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<br />Propos al Provided By :DEC00260603.1 Page 18
<br />4. Equipm ent and Custom er Contribution:
<br />a. The estimated cost of the installation including the estimated Participating
<br />Customer's contribution is itemized on Proposal. The Participating Customer may
<br />choose one of the payment options as s et forth on the P roposal. The Company and
<br />lender shall have sole discretion in determining whether to approve Participating
<br />Customer for extended payment terms, and Participating Customer shall provide all
<br />information reasonably requested by the Company and lender with respect to
<br />making any such determination. The Company reserves the right to receive and
<br />review credit profiles on the participating customer when deciding whether to
<br />approve extended payment terms.
<br />b. if you have not paid your Lump Sum Account Balance in full within 45 days from the
<br />completion of the project, as determined by Willdan, your account is in default. If you
<br />are in default, you will forfeit any previously agreed upon discounts, including Lump
<br />Sum pricing, and must immediately pay your total portion of the unpaid Ins talment
<br />pricing project cost Account B alance in addition to a monthly Service (Finance)
<br />Charge fee equal to 1.50% of the Account Balance. If the minimum Ins talment
<br />payment due is not paid for three (3) consecutive periods and the Account Balance
<br />is greater or equal to the sum of those three (3) minimum required payments as
<br />determined by their Due Dates, your account is in default and you must immediately
<br />pay your total portion (all past due and future amounts) of the unpaid pricing project
<br />cost Account Balance in addition to a monthly Service (Finance) Charge fee equal to
<br />1.50% of the total past due Account Balance. A Returned Payment Fee in the
<br />amount of $50.00 will be charged to your Account by Willdan for each payment on
<br />your Account, either by, credit card, ACH, check or other means, that is returned to
<br />Willdan unpaid and or dishonored. Upon project completion, any changes to the
<br />original scope of work and as sociated costs will be documented and reflected in
<br />the close out process and reflected in the Project Completion Form, including any
<br />required changes to the Extended Payment Terms and Conditions.
<br />Customer also acknowledges that the total amount due from Customer may be
<br />increased (or decreas ed) due to and in accordance with Section 1 hereof. Should
<br />the total amount due from Customer be increased or decreased pursuant to Section
<br />1, Customer unders tands that his/her monthly payment (if Customer has selected
<br />one of the Payment Plans or the Extended Financing Option) will be automatically
<br />increased or decreased to reflect the adjusted (increased or decreased) total
<br />amount due over the applicable payment term. Customer hereby consents to and
<br />agrees to a relevant adjustment in his/her monthly payment obligation without
<br />further notice from Company.
<br />c. Any amount due from Participating Customer and not received by Company within
<br />30 days of its due date shall bear interest at the rate of one and one-half percent
<br />(1.50%) per month from the date such invoice was originally due to Company
<br />d. Participating Customer shall pay Company or Lender, as the case may be, all costs
<br />and expenses including reas onable attorney fees and/or collection agency fees
<br />incurred in collection of any past due amounts.
<br />5. Follow-up Vis its and On Site M onitoring:
<br />The Company, Duke Energy or agents of either party reserve the right to make a reasonable
<br />number of both pre-installation and post-ins tallation follow-up visits during the 36 months
<br />following the completion date of the Work. Such visit(s ) will be at a time convenient to the
<br />Participating Customer. The purpose of the follow-up visit(s) is to provide the Company and
<br />Duke Energy with an opportunity to evaluate the installed Measures in order to determine the
<br />actual kW reduction and energy savings for program evaluation purposes
<br />6. Indem nification from Participating Cus tom er:
<br />As part of agreeing to participate in the Program, which includes financial incentives to reduce
<br />the Participating Customer's net project costs, the Participating Customer shall protect,
<br />indemnify, and hold harmless the Company, Lender (if applicable) and Duke Energy(including
<br />their parent, officers, directors, agents, affiliates, distributors , franchis ees and employees)
<br />from and agains t any and all claims, demands , suits, actions or causes of action, liabilities,
<br />losses, damages, judgments, settlements, penalties, costs and expenses (including without
<br />limitation, attorney's fees and expenses) (collectively, "Losses") imposed upon or incurred by
<br />or asserted against the Company, Lender (if applicable) or Duk e Energy res ulting from, arising
<br />out of, or relating to the Company's performance of this Participation Agreement, other than
<br />Losses resulting from the negligence or willful misconduct of, or the breach of this
<br />Participation Agreement by, the Company, but specifically including any Losses resulting from
<br />breach or default by Participating Customer of the terms and conditions of this Participation
<br />Agreement. This indemnity obligation under this section shall survive any expiration or
<br />termination of this Participation Agreement.
<br />7. Indem nification from Com pany :
<br />The Company s hall indemnify and hold harmless Participating Customer from and against any
<br />and all Losses to the extent such Losses directly arise from the Company's (a) breach or
<br />default of any material provis ion of this Participation Agreement, or (b) negligent or willful
<br />misconduct in the performance of this Participation Agreement.
<br />8. Lim itat ion on Liability :
<br />Company's liability to Participating Cus tomer for all Losses purs uant to this Participation
<br />Agreement will be limited to any invoiced amounts actually received by Company from
<br />Participating Customer with respect to the Work . Notwithstanding the foregoing, the Company
<br />and Duke Energy shall not be responsible or liable for (a) the condition, maintenance or repair
<br />of any electrical wiring or other existing condition located in or on the Premises, (b) repairs or
<br />replacements of fixtures or lamps damaged or destroyed by acts of negligence of persons not
<br />under the direct supervision of the Company, (c) delays in the completion of the Work or for
<br />failure to give notice for such delays unless such delays are caused by the negligence of the
<br />Company, or (d) for the non-performance of any of the terms or conditions of this Participation
<br />Agreement directly attributable to a strike, national emergency, act of God or any other act for
<br />which the Company and Duk e Energy are not responsible and over which Company and Duke
<br />Energy have no control. Neither the Company nor Duke Energy s hall, in any event, be liable to
<br />Participating Cus tomer for incidental, indirect, special, punitive, exemplary or consequential
<br />damages.
<br />9. Representations of Cus tom er:
<br />Participating Customer represents, covenants and warrants to Company that Participating
<br />Cus tomer (a) has corporate or other authority to enter into and perform under the terms of this
<br />Participation Agreement; (b) will not violate any provis ions of applicable law or its
<br />organizational documents by performing under this Participation Agreement; and (c) entering
<br />into this Participation Agreement will not result in the breach of any agreement to which
<br />Participating Customer is a party.
<br />10. Entire Agreem ent:
<br />This Participation Agreement, including all Exhibits to this Participation Agreement and all
<br />other agreements incorporated herein by reference, constitutes the entire agreement
<br />between the parties relating to the subject matter hereof and s upersedes all prior or
<br />simultaneous representations, discuss ions, negotiations, and agreements, whether written or
<br />oral with respect to the s ubject matter hereof. All provisions of this Participation Agreement
<br />shall be cons idered as separate terms and conditions and in the event any one of them shall
<br />be held illegal, invalid or unenforceable in an arbitration or by a court of competent jurisdiction,
<br />all other provisions hereof shall remain in full force and effect if the illegal, invalid or
<br />unenforceable provisions were not a part hereof
<br />11. M iscellaneous:
<br />This Participation Agreement is not assignable except by written agreement entered into by
<br />the Parties hereto. Neither Party hereto shall unreasonably withhold consent to the other
<br />Party's assignment of this Participation Agreement. Any attempted assignment without the
<br />consent of the other Party hereto shall be null and void and of no effect. The Parties to this
<br />Participation Agreement are independent contractors . As used herein this Participation
<br />Agreement, the term ''Duke Energy'' shall mean Duke Energy Progress, Inc., Duk e Energy
<br />Carolinas, LLC., Duk e Energy Ohio, Inc., Duk e Energy Kentuck y, Inc. or Duke Energy Indiana, Inc.
<br />depending upon the Participating Customer's regulated utility account and Facility Address of
<br />this Participation Agreement.
<br />12. Arbitrat ion:
<br />In the event of any dispute relating to this Participation Agreement, the Parties will attempt in
<br />good faith to resolve the dispute by conducting a minimum of two discussions between senior
<br />executives of each Party having authority to settle the dispute. If such discussions do not
<br />result in a resolution of the dis pute within s ixty (60) days, the dispute shall finally be settled by
<br />arbitration by a sole arbitrator in North Carolina, South Carolina, Kentucky, or Indiana in
<br />accordance with the Arbitration R ules of the American Arbitration Association ("AAA"). The
<br />arbitrator will not have the authority to award punitive damages to either Party. Each Party
<br />shall bear its own expenses, but the Parties will share equally the expens es of the arbitrator
<br />and the AAA. This Participation Agreement will be enforceable, and any arbitration award will
<br />be final, and judgment thereon may be entered in any court of competent jurisdiction.
<br />13. G overning Law:
<br />This Agreement shall be governed by and construed in accordance with the laws of the state
<br />of North Carolina, South Carolina, Kentucky, or Indiana.
<br />14. Custom er Res pons ibility for Additional Equipm ent and Serv ices
<br />For any additional services included in the Non-Incentivized Scope of Work, Willdan agrees to
<br />provide the work although the costs for this additional work will be the res ponsibility of the
<br />customer. Additional services may include permit fees , fixture relocations, wiring, dis posal, lift
<br />equipment, any work performed outs ide of normal business hours, costs required to maintain
<br />compliance with electrical codes, other costs listed in the following section, and any other
<br />special project applications
<br />Par ticipation Agreement
<br />Docusign Envelope ID: 21152D16-5C53-47B8-BDEF-16DCC80DCBDB
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