EXHIBIT 10.24
TECHNICAL SERVICES AGREEMENT
between
NOVELIS PAE VOREPPE
and
PECHINEY CENTRE DE RECHERCHES DE VOREPPE
WITH RESPECT TO THE RESEARCH & DEVELOPMENT FACILITIES
AND TO THE MANUFACTURING FACILITIES BOTH LOCATED
IN VOREPPE (FRANCE)
DATED DECEMBER O, 2004
WITH EFFECT AS OF THE EFFECTIVE DATE
TABLE OF CONTENTS
1. DEFINITIONS..............................................................................................1
2. SCOPE OF AGREEMENT.......................................................................................4
3. TECHNOLOGY...............................................................................................5
4. TECHNOLOGY AND TECHNICAL ASSISTANCE LIMITATIONS..........................................................5
5. OWNERSHIP AND RIGHT TO USE...............................................................................6
6. CONSIDERATION............................................................................................6
7. PROTECTION OF INFORMATION................................................................................7
8. TERM AND TERMINATION.....................................................................................9
9. SURVIVAL OF OBLIGATIONS.................................................................................10
10. REPRESENTATIONS AND WARRANTIES..........................................................................10
11. DISCLAIMER OF WARRANTY AND INDEMNITY....................................................................10
12. TRADEMARK, TRADE NAME AND LOGO..........................................................................11
13. NON-WAIVER..............................................................................................11
14. NO PARTNERSHIP, JOINT VENTURE...........................................................................11
15. FURTHER ASSURANCES......................................................................................11
16. NOTICES.................................................................................................11
17. ASSIGNMENT..............................................................................................12
18. LIMITATION OF LIABILITY AND INDEMNIFICATION.............................................................12
19. ENTIRE AGREEMENT........................................................................................13
20. CONFLICTS...............................................................................................14
21. DISPUTE RESOLUTION......................................................................................14
22. FORCE MAJEURE...........................................................................................14
23. CONSTRUCTION............................................................................................15
24. LANGUAGE................................................................................................15
25. AMENDMENTS..............................................................................................15
26. GOVERNING LAW...........................................................................................15
27. SEVERABILITY............................................................................................15
28. EXECUTION IN COUNTERPARTS...............................................................................15
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TECHNICAL SERVICES AGREEMENT
THIS AGREEMENT is dated December o, 2004, with effect as of the Effective Date.
BETWEEN: NOVELIS PAE VOREPPE, a company organized under the laws of France
("PAE");
AND: PECHINEY CENTRE DE RECHERCHES DE VOREPPE, a company organized
under the laws of France ("CRV").
RECITALS:
WHEREAS Alcan Inc. and Novelis Inc. have entered into a Separation Agreement
pursuant to which they 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 below), directly or indirectly, by Novelis Inc. (such
agreement, as amended, restated or modified from time to time, the "SEPARATION
AGREEMENT").
WHEREAS CRV 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 CRV, a member of Alcan Group, provide PAE, a member of Novelis Group
(as defined below), with certain technical assistance and services following the
Effective Date (as defined below) from CRV's research and development facility
located in Voreppe (France) ("CRV FACILITY"), and for PAE's manufacturing
facility located in Voreppe (France) ("PAE FACILITY"), subject to the terms and
conditions of this Agreement.
WHEREAS CRV is willing and in a position to provide PAE with such technical
assistance and 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, PAE
and CRV 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:
"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.
"BASIC FEE" has the meaning set forth in Section 6.1.
"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 Paris (France), 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 Paris (France).
"CONSENT" means any approval, consent, ratification, waiver or other
authorization.
"CRV" means Pechiney Centre de Recherches de Voreppe.
"CRV FACILITY" has the meaning set out in the Preamble to this
Agreement.
"CRV INDEMNIFIED PARTIES" has the meaning set forth in Section 18.2.
"CRV TECHNICAL ASSISTANCE SERVICES" has the meaning set forth in
Section 2.1.
"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.
"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.
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"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 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 CRV or PAE
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 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.
"PAE" means Novelis PAE Voreppe.
"PAE FACILITY" has the meaning set out in the Preamble to this
Agreement.
"PAE INDEMNIFIED PARTIES" has the meaning set forth in Section 18.2.
"PARTY" means each of PAE and CRV 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.
"RESULTS" means data, reports and conclusions produced in the course of
providing the 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 Technical Assistance Services and other services
provided by CRV to PAE under this Agreement, including the Services on
Request.
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"SERVICES ON REQUEST" has the meaning set forth in Section 2.2.
"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 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 such Group.
"THIRD PARTY CLAIM" has the meaning set forth in the Separation
Agreement.
2. SCOPE OF AGREEMENT
CRV will provide PAE technical assistance and other services consistent
with CRV's resources. 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 CRV
The technical assistance services to be rendered by CRV or Alcan Group
personnel under this Agreement (the "CRV TECHNICAL ASSISTANCE
SERVICES") will comprise about 0.5 Lab Year with a minimum of 0.25 Lab
Year of effort, for a period of *** commencing on the
Effective Date, with provision for extension of certain CRV Technical
Assistance Services into *** upon request of PAE.
The CRV Technical Assistance Services will consist of such services as
the Parties will mutually agree upon from time to time during the Term
of this Agreement.
The Parties currently anticipate that the CRV Technical Assistance
Services to be rendered by CRV to PAE during the Term of this Agreement
will include the following services:
2.1.1 technical assistance on Jetcleaner;
2.1.2 technical assistance on Alpur;
2.1.3 technical assistance on PDBF/CFF;
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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2.1.4 technical assistance on Automatic Slab Casting; and
2.1.5 technical assistance on strip casting (calculations based on
thermo-mechanical modeling).
2.2 ADDITIONAL SERVICES TO BE PROVIDED UPON REQUEST
The Parties may from time to time during the Term of this Agreement,
agree on additional services to be provided hereunder by CRV to PAE
("SERVICES ON REQUEST"). The terms and conditions of Services on
Request will be subject to a separate agreement between the Parties on
a case-by-case basis but based on the fee structure described in this
Agreement.
3. TECHNOLOGY
3.1 INFORMATION EXCHANGE
In connection with the planning, managing, providing and
communicating the results of the Services, CRV and PAE 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 Services
shall be promptly reported to the Party requesting the
Services. These reports may be oral or written as specified by
PAE. The preparation of such reports shall be considered part
of the provision of the Services.
4. TECHNOLOGY AND TECHNICAL ASSISTANCE LIMITATIONS
4.1 Nothing herein limits in any way the rights and benefits
granted to CRV and PAE in the License Agreement.
4.2 Subject to Section 4.1 but notwithstanding anything contained
elsewhere in this Agreement, CRV and PAE 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.
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5. OWNERSHIP AND RIGHT TO USE
5.1 PAE shall receive and own all Results generated in the course
of performing such Services, including any copyright therein.
5.2 CRV shall own all Technology created by its employees in the
course of performing the Services for PAE, and CRV hereby
grants to PAE and its Affiliates a non-exclusive, world-wide,
non-transferable licence to use in perpetuity such Technology.
5.3 This Agreement does not restrict CRV or PAE from obtaining
technology from other sources as long as Information acquired
from the other Party is not disclosed.
6. CONSIDERATION
In consideration for the CRV Technical Assistance Services rendered by
CRV under this Agreement, PAE shall pay to CRV the following fees:
6.1 BASIC FEE
The basic fee ("BASIC FEE") for rendering one Lab Year of
Services under Section 2.1 is ***. The Basic Fee
for Services covers all fully absorbed costs related to the
provision of Services and information including all salary and
benefits for the persons providing the services, all overhead
costs including rent, utilities, maintenance, management and
corporate charges, other similar charges, cost of equipment
required for the performance of the Services, travel related
costs and special project costs. The Basic Fee does not
include the cost of metal, which shall be in addition to the
Basic Fee and shall be reimbursed at cost by one Party to the
other, as applicable, separately from the Basic Fee.
6.2 FEE FOR SERVICES ON REQUEST: FIXED PRICE
For certain Services on Request, the Parties shall agree on a
fixed price rather than on a price based on a daily rate.
6.3 REIMBURSABLE COSTS
For all the Services set forth in Sections 2.1 and 2.2
rendered to PAE inside or outside of France, metal and
equipment acquisition costs are not included in the Basic Fee
and they shall be reimbursed at cost (the "REIMBURSABLE
COSTS").
6.4 PAYMENT TERMS
Payments shall be made as follows:
*** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has
been requested with respect to the omitted portions.
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6.4.1 Basic Fee
CRV will invoice the Basic Fee for one fourth (1/4)
of one Lab Year of Services, on a monthly basis
during the Term of this Agreement, with the payment
due within thirty (30) days from the date of the
invoice, the Parties to proceed to the necessary
adjustments, if any, in connection with the Basic Fee
payable hereunder, at the end of the Term.
6.4.2 Services on Request and Reimbursable Costs
CRV will invoice the cost of Services on Request and
the Reimbursable Costs on a monthly basis, with the
respective payments due within thirty (30) days from
the date of the invoice. 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.
6.4.3 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.
6.4.4 Payment Address
All amounts due to CRV under this Agreement shall be
paid by electronic transfer to CRV's BNP Paribas
account number 30004 00617 00010218346 80 located at
0, Xxx Xxxxxxxx 00000 Xxxxxxxx, Xxxxxx.
7. PROTECTION OF INFORMATION
7.1 The Parties hereby agree that the Information produced or
developed by CRV for PAE pursuant to this Agreement at any
time is confidential information of PAE and shall not be
disclosed to any Third Party except as may be expressly
provided for herein and that CRV 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:
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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 CRV shall not use the Information produced hereunder for any
other purpose other than that specified in this Agreement
without first obtaining written consent from PAE.
7.5 CRV may disclose the Information it produces hereunder for PAE
to its own officers, employees, contractors, suppliers,
customers, representatives and others to the extent necessary
for the provision of Services under this Agreement. CRV shall
take reasonable precautions, consistent with past practices to
preserve the value of the Information. CRV 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.
7.7 CRV recognizes 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, PAE 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.
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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 *** anniversary
thereof, unless terminated earlier pursuant to the provisions
of this Agreement or except as expressly otherwise provided in
this Agreement. Upon expiry or earlier termination of this
Agreement, PAE shall retain the licences granted under Section
5.2.
8.2 Should there be a default in the performance of any material
obligation of the other Party under this 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 shall terminate on the date
specified on such notice which shall not be less than thirty
(30) days following the date of such notice. 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 with respect to the other Party:
(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 (Canada) 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;
(e) in the case of PAE, Novelis Inc., or in the case of
CRV, 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
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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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.
8.7 This Agreement may be terminated at the option of PAE on or
after the first (1st) anniversary of the Effective Date by
providing notice to CRV at least six (6) months before the
termination is to become effective, provided all payments owed
under Article 6 have been permitted to CRV.
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 Section 5.2 and 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.
11. DISCLAIMER OF WARRANTY AND INDEMNITY
Except to the limited extent provided in Article 10, CRV 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. CRV does not warrant that the transferred technology,
licensed technology or services provided by CRV, or that any product,
is or will be of merchantable quality or fit for any particular purpose
for which it may be
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bought or used. CRV shall in no event be liable to PAE, 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 CRV or PAE 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 CRV and PAE 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.
16. NOTICES
All notices or other communications under this Agreement shall be in
writing and shall be deemed to be duly given when delivered in person
or successfully transmitted by facsimile, addressed as follows:
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IF TO CRV, TO:
PECHINEY Centre de Recherches de Voreppe
Fax: 00 0 00 00 00 00
Attention: President
IF TO PAE, TO:
o
Fax: o
Attention: Chief Executive Officer
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 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
CRV shall indemnify, defend and hold harmless PAE, 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 "PAE INDEMNIFIED
PARTIES"), from and against any and all Liabilities of the PAE
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):
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(a) the breach or the failure of performance by CRV 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 CRV of any
Service hereunder,
but subject however to the limitations of liability provided
in Section 18.1.
PAE shall indemnify, defend and hold harmless CRV, 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 "CRV INDEMNIFIED PARTIES"), from
and against any and all Liabilities of the CRV 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):
(c) the breach or the failure of performance by PAE of
any of the covenants, promises, undertakings or
agreements which it is obligated to perform under
this Agreement; and
(d) the use of any Technology by any member of Alcan
Group or its customers or the provision by PAE 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 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 PAE, its Affiliates and the other members of
Novelis Group, or to CRV, 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
PAE or CRV to have
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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 Inc., 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 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).
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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
either in the English or French languages.
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 any Ancillary 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 thereof, 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 the transactions contemplated hereby or thereby, 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 PAE VOREPPE
By:
_______________________________
Name:
Title:
By:
_______________________________
Name:
Title:
PECHINEY CENTRE DE RECHERCHES DE VOREPPE
By:
_______________________________
Name:
Title:
By:
_______________________________
Name:
Title:
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