Terms and Conditions
- Eligibility criteria for the NB Power Industrial Energy Efficiency Program (the “Program”), including incentive amounts, requirements, definitions, and processes are governed by the contents of the Program Guide (the ‘Guide’). Any capitalized terms not defined in these terms and conditions are as defined in the Guide.
- Pre-Approval is required for all Projects and Studies.
- All Participants must be classified as industrial customers, defined by NB Power or New Brunswick’s municipal utilities rate schedules. Eligibility for incentives are determined by the following customer facility criteria:
- Small Industrial Facilities are New Brunswick industrial customers with a rate schedule of Small Industrial.
- Large Industrial Facilities are New Brunswick industrial customers with a rate schedule of Large Industrial.
- Other can be an industrial entity as categorized by the customer’s energy utility provider or as deemed eligible by NB Power staff.
- Incentives are offered on a first-come, first-served basis and are subject to the eligibility requirements outlined in the Guide, in addition to Program budget.
- All equipment must be new. Used or rebuilt equipment is not eligible for Incentives.
- If the Participant does not own the facility, the owner of the Eligible Site must provide authorization to install the eligible Measure(s) and agree to the Program Terms and Conditions.
2. Application Approval and Verification
- NB Power reserves the right to carry out a site visit of the facility prior to issuing pre-approval and/or prior to accepting an Incentive claim.
- No project-related energy-efficient equipment may be purchased, contracted for, or installed at the facility prior to Pre-Approval confirmation.
- Projects must be completed within the timeframe listed on the Pre-Approval confirmation.
- NB Power reserves the right to verify purchase of energy-efficient equipment and to have reasonable access to the facility to verify equipment installed under this Program.
- NB Power reserves the right, for any reason, to terminate the Program or change the Program requirements, Incentives or Terms and Conditions, at any time without notice. In particular, NB Power is not obligated to pre-approve any application for an Incentive that may cause NB Power to exceed its Program budget. NB Power reserves the right to exclude any proposed energy-saving projects or Measures based on Program Staff’s sole judgement. In the event of Program termination, Pre-Approved Applications will be processed to completion under the Terms and Conditions in effect at the time of NB Power approval.
- Incentives paid to a Participant by NB Power are subject to financial and technical audit by NB Power. Upon request by NB Power, the Participant will provide to NB Power, or its assigned representative, access to all relevant financial and technical records related to the Eligible Site(s), as outlined in the Guide, for which Incentives were received (the “Project Records”). Project Records may include, but are not limited to:
- Invoices, receipts, and vouchers received by the Participant and Proof of Payments made to substantiate the incurring of Eligible Costs; and
- Technical information such as drawings, energy data, and studies required to assess the implementation and environmental performance of the Eligible Project(s).
The Participant must allow Physical access to implemented Eligible Project(s). Project Records must be maintained and made available to NB Power for a period of seven (7) years from the date of application.
3. Energy Benefits
- NB Power (and any funding partners) are entitled to the proportional Energy Benefits associated with the energy efficiency Measures, based on the incentive payment, excluding the value of energy cost savings realized by the Participant.
- The Participant will provide NB Power with further documentation as NB Power may request to confirm its ownership of such benefits.
- The Participant will at its sole expense obtain and maintain all permits, licenses, and certificates of approval that are required for any work to be done under the Program.
- The Participant will engage personnel who are properly certified and trained to undertake all required opportunity identification, assessment, and implementation work for Eligible Studies and Eligible Projects.
- The Program’s Terms and Conditions will be governed by and construed in accordance with the laws of the Province of New Brunswick.
- All Projects must comply with applicable federal, provincial, and municipal laws.
5. Payment, Measurement & Verification
- NB Power will authorize payment following the successful implementation and operation of a Project’s Eligible Measures and the review and approval of back-up documents accompanying an Incentive Claim Application.
- Incentives will typically be transferred electronically within five (5) weeks of the Project receiving final approval.
- Incomplete applications, if not remedied to NB Power’s satisfaction, will be cancelled.
- Program Incentives paid may be taxable. The Participant is responsible for declaring and paying all such taxes. NB Power will not be responsible for any tax liability imposed on a Participant due to payment of Incentives.
- Measurement and Verification (M&V) activities may be conducted by NB Power or its contractors, as required by NB Power. Under certain circumstances, payment is contingent on the M&V result, which is based on the M&V Plan developed by NB Power’s contractor. The Participant and NB Power must agree to the M&V Plan in advance of Measure installation. M&V activities may require the installation of energy-monitoring equipment and/or the taking of photographs, both at no charge to the Participant.
- Any Participant receiving an Incentive may be contacted by an NB Power evaluator to carry out additional verification of Project installation or be asked to complete a written, oral, or electronic Participant survey. The Participant agrees, for a period of three years after the final Incentive payment, to allow NB Power or its assigned evaluation contractor to conduct site visits to verify that the equipment is installed and to assess the amount of energy savings achieved.
7. Removal of Equipment
- The Participant agrees to remove and properly dispose/recycle the equipment being replaced in accordance with all legal requirements.
- NB Power does not endorse any particular service provider or any manufacturer, product, labour, or system design by offering this Program.
- NB Power does not endorse, guarantee, or warrant any particular manufacturer or product, and NB Power provides no warranties, express or implied, for any products or services.
- NB Power does not expressly or implicitly warrant the performance of installed equipment or any service provider or installation contractor’s quality of work (contact your contractor for detailed warranties).
- NB Power does not make any representations of any kind regarding the results to be achieved by the energy-saving Measures or the adequacy or safety of such Measures, including, but not limited to, warranties of merchantability and fitness for a particular purpose.
- The Participant’s reliance on warranties is limited to any warranties that may arise from, or be provided by their service providers, installation contractors, manufacturers, or other market providers.
9. Limitation of Liability
- NB Power’s sole liability is limited to paying the properly qualified and approved Incentive specified in the Guide.
- Participant acknowledges that any service provider, installation contractor, or other market provider selected by the Participant is not an agent, contractor, or subcontractor of NB Power.
- NB Power will have no obligation to maintain, remove, or perform any work whatsoever on the energy-saving equipment installed or any other aspect of an Eligible Project.
- Neither NB Power nor any of its affiliates will be liable to the Participant or to any other party for a service provider’s and/or installation contractor’s failure to perform, for failure of the energy-saving equipment to function, for any damage to the Participant’s facility or premises caused by the service provider and/or installation contractor, or for any and all damages to property or injuries to persons caused by or arising from any activities associated with this Program.
- The Participant will protect, indemnify, and hold harmless NB Power and its employees and agents from and against all third-party claims, liabilities, losses, damages, judgments, penalties, causes of action, costs and expenses assessed against or incurred by NB Power arising out of, or in relation to, the Participant’s participation in the Program, the work or services in connection with the Participants eligible Measures or the installation, operation, or use of the eligible Measures for which Incentives are paid.
- If any provisions of these Program Terms and Conditions are determined to be invalid or unenforceable in whole or in part such invalidity or unenforceability, attaches only to such provisions and everything else in these Program Terms and Conditions continues in full force and effect.
- Nothing in these Program Terms and Conditions will be construed to constitute one party as an agent, associate, or partner of the other party.
- These Program Terms and Conditions shall not be assigned in whole or in part by the Participant without the prior written consent of NB Power and any assignment made without that consent is void and of no effect.
10. Default and Termination
- If, in the opinion of NB Power, there has been a misrepresentation or the Participant fails to proceed diligently, or is otherwise in default in carrying out any of the terms, conditions, covenants, or obligations herein, or if the Participant becomes bankrupt or insolvent, or has a receiving order made against it (either under the Bankruptcy and Insolvency Act or otherwise), or a receiver is appointed, or the Participant makes an assignment for the benefit of creditors, or if an order is made or a resolution passed for the winding up of the Participant, or if the Participant takes the benefit of any statute for the time being in force relating to bankrupt or insolvent debtors, NB Power may, by giving notice in writing to the Participant, exercise any or all of the following remedies:
- Terminate the whole or any part of this Agreement;
- Terminate the obligation on the part of NB Power to pay any Incentives in respect of an approved Application or Project, including Incentives due or accruing due;
- Direct the Participant to repay immediately all or any part of Incentives paid by NB Power pursuant to the Program to the Participant, and that amount is a debt due to NB Power and may be so recovered.
- NB Power may give notice in writing of the specific default to the Participant and request the latter to remedy it.
- If the Participant fails to remedy the specific default within twenty (20) business days after the date of delivery of written notice, then this Agreement may be terminated immediately by further written notice of termination given by NB Power.
- In the event of the termination by NB Power, NB Power may, at its sole discretion, pay to the Participant the Eligible Costs incurred for the Participant’s partial performance of any Approved Project activities to the date on which NB Power gives the notice of termination to the Participant.
11. Data Confidentiality, Collection, and Use
NB Power’s disclosure and confidentiality obligations are subject to the Right to Information and Protection of Privacy Act. Personal and/or Business information on the application form is collected for the purpose of assessing your participation in the Program. NB Power will take all necessary steps to maintain the privacy and confidentiality of all personal and/or business information.
- For the purposes of this Agreement, “Confidential Information” means any information that is of a confidential, commercially sensitive, or proprietary nature that pertains to, or emanates from NB Power or the Participant that is clearly marked or identified in writing as confidential at the time of disclosure or is disclosed in such a way or under circumstances that a reasonable person would understand it to be confidential. Confidential Information provided to each Party under these Terms and Conditions is confidential, to both Parties, their employees, directors, officers, legal advisors, auditors and may not be disclosed to any other person except:
- with the consent of the other party;
- if required by law;
- in connection with legal proceedings relating to these Terms and Conditions;
- if either Party demonstrates the information is generally and publicly available, such information is known to the Receiving Party on or prior to the date of these Terms and Conditions, such information is received by Receiving Party on a non-confidential basis (whether through public filings or otherwise) prior to receipt from the Disclosing Party, from a third Party unless the Receiving Party has actual knowledge that such third Party does not lawfully possess and is not lawfully entitled to disclose such information or such information is independently developed by the Receiving Party without the use of the confidential information;
- to consultant of the Receiving Party, provided the consultant undertakes to abide by these terms; or
- in the case of disclosure to any lender, but in any situation referred to in subparagraphs (b) and (c) above,
- the Party will provide written notice to the other Party prior to making such disclosure and provide details of the proposed form, nature and purpose of such disclosure so that the Party may seek protective order or other remedy or waive compliance with these Terms and Conditions, and
- if a protective order or other remedy is not obtained or the Party waives compliance with these Terms and Conditions, the Party will disclose only that portion of the confidential information which is required.
- Despite any other provision herein, NB Power may disclose Incentive amounts paid to a Participant as a result of participation in the Program and NB Power may promote and/or make public announcements related to a Participant’s participation in the Program, including, but not limited to, the name of the Participant and address.
- The Participant hereby authorizes NB Power to obtain any additional information necessary for the processing of the Application, Program Evaluation, and Development from any source necessary and maintain that information collected for the purpose of administering the Program.
- The Participant herby authorizes NB Power to share information with any service provider working for the Participant for the purposes of administration of the Program.
- Participants may not use the NB Power logo or Program name in any marketing, advertising, or promotional materials without NB Power’s prior written permission.
- Any notice required hereunder will be deemed to be delivered to the Participant if provided by electronic mail, facsimile, regular mail, or courier to the address and contact information provided by the Participant on the Pre-Approval Application form.
- Any notice required hereunder will be deemed to be delivered to NB Power if provided by electronic mail, facsimile, regular mail, or courier to:
New Brunswick Power Corporation
515 King Street P.O. Box 2000
Fredericton, NB E3B 4X1
Attention: Jamie Petrie, Chief Legal Officer
- All accounting terms, not otherwise defined herein, have the meanings assigned to them, and all calculations made, and all financial data to be submitted, is to be prepared in accordance with the generally accepted accounting principles in effect in Canada, including without limitation, those approved or recommended from time to time by the Canadian Institute of Chartered Accountants, or any successor institute, applied on a consistent basis.
14. Order of Interpretation
- NB Power reserves the right to modify the Program features and conditions, including the Guide on a forward going basis prior to individual incentive pre-approvals as required under these Program Terms and Conditions. Amendments to these Terms and Conditions as may be reasonably required and requested from time to time that impact on Incentives already approved must be mutually agreed to in writing between the parties. Said mutually agreed upon changes will be incorporated into the applicable Program Documents and executed by both parties. In the event of any conflict or inconsistency between the Guide and any other version of such Guide, the most current version, the receipt of which has been acknowledged and mutually agreed upon will prevail. In the event of any conflict or inconsistency between Guide and the Program Terms and Conditions, the Program Terms and Conditions will prevail.