Home Solar Purchase Agreement

 

 

The Breiter Planet Promise

·  We provide a money-back energy performance guarantee.

·  We warrant all of our roofing work.

·  We warrant and repair the System

·  We fix or pay for any damage we may cause to your property.

·  We provide 24/7 web-enabled monitoring at no additional cost.

 

This Solar Home Improvement Agreement (this “Agreement”) is between Breiter Planet Properties, LLC (“Breiter Planet”, “we” or “Contractor”) and you (“Customer”) for the sale and installation of the solar system described below (the “Project” or the “System”) at your home (the “Property” or your “Home”). We look forward to helping you produce clean, renewable solar energy at your Home. The Parties agree as follows:

 

KEY TERMS AND CONDITIONS

1.      DESCRIPTION OF THE PROJECT AND DESCRIPTION OF THE SIGNIFICANT MATERIALS TO BE USED AND EQUIPMENT TO BE INSTALLED.

Sale and installation of photovoltaic system with size indicated in summary table at the top of this agreement, consisting of PV modules, corresponding inverter(s) and a mounting system designed for installation and operation at your Home.

 

2.      CONTRACT PRICE. The Contract Price for the Project is defined in the table at the top of this agreement.

The Contract Price is subject to any change orders agreed to in writing by both parties.

 

3.      INSTALLATION TIMELINE. Breiter Planet will install the System within a reasonable amount of time after we sign this Agreement but no later than twelve (12) months from the date of this Agreement, which shall be of the essence. We will schedule your System installation at a mutually convenient date and time. When Breiter Planet completes installation of the solar panels and the inverters(s), then substantial completion of the work to be performed under this Agreement shall have occurred:

 

Approximate Start Date: 30-120 days from the date of this Agreement

 

Approximate Completion Date: 30-120 days from the date of this Agreement

 

This performance timeline is an estimate and may be adjusted as provided in this Agreement, including delays due to late payments or unforeseen conditions.

 

4.      SCHEDULE OF PROGRESS PAYMENTS.

 

 

You are entitled to a filled in copy of this Agreement, signed by both you and the Contractor, before any work may be started.

 

GENERAL TERMS AND CONDITIONS

THIS AGREEMENT SUPERSEDES ALL PRIOR EXISTING CONTRACTS BETWEEN YOU AND BREITER PLANET THAT PERTAIN TO THE “SYSTEM” DEFINED IN THIS AGREEMENT.

1.      CHANGES, PERMITS, REBATES, INCENTIVES

Both parties will have the right to terminate this Agreement, without penalty or fee, if Breiter Planet determines after the engineering site audit of your Home that it has misestimated by more than ten percent (10%) any of (i) the System size, (ii) the System’s total cost or (iii) the System’s annual production.  Such termination right will expire at the earlier of (i) one (1) week prior to your scheduled System installation date and (ii) sixty (60) days after we inform you in writing of the revised size, cost or production estimate. If you do not terminate this Agreement or return the written amendment to this Agreement described below within this time period, then this Agreement will automatically terminate and you will not get your deposit, if any, back. Any changes to the System will be documented in a written amendment to this Agreement signed by both you and Breiter Planet. You authorize Breiter Planet to make corrections to the utility and incentive paperwork to conform to this Agreement or any amendments to this Agreement we both sign.

 

If you are financing your System, Breiter Planet’s obligation to install the System is conditioned on Breiter Planet’s confirmation that you have obtained financing for the System. Breiter Planet may terminate this Agreement without liability if, in its reasonable judgment, this condition will not be satisfied.

You acknowledge that the System equipment and materials we will furnish and install are subject to cost increases. We will hold the Contract Price for six (6) months after the date of this Agreement. After six (6) months, if the cost of any System equipment or material rises by any unusual amount because of circumstances beyond Breiter Planet’s control, including but not limited to market price fluctuation or a site audit that reveals the need for additional materials or labor, then Breiter Planet shall have the right to present you with a change order for the System equipment with a new price. You will have the right to accept or reject this new price and get your deposit, if any, back. If you do not accept the new price, Breiter Planet shall have the right to terminate this Agreement and issue you a full refund minus any development costs already incurred by Breiter Planet Properties, upon which the parties shall have no further obligations to one another.

 

Breiter Planet will obtain any necessary permits, at Breiter Planet’s cost. Breiter Planet shall not be responsible for delays in work due to the actions of any permitting and regulatory agencies or their employees. You will pay Breiter Planet for any taxes or assessments required by federal, state or local governments or related regulatory agencies or utilities.

 

The rebate and incentive calculations Breiter Planet provides to Customer are estimates. These estimates are based on certain assumptions that may not be applicable based on the circumstances specific to the Project. However, actual rebates and incentives are variable as eligibility requirements, funding availability, and rates may change. Breiter Planet will use good faith reasonable efforts to help Customer secure applicable rebates and incentives, but Breiter Planet shall have no financial obligation to Customer regarding actual rebate and incentive amounts received. Customer agrees to pay the Contract Price in full regardless of the actual number of rebates and/or incentives received.

 

2.      SCHEDULE OF PROGRESS PAYMENTS

The schedule of progress payments (see Key Terms and Conditions cover sheet) must specifically describe each phase of work, including the type and amount of work or services scheduled to be supplied in each phase, along with the amount of each proposed progress payment.

 

Note about Extra Work and Change Orders. Extra Work and Change Orders become part of the contract once the order is prepared in writing and signed by the parties prior to commencement of any work covered by the new change order. The order must describe (i) the scope of the extra work or change, (ii) the cost to be added or subtracted from the contract; and (iii) the effect the order will have on the schedule of progress payments or the completion date. Notwithstanding this provision, the Contractor shall have the right to substitute System equipment without Customer’s agreement, so long as that substitution adds no extra cost to the project and does not materially affect the System’s performance. The Contractor’s failure to comply with the requirements of this paragraph does not preclude the recovery of compensation for work performed based on legal or equitable remedies designed to prevent unjust enrichment.

3.      PROPERTY CONDITIONS

You will be responsible for the structural integrity of the location where the System is installed, including structural or electrical modifications necessary to prepare your Property for the System. You agree that Breiter Planet is not responsible for any known or unknown Property conditions.

 

4.      EXISTING CONDITIONS

Breiter Planet is not responsible and bears no liability for the malfunctioning of existing electrical equipment at the Property, including but not limited to the main electrical service panel, any major electrical devices, or any other fuses or similar devices.

 

5.      COST OR DELAY DUE TO UNFORESEEN CONDITIONS

Breiter Planet is not responsible for failures, delays or expenses related to unanticipated, unusual, or unforeseen conditions at the Property arising out of conditions beyond Breiter Planet’s reasonable control (all of which shall be considered “Force Majeure Events”). Performance times under this Agreement will be considered extended for a period of time equivalent to the time lost due to such conditions. If Breiter Planet discovers unforeseen conditions requiring additional cost, then Breiter Planet shall present such costs to you and get your written approval before beginning or continuing performance. Failure to provide such approval may result in Breiter Planet exercising its termination rights pursuant to Section 8 of this Agreement.

 

6.      PROPERTY ACCESS

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 (A) installing, constructing, operating, repairing, removing and replacing the System or making any additions to the System; (B) installing, using and maintaining electric lines and inverters and meters, necessary to interconnect the System to your electric system at the Property and/or to the utility’s electric distribution system; or (C) taking any other action reasonably necessary in connection with the construction, installation, operation, maintenance, removal or repair of the System.

 

7.      TITLE AND RISK OF LOSS

Title to the Project shall transfer to you when we complete installation of the Project. After delivery of the System equipment and materials to your Property, other than damage directly resulting from Breiter Planet’s actions, you bear risk of loss to the System. Breiter Planet retains all Breiter Planet -owned intellectual property rights on any of the equipment installed in your System including, but not limited to, patents, copyrights and trademarks and any data generated by Breiter Planet’s monitoring system.

 

8.      TERMINATION AND DEFAULT

Breiter Planet may terminate this Agreement, upon seven (7) days written notice, for any material or non-material breach, for any failure of Customer to agree to an appropriate change order, for any failure of Customer to pay Breiter Planet any amount due, for any bankruptcy or financial distress of Customer, or for any hindrance to Breiter Planet in the performance process.

 

9.      REMEDIES UPON CUSTOMER’S BREACH

Without limiting any of Breiter Planet’s other rights and remedies, upon any breach by Customer, including any failure of Customer to pay Breiter Planet any amount due, or if you cancel this Agreement after we commence construction (i.e., any work for the System) at your home, Breiter Planet shall have the right to: (i) pursue a stop work order at the Property; (ii) prevent any more work from being done at the Property until the breach is cured and a bond is posted by the Customer for any amounts payable under this Agreement; (iii) recover all amounts due under this Agreement for services provided through the date of termination including interest (prime + 2% or such amount as allowed by law); (iv) remove any Project materials or equipment from the Property; and (v) any other legal remedies including but not limited to mechanics liens or similar remedies.

 

10.   MECHANICS’ LIEN RELEASES

Upon satisfactory payment for any portion of the work performed, Breiter Planet shall, prior to any further payment, furnish to Customer a full and unconditional release from any claim or mechanics’ lien pursuant to applicable law for that portion of the work for which payment has been made.

 

11.   BREITER PLANET’S INSURANCE

Breiter Planet carries the following insurance applicable to the work being performed under this Agreement:

a.      Commercial General Liability Insurance (CGL). Breiter Planet carries commercial general liability insurance with coverage amounts that meet or exceed those required by law.

 

b.      Workers' Compensation Insurance. Breiter Planet carries workers' compensation insurance for all employees in compliance with law.

 

12.   INDEMNIFICATION

Both parties shall indemnify, defend and hold harmless the other and its employees, officers, directors, agents and assigns from any and all third party claims, actions, costs, expenses (including reasonable attorneys’ fees and expenses), damages, liabilities, penalties, losses, obligations, demands and liens of any kind arising out of or relating to its failure to perform its obligations under this Agreement. Neither party shall be required to indemnify the other for its own negligence, willful misconduct or fraud.

13.   GOVERNING LAW

The laws of the state where your Home is located shall govern this Agreement without giving effect to conflict of laws principles.

14.   ENTIRE AGREEMENT

This Agreement contains the parties’ entire agreement regarding the Project. There are no other agreements regarding this Agreement, either written or spoken. Any change to this Agreement must be in writing and signed by both parties. Only an authorized officer of Breiter Planet may execute any change to this Agreement on behalf of Breiter Planet. If any portion of this Agreement is determined to be unenforceable or invalid, the remaining provisions shall be enforced in accordance with their terms or shall be interpreted or re-written so as to make them enforceable. Provisions that should reasonably be considered to survive termination of this Agreement shall survive. Breiter Planet may assign or subcontract any of its rights or obligations under this Agreement to any successor, partner or purchaser.

 

15.   WAIVER

Any delay or failure of a party to enforce any of the provisions of this Agreement, including but not limited to any remedies listed in this Agreement, or to require performance by the other party of any of the provisions of this Agreement, shall not be construed to (i) be a waiver of such provisions or a party’s right to enforce that provision; or (ii) affect the validity of this Agreement.

 

16.   SELLING YOUR HOME

If you sell your Home, you can transfer this Agreement. All of your rights and obligations under this Agreement can be assigned to the purchaser of your home pursuant to Section 9 of the Performance Guarantee and Limited Warranty.

17.   PRIVACY/PUBLICITY

You grant Breiter Planet the right to publicly use, display, share, and advertise the photographic images, Project details, price and any other non-personally identifying information of your Project. You may opt-out of these publicity rights by giving us written notice and mailing it to: Breiter Planet Properties, LLC, Attention: Publicity Opt Out, 86 Willard Ave, Seekonk, MA 02771. Breiter Planet shall not share your personally identifiable information or any data associating you with the Project location without your consent.

 

18.   ARBITRATION OF DISPUTES

PLEASE READ THIS SECTION CAREFULLY. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY.

The laws of the state where your Home is located shall govern this Agreement without giving effect to conflict of laws principles. We agree that any dispute, claim or disagreement between us (a “Dispute”) shall be resolved exclusively by arbitration.

The arbitration, including the selecting of the arbitrator, will be administered by JAMS, under its Streamlined Arbitration Rules (the “Rules”) by a single neutral arbitrator agreed on by the parties within thirty (30) days of the commencement of the arbitration. The arbitration will be governed by the Federal Arbitration Act (Title 9 of the U.S. Code). Either party may initiate the arbitration process by filing the necessary forms with JAMS. To learn more about arbitration, you can call any JAMS office or review the materials at www.jamsadr.com. The arbitration shall be held in the location that is most convenient to your Home. If a JAMS office does not exist in the county where you live, then we will use another accredited arbitration provider with offices close to your Home.

If you initiate the arbitration, you will be required to pay the first $125 of any filing fee.  We will pay any filing fees in excess of $125 and we will pay all of the arbitration fees and costs. If we initiate the arbitration, we will pay all of the filing fees and all of the arbitration fees and costs. We will each bear all of our own attorney’s fees and costs except that you are entitled to recover your attorney’s fees and costs if you prevail in the arbitration and the award you receive from the arbitrator is higher than Breiter Planet’s last written settlement offer. When determining whether your award is higher than Breiter Planet’s last written settlement offer your attorney’s fees and costs will not be included.

Only Disputes involving you and Breiter Planet may be addressed in the arbitration. Disputes must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party. If either of us arbitrates a Dispute, neither of us, nor any other person, may pursue the Dispute in arbitration as a class action, class arbitration, private attorney general action or other representative action, nor may any such Dispute be pursued on your or our behalf in any litigation in any court. Claims regarding any Dispute and remedies sought as part of a class action, class arbitration, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non- class, non-representative) basis. This means that the arbitration may not address disputes involving other persons with disputes similar to the Disputes between you and Breiter Planet.

The arbitrator shall have the authority to award any legal or equitable remedy or relief that a court could order or grant under this agreement. The arbitrator, however, is not authorized to change or alter the terms of this agreement or to make any award that would extend to any transaction other than yours. All statutes of limitations that are applicable to any dispute shall apply to any arbitration between us. The Arbitrator will issue a decision or award in writing, briefly stating the essential findings of fact and conclusions of law.

BECAUSE YOU AND WE HAVE AGREED TO ARBITRATE ALL DISPUTES, NEITHER OF US WILL HAVE THE RIGHT TO LITIGATE THAT DISPUTE IN COURT, OR TO HAVE A JURY TRIAL ON THAT DISPUTE, OR ENGAGE IN DISCOVERY EXCEPT AS PROVIDED FOR IN THE RULES. FURTHER, YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS PERTAINING TO ANY DISPUTE. THE ARBITRATOR’S DECISION WILL BE FINAL AND BINDING ON THE PARTIES AND MAY BE ENTERED AND ENFORCED IN ANY COURT HAVING JURISDICTION, EXCEPT TO THE EXTENT IT IS SUBJECT TO REVIEW IN ACCORDANCE WITH APPLICABLE LAW GOVERNING ARBITRATION AWARDS. OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION.

 

19.   LIMITED WARRANTY

YOU UNDERSTAND THAT OUR WORK IS WARRANTIED UNDER THE TERMS OF EXHIBIT 2, AND THAT THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, FITNESS FOR ANY PURPOSE, CONDITION, DESIGN, CAPACITY, SUITABILITY OR PERFORMANCE OF THE PROJECT OR ITS INSTALLATION. UPON RECEIPT OF PAYMENT IN FULL OF THE CONTRACT PRICE, ALL WARRANTIES THAT ARE PROVIDED BY MANUFACTURERS OF EQUIPMENT USED IN THE PROJECT (“MANUFACTURER’S WARRANTIES”) WILL BE TRANSFERRED DIRECTLY TO YOU. YOU UNDERSTAND THAT BREITER PLANET HAS NO RESPONSIBILITY WITH RESPECT TO SUCH WARRANTIES OTHER THAN TO TRANSFER THEM TO YOU.

20.   LIMITATION OF LIABILITY.

a.      No Consequential Damages. EACH PARTY’S LIABILITY TO THE OTHER UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT, ACTUAL DAMAGES ONLY. WE BOTH AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES. FOR PURPOSES OF THIS SECTION 20, YOU AGREE THAT ANY REMEDIES SPECIFICALLY PROVIDED FOR IN THIS AGREEMENT CONSTITUTE DIRECT, ACTUAL DAMAGES.

b.      Actual Damages. Neither party’s liability to the other will exceed $2,000,000, including without limitation, damages to your Home or Property during the performance of the Project or resulting from the Project.

EXCEPTING THE OTHER PROVISIONS UNDER THIS HEADING, BREITER PLANET DISCLAIMS AND CUSTOMER WAIVES ALL EXPRESS OR IMPLIED WARRANTIES INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BREITER PLANET SHALL NOT BE LIABLE TO CUSTOMER UNDER THIS WARRANTY IF AN ALLEGED DEFECT IN ANY WORK OR EQUIPMENT WAS CAUSED BY CUSTOMER'S OR ANY THIRD PERSON'S (FOR WHOM BREITER PLANET IS NOT RESPONSIBLE AS PROVIDED HEREIN) MISUSE, NEGLECT, UNAUTHORIZED ATTEMPTS TO REPAIR, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING OR OTHER HAZARD.

 

21.   NOTICE REGARDING PERFORMANCE AND PAYMENT BONDS

The owner or tenant in a home improvement contract has the right to require the contractor to have a performance and payment bond.

 

22.   DEPOSIT REFUND TERMS

IF EITHER YOU OR BREITER PLANET CANCELS THIS AGREEMENT UNDER THE FIRST PARAGRAPH OF SECTION 1 OF THESE GENERAL TERMS AND CONDITIONS, UNDER PARAGRAPH 24(A) OF THESE GENERAL TERMS AND CONDITIONS OR UNDER SECTION 25 OF THESE GENERAL TERMS AND CONDITIONS, YOUR DEPOSIT MINUS ANY DEVELOPMENT COSTS ALREADY INCCURED BY BREITER PLANET PROPERTIES, IF ANY, SHALL BE RETURNED TO YOU WITHIN 10 BUSINESS DAYS. IF YOU CANCEL THIS AGREEMENT PURSUANT TO SECTION 24(B) OF THESE GENERAL TERMS AND CONDITIONS, BREITER PLANET CANCELS THIS AGREEMENT PURSUANT TO THE SECOND PARAGRAPH OF SECTION 1 OF THESE GENERAL TERMS AND CONDITIONS, OR THIS AGREEMENT AUTOMATICALLY TERMINATES PURSUANT TO THE FIRST PARAGRAPH OF SECTION 1 OF THESE GENERAL TERMS AND CONDITIONS, THEN YOU WILL NOT GET YOUR DEPOSIT, IF ANY, BACK.

 

23.   LIST OF DOCUMENTS TO BE INCORPORATED INTO THE CONTRACT.

·        Exhibit 1: Notice of Cancellation (10 Day Right to Cancel)

·        Exhibit 2: Performance Guarantee and Limited Warranty

·        Schedule A (Purchase Order)

·        Change Order Form

·        Solar Operation and Maintenance Guide

 

24.   ADDITIONAL RIGHTS TO CANCEL.

 IN ADDITION TO ANY RIGHTS YOU MAY HAVE TO CANCEL THIS AGREEMENT UNDER SECTION 25 BELOW AND UNDER SECTION 1 OF THESE GENERAL TERMS AND CONDITIONS, YOU MAY ALSO CANCEL THIS AGREEMENT (A) AT NO COST AT ANY TIME PRIOR TO MIDNIGHT OF THE TENTH BUSINESS DAY AFTER THE DATE YOU SIGN THIS AGREEMENT AND (B) AT ANY TIME PRIOR TO COMMENCEMENT OF CONSTRUCTION ON YOUR HOME.

 

25.   NOTICE OF RIGHT TO CANCEL.

YOU MAY CANCEL THIS AGREEMENT AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE YOU SIGN THIS AGREEMENT. SEE THE ATTACHED NOTICE OF CANCELLATION FORM ATTACHED AS EXHIBIT 1 FOR AN EXPLANATION OF THIS RIGHT.

 

By signing below, I agree that Breiter Planet can contact me for telemarketing and informational purposes via call or text using automated technology and/or pre-recorded messages using the phone number(s) I provided that are listed on the first page of this contract. I understand that consent is not a condition of purchase. You may opt-out of this authorization at any time by calling us at: (617) 334-5785 or sending us written notice and mailing it to: Breiter Planet Properties, LLC, Attention: Phone Authorization Opt-Out, 86 Willard Avenue, Seekonk, MA 02771.

 

 

Customer’s Name: Provided in cover sheet on top of Agreement

 

 

Signature: Signed in Quote or Agreed to When Placing Order  Date: Effective Date

Breiter Planet Properties, LLC

 

 

Signature: Signed in Quote or Agreed to When Placing Order   Date: Effective Date

 

EXHIBIT 1 (BREITER PLANET PROPERTIES COPY) NOTICE OF CANCELLATION

STATUTORILY REQUIRED LANGUAGE

Notice of Cancellation

Date of Transaction:

 

You may CANCEL this transaction, without any penalty or obligation, within TEN BUSINESS DAYS from the above date. If you cancel, any property traded in, any payments made by you under the contract or sale and any negotiable instrument executed by you will be returned minus any solar development costs already incurred by Breiter Planet Properties, within TEN DAYS following receipt by the seller (Breiter Planet Properties, LLC) of your cancellation notice, and any security interest arising out of the transaction will be canceled. If you cancel, you must make available to the seller (Breiter Planet Properties, LLC) at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale, or you may, if you wish, comply with the instructions of the seller (Breiter Planet Properties, LLC) regarding the return shipment of the goods at the seller’s (Breiter Planet Properties, LLC) expense and risk.  If you do make the goods available to the seller (Breiter Planet Properties, LLC) and the seller (Breiter Planet Properties, LLC) does not pick them up within 20 days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller (Breiter Planet Properties, LLC), or if you agree to return the goods to the seller (Breiter Planet Properties, LLC) and fail to do so, then you remain liable for performance of all obligations under the contract.

 

To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, or send a telegram to Breiter Planet Properties, LLC, c/o Document Processing, 86 Willard Avenue, Seekonk, MA 02771 NOT LATER THAN MIDNIGHT of the date that is TEN BUSINESS DAYS from the date you signed the Agreement.

 

I,                                               , hereby cancel this transaction on                                            [Date]. Customer’s Signature:

 

Customer’s Signature:

 

 

 

EXHIBIT 1 (CUSTOMER COPY) NOTICE OF CANCELLATION STATUTORILY REQUIRED LANGUAGE

Notice of Cancellation

Date of Transaction:

 

You may CANCEL this transaction, without any penalty or obligation, within TEN BUSINESS DAYS from the above date. If you cancel, any property traded in, any payments made by you under the contract or sale and any negotiable instrument executed by you will be returned minus any solar development costs already incurred by Breiter Planet Properties, within TEN DAYS following receipt by the seller (Breiter Planet Properties, LLC) of your cancellation notice, and any security interest arising out of the transaction will be canceled.  If you cancel, you must make available to the seller (Breiter Planet Properties, LLC) at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale, or you may, if you wish, comply with the instructions of the seller (Breiter Planet Properties, LLC) regarding the return shipment of the goods at the seller’s (Breiter Planet Properties, LLC’s) expense and risk.  If you do make the goods available to the seller (Breiter Planet Properties, LLC) and the seller (Breiter Planet Properties, LLC) does not pick them up within 20 days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller (Breiter Planet Properties, LLC), or if you agree to return the goods to the seller (Breiter Planet Properties, LLC) and fail to do so, then you remain liable for performance of all obligations under the contract.

 

To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice, or any other written notice, or send a telegram to Breiter Planet Properties, LLC, c/o Document Processing, 86 Willard Avenue, Seekonk, MA 02771 NOT LATER THAN MIDNIGHT of the date that is TEN BUSINESS DAYS from the date you signed the Agreement.

 

I,                                               , hereby cancel this transaction on                                            [Date]. Customer’s Signature:

 

Customer’s Signature:

 

 

EXHIBIT 2

 

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:

 

 

 

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.

 

 

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