SmartCharge New York
Participation Agreement

3. Participant Requirements

PARTICIPANTS IN THE PROGRAM MUST BE AT LEAST 18 YEARS OLD.  Therefore, if you are not at least 18 years old, then please do not participate in the Program. Participants agree to not participate in the Program in any way that is illegal, fraudulent or abusive, including to harass, threaten, abuse, defame or slander any individual.

To enroll in the Program, you must, at minimum, have a supported EV with functional onboard telematics using a 4G or 5G modem or supported smart charging station. See Program website at https://www.ev.energy/scny/faq for a current list of supported EVs and smart charging stations. In some cases, the vehicle Original Equipment Manufacturer ("OEM") may require you to (i) activate the vehicle’s onboard telematics function and/or (ii) purchase a subscription or pay a fee to activate and/or maintain the vehicle's onboard telematics function. These costs will be borne by you and not by the Program Sponsors. ev.energy's ability to connect to the supported vehicles is dependent on (i) OEM server uptime; (ii) stability of the internet connection in the vehicle's telematics platform; and (iii) a Participant's paid subscription to telematic service packages required by some OEMs. ev.energy's ability to connect to supported EV charging stations is dependent on (i) smart charging station server uptime; and (ii) the stability of the internet connection used to connect the charging station to the cloud. Participant acknowledges and confirms that any information or response provided in the ev.energy software application (such as their  name, e-mail, home/business address, primary charging location, vehicle make/model/trim/year, and charging station information) is accurate and will remain updated throughout their participation in the Program.

4. Disclaimer; Limitation of Liability

The Program Sponsors and ev.energy make no representations or warranties as to the effectiveness of the Service to reduce Participant's charging costs or reduce emissions. Further, the Program Sponsors and ev.energy make no representations, express or implied, regarding the reliability, performance, or operation of the Service.

Participant agrees that to the fullest extent permitted by law, neither ev.energy nor the Program Sponsors, nor any of their parents, subsidiaries, affiliated entities, employees, officers, directors, agents, or representatives, successors or assigns or any of them (collectively, the “program operators”) will be liable for any indirect, incidental, punitive, special or consequential damages whatsoever, including, without limitation, loss, damage or injury to persons or vehicles or other property, in connection with, arising from of or related to this agreement, even if a program operator has been advised of the possibility of such damages.  This limitation and waiver will apply regardless of the theory of liability. Participant also agrees that in no event shall the program operators be responsible for problems, damages or losses caused by participant, third parties, or by an act of God.

5. ev.energy Terms of Use and Privacy Policy; Program Sponsors’ Privacy Statements

In order to participate in the Program, Participant must agree to the Terms of Use and Privacy Policy of ev.energy, and to the applicable Privacy Statement of the Program Sponsors. The ev.energy Terms of Use and Privacy Policy may be found at https://ev.energy/terms-of-use and https://www.ev.energy/privacy and may be updated from time to time. By participating in the Program, Participant consents to ev.energy sharing their full home/business address, as well as the GPS coordinates of their charging location(s), with the Program Sponsors for the purposes of administering the Program.

The Con Edison Privacy Statement is available at https://www.coned.com/en/conedison-privacy-statement and reflects further information on how Con Edison collects and may use and share your information, including any of the above-described data and information that Con Edison receives about you in connection with your participation in SmartCharge New York.

The O&R Privacy Statement is available at https://www.oru.com/en/privacy-statement and reflects further information on how O&R collects and may use and share your information, including any of the above-described data and information that O&R receives about you in connection with your participation in SmartCharge New York.

The Service is owned and operated by ev.energy. The Program Sponsors each make no representations or warranties regarding the Service and disclaims all liability resulting from Participant's use of the Service.

6. Term

Con Edison anticipates that the Program will continue through December 31, 2025. Participants may choose to leave the Program for any reason at any time by providing notice to Con Edison and ev.energy of such termination by writing to SCNY@ev.energy. Con Edison may terminate a Participant’s participation in the Program if a Participant no longer meets the eligibility requirements set forth in this Agreement, or if Con Edison determines, in its sole judgment, that a Participant is no longer actively participating in the Program. Con Edison reserves the right to modify or terminate this Program, in whole or in part, at any time and for any reason, without prior notice.

7. Indemnification

Participant agrees to defend, indemnify, and hold harmless ev.energy and either or both Con Edison and O&R, and each of its and their members, officers, officials, agents, and employees, from and against any and all loss, liability, expense, claims, suits, and damages, including attorneys' fees ("Claims") to the extent arising out of or resulting from Participant's use of the Service and/or participation in the Program except to the extent that any Claims arise from the negligence of the Program Sponsors.

8. Collection and Use of Participant Data

Participant consents to the Program Sponsors and ev.energy, and Participant’s respective agents, accessing data from Participant’s Connected Hardware, including vehicle make/model/trim, vehicle identification number (VIN), battery size, charger make/model, charger serial number or other unique identifier, vehicle battery state of charge, plug-in/unplug times, start/stop times of charging sessions, kWh of energy consumed, vehicle charging location and similar data ("Collected Data") and sharing aggregated and anonymized Collected Data with each other for purposes of administering incentives and evaluating the Program. Additional data (e.g., connected hardware metadata, vehicle location, technical data and application usage data) may be stored and processed by ev.energy in line with ev.energy's Privacy Policy for the purpose of administering the Program, but this data will not be shared with the Program Sponsors.

Participant is responsible for notifying everyone who owns or uses (as a driver or a passenger) the EV in which the information will be collected and available to participant, the Program Sponsors and ev.energy.  By participating in the Program, Participant represents that Participant has the consent of the registered vehicle owner and the users of each EV enrolled in the Program and that Participant, the Program Sponsors and ev.energy are permitted to view  and use the data and information collected.

9. Participant Feedback and Data Collection

Participant will cooperate in good faith with the Program Sponsors or its and their authorized representative in performing evaluation, measurement, and verification of the Program. The Program Sponsors will use Collected Data to evaluate the Program and for future planning purposes, including, but not limited to, assessing Participant experience, measuring potential savings to Participant, avoiding energy distribution and/or supply costs to the Program Sponsors, and reducing emissions. Additionally, The Program Sponsors may request that Participants complete surveys during and after the conclusion of the Program. The Program Sponsors may use and publicize anonymized quotes from Participant surveys in promotional materials.

10. Assignment

This Agreement is personal to Participant. Participant may not assign or transfer rights or delegate obligations under this Agreement. The Program Sponsors and ev.energy are permitted to assign this Agreement, in whole or in part, to any person, at any time, and without notice to you.

11. Taxes

Participant is responsible for paying all taxes, if any, associated with receipt of incentives or any other thing of value in connection with the Program.

12. Entire Agreement

This Agreement (including any other documents or policies incorporated by reference) constitutes the entire agreement between Participant, on the one hand, and the Program Sponsors and ev.energy, on the other hand, with respect to the Program and supersedes all prior or other arrangements, understandings, negotiations and discussions, whether oral or written, with respect to the subject matter of this Agreement.

13. Waiver/ Severability

No waiver of any provision of this Agreement shall be deemed or constitute a waiver of any other provision of or any subsequent breach of this Agreement.  No waiver shall be valid unless made in a writing signed by the party granting the waiver.  If any provision in this Agreement is declared invalid or unenforceable, then such provision shall be severed from the remainder of this Agreement, which will otherwise remain in full force and effect.

14. No Third-Party Beneficiaries

This Agreement is for the benefit of ev.energy and the Program Sponsors and each and their respective successors and assigns with respect to Participant’s obligations under this Agreement and for Participant’s benefit with respect to Participant’s rights under this Agreement.  There are no other third-party beneficiaries under this Agreement and this Agreement will not be deemed to confer upon or give to any other person any claim or other right or remedy.

15. Law and Venue

This Agreement shall be interpreted and enforced in accordance with the laws of the State of New York without reference to its principles on conflicts of laws.