COLLABORATION FRAMEWORK AGREEMENT
August
3, 2009
This
collaboration Framework agreement (hereinafter referred to as the Agreement) is
made on and shall be effective as of August 3, 2009, by and between
AREVA, a
French public limited company with a management board and supervisory board
organized and existing under the laws of France, with capital of 1,346,822,638
euros, registered under N° ▇▇▇ ▇▇▇ ▇▇▇ at the Paris Registry of Trade and
Commerce, and whose registered head-office address is ▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇ Cedex, acting for itself and its Affiliates represented by ▇▇. ▇▇▇▇▇▇▇
Champalaune in his capacity as Vice President Purchasing,
hereinafter
referred to as “AREVA”
on
the one hand,
And,
THORIUM
POWER, LTD., a Nevada corporation, whose executive office address is ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇, represented by Seth GRAE, in
his capacity as President & CEO
hereinafter
referred to as "THORIUM POWER",
on
the other hand,
Referred
to hereafter individually as a “Party” and collectively as the
“Parties.”
RECITALS
Whereas,
THORIUM POWER has an expertise in a thorium seed-blanket fuel assembly design
for VVERs aimed at enhancing proliferation-resistance and reducing the amount of
waste to be disposed of while maintaining competitive economics and ensuring
increased safety margins.
Whereas,
AREVA and THORIUM POWER have started informal exchanges with each other in early
2009 to further investigate various thorium fuel cycle options including one
based on THORIUM POWER’s fuel assembly seed-blanket concept. An information
meeting was held on February 10th 2009
followed by technical exchanges and a more detailed scientific meeting took
place on May 21-22nd 2009
(at THORIUM POWER’s offices).
1
Whereas,
AREVA and THORIUM POWER have agreed to conduct at least a Phase 1 and a Phase 2
for Investigation of Specific Topics of Thorium Use in Various Reactor and Fuel
Cycle Options (hereinafter referred to as “Preliminary Phases”) as stated in the
Initial Collaboration Agreement signed by the Parties on July 22,
2009.
AREVA and
THORIUM POWER have decided to anticipate the terms and conditions of the
collaborations that should follow the Preliminary Phases by entering into a
Collaboration Framework Agreement.
This
Collaboration Framework Agreement aims at investigating the market potential for
thorium use in future nuclear power plants specifically with a view on assessing
the potential to deploy evolutionary and seed-blanket thorium fuel assemblies in
LWRs valorising both AREVA’s and THORIUM POWER’s background and foreground
knowledge. As part of such potential future deployment, AREVA and THORIUM POWER
will also investigate the conditions of Access rights to THORIUM POWER’s
background and foreground that will be needed by AREVA to use its own
Foreground.
Considering
the above the Parties agree the following terms and conditions.
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1.
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DEFINITIONS
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1.1.
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"Access rights" means
licences and user rights with respect to Foreground or
Background.
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1.2.
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“Affiliate” means any
person (any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust,
unincorporated organization, or any government agency, government or
political subdivision thereof) that, directly or indirectly, controls, is
controlled by or is under common control by a Party. “Control”
shall be deemed to exist where a person owns or holds, directly or
indirectly, a 50% or greater beneficial equity interest in another
person.
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1.3.
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“Approved Project Plan”
means a Project Plan that is approved by the Steering
Committee.
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1.4.
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“AREVA” means AREVA
and AREVA Affiliates.
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1.5.
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“AREVA Material” means
Material that AREVA has supplied to THORIUM POWER or has made available
for a Collaboration Project according to an Approved Project Plan under
this Agreement.
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1.6.
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“Background” means IPR
held directly or indirectly by the Parties prior to their agreement to a
given Collaboration Project which is needed for carrying out a
Collaboration Project or for using the Foreground. The
Background dedicated to a specific Collaboration Project shall be limited
to the elements listed expressly in the Approved Project
Plan.
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1.7.
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“Collaboration” means any
and all research and development activities in the field of Thorium fuel,
whether carried out jointly or separately by the Parties, under this
Agreement.
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1.8.
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“Collaboration Project”
means a project within the Collaboration that is approved by the Steering
Committee.
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1.9.
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“Confidential
Information” means know-how, scientific, technical, commercial and
strategic information and all other information that is identified in
writing at the time of its disclosure as confidential by the Party
disclosing it or that a reasonable person would understand under the
circumstances to be of a confidential nature, and which is disclosed by a
Party or on behalf of a Party to the other Party in connection with this
Agreement.
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1.10.
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“Foreground” means the
results, including without limitation information, materials and
knowledge, generated in a given Collaboration Project, whether or not they
can be protected by an IPR. Results generated outside a
Collaboration Project before, after or in parallel with the Collaboration
Project do not constitute
Foreground.
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1.11.
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“Intellectual Property
Right” or
“IPR” means patents, any extensions of patents, ▇▇▇▇▇ patents,
utility models, registered designs, trade marks, service marks,
applications for any of the foregoing (including, but not limited to,
continuations, continuations-in-part and divisional applications), the
right to apply for any of the foregoing, copyrights, design rights,
database rights, software, codes, publication rights, rights in know-how,
trade secrets and Confidential Information and all other forms of
intellectual property right having equivalent or similar effect to any of
the foregoing which may exist anywhere in the
world.
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1.12.
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“Material” means
material, such as equipment, software, instruments, systems, devices,
media, methods, databases, samples and prototypes, provided by a Party to
the other Party in connection with a Collaboration
Project.
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1.13.
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“Product” means any
equipment, software, instrument, system, device, media or method that is
developed by the Parties during the course of a Collaboration
Project.
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1.14.
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“Project Data” means any
data in printed or digital form generated during the course of, and as a
result of, the Parties, jointly or solely, performing a Collaboration
Project.
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1.15.
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“Project Plan” means a
written plan that defines the joint research and development activities
contemplated by the Parties, including without limitation technological
goals, tentative specifications, funding, milestones, resources needed
from each Party, identification of Background, any Reserved Fields and the
royalties associated with the use of Foreground by the Parties and for the
production use of Background in connection with the
Foreground. Project Plans are attached hereto as Annexes 1, 2,
3 and so forth.
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1.16.
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“Reserved Field“ means a
technical field granted to a Party as specified in an Approved Project
Plan. Any Foreground belonging to such Reserved Field shall be
exclusively assigned to said Party. Each Reserved Field shall
be limited to the elements listed expressly in the Approved Project Plan,
which shall prevail in case of conflict with terms and conditions of this
agreement.
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1.17.
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“Steering Committee”
means the committee set up by the Parties composed of an equal number of
authorized representatives of AREVA and THORIUM POWER that will supervise
and monitor the Collaboration as set forth in Section 4 (Reporting and
Management).
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1.18.
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“Submitting Party” mean
the Party that submits a proposal for a Project Plan to the Steering
Committee.
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1.19.
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“THORIUM POWER Material”
means Material that THORIUM POWER has supplied to AREVA or has made
available for a Collaboration Project according to an Approved Project
Plan under this Agreement.
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1.20.
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“Use” means the direct or
indirect utilisation of Foreground or Background in further research
activities, including but not limited to contract research, or for
developing, creating and marketing a product or process, or for creating
and providing a service.
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2.
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SCOPE
OF AGREEMENT
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Following
the completion of the Preliminary Phases, AREVA and THORIUM POWER shall jointly
investigate the potential use of thorium in AREVA’s LWRs and future reactor
designs under study by AREVA and will undertake collaborative research and
development activities aimed at deploying a thorium business.
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2.1.
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At
least twice a year, AREVA and THORIUM POWER shall mutually agree on the
detailed tasks and planning to be performed under any Collaboration
Project. An outline plan of those Collaboration Projects that
are included in the Collaboration will be developed as Project Plans
through the Steering Committee as more closely set forth in Section 4
(Reporting and Management) of this Agreement or through other
communications executed by both
Parties.
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2.2.
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All
research and development activities carried out by the Parties under each
Collaboration Project will be governed by this Agreement and the terms
specified in an Approved Project Plan. In case of any
discrepancies between this Agreement and the Approved Project Plan, the
terms of the Approved Project Plan shall prevail, unless otherwise
expressly agreed.
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3.
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OBLIGATIONS
OF THE PARTIES
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3.1.
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During
the term of this Agreement and subject to the confidentiality provisions
as set out in Clause 10 (Confidentiality), the Parties will disclose to
each other the Background and Confidential Information that the respective
receiving Party requires in order to perform its tasks according to the
respective Approved Project Plan.
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3.2.
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As
far as THORIUM POWER’s costs are not paid by AREVA and if not otherwise
agreed, each of the Parties shall bear its own costs (such as but not
limited to equipment, materials, personnel costs etc.) in connection with
the Collaboration.
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4.
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REPORTING
AND MANAGEMENT
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4.1.
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Steering
Committee. The Parties will establish a Steering
Committee which will consist of two employees from each Party to perform
the tasks set forth herein. Each party shall appoint one member
as a contact person. The Steering Committee will consist of
members who are empowered to make scientific and/or technical decisions
and to allocate the resources required to implement the Collaboration
Projects.
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4.2.
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Selection of Collaboration
Projects. The Steering Committee will meet at least
twice a year to review and approve Project Plans and, if necessary, revise
Approved Project Plans and to review the results of past Collaboration
Projects and vote on which Collaboration Projects to work on during the
next period or whenever requested by either
Party.
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4.3.
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Voting. Each
Party shall have one vote on the Steering Committee (regardless of the
number of employees from each Party participating in the Steering
Committee). Mutual consent will be required in order to approve
a Project Plan and to reach any other Steering Committee
agreement. An Approved Project Plan may be revised upon mutual
consent only.
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4.4.
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Minutes. Minutes
shall be taken of all Steering Committee meetings, irrespective of whether
such meetings are held by telephone or by other means and each Party shall
review and approve of the accuracy of such
minutes.
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4.5.
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Collaboration Project
Management. The Steering Committee will have overall
responsibility for managing the Collaboration Projects and may appoint
project managers from both Parties for day-to-day management of the
Collaboration Projects ("Project Managers"). Project Managers
shall organize project meetings for reporting and planning purposes on a
regular basis. Such meetings are to be attended by appropriate individuals
from both THORIUM POWER and AREVA.
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4.6.
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Project Plan
Proposals. Each Party, in its sole discretion, may
choose to submit a Project Plan to the Steering Committee for
review. The Steering Committee will convene a meeting to review
new Project Plans within one month of submission, either in person or by
telephone. The Steering Committee will review the Project Plans
and decide whether to accept or reject the Project Plan as a Collaboration
Project.
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4.7.
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Withdrawal. A
submitting Party may withdraw a Project Plan from consideration by the
Steering Committee at any time up to approval of the Project Plan by the
Steering Committee upon written notice to the other
Party. After the Steering Committee has approved a Project
Plan, the Collaboration Project described in such Approved Project Plan
may only be terminated in accordance with the provisions of Section 4.11
(Termination of Collaboration
Projects).
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4.8.
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Legal
Effect. Any Approved Project Plan takes legal effect
only when it is mentioned and annexed as an Approved Project Plan in the
reviewed and approved Minutes of a Steering Committee
meeting. Any amendment on an Approved Project Plan shall be
done according to the terms and conditions as set forth on Section 17.2
(Amendments) of this Agreement.
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4.9.
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Milestones and
Funding. An Approved Project Plan will include
milestones and identify funding and resources from each Party required to
complete the Collaboration Project. Funding may be provided on
a fixed-sum basis or as a reimbursement on a time and materials
basis.
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4.10.
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Background. An
Approved Project Plan shall identify Background of each Party that the
other Party requires in order to perform its tasks according to the
Approved Project Plan. The Approved Project Plan shall also
identify any Background that the Parties anticipate will be required to
Use the Foreground that the Parties anticipate that may be developed in
the course of the Collaboration Project, together with the royalties that
will be payable for Use of the Background in connection with the Use of
the Foreground.
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4.11.
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Termination of Collaboration
Projects.
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4.11.1.
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In
the event one Party fails to (i) provide the resources or funding for a
Collaboration Project which is agreed upon in the Approved Project Plan or
(ii) fails to meet Collaboration Project time lines within sixty (60) days
after a due date established in the Approved Project Plan, then the other
Party may provide written notice to the Party of said
deficiencies. If the defaulting Party fails to cure such
failure within thirty (30) days of such notice, the other Party may, in
its sole discretion and as its sole remedy, withdraw such project as a
Collaboration Project hereunder upon written
notice.
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4.11.2.
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Notwithstanding
anything to the contrary herein, any Party upon three (3) months prior
written notice may elect to discontinue work on a Collaboration
Project. Upon the effective date of a cancellation notice, each
Party is not obliged to provide further funding of Collaboration Project;
any funding provided beforehand and not used for the purposes as set forth
in the Approved Project Plan prior to the effective date of the
cancellation notice shall be
refunded.
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4.12.
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Reporting. The Parties
agree to send to each other periodic written scientific and technical
progress reports on a regular basis as specified in the Approved Project
Plan or otherwise upon the other Party's reasonable request
therefore. Such reports shall include a description of any
inventions generated as a result of the Collaboration Project, if
any. The Parties shall upon request be permitted to review any
research results generated by the other Party in connection with the
Collaboration Project. Each Party shall also be free to use and
disclose such reports and research results, and any portions thereof, in
any form or manner as it sees fit, subject to the provisions of Articles 7
(Ownership of Background and Foreground), 8 (Access Rights to and Use of
Foreground and Background), 9 (Patent Prosecution), 10 (Confidentiality)
and 16 (Use of Names/Announcements) of this AGREEMENT, to ensure the
proper protection of IPR embedded in any such material or
reports.
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Upon
completion of the tasks identified in an Approved Project Plan, each Party
shall promptly thereafter submit to the other Party a detailed written
report of the activities carried under such Approved Project Plan,
including without limitation findings, conclusions and
recommendations.
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5.
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TRANSFER
OF MATERIALS
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5.1.
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During
the Collaboration, a Party (the “Provider”) may transfer Materials to the
other Party ("the Recipient"). Such transfer shall be made on
the following conditions set forth in this Section 5. Any
tangible results generated during the Collaboration containing Materials
shall be deemed as Materials for the purpose of this Section
5.
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5.2.
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At
all times the Recipient shall use the Material of the Provider only for
the purpose of the Collaboration Project for which it was made
available. At no time shall a Recipient transfer the Material
of the Provider to any other person or entity without the Provider’s prior
written consent. After the expiration or termination of this
Agreement, the Recipient shall not use the Material for any
purpose. The Recipient shall not disclose, refer to or
utilitise the Provider‘s Material in connection with any application for
IPR by the Recipient without obtaining written consent from the
Provider. This latter obligation shall survive the term of this
Agreement for 10 (ten) years.
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5.3.
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Title
to the Material shall remain with the Provider. Upon
termination of the Collaboration Project or this Agreement, the Material
(to the extent not consumed during the Collaboration Project) shall be
returned to the Provider at the Recipient’s risk and cost, unless
otherwise agreed in writing. If the Material consists of
instruments and other hardware, it shall be returned in original
condition, normal wear and tear
excluded.
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5.4.
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The
Recipient undertakes to use the Material with prudence and appropriate
caution and in accordance with any instructions given by the
Provider. The Recipient agrees to indemnify and hold harmless
the Provider from any and all loss and damage, including any third party
claims, which may arise from the use of the Material by the Recipient,
unless caused by the Provider’s grossly negligent or wilful acts or
omissions.
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6.
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PUBLICATIONS,
USE OF PROJECT DATA AND VISITS
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6.1.
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In
the form agreed hereunder and upon reasonable request, each of the Parties
undertakes to provide the other Party with Project Data. Each
of the Parties may use Project Data for any purposes, but shall not
publish or disclose any Project Data provided by the other Party to third
Parties other than as forth in Section 8.2 (Access Rights to and Use of
Reserved or Fully Owned Foreground). However, a Party may
disclose such data to its subcontractors and consultants subject to
confidentiality obligations not less restrictive than in this
Agreement.
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6.2.
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Subject
to Sections 10 (Confidentiality) and 16 (Use of Names/Announcements), each
Party shall be free to disclose Project Data, provided the disclosing
Party provides the other Party with sixty (60) days prior notice and the
other Party does not establish its interests will be materially impaired
by such disclosure. If such disclosure will interfere with the
other Party's ability to file a patent application and/or to obtain a
patent or if it will reveal Confidential Information of the other Party,
it is hereby deemed to materially impair the interests of such
Party. A non-disclosing Party shall be provided with a copy of
all written materials (including presentation materials) that disclose
Project Data sixty (60) days prior to such disclosure for review and
comment. A Party reviewing such materials may require that all
of its Confidential Information and the use of its name be
eliminated.
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6.3.
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THORIUM
POWER will allow AREVA representatives to reasonably observe work and
activities conducted by THORIUM POWER under this Agreement, provided such
observations do not interfere with or detract from THORIUM POWER’s ability
to conduct the Collaboration Projects. AREVA’s rights under
this Section 6.3 are subject to the person’s observing the work having any
required security clearances or other approvals that may be required to
enter the applicable facility to or to observe some or all of the
work.
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7.
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OWNERSHIP
OF BACKGROUND AND FOREGROUND
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For each
Collaboration Project under this Agreement, the ownership of the Background and
the Foreground will be governed according to this Section 7, except as otherwise
expressly provided by the Parties in the corresponding Approved Project
Plan.
Each
Party or any Affiliate thereof participating in a Collaboration Project shall be
responsible for maintaining records in the form of laboratory books for the
purpose of, among other things, evidencing rights to inventions.
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7.1.
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Ownership of Background.
Each of the Parties shall retain ownership to its respective
Background.
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7.2.
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Ownership of
Foreground.
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7.2.1.
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Reserved
Foreground. Foreground that is in the scope of a
Reserved Field as expressly agreed in the Reserved Fields section of the
applicable Approved Project Plan (“Reserved Foreground”), shall be the
property of the Party mentioned as the “Reserved Field Owner” in the
Reserved Fields section of the Approved Project Plan. The Party
that is not mentioned as Reserved Field Owner shall exclusively assign to
the Reserved Field Owner all the IPR in and to the corresponding Reserved
Foreground.
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7.2.2.
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Fully Owned
Foreground. A Party shall own all IPR in and to
Foreground that is not in the scope of the Reserved Fields of the other
Party and for which the Party has solely carried out the work generating
the Foreground (“”Fully Owned Foreground”). The owner Party
may, at its own discretion and cost, (i) prosecute patent applications and
(ii) maintain, defend and enforce any patents, forming part of the
Foreground solely owned by the
Party.
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7.2.3.
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All Other
Foreground. Except with respect to Reserved Foreground
and Fully Owned Foreground, all IPR in Foreground will be jointly
owned.
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8.
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ACCESS
RIGHTS TO AND USE OF FOREGROUND AND
BACKGROUND
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For each
Collaboration Project under this Agreement, the access rights to and Use of the
Background and the Foreground will be governed according to this Section 8,
except as otherwise expressly provided by the Parties in the corresponding
Approved Project Plan.
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8.1.
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Access Rights to and Use of
Background.
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8.1.1.
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Access
Rights for implementation of each Collaboration Project. Each
Party is hereby granted a royalty free, non-exclusive license to use,
copy, display and transmit the Background of the other Party that is
needed to carry out its own work under the Collaboration
Project. The Background is limited to the Background expressly
mentioned in the Background section of the Project Plan, and the license
is limited to the time of the Collaboration
Project.
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8.1.2.
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Access
Rights for Use. A Party shall enjoy non-exclusive access rights
to Background of the other Party, if it is needed to Use its own
Foreground, provided that the other Party is entitled to grant such access
rights to the Party. Such access rights shall be granted under
and subject to fair and reasonable conditions as mutually agreed by the
Parties in accordance with Section 8.4, including the applicable royalty,
as more fully described in Section
8.3.
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8.2.
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Access Rights to and Use of
Reserved or Fully Owned
Foreground.
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8.2.1.
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Access Rights for
implementation of the Collaboration. Each Party is
hereby granted a royalty free, non-exclusive license to use, copy, display
and transmit the Foreground of the other Party that is needed to carry out
its own work under the Collaboration Project. The license is
limited to the time of the Collaboration
Project.
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8.2.2.
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Access Rights for
use. A Party shall enjoy non-exclusive access rights to
Foreground of the other Party, if it is needed to use its own Foreground,
and provided that the Party is entitled to grant such access
rights. Such access rights shall be granted and subject to fair
and reasonable conditions as mutually agreed by the Parties in accordance
with Section 8.4.
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8.3.
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AREVA Exclusive Access Rights
to THORIUM POWER Reserved or Fully Owned
Foreground:
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8.3.1.
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In
addition to the rights of the Parties set forth in the Sections 7 and 8
above, AREVA shall have the no-cost option to obtain an exclusive license
in accordance with Section 8.4 for all fields of application, other than
VVER-type reactors, that are agreed to in the corresponding Approved
Project Plan under reasonable royalty-bearing terms to Use any patentable
and / or otherwise legally protected or protectable THORIUM POWER Reserved
or Fully Owned Foreground. Such option shall expire seven (7)
months after written notification by THORIUM POWER to AREVA of the
existence of any THORIUM POWER Reserved or Fully Owned
Foreground.
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8.3.2.
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Upon
exercising the option with respect to a given patentable and / or
otherwise legally protected or protectable THORIUM POWER Reserved or Fully
Owned Foreground, AREVA
shall be granted a royalty-bearing, exclusive, worldwide license, with
rights to sublicense thereunder, to allow AREVA to make, have made, use,
offer for sale, sell or otherwise distribute, import, and export products
or systems embodying or based on such THORIUM POWER Reserved or Fully
Owned Foreground. Such
grant shall be subject to the following terms and
conditions:
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8/17
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a.
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Unless
otherwise agreed to by the Parties, the term of such exclusive license
shall be for ten (10) years; thereafter AREVA‘s rights to such given
THORIUM POWER Reserved or Fully Owned Foreground shall be non-exclusive as
provided above in the Section
8.2.2;
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b.
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In
exchange for and as a condition of the exclusive license to AREVA, AREVA
agrees to pay to THORIUM POWER a royalty to be negotiated by the Parties
in accordance with Section 8.4.2.
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c.
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THORIUM
POWER agrees that during the exclusive license period, AREVA may
sublicense third parties under appropriate sublicense agreements as
mutually agreed by the Parties, with any resulting sub-license fees and
royalties being shared equally between AREVA and THORIUM POWER;
and
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d.
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THORIUM
POWER shall, as far as AREVA is granted an exclusive licence, at all times
remain free to use internally within its organisation, for educational and
research purposes only, any exclusively licensed THORIUM POWER Reserved or
Fully Owned Foreground.
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8.4.
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Royalties and
Licenses.
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8.4.1.
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All
permitted Use of Background of the other Party pursuant to Section 8.1.2,
all Use (including without limitation sublicensed Use) of the other
Party’s Reserved or Fully Owned Foreground pursuant to Section 8.2.2, and
all Use (including without limitation sublicensed Use) of THORIUM Power
Reserved or Fully Owned Foreground pursuant to Section 8.3 (collectively,
“Licensed Use”) will be documented in the form of a license
agreement. No Licensed Use is permitted, and nothing in this
Agreement will be deemed to allow any such Licensed Use, until a mutually
agreed license has been signed by the Parties. The Parties will
mutually agree upon a standard form of license agreement, and neither
Party may unreasonably condition, withhold or delay its execution of a
license that is (i) in the mutually agreed form; (ii) consistent with the
terms of the applicable Approved Project Plan and (iii) within the scope
of the rights of access and Use envisaged by this
Agreement.
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8.4.2.
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All
Licensed Use, as well as any Use (including without limitation sublicensed
Use) of a Party’s Reserved Foreground that does not also constitute that
Party’s Fully Owned Foreground (i.e., Reserved
Foreground of a Party for which that Party has not solely carried out the
work generating the Foreground) and of any jointly owned Foreground, will
be subject to royalties to be negotiated by the Parties using reasonable
good faith efforts. Notwithstanding any other provision of this
Agreement, no Use that will be subject to royalties is permitted until
such time as the royalty is mutually agreed in writing in accordance with
Section 8.4.1. In the case of any exclusive license, the
Parties will also agree to the minimum royalties required to maintain
exclusivity. For the avoidance of doubt, the Parties may
mutually agree upon the royalties at any time, including for avoidance of
doubt, at any time after the end of the relevant Collaboration
Project.
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9.
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PATENT
PROSECUTION
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For each
Collaboration Project under this Agreement, Patent prosecutions will be governed
according to this Section 9, except as otherwise expressly provided by the
Parties in the corresponding Approved Project Plan.
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9.1.
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Reserved Foreground. A
Party may, at its own discretion and cost, (i) to prosecute patent
applications and (ii) to maintain, defend and enforce any patents, forming
part of the Party’s Reserved Foreground. If in the opinion of
the Party owning it, the Reserved Foreground would be likely to be
patented, it is agreed that:
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9.1.1.
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The
names of the inventors or co-inventors of the Reserved Foreground will be
mentioned in the patent applications that would be filed under section
7.2.1.
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9.1.2.
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The
Party not mentioned as Reserved Field Owner agrees to sign all documents
required or deemed appropriate by the other Party to effect any assignment
necessary to comply with the Section 7.2.1. The Party not
mentioned as Reserved Field Owner is obligated to secure with its
employees and consultants that all rights and title to inventions made by
such persons are owned by or transferred to the employer so that it can
fulfil its obligation under the Section
7.2.1.
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9.2.
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Fully Owned
Foreground. The owner Party may, at its own discretion
and cost, (i) prosecute patent applications and (ii) maintain, defend and
enforce any patents, forming part of the Party’s Fully Owned
Foreground.
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9.3.
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THORIUM POWER Reserved or Fully
owned Foreground. If THORIUM POWER declines to file a patent
application on a given THORIUM POWER Reserved or Fully Owned Foreground or
to continue the prosecution thereof, THORIUM POWER will timely notify
AREVA in writing. In such event, the Steering Committee will
discuss the matter and the Parties will take such steps as may be decided
by the Steering Committee.
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9.4.
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Notice and Review of Patent
Applications. Each Party shall advise the other Party of
its intent to prepare and file patent applications in accordance with this
Section 9 and shall provide the other Party with such applications as
least thirty (30) days before submittal for review and
comment. A Party shall not be entitled to claim any ownership
rights in a patent based upon reviewing or commenting on the
application. In addition, any objections the reviewing Party
may have to the listed inventorship or ownership of the invention claimed
in the application reviewed, such objections shall be deemed to have been
waived unless notified in writing within the thirty (30) day review
period. The reviewing Party may require that all information
that is the reviewing Party’s Confidential Information be eliminated from
such applications.
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9.5.
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Ownership
disputes. In the event that the Parties are unable to
reach an agreement on ownership on inventions, the matter shall be
referred to the Managing Directors of the Parties. If the
Managing Directors have been unable to settle the matter within 30 days,
each of the Parties may refer the matter to arbitration according to
Section 17.7 (Arbitration).
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10.
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CONFIDENTIALITY
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10.1.
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Both
AREVA and THORIUM POWER (together with any of their respective Affiliates,
employees and agents) shall hold confidential and shall not, directly or
indirectly, disclose or publish any Confidential Information of the other
Party, without first having obtained the other Party's written consent to
such disclosure or use. The restrictions in this Section 10
shall not apply to (i) information which has become public knowledge
without fault on the part of THORIUM POWER or AREVA as the case may be (or
their respective Affiliates, employees or agents), or (ii) such
information as a Party is legally obliged to disclose to authorities,
subject to prior written notice to the other Party, or (iii) such
information which is or may become lawfully available to either Party
without obligation of confidentiality from a third party who has no
obligation of confidentiality to the other Party in relation to such
information, or (iv) information which has been independently developed by
the receiving Party without making use of the Confidential
Information.
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10.2.
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Each
Party further agrees that access to Confidential Information furnished by
the other Party shall be limited to those of its employees and consultants
who have a need to know thereof and who have been made aware of the
confidential nature of the information in question and are bound by the
obligations arising hereunder.
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10.3.
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Notwithstanding
any provision to the contrary, the foregoing commitments of
confidentiality and non-use shall be of ten (10) years’ duration from the
termination date of this Agreement.
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11.
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EXPORT
CONTROL
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11.1.
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Both
Parties undertake to comply with all applicable export/re-export control
laws and regulations issued by the country of origin, the United States
Government, the United Nations and other similar international
organizations regarding the use of the material, technology and know-how
covered by this Agreement and the transfer of any immediate products and
services, based thereupon. The Parties agree that these
obligations shall survive the termination of this
Agreement.
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12.
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TERM
AND TERMINATION
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12.1.
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This
Agreement shall become effective upon its signature by both Parties and
shall be in force for a period of five (5) years. Should both
Parties wish to continue the Collaboration after this term, this Agreement
may be extended for an additional time period and on terms agreed upon by
the Parties hereto in writing.
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12.2.
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Each
Party may terminate this Agreement with three (3) months prior written
notice. Collaboration Projects that are on-going at date of
written notice shall remain unaffected by termination; with respect to
such, on-going Collaboration Projects, termination shall take effect upon
completion of the on-going project.
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12.3.
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Either
Party may terminate this Agreement effective sixty (60) days after written
notice in writing to the other Party, if the other Party has materially
defaulted in any of its obligations under this Agreement, provided, that
such notice shall not be effective if the defaulting Party cures the
default within sixty (60) days after such notice of
termination.
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12.4.
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Termination
or expiration of this Agreement shall not affect the rights and
obligations that have accrued prior thereto. Further, the
provisions of Section 5.2 and 7, 8, 9, 10 and 14 shall survive the
termination or expiration of this
Agreement.
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13.
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DISCLAIMER
OF WARRANTIES
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13.1.
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Except
as expressly agreed information and Materials transferred from one Party
to another in the course of this collaboration are supplied "as is"
without warranties, express or implied, including any warranty or
merchantability, title, freedom from infringement or fitness for a
particular purpose.
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13.2.
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Except
as otherwise provided in this Agreement, THORIUM POWER shall not, and
shall not be deemed to, assume any responsibility or liability whatsoever
to AREVA for the IPR, Background and/or Foreground provided by THORIUM
POWER to AREVA or shared and/or exchanged between THORIUM POWER and AREVA
pursuant to this Agreement, by AREVA using the said IPR, Background and
Foreground or other information, technology and/or materials provided by
THORIUM POWER to AREVA, or to any user or customer of AREVA or to any
other third person regarding the standard, quality, contents or
characteristics of any such IPR, Background and/or Foreground or any other
information, technology and/or materials provided by THORIUM POWER to
AREVA, or for products or equipment manufactured by AREVA and/or
installations built by AREVA, using any such IPR, Background and/or
Foreground or any other information, technology and/or materials provided
by THORIUM POWER to Areva.
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14.
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INDEMNITIES
AND LIABILITY
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14.1.
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AREVA
shall indemnify, defend and hold harmless THORIUM POWER and its Affiliates
from and against all third party costs, claims, suits, expenses (including
reasonable attorneys’ fees) and damages (collectively "Losses") directly
arising out of or resulting from any wilful or gross negligent act or
omission by AREVA relating to the subject matter of this Agreement (except
where such Losses arose or resulted from any negligent act or omission by
THORIUM POWER) provided that THORIUM POWER gives reasonable notice to
AREVA of any such claim or action, tenders the defense of such claim or
action to AREVA and assists AREVA at AREVA’s expense in defending such
claim or action and does not compromise or settle such claim or action
without AREVA’s prior written
consent.
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14.2.
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THORIUM
POWER shall indemnify, defend and hold harmless AREVA and its Affiliates
from and against all Losses directly arising out of or resulting from any
wilful or gross negligent act or omission by THORIUM POWER relating to the
subject matter of this Agreement (except where such Losses arose or
resulted from any negligent act or omission by AREVA) provided that AREVA
gives reasonable notice to THORIUM POWER of any such claim or action,
tenders the defense of such claim or action to THORIUM POWER and assists
THORIUM POWER at THORIUM POWER expense in defending such claim or action
and does not compromise or settle such claim or action without THORIUM
POWER prior written consent.
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14.3.
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In
any other cases of damages resulting from violation of contractual
obligations or tort, the liability of both Parties shall be limited to
intentionally tortuous acts and gross negligence. Except as
provided in the preceding sentence, neither party shall be liable to the
other for direct damages, whether in contract, tort or
otherwise. Neither Party shall in any event be liable for any
indirect, economic, special, consequential or punitive damage of any kind
from any cause in relation to this Agreement, nor for, without limitation,
loss of profits, goodwill or business interruption. The Parties
agree that the foregoing limitations will not be read so as to limit any
liability to an extent that would not be permitted under applicable
law. The Parties agree that the foregoing limitations will not
be read to apply to any breach of a Party’s obligations under Section 10
(Confidentiality), to any failure to pay royalties or to any infringement
or misappropriation of the other Party’s IPR (including without limitation
Background or Foreground).
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14.4.
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The
Parties agree that for the purpose of this Agreement and in particular
with regard to the IPR, Background and/or Foreground or other information,
technology and/or materials provided by one Party to the other Party,
and/or shared or exchanged between the Parties pursuant to this Agreement,
THORIUM POWER shall in no manner be considered to be a nuclear operator
within the meaning of, in particular the Paris Convention on Third Party
Liability in the Field of Nuclear Energy of July 29th, 1960 or within the
meaning of any other similar legislation or regulations, whether national
or international that may apply.
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15.
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FORCE
MAJEURE
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15.1.
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The
obligations of either Party hereunder shall be excused or suspended to the
extent performance is prevented or delayed by any future condition, which
is beyond the reasonable control, and without the fault or negligence, of
the Party affected thereby. Such conditions shall include, but
not be limited to, war mobilisation, riots, acts of terrorism, fire,
explosion, flood, insurrection, embargo, currency restriction, general
shortage of goods or transport, strikes, lock-outs or labour disputes,
general shortage of material and acts or omissions of governments in their
sovereign capacity.
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15.2.
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The
Party invoking relief hereunder, shall, without delay give written notice
thereof and of the anticipated consequences thereof, to the other
Party. After termination or cessation of such conditions, the
affected Party shall give further written notice to the other Party
detailing the actual results of such
condition.
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15.3.
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In
the event of any such condition, the Party affected thereby shall take
reasonable measures to mitigate and minimise the effect of the condition,
and to resume as promptly as possible the diligent performance of its
obligations under this Agreement. Nothing herein shall,
however, obligate either Party to settle strikes or other labour disputes
except on terms and conditions which it, in the exercise of its sole
discretion, deems appropriate.
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16.
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USE
OF NAMES/ANNOUNCEMENTS
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16.1.
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Neither
Party will use or refer to this Agreement in any promotional activity, or
use the names or marks of the other Party without prior written permission
of the other Party. This Section shall not preclude
distribution of publications in accordance with Section 6 (Publication,
Use of Project Data and Visits).
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16.2.
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Any
press-release or other public announcement of this Agreement shall be
subject to the other Party’s written prior approval. Notwithstanding the
preceding, each Party will be free to make any public announcements that
it may be required to make under applicable law, including without
limitation, pursuant to the disclosure requirements under U.S. securities
law.
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17.
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GENERAL
PROVISIONS
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17.1.
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Further
Assistance. Each Party agrees to provide to the other
Party its reasonable assistance in connection with the preparation of any
documents as may be required to make the provisions of this Agreement
effective, such as requirements by governmental agencies, including
manufacturing, marketing and production
records.
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17.2.
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Amendments. No
provision of this Agreement may be amended, modified or otherwise changed,
other than by an instrument in writing duly signed and executed by a
representative on behalf of each Party to this
Agreement.
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17.3.
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Assignment. THORIUM
POWER acknowledges and agrees that all rights granted by THORIUM POWER to
AREVA under this Agreement may be extended by AREVA to any and all of its
Affiliates of AREVA, in AREVA’s sole discretion and without cost to AREVA.
The rights and obligations of THORIUM POWER under this Agreement are
personal to THORIUM POWER and its wholly-owned subsidiary, Thorium Power,
Inc. Accordingly, neither this Agreement nor any of such rights
and obligations are assignable or transferable (except to THORIUM POWER's
wholly-owned subsidiary, Thorium Power, Inc.) without the prior written
consent of AREVA, which consent shall however not be unreasonably
withheld, conditioned or delayed. AREVA may assign and delegate this
Agreement to any Affiliate of AREVA, or to any purchaser of substantially
all of the assets used by AREVA in the performance of this
Agreement.
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17.4.
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Entire Agreement. This
Agreement constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, between the Parties
hereto with respect to the subject matter hereof and no Party shall be
liable or bound to the other in any other manner, except as set forth
herein. For the avoidance of doubt, the Parties agree that the
Agreement for Consulting Services provided by Thorium Power Ltd to AREVA
dated 31 July 2009, as well as the Confidentiality and Non-Disclosure
Agreements dated January 7, 2009 and June 11, 2009, will not be superseded
by this Agreement and will remain in full force and effect with respect to
its subject matter.
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17.5.
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Notices. Any
notices or other communication required or permitted to be given pursuant
to this Agreement shall be in writing and shall be deemed to have been
given if delivered personally, or sent by telefax or sent by registered or
certified mail return receipt requested, postage prepaid, addressed as
follows:
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If
to THORIUM POWER:
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Attn
: ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Operating Officer
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▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇,
▇▇, ▇▇▇ ▇▇▇▇▇
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Tel
: ▇▇-▇▇▇-▇▇▇-▇▇▇▇
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Telefax:
▇▇-▇▇▇-▇▇▇-▇▇▇▇
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If
to AREVA:
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Telefax:
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All such
notices shall be deemed to have been given on the date personally delivered or
mailed or sent in the manner provided above.
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17.6.
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Governing Law and
Disputes. This Agreement shall in all respects be governed by and
construed in accordance with the laws of
France.
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17.7.
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Arbitration. All disputes
arising in connection with the present contract shall be finally settled
under the Rules of Conciliation and Arbitration of the International
Chamber of Commerce by one or more arbitrators appointed in accordance
with said Rules. The proceedings shall be held in the English
language and take place in
Paris.
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17.8.
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Severability. If
any provision of this Agreement (or its annexes) becomes invalid or has
been void, the validity of the other provisions of this Agreement shall
not be affected thereby. The Parties shall agree upon a valid
provision having a legal and economic effect, which will be as similar as
possible to the intent of the Parties concerning the respective invalid
provision.
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This
agreement has been executed in two copies; one for each of the
Parties.
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AREVA
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||||
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Signature
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/s/
▇▇▇▇▇▇▇ Champalaune
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Signature
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/s/
Seth Grae
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Name (capitals)
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▇▇▇▇▇▇▇
CHAMPALAUNE
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Name (capitals)
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SETH
GRAE
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Title
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Senior
Vice President Purchasing
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Title
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President
&
CEO
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