[CONFIDENTIAL TREATMENT REQUESTED]
EXHIBIT 10.12
**Confidential portions of this Exhibit have been omitted pursuant to the Rules
and Regulations of the Securities and Exchange Commission. The
symbol"[++++++++]" has been used to identify information which is the subject of
a Confidential Treatment Request.**
SLAG SALES AGREEMENT
--------------------
THIS AGREEMENT dated the 19/th/ day of April, 2000 by and between QIT-FER
ET TITANE INC., a Quebec corporation with offices at 0000, Xxxxx-Xxxxxxxx,
Xxxxx, Xxxxxx, Xxxxxx, X0X 0X0 (hereinafter "QIT"), and TIOXIDE EUROPE LIMITED,
an English company with its Registered Office at Tioxide House, 000-000
Xxxxxxxxxxx Xxxx, Xxxxxx X00 0XX, Xxxxxxx (hereafter, the "Buyer");
WHEREAS, QIT is a significant producer of titanium bearing slag and Buyer
is a significant consumer of titanium bearing slag of the types produced by QIT;
and
WHEREAS, the parties accordingly are desirous of entering into an agreement
whereby the manufacture, purchase and consumption of a predetermined amount of
titanium bearing slag is established for the mutual benefit of enhancing
predictability and coordination of the operations of each of the parties;
NOW THEREFORE, for and in consideration of the covenants and conditions
herein contained, the parties hereto confirm their agreement as follows,
effective January 1, 2001:
ARTICLE I. SCOPE
----------------
QIT agrees to sell and deliver, and Buyer agrees to buy and take delivery of,
titanium bearing slag (hereafter called "Product"), produced at QIT's plant at
Sorel, Quebec, Canada (hereinafter called "QIT's Plant"), in the quantities and
at the times specified herein and in accordance with the terms of this
Agreement.
ARTICLE II. DEFINITIONS
-----------------------
Unless otherwise indicated, a "ton" is a metric ton of one thousand kilograms
dry weight, a "month" and a "year" are a calendar month and a calendar year,
respectively, "dollars", "cents", and the dollar and cent signs ("$" and " "?")
refer to lawful money of the United States of America, "Official Samples" has
the meaning given to it in Article XI and all percentages are based on dry
weights. "Party" means QIT as one party and Buyer as one party. "STEM" shall
mean that Product will be available and ready for loading at the point of
shipment on the stated date and in the quantity specified.
ARTICLE III. TERM
-----------------
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[CONFIDENTIAL TREATMENT REQUESTED]
A. Unless terminated earlier pursuant to the provisions contained herein, this
Agreement shall be for a minimum term of three (3) years commencing on
January 1, 2001 and ending on December 31, 2003 (the "initial term") and
shall automatically continue in full force after the initial term for
additional periods of one (1) year each until terminated by either party
giving to the other party not less than twelve (12) months' prior written
notice.
B. In the event either Buyer or QIT shall become bankrupt, insolvent, commit
any act of bankruptcy or insolvency, or compromise with its creditors, then
the other party shall have the option, without notice or demand, to cancel
this Agreement as it pertains to Product. The preceding rights are without
prejudice to any other rights and remedies as are available to the parties
hereunder or otherwise under the law.
ARTICLE IV. QUANTITY
--------------------
The quantity of Product ("Quantity") to be produced, sold and delivered
[++++++++] shall be [++++++++]. Buyer shall notify QIT of the exact quantity to
be purchased and delivered in a given year on or before [++++++++] of the
previous year, failing which, the exact Quantity shall be equal to [++++++++] in
the previous year.
ARTICLE V. PRICE
----------------
A. Basic Price
-----------
The Basic Price of product of [++++++++] content shall be that amount per
ton, FOB Buyer's Vessel, QIT's dock, Sorel, Quebec, as follows:
1. For [++++++++], the Basic Price shall be [++++++++]
2. For [++++++++] and subsequent years, the Basic Price of Product shall
be [++++++++].
3. The term "Escalation" when used in this Agreement shall mean the
percentage increase, if any, in the annual average All Items, All-
Urban United States Consumer Price Index published by the US
Department of Labor for the period of December to December set forth
below, multiplied by the price to which such Escalation must be added.
For 2001, reference shall be made to the Escalation for the period of
December 1998 to December 2000. For 2002, and for each subsequent
year that this Agreement is in force, reference shall be made to the
Escalation for the twelve-month period of December to December
immediately preceding the applicable year.
B. Price Adjustment for TiO\\2\\ Content
--------------------------------------
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[CONFIDENTIAL TREATMENT REQUESTED]
1. The Basic Price established under Article V.A. is for Product which
meets the specifications set forth in Paragraphs A and B of Article IX
(hereinafter the "Specifications").
2. If the TiO\\2\\ content of Product exceeds eighty percent (80%), the
price shall be adjusted upwards by one-one hundred sixtieth
(1/160/th/) of the Basic Price for each whole increment of one-half
percent (0.5%) by which the TiO\\2\\ content of Product exceeds eighty
percent (80%). If the TiO\\2\\ content of Product is less than eight
percent (80%), the price shall be adjusted downwards by one-one
hundred sixtieth (1/160/th/) of the Basic Price for each whole
decrement of one-half percent (0.5%) or part thereof by which the
TiO\\2\\ content of Product is less than eighty percent (80%).
3. If the insoluble TiO\\2\\ content of Product exceeds two percent
(2.0%), the price shall be adjusted downwards by one-one hundred
sixtieth (1/160/th/) of the Basic Price for each one-half percent
(0.5%) or part thereof by which the insoluble TiO\\2\\ content of
Product exceeds two percent (2.0%).
4. Product with a TiO\\2\\ content of less than seventy-six percent (76%)
may be rejected by Buyer at its option and shall be replaced by QIT as
provided in Article X.
ARTICLE VI. SHIPMENTS
---------------------
A. QIT shall deliver Product into Buyer's Vessel at QIT's dock, Sorel, Quebec.
QIT and Buyer shall agree on a shipping schedule whereby deliveries are
spread more or less evenly throughout the year, with a minimum Quantity of
20% of the total annual Quantity being delivered in any calendar quarter
and a maximum of 30% in the fourth quarter. QIT will make all reasonable
efforts to meet Buyer's manufacturing requirements with regard to advance
shipments to the extent that such does not disadvantage other customers of
QIT. Buyer shall obtain any import licenses or other documents that may be
required to import Product into the country of destination.
B. Buyer shall arrange for and furnish a cargo vessel (herein called "Buyer's
Vessel"). Notwithstanding the agreed shipping schedule, Buyer shall
request and receive STEM from QIT with respect to each shipment, one (1)
month prior to the arrival of Buyer's Vessel at Sorel. So far as possible,
Buyer shall give QIT not less than 10 days' notice of the expected date of
arrival of each Buyer's Vessel at Sorel. QIT will load cargo in lower
holds only and will spout-trim cargo. Any leveling required by other means
than spout-trimming and any other abnormal loading costs, including time
required therefor, shall be for Buyer's account. Cleanliness and/or
protection of the holds of Buyer's Vessel shall be solely Buyer's
responsibility. As a convenience to Buyer however, QIT shall, prior to
loading, undertake on Buyer's behalf the inspection of the holds of Buyer's
Vessel and, if deemed necessary by QIT, QIT shall on Buyer's behalf require
any such
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[CONFIDENTIAL TREATMENT REQUESTED]
necessary cleaning and/or protection to be performed, but in no event shall
QIT be liable for contamination or any other damages in connection with
cleanliness and/or protection of Buyer's Vessel, whether caused by QIT's
own negligence or otherwise. Buyer's Vessel shall shift to anchor during
such cleaning and/or protection. The costs of such cleaning and/or
protection shall be for Buyer's account including the costs of delays
caused to Buyer's Vessel and time used therefor shall not count as laytime.
C. QIT agrees to load at a minimum rate of [++++++++] tons per weather working
day of 24 consecutive hours. Notice of readiness shall be presented to QIT
during office hours, which at present are 9:00 a.m. to 5:00 p.m., Monday
through Friday, and 9:00 a.m. to 12:00 Noon Saturdays. Laytime shall start
at 8:00 a.m. on the working day next following the delivery and acceptance
of such notice of readiness, whether Buyer's Vessel is in berth or not.
Any time from noon Saturday to 8:00 a.m. Monday and any time on holidays
and before laytime starts shall not count as laytime unless used, and, if
used, only half such time to count as laytime. It is contemplated that
vessels will normally be loaded and discharged in turn. However, QIT may
at its option delay docking and loading Buyer's Vessel or request Buyer's
Vessel to shift to anchor or other berth to give preference to QIT's ore or
coal vessels even though Buyer's Vessel shall have been presented for
loading prior to QIT's ore or coal vessels. If QIT exercises its option in
the preceding sentence and Buyer's Vessel is not loaded in turn, QIT shall
be liable for any demurrage due to delay incurred by such loading out of
turn and the costs of Buyer's Vessel shifting to anchor and reberthing.
D. Buyer shall furnish demurrage rates to QIT as least one day in advance of
arrival of a Buyer's Vessel. QIT agrees to pay Buyer demurrage if loading
is not completed in the allowed time at the rate specified in the Charter
Party, but only up to a maximum of [++++++++] per day, fractions of a day
to be adjusted pro rata. Buyer agrees to pay QIT dispatch for laytime
saved at half the demurrage rate specified in the Charter Party, but only
up to a maximum of [++++++++] per day, fractions of a day to be adjusted
pro rata.
E. QIT makes no representations, and none are implied, as regards its loading
dock or the water depth thereat, except that so long as the St. Xxxxxxxx
River level is not less than 13.1 feet above mean sea-level at Sorel,
Quebec, as recorded by the Canadian Hydrographic Survey, the minimum water
depth at QIT's dock will be thirty (30) feet.
ARTICLE VII. TITLE AND RISK OF LOSS
-----------------------------------
Title to and risk of loss in Product shall pass to Buyer when the Product has
effectively passed the ship's rail of Buyer's Vessel at QIT's dock at Sorel,
Quebec, Canada. Once the title to and risk of loss in Product has passed to
Buyer, QIT shall not be responsible for any losses or damages of any kind and
howsoever arising in connection with Product or otherwise, except as expressly
provided in this Agreement.
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[CONFIDENTIAL TREATMENT REQUESTED]
ARTICLE VIII. INVOICING AND PAYMENT
-----------------------------------
A. Regular Payments
----------------
Unless otherwise agreed, payment for Product shall be made by Buyer in U.S.
dollars by telegraphic transfer to QIT, to such account as QIT shall notify
to Buyer, as follows:
- For shipments of [++++++++] or less, within ten (10) days of the date
of the xxxx of lading,
- For shipments in excess of [++++++++], within fifteen (15) days of the
date of the xxxx of lading,
- For shipments in excess of [++++++++], within eighteen (18) days of
the date of the xxxx of lading,
- For shipments in excess of [++++++++], within twenty (20) days of the
date of the xxxx of lading.
Provided however that QIT shall have provided Buyer with the following
documents:
1. QIT's commercial invoice covering the shipment, based on the
assumption that the TiO\\2\\ content of Product is [++++++++];
2. QIT's weight certificate;
3. A full set of clean on-board ocean bills of lading concerning the
shipment by Buyer's vessel in question, designating "QIT-Fer et Titane
Inc." as shipper and "Tioxide Europe Limited" as consignee; and
4. Such other documents and paper as may be required to clear Product for
shipment from Canada to the port of destination.
The above mentioned documents shall be forwarded to Buyer at such address
as Buyer shall have designated in accordance with Article XVIII. QIT shall
accept payment from any of Buyer's affiliate companies, but Buyer shall
remain primarily and separately liable for all sums due under this
Agreement.
B. Final Invoice and Payment
-------------------------
Any adjustment which may be necessary as a result of the outcome of the
analysis of the Official Samples shall be embodied in a final invoice.
Payment by Buyer of the total amount due, if any, on the final invoice
shall be effected in same
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[CONFIDENTIAL TREATMENT REQUESTED]
manner as specified in Article VIII.A above. In the event the final invoice
reflects an amount due from QIT to Buyer, QIT shall remit the appropriate
amount to Buyer by telegraphic transfer within thirty (30) days of the date
of the final invoice.
C. Other Invoices and Payments
---------------------------
Payment of other amounts due hereunder, such as the fees referred to in
Articles XI.B.2 and XI.C.5 shall be made by Buyer to QIT upon receipt of
the invoice for such amounts.
ARTICLE IX. SPECIFICATIONS
--------------------------
A. The Product shall contain a minimum of [++++++++] equivalent TiO\\2\\ by
weight determined as set forth in Article XI of this Agreement and shall be
screened through a sixteen-millimetre (16mm) screen.
B. The Product shall meet the following Specifications:
1. Maximum [++++++++] content of [++++++++] by weight;
2. Maximum [++++++++] content of 0. [++++++++] by weight;
3. Maximum [++++++++] content of [++++++++] by weight;
4. Maximum [++++++++] content of [++++++++] by weight;
5. Maximum [++++++++] content of [++++++++] by weight;
6. Maximum [++++++++] content [++++++++] of [++++++++] and typically of
[++++++++] by weight; and
7. Maximum [++++++++] content of [++++++++] by weight.
C. The specifications set out in Article IX.A and B. above shall be referred
to in this Agreement as the "Specifications".
ARTICLE X. WARRANTY
-------------------
A. QIT warrants that the Product sold and delivered hereunder shall conform to
the Specifications set forth in Article IX, hereof.
B. In the event that any Product sold and delivered hereunder does not conform
to said Specifications and in the event the parties are unable to agree on
an equitable adjustment, QIT shall, at its cost and expense, remove or
otherwise dispose of such non-conforming Product and replace it with an
equivalent quantity of
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[CONFIDENTIAL TREATMENT REQUESTED]
Product which meets the Specifications. The obligation to remove or dispose
of and replace non-conforming Product shall not be applicable in the event
Buyer fails to give notice of such non-conforming Product as provided for
in Article XI.C.
The warranty and remedy expressed in this Article X is the sole and
exclusive warranty made by QIT with respect to the Product to be delivered
under this Agreement. QIT makes no other warranty, express, implied
(including any warranty of merchantability or fitness for a particular
purpose), statutory or otherwise.
C. QIT shall not be responsible for any damage whatsoever, whether direct,
indirect, consequential or incidental relating directly or indirectly to
the use, sale and/or resale of any Product. QIT's sole obligation in the
event of delivery of non-conforming Product shall be that set forth in this
Article X. Buyer agrees to indemnify and hold QIT harmless from and against
any claims, losses, damages, costs, expenses or liability of whatsoever
nature from third parties arising out of or in connection with such use, of
any Product.
ARTICLE XI. INSPECTION, WEIGHING, SAMPLING AND ANALYSIS
-------------------------------------------------------
A. Inspection and Weighing
-----------------------
1. Weight of Product loaded aboard Buyer's Vessel shall be determined by
the use of a weightometer which QIT shall make all reasonable effort
to inspect, maintain and keep properly adjusted for accuracy. Weight,
recorded by weightometer, shall be corrected for average weightometer
variation. This corrected weight, which includes moisture, shall then
be adjusted for the moisture content. The resulting dry weight shall
be the basis on which Product is invoiced for payment.
2. Copies of the inspection certificates of the weightometer shall be
provided to Buyer by QIT upon request.
B. Sampling
--------
1. Each shipment of Product loaded aboard Buyer's Vessel shall be sampled
at QIT's Plant by Caleb Xxxxx Xxxxxx Ltee, 0000 Xx-Xxxx-Xxxxxxxx,
Xxxxxxxx, Xxxxxx, Xxxxxx, an independent testing laboratory, or such
other independent testing laboratory as shall be agreed upon by Buyer
and QIT.
Such independent laboratory shall take and distribute representative
samples (herein called "Official Sample(s)") from each shipment in
accordance with the Sampling and Sample Preparation Procedure, set
forth
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[CONFIDENTIAL TREATMENT REQUESTED]
in Exhibit "A" - Procedure "XXX S-101", attached hereto and made
a part hereof.
2. Lab Fees - The fees for services of such independent testing
--------
laboratory shall be paid equally by QIT and Buyer.
C. Analysis
--------
1. Methods of Analysis - All analyses shall be made by the methods
-------------------
outlined in Exhibit "B" - Procedure "XXX S-009", Exhibit "C" -
Procedure "XXX S-010", Exhibit "D" - Procedure "XXX S-005", Exhibit
"E" - Procedure "XXX S-008", Exhibit "F" - Procedure XXX S-007,
Exhibit "G" - Procedure XXX S-003, which are attached hereto and made
a part hereof or by such other methods as QIT shall consider
appropriate provided that the results obtained from such other methods
are consistent with the results which would be obtained by using the
methods outlined in the above-mentioned Exhibits.
2. Analysis by QIT - QIT shall analyse the Official Samples and the
---------------
results of such analysis for each shipment shall be provided to Buyer
not later than thirty (30) days following the date of such shipment.
3. Analysis by Buyer - Buyer may, but shall not be obligated to, analyze
-----------------
the official Samples. Unless Buyer notifies QIT, within sixty (60)
days of receipt of an Official Sample, that Buyer's analysis indicates
that Product fails to meet the Specifications or that the TiO\\2\\
content is more than [++++++++] different from QIT's analysis, the
results of QIT's analysis shall be final and conclusive.
4. Umpire Procedure - Should Buyer's analysis of the Official Samples
----------------
indicate that Product does not meet the Specifications or that the
TiO\\2\\ content of Product is more than [++++++++] different from
QIT's analysis, Buyer may so advise QIT, who will then request the
independent testing laboratory referred to above to forward for
analysis its retained Official Sample to such umpire analyst (being an
independent testing laboratory) as shall be agreed to from time to
time by the parties. The parties hereby agree that Inspectorate
Xxxxxxxx Ltd., 0 Xxxxx Xxxx, Xxxxxx, Xxxxx, XX0 0XX, Xxxxxxx shall be
the initial umpire analyst. The umpire shall analyse the Official
Sample in accordance with the methods outlined in the Exhibits
referred to in Article XI.C.1.
5. Settlement - The umpire's analysis as to TiO\\2\\ content and that of
----------
Buyer or QIT, whichever is in closer agreement to the umpire's
analysis, shall be averaged to establish the revised analysis for the
shipment. If the umpire's analysis is exactly halfway between Buyer's
and QIT's analyses, such
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[CONFIDENTIAL TREATMENT REQUESTED]
umpire's analysis shall then be used to establish the revised analysis
for the shipment.
If such revised analysis results in a price adjustment in accordance
with the procedure described in this Agreement, QIT shall issue a
credit or debit invoice as the case may be. If an umpire's analysis is
required on any Specification other than TiO\\2\\ , the umpire's
analysis and that of Buyer or QIT, whichever is in closer agreement to
the umpire's analysis, shall be averaged as the basis for final
settlement; provided that if the umpire's analysis lies exactly
halfway between Buyer's and QIT's analysis, the umpire's analysis
shall be the basis for final settlement. If such analysis determines
that Product does not meet each of such Specifications, the parties
shall proceed as described in Article X of this Agreement. The cost of
an umpire's analysis shall be paid by the party whose analysis varies
most from the umpire's analysis unless such variations are equal,
whereupon, the cost shall be borne equally by the parties.
D. Revision of Sampling and Analytical Procedures
----------------------------------------------
The procedures set forth in the Exhibits referred to in this Article are
believed to be the most satisfactory ones now available. In the event
better procedures become available, each of said Exhibits may be revised
with the written approval of Buyer and QIT.
ARTICLE XII. ARBITRATION
------------------------
Any dispute between QIT and Buyer arising out of or in any way connected with
this Agreement, its negotiation, performance, breach, existence or validity
shall, unless settled by mutual agreement, be referred first, for conciliation
and, failing settlement thereunder, for final and binding arbitration in London,
England, under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce. The arbitration shall be presided over by three (3)
arbitrators of which QIT shall appoint one and Buyer shall appoint another, and
the two appointed arbitrators shall appoint the Chairman of the arbitral
tribunal within sixty (60) days following their appointment by the parties
hereto, failing which the Chairman shall be appointed by the International Court
of Arbitration of the International Chamber of Commerce. The language of the
arbitration shall be English.
ARTICLE XIII. TAXES AND DUTIES
------------------------------
Canadian taxes or duties now or hereafter imposed on the export of the Product
during the term of this Agreement shall be for the sole account of QIT. All
other taxes or duties now or hereafter imposed during the Term of this Agreement
shall be for the sole account of Buyer.
ARTICLE XIV. PATENTS
--------------------
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[CONFIDENTIAL TREATMENT REQUESTED]
A. QIT agrees to protect and hold Buyer harmless against any and all claims
that Product, in the state or form as sold under this Agreement, infringes
or allegedly infringes any product claims of any Canadian or United States
patent owned by third parties. QIT will, at its own cost and expense,
defend any and all suits which may be brought against Buyer on account of
said infringement of such Canadian patent or patents, and QIT shall pay any
and all fees, costs and damages awarded in said suits; provided, however,
that the total liability for damages under this Article XIV shall in no
event exceed the aggregate sales price of Product sold to Buyer during the
year in which such infringement commenced.
B. QIT's obligations pursuant to this Article XIV shall be conditional upon
Buyer giving prompt notice to QIT of any claims by third parties of any
such alleged infringement and of all information available to Buyer in
respect of such alleged infringement or claim.
ARTICLE XV. FORCE MAJEURE
-------------------------
In the event of any contingency which is beyond the reasonable control of QIT or
Buyer including, but not limited to (i) any strike, lockout, industrial dispute,
difference with workmen, accident, fire, explosion, earthquake, flood,
mobilization, war (whether declared or undeclared), act of any belligerent in
any such war, riot, rebellion, revolution or blockade, (ii) any requirement,
regulation, restriction, or other act of any Government, whether legal or
otherwise, (iii) any inability to secure or delay in securing export licenses or
import licenses, cargo space or other transportation facilities necessary for
the shipment or receipt of Product or fuel or other supplies or material
including ilmenite ore or electric power necessary for the operation of the
mines and plants where Product is produced or consumed, (iv) any delay in or
interruption to transportation by rail, water or otherwise, (v) any damage to or
destruction of such mines or plants of QIT or Buyer, or (vi) any other
contingency, excluding market conditions of any sort, which is beyond the
reasonable control of QIT or Buyer, whether or not of the nature or character
hereinbefore specifically enumerated, which event delays or interferes with the
performance of this Agreement or the consumption of Product, (an event of "Force
Majeure") then such event shall be considered sufficient justification for delay
in making shipment or delivery or taking delivery or performance hereunder
(other than the payment of money), in whole or in part, until such event ceases
to exist, and this Agreement shall be deemed suspended for so long as such event
delays or interferes with the performance hereof, provided that prompt notice of
any such event be given by the party affected to the other party. Any delay or
interference which affects QIT's supply of Product to customers shall entitle
QIT to allocate equitably any available Product among customers in its
discretion.
Anything to the contrary herein notwithstanding, if such event of Force Majeure
occurs, the obligation of QIT to sell and deliver and of Buyer to buy and to
take delivery of Product with respect to any year shall terminate (unless
otherwise agreed between the parties) at the end of the year as to quantities of
Product which have not been loaded aboard Buyer's Vessel at Sorel, by the end of
the year due to such event of Force
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[CONFIDENTIAL TREATMENT REQUESTED]
Majeure. Nothing contained in this Article shall require Buyer to pay for, or
QIT to make up or compensate for, any Product not delivered due to the
application of this Article XV.
ARTICLE XVI. DEFAULT & LIMITS OF LIABILITY
------------------------------------------
For purposes of this Article XVI, a "default" shall mean any failure by either
party to make any payment or to perform any obligation under or pursuant to this
Agreement for any reason other than an event of force majeure as defined in
Article XV.
No default shall be deemed to have occurred unless the party in default shall
have first been given written notice of such default and shall have failed to
cure such default within thirty (30) days in the event of a failure to pay and
in all other events, within ninety (90) days after receipt of such written
notice.
In the event of a default arising from a breach of Buyer's duty to pay for
Product delivered or for the total amount of the Contracted Quantity in any
particular year, QIT shall have the right to seek damages for all loss or damage
actually sustained as a direct result of the default. In addition, QIT shall
have the right (subject to Buyer's right to cure its default pursuant to this
Article) to terminate this Agreement forthwith by providing notice to such
effect to Buyer. Notwithstanding anything contained herein to the contrary, in
no event shall Buyer be liable for consequential, indirect or special damages as
a result of a default for failure to pay under this Agreement.
In the event of any default by QIT arising from a failure to deliver Product
pursuant to this Agreement, QIT (subject to QIT's rights to cure its default
pursuant to this Article) shall compensate Buyer for all loss or damage actually
sustained as a direct result of the failure to deliver but excluding indirect,
consequential, punitive or contingent damages as a result of the default Buyer
may suffer therewith including, but not limited to, loss of revenue or profits
as a result of Buyer's inability to operate, or shut down of its operations,
loss of use of equipment, or cost of substitute equipment, claims of third
parties, and the like. Buyer shall not, however, be entitled to terminate its
obligations to purchase Product under this Agreement.
ARTICLE XVII. WAIVER OF DEFAULT
-------------------------------
Any failure by either party to give notice in writing to the other party of any
breach or default in any of the terms or conditions of this Agreement shall not
constitute a waiver thereof, nor shall any delay by either party in enforcing
any of its rights hereunder be deemed a waiver of such rights nor shall a waiver
by either party of any defaults of the other party be deemed a waiver of any
other or subsequent defaults.
ARTICLE XVIII. NOTICE
---------------------
Any notice to be given to any party under the terms of this Agreement shall be
deemed to have been delivered if sent by courier service or transmitted by
telefax to the respective addresses or telefax numbers given below:
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[CONFIDENTIAL TREATMENT REQUESTED]
TO QIT: QIT-Fer et Titane Inc.
c/o Rio Tinto Iron & Titanium Inc.
000 Xxxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
Xxxxxx, X0X 0X0
Telefax: 0(000)000-0000
Attention: Director, Sales & Marketing,
---------
Titania Slag and Rutile
TO BUYER: Tioxide Europe Limited
Tioxide House
000-000 Xxxxxxxxxxx Xxxx
Xxxxxx X00 0XX
Xxxxxxx
Telefax: 00.00.000.0000
Attention: Group Minerals Manager
---------
or to such other address or telefax number as either party shall so designate by
providing notice of such other address or telefax number in accordance with the
provisions of this Article. All notices shall be deemed to have been received on
the day of delivery, if delivered by courier service or on the day of
transmission, if sent by facsimile, during normal business hours (9:00 am to
5:00 pm) of the recipient, failing which, such notice shall be deemed to have
been received on the next business day.
ARTICLE XIX. ASSIGNMENT
-----------------------
No party may assign its rights or obligations under this Agreement without the
prior written consent of the other party. The preceding sentence shall not
apply to assignments made to parents, subsidiaries, or related corporations,
partnerships or other entities of the parties hereto, providing that the party
executing this Agreement shall remain primarily responsible for performance of
its obligations hereunder unless such responsibility is waived in writing by the
other party.
ARTICLE XX. ENTIRE AGREEMENT; AMENDMENT, MODIFICATION
-----------------------------------------------------
This Agreement states the entire understanding between the parties hereto with
respect to the subject matter hereof, and there are no agreements or
understandings, oral or written, express or implied with reference to the
subject matter hereof that are not merged herein or superseded hereby. This
Agreement may not be changed, modified or supplemented in any manner orally or
otherwise except by an instrument in writing signed by a duly authorized
representative of each of the parties hereto. The parties recognize that, for
administrative purposes, documents such as purchase orders, acknowledgments,
invoices and similar documents may be used during the term of this Agreement.
In no event shall any term or condition contained in any such administrative
documents be interpreted as
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[CONFIDENTIAL TREATMENT REQUESTED]
amending or modifying the terms of this Agreement whether such administrative
documents are signed or not.
ARTICLE XXI. GOVERNING LAW
--------------------------
This Agreement shall, in all respects, be governed by and construed in
accordance with the laws of Quebec, to the exclusion of the Untied Nations
Convention on the International Sale of Goods.
ARTICLE XXII. CONFIDENTIALITY
-----------------------------
This Agreement and information obtained by one party from the other by virtue of
this Agreement, shall remain confidential and shall not be disclosed to any
third party without the prior written consent of the other party, unless such
information is publicly available, or previously known to the recipient or is
required to be disclosed by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized respective representatives, as of the day and
year first above written.
QIT-FER ET TITANE INC. TIOXIDE EUROPE LIMITED
By: /s/ X. Xxxx By: /s/ D. Rochester
Name: X. Xxxx Name: D. Rochester
Title: President, RIT Sales Division Title: Group Minerals Manager
13
