This Consent to Participate in Pilot Program (this "Agreement") is
entered into on this day (the "Effective Date"), by and between
Public Works Commission of the City of Fayetteville, North Carolina
("The PWC") and Consert Inc., a Delaware corporation with a principal
place of business at 4700 Falls of Neuse Road, Suite 340, Raleigh,
North Carolina 27609 ("Consert") on the one hand, and the individual
completing this form ("Participant"), residing or working at the address provided
(the "Participating Location") on the other hand.
The PWC currently provides electric utility services to Participant.
Consert provides utility management software, equipment and services
and has implemented a pilot program with The PWC in order to prove
certain technological concepts relating to such software, equipment
and services (the "Pilot Program"). The PWC and Consert desire to
provide certain installation, energy management and customer support
services relating to the Pilot Program to individual residents as
described hereunder (the "Services"), and Participant desires to
participate in the Pilot Program pursuant to the terms and conditions
set forth herein. The parties hereby agree as follows:
1. Upon execution of this Agreement, Consert will install certain
experimental hardware (including imbedded software) on and in the
Participating Location in connection with the Pilot Program, including but not
limited to, application software, gateways, smart relays and wireless
thermostats (collectively, the "Equipment") for the purpose of testing
the effectiveness and technical accuracy of the Equipment and for
gathering any and all content and information generated through
Consert's and Participant's use of the Equipment, including, but not
limited to, energy usage data, demographic data, and certain personal
information (collectively, the "Program Content"). Following
installation of the Equipment, Consert and The PWC will provide
commercially reasonable customer support services to Participant relating
to Participant's use of the Equipment and general participation in the
Pilot Program. Participant may request such customer support services by
phone at (919) 855-1072 or by e-mail at customer.service@consert.com.
No party shall have any payment obligation to any other hereunder.
2. Participant hereby expressly: (i) consents to participate in the Pilot
Program as described herein, (ii) grants permission to Consert to
change the settings, and otherwise manipulate the operation, of
Participant's HVAC, hot water and other applicable systems based on
Participant's instructions, (iii) grants permission to Consert to
collect, store and use the Program Content for Consert's internal
business purposes and to further analyze and improve upon the
Equipment and the Services, and (iv) grants to The PWC and Consert and
their contractors the right to enter and access the exterior and
interior of the Participating Location and take the actions necessary in order to
install the Equipment and, following such installation, in order to
monitor and maintain such installed Equipment. Neither The PWC,
Consert nor their contractors will enter or access the interior of the
Participating Location without first notifying Participant, and without Participant's
presence during such entry and access. Participant hereby expressly
acknowledges and agrees that Consert shall own and possess full right
and title in and to the Program Content.
3. Participant shall treat all information learned by it or disclosed to
it by Consert in connection with this Agreement, whether written or
verbal, as Consert's confidential and proprietary information, and
Participant shall not disclose any such information to any third party
during the Term of this Agreement and thereafter.
4. NEITHER THE PWC NOR CONSERT MAKE ANY WARRANTIES WITH RESPECT TO THE
PILOT PROGRAM, THE SERVICES, THE EQUIPMENT OR THE PROGRAM CONTENT,
EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NONINFRINGEMENT.
5. EXCEPT FOR DAMAGES CAUSED BY CONSERT'S GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, PARTICIPANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT CONSERT
SHALL NOT BE LIABLE TO PARTICIPANT FOR ANY DIRECT, INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT
LIMITED TO (A) DAMAGES RELATING TO THE PROGRAM CONTENT, (B) DAMAGES
FROM THE INSTALLATION OR REMOVAL OF THE EQUIPMENT, (C) DAMAGES FROM
THE INTRODUCTION OF COMPUTER VIRUSES, OR (D) DAMAGES CAUSED BY
INTERRUPTION, TERMINATION, OR FAILED OPERATION OF APPLIANCES,
UTILITIES OR TELECOMMUNICATION SERVICES.
6. ANY PARTICIPANT CLAIMS AND ISSUES HEREUNDER WILL BE RESOLVED BY THE
PWC ACCORDING TO APPLICABLE LAWS AND FINDINGS. NOTWITHSTANDING THE
FOREGOING, EXCEPT FOR DAMAGES CAUSED BY THE PWC'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT, PARTICIPANT EXPRESSLY ACKNOWLEDGES AND AGREES THAT
THE PWC SHALL NOT BE LIABLE TO PARTICIPANT FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE.
7. The term of this Agreement shall begin on the Effective Date and
end upon the conclusion of the Pilot Program, which is anticipated to
begin on or about July 1, 2009 and end or about December 31, 2009 (the
"Term"); provided, however, the parties may mutually agree in writing
to extend the Term of this Agreement prior to, or upon expiration of,
the Term. Consert may terminate this Agreement for any or no reason
upon written notice to The PWC and Participant. Upon termination or
expiration of this Agreement, Consert shall, at its sole discretion,
either remove all Equipment from the Participating Location, whereupon all Services
shall cease, or, if the Pilot Program proved successful in Consert's
reasonable judgment and if Participant desires, the Equipment shall
remain installed at the Participating Location and The PWC and Consert may provide
similar services to Participant as the Services described herein, on a
commercial basis and pursuant to a separate written agreement between
the parties. Any provision of this Agreement which by its terms or by
its nature survives, shall survive the termination or expiration of
this Agreement.
8. This Agreement will be governed by the laws of the State of North
Carolina without regard to its conflicts-of-law provisions. This
Agreement constitutes the entire agreement between the parties
regarding its subject matter. This Agreement may be executed in
counterparts. This Agreement may not be amended or modified except by
a written instrument signed by the parties hereto. This Agreement
shall be binding upon and inure to the benefit of the parties hereto.
Neither The PWC nor Participant shall assign or transfer this Agreement
without Consert's prior written consent. The parties acknowledge that
Consert is an independent contractor and that nothing in this
Agreement shall be construed so as to create any partnership, joint
venture, or employee-employer relationship.
The information contained in this communication (including any
attachment) is privileged and confidential information that is
intended for the sole use of the addressee. Access to this
communication by anyone else is unauthorized. If the reader is not the
intended recipient, or an employee or agent responsible for delivering
this communication to the intended recipient, you are hereby notified
that any distribution or copying of this communication is strictly
prohibited and may be unlawful. If you have received this transmission
in error, please reply and notify us of this error and delete this
message. Finally, the recipient should check this communication and
any attachments for the presence of viruses. The Public Works
Commission of the City of Fayetteville, NC, accepts no liability for
any damage caused by any virus transmitted by this communication.
