Volian Enterprises Procedure Maintenance System, PROMS, End User License Agreement (EULA)

IMPORTANT-READ CAREFULLY:  This End-User License Agreement ("EULA") is hereby made between Westinghouse Electric Company LLC LICENSEE(“Licensee”) and Volian Enterprises Inc. (Licensor) with respect to the License of the Licensor’s software product,  known as PROMS, which includes computer software and may include associated media, printed materials, "online" or electronic documentation, and Internet-based services (collectively, the “Documentation”).  The Software also includes any software updates, add-on components, web services and/or supplements that the Licensor may provide to Licensee or make available to Licensee after the day Licensee obtain the initial copy of the Software to the extent that such items are not accompanied by a separate license agreement or terms of use.  An amendment or addendum to this EULA may accompany the Product BY INSTALLING, COPYING, OR OTHERWISE USING THE PRODUCT.  YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
  
1.	Rights.

Licensor hereby grants you the nonexclusive, non-transferable right to:

(a) Use the Software, referred to as Volian Enterprises PROMS, during the term of the PROMS License and Service Agreement to support, at any of Licensee’s facilities, the creation and maintenance of AP-1000 plant procedures. 

(b) Make one copy of the PROMS Software executable at each of Licensee’s facilities for archival or backup purposes, provided that such copies contain all of Licensor’s restrictive and proprietary legends that are contained in or appear on the Software and Documentation.

2.	Restrictions.

Licensee agrees that it may not:

(a) Remove, alter or destroy any of Licensor or other’s restrictive or proprietary markings or legends that are contained in or appear on the Software or Documentation.

(b) Use the Software or Documentation at sites other than those designated in Paragraph 1.(a) or at other corporate facilities in support of documents other than those so designated.

(c) Use the Software, or permit it to be used, in any computer service, business, timesharing, or other multiple user arrangement for or with users who are not licensed by Licensor to use the same Software.

(d) Copy the Software or Documentation, except and to the extent provided in Paragraph 1(c). All such copies shall be marked in sequential order and a log identifying each copy and to whom it was provided shall be given to Licensor.

(e) Loan, sublicense, distribute, lease, disclose or transfer the Software or the Documentation, in whole or in part, to any third party without prior written consent of Licensor.

(f) Include the Software or Documentation or any part or parts thereof in any software or documentation developed by or for you without prior written consent of Licensor.

(g) Reverse engineer or otherwise reduce the Software to human-perceivable form.

(h) Use the Software, Documentation or any portion thereof after any expiration, termination or cancellation of this EULA and the license granted hereunder.

(i) Use the Software for a new application other than for AP-1000 procedures unless authorized by Licensor.

Licensor represents and warrants that all products delivered, and services performed, pursuant to the Purchase Order issued under this EULA and the sale or use thereof do not infringe any third-party intellectual property rights, including but not limited to patent, trade secret, copyright or trademark rights, and that Licensor will at Licensor’s expense, defend, indemnify and hold harmless Licensee and Licensee’s customers from and against all claims, demands, actions and liability based on alleged or actual infringement thereof.  Licensee, at its option, may require Licensor to deliver non-infringing goods or services, to modify Licensor’s goods and services so as to become non-infringing, to procure for Purchaser the right to continue using Licensor’s infringing goods and services, or in the case of goods to refund the purchase price thereof upon the return by Licensee of the infringing goods.

3.	DISCLAIMER OF WARRANTY, LIMITATIONS OF REMEDIES AND LIABILITY.

(a) Licensor has attempted to provide Software which will perform as described in the associated documentation.    Licensor, however, does not warrant the software or the associated documentation.  THE SOFTWARE AND DOCUMENTATION CONTAINED IN THIS PACKAGE ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY WITH RESPECT TO ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.  Licensee assumes the entire risk arising from the selection and use of the Software, and Licensor shall have no liability for any errors, malfunctions, defects, or loss of data resulting from or related to the use of the Software and/or the Documentation.

(b) Licensor shall not be liable to Licensee for any indirect, special or consequential damages or lost profits, interruptions or delays, loss of information and the like, arising out of or related to the use of or the inability to use the Software or the Documentation for any reason whatsoever, even if the possibility of such damages were reasonably foreseeable or within the knowledge of Licensor.  In no event shall Licensor’s liability hereunder extend beyond replacing the Software and/or the Documentation or exceed the purchase price paid for same.

4.	Term.  

The term of this EULA and the license granted to Licensee, pursuant to Paragraph 1, shall commence upon Licensee’s acceptance of this EULA and shall terminate upon termination/cancellation by Licensor or Licensee.    

5.	Termination/cancellation.

This EULA and the license granted herein may be terminated/cancelled by Licensor in the event Licensee is in breach of any material provision of this EULA Including, but not limited to:

(a) Licensee fails to pay Licensor any license fee or monetary charge associated with the Software and Documentation;

(b) Licensee is in default of any other provision hereof and such default is not cured within ten days after Licensor gives Licensee written notice thereof; or

(c) Licensee becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law.

In the event of any termination/cancellation of this EULA or of any license granted hereunder, Licensor may:

(a) Require that Licensee cease any further Use of the Software and Documentation or any portion thereof and immediately return the same and all copies thereof to Licensor. The Licensee will confirm in writing that all previous versions of the software and documentation have been destroyed; and

(b) Cease performance of all Licensor's obligations hereunder, without liability to Licensee.
Licensor and Licensee must communicate its intent to terminate via written media to the other party.  

6.	General.

(a) This EULA is the entire agreement and understanding of the parties with respect to the Software and Documentation, and supersedes all prior oral, written or other representations and agreements.  This EULA may only be amended in writing by an authorized officer of Licensor, and Licensor expressly rejects all other modifications to this EULA and all additional terms and conditions.

(b) Title in and to the Software and Documentation shall remain exclusively with the Licensor, subject to the express, limited and nonexclusive license granted to Licensee pursuant to Paragraph 1.

(c) GOVERNMENT REQUIREMENTS - Licensor agrees not to directly or indirectly transfer, export, re-export, retransfer or disclose any Licensee proprietary information, any direct or indirect products or technical data resulting therefrom, or any software or item or service provided hereunder, to any country or any foreign person or foreign entity wherever located, except in accordance with the laws, regulations and rulings of the U.S. relating to the exportation or re-exportation of commodities, software or technical data.  Any such transfer, export, re-export, retransfer or disclosure by Licensor of Licensee proprietary information or any direct or indirect products or technical data resulting therefrom to a country listed in 10 CFR § 810.8(a) or the nationals of such a country wherever located, will be permitted only after the U.S. Department of Energy provides specific authorization therefore.  Licensor will insert a similar provision in any agreement it has for the furnishing to third parties of the Licensee proprietary information, and the direct or indirect products or technical data resulting therefrom; provided, however, that Licensor shall be solely responsible for its and such third parties’ compliance with applicable requirements of U.S. export and re-export control laws and regulations.  Neither Licensor nor any person acting on its behalf shall identify Licensee as “Exporter”, “Exporter of Record”, or “U.S. Principal Party in Interest” on any Export Control Document.  Licensor agrees to indemnify and hold harmless Licensee from any fines, penalties, or liabilities (including reasonable attorney’s fees) arising from Licensor’s act or omission affecting Licensee’s compliance with U.S. export control laws and regulations with respect to the Licensee proprietary information, or other items provided hereunder.  Licensee shall be entitled to all other remedies available in either law or equity to enforce Licensor’s compliance with these provisions. The provisions of this article shall survive the satisfaction, termination or suspension of the Agreement and/or purchase order to which these terms and conditions relate, for so long as the applicable U.S. Export Control Laws, or the successors thereto, remain in force.

(d) This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania.
