1. REVIEW AND DISCLAIMER – Willdan and/or its subconsultants’ review of the design, construction, operation or maintenance of any energy project shall not constitute any representation as to the economic or technical feasibility, operational capability, or reliability of the project. Customer is solely responsible for the economic and technical feasibility, construction, operational capability and reliability of the project. Neither Willdan nor the applicable utility makes any representations or warranties regarding the project, the Program, or the incentives, whether statutory, express, or implied, including, without limitation, the implied warranties of merchantability or fitness for any particular purpose, use, or application, and specifically disclaims any such warranty, express or implied.
2. CANCELLATION POLICY – The Program may be modified, suspended, or cancelled/terminated at any time without prior notice. If the Program is terminated, Willdan shall be relieved of any obligations to Customer. Customer shall have the right to cancel this Agreement at any time.
3. INDEMNIFICATION – Each party shall indemnify, defend and hold harmless, and release each other, its affiliates, subsidiaries, parent companies, officers, directors, agents, and employees from and against all claims, demands, losses, damages, costs, expenses, and liability (legal, contractual, or otherwise), which arise from or are in any way connected with such party’s activities under the Program and the applicable project performance; or financing of such project or measure, for which the indemnifying party is responsible.
4. LIMITATION OF LIABILITY – Either Party shall not be liable for any special, incidental, indirect, or consequential damages arising out of or in connection with the project, the Program, or this Agreement, including without limitation, loss of profits, loss of business, loss of goodwill, loss of use of systems or equipment, or commitments to subcontractors, whether or not such damages were reasonably foreseeable at the time of contracting. In addition, Willdan’s total liability arising out of or in connection with the project, the Program, or this Agreement shall be limited to the incentive amount paid to Customer. The applicable utility shall not be liable to Customer for any claims, losses, liabilities or damages arising from or connected in any way to the Program or the applicable project performance.
5. WRITTEN NOTICE – Any written notice, demand or request required or authorized, in connection with this Agreement shall be deemed properly given if sent by nationally recognized overnight courier, electronically or email to EEP@willdan.com, or First-Class Mail, postage prepaid, to the Customer address above or to Willdan at the following address: Willdan Energy Solutions, Attention: Willdan Contracts, 2401 E Katella Ave, Suite 300, Anaheim, CA 92806. Notices shall be deemed received (A) if personally or handdelivered, upon the date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m., or otherwise on the business day following personal delivery; (B) if mailed, three (3) business days after the date the notice is postmarked; (C) if by email, upon electronic confirmation of transmission, followed by telephone notification of transmission by the noticing Party; or (D) if by overnight courier, on the business day following delivery to the overnight courier within the time limits set by that courier for next-day delivery.
6. MISCELLANEOUS – This Agreement shall be governed and construed in accordance with the laws of the State of California, without regard to its conflict of law’s provisions. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement and understanding between the Parties as to the subject matter of this Agreement and supersedes all prior agreements, representations, writings, and discussions between the Parties, whether oral or written, with respect to the subject matter hereof. No amendment, modification or change to this Agreement shall be binding or effective unless expressly set forth in writing and signed by both Parties representatives authorized to execute the Agreement. A. Willdan shall provide Customer notice of any direct change of control (whether voluntary or by operation of law). B. Willdan shall notify Customer in the event of Willdan’s imminent bankruptcy or insolvency, or if foreclosure proceedings are initiated on any of Willdan’s assets. C. Customer acknowledges that there are benefits associated with participating in the Program and implementation of the applicable project(s) including, but not limited to: energy savings, cost savings, improved equipment operation, improved occupant comfort, etc. Benefits are not guaranteed. D. Customer acknowledges that there are risks associated with participating in the Program and the applicable project(s) including, but not limited to, energy and cost savings variability (due to weather, occupancy, etc.), potential for Program termination, and/or limited Program funding. Customer is not guaranteed a certain amount of energy savings from the measure(s).
7. ARBITRATION – This Agreement shall be governed, interpreted, and construed under the laws of the State of California. Any controversy or claim arising out of or relating to this Agreement will be settled by binding arbitration with such arbitration service as the parties may agree, and in the absence of such agreement, in accordance with the Commercial Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof. The language of the arbitration shall be in English. In no event will the arbitration of any controversy or the settlement thereof delay the performance of this Agreement. Arbitration hearings will be held in the County of Orange, California. The prevailing party will be reimbursed for any and all attorney’s fees, costs, and expenses, including the arbitrator’s fees.
8. RELEASE OF INFORMATION – Customer acknowledges that Willdan will provide the applicable utility with all information requested without further notification to Customer. If Customer refuses to allow relevant utility, its staff, or its contractors and/or consultants to have access to such information, Customer will not be allowed to participate in the Program. Willdan agrees to mark project information as confidential before submitting Customer’s files to the utility in accordance with California Public Utilities Code
9. CONFIDENTIALITY – The receiving party agrees that the information in this Agreement shall be considered Confidential in nature. Except as otherwise expressly agreed to in writing by the other party, each receiving party shall, and shall cause its representatives to: keep strictly confidential and take reasonable precautions to protect against the disclosure of all confidential information, solely for the purposes of performing its obligations under this Agreement and not for any other purpose; provided, a party may disclose confidential information (1) to the extent necessary to comply with applicable laws, any accounting rules or standard, and any applicable summons, subpoena, or order of a Governmental Authority, and any exchange rule; (2) of nonprice information for the sole purpose and only to the extent necessary for proper performance of this Agreement; (3) to those of its representatives who need to know such information for the purposes of performing the receiving party’s obligations under this Agreement (and, in the case of representatives of Willdan engaged wholly or in part in the purchase and sale of electrical power or natural gas, are directly engaged in performing Willdan’s obligations under this Agreement) if, prior to being given access to confidential information, such representatives are informed of the confidentiality thereof and the requirements of this Agreement and are obligated to comply with the requirements of this Agreement. Each party will be responsible for any breach of this Agreement by its representatives.