1 CONSULTING
AND STRATEGIC ADVISORY SERVICES
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6
|
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1.1
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Thorium
Power Services
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6
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1.2
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Thorium
Power Resources
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6
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1.3
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ENEC
Resources and Support
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7
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1.4
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Compensation
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7
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1.5
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Quarterly
Reviews
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7
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2 STAFF
MANAGEMENT
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8
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2.1
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Objective
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8
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2.2
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Recruiting
of personnel
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8
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2.3
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Transfer
of Personnel
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8
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2.4
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Non-Solicitation
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9
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3 TERM
AND TERMINATION
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9
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3.1
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Term
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9
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3.2
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Termination
for Default
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9
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3.3
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Termination
for Convenience
|
10
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4 CONFIDENTIALITY
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10
|
|
4.1
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Definition
of Confidential Information
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10
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4.2
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Obligation
of Confidentiality and Non-Use
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10
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4.3
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Obligation
to Inform
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11
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4.4
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Exceptions
to Confidential Information
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11
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4.5
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Requests
for Disclosure
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11
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4.6
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Return
or Destruction of Confidential Information
|
11
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4.7
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No
waiver
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12
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5 INTELLECTUAL
PROPERTY
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12
|
|
5.1
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Ownership
of Intellectual Property
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12
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5.2
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Further
Assurances
|
12
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6 LIMITED
WARRANTY AND DISCLAIMER
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13
|
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7 DISCLAIMERS
AND LIMITATIONS OF LIABILITY
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13
|
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7.1
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Disclaimer
of Consequential Damages
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13
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7.2
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Liability
Cap
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13
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7.3
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Applicability
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13
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7.4
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Acknowledgement
|
13
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8 INDEMNIFICATION
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14
|
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9 INDEPENDENT
CONTRACTOR STATUS
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14
|
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10 COMPLIANCE
WITH LAWS
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15
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11 NOTICES
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15
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12 CHOICE
OF LAW AND DISPUTE RESOLUTION
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17
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12.1
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Governing
Law.
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17
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12.2
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Mediation
of Disputes.
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17
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12.3
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Resolution
of Disputes.
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17
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12.4
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Decision.
|
18
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12.5
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Discovery.
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18
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12.6
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Submission
to Jurisdiction.
|
18
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12.7
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Fees;
Expenses.
|
18
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12.8
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Amendment
to LCIA Rules
|
18
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12.9
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Agents
for Service of Process
|
19
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13 NATURE
OF AGREEMENT
|
19
|
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14 FORCE
MAJEURE
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19
|
|
15 INSURANCE
|
20
|
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16 LICENSES
AND TAXES
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20
|
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17 QUALITY
ASSURANCE PROCEDURES
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20
|
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17.1
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Subcontractor
Quality Assurance Procedures
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21
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17.2
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Non-conformances
|
21
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17.3
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Adequacy
of Methods and Equipment
|
21
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18 LABOR
AND IMMIGRATION LAWS
|
21
|
|
19 TRAINING
OF EMPLOYEES
|
21
|
|
20 SAFETY
CULTURE
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22
|
|
21 CODE
OF ETHICS
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22
|
|
22 SAFEGUARDS
INFORMATION
|
23
|
|
23 NUCLEAR
LIABILITY PROTECTION
|
23
|
|
24 MISCELLANEOUS
|
23
|
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24.1
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Assignment
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23
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24.2
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No
Third Party Beneficiaries
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24
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24.3
|
Survival
|
24
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24.4
|
Headings
|
24
|
24.5
|
Amendments
or Modifications
|
24
|
24.6
|
Reproduction
of Documents
|
24
|
24.7
|
Severability
|
24
|
24.8
|
Contract
Construction
|
25
|
24.9
|
Entire
Agreement
|
25
|
24.10
|
Counterparts
|
25
|
ATTACHMENT
A - STATEMENT OF WORK
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27
|
ATTACHMENT
B - THORIUM POWER RESOURCES
|
28
|
29
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|
ATTACHMENT
D – COMPENSATION
|
30
|
A.
|
ENEC
is in the process of being formed to manage activities related
to planning
and implementation of nuclear energy in the
UAE;
|
B.
|
Thorium
Power has been providing consulting and strategic advisory services
to the
Executive Affairs Authority of Abu Dhabi for the evaluation and
development of a nuclear energy program in the United Arab Emirates
(“UAE”) under two previous agreements (listed in Recitals
C
and D
below), entered into with the Executive Affairs Authority of Abu
Dhabi
(“EAA”);
|
C.
|
ENEC
wishes to implement the -“Roadmap” that was provided by Thorium Power
under the Professional Services Agreement of 30 November 2007 with
the EAA
and prepare for the continued evaluation of and, if such evaluation
is
successful, the procurement and construction of nuclear power plants
in
the UAE;
|
D.
|
On
17 March 2008, EAA and Thorium Power entered into Amendment Number
1 to
the Professional Services Agreement of 30 November 2007, to provide
for
early start of implementation of certain high-priority activities
that
were identified in the Roadmap (“Quick-Start
Amendment”);
|
E.
|
Thorium
Power maintains access to specialized expertise for providing consulting
and strategic advisory services to ENEC for the purpose of evaluating
and,
if relevant, developing a nuclear energy program in the UAE;
and
|
F.
|
ENEC
desires to obtain Thorium Power’s services as an advisor in the design,
implementation and management of the country’s nuclear energy program, and
to support certain project management and execution activities
related to
developing the program as described in the Roadmap, where ENEC
forms a key
part of the UAE Nuclear Energy Program Implementation Organization
(“NEPIO”).
|
1 |
Consulting
and Strategic Advisory Services
|
1.1 |
Thorium
Power Services
|
·
|
Act
as strategic advisor to ENEC and other UAE Government entities
designated
by ENEC on civilian nuclear energy matters, based on priorities
set by
ENEC from time to time.
|
·
|
Support
the creation of ENEC and its ongoing project management & project
execution activities in relation to the evaluation and, if relevant
development of the nuclear energy program of the UAE, where ENEC
has the
responsibility to oversee the implementation of the nuclear energy
program
of the UAE as a key part of NEPIO. The services will generally
be guided
by the Roadmap with subsequent modifications of implementation
objectives
as agreed from time to time between the
Parties.
|
1.2 |
Thorium
Power Resources
|
1.3 |
ENEC
Resources and Support
|
1.4 |
Compensation
|
1.5 |
Quarterly
Reviews
|
·
|
Meet
at a location agreed by the Parties (in Abu Dhabi unless agreed
otherwise
by the Parties).
|
·
|
Review
the performance of ENEC departments, Thorium Power, other key vendors
and
other entities as relevant to the activities of the Parties under
this
Agreement , in relation to the program schedule, budget and other
program
objectives & policies; and Thorium Power shall prepare a written
report in advance of the review on these topics.
|
·
|
Modify,
as appropriate and as agreed between the Parties, the program schedule,
budget or other objectives, and correspondingly agree on updates
to the
Services.
|
·
|
Review
the staffing needs for the activities of the Parties under this
Agreement
(including Thorium Power’s resources) and agree on staffing changes as
described in Article
2
(Staff
Management).
|
·
|
Review
proposals for new or modified 3rd
party service providers and equipment vendors.
|
·
|
Update,
as appropriate and as agreed between the Parties, the information
included
in Attachments
A through D,
as well as the names of individuals excluded from transfer to ENEC
under
the provisions of Clause 2.3 of this
Agreement.
|
2 |
Staff
Management
|
2.1 |
Objective
|
2.2 |
Recruiting
of personnel
|
2.3 |
Transfer
of Personnel
|
· |
Thorium
Power shall cooperate in the transfer of eligible
staff.
|
· |
Employment
or consulting agreements between Thorium Power and transferring
personnel
shall be modified to the extent agreed between ENEC and the relevant
personnel immediately prior to transfer and Thorium Power shall
waive
applicable portions of non-compete provisions to facilitate the
provisions
of this Agreement.
|
· |
No
Thorium Power employees shall be eligible for transfer within twelve
(12)
months of the Effective Date. For the avoidance of doubt this does
not
apply to consultants to or agents of Thorium
Power.
|
· |
Any
employees of Thorium Power or its subsidiaries as
set out in the side letter dated July 7, 2008 and signed by the
President
of Thorium Power shall
only be eligible for transfer with the approval of Thorium Power.
|
· |
ENEC
shall provide three (3) months notice (“Transfer Notice Period”) to
Thorium Power of the intention to hire Thorium Power staff
directly.
|
· |
Following
the transfer notice, ENEC shall continue to pay Thorium Power for
the
resource during the Transfer Notice Period at the prevailing rate
at the
time of notice.
|
· |
Upon
the effective transfer from Thorium Power’s payroll, ENEC shall pay
Thorium Power a transfer fee of thirty three percent (33%) of the
individual’s new first twelve (12) months cash compensation (including
salary and bonus target), plus reasonable costs as agreed to by
the
Parties to cover Thorium Power’s recruiting, training, administrative and
overhead expenses.
|
· |
No
more than twenty five percent (25%) of Thorium Power’s employees as
committed to ENEC under this Agreement during any 12 month period
can be
transferred over the subsequent twelve (12) month period. For the
avoidance of doubt, this paragraph does not apply to consultants
to or
agents of Thorium Power.
|
· |
In
order to maintain stability in the project, ENEC shall not discuss
offers
of employment, directly or indirectly, with Thorium Power employees
without prior consultation with Thorium
Power.
|
2.4 |
Non-Solicitation
|
3 |
Term
and Termination
|
3.1 |
Term
|
3.2 |
Termination
for Default
|
3.3 |
Termination
for Convenience
|
4 |
Confidentiality
|
4.1 |
Definition
of Confidential
Information
|
4.2 |
Obligation
of Confidentiality and
Non-Use
|
4.3 |
Obligation
to Inform
|
4.4 |
Exceptions
to Confidential Information
|
4.5 |
Requests
for Disclosure
|
4.6 |
Return
or Destruction of Confidential Information
|
4.7 |
No
waiver
|
5 |
Intellectual
Property
|
5.1 |
Ownership
of Intellectual Property
|
5.2 |
Further
Assurances
|
6 |
Limited
Warranty and Disclaimer
|
7 |
Disclaimers
and Limitations of Liability
|
7.1 |
Disclaimer
of Consequential Damages
|
7.2 |
Liability
Cap
|
7.3 |
Applicability
|
7.4 |
Acknowledgement
|
8 |
Indemnification
|
(a)
|
shall
not apply to any claims, demands, suits, costs or damages which
arise
directly or indirectly out of the gross negligence of any Indemnitee,
the
wilful default of any Indemnitee or the breach of this Agreement
by
Thorium Power;
|
(b)
|
shall
not apply to any claims, demands, suits, costs or damages which
arise
directly or indirectly out of any Nuclear Damage caused by a nuclear
reactor outside of the UAE;
|
(c)
|
shall
not apply to any claims, demands, suits, costs or damages to the
extent
that Thorium Power is insured to cover the costs to it of such
claims,
demands, suits, costs or damages, even in circumstances when the
relevant
insurance policy is taken out by ENEC or a third party without
the
knowledge of Thorium Power; and
|
(d)
|
notwithstanding
Section 24.3, shall cease to apply upon any termination of this
Agreement
arising as a result of a breach of this Agreement by Thorium Power.
|
9 |
Independent
Contractor Status
|
10 |
Compliance
with Laws
|
11 |
Notices
|
12 |
Choice
of Law and Dispute Resolution
|
13 |
Nature
of Agreement
|
14 |
Force
Majeure
|
15
|
Insurance
|
16 |
Licenses
and Taxes
|
17 |
Quality
Assurance Procedures
|
17.1
|
Subcontractor
Quality Assurance
Procedures
|
17.2 |
Non-conformances
|
17.3 |
Adequacy
of Methods and Equipment
|
18 |
Labor
and Immigration Laws
|
19 |
Training
of Employees
|
20 |
Safety
Culture
|
21 |
Code
of Ethics
|
22 |
Safeguards
Information
|
23 |
Nuclear
Liability Protection
|
24 |
Miscellaneous
|
24.1 |
Assignment
|
24.2
|
No
Third Party Beneficiaries
|
24.3 |
Survival
|
24.4 |
Headings
|
24.5 |
Amendments
or Modifications
|
24.6 |
Reproduction
of Documents
|
24.7 |
Severability
|
24.8
|
Contract
Construction
|
24.9 |
Entire
Agreement
|
24.10 |
Counterparts
|
THORIUM
POWER, LTD.
|
EMIRATES
NUCLEAR ENERGY CORPORATION
|
|||
By:
|
/s/ Seth Grae |
By:
|
/s/ Khaldoon Al Mubarak | |
Name:
|
Seth Grae |
Name:
|
Khaldoon Al Mubarak | |
Title:
|
President and CEO |
Title:
|
Chairman, Executive Affairs Authority |
1. |
Design
and Launch of ENEC Organization:
|
·
|
Provide
direction on ENEC organizational structure, position definitions
and
operating procedures, utilizing international industry best
practices.
|
·
|
Act
as surrogate for key nuclear-related management positions (pending
permanent hires) to quickly establish operational policies and
initiate
productive work.
|
·
|
Act
as mentor: transfer industry knowledge from the Thorium Power team
to
personnel in the permanent ENEC organization and provide operational
support to assure successful
transition.
|
·
|
Support
recruiting strategy and execution for nuclear-specific permanent
positions
in ENEC and help establish network of nuclear recruiting sources
for the
new HR functions.
|
2. |
Development
and Execution of ENEC’s Nuclear Program Plans:
|
·
|
Provide
strategic advice to ENEC organization and department heads on nuclear
matters.
|
·
|
Provide
project management expertise to enable meeting key UAE nuclear
program
objectives.
|
·
|
Execute,
under direction of incoming ENEC department heads, nuclear-related
projects across the new
organizations.
|
1.
|
Nuclear
Program Development and Management
|
·
|
Supporting
ENEC senior management and support
departments.
|
2.
|
Contracting
& Project Execution
|
·
|
Supporting
ENEC Project Execution department, including procurement and contracting
activities for key vendors to the UAE nuclear energy
program.
|
3.
|
Nuclear
Expertise & Infrastructure
Development
|
·
|
Supporting
nuclear industry expertise departments including e.g., site selection
and
fuel cycle development.
|
·
|
Thorium
Power will form and manage the functional teams consisting of qualified
and experienced personnel with appropriate expertise including
nuclear
reactor deployment, project management, contracting & procurement,
nuclear international relations, nuclear technology and nuclear
industry
recruiting.
|
·
|
Each
functional team will have a project leader who will interface with
the
corresponding ENEC department heads. Thorium Power will designate
such
project leaders in consultation with ENEC. The leader of the functional
team Nuclear Program Development and Management will act as head
of the
Thorium Power team and will interface with the ENEC General
Manager.
|
·
|
Temporary
interfaces for Thorium Power’s project leaders in order to adequately
review and approve work product, and make decisions related to
the
Services, as outlined in ATTACHMENT
A-- STATEMENT OF WORK
|
·
|
Working
resources available to be embedded into Thorium Power’s functional
teams
|
·
|
Facilitate
Thorium Power’s interactions with UAE government
authorities
|
1.
|
Professional
Fees
|
2.
|
Expenses
|
3.
|
Invoices
|
4.
|
Offsets
|
5.
|
Taxes
|
6.
|
Record
Keeping
|