SmartCharge New York
Participation Agreement

3. Participant Requirements.

PARTICIPANTS IN THE PROGRAM MUST BE AT LEAST 18 YEARS OLD. The Participant hereby agrees 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 a minimum, have a supported EV with functional onboard telematics using a 4G or 5G modem or supported smart charging station. For more information, see the Program’s website at https://www.ev.energy/scny/faq for a current list of supported EVs and smart charging stations. In certain cases, the vehicle Original Equipment Manufacturer ("OEM") may require you to (i) activate the EV’s onboard telematics function and/or (ii) purchase a subscription or pay a fee to activate and/or maintain the EV'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 EV's telematics platform; and (iii) the 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.

The 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, payment information, vehicle make/model/trim/year, and charging station information) is accurate and will remain updated throughout your participation in the Program.

4. Disclaimer; Limitation of Liability.

The Program Sponsors and ev.energy make no representations or warranties, express or implied, as to the effectiveness of the Service or the Program to reduce Participant's charging costs, or reduce carbon emissions, and, to the fullest extent permitted by law, any and all such warranties are expressly disclaimed by the Program Sponsors and ev.energy and waived by the Participant. Further, the Program Sponsors and ev.energy make no representations or warranties, express or implied, regarding the reliability, performance, or operation of the Service, or the accuracy of Program Sponsors’ and ev.energy’s calculation of the incentive under Section 9 of this Agreement, and, to the fullest extent permitted by law, any and all such warranties are expressly disclaimed by the Program Sponsors and ev.energy and waived by the Participant.

The 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, contractors. employees, officers, directors, agents, or representatives, successors or assigns or any of them (collectively, the “Program Operators”) will be liable for any direct, 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 the Participant has been advised of the possibility of such damages. This limitation and waiver will apply regardless of the theory of liability, including, but not limited to, claims based on breach of contract and/or claims based on any theory of tort. Furthermore, the Participant agrees that to the fullest extent permitted by law, in no event shall the Program Operators be responsible for claims, damages, or losses caused by the Participant(s), third parties, or by an act of God.

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

In connection with your participation in the Program, you hereby agree to the following terms of use and privacy policies which are hereby incorporated into this Agreement by reference:

(a) the ev.energy Terms of Use and Privacy Policy, which are available at https://ev.energy/terms and https://www.ev.energy/privacy, as such may be updated from time to time;

(b) the Con Edison Privacy Statement, which 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, as such policy may be updated from time to time; and

(c) the O&R Privacy Statement, which 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, as such policy may be updated from time to time.

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.

The Program Sponsors anticipate that the Program will continue through December 31, 2025. Participants may choose to leave the Program for any reason at any time by providing written notice to the Program Sponsors and ev.energy via email to SCNY@ev.energy.com. The Program Sponsors may terminate the Participant’s participation in the Program if the Participant no longer meets any of the eligibility requirements set forth in this Agreement, or if Con Edison and/or O&R determine, in its/their sole judgment that the Participant is no longer actively participating in the Program. The Program Sponsors reserve the right to modify or terminate the Program, in whole or in part, at any time and for any reason, without prior notice. Your continued participation in the Program after any modifications thereto will constitute your acceptance of any such modifications to the Program.

7. Indemnification.

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

8. Collection and Use of Participant Data.

The Participant hereby consents to the Program Sponsors, ev.energy, and, their respective agents, contractors, and employees, using, processing, viewing sharing, accessing, and collecting data from the Participant’s Connected Hardware, including, without limitation, 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 location (including GPS coordinates), charging location, and similar data ("Collected Data"). Furthermore, the Participant hereby consents to (a) ev.energy’s sharing of your full home/business address with the Program Sponsors, and (b) the use of Collected Data by the Program Sponsors to evaluate the Program, including, but not limited to, assessing Participant experience, measuring potential savings, avoiding energy distribution and/or supply costs to the Program Sponsors, and reducing emissions. 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 all owners, operators, users, and passengers of the EV(s), of the participation of the Participant in the Program and of the program requirements as set forth in this Agreement.

Furthermore, by participating in the Program, the Participant represents that the Participant has the consent of the registered EV owner and the users of the Connected Hardware: (a) to be enrolled in the Program pursuant to the terms of this Agreement, and (b) to the rights granted to the Program Sponsors and ev.energy under this Section 8 with respect to collecting, using, processing, viewing sharing, and accessing, the Collected Data.

9. Incentive Calculations, Payments, and Forfeit.

The Participant acknowledges and agrees that the Program Sponsors and ev.energy rely exclusively on the Collected Data provided by the Participant to calculate the incentive due to the Participant under this Agreement. Furthermore, the Participant hereby acknowledges and agrees that the accuracy and reliability of the Collected Data is not guaranteed or warranted in any way by the Program Sponsors and that the Program Sponsors’ and ev.energy’s calculation of the incentive is final and binding upon the Participant.

The Participant incentive payment(s) will be sent to the Venmo or PayPal account provided by the Participant in the Program platform. Program Sponsors and ev.energy is not be under any duty to validate the accuracy of the Venmo or PayPal account provided by the Participant and no other forms of payment will be accepted. If a Venmo or PayPal account is not provided, the incentive earned will be held by ev.energy without an obligation to pay any interest thereon and subject to the time limits below, subsequently disbursed to Participant once a Venmo or PayPal account is provided. It is the responsibility of the Participant to provide current and accurate payment information and Program Sponsors’ and ev.energy shall have no liability for payments made to a wrong Participant account(s).

Notwithstanding any of the foregoing, Participants hereby agrees to forfeit any incentive earned, if: (i) six (6) months after execution of this Agreement, the Participant has not added its payment information to their account in the Program platform, (ii) the Participant has not claimed a payment sent to its provided payment account within three (3) months after payment was tendered by ev.energy, or (iii) the Participant has not claimed or requested a payment on or before two (2) months after the expiration or earlier termination of this Agreement or the Program.

10. Participant Feedback and Data Collection.

The Participant will cooperate in good faith with the Program Sponsors and their authorized representative(s) in performing evaluation, measurement, and verification of the Program. Additionally, the Program Sponsors may request that the Participant complete surveys during and after the conclusion of the Program. To this end, the Participants hereby agree that (a) any feedback given in a survey may be used by Program Sponsors to modify, enhance, maintain, and improve the Program and Services and shall become the exclusive property of Program Sponsors, without any compensation to you whatsoever, and (b) the Program Sponsors may use and publicize anonymized quotes from the Participant surveys in their promotional materials, without any compensation to you whatsoever.

11. Assignment.

This Agreement is personal to the Participant. The 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.

12. Taxes.

The 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.

13. Entire Agreement.

This Agreement (including any other documents or policies incorporated by reference) constitutes the entire agreement between the 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.

14. 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.

15. 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 obligations of the Participant under this Agreement and for the Participant’s benefit with respect to the 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.

16. 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.