23. INDEPENDENT CONTRACTOR

Implementer, and the agents and employees of Implementer, in the performance of the Authorized Work, shall act in an independent capacity and not as officers, employees or agents of the CPUC or IOU. Nothing in this Agreement shall be construed so as to render Implementer, or any persons hired by Implementer, an employee, agent, representative, joint venturer or partner of the CPUC or IOU, and neither Implementer nor its employees or subcontractors shall hold themselves out to others in such capacity.

24. INTELLECTUAL PROPERTY RIGHTS

24.1 Ownership Of Deliverables

The CPUC shall own all data, reports, information, manuals, computer programs, works of authorship, designs or improvements of equipment, tools or processes (collectively "Developments") or other written, recorded, photographic or visual materials, or other deliverables produced in the performance of this Agreement. Developments do not include equipment or infrastructure purchased for research, development, education or demonstration related to energy efficiency. Implementer shall retain no ownership, interest or title in the Developments except as may otherwise be provided in Attachment A.

24.2 Use And Reproduction Rights

If and to the extent that Implementer retains any preexisting rights to any materials furnished under this Agreement, including Developments, Implementer hereby grants to the CPUC the irrevocable, perpetual, non-exclusive, worldwide, royalty free right and license to make, use, execute, reproduce, display, perform, distribute copies of, and prepare derivative works based on such preexisting rights and derivative works thereof. Any claims of Implementer to proprietary rights in materials furnished under this Agreement must be explicitly set forth in this Agreement.

24.3 Infringement Protection

Implementer represents to IOU and CPUC that the material prepared under this Agreement will not infringe on the copyright, patent, or license, or otherwise violate the proprietary rights, including trade secret rights, of any person or entity. Implementer agrees to indemnify and hold IOU and its parent company, and the CPUC, harmless from and against all liabilities, costs and damages arising our of such infringement, as well as claims of infringement. Implementer further agrees to pay any judgment or reasonable settlement offer resulting from a suit, demand or claim, and pay any reasonable attorney's fees incurrent by IOU or CPUC in defense of such a suit.

24.4 Claims Substantiation

Implementer represents that it has adequately substantiated all claims made as part of the Authorized Work according to the requirements of California and federal law. Implementer shall substantiate claims made in all program materials, including but not limited to: program descriptions, web sites, fact sheets, brochures, and advertisements ("Program Materials"). Claims include, but are not limited to, statements about the energy efficiency, safety, reliability, or performance of a piece of equipment or category of energy efficiency measures.

For each Program Material, Implementer shall identify all claims, and shall have written evidence and data to substantiate the claim. Implementer shall provide the claims and claims substantiation to the IOU or CPUC Agreement Representative within five (5) business days of a request. If IOU or the CPUC Agreement Representative determines that the evidence or data that Implementer has submitted to IOU is inadequate to substantiate the claim, then Implementer shall either provide additional evidence or data, that in IOU's or CPUC's sole discretion is adequate to substantiate the claim, or redraft or eliminate the claim so that the data and evidence, in the IOU or CPUC Agreement Representative's sole discretion, adequately supports the claims made.

Implementer agrees to indemnify and hold IOU and its parent company, and the CPUC, harmless from and against all liabilities, costs and damages arising out of or related to claims that are inadequately substantiated. Implementer further agrees to pay any judgment or reasonable settlement offer resulting from a suit or demand, and pay any reasonable attorney's fees incurrent by IOU or CPUC in defense of such a suit.