Terms and Conditions (continued)
11. Indemnication and Limitation of the PA’s Liability
To the fullest extent allowed by law, Customer shall indemnify, defend and hold harmless PA, its aliates and their respective contractors, ocers, directors,
members, 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, caused or alleged to be caused in whole or in part by any actual or alleged act or omission of the Customer, or any contractor, subcontractor, agent, or
third party hired by or directly or indirectly under the control of the Customer, including any party directly or indirectly employed by or under the control of any
such contractor, subcontractor, agent, or third party or any other party for whose acts any of them may be liable.
To the fullest extent allowed by law, the PA’s aggregate liability, regardless of the number or size of the claims, shall be limited to paying approved Incentives in
accordance with these Terms and Conditions and the Program Materials, and the PA and its aliates and their respective contractors, ocers, directors, members,
employees, agents, representatives shall not be liable to the Customer or any third 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 PA 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.
12. No Warranties or Representations by the PA
(a) THE PA DOES NOT ENDORSE, GUARANTEE, OR WARRANT ANY CONTRACTOR, MANUFACTURER OR PRODUCT, AND THE PA 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 PA AND THE PA 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 PA’s OTHER DOCUMENTS.
(b) Review of the design and installation of EEMs by PA is limited solely to determine whether Program requirements have been met and shall not constitute an
assumption by PA of liability with respect to the EEMs. Neither the PA 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 PA 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) PA is not a manufacturer of, or regularly engaged in the sale or distribution of, or an expert with regard to, any equipment or work.
(d) No activity by the PA includes any kind of safety, code or other compliance review.
13. Customer Responsibilities
Customer is responsible for all aspects of the EEMs and related work including without limitation, (a) selecting and purchasing the EEMs, (b) selecting and
contracting with the contractor(s), (c) ensuring contractor(s) are properly qualied, licensed and insured, (d) ensuring EEMs and installation of EEMs meet industry
standards, Program requirements and applicable laws, regulations and codes, and (e) obtaining required permits and inspections. PA reserves the right to (a) deny
a vendor or contractor providing equipment or services, and (b) exclude certain equipment from the Program.
14. Removal of Equipment
The Customer shall properly remove and dispose of or recycle the equipment, lamps and components in accordance with all applicable laws, and regulations
and codes. Customer will not re-install any of removed equipment in the Commonwealth of Massachusetts or the service territory of any aliate of the PA, and
assumes all risk and liability associated with the reuse and disposal thereof.
15. Energy Benets
Other than the (i) the energy cost savings realized by Customer, (ii) energy or ancillary service market revenue achieved through market sensitive dispatch, (iii)
alternative energy credits, and (iv) renewable energy credits, the PA has the unilateral rights to apply for any credits or payments resulting from the Program or
EEMs. Such credits and payments include but are not limited to: (a) ISO-NE capacity, (b) forward capacity credits, (c) other electric or natural gas capacity and
avoided cost payments or credits, (d) demand response program payments. Except for the credits and payments set forth in (i)-(iv) of this Section, Customer agrees
not to, directly or indirectly, le payments or credits associated with the Program or EEMs, and further will not consent to any other third party’s right to such
payments or credits without prior written consent from the PA. PA’s rights under this Section are irrevocable for the life of the EEMs unless the PA provides prior
written consent.
16. 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 PA is not responsible for the payment of any such taxes.
17. Counterpart Execution; Scanned Copy.
Any and all Program related agreements and documents may be executed in several counterparts. A scanned or electronically reproduced copy or image of such
agreements and documents bearing the signatures of the parties shall be deemed an original.
18. 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. Any claim or action arising under
or related to the Program or arising between the parties shall be brought and heard only in a court of competent jurisdiction located in 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 PA.
(f ) Sections 4(b), 10, 11, 12, 14, 15 & 18 shall survive the termination or expiration of the Customer’s participation in the Program.
2021 Commercial & Industrial Natural Gas Equipment Application
Page 6 of 6 Rev. 01/01/2021
New Buildings, New Equipment, and Major Renovations
