b. The unit price in cents per pound, U. S. currency, f. o. b. cars, Copper Cliff. Ontario, Canada, to be paid for each delivery of copper hereunder shall be as follows: For deliveries in any month during all or any part of which the price of copper is under control of the United States Government, the price shall be the monthly average f. o. b. refinery quotation for export electrolytic copper for that month as published in E. & M. J. Metal and Mineral Markets; For deliveries in any month during no part of which the price of copper is under the control of the United States Government, the price shall be the monthly average f. o. b. refinery quotation for domestic electrolytic copper for that month as published in E. & M. J. Metal and Mineral Markets. For the purpose of this contract, the price of copper shall be deemed to be under the control of the United States Government when the Government of the United States, or any agency thereof, by order, regulation or other action limits the price of copper or otherwise affects the free market in copper. From any monthly average f. o. b. refinery quotation there shall be deducted as an allowance for standard size cathodes the sum of two dollars and fifty cents ($2.50) per ton of 2,000 pounds. For the purpose of pricing, the month of delivery shall be deemed to be the calendar month during which the copper has been made available to the Government for inspection. c. If at any time during the life of this contract when the price of nickel, or the price of copper for export from the United States, is under the control of the United States Government, acting in its sovereign capacity, the Contractor in all good faith should believe that the prevailing market price of nickel or the E&MJ export price of copper referred to above ceases to represent a free market price. then, upon the written request of the Contractor, the Government and the Contractor shall negotiate promptly with respect to the price or prices to apply to deliveries thereafter to be made under the contract. In the event the parties are unable to agree on a revised price or prices under the contract as hereinabove provided, the Contractor shall have the right by notice in writing to the Government to cancel the contract without cost to either party as to all material not delivered under the contract upon the date of such notice of cancellation and on which the Contractor is not in default. 7. Delivery.—a. Delivery of nickel shall be made, subject to inspection, f. o. b. cars at the Contractor's plant, Port Colborne, Ontario, Canada, during the period January 1, 1954, through June 30, 1958, at the rate of 1,000,000 pounds per month, with the right on the Contractor's part to make deliveries in advance. Provided. however, that delivery as aforesaid under this contract in respect of any month shall be deferred to the extent of the aggregate quantity of nickel (if any) delivered by the Contractor during said month under Contracts Nos. GS-OOP-1474 (SCM) and GS-OOP-2406 (SCM), and the date for completion of deliveries of nickel under this contract shall be extended correspondingly to allow for the delivery of the quantity so deferred. And provided, further, that should all deliv eries against contracts Nos. GS-OOP-1474 (SCM) and GS-OOP-2406 (SCM) be completed before January 1, 1954, then the Contractor shall commence delivery under this contract during the month immediately following the month the former contracts are completed, and the period January 1, 1954, through June 30, 1958, shall be advanced correspondingly. b. Delivery of copper shall be made, subject to inspection, f. o. b. cars at the Contractor's plant, Copper Cliff, Ontario, Canada, during the period January 1. 1954, through June 30, 1956, at the rate of 1,000,000 pounds per month, with the right on the Contractor's part to make deliveries in advance. Provided, however. that delivery of copper as aforesaid under this contract in respect of any month shall be deferred to the extent that the quantity of nickel which the Contractor is required to deliver under this contract during said month is less than 1,000,000 pounds, and the date for completion of deliveries of copper under the contract shall be extended correspondingly to allow for the delivery of the quantity of copper so deferred. And provided, further, that to the extent (if any) that the period January 1, 1954, to June 30, 1958, for the delivery of nickel is advanced pursuant to the last sentence of subparagraph (a) of this Article, the period January 1. 1954, to June 30, 1958, for the delivery of copper shall be advanced to the game extent. c. Shipment shall be made on Government Bills of Lading which will be furnished by the Government within 15 days after each delivery is tendered; or should the Government request the Contractor to ship the material on other than Government Bills of Lading the Contractor shall do so, it being understood that in each case of a delivery on commercial bills of lading, the Government shall prepay the transportation charges. Should d. (It is understood that the Contractor shall be required to make deliveries of nickel or copper hereunder only as and when the material is available after assuring itself of its ability to meet the requirements (including governmental allocations) of its customers and of its affiliates throughout the world.) the Contractor be unable to deliver, for the reasons set forth herein, it shall promptly consult with the General Services Administration, Emergency Procurement Service, for the purpose of arriving at a solution with respect to deliveries satisfactory to the Government and the Contractor. e. If deliveries hereunder should be suspended or restricted by order of any governmental agency in Canada, the period for making deliveries hereunder shall be extended accordingly. 8. Inspection, sampling, analyzing, and weighing.—a. Inspection shall be performed by the Government Inspector or other Government designated representative at Inco's plant at any reasonable time between the date of tender and 30 days thereafter. In the event the Government fails to make such inspection within the said 30-day period, the tendered delivery shall be considered delivered subject to subsequent analysis by the Government or its designee, and shall be loaded on cars and shipped by the Contractor in accordance with the terms of the contract. b. Sampling and analyzing of nickel shall be performed by the Government or its designated representative in accordance with the methods prescribed by the American Society for Testing Materials Specification B–39–22, latest revision in effect as of the date of each delivery hereunder, in full sized cathodes if inspected during the 30-day period, or with appropriate adjustment for 12-inch by 281⁄2-inch size, if shipped without prior inspection; any claims, investigation of claims, and settlement of claims with respect to the chemical requirements of the material shall be made in accordance with said Specification, it being understood that for this purpose "receipt of material at the purchaser's plant," shall mean arrival of material at immediate destination in the United States. c. Sampling and analyzing of copper shall be performed by the Government or its designated representative in accordance with the methods prescribed by the American Society for Testing Materials Specification B-115-43, latest revision in effect as of the date of delivery hereunder, and any claims, investigation of claims, and settlement of claims with respect to metal content and resistivity of the material shall be made in accordance with said Specification, it being understood that for this purpose "receipt of the copper by the purchaser" shall mean arrival of material at immediate destination in the United States. d. Contractor's sworn weight certificates shall govern as to quantity. Cost of weighing, if any, shall be for the account of the Contractor. The Government if it so desires may have a representative present during weighing. 9. Shipment and expediting.-The Contractor shall notify the Director, Storage and Transportation Division, Emergency Procurement Service, and the Federal Supply Service, Inspection Division, for the area (of which the Contractor will. be subsequently informed) not less than ten (10) days prior to anticipated availability of the material for inspection and shipment, stating the point at which such material is available for inspection, and the Contractor shall act as forwarding agent, effecting shipment and the distribution of documents in accordance with shipping instructions issued by the said Division. The Government representative shall be accorded full cooperation of the Contractor in connection with the expediting, inspection and shipping activities under this contract. 10. Payment.-The prices as given above are net for payment in Toronto in United States funds (for which purpose the receipt of a United States Treasury Department check by the Contractor in Toronto will serve) within thirty days from date of invoice, and after inspection and acceptance by the Government at the Contractor's plant. Invoices will be rendered as of the respective dates on which the Contractor makes delivery of the material to the Government. Invoies will be accompanied by sworn weight certificates. 11. Taxes and charges.-All Canadian taxes or charges, general or local, now or hereafter imposed, in respect to the material sold hereunder or the production, extraction, procesing, sale, exportation, proceeds or value thereof, shall be for the account of the Contractor. The Government of the United States will arrange for customs entry of the material into the United States and all United States import taxes or duties, if any, shall be for the account of the Government. 12. Warranty.-The Contractor warrants that the material sold hereunder shall be free and clear of all encumbrances and claims of third parties. The Con39888-54-pt. 2--18 tractor shall indemnify, hold harmless and defend the Government against all claims and demands with respect to such material. 13. Assignment of claims.-(a) Pursuant to the provisions of the Assignment of Claims Act of 1940, as amended (31 U. S. Code 203) (41 U. S. Code 15), if this contract provides for payment aggregating $1,000 or more, claims for moneys due or to become due the Contractor from the Government under this contract may be assigned to a bank, trust company, or other financial institu tion, including any Federal lending agency, and may thereafter be further assigned and reassigned to any such institution. Any such assignment or reassignment shall cover all amounts payable under this contract and not already paid, and shall not be made to more than one party, except that any such assignment or reassignment may be made to one party as agent or trustee for two or more parties particiuating in such financing. Notwithstanding any other provision of this contract, payment to an assignee of any moneys due or to become due under this contract shall not, to the extent provided in said act, as amended, be subject to reduction or set-off. (b) In no event shall copies of this contract or of any plans, specifications or other similar documents relating to work under this contract, if marked "Top Secret," "Secret," "Confidential," or "Restricted," be furnished to any assignee of any claim arising under this contract or to any other person not entitled to receive the same: Provided, That a copy of any part or all of this contract so marked may be furnished, or any information contained therein may be disclosed, to such assignee upon the prior written authorization of the Contracting Officer. 14. Notices. All notices and communications required in connection with the contract shall be either in writing or by telegraph, and if intended for the Government shall be sent to it at 7th and D Streets, SW., Washington 25, D. C., and if intended for the Contractor shall be sent to it at 25 King Street West, Toronto 1, Ontario, Canada, or to such other address as either party may hereinafter specify to the other in writing. 15. Force majeure.-Article 12 of the General Conditions of the contract is deleted in its entirety, and the following clause is substituted therefor: a. Except as hereinafter provided in subparagraph (b) of this Article, in the event the Contractor refuses or fails to make deliveries of the material conforming to the specifications within the time provided or any extension thereof, or to perform faithfully any conditions of the contract, the Contracting Officer, without prejudice to other rights resulting from breach of the contract condi tions, may, by written notice, terminate the right of the Contractor to proceed with any or all remaining deliveries under the contract. b. Any strike, lockout, difference with workmen, labor shortage, accident, fire, explosion, flood, mobilization, war (whether declared or undeclared) act of any belligerent in any such war, riot, rebellion, revolution, blockade, requirements, regulation, restriction, or other act of any government, whether legal or otherwise, the elements, inability to secure or delay in securing cars, fuel, or other supplies or materials or electric power necessary for the operation of the mines and plants where the products sold hereunder are produced, delays or interrup tions to transportation by rail, water or otherwise, damage to or destruction of such mines or plants and any other contingency which is beyond the reasonable control of the Contractor, from which the products hereby sold are to be obtained, whether or not the nature or character hereinbefore specifically enumerated, either at the mines, or plants where the products sold hereunder are produced or elsewhere, and which delays or interferes with the performance of this contract shall be considered sufficient justification for delay in making shipments, delivery or performance hereunder in whole or in part until such cause ceases to exist; and this contract shall be deemed suspended so long as such cause prevents or delays its execution: Provided, however, that no single cause or condition of force majeure shall extend this contract beyond 90 days, unless extended by mutual agreement, at which time this contract shall automatically terminate as to any then-undelivered portion without liability to either party. Any termination under this Article shall not relieve the Government of its liability to pay for any and all materials delivered by aforesaid time, in accordance with the delivery terms of this contract. c. Unless the Contractor shall furnish the Government with written notice of the nature and extent of any force majeure condition referred to in paragraph (b) hereof, which is claimed to exist, within 30 days after the happening thereof, the Terms and Conditions of said paragraph (b) shall not become operative with respect thereto. 16. Maximum obligation of the Government.-Notwithstanding any other provisions of this contract, the maximum obligation of the Government hereunder shall not exceed $50,000,000.00. In the event the amount due or payable to the Contractor for deliveries of material hereunder totals the aforesaid dollar amount prior to the completion of this contract, any undelivered quantities of material otherwise deliverable pursuant hereto shall be cancelled without liability to the Government. 17. Certification of invoices.-Each invoice shall have printed, stamped, or typed thereon the following certification, to be signed by the Contractor's authorized representative, with his title indicated. "I certify that the above bill is correct and just; that payment therefor has not been received." Each invoice shall also contain a separate statement as follows: "The material covered by the invoice is of Canadian origin." 18. Distribution of documents.-Documents shall be distributed in accordance with the attached form headed "Distribution of Documents" which is made a part hereof. 19. Terms of delivery.-The term "F. O. B. Contractor's Plant," to which this contract is subject, means: (a) On board the indicated type of conveyance of carrier (or of Government where the contract so indicates), free of expense to the Government, at the contractor's plant, store, warehouse, or other designated facility, from which the shipment will be made; (b) That it shall be the responsibility of the contractor to do the following: (1) Pack and mark in such manner as to afford adequate protection against normal transportation hazards and secure prompt delivery to the consignee, and comply with all packing and marking specifications of the contract: (2) Where carload rail shipments are involved, order cars not in excess of the length, capacity, and number necessary to accommodate shipments, and to do everything possible to see that cars are furnished; (3) Properly load, stow, block, and brace goods on, or in conveyance of carrier, in the case of carload or truckload shipments, or delivery shipments of less than carload or less than truckload in good order to carriers for loading; (4) Fill in blank spaces on Government bills of lading which are supplied by ordering agencies, or, when Government bills of lading are not supplied, prepare commercial collect bills of lading or other transportation receipts (endorsed "To be converted to Government bill of lading at destination"), to show (i) description of shipment in freight classification nomenclature (not trade or popular name, if these are different from freight classification description) under which lowest freight rates are applicable, (ii) length and capacity of cars ordered and furnished in the case of carload shipments, (iii) other information not inserted by the ordering agency, which is required to effect prompt delivery to consignee at minimum cost, such as name and postal address of consignee, destination, routing, etc. (iv) signature thereon of carrier's agent, receipting for shipment in good order; (5) Distribute the several parts of bill of lading, or other transportation receipts, as directed by the ordering agency; (6) Be responsible for any loss or damage occurring after delivery to carrier at contractor's plant, either loaded in carrier's or Government's conveyance or for loading, as the case may be, or while en route from contractor's plant to public team track for loading caused by his error or negligence; (7) Be responsible for local drayage, switching, or other accessorial charges accruing at the point of origin, which are not borne by the carrier receipting for the shipment at that point, caused by his error or negligence in performing his applicable responsibilities as set forth herein; (8) Be responsible for all damages (including accessorial charges) resulting from negligence or error in packing, marking, and delivering shipment to carrier, and, when loaded by contractor, in loading, stowing, blocking or bracing of shipment on or in carrier's conveyance, or resulting from negligence or error in the completion or distribution of Government bills of Jading or other transportation receipts or documo* *. 20. Examination of records. (a) The Contractor agrees that the Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of three years after final payment under this contract, have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor involving transactions related to this contract. (b) The Contractor further agrees to include the following provisions, with appropriate insertions, in all his subcontracts hereunder : "(Name of Subcontractor) agrees that the Comptroller General of the United States or any of his duly authorized representatives shall, until the expiration of three years after final payment under prime contract GSOOP-3423 (SCM) between the United States of America and The International Nickel Co. of Canada, Limited, have access to and the right to examine any directly pertinent books, documents, papers, and records of (Name of Subcontractor) involving transactions related to this contract." DISTRIBUTION OF DOCUMENTS FOR MATERIALS OF MEXICAN AND CANADIAN ORIGIN The Contractor shall furnish documents in the quantities specified and make distribution as follows: A. To be mailed to the Examination Branch, Accounts and Reports Division, General Services Administration, 7th and D Streets SW., Washington 25, D. C. 1. Original and two (2) copies of properly certified invoice. 2. Two (2) certified copies of weight certificates prepared as required in this contract. 3. Other documents as required by this contract or otherwise requested by specific shipping instructions. B. To be mailed to Director, Storage and Transportation Division, Emergency Procurement Service, General Services Administration, 7th and D Streets SW.. Washington 25, D. C. 1. One (1) certified copy of weight certificate. 2. Two (2) memo copies of Government or Commercial Bill of Lading. 3. Other documents as requested by specific shipping instructions. C. To be mailed to the Collector of Customs at the United States Port of Entry through which material is to be entered and imported into this country. (Address is furnished with shipping instructions.) 1. One (1) memo copy of Government or Commercial Bill of Lading. D. To be mailed to the storage depot indicated in the shipping instructions issued by the Storage and Transportation Division. 1. One (1) certified copy of weight certificate. 2. Other documents as requested by specific shipping instructions. GENERAL SERVICES ADMINISTRATION, AMENDMENT No. 10 TO CONTRACT NO. GS-OOP-1474 (SCM)-NICKEL BETWEEN THE INTERNATIONAL NICKEL COMPANY OF CANADA, LIMITED, AND GENERAL SERVICES ADMINISTRATION, EMERGENCY PROCUREMENT SERVICE THIS AMENDMENT, entered into between The International Nickel Company of Canada, Limited, 25 King Street West, Toronto, Ontario, Canada, hereinafter called the "Contractor," and the United States of America, acting through the General Services Administration, Emergency Procurement Service, hereinafter called the "Government"; WHEREAS, the National Production Authority by revised letter dated October 27, 1952, requested that the Contractor be permitted to divert 1,000,000 pounds of nickel due the Government under this contract (500,000 pounds each month November and December 1952), said quantities to be made available to The International Nickel Company, Inc., 67 Wall Street, New York 5, New York. U. S. A., subject to the instructions of the National Production Authority to that Company: NOW, THEREFORE, it is agreed as follows: |