2017 Lighting – Systems & Sensors
Existing Buildings
Page 11 of 11 Rev. 02/01/2017
12. Maintenance of EEMs
Customer acknowledges and agrees that Customer shall operate and maintain the EEMs in accordance with the manufacturer’s recommendations and the terms hereof, and
shall replace consumable parts and other components with comparable or superior ecient products at the Customer’s expense.
13. Program/Terms and Conditions Changes
Program expenditures, requirements and eligibility, and these Terms & Conditions, may be changed by the Program Administrator at any time without notice. The Program
Administrator reserves the right, for any reason, to withhold approval of projects and any EEMs, and to cancel or alter the Program, at any time without notice. Approved
applications will be processed under the Terms and Conditions and Program Materials in eect at the time of the pre-approval by the Program Administrator.
14. Third Party Financing
Pre-approved custom projects are eligible for nancing by a Third Party Lender through your Program Administrator. (1) Lender to qualify customer. (2) Invoicing monthly
payment will be administered by 3
rd
Party Lender. (3) Interest rate on 3
rd
party loans is set at prime plus 100 basis points with a 6.25% minimum rate. (4) Scheduled interest
payments on the loan will be pre-paid by the Program Administrator in lieu of a portion of the incentive or rebate.
15. Publicity of Customer Participation
The Customer grants to the Program Administrator the right to use and reference for promotional and regulatory purposes the Customer’s participation in the Program, the
details of the EEM project and the energy savings, the amount of Incentives paid to the Customer, and any other information relating to the Customer’s participation in the
Program.
16. Indemnication and Limitation of the Program Administrator’s Liability
Customer shall indemnify, defend and hold harmless Program Administrator, its aliates and their respective contractors, ocers, directors, employees, agents,
representatives from and against any and all claims, damages, losses and expenses, including reasonable attorneys’ fees and costs incurred to enforce this indemnity, arising
out of, resulting from, or related to the Program or the performance of any services or other work in connection with the Program (“Damages”), caused or alleged to be
caused in whole or in part by any actual or alleged act or omission of the Customer, any subcontractor, agent, or third party, or anyone directly or indirectly employed by any
of them or anyone for whose acts any of them may be liable.
To the fullest extent allowed by law, the Program Administrator’s aggregate liability, regardless of the number of claims, shall be limited to paying approved Incentives in
accordance with these Terms and Conditions and the Program Materials, and the Program Administrator and its aliates and their respective contractors, ocers, directors,
employees, agents, representatives shall not be liable to the Customer or any other party for any other obligation. To the fullest extent allowed by law and as part of the
consideration for participation in the Program, the Customer waives and releases the Program Administrator and its aliates from all obligations (other than payment of an
Incentive), and for any liability or claim associated with the EEMs, the performance of the EEMs, the Program, or these Terms and Conditions.
17. No Warranties or Representations by the Program Administrator
(a) THE Program Administrator DOES NOT ENDORSE, GUARANTEE, OR WARRANT ANY CONTRACTOR, MANUFACTURER OR PRODUCT, AND THE Program Administrator
MAKES NO WARRANTIES OR GUARANTEES IN CONNECTION WITH ANY PROJECT, OR ANY SERVICES PERFORMED IN CONNECTION HEREWITH OR THEREWITH, WHETHER
STATUTORY, ORAL, WRITTEN, EXPRESS, OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THIS DISCLAIMER SHALL SURVIVE ANY CANCELLATION, COMPLETION, TERMINATION OR EXPIRATION OF THE CUSTOMER’S PARTICIPATION IN THE PROGRAM. CUSTOMER
ACKNOWLEDGES AND AGREES THAT ANY WARRANTIES PROVIDED BY ORIGINAL MANUFACTURERS’, LICENSORS’, OR PROVIDERS’ OF MATERIAL, EQUIPMENT, OR OTHER
ITEMS PROVIDED OR USED IN CONNECTION WITH THE PROGRAM UNDER THESE TERMS AND CONDITIONS, INCLUDING ITEMS INCORPORATED IN THE PROGRAM, (“THIRD
PARTY WARRANTIES”) ARE NOT TO BE CONSIDERED WARRANTIES OF THE Program Administrator AND THE Program Administrator MAKES NO REPRESENTATIONS,
GUARANTEES, OR WARRANTIES AS TO THE APPLICABILITY OR ENFORCEABILITY OF ANY SUCH THIRD PARTY WARRANTIES. THE TERMS OF THIS SECTION SHALL GOVERN
OVER ANY CONTRARY VERBAL STATEMENTS OR LANGUAGE APPEARING IN ANY Program Administrator’s OTHER DOCUMENTS.
(b) Neither the Program Administrator nor any of its employees or contractors is responsible for determining that the design, engineering or installation of the EEMs is
proper or complies with any particular laws, codes, or industry standards. The Program Administrator does not make any representations of any kind regarding the
benets or energy savings to be achieved by the EEMs or the adequacy or safety of the EEMs.
(c) Customer acknowledges and agrees that it is solely responsible (directly-based on its own judgment or indirectly-based on the advice of an independent expert (not the
Program Administrator) for all aspects of the EEMs and related work including, but not limited to: selecting the equipment; selecting contractors to perform the work;
inspecting the work and the equipment; ensuring that the equipment is in good working order and condition; ensuring that the equipment is of the manufacture, design
specications, size and capacity selected by the Customer and that the same is properly installed and suitable for Customer’s purposes; and determining if work was
properly performed.
(d) Customer agrees and acknowledges that Program Administrator is not a manufacturer of, or regularly engaged in the sale or distribution of, or an expert with regard to,
any equipment or work.
(e) The provisions of this Section 16 shall survive the termination, cancellation or completion of the Customer’s participation in the Program.
18. Equipment, Contractor Selection and Contracting
Customer is responsible for selecting and purchasing the EEMs and selecting and contracting with the design and installation contractor(s). The Customer shall be
responsible for enforcing all such contracts and for assuring that the EEMs meet Program requirements and applicable laws, regulations and codes, and that the contractor(s)
are properly qualied, licensed and insured. Notwithstanding the foregoing, the Customer acknowledges that the Program Administrator reserves the right to deny a vendor
or contractor to participate in this Program or provide equipment or services. The Program Administrator also has the right to exclude certain equipment from the Program.
19. Removal of Equipment
The Customer agrees, as a condition of participation in the Program to properly remove and dispose of or recycle the equipment, lamps and components in accordance
with all applicable laws, and regulations and codes. The Customer agrees not to re-install any of removed equipment in the Commonwealth of Massachusetts or the service
territory of any aliate of the Program Administrator, and assumes all risk and liability associated with the reuse and disposal thereof.
20. Energy Benets
Other than the energy cost savings realized by Customer, the Program Administrator is entitled to 100% of the benets and rights associated with the EEMs, including
without limitation ISO-NE products and all other attributes, credits or products associated therewith under any regional initiative or federal, state or local law, program or
regulation or program, and Customer waives, and agrees not to seek, any right to the same.
21. Customer Must Declare and Pay All Taxes
The benets conferred upon the Customer through participation in this Program may be taxable by the federal, state, and local government. The Customer is responsible for
declaring and paying all such taxes. The Program Administrator is not responsible for the payment of any such taxes.
22. Counterpart Execution; Scanned Copy.
Any and all agreements and documents requiring signature related hereto may be executed in several counterparts, each of which, when executed, shall be deemed to be an
original, but all of which together shall constitute one and the same instrument. A scanned or electronically reproduced copy or image of such agreements and documents
bearing the signatures of the parties shall be deemed an original and may be introduced or submitted in any action or proceeding as competent evidence of the execution,
terms and existence of such agreements and documents notwithstanding the failure or inability to produce or tender an original, executed counterpart of the same and
without the requirement that the unavailability of such original, executed counterpart of the same rst be proven.
23. Miscellaneous
(a) Paragraph headings are for the convenience of the parties only and are not to be construed as part of these Terms and Conditions.
(b) If any provision of these Terms and Conditions is deemed invalid by any court or administrative body having jurisdiction, such ruling shall not invalidate any other
provision, and the remaining provisions shall remain in full force and eect in accordance with their terms.
(c) These Terms and Conditions shall be interpreted and enforced according to the laws of the Commonwealth of Massachusetts.
(d) In the event of any conict or inconsistency between these Terms and Conditions and any Program Materials, these Terms and Conditions shall be controlling.
(e) Except as expressly provided herein, there shall be no modication or amendment to these Terms and Conditions or the Program Materials unless such modication or
amendment is in writing and signed by a duly authorized ocer of the Program Administrator.
(f) The provisions of Sections 5, 7, 8, 9, 11, 13, 15, 16, 18, 19, 20, and 21 (including any other sections herein that species by its terms that it survives termination) shall
survive the termination or expiration of the Customer’s participation in the Program.
Terms and Conditions (continued)
