Pecan Street Participation Agreement
This Participation Agreement is made by and between Pecan Street Inc. (“Pecan Street”), a Texas nonprofit organization, headquartered in Austin, Texas, and the individual completing and signing this form (“Resident”) (collectively, the “Parties”).
WHEREAS, Pecan Street is a sub-recipient of Federal Award No. DE-AR0001061 (the “Award”), granted by the U.S. Department of Energy (“DOE” or “Grantor”), through the Regents of the University of Michigan (“UMich”) under Subaward No. SUBK00009723 (the “Subaward”), to undertake research and development activities (“R&D”) pertaining to residential energy systems (the, “Project”).
WHEREAS, Resident desires to participate in the Project as a field trial test participant in exchange for the benefit and value of gaining first-hand understanding, free of charge, of the potential advantages of having certain energy systems operating within and through Resident’s home (“Insights”).
WHEREAS, the Parties now desire to agree on the terms and conditions governing Resident’s participation in the Project.
In consideration of the mutual covenants herein, the Parties agree as follows:
1. The “Project” is Pecan Street’s field testing of certain residential energy devices in end-users’ homes to enable research and validation aimed at carrying out the Project.
2. “Testing Activities” shall include all of the activities necessary to be performed by Pecan Street to set up, install, configure, inspect, troubleshoot, reconfigure, and evaluate the Test Equipment (as defined herein); as well as, all other tasks necessary to be performed in furtherance of and in connection with the Project.
3. “Test Period” shall commence on the Effective Date and concludes two (2) years thereafter, unless otherwise modified by the Parties in writing.
4. “Test Equipment” shall mean all equipment, particularly including, air conditioning controllers, indoor air temperature sensors, smart thermostats, home energy monitors, and other related home devices provided by Pecan Street to Resident or installed by Pecan Street at Resident’s Premises (defined herein) pursuant to this Agreement.
5. “Test Participant” shall mean Resident if Pecan Street determines that Resident’s Premises is suitable for conducting the Project.
6. A “Project Collaborator” is an entity or person that:
A. is collaborating with Pecan Street on its research, development, validation, testing, and demonstration activities; and
B. has executed a nondisclosure agreement with Pecan Street.
7. “Confidential Information” is any and all information related to the Project or to Resident’s participation in the Project, in which either of the Parties holds a legal interest that is not publicly available. Confidential Information includes any nonpublic data obtained from Resident through participation in the Project. Pecan Street’s Confidential Information shall also include Testing Activities.
8. “Field” means residential premises.
9. The Parties agree that in order for Pecan Street to perform the Project and Testing Activities, and for Pecan Street to provide Resident with the Insights, Resident shall authorize Pecan Street and its agents to install Test Equipment at Resident’s premises at the address specified in this form.
10. The Parties agree that Resident’s participation in the Project is subject to Pecan Street determining, after execution of this Agreement, that Resident’s Premises is an optimally suitable location for effectively performing the Project and related Testing Activities. This determination will be made in Pecan Street’s sole discretion. Nothing in this Agreement obliges Pecan Street to conduct the Project at Resident’s Premises or to provide Resident with any Test Equipment at any time
11. As part of the mutual consideration forming this Agreement, Pecan Street’s roles and responsibilities , if Resident is selected to be a Test Participant, shall be:
A. Notifying Resident, after the Effective Date, that Resident is selected to be a Test Participant.
B. Installing Test Equipment at Resident’s Premises at one or more mutually agreed upon times (“Installation Date(s)”), as needed to complete the installation of properly Field-fit Test Equipment.
C. Maintaining no less than $2,000,000 liability insurance and providing proof of such liability insurance upon written request by Resident.
D. Providing Resident with access to view data that provides the Insights.
E. With respect to alterations made to Resident’s Premises by Pecan Street in connection with the Project, restoring Resident’s Premises to the same condition in which Pecan Street found Resident’s Premises prior to making such alterations.
12. As part of the mutual consideration forming this Agreement, Resident’s roles and responsibilities under this Agreement shall be:
A. Permitting and providing access to Pecan Street and its agents to enter Resident’s Premises to install the Test Equipment at mutually agreed upon times as needed to properly install the Test Equipment, and to remain on Resident’s Premises as necessary to conduct Testing Activities.
B. Permitting and providing access to Pecan Street and its agents to the area(s) of Resident’s Premises where the Test Equipment is installed, during business hours and within 3 days of Pecan Street requesting a visit to Resident’s Premises, in order to perform Testing Activities and to remove the Test Equipment if and when deemed necessary.
C. Making Resident’s time available to Pecan Street and its agents, to answer questions pertaining to the Project and Testing Activities. Resident shall provide reasonable cooperation including verbally, by email, and/or by phone, as necessary, to further the purposes of the Project.
D. Not touching or tampering with the Test Equipment in any way or/and at any time other than as specifically authorized by Pecan Street in writing (“Authorized System Use(s)”). Touching or tampering with the Test Equipment by anyone other than Pecan Street personnel, Pecan Street’s designee(s), or Resident when Resident is undertaking Authorized System Use(s), is and shall be unauthorized (“Unauthorized Access”). Resident shall take reasonable precaution(s) to safeguard Resident’s Premises to prevent Unauthorized Access to the Test Equipment, and shall immediately notify Pecan Street in the event that Unauthorized Access occurs.
E. Notifying Pecan Street immediately of any issues or anomalies noticed or observed with, on, or related to the Test Equipment by calling Rachel Jenkins at 210-602-3319.
Ownership of Test Equipment
13. The Parties fully understand that the Test Equipment is solely owned by Pecan Street and nothing in this Agreement shall be deemed to convey title or ownership interest to Resident at any time in the present or future.
14. Resident understands that Pecan Street reserves the right in its sole discretion to remove some or all of the Test Equipment from Resident’s Premises at any time, including at the end of the Project. Resident agrees to provide Pecan Street with access to remove the Test Equipment if or when Pecan Street elects to perform such removal.
16. Pecan Street shall not sell Resident’s Personal Data or make it available to third parties without Resident’s express specific permission in writing.
Treatment of Confidential Information
17. Pecan Street will treat Resident’s Personal Data as Confidential Information. Pecan Street shall take reasonable security precautions, at least as great as the precautions it takes to safeguard its own confidential information, to prevent disclosure of the Confidential Information.
18. Resident shall not disclose Pecan Street’s Confidential Information to any party without written permission from Pecan Street. This obligation shall extend for 5 years after the Effective Date and shall survive termination of this Agreement.
Information Rights and Responsibilities
19. With the exception of Resident’s Personal Data, Resident conveys to Pecan Street sole ownership of all data, materials, and Project-related information that Pecan Street collects and receives from Resident or Resident’s Premises pursuant to this Agreement (“Project Information”), including data from any systems or devices previously or currently provided to Resident by Pecan Street.
20. Pecan Street and its assignees may include Project Information as part of required reporting to the Department of Energy, in academic papers and in presentations so long as the Project Information so included in no way identifies any individual Resident’s identity or the address of Resident’s Premises.
21. Resident’s conveyance to Pecan Street of a sole ownership interest in Resident’s legal interest to Project Information collected from Resident’s Premises is in consideration for the mutual covenants contained in this Agreement.
22. Resident agrees that data collection from the Test Equipment shall continue after the Project Period and all such data shall be subject to the Project Information treatment herein, unless Resident expressly requests discontinuation of data collection from Pecan Street in writing.
23. This Agreement may not be assigned or otherwise transferred by Resident in whole or in part without the express written consent of Pecan Street.
24. If any provision of this Agreement shall be held to be illegal, invalid, or unenforceable, that portion shall be severed and a new enforceable provision shall be substituted therefor to accomplish the intent of the severed provision as nearly as practicable. The remaining provisions of this Agreement shall remain in full force and effect.
25. All notices and requests under this Agreement must be in writing and, except as specifically provided elsewhere in this Agreement. Any changes to this Agreement must be in writing and signed and acknowledged by both Parties to be effective. Notices shall be deemed to be given to the other Party by a) electronic mail to the Party’s email address specified in this Agreement, or b) certified or registered mailing if addressed as follows (unless such addresses are changed by written notice):
For Pecan Street:
Pecan Street Inc. Attention: General Counsel
3924 Berkman Dr. Austin, TX, 78723
For Resident: as provided on this form by Resident
No Waiver; Amendment; Exclusive Agreement
26. No failure or delay by any of the Parties in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This Agreement may not be modified, supplemented or amended orally, but may only be modified, supplemented or amended by a writing signed by the duly authorized representatives of the Parties to this Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior or contemporaneous oral or written agreements or understandings between the parties regarding such subject matter.
27. The Parties agree and acknowledge that the Project and Testing Activities are experimental in nature and that any and all Test Equipment provided to Resident in connection with this Project is provided “AS IS”. PECAN STREET DISCLAIMS ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY WITH REGARD TO PERFORMANCE, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING WITH PECAN STREET.
Limitation of Liability
28. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PECAN STREET BE LIABLE TO ANY THIRD PARTY WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THE PROJECT OR TESTING ACTIVITIES PERFORMED PURSUANT TO THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF WARRANTY, OR OTHER THEORY OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PROPERTY LOSSES OR OTHER INTANGIBLE LOSSES.
29. PECAN STREET’S LIABILITY TO RESIDENT WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THE PROJECT OR TESTING ACTIVITIES PERFORMED PURSUANT TO THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, BREACH OF WARRANTY, OR OTHER THEORY OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PROPERTY LOSSES OR OTHER INTANGIBLE LOSSES, SHALL BE LIMITED TO TWO MILLION DOLLARS ($2,000,000).
30. THE PARTIES FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY ABOVE WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
31. The Parties understand that uninterrupted data flow from the Test Equipment throughout the Test Period is crucial to the successful completion of the Project and that Resident’s withdrawal from the Project before the end of the Test Period (“Early Termination”) could materially impede the completion of the Project. Early Termination is only permitted if Resident makes an unforeseen relocation (unforeseen as of the Effective Date) to a different home during the Test Period, or if a material Test Equipment Problem occurs and is not remedied by Pecan Street within forty-five (“45”) days of receiving written notice from Resident.
32. Pecan Street reserves the right to terminate the Project at any time. If Pecan Street terminates the Project prior to the end of the Test Period, Pecan Street shall work with Resident to arrange a mutually agreeable time to remove the Test Equipment from Resident’s Premises, unless the Parties agree otherwise in writing.
33. The Effective Date of the Agreement will be the date on which the Resident completes and submits this electronic agreement.
Agreed to and Accepted
By completing and submitting this form, the Resident is accepting the terms of the agreement.
This agreement is agreed to and accepted by Pecan Street Inc., by Fisayo Fadelu, General Counsel, Pecan Street Inc. on the Effective Date.