End User License Agreement

This is an end user license agreement ("EULA") between OptiMiser, LLC, a Colorado limited liability company ("Licensor"), and you ("End User"), an end user of a certain software product offered by Licensor, commonly referred to as "OptiMiser™" (the "Software"). End User is deemed to have agreed to all the terms and conditions stated in this EULA upon End User's first use of the Software. If End User does not agree to these terms and conditions, End User may obtain a full refund of all license fees previously paid by calling 720.306.1742 immediately.

1. Grant of license. Subject to all the other provisions of this EULA, Licensor grants End User the right and license to install and use the Software on one computer under End User's control. Any right regarding the Software or its use that is not specifically and expressly granted in this EULA is reserved to the Licensor. (The right and license granted in this Section 1 are referred to as the "License".)
2. What is being Licensed. The Software consists of a computer program in executable code form only, in the version that is being distributed to the End User at the time the End User first reads this EULA. The Software does not include any source code and does not include any future versions, revisions, upgrades, improvements or enhancements of the Software, nor does it include any software derived from or based upon the Software. The Software is always licensed and is never sold. Any right regarding the Software or its use that is not specifically and expressly granted in this EULA is reserved to the Licensor.
3. Ownership of Software and other Properties. All right, title and interest in and to the Software and related materials (e.g., printed or online instructional materials), including United States and foreign copyrights and all other rights arising under the intellectual property laws of any jurisdiction, are owned solely and exclusively by Licensor and its suppliers. Certain works and data created by third parties may be accessed by using the Software; End User will not acquire any right, title or interest in or to any of those works or data under this EULA. No person other than Licensor is authorized to own any media containing any copy of the Software. The trademarks, OptiMiser™ and OptiMiser Power — Simplicity — Accuracy® are owned exclusively by Licensor and may not be used without Licensor's permission.
4. End User Obligations. The continuing effectiveness of the License is subject to End User's compliance with all the provisions of this section at all times.
   
   1. Intellectual Property Rights Protection. End User's failure to comply with all the following provisions will result automatically in the termination of this EULA and all End User's rights hereunder:
      
      1. End User shall use its best efforts at all times to protect Software from unauthorized use, reproduction, distribution or publication.
      2. End User shall not remove or alter any copyright notice on any copy of the Software, whether appearing digitally or on any printed material.
      3. End User shall not distribute copies of the Software to any other person, for any reason.
      4. End User shall not reverse engineer, decompile, or disassemble the Software.
      5. End User shall not rent, lease or lend the Software, any rights therein or any copy thereof, even if the Software continues to be used on the same computer.
   2. License Fees. End User is responsible for the timely payment of all licensee fees applicable to the Software, regardless of whether End User is the primary contracting party with Licensor. Time is of the essence of this provision. The License will terminate automatically, and will be of no further force or effect, if any license fees payable with respect to the Software are not paid when due. If the License so terminates, Licensor may terminate End User's access to the Software without notice.
5. Termination. Licensor may terminate this EULA immediately if End User fails to comply with its provisions. Termination by Licensor will not affect any other right Licensor may have against End User. Upon termination of this EULA for any reason, End User shall cease using the Software and shall destroy all copies of the Software in End User's possession, custody or control.
6. Warranty Limitations
   
   1. The Software is provided without warranty of any kind, express or implied, including without limitation any implied warranty of fitness for a particular purpose, merchantability, or title. Without limiting the foregoing, the Software is not warranted to be error-free and is not warranted to run without interruption.
   2. Without limiting Section 6(a), Licensor makes no warranty with respect to, and will have no liability or responsibility for, any of the following:
      
      1. the accuracy or completeness of any information, text, graphics, links or other items contained within the Software, including without limitation default values;
      2. the effectiveness of any energy-saving measures that End User may implement, or the effectiveness of any other actions that End User may take, as a result of using the Software; or
      3. any other results to be obtained or expected from using the Software.
   3. No person is authorized by Licensor to make any warranty, promise or representation concerning the Software that contradicts this EULA in any respect. Any such contradictory warranty, promise or representation will be void and of no effect. By using the Software, End User represents to Licensor that End User is not relying on, and has not relied on, any representation or understanding regarding the Software or its performance or expected results.
7. Remedy Limitations. If the Software fails to operate as promised in any material respect, End User's sole remedy will be to obtain a refund of license fees previously paid, not to exceed one month's fees.
8. Limitations on Licensor's Liability
   
   1. Except as expressly stated in Section 7, Licensor will not be liable in any event for any actual, direct, indirect, special, punitive, incidental or consequential damages (including, without limitation, loss of revenue or profits, business interruption, loss of data or loss of other information) arising out of any person's use of the Software, even if Licensor has been advised of the possibility of such damages, regardless of whether the asserted grounds are based on contract, breach of warranty, tort (including negligent misrepresentation) or otherwise.
   2. In no event will Licensor be liable to End User or to any other person for any amount in excess of the amount paid as a license fee for the use of the Software.
9. Obligations of Auditors
   

   If End User is a home energy auditor or other home energy professional who uses the Software in providing home energy auditing services to homeowners and other consumers ("Consumers"), the following provisions will apply:

   1. End User will notify each Consumer of the following information at the time energy auditing services are provided to the Consumer and will obtain a signed statement (whether in the form of End User's standard customer contract or otherwise) from every Consumer indicating that the Consumer has been so notified and has accepted these terms:
      
      1. The Software is provided without warranty of any kind, express or implied, including without limitation any implied warranty of fitness for a particular purpose, merchantability, or title. Without limiting the foregoing.
      2. Without limiting the foregoing, Licensor makes no warranty with respect to, and will have no liability or responsibility for, any of the following:
      1. the accuracy or completeness of any information, text, graphics, links or other items contained within the Software, including without limitation default values;
      2. the effectiveness of any energy-saving measures that End User may implement, or the effectiveness of any other actions that End User may take, as a result of using the Software;
      3. the existence or absence of errors in the Software; or
      4. any other results to be obtained or expected from using the Software.
      3. Consumer is advised to review the Privacy Notice on Licensor's website.
      4. During the normal operation of the Software certain events, including the date and time of these events, will be collected by the publisher of the Software, OptiMiser, LLC. These events include, for example, the opening and saving of a file or the completion of a report. This data will be used to track usage for billing purposes and to monitor the use of the program with the goal of improving work flow. OptiMiser, LLC also will collect basic project information, such as the project address. This data will be used for a variety of purposes, like determining whether the audit is a new or repeat audit. OptiMiser, LLC will not disclose to an unauthorized third party any information that identifies a specific project or user.
   2. Every report, document or other item delivered by End User to a Consumer that is created in whole or in part using the Software must contain the following statement, which must be conspicuous and in 12-point type or larger:
      

      The publisher of the software used in creating this material, OptiMiser, LLC, and its officers, directors, members, employees and other representatives and affiliates, and their respective successors and assigns (collectively, "OptiMiser"), will have no liability or obligation by reason of any act, omission, negligence, statement or representation occurring or allegedly occurring in connection with the preparation, dissemination or use of this report (each, an "Act"). The recipient of this material waives any right it may have to bring any claim or to commence any action or legal proceeding based on or arising from any Act. The recipient will indemnify OptiMiser and will hold OptiMiser harmless from and against any such liability or obligation.

      This material is provided to the recipient "as is" and without warranty of any kind, express or implied, including, without limitation, the implied warranties of fitness for a particular purpose, merchantability, title and non-infringement. OptiMiser will not be liable for any actual, direct, indirect, special, punitive, incidental or consequential damages, including, without limitation, damages for any loss of use, data or profits, arising in connection with the preparation, dissemination or use of this report, even if OptiMiser has been advised of the possibility of such damages. OptiMiser will not be liable to the recipient for any amount greater than one hundred dollars ($100.00), regardless of the circumstances.

      See www.Optimiserenergy.com for more details.

   3. End User shall not make any statement or representation to any Consumer regarding the Software, its capabilities or the results to be expected when using the Software; provided, however, that End User may refer Consumer's to Licensor's website and to other public statements and promotional material published by OptiMiser that is current.
   4. End User shall not hold itself out as an authorized agent or representative of Licensor. End User shall not use any of Licensor's trademarks in End User's promotional materials without Licensor's express permission.
10. Advisory regarding Proper Use of the Software. The Software is a benchmarking tool intended for use in evaluating energy use in buildings. Its underlying assumptions are outlined in the Software user manual and should be reviewed carefully and completely. The capabilities and limitations of the Software should be clearly understood when analyzing situations in which decisions are to be made regarding investments in energy conservation or building performance, and the Software should only be applied along with the judgment of a professional trained in the energy field.
11. Indemnification. End User will indemnify, defend and hold harmless Licensor from and against (A) any breach by End User of any provision of this EULA; (B) any claim brought by a Consumer, whether or not resulting from End User's wrongful acts or omissions (actual or alleged); or (C) any failure to abide by the privacy policy of OptiMiser, LLC as stated on its website and as may be modified from time to time.
12. Other
    
    1. Term. The Term of this EULA commences upon the End User's first use of the Software and ends when it is terminated by either party. This EULA may be terminated by either party if the other party commits a material breach of this EULA. Termination by either party is without prejudice to any right the terminating party may have had before termination. End User's failure to pay license fees for the Software on a timely basis is a material breach of this EULA.
    2. Compliance with Law. In using the Software, End User shall comply with all applicable laws, including, without limitation all export laws of the United States.
    3. Governing Law; Venue. This EULA will be construed and applied under the laws of the State of Colorado, USA, but without regard to its conflict of laws rules and excluding the United Nations Convention on Contracts for the International Sale of Goods. Any action or legal proceeding relating to or arising out of this EULA must be brought and maintained only in a state or federal court located in the State of Colorado.
    4. Entire Agreement. This EULA is a complete statement of the rights and obligations of the parties with respect to the Software and any related subject matter. This EULA supersedes any prior license agreement and any prior agreement, proposal, representation, or understanding regarding the Software.
       
    5. Assignment and Sublicensing. End User may not assign, transfer or sublicense any right granted under this EULA.

Licensor's address:
4801 West Yale Ave.
Denver, CO 80219

EULA version 2.1 07.25.2013
©2013 OptiMiser, LLC. All rights reserved.