(Last updated February 12, 2020)
THIS PARTICIPATION AGREEMENT (“Agreement”) is an agreement between you (“Participant”) and Olivine, Inc., a California
corporation (“Olivine”). Olivine and Participant are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
WHEREAS, Participant wishes to enroll in an Olivine Community™ program option and utilize Olivine as its exclusive demand response provider,
distributed energy resource provider, and scheduling coordinator; and
WHEREAS, Olivine is a registered demand response provider (DRP) with the California Public Utilities Commission (“CPUC”) and with the
California Independent System Operator (“CAISO”) and a distributed energy resource provider and scheduling coordinator registered and
certified by the CAISO; and
WHEREAS, Olivine wishes to become the exclusive demand resource provider, scheduling coordinator and distributed energy resource provider for the
Participant in order to provide demand resource, scheduling coordinator, and distributed energy resource services to the Participant; and
NOW THEREFORE, the Parties intend to be legally bound as follows:
- DEFINITIONS. Initially capitalized terms used in the Agreement have the meanings set forth below or
else-where in this Agreement:
"DRAM" means the Demand Response Auction Mechanism conducted by the IOUs under the auspices of the CPUC, in which aggregators
agree to provide demand response capacity to the IOU in exchange for a capacity payment.
“DRAM Resource” means a capacity resource committed to be provided to the relevant IOU(s).
“RUC” means Residual Unit Commitment for which there is a market at the CAISO.
“IOU” means investor-owned utility.
“UDC” means utility distribution company.
“CCA” means Community Choice Aggregator.
“Participant Data” means Participant’s green button meter data, and/or IOU revenue quality meter data.
“Olivine Community” means the suite of programs that Olivine sponsors or administers.
“Program” means Olivine-sponsored or administered Partner program option Participant is eligible for and has enrolled in via
Olivine’s app or website. Terms and Conditions provided in the Program enrollment documentation apply to this Agreement.
The Terms and Conditions are available in the app, if applicable.
“Small Business Customer” means a business whose monthly peak load is less than 20kW
"Medium Business Customer" means a business whose monthly peak load is greater than 20kW but less than 500kW
“C&I” means Commercial and Industrial business that uses more than 500kW of energy per month.
“CISR” means a Customer Information Service Request – DRP form that allows Olivine to obtain utility account information
required to perform DRP services associated with the Program.
“Partners” include Program Sponsors, and each of their respective affiliates, directors, officers, managers, partners, members,
employees, agents, or advisors.
“Program Sponsors” means entities such as utilities or Community Choice Aggre-gators who provide financial support in whole or in part for a
program that is administered by Olivine.
- SELECTION OF OLIVINE AS DEMAND RESOURCE PROVIDER
Participant hereby authorizes Olivine to inform the appropriate entities (including the CAISO and Participant’s UDC) that Olivine
has been selected as the Participant’s DRP and/or SC of record. Olivine shall ensure that Participant is eligible to choose Olivine as its DRP of record.
Once Olivine has completed the registration process to become Participant’s DRP, Olivine will notify the Participant of its
registration as required by regulation.
- DRP SERVICES AND MARKET BIDDING
As part of the program Participant is enrolling in, Olivine shall provide DRP services registering the Participant in the CAISO market
based on the rules of the CAISO.
Olivine may submit bids into the CAISO day-ahead and/or real-time energy market, consistent with CAISO and CPUC requirements.
If applicable, upon receipt of a dispatch instruction from CAISO, Olivine will notify Participant as soon as reasonably possible,
but no later than one hour after the receipt of instructions from the CAISO for day-ahead awards and no later than five (5) minutes
upon receipt of the dispatch instructions from the CAISO for RUC or real time market awards.
- ACCESS TO AND USE OF DATA
Participants shall provide Olivine with access to Participant Data as requested by Olivine. Commercial and Industrial Participants
may be required to execute a CISR-DRP form to help enable Olivine to obtain necessary data from Participant’s UDC. Participant agrees
and authorizes Olivine to share such Participant Data, to the extent permitted by applicable law, regulations, and orders, with Olivine’s
Partners and third parties required to perform services.
Olivine will use the Participant Data in a manner consistent with CPUC rules regarding use, notice and protection of Participant Data for purposes
of fulfilling the Program requirements and shall not use the Participant Data for any other purpose, unless authorized by the Participant. Olivine
shall protect the Participant Data from unauthorized access and shall use commercially reasonable means to protect the Data from unauthorized access
in accordance with industry standards, applicable law, regulations, and orders.
- REPRESENTATION AND WARRANTY
Olivine represents and warrants to Participant that, as of the date of this Agreement and through its termination, Olivine is a duly
registered DRP with the CPUC and CAISO, has a signed DRP/IOU agreement to abide by the respective IOU rules with respect to retail customer
participation as a demand response resource in the CAISO’s wholesale energy and ancillary services markets, and has signed a DRP/CAISO
agreement to abide by the CAISO’s Tariff.
- LIMITATION OF LIABILITY
THE OLIVINE SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS.” OLIVINE DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR
IMPLIED, RELATING TO OLIVINE SERVICES, INCLUDING ANY WARRANTIES OF DESIGN, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES
ARISING FROM ANY CLAIMED COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. OLIVINE MAKES NO REPRESENTATIONS THAT THE OLIVINE
SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.
EXCEPT FOR CLAIMS RESULTING FROM A DISCLOSURE OF PARTICIPANT DATA, OLIVINE’S MAXIMUM LIABILITY TO PARTICIPANT FOR ALL CLAIMS ARISING FROM OR
RELATING TO THIS AGREEMENT SHALL BE $5,000.
Participant will defend, indemnify and hold harmless Olivine against any third party or governmental or regulatory claim, action, or penalties,
and all damages payable to third parties arising therefrom, to the extent such claim or action is based on an allegation (a) that Participant’s
resource performance for a resource bid into the CAISO market was inadequate; (b) of a market impact or delay, where such market impact or delay
was created by Participant.
Participant shall have no obligation under such paragraphs unless Olivine: (i) gives Participant timely notice in writing of any such claim or
action, and (ii) cooperates with Participant in the defense thereof and all related settlement negotiations.
- EXPIRATION AND TERMINATION
(a) If the Participant is an individual or Small Business Customer, this Agreement shall be in effect until terminated by either Party. If terminated by Olivine,
notice shall be given to Participant. Participant may terminate at will, either by notice to Olivine or by registration with another DRP.
Participant’s termination shall terminate its enrollment and participation in all Programs.
(b) If the Participant is neither an individual nor a Small Business Customer, this Agreement shall be in effect for a term. The initial term of this Agreement
shall run for one (1) year from the Effective Date. Unless Participant notifies Olivine thirty (30) days prior to the end of the then-current term that
Participant wishes to not renew this Agreement., the Agreement shall automatically renew at the end of the then-current term for one (1) year renewal term(s) as
long as the Program remains available. Olivine may terminate the Agreement upon sixty (60) days notice.
Olivine may terminate this Agreement for material breach after: (a)(i) written notice to the other Party of the material breach, and (ii) failure
of the breaching Party to cure the breach within thirty (30) days of such notice; or (b) if the other Party ceases to be solvent, voluntarily
ceases conducting business, or commences any insolvency or bankruptcy proceeding, whether voluntary or involuntary.
Upon termination or expiration of this Agreement, Olivine shall cease to have any responsibility to Participant to provide DRP or SC services.
Sections 6, 7, 8.3, 9, shall survive the termination or expiration of this Agreement.
- NO RECOURSE AGAINST PARTNERS
- Nothing contained herein, express or implied, is intended to nor shall it create any debts, obligations, legal or equitable right, claim, action,
complaint, benefit, remedy, or liabilities upon or against any Partner or third party of any nature whatsoever. The Parties shall solely be
responsible to each other for any debts, obligations, or liabilities accruing or arising out of this Agreement.
Except as otherwise specified herein, notices shall be in writing and transmitted by mail or overnight courier, with an e-mail copy.
Notices to Olivine shall be addressed to:
2120 University Ave.
Berkeley, CA 94704
Attn: Beth Reid
Notices to Participant shall be addressed to the Participant’s address on file with Olivine.
This Agreement and all exhibits hereto embody the entire agreement and understanding of the Parties and supersede all prior or contemporaneous
agreements and understandings of the Parties, verbal or written, relating to the specific subject matter thereof.
This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, excluding any choice of law provisions.
Nothing in this Agreement shall be construed or represented as creating a partnership, trust, fiduciary or any similar relationship among the Parties.
Except as specifically set forth in this Agreement, no Party is authorized to act on behalf of the other Party and none shall be considered the general
agent of the other.
Neither Party shall assign any of its rights nor delegate any of its obligations under this Agreement, without the prior written consent of the other Party,
provided, however, that either party shall have the right to assign this Agreement without the consent of the other party in connection with the sale or
other transfer of all or substantially all of its business or assets. Any prohibited assignment or delegation shall be void. Notwithstanding the foregoing,
this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
This Agreement is made and entered into for the sole protection and legal benefit of the Parties and their permitted successors and assigns. No other
person or entity shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement.
Any dispute arising out of or related to this Agreement, or breach or termination thereof, shall be resolved first with commercially reasonable negotiations
between the parties. If initial attempts to resolve the dispute fail, the dispute will be referred to the Parties’ respective senior management representatives
for the purposes of reaching a negotiated settlement. If, after the passage of fourteen (14) days from the first referral to senior management representatives,
the matter is still not resolved, the dispute shall be finally settled by binding arbitration in San Francisco County, California under the commercial arbitration
rules of JAMS. Judgment on the award rendered by the arbitral panel may be entered in any court having jurisdiction thereof. The arbitral panel shall have
the authority to award any and all available remedies, including legal and equitable relief. The parties may apply to any court of competent jurisdiction
for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration agreement
and without any abridgment of the powers of the arbitrator. The prevailing party in any action brought to enforce or interpret this Agreement or for relief
for its breach shall be entitled to recover its costs and its reasonable attorneys’ fees incurred to prosecute or defend such action.
No Party will be considered in default of any obligation if prevented from fulfilling such obligation by an event or circumstance that is beyond the reasonable
control of the affected Party and that could not have been avoided with the exercise of due diligence (“Force Majeure”). In the event of a Force Majeure that
prevents a Party from performing any of its obligations, the Party shall:
notify the other Party in writing as soon as commercially practicable
use commercially reasonable efforts to mitigate the effects of such Force Majeure, and act to resume performance as soon as possible;
not be entitled to suspend performance in any greater scope or for any longer duration than reasonably required by the Force Majeure;
keep the other Party apprised of the mitigation and restoration efforts initiated by the Party;
provide written notice of the resumption of full performance to the other Party.
This Agreement may be modified or amended only by a written instrument executed by the Parties and shall not be modified by course of performance or any
usage of trade.
The illegality or unenforceability of any provision of this Agreement or any instrument or agreement required hereunder shall not in any way affect or
impair the legality or enforceability of the remaining provisions of this Agreement or any instrument or agreement required hereunder.
This Agreement may be executed in any number of separate counterparts, which shall be deemed to constitute one instrument.
The authorized representatives of the Parties have executed this Agreement.