be disclosed to
any Third Party except as may be expressly provided for herein
and that the Party that generated the Information shall have
only such rights in the Information as expressly provided
herein.
7.2 The obligations of confidentiality and non-disclosure shall
not apply to Information to the extent that said Information:
7.2.1 is in the public domain through no fault of the other
Party, or lawfully is or becomes public knowledge
through no breach of this Agreement; or
7.2.2 was received from any Third Party on a
non-confidential basis,
7.2.3 was disclosed pursuant to legal process, governmental
request, or regulatory requirement.
7.3 Specific information shall not be deemed to be within the
exceptions of Section 7.2 merely because such specific
information may be construed as being within broader,
non-confidential information which is either in the public
domain or in the possession of the receiving party on the
Effective Date, nor shall a combination of features which form
confidential information be deemed to be non-confidential
information merely because the individual features, without
being combined, are non-confidential.
7.4 The Party that performed the Services shall not use the
Information produced hereunder for any other purpose other
than that specified in this Agreement without first obtaining
written consent from the other Party.
7.5 Each Party may disclose the Information it produces hereunder
for the other Party to its own officers, employees,
contractors, suppliers, customers, representatives and others
to the extent necessary for the provision of Services under
this Agreement. Each Party shall take reasonable precautions,
consistent with past practices to preserve the value of the
Information. Each Party shall advise the appropriate officers,
employees, contractors, suppliers, customers, representatives
and others to whom such Information is supplied of the
confidentiality obligation hereunder, and shall ensure that,
where appropriate, they have agreed to comply with the
provisions of this Article 7.
7.6 The obligations of confidentiality with respect to specific
Information received under this Agreement or otherwise shall
expire on the tenth (10th) anniversary date of the Effective
Date.
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7.7 The Parties recognize that a breach of this Article 7 may give
rise to irreparable injury that cannot be adequately
compensated by monetary damages. Accordingly, in the event of
a breach or threatened breach, the other Party may be entitled
to preliminary and permanent injunctive relief to prevent or
enjoin a violation of this Article 7 and the unauthorized use
or disclosure of any confidential Information in addition to
such other remedies as may be available for such breach or
threatened breach, including the recovery of damages.
7.8 No provision of this Agreement shall be construed to require
either Party to furnish any information (i) acquired from
others on terms prohibiting or restricting disclosure, or (ii)
the furnishing of which is in contravention of any Applicable
Law or Governmental Authorization. Each Party shall use its
commercially reasonable efforts to avoid conditions that
prevent the exchange of information under this Agreement.
8. TERM AND TERMINATION
8.1 The term of this Agreement (the "TERM") shall be from the
Effective Date until the date which is the *** year
anniversary thereof, unless terminated earlier pursuant to the
provisions of this Agreement or except as expressly otherwise
provided in this Agreement.
8.2 Should there be a default in the performance of any material
obligation of the other Party under this Agreement (or under
the Separation Agreement) and such default is not cured within
thirty (30) days following written notification of such
default from the aggrieved Party, the aggrieved Party's
obligations and this Agreement shall terminate on the date
specified on such notice which shall not be less than thirty
(30) days following the date of such notice unless the default
is cured before such specified termination date. Early
termination shall not prejudice either Party's right to
recover any amounts due at the time of such termination nor
shall it prejudice any other remedy or cause of action or
claim accrued or to accrue jointly or severally on account of
any such default.
8.3 This Agreement may be terminated by either Party by giving
written notice to the other Party should any of the following
events of default occur:
(a) the bankruptcy or insolvency of the other Party;
(b) the appointment of a receiver for the other Party's
assets;
(c) the making by the other Party of a general assignment
for the benefit of creditors;
(d) the institution by the other Party of proceedings for
a reorganization under the Bankruptcy and Insolvency
Act or similar legislation for the relief of debtors
or the institution of involuntary proceedings against
a Party which are not terminated in thirty (30) days;
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(e) in the case of Novelis Brasil, Novelis Inc., or in
the case of Alcanint, Alcan Inc., breaches any
representation or warranty, or fails to perform or
comply with any covenant, provision, undertaking or
obligation in or of the Separation Agreement.
8.4 In addition, this Agreement shall terminate (1) upon the
occurrence of a Non Compete Breach (as defined in the
Separation Agreement) and the giving of notice of the
termination of this Agreement by Alcan Inc. to Novelis Inc.
pursuant to Section 14.03(b) of the Separation Agreement, or
(2) upon the occurrence of a Change of Control Non Compete
Breach (as defined in the Separation Agreement) and the giving
of notice of the termination of this Agreement by Alcan Inc.
to Novelis Inc. pursuant to Section 14.04(e) of the Separation
Agreement, in which event the termination of this Agreement
shall be effective immediately upon Alcan Inc. providing
Novelis Inc. notice pursuant to Section 14.03(b) or Section
14.04(e) of the Separation Agreement.
8.5 Subject to the provisions of Section 8.4, termination will
take effect thirty (30) days after receipt of the notice
without any further notice being given, unless the event of
default is rectified or diligent efforts to rectify the event
of default commence within the 30-day period.
8.6 Such right of termination shall not be exclusive of any other
remedies or means of redress to which a Party may be entitled
under Applicable Law.
9. SURVIVAL OF OBLIGATIONS
Except as otherwise provided in this Agreement and unless otherwise
agreed in writing by the Parties, the rights and obligations of the
Parties under Articles 6, 7, 9, 10, 11, 14, 16, 18, 21 and 26 shall
survive the expiration or earlier termination of this Agreement.
10. REPRESENTATIONS AND WARRANTIES
10.1 Each Party represents that it has full power and authority to
enter into this Agreement and to perform all its obligations
hereunder.
10.2 No representation or warranty of any nature or kind is given
by either Party (whether express, implied, statutory,
contractual or other in nature and whether relating to the
enforceability, merchantability, fitness for purpose,
non-infringement, absence of rights of Third Parties or other)
in respect of the Technology or other rights to be licensed or
transferred by it pursuant to the terms of this Agreement.
10.3 Nothing in this Agreement shall be construed as a warranty or
representation that the Services will produce any specific
result or Technology or that any product made, used, sold or
otherwise disposed with the benefit of any rights or license
granted pursuant to this Agreement is or will be free from
infringement of patents of Third Parties.
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11. DISCLAIMER OF WARRANTY AND INDEMNITY
Except to the limited extent provided in Article 10, Alcanint expressly
disclaims all and any liability or responsibility whatsoever for any
Liability arising out of the use of the Technology or the provision of
any Service. ALCANINT AND NOVELIS BRASIL DO NOT WARRANT THAT THE
TRANSFERRED TECHNOLOGY, LICENSED TECHNOLOGY OR SERVICES PROVIDED BY
ALCANINT OR NOVELIS BRASIL, OR THAT ANY PRODUCT, IS OR WILL BE OF
MERCHANTABLE QUALITY OR FIT FOR ANY PARTICULAR PURPOSE FOR WHICH IT MAY
BE BOUGHT OR USED. Alcanint and Novelis Brasil shall in no event be
liable to the other, or any other Person, for any damage, injury or
loss, including loss of use arising from any activities or obligations
under this Agreement, or for any direct or indirect, incidental or
consequential damages.
12. TRADEMARK, TRADE NAME AND LOGO
No right is conveyed by either Party to the other under this Agreement
for the use, either directly, indirectly, by implication or otherwise,
of any trademark, trade name or logo owned by Novelis Brasil or
Alcanint or their respective Affiliates. The Parties will enter into a
separate trademark license agreement if appropriate.
13. NON-WAIVER
The failure of any Party to insist in any one or more instances upon
the strict performance of any one or more of the obligations of this
Agreement or to exercise any election herein contained, shall not be
construed as a waiver for the future of the performance of such one or
more obligations of this Agreement or of the right to exercise such
election. No waiver of any breach or default of this Agreement shall be
held to be a waiver for any subsequent breach.
14. NO PARTNERSHIP, JOINT VENTURE
The Parties to this Agreement agree and acknowledge that the Agreement
does not create a partnership, joint venture or any other relationship
between Alcanint and Novelis Brasil save the relationship specifically
set out herein and solely for the limited purposes herein.
15. FURTHER ASSURANCES
The Parties to this Agreement shall sign or cause their respective
employees to execute any documents necessary to file any desired
registrations and applications to protect any Technology originating in
the course of the Services and receive any patents, copyrights, design
rights, mask works or other forms of legal protection resulting from
such applications and registrations in any selected countries and
co-operate using their respective commercially reasonable efforts to
obtain any necessary Consent of Third Parties. Nothing contained in
this Agreement shall be interpreted to oblige any Party to do anything
more than use its commercially reasonable efforts (without material
expense to it) to obtain any Consent which may be required to give full
effect to the terms and conditions hereof.
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16. NOTICES
All notices or other communications under this Agreement shall be in
writing and shall be deemed to be duly given (a) on the date of
delivery, if delivered personally, (b) on the first Business Day
following the date of dispatch if delivered by a nationally recognized
next-day courier service, (c) on the date of actual receipt if
delivered by registered or certified mail, return receipt requested,
postage prepaid or (d) if sent by facsimile transmission, when
transmitted and receipt is confirmed by telephone. All notices
hereunder shall be delivered as follows:
IF TO ALCANINT, TO:
Alcan International Limited
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Secretary
IF TO NOVELIS BRASIL, TO:
Novelis Do Brasil Ltda.
Avenida das Nacoes Unidas, 12.551
15th Floor
Sao Paulo
Sao Paulo State
Brazil, CEP ▇▇▇▇▇-▇▇▇
Fax: ▇▇▇ (▇▇) ▇▇▇▇-▇▇▇▇
Attention: President
Any Party may, by notice to the other Party as set forth herein, change
the address or fax number to which such notices are to be given.
17. ASSIGNMENT
This Agreement shall not be assignable, in whole or in part, directly
or indirectly, by any Party hereto without the prior written consent of
the other, and any attempt to assign any rights or obligations under
this Agreement without such consent shall be void and deemed to be in
breach hereof.
18. LIMITATION OF LIABILITY AND INDEMNIFICATION
18.1 LIMITATION OF LIABILITY
Except as otherwise provided herein, neither Party shall be
liable to the other Party for any special, consequential,
indirect, collateral, incidental or punitive damages, lost
profits, or failure to realize expected savings, or other
commercial
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or economic loss of any kind, however caused and on any theory
of liability, (including negligence) arising in any way out of
this Agreement, whether or not such Person has been advised of
the possibility of any such damages; provided, however, that
the foregoing limitations shall not limit either Party's
indemnification obligations for Liabilities with respect to
Third Party Claims as set forth in Article IX of the
Separation Agreement (as if such Article was set out in full
herein by reference to the obligations of the Parties
hereunder).
18.2 INDEMNIFICATION
Alcanint shall indemnify, defend and hold harmless Novelis
Brasil, each other member of Novelis Group and each of their
respective directors, officers and employees, and each of the
heirs, executors, trustees, administrators, successors and
assigns of any of the foregoing (collectively, the "NOVELIS
INDEMNIFIED PARTIES"), from and against any and all
Liabilities of the Novelis Indemnified Parties incurred by,
borne by or asserted against any of them relating to, arising
out of or resulting from any of the following items (without
duplication):
(a) the breach or the failure of performance by Alcanint
of any of the covenants, promises, undertakings or
agreements which it is obligated to perform under
this Agreement; and
(b) the use of any Technology by any member of Novelis
Group or its customers or the provision by Alcanint
of any Service hereunder,
but subject however to the limitations of liability provided
in Section 18.1.
Novelis Brasil shall indemnify, defend and hold harmless
Alcanint, each other member of Alcan Group and each of their
respective directors, officers and employees, and each of the
heirs, executors, trustees, administrators, successors and
assigns of any of the foregoing (collectively, the "ALCANINT
INDEMNIFIED PARTIES"), from and against any and all
Liabilities of the Alcanint Indemnified Parties incurred by,
borne by or asserted against any of them relating to, arising
out of or resulting from any of the following items (without
duplication):
(a) the breach or the failure of performance by Novelis
Brasil of any of the covenants, promises,
undertakings or agreements which it is obligated to
perform under this Agreement; and
(b) the use of any Technology by any member of Alcan
Group or its customers or the provision by Novelis
Brasil of any Service hereunder,
but subject however to the limitations of liability provided
in Section 18.1.
18.3 PROVISIONS APPLICABLE WITH RESPECT TO INDEMNIFICATION
OBLIGATIONS
Sections 9.04, 9.05, 9.06, 9.07 and 9.09 of the Separation
Agreement shall apply mutatis mutandis with respect to any
Liability subject to indemnification or
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reimbursement pursuant to Article 18 of this Agreement (as if
such Article was set out in full herein by reference to the
obligations of the Parties hereunder).
19. ENTIRE AGREEMENT
This Agreement, the Separation Agreement and exhibits, schedules and
appendices hereto and thereto and the specific agreements contemplated
herein or thereby, contain the entire agreement between the Parties
with respect to the subject matter hereof and supersedes all previous
agreements, negotiations, discussions, writings, understandings,
commitments and conversations with respect to such subject matter. No
agreements or understandings exist between the Parties other than those
set forth or referred to herein or therein.
Notwithstanding the foregoing, the rights and interests transferred,
assigned or granted to Novelis Brasil, its Affiliates and the other
members of Novelis Group, or to Alcanint, its Affiliates and the other
members of Alcan Group, or otherwise to be made available to them
pursuant to the terms of this Agreement, shall in all respects be
subject to the provisions of the Separation Agreement and nothing in
this Agreement shall entitle Novelis Brasil or Alcanint to have any
rights or pursue any activity which would otherwise be restricted by
the Separation Agreement. The Separation Agreement shall not in
defining the assets, businesses, rights and obligations to form part of
Novelis Brasil, be interpreted so as to grant, convey or confirm,
directly or indirectly, any rights in respect of Technology which would
be greater than those established herein.
20. CONFLICTS
In the event of any conflict between this Agreement and the Separation
Agreement, the latter shall be paramount.
21. DISPUTE RESOLUTION
The Master Agreement with Respect to Dispute Resolution, effective on
the Effective Date, among the Parties and other parties thereto shall
govern all disputes, controversies or claims (whether arising in
contract, delict, tort or otherwise) between the Parties that may arise
out of, or relate to, or arise under or in connection with, this
Agreement or the transactions contemplated hereby (including all
actions taken in furtherance of the transactions contemplated hereby),
or the commercial or economic relationship of the Parties relating
hereto or thereto.
22. FORCE MAJEURE
No Party shall be deemed in default of this Agreement to the extent
that any delay or failure in the performance of its obligations under
this Agreement results from superior force ("force majeure") or any
act, occurrence or omission beyond its reasonable control and without
its fault or negligence, such as fires, explosions, accidents, strikes,
lockouts or labour disturbances, floods, droughts, earthquakes,
epidemics, seizures of cargo, wars (whether or not declared), civil
commotion, acts of God or the public enemy, action of any government,
legislature, court or other Governmental Authority, action by any
authority, representative or organisation exercising or claiming to
exercise powers of a
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government or Governmental Authority, compliance with Applicable Law,
blockades, power failures or curtailments, inadequacy or shortages or
curtailments or cessation of supplies of raw materials or other
supplies, failure or breakdown of equipment of facilities or, in the
case of computer systems, any failure in electrical or air conditioning
equipment (a "FORCE MAJEURE EVENT"). If a Force Majeure Event has
occurred and its effects are continuing, then, upon notice by the Party
who is delayed or prevented from performing its obligations to the
other Party, (i) the affected provisions or other requirements of this
Agreement shall be suspended to the extent necessary during the period
of such disability, (ii) the Party which is delayed or prevented from
performing its obligations by a Force Majeure Event shall have the
right to apportion its Services in an equitable manner to all users and
(iii) such Party shall have no liability to the other Party or any
other Person in connection therewith. The Party which is delayed or
prevented from performing its obligations by the Force Majeure Event
shall resume full performance of this Agreement as soon as reasonably
practicable following the cessation of the Force Majeure Event (or the
consequences thereof).
23. CONSTRUCTION
The rules of construction and interpretation set forth in Section 16.04
of the Separation Agreement shall apply to this Agreement.
24. LANGUAGE
The Parties hereto have requested that this Agreement and all other
documents, notices or written communications relating thereto, be in
the English language.
25. AMENDMENTS
No provisions of this Agreement shall be deemed waived, amended,
supplemented or modified by any Party, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the Party against whom it is sought to enforce such
waiver, amendment, supplement or modification.
26. GOVERNING LAW
The Parties agree that this Agreement shall be governed, construed and
interpreted in accordance with the laws of the Province of Quebec and
the laws of Canada applicable therein. The terms of the United Nations
(Vienna Convention) on Contracts for the International Sale of Goods
shall not apply to this Agreement or the obligations of the Parties
hereunder.
27. SEVERABILITY
If any provision of this Agreement or the application thereof to any
Person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has
been held invalid or unenforceable, shall remain in full force and
effect and shall in no way be affected, impaired or invalidated
thereby, so long as the economic or legal substance of
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the transactions contemplated hereby, as the case may be, is not
affected in any manner adverse to any Party. Upon such determination,
the Parties shall negotiate in good faith in an effort to agree upon
such a suitable and equitable provision to effect the original intent
of the Parties.
28. EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the
Parties and delivered to the other Party.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK.]
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IN WITNESS WHEREOF, the Parties hereto have caused this Technical Services
Agreement to be executed by their duly authorized representatives.
NOVELIS DO BRASIL LTDA.
By:
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Name:
Title:
By:
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Name:
Title:
ALCAN INTERNATIONAL LIMITED
By:
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Name:
Title:
By:
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Name:
Title: