Representations and Warranties of Customer. Customer (“Customer”) represents and warrants as follows:
All information and documents provided by Customer to CLEAResult, including, without limitation, information regarding Customer’s operations, facility, and gas usage, are true and correct as of the dates they were provided.
Customer would not have undertaken an energy efficiency project under the Program at this time without the influence of CLEAResult, and Customer can provide documentation evidencing such influence; and
Customer has not received rebates, incentives, and/or services for natural gas savings for the same System (as defined below) from any other utility or from state or local programs funded by the Public Purpose Program Surcharge (PPPS).
Incentive. This Application is part of the Program, which is administered by SoCalGas under the auspices of the California Public Utilities Commission (“CPUC”). Therefore, payment of an incentive (“Incentive”) or recognition award (“Recognition Award”) under the Program is specifically conditioned upon the following requirements and obligations of Customer, and Customer hereby acknowledges and agrees as follows:
Customer (i) must submit a completed Application to CLEAResult before Customer's order to purchase the proposed energy system described in the Application (“System”), and (ii) must not fully or partly install the system before the effectiveness of a Conditional Incentive Reservation that itemizes proposed measures, therm savings, anticipated costs, and the estimated Incentive or Recognition Award (“CIR”), the receipt of which Customer hereby acknowledges. As used herein, the term “Install” or “Installation” means the Installation of the System such that it is connected to a natural gas line.
For a retrofit or replacement System, no more than 12 months following the mutual execution of the CIR (“Retrofit Time Period”), Customer must (i) order and Install all components of the System, and (ii) deliver to CLEAResult copies of all invoices for the System from the applicable vendors. Notwithstanding the foregoing sentence, and provided that funds are still available under Program for an Incentive or Recognition Award, CLEAResult reserves the right, in its sole discretion, to grant Customer an extension of time, which must be requested in writing by Customer before the end of the Retrofit Time Period, to Install the System and submit the required documentation to CLEAResult. In the event that the System has not been Installed and the required documentation received by CLEAResult within the Retrofit Time Period (including any written extensions provided by CLEAResult), the Application and the CIR, including CLEAResult’ obligation to provide the Incentive or the Recognition Award, will be void and of no further force or effect.
For new construction Systems, no more than 48 months following the mutual execution of the CIR (“New Construction Time Period”), Customer must (i) order and Install all components of the System, and (ii) deliver to CLEAResult copies of all invoices for the System from the applicable vendor. Notwithstanding the foregoing sentence, and provided that funds are still available under Program for an Incentive or a Recognition Award, CLEAResult reserves the right, in its sole discretion, to grant Customer an extension of time, which must be requested in writing by Customer, before the end of the New Construction Time Period, to Install the System and submit the required documentation to CLEAResult. In the event that the System has not been Installed and the required documentation received by CLEAResult within the New Construction Time Period (including any written extensions provided by CLEAResult), the Application and the CIR, including CLEAResult’ obligation to provide the Incentive or the Recognition Award, will be void and of no further force or effect.
The metered address to which the System is connected must be nonresidential and must be served by SoCalGas.
Customer must pay the PPPS on its utility bills.
Upon request, Customer must allow representatives from CLEAResult, SoCalGas, the CPUC, and/or an authorized third party, reasonable access to Customers’ property to inspect, monitor, and/or evaluate pre- or post-installation of the System, including, without limitation, to verify that the System is Installed, before an Incentive or the Recognition Award is provided. Customer must provide reasonable access during normal business hours. Customer understands that an Incentive or Recognition Award will not be provided if Customer refuses to participate in any such verification or if a System is found to be ineligible at any time by CLEAResult, SoCalGas, or CPUC.
Upon request, Customer must participate in a program measurement and evaluation study by SoCalGas, the CPUC, and/or an authorized third party. This type of study is used to analyze current program performance and improve future programs. Customer understands that an Incentive or Recognition Award will not be provided if Customer refuses to participate in the foregoing study.
CLEAResult may contact the qualifying product vendors, manufacturers, and/or installers to verify purchase, specifications, and/or Installation and may provide Customer’s name and/or address to complete this verification.
Customer must provide necessary data to proceed with Program evaluation, including, without limitation, quotes, proof of financial impact, and spec sheets.
jFunding approved for the Program is limited and will be paid on a first-come, first-served basis to qualified applicants and is subject to the availability of authorized funds.
CLEAResult may suspend or terminate this Application or the Program, without cause, upon written notice to Customer.
Customer (i) must properly Install and operate the System at the Customer facility identified in the Application for at least 5 calendar years from the date of Installation (“Operation Period”), and Customer (ii) must not cease to be a customer of SoCalGas during Operation Period. If Customer does not fulfill these obligations, Customer shall refund a prorated amount of the Incentive to CLEAResult based on the actual period of time for which the related energy benefits were provided as a SoCalGas natural gas customer.
Term and Termination. The term of this Application commences on the date that CLEAResult executes the CIR and terminates upon the date which is 10 years from the date of Installation, unless terminated earlier pursuant to this Section. This Application may be terminated by CLEAResult in the event that (a) Customer fails to perform a material obligation under this Application, or (b) any statement, representation, or warranty made by Customer in connection with the Application is false, misleading, or inaccurate.
Remedies. In the event that this Application is terminated by CLEAResult, on CLEAResult’ demand, Customer shall promptly reimburse CLEAResult the full dollar amount of the Incentive paid to Customer. Such reimbursement shall be in the form of a certified check or cash payable to CLEAResult. Customer shall repay any Incentive dollars or payments due to CLEAResult under Section 2.k. above or upon termination of the Application by CLEAResult no later than 30 calendar days after notification by CLEAResult that repayment is required. CLEAResult is entitled to offset against payments owed to Customer any amount due to CLEAResult that remains unpaid for a period of 40 calendar days after CLEAResult’ written demand for payment.
System Data. All data generated by CLEAResult or submitted to CLEAResult by Customer pursuant to this Application shall be kept confidential by CLEAResult and used only for the purpose of obtaining energy savings estimates in order to evaluate the Program. Customer consents to disclosure by CLEAResult to SoCalGas, the CPUC, its designees, and any third parties whom CLEAResult may contract with for purposes of administering the Program, but only for the purpose of having such third party perform inspections, evaluations, and measurements.
Independent Contractor; Licenses and Permits. In performing the obligations of this Application, Customer and any other third parties involved with the System are independent contractors; therefore, the parties to this Application shall not be deemed partners, agents, or joint ventures of the other. Customer, at its own expense, shall obtain and maintain all licenses and permits needed to successfully install and operate the System. Customer further represents to Company that Work performed under this Agreement shall be completed by a licensed contractor and contractor and its subcontractors and agents are properly licensed, fully experienced and qualified (including having all necessary authorizations) to perform the class and type of the Work as specified in this Agreement, in addition to being properly insured, equipped, organized, staffed and financed to handle such Work. Failure to maintain necessary licenses and permits constitutes a material breach of Customer’s obligations.
Tax Liability. Monetary incentives are generally considered subsidies for tax purposes and could be taxable to Customer. Customer is urged to consult Customer’s tax advisor concerning the taxability of the Incentive. Incentives greater than $600 may be reported to the IRS on Form 1099 unless documentation of tax-exempt status is provided to CLEAResult. CLEAResult is not responsible for any taxes that may be imposed on Customer as a result of Customer’s receipt of the Incentive.
Regulation; Modification and Termination of Program. This Application and Program are subject to regulation by the CPUC and may be amended, modified, or terminated by the CPUC at any time without prior notice. The Program may also be modified or terminated by CLEAResult at any time without prior notice. Any references in this Application to CLEAResult, SoCalGas, and the CPUC shall include their respective employees, independent contractors, and agents.
Disclaimer. CLEAResult is neither the manufacturer nor the distributor of the System or any component of the System and does not recommend or endorse the System or any components thereof or the selection or qualifications of any System installers, designers, or manufacturers. CLEAResult makes no warranties, either expressed or implied, as to the performance, operation, safety, efficiency, reliability, merchantability, or fitness for a particular purpose, use, or application of the System or any equipment or measures selected. Customer agrees that Customer is solely responsible for election, technical feasibility, installation, operational capability, reliability, and maintenance of the System, and that CLEAResult makes no representations regarding selection of the System or any equipment or measures selected. CLEAResult’ review of the design, construction, installation, operation, or maintenance of the System or any components of the System is not a representation as to the economic or technical feasibility, operational capability, efficiency, or reliability of the System or any equipment or measures selected. Customer shall not make any such representations to its customers or any other third parties on behalf of CLEAResult.
Limitation of Liability. CLEAResult shall not be liable for any damages of any kind for replacement of Customer’s former equipment, for the System or its failure, or otherwise arising from CLEAResult’ performance or nonperformance of its obligations under this Application, including direct, indirect, consequential, special, incidental or punitive damages, regardless of the form of action, whether in contract, indemnity, warranty, strict liability or tort, including negligence of any kind.
Indemnification. To the greatest extent permitted by applicable law, Customer shall indemnify, defend and hold harmless CLEAResult, its affiliates, present and future parent companies, subsidiaries, officers, directors, employees and agents from and against any and all claims, actions, suits, proceedings, demands, losses, damages, penalties, fines, costs, expenses and liabilities (legal, contractual or otherwise) which arise from or are in any way connected with any: (a) injury to or death of persons, including, but not limited to, employees of CLEAResult, Customer or any third party; (b) injury or damage to property, including, but not limited to, property of CLEAResult, Customer or any third party; (c) violation of local, state or federal law, statute or regulation, including, but not limited to, environmental laws or regulations; or (d) strict liability imposed by any law or regulation; so long as such injury, damage, violation or strict liability (as set forth in (a) through (d) above) arises from or is in any way connected with this Application or Customer’s performance or nonperformance of this Application, however caused, regardless of any strict liability or negligence of CLEAResult. This indemnity shall not apply to the extent that such injury, damage, cost, expense, liability, strict liability, or violation of law or regulation is caused by the gross negligence or willful misconduct of CLEAResult. Customer acknowledges that any claims, demands, losses, damages, costs, expenses, and legal liability that arise out of, result from, or are in any way connected with the release or spill of any legally designated hazardous material or waste as a result of the work performed under this Application are expressly within the scope of this indemnity, and that the costs, expenses, and legal liability for environmental investigations, monitoring, containment, abatement, removal, repair, cleanup, restoration, remedial work, penalties, and fines arising from strict liability, or violation of any local, state or federal law or regulation, attorneys’ fees, disbursements and other response costs incurred as a result of such releases or spills are expressly within the scope of this indemnity. Customer shall, on CLEAResult request, defend any action, claim, or suit asserting a claim which might be covered by this indemnity. Customer shall pay all costs and expenses that may be incurred by CLEAResult in enforcing this indemnity, including reasonable attorneys' fees. This indemnity shall survive the termination of this Application for any reason.
Entire Application; Amendments. This Application sets forth the entire understanding of the parties and supersedes any prior representations, understandings, negotiations, or agreements, both oral and written. No amendment, modification or change to this Application shall be binding or effective unless expressly set forth in writing and signed by an authorized representative of CLEAResult. This Application shall not be modified by usage of trade, course of performance, or course of dealing.
Severability. The invalidity, in whole or in part, of any provisions of this Application shall not affect the validity of any other provisions contained in this Application.
Assignment. Customer consents to CLEAResult’ assignment of all of CLEAResult’ rights, duties and obligations under this Application to SoCalGas, the CPUC and/or its designee. Such assignment shall relieve CLEAResult of all rights, duties and obligations arising under this Application. Customer shall not assign this Application at any time without the prior written consent of CLEAResult. Any such assignment without the prior written consent of CLEAResult shall be null and void.
Nonwaiver. A waiver of any right under this Application shall not be deemed a subsequent waiver of that right or any other right under this Application.
Choice of Law. This Application shall be interpreted and enforced according to the laws of the State of California. Sole jurisdiction and venue shall be with the courts in Los Angeles County, California.
Counterparts. This Application may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
Survival. The obligations imposed on Customer under this Application, which by its terms contains subject matter that relates to time periods subsequent to the term of this Application (including the sections entitled Remedies, Limitation of Liability, and Indemnification, Choice of Law, Survival, and Advertising and Marketing), will survive the termination or expiration of this Application.
Authority. Each individual executing this Application on behalf of Customer and CLEAResult represents and warrants that he or she is duly authorized to execute and deliver this Application on behalf of such party.
Advertising and Marketing. Customer shall not use CLEAResult’ corporate name, trademark, trade name, logo, identity or any affiliation for any reason without CLEAResult’ prior written consent. Customer shall make no representations on behalf of CLEAResult.
