PERFORMANCE GUARANTEE AND LIMITED WARRANTY
1. INTRODUCTION
This Performance Guarantee and Limited Warranty (this “Limited Warranty”) is Breiter Planet Properties’ (“Breiter Planet” or “we”) agreement to provide you (“Customer”) warranties on the System you purchased under the Agreement. The System will be professionally installed by Breiter Planet at the address you listed in the Agreement. We will refer to the installation location as your “Property” or your “Home.” This Limited Warranty begins when we start the survey of your Home for the System and expires 25 years from completion of installation (the “Warranty Period”), except as otherwise specified. We look forward to helping you produce clean, renewable solar power at your Home.
2. LIMITED WARRANTIES, PERFORMANCE GUARANTEE
(a) Limited Warranties
(i) Installation Warranty
Our installation of the System will be free from defects in workmanship for the full Warranty Period;
(ii) Inverter Warranty
After the end of the Manufacturer’s Warranty on your System’s inverter, we warrant that under normal use and service conditions your System’s inverter will be free from defects in workmanship or defects in, or a breakdown of, materials or components, for the remainder of the Warranty Period;
(iii) Roof Warranty
All roof penetrations we make for your System will be watertight. This warranty will run the longer of (a) the first ten
(10) years of the Warranty Period or (b) the length of any existing installation warranty or new home builder performance standard for your roof (the “Roof Warranty Period”);
(iv) Damage Warranty
We will repair damage we cause to your Home, your belongings or your property or pay you for the damage we cause, as limited by Section 7, for the full Warranty Period (except damages that result from our roof penetrations, which damages are covered for the Roof Warranty Period).
Subject to the limitations listed in Section 2(e) below, under these warranties Breiter Planet will correct any defective workmanship (Installation Warranty), repair any roof leak (Roof Warranty), fix or replace any defective inverter part, material or component (Inverter Warranty) or repair any property damage (Damage Warranty), at no cost or expense to you (including all labor costs), when you submit a valid claim to us under this Limited Warranty. Cosmetic repairs that do not involve safety or performance shall be made at Breiter Planet’s discretion. If you have a claim under any of the Manufacturer’s Warranties during the Warranty Period, at your request Breiter Planet will make this claim on your behalf and at no additional cost perform any related labor associated with repairing the System.
(b) Performance Guarantee
(i) Power Production Guarantee
Breiter Planet guarantees that during the Warranty Period the System will generate the guaranteed kilowatt-hours (kWh) (“Guaranteed kWh”) in the table set forth below as follows:
|
Year |
Guaranteed Annual kWh Production |
Agreed Price/kWh |
|
1 |
= [Year 1 Estimated Production] |
0.09719 |
|
2 |
= [Year 1 Estimated Production]*99% |
0.09719 |
|
3 |
=[Year 1 Estimated Production]*98% |
0.09719 |
|
4 |
=[Year 1 Estimated Production]*97% |
0.09719 |
|
5 |
=[Year 1 Estimated Production]*96% |
0.09719 |
|
6 |
=[Year 1 Estimated Production]*95% |
0.09719 |
|
7 |
=[Year 1 Estimated Production]*94% |
0.09719 |
|
8 |
=[Year 1 Estimated Production]*93% |
0.09719 |
|
9 |
=[Year 1 Estimated Production]*92% |
0.09719 |
|
10 |
=[Year 1 Estimated Production]*91% |
0.09719 |
|
11 |
=[Year 1 Estimated Production]*90% |
0.09719 |
|
12 |
=[Year 1 Estimated Production]*89% |
0.09719 |
|
13 |
=[Year 1 Estimated Production]*88% |
0.09719 |
|
14 |
=[Year 1 Estimated Production]*87% |
0.09719 |
|
15 |
=[Year 1 Estimated Production]*86% |
0.09719 |
|
16 |
=[Year 1 Estimated Production]*85% |
0.09719 |
|
17 |
=[Year 1 Estimated Production]*84% |
0.09719 |
|
18 |
=[Year 1 Estimated Production]*83% |
0.09719 |
|
19 |
=[Year 1 Estimated Production]*82% |
0.09719 |
|
20 |
=[Year 1 Estimated Production]*81% |
0.09719 |
|
21 |
=[Year 1 Estimated Production]*80% |
0.09719 |
|
22 |
=[Year 1 Estimated Production]*79% |
0.09719 |
|
23 |
=[Year 1 Estimated Production]*78% |
0.09719 |
|
24 |
=[Year 1 Estimated Production]*77% |
0.09719 |
|
25 |
=[Year 1 Estimated Production]*76% |
0.09719 |
A. If at the end of each successive month anniversary of the first day of the month immediately following the month in which your System commences operation the cumulative Actual kWh (defined below) generated by the System is less than the Guaranteed kWh, then we will pay you directly an amount equal to the difference, if any, between the cumulative Actual kWh and the Guaranteed kWh multiplied by the Agreed Energy Price per kWh (defined below). Your cumulative Actual kWh is dependent on a shading percentage of % on your Home. If this shading percentage increases, your Guaranteed Actual kWh will be reduced proportionately.
For example, if the first month period commences on October 1, 2015 and ends on September 30, 2017, and the energy the System was supposed to generate is less than the energy the system was guaranteed to generate during such month period, we will pay you the difference in the Actual kWh and the Guaranteed kWh multiplied by the Agreed Energy Price per kWh. See the table below for a real-world example.
|
Example Guaranteed kWh |
Example Actual kWh |
Example Agreed $/kWh Energy Price |
Example Payment to You |
|
10,000 |
9,500 |
$0.10 |
$50.00 |
B. If at the end of each successive month anniversary of the first day of the month immediately following the month in which your System commences operation the Actual kWh is greater than the Guaranteed kWh during any month period, this surplus will be carried over and will be used to offset any deficits that may occur in the future.
“Actual kWh” means the AC electricity produced by your System in kilowatt-hours measured and recorded by Breiter Planet during each successive month anniversary of the first day of the month immediately following the month in which your System commences operation. To measure the Actual kWh, we will use the Remote Monitoring Service or to the extent such services are not available, we will estimate the Actual kWh by reasonable means.
“Agreed Energy Price per kWh” is set out in the table immediately after the first paragraph in Section 2(b)(i) above.
(c) Maintenance and Operation
(i) General
When the System is installed Breiter Planet will provide you with a copy of its Solar Operation and Maintenance Guide. This Guide provides you with System operation and maintenance instructions, answers to frequently asked questions, troubleshooting tips and service information. If we install a safety anchor in your roof during the installation of the System, we will leave this anchor installed for our future use throughout the installation and operation of your System. This safety anchor is for our use only. You are not authorized to use this anchor.
(ii) Remote Monitoring
Remote monitoring requires a high-speed Internet line to operate. Therefore, during the Warranty Period, you agree to maintain the communication link between our monitoring device and the System and between remote monitoring device and the Internet. You agree to maintain and make available, at your cost, a functioning indoor internet connection with a router, one DHCP enabled Ethernet port with internet access and standard AC power outlet close enough and free of interference to enable an internet-connected gateway provided by Breiter Planet to communicate wirelessly with the System's inverter (typically this is 80 feet, but may depend on site conditions). This communication link must be a 10/100 Mbps Ethernet connection that supports common Internet protocols (TCP/IP and DHCP). If you do not have and maintain a working high speed Internet line then (A) we will not be able to monitor the System and provide you with the Power Production Guarantee or provide a Remote Monitoring upgrade; and (B) you will be required to provide Breiter Planet with annual production information from your inverter.
(d) Making a Claim; Transferring this Warranty
(i) Claims Process
You can make a claim by:
A. emailing us at the email address in Section 8 below;
B. writing us a letter and sending it overnight mail with a well-known service; or
(ii) Transferable Limited Warranty
Breiter Planet will accept and honor any valid and properly submitted Warranty claim made during the Warranty Period by any person who purchases the System from you.
(e) Exclusions and Disclaimer
The limited warranties and guarantee provided in this Limited Warranty do not apply to any lost power production or any repair, replacement or correction of the System that result from the following:
(i) materials and equipment covered by Manufacturer’s Warranties;
(ii) someone other than Breiter Planet or its approved service providers installed, removed, re-installed or repaired the System (including, but not limited to, damaging the System during such work);
your failure to perform, or breach of, your obligations under this Limited Warranty, including not reporting System failure or damage, your being unavailable to provide access or assistance to us in diagnosing or repairing a problem, or your failing to maintain the System as stated in the Solar Operation and Maintenance Guide, or you modify or alter the System;
(iii) shading from foliage that is new growth or is not kept trimmed to its appearance as of the date the System was installed;
(iv) any System failure or lost or diminished performance that results from your actions, omissions or request (e.g. the System is not producing power because it has been removed to make roof repairs or you have required us to locate the inverter in a non-shaded area);
(v) theft or vandalism of the System;
(vi) any negligence or willful misconduct by you, your agents or representatives;
(vii) your failure to comply with the terms of, or cooperate with Breiter Planet during, the warranty claim process;
(viii) any Force Majeure Event (as defined below);
(ix) damage to your Home, belongings or property that results from our roof penetrations after the end of the Roof Warranty Period; and
(x) damage or loss to the System due to ball strikes.
Any cash payout to you is limited to the payouts described in Section 2(b) of this Limited Warranty. Breiter Planet will not make cash payments for any System damage. Rather, it will make System repairs as provided in this Limited Warranty.
This Limited Warranty gives you specific rights, and you may also have other rights which vary from state to state. This Limited Warranty does not warrant any specific electrical performance of the System, other than that described above.
Snow or ice may accumulate on rooftops and on solar panels during snowstorms. Accumulated snow or ice may slide or fall, resulting in property damage or bodily harm. If and when conditions safely allow you to remove accumulated snow or ice, you should do so to reduce the likelihood of excess snow sliding or falling.
THE LIMITED WARRANTIES DESCRIBED IN SECTIONS 2(a) ABOVE ARE THE ONLY EXPRESS WARRANTIES MADE BY BREITER PLANET WITH RESPECT TO THE SYSTEM. BREITER PLANET HEREBY DISCLAIMS, AND ANY BENEFICIARY OF THIS LIMITED WARRANTY HEREBY WAIVES, ANY WARRANTY WITH RESPECT TO ANY COST SAVINGS FROM USING THE SYSTEM. SOME STATES DO NOT ALLOW SUCH LIMITATIONS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
3. YOUR ADDITIONAL OBLIGATIONS
(a) You grant to Breiter Planet and its employees, agents and contractors the right to reasonably access all of the Property as necessary for the purposes of compliance with this Limited Warranty.
(b) If you want to make any repairs or improvements to the Property that could interfere with the System (such as repairing the roof where the System is located), you may only remove and replace the System pursuant to Section 5 of this Limited Warranty.
(c) During the Warranty Period you agree:
(i) to only have the System repaired pursuant to the Limited Warranty and reasonably cooperate when repairs are being made;
(ii) to keep trees, bushes and hedges trimmed so that the System receives as much sunlight as it did when Breiter Planet installed it;
(iii) to keep the panels clean, pursuant to this Limited Warranty and the Solar Operation and Maintenance Guide;
(iv) to not modify your Home in a way that shades the System;
(v) to be responsible for any conditions at your Home that affect the installation (e.g. blocking access to the roof or removing a tree that is in the way);
(vi) to not remove any markings or identification tags on the System;
(vii) to permit Breiter Planet, after we give you reasonable notice, to inspect the System for proper operation as we reasonably determine necessary;
(viii) to not do anything, permit or allow to exist any condition or circumstance that would cause the System not to operate as intended at the Property;
(ix) to notify Breiter Planet if you think the System is damaged, appears unsafe or is stolen; and
(x) that you will not make any modifications, improvements, revisions or additions to the System or take any other action that could void the Limited Warranty on the System without Breiter Planet’s prior written consent.
4. BREITER PLANET’S STANDARDS
For the purpose of this Limited Warranty the standards for our performance will be (i) normal professional standards of performance within the solar photovoltaic power generation industry in the relevant market; and (ii) Prudent Electrical Practices. “Prudent Electrical Practices” means those practices, as changed from time to time, that are engaged in or approved by a significant portion of the solar power electrical generation industry operating in the United States to operate electric equipment lawfully and with reasonable safety, dependability, efficiency and economy.
5. SYSTEM REPAIR, REMOVAL AND REINSTALLATION
(a) You agree that if (i) the System needs any repairs that are not the responsibility of Breiter Planet under this Limited Warranty or (ii) the System needs to be removed and reinstalled to facilitate remodeling of your Home, you will have Breiter Planet, or another similarly qualified service provider, at your expense, perform such repairs or removal and reinstallation.
(b) Breiter Planet will remove the System from your roof while roof repairs are being made and reinstall the System after roof repairs are completed for a competitive price. You will need to provide storage space for the System during such time. If we reinstall your System, the Roof Warranty will restart at the completion of reinstallation and run for ten (10) years from reinstallation. Breiter Planet’s obligations under this Section 5(b) are contingent on your compliance with the terms of the Agreement.
6. FORCE MAJEURE
If Breiter Planet is unable to perform all or some of its obligations under this Limited Warranty because of a Force Majeure Event, Breiter Planet will be excused from whatever performance is affected by the Force Majeure Event, provided that:
(a) Breiter Planet, as soon as is reasonably practical, gives you notice describing the Force Majeure Event;
(b) Breiter Planet’s suspension of its obligations is of no greater scope and of no longer duration than is required by the Force Majeure Event (i.e. when a Force Majeure Event is over, we will make repairs); and
(c) No Breiter Planet obligation that arose before the Force Majeure Event that could and should have been fully performed before such Force Majeure Event is excused as a result of such Force Majeure Event.
“Force Majeure Event” means any event, condition or circumstance beyond the control of and not caused by Breiter Planet’s fault or negligence. It shall include, without limitation, failure or interruption of the production, delivery or acceptance of power due to: an act of god; war (declared or undeclared); sabotage; riot; insurrection; civil unrest or disturbance; military or guerilla action; terrorism; economic sanction or embargo; civil strike, work stoppage, slow-down, or lock-out; pandemic; explosion; fire; earthquake; abnormal weather condition or actions of the elements; hurricane; flood; lightning; wind; drought; animals; the binding order of any governmental authority (provided that such order has been resisted in good faith by all reasonable legal means); the failure to act on the part of any governmental authority (provided that such action has been timely requested and diligently pursued); unavailability of power from the utility grid, equipment, supplies or products (but not to the extent that any such availability of any of the foregoing results from Breiter Planet’s failure to have exercised reasonable diligence); power or voltage surge caused by someone other than Breiter Planet including a grid supply voltage outside of the standard range specified by your utility; and failure of equipment not utilized by Breiter Planet or under its control.
7. LIMITATIONS ON LIABILITY
(a) No Consequential Damages
YOU MAY ONLY RECOVER DIRECT DAMAGES INCLUDING THOSE AMOUNTS DUE PURSUANT TO SECTIONS 2(b) AND 6(C) UNDER THIS LIMITED WARRANTY, AND IN NO EVENT SHALL BREITER PLANET OR ITS AGENTS OR SUBCONTRACTORS BE LIABLE TO YOU OR YOUR ASSIGNS FOR SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO Y O U.
(b) Limitation of Duration of Implied Warranties
ANY IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY ARISING UNDER STATE LAW, SHALL IN NO EVENT EXTEND PAST THE EXPIRATION OF ANY WARRANTY PERIOD IN THIS LIMITED WARRANTY. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
(c) Limit of Liability
Notwithstanding any other provision of this Limited Warranty to the contrary, Breiter Planet’s total liability arising out of relating to this Limited Warranty shall in no event exceed the following:
(i) For System Replacement: the original cost of the System
(ii) For damages to your Home, belongings and property: two million dollars ($2,000,000).
8. NOTICES
All notices under this Limited Warranty shall be made in the same manner as set forth in the Agreement to the addresses listed below:
TO BREITER PLANET:
Breiter Planet Properties
C/O Document Processing
86 Willard Ave
Seekonk, MA 02771
Attention: Warranty Claims Telephone: 617-334-5785
Email: Info@breiterplanet.com
TO YOU: At the billing address in the Agreement or any subsequent billing address you give us.
9. ASSIGNMENT AND TRANSFER OF THIS LIMITED WARRANTY
Breiter Planet may assign its rights or obligations under this Limited Warranty to a third party without your consent, provided that any assignment of Breiter Planet’s obligations under this Limited Warranty shall be to a party professionally and financially qualified to perform such obligation. This Limited Warranty protects only the person who owns the System. Your rights and obligations under this Limited Warranty will be automatically transferred to any person who purchases the System from you. This Limited Warranty contains the parties’ entire agreement regarding the limited warranty of the System.
