Pumpkin Pie User Agreement

Pumpkin Pie Mobile App User Agreement

TERMS AND CONDITIONS

THIS SOFTWARE LICENSE AND SUPPORT Agreement is between Pecan Street Inc. a Texas non-profit corporation located at 3925 W. Braker Lane, Austin TX 78759 (“Licensor”), and you (“you” or the “client”).  Intending to be legally bound, you and Licensor agree to the terms and conditions stated in this Agreement, including its Schedules and any exhibits, addenda, appendices or amendments (collectively, the “Agreement”).

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 Pumpkin Pie Mobile App (“Program”).

1.2           You may:

1. Install the Programs on any number of mobile computer devices to process information internally for your personal purposes.
2. Use the Programs subject to the limitations in this Agreement.
3. 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 Programs are stored.  Install on an appropriate number of backup computers for purposes of backup systems in case of operational problems with primary computers.
4. Make and install an appropriate number of copies of the Program for internal training and testing purposes.

If you desire to use any Program for purposes that exceed the restrictions set forth in this Agreement, then an additional license will be required.

1.3      You may not:

A.  License, sell or lease the Programs to, or permit the use of the Programs by or for the primary benefit of, any third party.

B.  Modify the Programs or any part of them.

C.  Reverse engineer, decompile or disassemble the Programs under any circumstances.

D.  Copy any part of the Programs unless this Agreement permits it.

E.   Remove or destroy any proprietary markings or legends, including copyright and trademark notices, appearing on or contained within any 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.

1.4       Licensor and its Third-Party Software Providers (if any) retain all right, title and interest in the Programs (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 and Materials, including copyrights and valuable trade secrets.

2.0           SERVICES.  No training, implementation or on-site service is included under this Agreement.  You are responsible for the installation of the Programs unless you have agreed separately to purchase installation or other professional services from Licensor.

PART II.  SUPPORT AND MAINTENANCE TERMS

3.0       SUPPORT.  During the term of this Agreement, Licensor may, in its discretion, provide you with the following Software Support:

Web and e-mail consultation services, including problem solving, bug reporting, documentation clarification and technical guidance for the Program at the latest “x.0” revision level (or revision level immediately preceding the most recent revision level for 180 days after its release). “Support Environment” includes Program instances at client’s site location(s). E-mail consultations will be available during the hours of 9:00 a.m. to 4:00 p.m. Central Time, Monday through Friday, exclusive of Licensor holidays. Web support will be available 24×7.

4.0       TERMS OF PERFORMANCE OF SOFTWARE SUPPORT SERVICES

In Licensor’s discretion, Enhancements (defined below) and related documentation made generally available at no additional charge to all licensees of Licensor who have purchased support and maintenance may also be provided to you at no charge.  “Enhancements” are new releases and versions, error corrections, minor updates and modifications of the Program(s).

PART III.  PAYMENT AND OTHER GENERAL TERMS

5.0           FEES AND INVOICES

5.1       The Program is provided to you free of charge.

6.0           TERM

6.1       The term of the license set forth in Part I and the term of this Agreement shall be for five (5) years from the date of execution and can only be terminated as specifically set forth herein.

7.0       TERMINATION

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       If either party defaults in the performance of any material obligations under this Agreement, and such default is not corrected within thirty (30) days after receipt of written notification of the default from the non-defaulting party, then the non-defaulting party may terminate this Agreement (or, if applicable, individual Program license(s)) including the license granted in Part I immediately upon delivery of the written notice of termination to the defaulting party.

7.3       Licensor may terminate this Agreement and any license granted under Part I: (a) immediately if you materially violate Section 1 or 11 of this Agreement or (b) upon 30 days’ notice to you for any reason or without reason, in Licensor’s discretion. In addition, and not withstanding anything to the contrary herein, this Agreement shall automatically terminate immediately upon termination of the Joint Marketing Agreement between the parties, entered into on or about the same date as this Agreement.

8.0       ASSIGNMENT

8.1       Without the prior written consent of Licensor, your rights to any Programs under this Agreement may not be assigned, sublicensed, or otherwise transferred, voluntarily or otherwise, by you.

8.2       Without your prior written consent, Licensor’s obligations under this Agreement may not be assigned or otherwise transferred, voluntarily or otherwise, except in connection with the sale of its business by merger, stock sale or transfer of a substantial portion of its assets.

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 option (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, if (i) and (ii) are not commercially reasonable, (iii) terminate the license granted hereunder and refund the amounts paid for such license.  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 Programs 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 Programs or Materials, or (iii) use of the Programs after receiving notice from a third party or Licensor that the Programs infringe 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.

10.0     LIMITATIONS

10.1     THE PROGRAMS ARE 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, SOFTWARE 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, REPERFORMANCE OF THE SOFTWARE SUPPORT OR SERVICES, OR RETURN OR CREDIT OF THE APPROPRIATE PORTION OF ANY AMOUNTS RECEIVED BY LICENSOR FROM YOU.  IN NO EVENT SHALL LICENSOR’S LIABILITY EXCEED THE AMOUNTS RECEIVED BY LICENSOR FOR THE PROGRAM OR FOR SOFTWARE SUPPORT UNDER THIS AGREEMENT DURING THE SIXTY (60) MONTH PERIOD IMMEDIATELY PRECEDING YOUR CLAIM FOR RECOVERY, 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 (EXCEPT AS SET FORTH IN SECTION 9.2).

10.3     ALL INFORMATION IS PROVIDED TO YOU AS AN ESTIMATE.  LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OF ANY COST ESTIMATES, ENERGY CONSUMPTION READINGS, ON/OFF STATUS OF A PARTICULAR CIRCUIT, LABELING OF A PARTICULAR CIRCUIT, APPROXIMATIONS FOR FUTURE USE OR FUTURE COSTS, EFFICACY OR ADVISABILITY OF SPECIFIC IMPROVEMENTS TO HOME OR TO SPECIFIC CHANGES IN APPLIANCE USE PATTERS PROVIDED BY THE PROGRAMS.

10.4     The Programs do 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.

10.5     From time to time, one or more third parties may contract with Licensor to communicate messages to you through the Programs 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 these third parties, provided that such messages are marked such that you can reasonably infer that they originated from these 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.

12.0  GENERAL

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(s) or any future releases of the Program(s) other than the Materials, unless such representations are attached in writing to this Agreement. Any amendment to this Agreement must be in writing and signed by both parties.  Printed or standard terms on any order form submitted by you shall not apply if, and to the extent that, they are inconsistent with this Agreement.  This Agreement may be executed in multiple counterparts, which may be exchanged via electronic facsimile machines or electronic signature devices.

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 arbitration forum shall be chosen by the Licensor.  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 dispuates 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 3925 W. Braker Lane, Austin TX 78759; 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  To the extent that terms of the base Agreement conflict with terms of an Exhibit, Addendum or Schedule, the relevant Exhibit, Addendum or Schedule will control with respect to the relevant Program or service.

12.9  After expiration or termination of this Agreement, all provisions relating to payment shall survive until completion of required payments.  In addition, 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.

13.0   DEFINITIONS. For purposes of this Agreement, the following terms shall be defined as follows:

 “Error” means a failure of the Programs to conform to the specifications resulting in the inability to use or a considerable restriction in use of the Programs.

“Error Correction” means either a software modification or addition that, when made or added to the Programs, 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.

“Programs” means all the Pumpkin Pie 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 Programs include any Third-Party Software products and related documentation listed on the initial pages of this Agreement or in a Schedule.  The Programs also include any subsequent versions that substantially replicate the same functionality even though they may be given a different operating name.

“Third-Party Software” means software of companies other than Licensor that Licensor has licensed to you under this Agreement.

“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.

“Users” All Users under this Agreement are named users assigned a unique login to access the Program, and they do not have concurrent user rights to use the Program.

14.0   INJUNCTIVE REMEDIES

14.1     In the event you breache 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.

15.0   PARTICIPATION AGREEMENT

15.1     Definitions

1. The “Project” is the Licensor Project, a customer energy use research trial to –
   1. provide participants with secure online access to information about their home’s or business’s performance, maintenance needs, electricity use and estimated electric bills
   2. advance public interest research on electric system reliability, climate change, renewable energy integration and customer needs and preferences
2.  “User’s Participation Period” will begin on the first date that Licensor begins or has begun collection of any Confidential Information (as defined below) related to User, and concludes upon the termination of this, or any subsequent, agreements.
3. A “Project Collaborator” is an entity or person that:
   1. is collaborating with Licensor on the Project research, development and demonstration activities; and
   2. has executed with Licensor a nondisclosure agreement applicable to the Project.
4. “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 data obtained from User through participation in the Project, including but not limited to: energy consumption data, water consumption data, natural gas consumption data, energy generation data, and usage statistics for the Programs.

15.2     Project Research Information

1. For some Users, Licensor may elect to to install energy measurement equipment (“Equipment”) at User’s premises for the purposes of determining a User’s consumption data.
2. Licensor will provide and install the Equipment through an agreement between Licensor and an equipment provider selected by Licensor.
3. The Parties agree that User’s participation in the Equipment measuring 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. Factors that Licensor may consider include, but are not limited to, the following:
   1. Whether User’s premises has active broadband Internet service (which may be needed for the Equipment to function properly)
   2. Whether User’s Premises has an available, functioning Ethernet port into which the Equipment can, if needed, be plugged
   3. The project team’s interest in measuring load profiles in a diverse group of homes and businesses with a variety of appliances, factors and systems to create learning on a variety of systems. (For example, the project team’s statistical work is helped by having access to information on the load profiles of homes with and without solar panels, among many unlisted factors.)
4. To initiate a new Equipment installation, Licensor will request such an installation from User through User’s email address as provided to Licensor.  User’s emailed acceptance of the request constitutes permission to install the Equipment as discussed herein.
5. 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 the third party for Licensor to access this data shall render any data accessed to be treated as confidential by Licensor and as Project Information as discussed herein.

15.3     Roles and Responsibilities

1. As part of the mutual consideration forming this Agreement, Licensor’s roles and responsibilities in this Agreement include:
   1. For Users in possession of Equipment:

i.                       Installing Equipment at User’s Premises at a mutually agreed upon time.

ii.                       Maintaining the Equipment at User’s Premises from the date of installation through the end of User’s Participation Period.

iii.                       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.

1. Carrying out its responsibilities relating to Project Information as specified in the section of this Agreement titled “Project Information Rights and Responsibilities.”
2. As part of the mutual consideration forming this Agreement, User’s roles and responsibilities in this Agreement include:
   1. For Users in possession of Equipment:

i.                       Permitting and providing access to Licensor and its agents to enter User’s premises to install the Equipment and to conduct a home energy audit and survey of User’s Premises 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.

1. Participating in and completing a survey administered by Licensor (“Project Survey”)
2. Maintaining electric utility delivery service without interruption during User’s Participation Period.
3. Carrying out User’s responsibilities relating to Project Information as specified in the section of this Agreement titled “Project Information Rights and Responsibilities.”
4. The Parties agree that at the conclusion of the User’s Participation Period, this Agreement will renew annually for 12 months (“Annual Renewal Period”) for so long as User maintains her/his user account provided by Licensor for reporting to User’s real time energy use and diagnostics and User accesses, downloads, or in any way uses the Programs as described herein.

15.4Treatment of Confidential Information

1. 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). 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 the Confidential Information.
2. 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 subject to separate nondisclosure agreements between each Project Collaborator and Licensor.

15.5     Project Information Rights and Responsibilities

1. User conveys to Licensor the following rights to the data that Licensor collects and receives pursuant to this Agreement (“Project Information”): Joint ownership of User’s legal interest to the data that Licensor collects from User’s Premises or through User’s authorization to access third party data, including Project Information and data from any systems that are the subject of any addenda to this Agreement.
2. Licensor 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 User’s identity or the address of User’s Premises.
3. User’s conveyance to Licensor of a joint ownership interest in User’s legal interest to Project Information collected from User’s Premises is in consideration for the mutual covenants contained in this Agreement, including these specific covenants by Licensor: Licensor will treat User’s Project Information as Confidential Information.
4. The Parties recognize the critical importance to the Project of uninterrupted data flow of electricity consumption data. In recognition of this, any User with Equipment agrees to the following:
   1. In the event that (where applicable) the Equipment malfunctions, User agrees to provide access to Licensor at a mutually agreeable time no later than three business days after the malfunction is detected.
   2. User will notify Licensor if User moves from User’s Premises during User’s Participation Period and/or if additional housemates are added.
5. If User moves to a new address, this Agreement will remain in full force for the new residence. User agrees to execute any new authorization forms that might be required for Licensor to access Project Information for the new residence. Additionally, User authorizes Licensor at its sole discretion to install the Equipment (or replacement Equipment) at User’s new premises, and User agrees to provide Licensor and its agents with access to User’s new premises to install and maintain the Equipment in the manner specified in this Agreement.
6. If User moves to a new address, User agrees to provide Licensor with time to work with the next User so that the Project research can continue uninterrupted at User’s Premises after User moves. User agrees to provide this notice that User is moving in writing to Licensor at least two weeks prior to User moving. User further agrees that, as part of this written notice, User will provide to Licensor the name and contact information of all persons who will reside at User’s Premises after User moves who are authorized to agree to assignment of this Agreement.