Legal Items

El Paso Electric

RUSH HOUR REWARDS PROGRAM AGREEMENT FOR EL PASO ELECTRIC CUSTOMERS

CUSTOMER RECEIVES SERVICE FROM UTILITY UNDER THE APPLICABLE RULES AND REGULATIONS PERTAINING TO SERVICE AS APPROVED BY THE PUBLIC UTILITY COMMISSION OF TEXAS OR THE NEW MEXICO PUBLIC REGULATION COMMISSION (IN EACH INSTANCE, THE “RULES AND REGULATIONS”). CUSTOMER IS PARTICIPATING IN THIS PROGRAM PURSUANT TO NEW MEXICO RATE SCHEDULE 37 OR PUBLIC UTILITY COMMISSION OF TEXAS DOCKET NO. 46967 (AS APPICABLE, THE “SCHEDULE” OR “DOCKET”). IN THE EVENT OF ANY CONFLICT BETWEEN (i) THESE TERMS AND CONDITIONS AS THEY APPLY TO CUSTOMER AND UTILITY AND (ii) EITHER THE (a) RULES AND REGULATIONS OR (b) SCHEDULE OR DOCKET, THE APPLICABLE RULES AND REGULATIONS, SCHEDULE, OR DOCKET SHALL APPLY.

Thank you for your interest in the Rush Hour Rewards Program, a service offered by Nest Labs, Inc. (“Nest”).

Nest’s Rush Hour Rewards Program allows you to participate in the eSmart Thermostat Program (the “Program”) from El Paso Electric Company (the “Utility”) offered by EnergyHub using your Nest Thermostat. As part of the Program, Nest’s servers will remotely inform your Nest Thermostat of the existence of a Program event during summer periods of peak electrical usage, causing the Nest Thermostat automatically to change the temperature setpoint in your home on that day without any manual intervention by you. At any time that you desire, you may override this temperature setpoint simply by turning your Nest Thermostat to a different temperature or using the Nest website or mobile application. You should not use back-up generation during a Program event.

Definitions

  • “EnergyHub” means EnergyHub, Inc. and its respective affiliates, successors and assigns.
  • “Program Parties” means EnergyHub and the Utility, together with their respective affiliates, successors, and assigns, as well as and Nest and its successors, and assigns.

Overview

To participate in the Program, you must be at least 18 years of age and agree to this Rush Hour Rewards Program Agreement, including the requirements set forth in the Program Details below (this “Agreement”). Because this Agreement forms a legally binding agreement with respect to the Program, please read it carefully. By submitting this Agreement, you agree to be bound by all terms and conditions of this Agreement. If you do not agree to this Agreement, you are not eligible to participate in the Program and should not submit this Agreement. Notwithstanding the foregoing, you will not be enrolled in the Program until your application has been accepted and approved by Utility. This Agreement will become effective upon your acceptance and will continue until cancelled or terminated as described below.

By submitting this Agreement, you give Nest permission to access and use your energy usage information, to enable EnergyHub (a third-party provider who manages demand response programs) to enroll you in the Program, pursuant to the terms and conditions of this Agreement and subject to the governing Schedule or Docket. Any additional Nest Thermostats installed at your Utility service address will be automatically enrolled in the Rush Hour Rewards Program; HOWEVER, ANY ADDITIONAL AUTOMATICALLY ENROLLED THERMOSTAT(S) MAY NOT QUALIFY FOR ANY INCENTIVE DESCRIBED IN THIS AGREEMENT. BY BEING AUTOMATICALLY ENROLLED IN THE RUSH HOUR REWARDS PROGRAM, YOU WILL BE SUBJECT TO TERMS OF THE PROGRAM (SUCH AS, BUT NOT LIMITED TO, A CHANGE IN THE TEMPERATURE SETPOINT IN YOUR HOME WITHOUT ANY MANUAL INTERVENTION BY YOU WITHOUT NOTICE AS WELL AS ACCESS AND USE OF YOUR ENERGY USAGE INFORMATION). THE INCENTIVES OFFERED UNDER UTILITY’S ESMART THERMOSTAT PROGRAM ARE LIMITED TO AVAILABLE AND QUALIFYING THERMOSTATS AS GOVERNED BY THE APPLICABLE SCHEDULE OR DOCKET. AS A RESULT, AUTOMATIC ENROLLMENT IN THE RUSH HOUR REWARDS PROGRAM DOES NOT ENTITLE CUSTOMER TO ANY INCENTIVE FROM ENERGYHUB OR UTILITY.

Nest will administer the Rush Hour Rewards Program in accordance with the Nest Terms of Service, privacy policies and other policies on Nest’s website (http://www.nest.com/legal) and applicable laws and regulations.

Incentive(s)

You may be eligible to earn incentive payments (“Incentives”) for enrolling and/or remaining enrolled in the Program. Incentives will be provided pursuant to the applicable Utility offer and the automatic enrollment of additional Nest Thermostats may not result in additional Incentives.

Participants are eligible to earn the Enrollment Incentive and Participation Incentive described below in the “Program Details” paragraph. The amounts of the Enrollment Incentive and the Participation Incentive are determined solely by Utility. Neither EnergyHub nor Nest bears responsibility for determining the amount of the Enrollment Incentive or the Participation Incentive. You acknowledge that EnergyHub is providing the Enrollment Incentive and Participation Incentive on behalf of the Utility, but EnergyHub is not providing you any compensation or other financial benefit, and the enforceability of these Terms is not dependent upon your receipt of the Enrollment Incentive or the Participation Incentive, or the amount of either the Enrollment Incentive or the Participation Incentive. The Program Parties reserve the right to seek further information to verify your eligibility to receive the Enrollment Incentive or the Participation Incentive and to substitute an incentive of equivalent value at Utility's sole discretion without liability to Participant.

The Incentives are provided solely by EnergyHub as described above. Nest does not bear any responsibility for the Incentives. You acknowledge that Nest is facilitating your ability to earn Incentives, but Nest is not providing you any compensation or other financial benefit, and your permissions to Nest are not contingent on receipt or amount of the Incentives. Nest does not make any promise of a specific Incentive amount.

Program Terms

You can find more details about the Program, including Incentives and dispatch parameters for Program events, at the website set forth in the Program Details below.

How To Apply

You can apply to participate in the Program by visiting the website set forth below in the Program Details. Utility may accept or reject your application in its/their sole discretion.

Cancellation or Withdrawal

This Agreement is effective upon your submission of this Agreement and will continue until you, Utility, EnergyHub or Nest cancels your participation. You are participating in the Program on a voluntary basis. If you are dissatisfied with the Program, if you no longer wish to grant the authorizations provided herein, or otherwise decide you do not want to participate in the Program, once you enrolled, you may cancel your participation in the Program at any time during the term of the Program by emailing EnergyHub or Utility at the email address set forth in the Program Details below or (2) calling Nest at the phone number set forth in the Program Details below. By withdrawing, you may render yourself ineligible to receive an Incentive, participate in the Program in the future, or participate in other programs offered by the Program Parties. Upon any cancellation, withdrawal or termination, any permissions or releases granted hereunder shall survive cancellation or termination with respect to activities occurring prior to the time of such cancellation or termination.

Program Termination

EnergyHub’s and Nest’s ability to offer the Program is contingent on receiving certain approvals and acceptances from electric utilities and electricity grid governing bodies, including the Utility and other governing bodies as set forth in the Program Details below. If such approvals and acceptances are not obtained or if the Program is declared unlawful, the Program will be terminated, and you may not receive any Incentive. In the event of such termination, Nest or EnergyHub will provide you with notice of such termination.

Termination by the Program Parties

Subject to applicable law, the Program Parties each reserve the right to terminate this Agreement and not enroll you, or terminate your enrollment, in the Program at any time and without liability upon notice via email to the email associated with your Nest account at the time of your enrollment, if you do not satisfy the eligibility requirements, you violate this Agreement or applicable law, the Utility declares you ineligible, your account with EnergyHub is no longer in good standing, you enroll in a conflicting energy program through EnergyHub or Utility, or Nest, or any other reason. You acknowledge that you are using the Program on a voluntary basis.

Changes in Your Electricity Costs

The Program Parties are not responsible for any changes in your electricity costs during the Program.

Agreement

By submitting this Agreement, you agree to the following:

  • Nest is authorized to remotely inform your Nest Thermostat of the existence of a Program event, causing your Nest Thermostat automatically to change the temperature setpoint in your home on that day without any manual intervention by you. At any time that you desire, you may override this temperature setpoint simply by turning your Nest Thermostat to a different temperature or using the Nest website or mobile application.
  • The Program Parties are authorized to send you emails and other notifications related to your application for, and enrollment and participation in, the Program, including about your enrollment status and Program-related adjustments to your thermostat settings.
  • The Program Parties may send you emails and other notifications related to surveys about the Program and to share your responses to such surveys among themselves. Such surveys may include questions about topics such as your experience in the Program and your willingness to participate in future energy saving programs.
  • The Program Parties and their respective agents may collect and share with other Program Parties certain information (including, but not limited to, your name, email address, service address, Nest Thermostat serial number, activation date, Nest account status, runtime data, set-points, Program event participation statistics, customer enrollment, and support history, and related details) to (i) verify that you are eligible to participate in the Program, (ii) administer the Program, including the provision of customer support and verification that you are eligible for Incentives, and provision of Program reporting among the Program Parties and the Utility’s regulatory commission, and (iii) evaluate the comprehensive energy impact of the Nest Thermostat. If the Program Parties cannot collect the required information, you may not be eligible to participate in the Program. Each Program Party will protect your personal information and usage data consistent with this Agreement and each Program Party’s then current privacy policy and applicable law. You agree that the information detailed above may be shared with third-party service providers or agents of the Program Parties as necessary for the purposes described above.
  • The Program Parties and their respective agents (including the demand response provider) may exchange certain information related to your identity and your energy usage, solely for the purposes of administering the Program.
  • The Program Parties may share with each other your decision to opt out of the Program or your deletion of your Nest account, each of which will automatically result in the termination of your enrollment in the Program.
  • EnergyHub may summarize the results of the Program in publicly available studies, provided that any data or information included in such studies will be aggregated and anonymized such that you cannot be individually identified.
  • You will participate in the Program in accordance with the Nest Terms of Service, privacy policies and other policies on Nest’s website (http://www.nest.com/legal) and applicable laws and regulations.

Information

By applying for the Program and submitting this Agreement, you represent and warrant that the information you provided for enrollment and as a part of your application is truthful and that you meet the eligibility requirements above, and agree to promptly notify Nest if any changes occur. Any of the Program Parties may cancel or terminate your participation in the Program (or reject your enrollment) if the information you submit as part of your application is not true, if you do not satisfy the eligibility requirements, or for any other reason subject to applicable law.

Conduct

By submitting this Agreement, you agree to comply with and be bound by this Agreement and any other additional Program information provided to you during the Program as well as all applicable local, state, national, and international laws, rules and regulations. Failure to comply with this Agreement may result in your disqualification from the Program. You further agree to comply with and be bound by the decisions of EnergyHub and the Utility regarding your eligibility to participate, which are final and binding in all respects. EnergyHub and the Utility reserves the right in its sole discretion to disqualify you from the Program if: (1) you tamper or attempt to tamper with the operation of the Program; or (2) you violate this Agreement. Any inaccurate or false information provided within the context of the Program by you is a violation of this Agreement and may result in your immediate disqualification from the Program and forfeiture of any Incentive.

General Conditions

This Agreement is governed by the laws of the State of Texas or New Mexico, depending on the location of your service account with Utility. All federal, state and local laws and regulations apply. The Program Parties and their respective affiliates, agents, directors, officers, employees, successors, and assigns are not responsible for any typographical or other error in the printing of the offer or administration of the Program. The Program Parties’ failure to enforce any term of this Agreement shall not constitute a waiver of that provision. As a condition of participating in the Program, you agree that any and all disputes which cannot be resolved between the parties, and causes of action arising out of or in connection with the Program, shall be resolved individually, without resort to any form of class action. In any such dispute, you hereby waive all rights to claim or be awarded, punitive, incidental or consequential damages, including attorneys' fees, and you further waive all rights to have damages multiplied or increased.

DISCLAIMER

THE PROGRAM PARTIES AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, OFFICERS, EMPLOYEES, SUCCESSORS, AND ASSIGNS ARE NOT RESPONSIBLE OR LIABLE FOR ANY INCORRECT OR INACCURATE PROGRAM APPLICATION INFORMATION, AND ASSUME NO RESPONSIBILITY FOR (I) ANY CONTENT, SOFTWARE, hardware, thermostats, products or other materials provided, MANUFACTURED, DEVELOPED OR CREATED BY A THIRD PARTY; (II) TYPOGRAPHICAL OR OTHER ERRORS IN THE PRINTING OF THE PROGRAM MATERIALS OR THE OFFERING OR ANNOUNCEMENT OF ANY INCENTIVE, (III) ANY ERROR, OMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION AT ANY WEBSITE, (IV) FAILURE OF ANY APPLICATION TO BE RECEIVED BY THE PROGRAM PARTIES DUE TO TECHNICAL PROBLEMS, TELEPHONE SERVICE PROBLEMS, PRINTING ERRORS, HUMAN ERROR OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE, (V) COMMUNICATIONS LINE, HARDWARE AND/OR SOFTWARE FAILURES, (VI) DAMAGE TO ANY COMPUTER (SOFTWARE OR HARDWARE) RESULTING FROM PARTICIPATION IN THE PROGRAM, (VII) THEFT OR DESTRUCTION OF, TAMPERING WITH, UNAUTHORIZED ACCESS TO, OR ALTERATION OF APPLICATIONS AND/OR PROGRAM APPLICATION INFORMATION, OR (VIII) APPLICATIONS THAT ARE LATE, LOST, STOLEN, DAMAGED, ILLEGIBLE, AND/OR UNINTELLIGIBLE (OR ANY COMBINATION THEREOF).

LIMITATIONS OF LIABILITY.

YOU ASSUME ALL RISK OF PARTICIPATION IN THE PROGRAM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU INDEMNIFY AND AGREE TO HOLD HARMLESS the Program Parties FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, DEMANDS, LOSSES, DAMAGES, COSTS AND EXPENSES THAT ARISE FROM OR ARE RELATED TO ANY ACT, BREACH, DEFAULT OR OMISSION BY YOU, WHETHER NEGLIGENT OR OTHERWISE, UNDER THIS AGREEMENT OR IN CONNECTION WITH THE PROGRAM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU RELEASE, FOREVER DISCHARGE AND HOLD HARMLESS the Program Parties FROM ANY AND ALL LIABILITY, CLAIM, DEMAND, CAUSE OF ACTION, DAMAGE OR EXPENSE ARISING OUT OF OR RESULTING FROM YOUR PARTICIPATION IN THE PROGRAM AND/OR USE OR ACCEPTANCE OF ANY INCENTIVE OTHER THAN FOR: (1) DEATH OR PERSONAL INJURY ARISING DIRECTLY OUT OF OR RESULTING DIRECTLY FROM A PROGRAM PARTY’S NEGLIGENCE OR BREACH OF CONTRACT; OR (2) the Program Parties’ FRAUDULENT MISREPRESENTATION OR WILLFUL MISCONDUCT. The Program Parties HAVE NO LIABILITY TO ANY PARTICIPANT FOR ANY LOSS, DAMAGE, COSTS OR EXPENSE INCURRED AS A RESULT OF OR IN CONNECTION WITH A PARTICIPANT'S PARTICIPATION IN THE PROGRAM.

Severability

If any provision(s) of this Agreement are held to be invalid or unenforceable, all remaining provisions hereof will remain in full force and effect.

Changes

You agree that the Program Parties have the right to make changes to the Program Details below at any time subject to applicable law. The Program Parties will make reasonable efforts to notify you of such changes, and you can review the most current version of the Program Details at any time at the website address set forth in the Program Details below. Your continued participation in the Program constitutes your agreement to the changed Program Details.

Entire Agreement

This Agreement constitutes the entire agreement between EnergyHub, Nest and the Participant relating to the subject matter hereof and supersedes all other such prior or contemporaneous oral and written agreements and understandings.

Program Details

  • Utility name: El Paso Electric Company
  • Program website address, including Program Terms, is https://www.epelectric.com/nm/residential/demand-response-program (for New Mexico) and https://www.epelectric.com/tx/residential/demand-response-program (for Texas)
  • Enrollment Incentive: $125 Visa e-gift card per thermostat
  • Participation Incentive: $25 Visa e-gift card per thermostat for continued enrolled in the applicable program year, which is expected to be paid 4 to 6 weeks after the end of the program year’s demand response season. You must apply by August 1 of the given program year to receive the Participation Incentive.
  • Additional eligibility terms: The Program is available to the first 3,000 compatible thermostats enrolled by residential and small general service customers in Utility’s service territory who have central air conditioning units, Wi-Fi in their home or business, and at least one compatible thermostat provided and installed by the customer and approved by Utility. New Mexico customers are subject to the terms and provisions of Utility’s Rate Schedule No. 37 and Texas customers are subject to the terms and provisions of Utility’s template for a Residential and Small Commercial Demand Response Pilot Program filed in Public Utility Commission of Texas Docket No. 46967.
  • The Program application for enrollment is available at the following website address: https://nest.com/energy-partners/el-paso-electric
  • Withdrawal Email Address: elpasoelectric@energyhub.com
  • Nest contact information: 855-4MY-NEST.
  • Program Period: The Program will run for the period of April 1, 2017 through, and including, September 30, 2019. Your enrollment in the program will begin when you are accepted and will automatically renew every year unless and until you withdraw as described above.