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Peak Perks Program - Terms and Conditions

Version: 1.0
Effective Date: April 22, 2022

Welcome to Flair Peak Perks (“Program”). By becoming a Participant of the Program, you may reduce stress on the grid in your electricity service area. By participating in the Program, you may be eligible to receive the Reward described below, subject to these Terms and Conditions (“Terms”). To become a Participant in the Program, you must submit an application to, and have it accepted by, Sponsor and the Participating Utility (as each is defined below).

The Program allows you to participate in a program for residential customers implemented by Standard Euler, Inc. dba Flair. (“Flair”) and LeapfrogPower, Inc. (“Leap”) using your Flair Pucks and a smart thermostat. Programs may be enabled through the California Independent System Operator (CAISO). If you are eligible to enroll in the Flair Peak Perks Program, Flair will enroll you in the applicable program.

“Participating Utility” may mean one of the following:

  • Pacific Gas and Electric Company (PG&E)
  • Southern California Edison (SCE)
  • San Diego Gas & Electric Company (SDGE)

YOU MUST BE AN EXISTING USER OF THE VENDOR SERVICE TO BECOME A PARTICIPANT. PLEASE READ THESE TERMS CAREFULLY. THIS PROGRAM IS VOID WHERE PROHIBITED BY LAW.

Binding Agreement. By applying for the Program, you agree to comply with and be bound by these Terms, even if your application is not accepted or approved by the Sponsor (as defined below) and the Participating Utility. Failure to comply with these Terms may result in your disqualification from the Program. The decisions of the Sponsor and the Participating Utility regarding your eligibility to participate are final and binding in all respects. Sponsor reserves the right in its sole discretion to disqualify any Participant for, among other things: (1) tampering or attempting to tamper with the operation of the Program; or (2) violating these Terms or the terms and conditions of use of any of Sponsor Parties’ property or service. Any false information provided within the context of the Program by any Participant is a violation of these Terms and may result in the immediate disqualification of a Participant and forfeiture of the Incentive.

About the Program. Applicants whose applications to participate in the Program are accepted by Sponsor Parties (“Participants”) and who fully comply with these Terms may receive the Incentive set forth below (“Incentive”) to be provided to you by Sponsor. To receive the Promotion, you must be accepted as a Participant by the Sponsor and Utility [and your participation must not be withdrawn or terminated]. Participants may also help reduce stress on the electric grid.

Definitions. In the context of these Terms,

  • The Program is provided by Standard Euler, Inc. dba Flair, 479 Jessie St., San Francisco, CA 94103 (“Sponsor”)
  • The Demand Response Provider for this program is Leapfrog Power, Inc., 1700 Montgomery St., Suite 200, San Francisco, CA 94111 (“DRP”).
  • “Vendor” means the third-party manufacturer or provider of the Participant’s thermostat.
  • “Sponsor Parties” means Sponsor, Vendor, DRP, and Participating Utility, their respective successors and assigns, and each of their respective affiliates, agents, directors, officers, and employees.
  • “Device” means a device that can be monitored and controlled during the program through the Vendor cloud platform or other communications pathway.

Application Consent by Participant. By submitting an application to enroll as a Participant, you authorize the Sponsor Parties to 1) collect and exchange data related to your identity, your address, your email, your opt-in or opt-out status, your energy usage and/or energy production, your Utility account, your electric bill, and operational data about your Devices (collectively, “Program Data”), solely for the purposes of determining your eligibility for the Program and operating the Program; 2) review and analyze all of your Program Data for the purposes of the Sponsor Parties fulfilling their obligations under the Program and applicable law, improving the Program and as otherwise permitted by applicable law, and to exchange conclusions with each other and publish results based on those conclusions, provided that they treat all such Program Data in accordance with their respective privacy policies; 3) automatically adjust your Devices, as required by the Program at times indicated by Sponsor and DRP (as described below) or for general system testing purposes; 4) send you emails, text messages, and other notifications related to the Program and other relevant programs, including about your enrollment status and Program-related adjustments to your Devices; 5) summarize the results of the Program in publicly-available studies, provided that any Program Data included in such studies will be anonymous such that you are not individually identifiable.

Eligibility and Enrollment. You may apply to become a Participant and participate in the Program if you meet the following eligibility criteria and do the following:

  • You must be at least 18 years of age;
  • You must have one or more Devices that are compatible with and connected to the Vendor platform (“Service”) and compatible with the Program design; 
  • Maintain an active account in good standing on the Service and a continuous connection between your enrolled Devices and the Service;
  • Assist Sponsor Parties’ support personnel in troubleshooting and resolving connectivity, firmware and other Device-related issues;
  • You agree to not use back-up generation during a Peak Power event;
  • You are not currently enrolled in another utility demand response program; 
  • You successfully complete the Share My Data authorization form and agree to the DRPs Usage Data Authorization Terms found here

Any additional Devices installed as part of your Vendor system at your Utility service address will be automatically enrolled in the Program and may also participate in Adjustment Events, as described below. Rewards will be provided pursuant to the applicable Utility offer and the automatic enrollment of additional Devices may not result in additional Rewards.

Share my data: The Share My Data authorization allows the Sponsor to act as your grid services provider, or to act as your agent to authorize a demand response provider or similar on your behalf, and perform or authorize demand response activities and related ancillary services for the purpose of providing flexibility to the electric grid, including reducing or increasing energy demand in response to a signal or pricing mechanism.

Incentive(s). By transitioning your device to the Flair Peak Perks Program you will be subject to the Official Rules available at https://flair.co/pages/peak-perks-rewards-terms-and-conditions (the “Promotion Rules”). 

The Promotion is provided solely by Flair. Other third party controls bear no responsibility for the Promotion. You acknowledge that other third party controls are not providing you any compensation or other financial benefit, and your permissions to third party controls are not contingent on Flair entering you into the Promotion.

Program Period. The Program will run until terminated (the Program Period).

Program Description. Participant agrees to allow Program Parties to control the Participant’s Devices during the Program Period. Such adjustments are referred to as “Adjustment Events.” Adjustment Events may change device mode, setpoint, or other settings, as applicable. For Devices that allow for temperature control, Adjustment Events may include or be preceded by “pre-cool” or “pre-heat” periods, wherein the then-current or scheduled target temperature setpoint is temporarily changed to prepare for the subsequent adjustment. For certain types of services offered by the Sponsor Parties, an Adjustment Event may occur even if the Device is in any kind of hold mode at the start of the Adjustment Event. Participant may opt out of an Adjustment Event at any time directly by adjusting his/her device.

How To Apply. You can apply to participate in the Program through your Vendor mobile app or at the program enrollment website specified below. Sponsor and Utility may accept or reject your application in their sole discretion. 

How To Withdraw. Once you are accepted as a Participant in the Program, you may withdraw by emailing the Sponsor contact address at support@flair.co. Withdrawal will not affect the other services provided by the Sponsor Parties to you. By withdrawing, you may render yourself ineligible to receive the Reward, participate in the Program in the future, or participate in other programs offered by Sponsor.

Program Termination. Sponsor's ability to offer the Program is contingent on receiving certain approvals and acceptances from the DRP, the California Public Utility Commission (“CPUC”), CAISO, Participating Utilities and market conditions. If such approvals and acceptances are withheld or withdrawn, if market conditions change, or if the Program is declared unlawful, the Program will be terminated along with the Reward. In the event of such termination, Sponsor may provide notice at www.flair.co.

Disqualification. Sponsor may terminate your participation in the Program and Reward at any time and without liability upon notice to you via email if you violate these Terms or applicable law, if you do not comply with any reasonable request from a Sponsor Party in connection with this Program, if your Utility declares you ineligible for the Program, if your account with Vendor is no longer in good standing, or if you do not maintain a continuous connection between your enrolled Device(s) and the Service. If you enroll in a conflicting energy program through Sponsor Parties, Sponsor may terminate your participation in the Program without liability and without notice.

Privacy Notice. By participating in the Program, you agree that the Sponsor Parties may collect your personal information or data and that if they cannot collect the required information or data, you may not be eligible to participate in the Program. Sponsor Parties will protect your personal information and usage data consistent with these Terms and each company’s then-current privacy policy.  Sponsor’s privacy policy is located at: https://flair.co/pages/legal. 

Changes in Your Electricity Costs. Sponsor Parties are not responsible for any changes in your electricity costs during the Program.

Information. You represent and warrant to Sponsor that the information you provide to Sponsor while applying for and during the course of the Program is accurate and complete, and you agree to promptly notify Sponsor if any information you provided during your application for the Program has changed.

General Conditions. This Program is governed by the laws of the State of California  without regard to its applicable principles of conflicts of law. The Sponsor’s failure to enforce any term of these Terms shall not constitute a waiver of that provision. THE SPONSOR PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR ANY INCORRECT OR INACCURATE PROGRAM APPLICATION INFORMATION, AND ASSUME NO RESPONSIBILITY FOR (I) TYPOGRAPHICAL OR OTHER ERRORS IN THE PRINTING OF THE PROGRAM MATERIALS OR THE OFFERING OR ANNOUNCEMENT OF ANY REWARD, (II) ANY ERROR, OMISSION, INTERRUPTION, DEFECT OR DELAY IN OPERATION OR TRANSMISSION AT ANY WEBSITE, (III) FAILURE OF ANY APPLICATION TO BE RECEIVED BY SPONSOR DUE TO TECHNICAL PROBLEMS, TELEPHONE SERVICE PROBLEMS, PRINTING ERRORS, HUMAN ERROR OR TRAFFIC CONGESTION ON THE INTERNET OR AT ANY WEBSITE, (IV) COMMUNICATIONS LINE, HARDWARE AND/OR SOFTWARE FAILURES, (V) DAMAGE TO ANY COMPUTER OR DEVICE (SOFTWARE OR HARDWARE) RESULTING FROM PARTICIPATION IN THE PROGRAM, (VI) THEFT OR DESTRUCTION OF, TAMPERING WITH, UNAUTHORIZED ACCESS TO, OR ALTERATION OF APPLICATIONS AND/OR PROGRAM APPLICATION INFORMATION, OR (VII) APPLICATIONS WHICH ARE LATE OR LOST, OR (VIII) ANY LOSS OF INCOME DUE TO DEVICE CONTROL. PARTICIPANT ASSUMES ALL RISK OF PARTICIPATION IN THE PROGRAM. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU INDEMNIFY AND AGREE TO KEEP THE SPONSOR PARTIES INDEMNIFIED AT ALL TIMES FROM AND AGAINST ANY LIABILITY, CLAIMS, DEMANDS, LOSSES, DAMAGES, COSTS AND EXPENSES THAT ARISE FROM OR ARE RELATED TO ANY ACT, DEFAULT OR OMISSION BY YOU AND/OR A BREACH OF ANY WARRANTY BY YOU AND/OR TO ANY ACT, DEFAULT OR OMISSION BY YOU UNDER THESE TERMS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO HOLD THE SPONSOR PARTIES HARMLESS FROM ANY INJURY OR DAMAGE CAUSED OR CLAIMED TO BE CAUSED BY PARTICIPATION IN THE PROGRAM AND/OR USE OR ACCEPTANCE OF ANY REWARD OTHER THAN FOR: (1) DEATH OR PERSONAL INJURY ARISING AS A RESULT OF SPONSOR'S NEGLIGENCE OR BREACH OF CONTRACT; OR (2) THE SPONSOR PARTIES’ FRAUDULENT MISREPRESENTATION OR DELIBERATE BREACH OF CONTRACT. THE SPONSOR 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.  If any provision of these Terms is held to be invalid or unenforceable, all remaining provisions of these Terms will remain in full force and effect. These Terms will be binding on Sponsor and its successors and assigns, and Participant.  Participant may not assign these Terms without the written consent of Sponsor whereas Sponsor may assign these Terms to any third party. The Sponsor Parties are not responsible for the policies, actions, or inactions of others that might prevent the Participant from entering, participating, or claiming a Reward. 

These Terms constitutes the entire agreement between Sponsor and a Participant relating to the subject matter hereof and supersedes all other such prior or contemporaneous oral and written agreements and understandings.  

Arbitration. If you and the Sponsor do not resolve any dispute by informal negotiation, any other effort to resolve the dispute will be conducted exclusively by binding individual arbitration governed by the Federal Arbitration Act (“FAA”). You are giving up the right to litigate (or participate in as a party or class member) all disputes in court before a judge or jury. Instead, all disputes will be resolved on an individual basis before a neutral arbitrator, whose decision will be final except for a limited right of appeal under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.

No Class Action Procedure. Notwithstanding any of the foregoing or any other provision of these Terms, class arbitration is not permitted under any circumstance. You and the Sponsor agree that, by entering into this Agreement, 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 this Agreement, should any dispute arise regarding or relating to the existence, validity, enforceability, or interpretation of the Arbitration and No Class Action procedures provisions above, the federal court located in New York, New York shall have the sole and exclusive jurisdiction to hear and determine the issue.

Changes to the Terms. Sponsor may modify these Terms at any time. We will post the most current version of the Terms on this page, including the effective date and the version of the modified terms. We encourage you to check this page frequently. For a copy of previous versions, please contact support@flair.co. Your continued participation in the Program thereafter signifies your acceptance to such modified Terms. The modified Terms will apply only to disputes that arise after the effective date of such modified Terms. 

Acceptance of Agreement. The use of an electronic signature process to accept and sign these Terms, including your indication of acceptance of these Terms by a click-through or click-wrap process presented on Vendor’s website, shall constitute effective execution and delivery of these Terms, and shall form a binding contract between you and the Sponsor.