DISTRIBUTOR AGREEMENT

DISTRIBUTOR AGREEMENT

NO: 003/V/2010-001

THIS AGREEMENT is made in Makasar, Indonesia by and between.

PT ABC, a limited liability company, established under the laws of the Republic of England, domiciles in England, (hereinafter referred to as “Seller”) and this matter is represented by Mr. JOHN, President Director PT ABC, acting on behalf and for the sake of seller.

And

PT XXX, a limited liability company, established under the laws of the Republic of Indonesia, domiciles in Makasar, South Sulawesi Indonesia (hereinafter referred to as “Distributor”) and in this matter is represented  by Mr. SUSILO, President Director PT XXX, acting on behalf and for the sake of seller.

WINESSETH

-Whereas Seller operates a copper smelter and refinery and other related facility (hereinafter referred to as “CSR”) in Makassar, Indonesia;

-Where as Seller is capable of producing copper cathode slag and other products and is willing to sell and deliver its water-granulated copper slag (herein-after referred to as “Copper slag”) to Indonesia.

(Hereinafter referred to as Buyer) trough Distributor;

-Whereas Distributor intends to purchase and receive Copper Slag for Buyer;

-NOW THEREFORE, in consideration of the foregoing premises and covenants and articles hereinafter set forth, Seller and Distributor hereto have mutually agreed to enter into a DISTRIBUTOR AGREEMENT as hereunder set forth.

ARTICLE 1

THE PURPOSE OF THE AGREEMENT

1.      The purpose of this Agreement is to create Distributor Relationship between Seller and Distributor, in which Seller agrees to sell and deliver Copper Slag to Buyer through Distributor.

2.      This Agreement shall not constitute Distributor the agent or legal representative of Seller for any purpose whatsoever, not shall Distributor hold it self as such.

3.      Both Seller and Distributor are acting as principals.

4.      Although this Agreement is not intended to appoint Distributor as sole Distributor, Seller should obtain prior written consent from Distributor if it appoints other distributor’(s) that purchase Copper Slag from Seller and sell it to Indonesia.

ARTICLE 2

TERM OF AGREEMENT

1.      The term of this Agreement shall be 10 (ten) years from the date hereof.

2.      The term of this Agreement shall be broken into 10(ten) contract years, each of which begins on.

Definition Clause

3.      Has the Agreement expired as specified in paragraph (1) of this Article. Seller agrees to give Distributor option to exted other successive periods.

4.      Either party may not terminate this agreement prior to the expriry date without written consent of the other party.

ARTICLE 3

DELIVERY

1.      Seller shall delivery and Distributor shall receive Copper Slag at the CSR FOT by trucks or FOB by ship arranged by Distributor at Distributor cost according to Inconterm 2000.

2.      Seller shall not delay to deliver Copper Slag as specified an Article 4 (1) of this Agreement and Seller warrants the continuation of supply of Copper Slag during the contract years.

ARTICLE 4

QUANTITY

1.      Seller and Distributor agree that quantity of Copper Slag to be delivered by Seller and received by Distributor as follows:

a.       From January … to December … : between 00,000 wet metric tons and 00,000 wet metric tons monthly.

b.      From January … to December … : between……,…… wet metric tons and …..,…… wet metric tons monthly.

2.      The delyvery of fixed monthly quantity of Copper Slag as specified in paragraph (1) of this article shall be made in 11 (eleven) months within the corresponding contract years.

3.      With reference to article 4 (1) of this Agreement, the fixed quantity of Copper Slag to be delivered by Seller and to e received by Distributor yearly during the term of this Agreement shall e negotiated and agreed by Seller and Distributor no later than one month before the beginning of each contract year.

4.      With reference to Article 4(1) of this Agreement, the fixedquantity of Copper slag to be delivered by Seller and to be received by Distributor monthly during 1 (one) contract year shall be negotiated and agreed by Seller and Distributor no later than 5 (five) days before the beginning of each calendar month.

5.      In the case that at the request of Buyer, Distributor needs more Copper Slag to be delivered than that is specified in the Agreement, the fixed additional quantity shall be negotiated and agreed Seller and Distributor.

ARTICLE 5

WEIGHING

Seller or its representative and Distributor or its representetative at its respective expense has the right to be present during the weighing at the Buyer’s Plants.

ARTICLE 6

WARRANTY

Seller warrats distributor against claim of Buyer on quality of Copper Slag to be delivered.

ARTICLE 7

PRICE

FOT or  FOB (according to incoterm 1990) price of copper slag shall be determined by Seller and Distributor based on negotiation concluded by the parties.

ARTICLE 8

PAYMENT

1.      Seller shall prepare and submit to Distreibutor a monthly invoice stating the amount in Rupiah by the fifth (5^th)day of the following month of delivery and Distributor shall remit payment in full of the amount due under such invoice by the end of the following month of delivery.

2.      With reference to Indonesian Tax Law, Distributor shall make payment of value-added tax imposed upon the purchase of Copper slag from Seller.

ARTICLE 9

PRODUCT SPECIFICATION

The anticipated specification of Copper Slag is envisaged in Appendix A, which is attached to and it forms an integral part of this Agreement.

ARTICLE 10

FORCE MAJEURE

1.      If the parties are prevented from perfoming any obligation under this Agreement or arising in conection herewith by reason beyond their control, including but not limited to acts of God, embargo, war, riot, strikes, lock-outs, fire, floods, earthquake, inclement weather, governmental actions, change in government regulation, shortages of labor or utilities, catastrophic economic conditions or any other similar cause whatsoeever beyond the parties control (collectively reffered to herein as “Force Majeure), the parties shall be under no liability whatsoever provided that the parties have used reasonable diligence to avoid such “Force Majeure” and ameliorate effects, and they shall continue taking actions within their respective power to comply as fully as possible with the terms of this Agreement.

2.      In case of delay of supply caused by “Force Majeure”, Seller should notify Distributor no ater than 3 (three) days after the event.

3.      Shall there be a delay of supply caused by “Force Majeure” Seller shall deliver Copper Slag immediately after the “Force Majeure” has been addressed.

ARTICLE 11

GOVERNING LAW AND APPLICABLE LANGUAGE

1.      The applicable law governing this agreement is the Law of the Republic of Indonesia.

2.      The applicable language of this agreement is English.

ARTICLE 12

DISPUTE RESOLUTION

1.      All disputes, controversies or differences which may arise between the Parties out of or in relation to or in connection with this agreement, or relating to the construction, termination or breach hereof, shall be resolved through amicablesolution by the parties.

2.      If within 30 (thirty) days, the parties fail to reach solution as provided in paragraph (1) of this Article, the parties agree to bring the dispute to be settled by Badan Arbitrase Nasional Indonesia (BANI) under the UNCITRAL rules.

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.

                                                                                                Makasar, 12 Mei 2010

Seller                                                                           Distributor

           JOHN                                                                           SUSILO

SURAT KUASA SUBSTITUSI

SURAT KUASA SUBSTITUSI

Yang bertanda tangan dibawah ini :

....................................... Kuasa dari dan atas nama PT. ABC berkedudukan di ............ dan berkantor Pusat di ..............................................., demikian sebagaimana termuat dalam Surat Kuasa No. ......................... tanggal.........................  kuasa mana diberikan baik sendiri-sendiri maupun bersama-sama dengan para kuasa lainnya dengan hak substitusi, maka dengan ini selaku salah seorang kuasa tersebut diatas, saya memberikan Kuasa Substitusi Kepada :

..........................................

Bertindak selaku karyawan dari dan atas nama ............................ berkantor di ............................................................. selanjutnya disebut juga “ PENERIMA KUASA SUBSTITUSI “

----------------------------------------------- KHUSUS ---------------------------------------------

Untuk dan atas nama serta mewakili .............................. bertindak selaku TERGUGAT ......... dalam Perkara Perdata No. ......................... di Pengadilan ................., yang diajukan oleh ....................., Dkk selaku Para Penggugat

Untuk melakukan segala tindakan hukum yang diperlukan untuk kepentingan hukum Pemberi Kuasa sehubungan dengan perkara tersebut diatas

Sehubungan dengan Kuasa Substitusi tersebut, maka penerima kuasa substitusi baik sendiri-sendiri maupun bersama-sama dengan kuasa lain tanpa mengurangi kuasa sebelumnya berhak melakukan tindakan-tindakan sebagaimana tercantum pada Surat Kuasa No. ....................................... tanggal ................................. tersebut.

Demikian Surat Kuasa Substitusi ini dibuat untuk dipergunakan sebagaimana mestinya.

.........................., ...........................................

Pemberi Kuasa Substitusi

......................................................

Penerima Kuasa Substitusi

...........................................................

CONSORTIUM AGREEMENT

CONSORTIUM AGREEMENT

NO: ABC-XXX/PT. 123 Project/V/2012-001

PROJECT:  (Project Name)

This Consortium Agreement is made in Baoding, China, by and between:

Mr. Bunga, President Director of PT. ABC, act on behalf of PT. ABC, a Company established and existing under the laws of the Republic of Indonesia with its principal office at Jl. Pelangi,  Jakarta – Indoniesia. (hereinafter referred to as of “ABC”).

And

Mr. Melati, Project Manager, XXX Co., Ltd., a Transformer Manufacturer Company domiciled in No.1234 , Shanghai, China. (hereinafter referred to as of “XXX”).

Hereinafter collectively referred to as the “Parties” and individually as the “Party”

WHEREAS PT.123 (the “Employer”) has invited interested Consortiums to submit their participation in the tender for the project of:

(Project name)

Where the Parties hereto now desire to form a Consortium and together co-operate and work exclusively with each other with a view to prepare and submit a tender for the Project, and complete the Works (hereinafter referred to as “the Contract’).

NOW THEREFORE, it is agreed as follows:

Article 1: PURPOSE OF AGREEMENT.

1. The Parties hereby form a Consortium being an incorporated association for the limited purpose of preparing and submitting the Tender and thereafter, if the Tender is accepted by Employer, of signing the Contract, and of jointly and severally performing all obligations under the Contract.
2. The name of Consortium shall has its Head Quarters addressed at Jl. Pelangi,  Jakarta – Indoniesia. (ABC’s address in Jakarta)

Article 2: CONSORTIUM SHARE:

1. PT. ABC                   30 %
2. XXX Co., Ltd           70 %

Article 3: LEADER OF CONSORTIUM

XXX shall act as Leader of Consortium, and ABC shall act as member of the Consortium. (ABC hereby give fully authorization to the XXX for and on behalf of the Consortium) XXX should be together with ABC to attend every and all steps of the Tender as determined by the Tender Committee, including attending its Pre-qualification, taking any Tender documents, participating in the explanation meeting (pre-bid meeting), submitting offering letter, opening the Tender and other related steps; such authorization will be given separately by signing power of attorney and it is as integral part of this Consortium Agreement

Article 4: OBLIGATIONS OF THE PARTIES

Notwithstanding XXX shall act as Leading Consortium, each Party hereto shall be responsible to the Employer for the obligations arising out of the performance of this Agreement, The internal liabilities and responsibilities among the Parties within the Consortium to be intensive, cooperative and responsible among other Parties in the event that the Consortium is awarded the Contract by the Employer.

XXX Liabilities:

XXX shall be responsible for the engineering matters, material procurement, fabrication and factory testing, packaging and any other activities related through the destination port (CIF unloading port, offloading not included), site supervision of erection, commissioning and warranty insurance.

ABC Liabilities:

ABC is responsible to deliver the transformer from unloading port to the site, conducting erection and commissioning, installation, civil works required in the tender documents such as transformer foundations, etc. Customs clearance, and handling for the factory inspection and product training trip to XXX’s factory, and transformer part factory, on load tap changer and Bushings and Certificate of installation services, insurances of inland transport and site installation shall also be the responsibility of BJA.

Article 5: MEETING AND CORPRESPONDENCE

1. Internal Correspondence

Decisions of Consortium can be made in writing by facsimile, by telephone and e-mail. Written communication under the agreement shall be in English and delivered to the parties at their addresses, as follows:

·         Baoding XXX Co., Ltd

            in No.1234 , Shanghai, China

            Tel.:.......................

            Fax: .......................

           Email: .......................

            And

PT. ABC

Jl. ................................

Phone            : ..........................

Fax     : ..........................

Email  : ..........................

2. External Correspondence

All official correspondence from the Employer to the XXX – ABC Consortium shall be addressed to Consortium XXX – ABC and if it is considered necessary shall be immediately transmitted to

           

·         XXX – ABC Consortium

JI. ...................................................................

Phone            : ................................

Fax     : ................................

Email  : ................................

for further follow-up in relation to execution of the PROJECT.

3. Meeting

CONSORTIUM mutually agrees that there will be meeting and discussion on the bidding strategy to win the PROJECT. That Meeting shall be held in Jakarta, ABC’s office till the PROJECT awarded to the CONSORTIUM.

The Frequency of the meeting will be increased and established later once the PROJECT awarded to CONSORTIUM.

Article 6: COST AND EXPENSES

1. Expense incurred by a Party in connection with their own preparation for the Tender up to the date of award of the Contract shall be borne by that Party incurring such expense.
2. Bid Bond, Performance Bond and Payment Bond and their relevant expenses shall be issued and borne by the Parties prorated based on the above percentage Share in Article 2.
3. Especially for taxes, XXX is responsible for taxes up to CIF Indonesian port. ABC shall be responsible for customs duties or any other taxes levied by Indonesian Government.

Article 7: NEGOTIATION OF SUBSEQUENT AGREEMENT

In the event the contract is awarded to the CONSORTIUM, (hereinafter referred to as “Main Contract”) as result of the Tender Proposal, the Parties hereto shall immediately after the award, negotiate the Contractual Relationship for the performance of the Main Contract and determine the details of the rights and obligation of the parties hereto, as necessary to perform the PROJECT under the Consortium Agreement To Execute the Project.

Article 8: TERMINATION OF AGREEMENT

Except for the right of the Parties with respect to Confidentiality, and unless extended by mutual written agreement of the Parties, this agreement shall automatically terminate upon the happening of any of the following event:

1.     The negotiation and signature of the Consortium Agreement To Execute the Project between the parties for the Project.

2.     The the Employer’s written notification of the cancellation of the proposed contract.

3.     The the Employer’s written notification that it will not award the Main Contract to Consortium for the Project.

4.     The PLN’s written notification of the award the Main Contract for the Project to a Bidder other than Consortium.

5.     The mutual written agreement of the Parties to terminate.

6.     The petition by one of the parties for bankruptcy or reorganization under the bankruptcy laws or assignment of the benefit of creditors.

7.     A material breach of the provisions of this agreement by a party which is not corrected within fourteen (14) days after receipt of written notice of such breach provided by the other party.

Article 9:  PREPARATION OF TENDER PROPOSAL AND PROJECT PRICE 

                    NEGOTATION

1. It is intended that XXX Co., Ltd as the Consortium Leader together with the member of the Consortium will complete, sign and submit the proposal to the Employer on behalf of the Consortium, and parties agree to jointly prepare the tender proposal with respect to all scope of work as stipulated in the work scope.
2. The parties shall provide appropriate an high quality personnel and use it’s best efforts to prepare and submit to Consortium such data as are required for use in preparation and submission of the tender proposal through effective engineering work and calculation and project performance where ever needed based on all of work scope. However, subject to prior consent and approval from all Parties, when it is necessary either Party’s scope for the success of the completing the tender proposal.
3. In the Course of preparation, the Parties mutually agree to quote the very competitive price on their individual scope of work based on the agreed price policy for the tender submission. However, subject to prior consent on approval from all Parties, when it is necessary either Party may request other Party in this Agreement to make price adjustment to that’s individual Party’s scope.

Article 10: ASSIGMENT.

No Party has the right to assign or transfer any part of its right and obligation created by this Agreement to any person outside the Consortium without prior written approval of the order Parties hereto.

Article 11: DISPUTE.

1. Any dispute, controversies or claims arising out of pertaining to this Agreement of breach hereof which are not amicably settled among the Parties to this Agreement shall be finally resolved at arbitration BANI, in Indonesia.
2. Any Publication regarding the PROJECT shall require the approval of all Parties.

Article 12: LAW

The Parties hereto agree that this Agreement shall be constructed under the laws of the People’s Republic of Indonesia

Article 13: EXCLUSIVITY

None of the Parties hereto shall either directly or indirectly, bid or perform the work for Contract or part thereof separately or combination with third parties out side Agreement unless prior written consent by the other Parties to their subsidiaries and any affiliated companies, firm or persons over which they may from time to time exercise control.

Article 14: CONFIDENTIALITY

The Parties hereby agree to keep all maters pertaining in the Agreement and that disclosed by and about each to the other confidential between them until; such time as the Contract of the Project has been discharged in full or three years after signing of this Agreement, whichever coming later.

Article 15: AMENDMENT

Any and all matters, terms and conditions related to but not specially stipulated in this Agreement amicably by and among the Parties and settled in good faith by mutual agreement as necessary may require.

IT WITNESS THEREOF, the parties hereto have caused this Agreement to the duly executed and delivery by their authorized representative on the day year first above written.

This agreement is made in two (2) copies of originals with equal legality, where each PARTY shall keep one copies of originals.

Jakarta, May   12th, 2014

Mr. Melati

Project Manager

XXX Co., Ltd.

(Signature)

Mr. Bunga

President Director of PT. ABC

(Signature)