LAWRENCE BERKELEY NATIONAL LABORATORY

END USER LICENSE AGREEMENT FOR

Guidance Materials of the 50001 Ready Navigator

IMPORTANT – READ CAREFULLY: This End User License Agreement (“Agreement”) is a legal agreement between you (in your capacity as an individual and as an agent for your PROFESSIONAL TRAINING ORGANIZATION (PTO), company, institution or other entity) (collectively, “you” or “PTO” or “Licensee”) and The Regents of the University of California, Department of Energy contract-operators of the Ernest Orlando Lawrence Berkeley National Laboratory (“Berkeley Lab”).

By downloading, installing and/or using the Software, you confirm that you have read, understand and agree to be bound by the terms of this agreement. If you are entering into this agreement on behalf of your employer, or your client (and you have the legal authority to sign contracts on their behalf), then “you” refers to that entity. If not, then this agreement binds you personally. This agreement does not create third party beneficiary rights for any parties.

If you do not agree to these terms and conditions, do not download, install or use the Software. To enter into this Agreement, you must be (i) eighteen (18) years of age or older, and (ii) be able to form binding contracts under the laws applicable to you. By downloading and installing the Software, you are representing and warranting that both (i) and (ii) above ARE CORRECT.

1. LICENSE GRANT. Subject to receipt by Berkeley Lab of any required U.S. Department of Energy approvals, Berkeley Lab grants you, and you hereby accept, a non-exclusive, non-transferable, royalty-free revocable license to download, display, use and copy the Material, specified in the attached Exhibit A “Licensed Materials” and provided by Berkeley Lab (collectively, the “Material”), for the purpose of fulfilling the duties outlined in Exhibit B “Specific Roles and Responsibilities of PTO under this Agreement,” subject to the following terms and conditions:
(a) You may use the Material solely for the purposes of training individuals (including yourself) who wish to learn about and/or implement an energy management system using the guidance materials of the 50001 Ready Navigator;
(b) You must credit the Lawrence Berkeley National Laboratory wherever possible, and if reproduced in tangible form, provide the following copyright notice: “© 2020 The Regents of the University of California, through the Lawrence Berkeley National Laboratory. All rights reserved.”;
(c) You may copy the Material solely to the extent reasonably necessary to exercise the foregoing license; provided however that (i) you must reproduce all copyright notices and other proprietary or acknowledgment notices on any copies of the Material, and you must not remove or alter those notices; (ii) all copies of the Material shall be subject to the terms of this Agreement; and (iii) you may not otherwise copy or allow copies of the Material to be made;
(d) With the exception of providing Material to individuals trained, to fulfill the obligations shown in Exhibit B, you may not use, rent, lease, loan, sublicense, distribute or transfer the Material to any third party; and
(e) Berkeley Lab retains the rights to terminate this Agreement and withdraw its consent to the continued use, display or reproduction of the Material in any work, and expressly when the purpose of such use does not advance the educational or scientific mission of Berkeley Lab.

2. COPYRIGHT; RETENTION OF RIGHTS. Subject to approval by the U.S. Department of Energy: (i) you hereby acknowledge that the Material is protected by United States copyright law and international treaty provisions; (ii) Berkeley Lab, and its licensors (if any), hereby reserve all rights, title and interest in and to the Material which are not explicitly granted to you herein; and (iii) without limiting the generality of the foregoing, Berkeley Lab and its licensors (if any) retain all title, copyright, and other proprietary interests in the Material and any copies thereof, and you do not acquire any rights, express or implied, in the Material, other than those specifically set forth in this Agreement.

3. U.S. GOVERNMENT RIGHTS. The Material was developed under funding from the U.S. Department of Energy, and the U.S. Government consequently retains certain rights, as follows: the U.S. Government is granted for itself, and others acting on its behalf, a paid-up, non-exclusive, irrevocable, worldwide license in the Material, to reproduce, prepare derivative works, distribute copies to the public, perform publicly and display publicly, and to permit others to do so.

4. WARRANTY DISCLAIMER. THE MATERIAL IS SUPPLIED “AS IS” WITHOUT WARRANTY OF ANY KIND. BERKELEY LAB, ITS LICENSORS, THE UNITED STATES, THE UNITED STATES DEPARTMENT OF ENERGY, AND THEIR EMPLOYEES: (1) DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON- INFRINGEMENT, (2)DO NOT ASSUME ANY LEGAL LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF THE MATERIAL, AND (3) DO NOT REPRESENT THAT USE OF THE MATERIAL WOULD NOT INFRINGE PRIVATELY OWNED RIGHTS.

5. LIMITATION OF LIABILITY. IN NO EVENT WILL BERKELEY LAB OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, FOR ANY REASON WHATSOEVER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF BERKELEY LAB HAS BEEN WARNED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL BERKELEY LAB’S LIABILITY FOR DAMAGES ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU FOR THE MATERIAL.

6. INDEMNITY. You shall indemnify, defend, and hold harmless Berkeley Lab, the U.S. Government, the creators of the Material, sponsors, and their agents, officers, and employees, against any and all claims, suits, losses, damage, costs, fees, and expenses arising out of or in connection with this Agreement. You shall pay all costs incurred by Berkeley Lab in enforcing this provision, including reasonable attorney fees.

7. TERM AND TERMINATION. The license granted to you under this Agreement will continue for five (5) years unless terminated by Berkeley Lab in accordance with this Agreement. If you breach any term of this Agreement, and fail to cure such breach within thirty (30) days of the date of written notice, this Agreement shall immediately terminate. Upon any such termination, you shall immediately cease using the Material, return to Berkeley Lab, or destroy, all copies of the Material, and provide Berkeley Lab with written certification of your compliance with the foregoing. Termination shall not relieve you from your obligations arising prior to such termination. Notwithstanding any provision of this Agreement to the contrary, Sections 4 through 9 shall survive termination of this Agreement.

8. EXPORT CONTROLS. You shall observe all applicable United States and foreign laws and regulations (if any) with respect to the export, re-export, diversion or transfer of the Material, related technical data and direct products thereof, including, without limitation, the International Traffic in Arms Regulations (ITAR) and the Export Administration Regulations. The export of any technology from the United States, including without limitation the Material and related technical data, may require some form of export control license from the U.S. Government and, pursuant to U.S. laws, and failure to obtain any required export control license may result in criminal liability under U.S. laws.

9. GENERAL. This Agreement, including its Exhibit, shall be governed by the laws of the State of California, excluding its rules governing conflicts of laws. No provision in either party's purchase orders, or in any other business forms employed by either party will supersede the terms of this Agreement, and no modification or amendment of this Agreement is binding, unless in writing signed by a duly authorized representative of each party. This Agreement is binding upon and shall inure to the benefit of Berkeley Lab, its successors and assigns. This Agreement represents the entire understanding of the parties, and supersedes all previous communications, written or oral, relating to the subject of this Agreement. If you have any questions concerning this license, contact Lawrence Berkeley National Laboratory, Innovation and Partnerships Office, One Cyclotron Road, MS 56A-120, Berkeley, CA 94720, Attn: Licensing Manager or via e-mail at IPO@lbl.gov.

EXHIBIT A LICENSED MATERIALS DCEP TRAINING MATERIALS

Training Materials and Certification Scheme related to any of the following titled Materials:

• 50001 Ready Brief Introduction for End-Users
• 50001 Ready General Introduction for End-Users
• Energy Management System Informative Training
• Energy Management System Informative Training for Utility Program Administrators
• 50001 Ready Multi-Site Implementation Distance Learning for Central-Office Staff
• 50001 Ready Training for Utility Energy Efficiency Staff
• 50001 Ready In-plant Training for Manufacturers
• 50001 Ready Distance Learning Series for Federal Organizations
• 50001 Ready Distance Learning Series for All Organizations

EXHIBIT B

Specific Roles and Responsibilities of PTO under this Agreement

The following are the roles and responsibilities of the PTO:

(1) At the request of LBNL staff PTO will provide written feedback on the quality of the Materials and provide suggestions for improvement.

(2) At the request of LBNL staff PTO will provide written feedback on how the Materials have been used.