Texas Home Standby Generator Program Terms and Conditions ("T&Cs")
Between Customer and Generac Grid Services LLC
Welcome to the Texas Program (the "Program") presented by Generac Grid Services LLC ("Generac"). Throughout these T&Cs, the references to "you" and "your" refer to you as the undersigned Generac customer, participant in the Program and owner of a Generac home generator ("Generator") that is connected to the electrical system of your home. Your participation in the Program is governed by these T&Cs.
THIS PROGRAM IS VOID WHERE PROHIBITED BY LAW.
How the Program Works. The Program utilizes your Generator to help distribute power to the electric grid during times of energy emergency by turning on your Generator when the Electric Reliability Council of Texas ("ERCOT") identifies the need for emergency capacity through its Emergency Response Service. For enrolling in the Program in accordance with these T&Cs, you will receive one entry in a $5,000 sweepstakes. Every time your generator is used to help the electric grid ("Grid Saving Event"), you will receive one additional entry in the sweepstakes and $5 per hour that your generator runs ("Incentive Payment").
The Program will continue to operate until such time as you unenroll or Generac terminates the Program, in its sole discretion ("Term"). These T&Cs shall be in effect for the Term, unless terminated earlier in accordance with these T&Cs. You are free to withdraw from the Program at any time by submitting your request here. If you withdraw from the Program prior to the completion of the calendar year, you forego any future Incentive Payment.
During the Program, Generac will initiate a number of Grid Saving Events. During such time, Generac will remotely manage your Generator to prepare for and perform in these Grid Saving Events. The participation of your Generator in these Grid Saving Events is a required component of the Program, and you agree to use your best efforts to participate in the maximum number of these Grid Saving Events during the term of the Program. The number and nature of the Grid Saving Events will be decided by Generac. Generac will provide a way for you to opt-out of specific Grid Saving Events. If you opt-out of the majority of Grid Saving Events in a calendar year, Generac reserves the right to remove you from the Program.
To implement and participate in the Program, Generac works with several program partners and administrators. Generac contracts with Leapfrog Power, Inc. ("Leap") and MP2 Energy, LLC ("MP2") to provide demand response services and schedule your Generator to participate in the Program. You authorize MP2 to serve as your exclusive qualified scheduling entity for any energy products transacted through markets operated by ERCOT, including but not limited to the market for Emergency Response Service. Your further authorize Generac, ERCOT, Leap, and MP2 to share your Data to administer the Program (See the “Information” section for further details).
Participation in the Program will not affect your Generator warranty, which will remain in full force and affect in accordance with its terms.
Program Requirements. The following describes your additional requirements for participation in the Program. Your failure to comply, in the sole discretion of Generac, with any of these requirements below or any other obligation or requirement of these T&Cs or the Program, may at any time result in: (a) suspension or disqualification and unenrollment from the Program, (b) suspension of future Incentive Payments; or (c) the termination of these T&Cs, and any such results shall be final and binding in all respects and without liability to Generac.
Force Majeure. "Force Majeure" means an event or circumstance that prevents Generac from performing any obligation under these T&Cs and that was not previously anticipated or, if anticipated, was unavoidable, is not within Generac’s reasonable control, and not the result of Generac’s negligence or willful misconduct, and which, by the exercise of due diligence, is unable to be overcome or avoided. Events or circumstances on which a claim of Force Majeure may be based include acts of God (such as tornadoes, fires, earthquakes and floods), explosions, war, hostilities, riots and acts or threats of terrorism, pandemics, epidemics, vandalism, civil disturbances, protests or embargoes, or any such event or similar event not within the reasonable control of Generac. Generac shall not be considered in breach of these T&Cs or liable for any delay or failure to comply with these T&Cs to the extent that such breach, delay, or failure is attributable to the occurrence of a Force Majeure; provided that Generac shall use reasonable efforts to minimize the delay caused by such Force Majeure and resume performance of its obligations hereunder.
Release and Indemnity. To the maximum extent permitted by law, you agree to indemnify, release, and hold harmless Generac and the directors, trustees, officers, shareholders, partners, members, agents and employees of Generac, and the respective affiliates thereof (the "Indemnified Parties"), from and against all loss, damage, expense, liability and other claims, including court costs and reasonable attorneys’ fees (the "Liabilities") resulting from any third party actions relating to your breach of these T&Cs and from injury to or death of persons, and damage to or loss of property arising out of your acts or omissions (or such acts or omissions of your contractors, subcontractors, affiliates, agents or employees) in connection with these T&Cs or related subject matter, including, any such Liabilities resulting from your participation in the Program; provided, however, that nothing herein shall require you to indemnify the Indemnified Parties for any Liabilities to the extent, and only to the extent, caused by or arising out of the negligent acts or omissions, or the willful misconduct, of the Indemnified Parties.
Limitation of Liability. To the maximum extent permitted by law, your and Generac’s liability in connection with these T&Cs will be limited by these T&Cs, and all other damages or remedies are hereby waived. With the exception of your indemnification obligations hereunder, your and Generac’s liability under this Agreement will be limited to direct, actual damages or costs only. Notwithstanding anything to the contrary, IN NO EVENT SHALL GENERAC BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS AND BUSINESS INTERRUPTION DAMAGES, ARISING UNDER THESE T&Cs OR THE SERVICES CONTEMPLATED HEREBY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, GENERAC’S AGGREGATE AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THESE T&CS FROM ANY AND ALL CAUSES, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE TOTAL AGGREGATE INCENTIVE PAYMENTS PAID TO YOU BY GENERAC IN THE PREVIOUS YEAR.
Notices. All notices to you under these T&Cs shall be in writing by email to the most current email address that Generac has on record for you. You must provide all notices to Generac in writing via email to GridProgramSupport@generac.com
Choice of Law. This Program is governed by the laws of the State of Wisconsin without giving effect to conflict of laws principles.
Non-Waiver. Failure to enforce any provision of these T&Cs shall not constitute a waiver of that or any other provision of these T&Cs.
Survival. The following sections will survive any termination of these T&Cs: Release and Indemnity, Limitation of Liability, Notices, Choice of Law, Non-Waiver, Severability, Entire Agreement, Information, No Class Action Procedure, Assumption of Risk, Dispute Resolution, Intellectual Property, Warranty Disclaimer, and Interpretation. In addition, those provisions that by their nature are intended to survive termination of these T&Cs shall so survive.
Severability. If any provision or portion of these T&Cs are found to be unenforceable, the remainder shall be enforced as fully as possible, and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely representing the intention of the parties as expressed herein.
Assignment. These T&Cs shall be binding on you and Generac and their respective successors and assigns. You may not transfer or assign these T&Cs to any third party. Generac may assign these T&Cs to any third party qualified to perform Generac’s obligations hereunder with or without your consent.
Entire Agreement. These T&Cs constitute the entire agreement between you and Generac regarding the subject matter hereof and supersedes all other such prior or contemporaneous oral and written agreements and understandings.
Changes to T&Cs. Generac may modify and amend these T&Cs at any time, in its sole discretion, and will use reasonable efforts to provide seven (7) days’ notice to you when Generac makes any material changes to these T&Cs. Continued participation in the Program shall constitute acceptance of any such modification of these T&Cs. Generac will also post these T&Cs at https://www.generac.com/services-applications/grid-solutions-programs/texas/texas-terms-and-conditions/
and encourages you to check them frequently. Generac is not responsible for any changes to the Program or any associated changes in circumstances imposed by ERCOT. You further agree that Generac may modify or terminate these T&Cs or the Program if there is any material change to, or termination of any associated law, rule, regulation, requirement, code, order, or decree, or any interpretation thereof, by ERCOT or any governmental authority.
Withdrawal. You may withdraw from the Program at any time by submitting reasonable notice to Generac of your intent to withdraw here. Upon your withdrawal, these T&Cs will terminate without any liability on the part of you or Generac to the other, except for any rights that accrued before the date of withdrawal.
Acceptance of T&Cs. The use of an electronic signature process to accept and sign these T&Cs, including, your indication of acceptance of these T&Cs by a click-through or click-wrap process presented on Generac’s website or by acceptance via email, shall constitute effective execution and delivery of these T&Cs, and shall form a binding contract between you and Generac.
Information. By participating in the Program, you authorize Generac to act as your agent in connection with your participation in the Program, as necessary, and to collect, exchange, and utilize data related to your identity, energy usage, energy production, energy profile, Retail Electric Provider account, Retail Electric Provider rates, home, and Generator (your "Data") for the purposes of determining Program eligibility, administering and improving the Program, and as otherwise permitted under applicable law, including, in connection with the remote configuration, adjustment, and administration of your Generator as required to participate in the Program. You authorize Generac, your Retail Electric Provider, your Transmission and Distribution Provider, ERCOT, MP2, and Leap to exchange your Data for the purposes of the Program, to the extent available. Additionally, you agree to accept live and automated voice notifications, email, text messages, first class mail, or other communications by any reasonable means, including, through Mobile Link or any other means of electronic or web-based communication about the Program, Grid Saving Events, your Generator, and other related products and services. Network and other data or text charges may apply. You also authorize Generac to share your Data with third parties in de-identified and anonymous form for any lawful purpose and in accordance with the Company Privacy Policy. You represent and warrant that the information that you provide to Generac during the Program is accurate, complete, true, and correct to the best of your knowledge and you agree to immediately notify Generac if any information that you provide has changed.
No Class Action Procedure. Notwithstanding anything to the contrary, class arbitration is not permitted under any circumstance. You and Generac agree that, by entering into these T&Cs, THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITY, and not as a plaintiff or class member in any purported class or representative proceeding. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. Although the non-availability of any form of representative or class proceeding is clear from these T&Cs, should any dispute arise regarding or relating to the existence, validity, enforceability, or interpretation of the Dispute Resolution and No Class Action procedures provisions above, the arbitrator shall have the sole and exclusive jurisdiction to hear and determine the issue.
Assumption of Risk. You assume all risk of participation in the Program. Generac is not responsible for any changes in your electricity costs or other costs before, during, or after the Program.
Dispute Resolution. In the event of a dispute between you and Generac in connection with the Program, or these T&Cs, you and Generac will first attempt to resolve the dispute informally for at least forty-five (45) days from when you or Generac notifies the other in writing of any such dispute. Notwithstanding anything to the contrary, any dispute that cannot be resolved informally within the forty-five (45) day period shall be settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. SUCH AGREEMENT TO ARBITRATE MEANS THAT BOTH PARTIES HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL. The Parties may, in arbitration, seek all remedies available to such Party under this Agreement as interpreted under the laws of the State of Wisconsin. The arbitrator(s) may award costs of the arbitration and fees, including reasonable attorney’s fees and expenses of travel to the arbitration to the prevailing Party subject to Generac’s absolute aggregate limitation of liability above. The arbitration will be held in Milwaukee, Wisconsin unless you and Generac agree to another location in writing.
Intellectual Property. YOU AGREE AND ACKNOWLEDGE THAT THE PROGRAM AND ANY SERVICES OR PERFORMANCE PROVIDED TO YOU BY GENERAC PURSUANT TO THESE T&CS SHALL BE "AS-IS WHERE-IS" AND THAT GENERAC IS NOT OFFERING AND EXPRESSLY DISCLAIMS ANY WARRANTY TO YOU OR ANY OTHER PERSON, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, IN CONNECTION WITH THE PROGRAM OR ANY SERVICE OR PERFORMANCE PROVIDED HEREUNDER OR DESCRIBED HEREIN, AND YOU HEREBY EXPRESSLY RECOGNIZE SUCH DISCLAIMER.
Interpretation. Unless otherwise specifically defined or required by the context in which the term appears, in these T&Cs: (a) the singular includes the plural and vice versa; (b) the words "these T&Cs," "herein," "hereto" "hereof" and "hereunder" refer to these T&Cs as a whole, including all schedules or exhibits, and not to any particular section or subsection of these T&Cs; (c) unless qualified by "either," "greater of," "lesser of," "later of," "earlier of," or other express language indicating that clauses are mutually exclusive, when "or" is used in these T&Cs it also contains "and" (i.e. or = and/or); (d) references to any agreement, document or instrument mean such agreement, document or instrument as amended, modified, supplemented, restated or replaced from time to time; (e) the words "include," "includes" and "including" mean include, includes and including "without limitation."; (f) the captions or headings in these T&Cs are strictly for convenience and shall not be considered in interpreting these T&Cs; (g) references to persons, parties, or entities include their permitted successors and assigns; (h) references to exhibits, schedules, or sections mean the exhibits to, schedules to, and sections of, these T&Cs; (i) references to approvals, consents or permissions shall refer to written approvals, consents, or permissions; (j) references to "unreasonable", "reasonable", "unreasonably", and "reasonably" shall be deemed respectively to mean "commercially unreasonable", "commercially reasonable" and "commercially unreasonably" and "commercially reasonably"; (k) any time period set forth herein that concludes on a non-business day shall be automatically extended to conclude on the next business day; and (l) any references to "annual", "annually", "year", or "yearly" hereunder shall refer to the twelve (12) month period starting on the date that these T&Cs first go into effect and be distinct from calendar years, unless the context expressly indicates otherwise.
BY ELECTRONICALLY ACCEPTING THESE T&CS, YOU HEREBY CONSENT TO PARTICIPATE IN THE ERCOT EMERGENCY RESPONSE SERVICE PROGRAM AND AGREE TO THE T&CS DESCRIBED HEREIN.