Smart Thermostats
Smart Solutions

Welcome to the Duke Energy EnergyWise Home Program (the “Program”). The Program is offered by Duke Energy (“Duke Energy”) and is implemented by Open Access Technology International Inc. (“Sponsor”). These Terms of Use (these “Terms”) are a legal agreement between you, Duke Energy and Sponsor governing your participation in the Program.

By applying to or participating in the Program, you represent and warrant that you meet the eligibility criteria described in this agreement and that all information you provide in connection with your participation in the Program is true, accurate, current and complete. If you do not agree to these Terms, you may not participate in the Program.

In the case of inconsistencies between these Terms and information included in any other materials related to the Program (e.g., promotional materials and mailers), these Terms will always govern and take precedence. These Terms are in addition to, and are not replaced by, any terms and conditions provided by the manufacturer of your enrolled devices (the “Manufacturer”). Duke Energy reserves the right, in its sole discretion, to modify or to discontinue the Program at any time.

Eligibility and Participation. To participate, you must be a Duke Energy individually metered residential customer, have one or more qualified thermostats, and maintain your enrolled devices as necessary to allow Duke Energy and the Sponsor to remotely communicate with and adjust them in connection with the Program (including implementing any necessary updates and maintaining any necessary communications connections) to participate in the Program. You are ineligible to participate in the program if you are a participant in EnergyWise Home program with a Duke Energy-provided load control device. If you have two or more thermostats in your household, all thermostats must be enrolled in the Program to participate and you are not eligible to receive duplicate Incentives. You can apply to participate through your Manufacturer or at the program website: https://www.duke-energy.com/home/products/energywise-home/smart-thermostat.

Program Data. By participating in the Program, you hereby authorize Duke Energy, Manufacturer and Sponsor to (1) collect, use and exchange Program Data for the purposes of determining your eligibility for the Program and operating the Program; to (2) compile, analyze and share Program Data for the purposes of complying with applicable law and regulatory requests, and to improve the Program; and (3) make conclusions about the Program, your Program Data and any related information (the “Findings”) and to summarize and publish materials about the Program, Program Data, and the Findings, provided that any such public use of Program Data will only use anonymized data which does not specifically identify you. Program Data means data related to your identity, your participation in the program, your energy use (and energy production), your Duke Energy account (including billing information), and information about your enrolled devices. Duke Energy will protect your Program Data consistent with its then-current privacy policy: https://www.duke-energy.com/legal/privacy.

Control. As part of this Program, Sponsor may automatically make changes to your enrolled devices without any manual intervention by you. These changes may include device mode, set point or other
settings and may include or be preceded by “pre-cool” or “pre-heat” periods as applicable, when a current or scheduled set temperature is temporarily changed in anticipation of an adjustment. For certain types of enrolled devices, change may occur even if the enrolled device is set to “hold” or a similar setting. At any time, you may override these changes by manually adjusting your enrolled device to a different setting or as otherwise enabled by the Manufacturer. None of Duke Energy, Sponsor, nor Manufacturer are responsible for your electricity costs, or any changes thereto, during your participation in the Program.

Incentives. In connection with the Program, Duke Energy may offer certain rebates, offers or other incentives (“Incentives”). Duke Energy reserves the right to determine qualification for Incentives in its sole discretion. Failure to participate in the Program for its entire duration or overriding automatic Device control on a regular basis may disqualify you from Incentives. Current incentives can be found at https://www.duke-energy.com/home/products/energywise-home/smart-thermostat.

Costs. Neither Duke Energy nor Sponsor is responsible for providing the systems necessary to participate in the Program, or your electricity costs, or any changes thereto, during your participation in the Program.

No Warranty; Disclaimer. YOUR PARTICIPATION IN THE PROGRAM IS AT YOUR SOLE DISCRETION AND RISK. THE PROGRAM IS OFFERED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND. DUKE ENERGY AND SPONSOR EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE PROGRAM, WHETHER EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES FOR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR NON-MISAPPROPRIATION OR INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY) AND ANY WARRANTIES OR CONDITIONS ARISING UNDER ANY OTHER LEGAL REQUIREMENT. DUKE ENERGY AND SPONSOR MAKE NO WARRANTIES THAT THE OPERATION OF THE PROGRAM, OR THE DEVICE, WILL BE UNINTERRUPTED OR ERROR-FREE.

Limitation of Liability. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL SPONSOR OR DUKE ENERGY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THE PROGRAM, EVEN IF SPONSOR OR DUKE ENERGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH THE PROGRAM OR WITH ANY OF THESE TERMS, OR FEEL SPONSOR OR DUKE ENERGY HAS BREACHED THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE PARTICIPATION IN THE PROGRAM.

Exclusions. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF INCIDENTAL, CONSEQUENTIAL OR OTHER TYPES OF DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS AND IN PARTICULAR WITHIN THIS “LIMITATION OF LIABILITY” CLAUSE SHALL ATTEMPT TO EXCLUDE LIABILITY THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.

Termination. Duke Energy or Sponsor may terminate the Program, or your participation in the Program, at any time, with or without cause, by providing you with written notice of such termination, which may be via email. You may terminate your participation in the Program at any time by calling (866)541-8886. Upon termination, all rights granted to you by these Terms will
immediately cease, including eligibility for any Incentives. Duke Energy and Sponsor are not liable to you or any third party for termination of the Program or your participation in the Program.

Survival. Any suspension, termination or cancellation of the Program will not affect your obligations under these Terms which by their sense and context are intended to survive such suspension, termination or cancellation.

Applicable Law and Dispute Resolution. These Terms are governed by the laws of the State of North Carolina, without giving effect to any conflict of laws or principles that may require the application of the law of another jurisdiction. If you believe that Duke Energy has not adhered to these Terms, please contact us by email at support@myenergybill.dukeenergy.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation. If you and Duke Energy are unable to reach a resolution to the dispute, you and Duke Energy will settle the dispute exclusively under the rules of the American Arbitration Association (www.adr.org) at its Charlotte, North Carolina, office. Any election to arbitrate by one party will be final and binding on the other. YOU ACKNOWLEDGE AND AGREE THAT YOU AND Duke Energy ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both you and Duke Energy otherwise agree in writing, an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Program or these Terms must be brought, if at all, within one year from the accrual of the claim or cause of action or be forever barred.

Consent and Capacity. You are over 18 years of age and have the necessary legal capacity to execute this agreement and have received the necessary consents and approvals from the owner(s) or occupant(s) of any premises where the Program will be provided. You are solely responsible for any failure to receive necessary consents and approvals. You must have one or more compatible devices, maintain a Duke Energy account in good standing, and maintain your enrolled devices as required by the Manufacturer (including implementing any necessary updates and maintaining any necessary communications connections) to participate in the Program. Your participation is completely voluntary, and you can decide to withdraw at any point in the Program.

Entire Agreement and Modifications. These Terms are the entire and exclusive agreement between Duke Energy or Sponsor and you regarding the Program, and supersede and replace any prior agreements regarding the same. Duke Energy or Sponsor may modify these Terms at any time and will notify you of material modifications at email address we have on record. You can also find the most recent version of these Terms here: https://www.oati.com/solutions/smart-energy/smart-thermostat/. Your continued participation in the Program signifies your acceptance of any modified Terms.

Assignment. These Terms will be binding on you, Duke Energy, Sponsor, and their respective successors and assigns. You may not assign these Terms or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Duke Energy and Sponsor. Any purported assignment or delegation by you without the appropriate prior written consent of Duke Energy will be null and void.

Severability and Waiver. In the event that any provision in these Terms is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of Duke Energy to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.

By participating in this Program, you agree to receive emails from Sponsor or Duke Energy or their partners at the email address provided for this Program. These emails may contain information about Duke Energy’s products and services; other energy related products, services and Programs; as well as energy related legislative and environmental issues. You may opt out of receiving these emails at any time by contacting Duke Energy at (877) 799-2632 or support@myenergybill.dukeenergy.com; however, it may take up to 10 days for your opt-out request to take effect.