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”). Intending to be legally bound, you and Licensor agree to the terms and conditions stated in this Agreement.
BY CLICKING THE “SUBMIT” BUTTON OR OTHERWISE USING THIS PECAN STREET BLUWATER MOBILE APP (THE “PROGRAM”), YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING THE “SUBMIT” BUTTON, YOU ALSO ENROLL TO PARTICIPATE IN LICENSOR’S RESEARCH PROJECT AS OUTLINED IN SECTION 15 OF THIS AGREEMENT AND AGREE TO BE BOUND BY ALL PARTICIPATION TERMS OUTLINED HEREIN. 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 its behalf. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT CLICK THE “SUBMIT” BUTTON.
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 Pecan Street BluWater 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:
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 valuable 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 to you 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 SUPPORT. During the term of this Agreement, Licensor may, in its 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 at any time 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 five (5) years from the date of execution and can only be terminated as specifically set forth herein. User’s participation in Licensor’s Research Project, subject to the terms stated herein, shall continue for so long as User continues to use the Program.
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.
7.4 Notwithstanding the foregoing, Licensor may terminate this Agreement at any time for any reason within its sole discretion.
8.0 ASSIGNMENT
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.
8.2 Without prior written notice to you, 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, 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 (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.
10.0 LIMITATIONS
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, 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 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 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 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.
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 Pecan Street BluWater Mobile App’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.
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
15.0 PARTICIPATION AGREEMENT
15.1 Definitions
A. The “Project” is the Licensor Project, a study of the conservation impacts of providing residential customers information on their water use in near real time. The “Project” also includes Licensor’s customer energy use research trial to provide participants with secure online access to information about their home’s performance, maintenance needs, electricity use and estimated electric bills
B. “User’s Participation Period” will begin on the Effective Date of this Agreement and concludes upon the termination of this Agreement, or any subsequent agreements. After the Term of this Agreement, User’s Participation Period shall renew as specified in Section 15.3 (C) herein.
C. A “Project Collaborator” is an entity or person that:
I. is collaborating with Licensor on the Project research, development and demonstration activities; and
II. has executed with Licensor a nondisclosure agreement applicable to the Project.
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 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 Program.
E. “User’s Premises” is the location where User resides and is the same location from where Project Research Information will be generated.
15.2 Project Research Information
A. Licensor will install water meter equipment and/or energy measurement equipment (“collectively, Equipment”) at User’s Premises for the purpose of collecting User’s water consumption data, and User’s energy consumption data (where applicable).
B. Licensor will provide and install the Equipment through an agreement or agreements between Licensor and an equipment provider (or providers) selected by Licensor.
C. 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.
D. 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.
E. 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
A. As part of the mutual consideration forming this Agreement, Licensor’s roles and responsibilities in this Agreement include:
I. For Users provided with 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.
II. Carrying out its responsibilities relating to Project Information as specified in the section of this Agreement titled “Project Information Rights and Responsibilities.”
B. As part of the mutual consideration forming this Agreement, User’s roles and responsibilities in this Agreement include:
I. For Users provided with Equipment:
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.
II. Participating in and completing a survey administered by Licensor (“Project Survey”)
III. Maintaining water and electric utility delivery service without interruption during User’s Participation Period.
IV. Carrying out User’s responsibilities relating to Project Information as specified in the section of this Agreement titled “Project Information Rights and Responsibilities.”
C. User agrees 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: i) User maintains her/his user account provided by Licensor for reporting User’s water and/or real time energy use and diagnostics; and ii) User accesses, downloads, or in any way uses the Programs as described herein.
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). 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.
B. 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
A. 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.
B. Licensor and its assignees may include Project Information as part of required reporting to government agencies, 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.
C. 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.
D. User acknowledges the critical importance to the Project of uninterrupted data flow. 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.
E. For Users provided with Equipment, User agrees to notify Licensor at least one month ahead of moving to a new residence in order to allow Licensor take the necessary measures to minimize disruption of the Project. In the event of a move, the following terms shall apply:
I. User agrees to provide Licensor with time to work with the next resident of User’s Premises 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 one month 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.
II. If as a result of User’s notice of moving, Licensor deems it necessary to remove the Equipment, User agrees to provide Licensor and its agents with access to User’s Premises to remove the Equipment from User’s Premises before Resident moves. Failure to provide this required notice or permission would constitute Early Termination of this Agreement and Resident shall be subject to the Early Termination terms of this Agreement.
F. User is responsible for putting any subsequent new resident(s) of User’s Premises during the on notice about the existence and provisions of this Agreement. User remains responsible for compliance with this Agreement throughout User’s Participation Period unless the Parties agree to assign this Agreement to a new user.
G. If User decides to no longer participate in the Project before the end of User’s Participation Period (“Early Termination”), User agrees to notify Licensor in writing of User’s intention to terminate the Agreement at least four weeks in advance. In the event of Early Termination of this Agreement, User agrees to provide Licensor and its agents with access to User’s Premises to uninstall the Equipment.
H. Licensor retains an ownership interest in the Equipment at all times. User may not remove, encumber, or transfer title to the Equipment to another person/entity without written approval from Licensor. If User violates this term, User must reimburse Licensor for the full costs of the Equipment.
16.0 EFFECTIVE DATE. The Effective Date of this Agreement is the date that you accept the terms and conditions of this Agreement by clicking the “Submit” button. Upon clicking the “Submit” button, your digital signature to enroll to participate in the Project is date and time stamped as the Effective Date.
17.0 ACCEPTANCE. You indicate agreement to enroll and participate in the Project by clicking the “Submit” button to sign up for a Pecan Street BluWater Mobile App account. Pecan Street indicates acceptance of this agreement by affirmatively sending you an email indicating that the Agreement has been accepted.
