Pecan Street Inc.
End User License Agreement
TERMS AND CONDITIONS
Last Updated: May 14, 2018
This End User License Agreement (“Agreement”) is between Pecan Street Inc. a Texas non-profit corporation located at 3924 Berkman Dr., Austin TX 78723 (“Licensor”), and you (“you” or “User” or “Users”). Intending to be legally bound, you and Licensor agree to the terms and conditions stated in this Agreement.
IF YOU INSTALL, DOWNLOAD OR OTHERWISE USE THE PROGRAM, YOU FULLY ACCEPT AND AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you agree to these terms on behalf of an organization, you hereby represent to Licensor that you are authorized to accept these terms on such organization’s behalf.
PART I. SOFTWARE LICENSE TERMS
Capitalized terms are defined in Section 13.
1.0 LICENSE AND PROGRAM USE
1.1 Licensor grants you a non-exclusive, royalty-free license to install and use the Mobile App (“Program”). “Program” may also include associated media, printed materials, and online or electronic documentation as well as all related documentation, updates and upgrades that replace or supplement the Program and are not distributed with a separate license.
1.2 You may use the Program only within the following restrictions:
A. Install the Program on any number of computer or mobile devices to process information internally for your personal purposes.
B. Use the Program subject to the limitations in this Agreement.
C. Make an appropriate number of backup copies of the Program to protect against malfunction or damage to your computer systems or the media on which the Program is stored and/or used.
D. Install on an appropriate number of backup computers for purposes of backup systems in case of operational problems with primary computers.
If you desire to use the Program for purposes that exceed the restrictions set forth in this Agreement, then you must obtain an additional license from Licensor for any and all such use.
1.3 You may not:
A. License, sell or lease the Program to, or permit the use of the Program by or for the primary benefit of, any third party.
B. Modify the Program or any part of the Program.
C. Reverse engineer, decompile or disassemble the Program under any circumstances.
D. Copy any part of the Program unless this Agreement permits it.
E. Remove or destroy any proprietary markings or legends, including copyright and trademark notices, appearing on or contained within the Program.
F. Use, reverse engineer, decompile or disassemble the Program in an attempt to access any personally identifiable information or consumption data for any third party for which you do not have the right to access.
G. Make a copy of the Program available on a network or platform where multiple users could use the Program at the same time.
H. Make the Program available over a network or platform where multiple users could download the Program.
I. Make any attempt to circumvent or interfere with Licensor’s authorized process for distribution of Program.
J. Use the Program to provide commercial services to third parties.
1.4 Licensor and its Third-Party Software Providers (if any) retain all right, title and interest in the Program (including copies made by you), except for those rights expressly granted to you under this Agreement. You acknowledge that Licensor, its Third-Party Software Providers (if any), and their successors and assigns own all proprietary rights in the Program, including copyrights and trade secrets.
1.5 You agree that Licensor, its affiliates, and project collaborators may collect and use data gathered from your use of the Program or as part of support services provided to you, if any, related to the Program. Licensor may use the data collected to conduct research, improve its products or to provide customized services or technologies, and will not disclose this information in a form that personally identifies you.
2.0 SERVICES. No training, implementation or on-site service is included under this Agreement. You are responsible for the installation of the Program unless you have agreed separately to purchase installation or other professional services from Licensor.
PART II. SUPPORT AND MAINTENANCE TERMS
3.0 During the term of this Agreement, Licensor may, in its sole discretion, provide you with web and e-mail consultation services, including problem solving, bug reporting, documentation clarification and guidance for the Program. E-mail consultations and Web Support, if provided, will be made available during the hours of 9:00 a.m. to 4:00 p.m. Central Time, Monday through Friday, exclusive of Licensor holidays.
4.0 TERMS OF PERFORMANCE OF SUPPORT SERVICES. In Licensor’s discretion, Enhancements (defined below) and related documentation made generally available at no additional charge to all licensees of Licensor may also be provided to you at no charge. “Enhancements” are new releases and versions, error corrections, minor updates and modifications of the Program. This Agreement does not give you any rights to any updates or upgrades to the Program or to any extensions or Enhancements to the Program, or to any support services, at any time now or in the future. Licensor may offer support services separately at its discretion. Any supplemental software, programs or related materials that Licensor provides to you as part of any support services are to be considered part of the Program and are subject to the terms and conditions of this Agreement.
PART III. PAYMENT AND OTHER GENERAL TERMS
5.0 FEES. The Program is provided to you free of charge.
6.0 TERM. The term of the license set forth in Part I and the term of this Agreement shall be for one (1) year from the date you download or install (“Effective Date”) this Mobile App and shall automatically renew on the last day of each one-year term unless terminated as set forth herein. User’s participation in Licensor’s Project Research (as defined further herein), subject to the terms stated herein, shall continue for so long as User continues to use the Program and/or access any Equipment provided by Licensor to User.
7.1 This Agreement may be terminated as set forth in this Section 7 (or Section 9 below). In addition, any license to a particular Program licensed under this Agreement may be terminated as set forth in this Section 7 or in Section 9.
7.2 Licensor may terminate this Agreement and any license granted hereunder immediately if you materially violate any terms of this Agreement.
7.3 Notwithstanding the foregoing, Licensor may terminate this Agreement at any time for any reason within its sole discretion.
8.1 Without the prior written consent of Licensor, your rights to Program may not be assigned, sublicensed, or otherwise transferred, voluntarily or otherwise, by you.
9.0 WARRANTY AND INDEMNITY
9.1 Should the Program become, or in Licensor’s opinion be likely to become, the subject of any claim of infringement, Licensor may at its sole discretion (i) procure for you the right to continue using the Program, (ii) replace or modify the Program so as to make it non-infringing, or (iii) terminate the license granted hereunder. Licensor will have no liability for any claim of infringement based upon (i) use of other than the latest unmodified release of the Program available to you if such infringement would have been avoided by the use of such release and you were notified that use of the release would avoid such infringement, (ii) use or combination of the Program with other programs or data if such infringement would not have occurred without such use or combination except where such use or combination is typical for the Program, or (iii) use of the Program after receiving notice from a third party or Licensor that the Program infringes a patent, copyright or trade secret right of a third party unless prompt written notice thereof is given to Licensor. The forgoing states the exclusive remedy of you and Licensor’s entire liability with respect to infringement of patents, copyrights, trade secrets or other proprietary rights.
10.1 THE PROGRAM IS LICENSED TO YOU “AS IS.” OTHER THAN THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT, LICENSOR NEITHER MAKES NOR GRANTS ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED. LICENSOR EXPRESSLY EXCLUDES ALL IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS, INCLUDING SPECIFICALLY ANY AND ALL IMPLIED WARRANTIES, REPRESENTATIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE.
10.2 EXCEPT FOR ANY MATERIAL VIOLATION OF SECTION 11, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DAMAGE OR LOSS IN ANY WAY CONNECTED WITH THE PROGRAM, THIS AGREEMENT, SUPPORT OR ANY OTHER MATERIAL, INFORMATION OR SERVICES FURNISHED BY LICENSOR HEREUNDER, WHETHER OR NOT CAUSED BY LICENSOR’S BREACH OF WARRANTY, NEGLIGENCE OR ANY BREACH OF ANY OTHER DUTY, SHALL BE, AT LICENSOR’S OPTION, REPLACEMENT OF THE LICENSED PROGRAM OR ENHANCEMENTS, OR REPERFORMANCE OF THE SUPPORT SERVICES. IN NO EVENT SHALL LICENSOR’S LIABILITY EXCEED THE AMOUNTS RECEIVED BY LICENSOR FROM YOU FOR THE PROGRAM OR FOR SOFTWARE SUPPORT UNDER THIS AGREEMENT, EVEN IF LICENSOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR INSTANCES OF INTENTIONAL VIOLATION OF THE OTHER PARTY’S CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OR THE LOSS OF DATA OR INFORMATION OF ANY KIND, HOWEVER CAUSED, OR FAILURE OF THE PROGRAM TO WORK OR PERFORM IN ANY WAY, OR ANY LIABILITY TO END-USERS OR TO THIRD PARTIES.
10.3 The Program does not replace the individual water, gas, and/or electricity meters or other billing systems as provided by any utilities with which you have contracted for the provision of services. All questions regarding meters, billing systems, or bills should be directed to the specific utility with which you have contracted.
10.4 From time to time, one or more third parties may contract with Licensor to communicate messages to you through the Program pursuant to agreements between the third parties and you. Licensor makes no representations or warranties as to the accuracy of the content of any such messages that are communicated by such third parties, provided that such messages are marked such that you can reasonably infer that they originated from said third parties.
11.0 CONFIDENTIALITY. Each party may disclose to the other party information that it designates as confidential or which should be reasonably understood to be confidential under the circumstances (“Confidential Information”). Each party agrees to hold such Confidential Information of the other party in confidence and to protect it with at least the same degree of care with which it protects its own similar confidential information, which in no event shall be less than reasonable care. Licensor’s Confidential Information includes, without limitation, its technology, processes, specifications, developments and software programs, whether or not designated as Confidential Information. In addition, any Third Party Software shall be included as Confidential Information, whether or not designated as Confidential Information. Nothing in this Agreement shall prohibit or limit either party’s use of information (including, but not limited to, ideas, concepts, know-how, techniques, and methodologies) (i) previously known to it without an obligation of confidence, (ii) independently developed by or for it, (iii) acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information, or (iv) which is or becomes publicly available through no breach of this Agreement. This Section 11 does not negate or supersede the terms of any other confidentiality agreement between you and Licensor. Neither party may disclose the financial terms of this Agreement to any third party other than its counsel or accountants or as required by law.
12.1 This Agreement will be governed by and interpreted in accordance with the laws of the State of Texas, excluding its principles relating to conflicts of laws.
12.2 This Agreement constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes any and all other prior understandings, statements, warranties, representations and agreements, oral or written, relating to them, except that the terms of any earlier nondisclosure or confidentiality agreement shall remain in full force and effect. You are not relying on any representations about the Program or any future releases of the Program, unless such representations are attached in writing to this Agreement. Any amendment to this Agreement must be in writing and signed by both parties.
12.3 Except for actions initiated by either party to this Agreement for injunctive relief to enforce its rights pursuant to Sections 11 or 14.1 or, at the election of the party seeking collection, for the collection of any payments due in the normal course of business, any dispute or claim arising in connection with this Agreement are to be settled by binding arbitration in the state of Texas. The Licensor shall choose the arbitration forum. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in software disputes and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction located in the State of Texas.
12.4 You will comply with, and at all times cooperate promptly with Licensor to enable Licensor to comply with, the provisions of the United States Export Administration Act, War Powers Act, or other law or Executive Order relating to control of exports or transfer of technology, and the regulations of the United States Departments of State, Commerce and Defense relating to them (in present form or as they may be amended in the future).
12.5 Notices delivered under the terms of this Agreement will be in writing and sent by prepaid certified mail, return receipt requested, or by a nationally recognized overnight courier service to the respective addresses of the parties set forth in the recitals to this Agreement. In the case of Licensor, such notices will be directed to the attention of the Pecan Street General Counsel at 3924 Berkman Dr., Austin TX 78723; and, in your case, such notices will be directed to the attention of the individual executing this Agreement via the provided email address. Notices will be effective on the date received.
12.6 No term or provision of this Agreement will be deemed waived and no breach of this Agreement will be deemed consented to or excused, unless such waiver, consent or excuse will be expressed in writing and signed by the party claimed to have so waived, consented or excused such term or provision.
12.7 The application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
12.8 After expiration or termination of this Agreement, all provisions regarding scope of the license granted in Part I, audit, indemnification, warranties, liability and limits thereon, assignment and confidentiality or protection of proprietary rights and trade secrets, shall survive indefinitely.
12.9 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 therefore 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.
13.0 DEFINITIONS. For purposes of this Agreement, the following terms shall be defined as follows:
A. “Error” means a failure of the Program to conform to the specifications resulting in the inability to use or a considerable restriction in use of the Program.
B. “Error Correction” means either a software modification or addition that, when made or added to the Program, corrects the Error, or a procedure or routine that, when observed in the regular operation of the Program, eliminates the practical adverse effect of the Error on End User.
C. “Program” means all the Mobile App’s(s’) suite of functionality (e.g., mobile application, web portal, web application, and/or related backend systems), as they may be upgraded, enhanced, and/or modified by Licensor, in machine-readable, object code form only. The Program also includes any subsequent versions that substantially replicate the same functionality even though they may be given a different operating name.
D. “Third-Party Software” means software of companies other than Licensor that Licensor has licensed to you under this Agreement.
E. “Third-Party Software Provider” means a company, other than Licensor, that has licensed Third Party Software to Licensor, which Licensor sublicenses to you under this Agreement.
F. “User” means a named person, who has downloaded or installed the Program, accepted the terms and conditions of this Agreement, and who has been assigned unique login credentials to access and use the Program.
G. “Utility” means water, gas, electricity, or similar services or resources.
14.0 INJUNCTIVE REMEDIES. In the event you breach or threaten to breach any of the covenants expressed herein, the damage to Licensor will be great and irreparable and difficult to quantify; therefore, Licensor may apply to a court of competent jurisdiction for injunctive or other equitable relief to restrain such breach or threat of breach, without disentitling Licensor from any other relief in either law or equity. The parties hereto agree that venue for any action related to such an action for injunctive or other equitable relief shall solely be in the Federal District Court for the Western District of Texas and the parties hereby irrevocably submit to the jurisdiction and venue of said court.
PART IV. PROJECT RESEARCH TERMS
In consideration for free access to the Program, you agree to participate in Licensor’s Project Research (as further defined herein) and to fully comply with the Project Research terms described under this PART IV of this Agreement.
15.0 PROJECT PARTICIPATION AGREEMENT
A. The “Project” or “Project Research” is a study of the conservation impacts of certain customer behavior. An element of the Project may also include providing said customers with secure online access to information about their home’s performance, maintenance needs, utility use and estimated utility bills
B. “User’s Participation Period” will begin on the Effective Date of this Agreement and shall extend for the Term of this Agreement and terminate as provided in Sections 6 and 7 of this Agreement.
C. A “Project Collaborator” is an entity or person that:
i. is collaborating with Licensor on its research, development and demonstration activities; and
ii. has executed with Licensor an agreement requiring nondisclosure of confidential information.
D. “Confidential Information” is any and all information related to the Project or to User’s current or past participation in the Project, in which either of the Parties holds a legal interest that is not publicly available. Confidential Information includes any non-publicly available data obtained from User through participation in the Project.
E. “User’s Premises” is the location where User resides and is the same location from where some Project Research Information will be generated.
15.2 Project Research Information
A. Licensor may install one or more household Utility measurement equipment (“collectively, Equipment”) at User’s Premises for the purpose of collecting User’s utility consumption data.
B. The Parties agree that User’s participation in the Project is subject to Licensor determining, independent of execution of this Agreement, that User’s Premises is suitable for inclusion in the Project. This determination will be made in Licensor’s sole discretion.
C. To initiate a new Equipment installation, Licensor will request such an installation from User through User’s email address provided by User to Licensor. User’s emailed acceptance of the request constitutes permission to install the Equipment as discussed herein.
D. User may also provide authorization for Licensor to access User’s third party data. The provision of access credentials by User to Licensor or of permission by User to a third party to allow Licensor access such data shall render any data accessed thereby to be treated by Licensor as Project Information (as discussed herein).
15.3 Roles and Responsibilities
A. As part of the mutual consideration forming this Agreement, Licensor’s roles and responsibilities as pertains to Users provided with Equipment are:
i. Installing Equipment at User’s Premises at a mutually agreed upon time.
ii. Maintaining liability insurance for any damage caused by the Equipment installed at User’s Premises, and providing proof of such liability insurance upon written request by User.
B. As part of the mutual consideration forming this Agreement, the roles and responsibilities of any User provided with Equipment under this Agreement include:
i. Permitting and providing access to Licensor and Licensor’s agents to enter User’s premises to install the Equipment at a mutually agreed upon time.
ii. Maintaining broadband Internet service and a functioning available Ethernet port without interruption during User’s Participation Period.
iii.Not tampering with the Equipment during User’s Participation Period.
iv. Participating in and completing surveys administered by Licensor (“Project Survey(s)”).
v. Carrying out all of User’s obligations under this Agreement.
15.4 Treatment of Confidential Information.
A. Licensor shall not use any Confidential Information except as necessary in order to carry out its research work, and it shall not disclose any Confidential Information to any third parties (except to Project Collaborators as provided herein).
B. Licensor shall take reasonable security precautions, at least as great as the precautions it takes to safeguard its own confidential information, to prevent disclosure of Confidential Information.
C. The parties agree that it is necessary to provide Confidential Information to Project Collaborators for the purposes of carrying out the Project and that Licensor may provide Confidential Information to a Project Collaborator provided that an agreement requiring non-disclosure of confidential information is in effect between such Project Collaborator and Pecan Street, proof of which shall be made available to Resident upon request.
15.5 Project Information Rights and Responsibilities
A. In consideration for payment-free access to the Program and/or information collected from the Equipment, and mutual covenants contained in this Agreement, User conveys to Licensor, sole ownership of the data that Licensor collects and/or receives pursuant to this Agreement (“Project Information”).
B. Licensor shall have sole ownership of the data that Licensor collects from User’s Premises, including Project Information, and data from any devices, equipment, or systems that are the subject of any addenda to this Agreement.
C. Licensor and its assignees may include Project Information in research reporting and /or presentations so long as the Project Information so included does not disclose User’s identity or the address of User’s Premises.
D. The Parties recognize the critical importance to the Project of uninterrupted flow of utility consumption data. In recognition of this, User agrees to the following:
i. In the event that the Equipment malfunctions, User agrees to provide Licensor with access to User’s Premises at a mutually agreeable time no later than three business days after the malfunction is detected.
ii. User will notify Licensor if User moves from User’s Premises during User’s Participation Period and/or if additional housemates are added.