Solar Services Agreement Template

This SOLAR SERVICES AGREEMENT (this “Agreement” or “Service Contract”), effective as of (Date) (the Effective Date), is made and entered into between [Customer.FirstName][Customer.LastName] (hereinafter the “Customer”), and [Provider.FirstName][Provider.LastName], a [Provider.State] company with a registered address located at [Provider.StreetAddress][Provider.City][Provider.PostalCode] (hereinafter the “Provider”).

WHEREAS, Customer wishes to increase its use of environmentally friendly energy and to optimize the rates paid for electricity; and

WHEREAS, Customer owns the Property(ies) (as hereafter defined); and

WHEREAS, Provider has offered, at his sole cost and expense, to install, maintain, own, replace, repair, and operate a photovoltaic system at one or more of the Property(ies) and to sell Solar Services (as hereafter defined) produced by the solar photovoltaic system to Customer as provided in and subject to the provisions of this Agreement. Customer is willing to purchase the Solar Services as provided in and subject to the provisions of this Agreement.

NOW, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions

For purposes of this Agreement, the following terms shall have the following meanings:

• “Services” means any and all services specified in the Statement of Work (as defined below).

• “Deliverables” means any tangible property. This includes software media delivered to Customer under this Service Contract, as specified in the Statement of Work.

• “Project” means the combination of Services and Deliverables to be provided under this Agreement.

• “Actual Production” means, for any period, the actual net electrical production, in kWh, of the Systems.

• “Environmental Attributes” means all products of the Systems other than electricity, including but not limited to carbon trading credits, renewable energy credits or certificates, emissions reduction credits, investment credits, tax credits, emissions allowances, green tags, tradable renewable credits, and Green-e® products.

• “Environmental Law” means all laws of any Governmental Authority having jurisdiction over any Property addressing pollution or protection of the environment and all amendments to such laws and all regulations implementing any of the foregoing.

Delivery of Solar Services

Provider shall perform and deliver the Project as outlined in the Statement of Work issued against and subject to the terms and conditions of this Agreement.

The work which Provider shall perform shall be specified in the Statement of Work – attached hereto as Attachment A. The Statement of Work shall specify:

1. A description of Services and Deliverables.

2. A schedule for Deliverables.

3. A price and payment schedule.

Purchase Requirement

Customer agrees to purchase one hundred percent (100%) of the Solar Services produced from and after the Commercial Operation Date until the end of the Term. Customer shall purchase all such Solar Services at the kWh Rate whether or not the Customer can use all such Solar Services. The purchase of Solar Services hereunder includes Customer’s entitlement to all rights, title, and interest to any applicable Net Metering Credits. However, the Purchase of Solar Services hereunder does not include Environmental Attributes, Rebates, Tax Attributes, State Incentives, or any other attributes of ownership of the Systems, the title to which shall rest with the Provider.

Term

The initial Term of this Agreement shall begin on the Effective Date and shall continue to apply for each Site for a period ending on the first December 31, following the (Enter the Date) anniversary of the Commercial Operation Date of the System located on such Site (the “Initial Term”), unless terminated earlier pursuant to this Agreement.

Terms of Payment

Price

Services will be performed on a firm fixed price basis or a time and materials basis, as indicated in the applicable Statement of Work and referred to as “Solar Services Payment.” Any additional or unscheduled Services or Deliverables to be provided by Provider outside of the Statement of Work must be mutually agreed upon in writing and signed by both parties hereto referencing this Agreement.

Payment Schedule

Customer will receive invoices based upon the billing/payment schedule contained in the applicable Statement of Work. Invoices will contain a description of the Services or Deliverables provided. Invoices are due and payable within (Number of days) of Provider’s invoice date. Interest may be charged on all amounts unpaid after (Number of days) days at the annual rate of 1-1 1⁄2% per month or the highest legal rate, whichever is lower. If any invoice is not paid when due, the Provider may suspend the provision of Services and/or Deliverables without liability or penalty until final resolution of the matter.

Title and Security Interest

Provider reserves a purchase money security interest in each Deliverable until the Project Price is paid. Customer agrees to sign, upon request, any documents necessary to protect Provider’s security interest in all Deliverables.

Deliverables

Except for commercial off-the-shelf type products where the license for such products is contained in the applicable Statement of Work, Customer shall have exclusive unlimited ownership rights to all deliverables developed under this Agreement.

All the foregoing shall be deemed to be work made for hire, except as hereafter specified, and belong to Customer, with Customer having the sole right to obtain, hold, and renew, in its own name or for its own benefit, patents, copyrights, registrations, or other appropriate protection.

Customer acknowledges that Provider uses, or may develop hereunder, methods, concepts, code sequences, format, sequence structure, organization, menu command hierarchy, templates, masks, user interface, techniques, program organization, database structuring techniques, and the like (Provider proprietary items) that are proprietary to Provider.

Provider shall install, own and maintain a revenue-grade kilowatt-hour meter (“Meter”) on the Property for the measurement of Actual Production provided to Customer from the Systems on a continuous basis. Provider shall test the Meter in compliance with the manufacturer’s recommendations. Once per calendar year, Customer shall have the right to audit all such Meter data upon reasonable notice, and any such audit shall be at Customer’s sole cost.

Customer shall have a right of access to the Meter at reasonable times and with reasonable prior notice for the purpose of verifying readings and calibrations. If testing of the Meter pursuant to the foregoing indicates that the Meter is in error by more than two percent (2%), then Provider shall promptly repair or replace the Meter. Provider shall make a corresponding adjustment to the records of the amount of Actual Production based on such test results for (a) the actual period of time when such error caused inaccurate meter recordings, if such period can be determined to the mutual satisfaction of the Parties, or (b) if the actual period cannot be so determined, then an estimated period equal to one-half (1/2) of the period from the later of (i) the Date of the last previous test confirming accurate metering or (ii) the date the Meter was placed into service; provided, however, that such estimated period shall in no case exceed one (1) year.

Provider shall be entitled to suspend delivery of Actual Production to the Property for the purpose of testing, maintaining, replacing, and repairing the Systems, and such suspension of service shall not constitute a breach of this Agreement; provided, however, that Provider shall use commercially reasonable efforts to minimize any interruption in service to Customer. Provider shall not have any obligation to reimburse Customer for costs of purchasing energy that would have been produced by the System but for such suspension, provided, however, that Provider shall remain responsible for the Minimum Output Guarantee.

Provider shall not be responsible for any Hazardous Materials encountered at the Site which were not introduced to the Site by Provider (“Customer Hazardous Materials”). Customer shall indemnify and hold harmless Provider from any costs or expenses (including reasonable attorneys’ fees) incurred by Provider due to the presence of Customer Hazardous Materials on the Site. Upon encountering any materials not previously disclosed to Provider that Provider suspects may constitute Customer Hazardous Materials, Provider may suspend work in the affected area until Customer remediates such materials as provided below. Any such suspension shall act to toll day for the day any deadline applicable to Provider hereunder and to Provider’s suppliers and contractors under their respective arrangements with Provider.

During the Term, Customer shall make electricity available to Provider at no charge from the Local Electric Utility service at the Property for constructing, installing, repairing, maintaining, and removing the Systems, and otherwise to meet parasitic load during System non-generation periods.

The System shall be interconnected with the Customer’s electrical system at each Site, and the utility grid will be connected. The Provider will comply with the Local Electric Utility’s interconnection and Net Metering requirements. Provider, with Customer’s cooperation and assistance, shall manage application for all necessary approvals from the Local Electric Utility, including submission of applications for Interconnection and Net Metering Agreements required for interconnection of the System and to deliver Net Metering Credits to the Customer’s electric accounts. Provider shall be responsible for all costs associated with the electrical interconnection (including metering) of each Site to the Local Electric Utility.

At any time that electric production from the System is greater than Customer’s requirements at such time, Customer shall nevertheless pay Provider for all of the electricity produced by the System at the rates and in the manner provided in this Agreement so long as, and to the extent:

(i) Provider has arranged for Customer to obtain all necessary Interconnection Agreements and Net Metering Agreements required to deliver Net Metering Credits to the Customer’s electric accounts in accordance with local regulations; and

(ii) Provider has designed, constructed, and is operating each System so such System qualifies (or would qualify), pursuant to Applicable Law, for Net Metering Credits. Customer shall be permitted to retain any credits or payments from the Local Electric Utility that may be available under Net Metering or similar programs, excluding any such credits or payments to which Provider is entitled pursuant to this Agreement.

Customer acknowledges and understands that solar power is an intermittent resource and that the output of the Systems, which is dependent on the sun and other factors, will constantly vary and that no particular amount of output from the Systems is guaranteed in amount or time of delivery, except for the Minimum Output Guarantee set forth in this Agreement.

The estimated annual production for the Systems for each year of the Term (the “Estimated Annual Production”) is attached as Exhibit A.

In the event Provider does not meet eighty-five percent (85%) of the Estimated Annual Production, Provider shall promptly generate as-built weather-adjusted PVSyst Report for the Systems for such year, which accounts for actual weather data from such year, and Provider shall promptly revise the Estimated Annual Production for such year based on the as-built weather adjusted PVSyst Report for the year (the “Weather Adjusted Estimated Annual Production”). Provider shall furnish such as-built weather-adjusted PVSyst Report and Weather Adjusted Estimated Annual Production to Customer by no later than sixty (60) days after the conclusion of the applicable year. Notwithstanding anything herein to the contrary, Provider guarantees that the Systems shall produce not less than eighty-five percent (85%) of the applicable Weather Adjusted Estimated Annual Production measured on a rolling, three-year, cumulative basis (the “Minimum Output Guarantee).

Beginning on the third anniversary of the Commercial Operation Date of the Systems, Provider shall calculate and notify Customer in writing of any Energy Shortfall Amount (as defined below) due to Customer in the next invoice. Provider shall, within (30) Business Days of notifying Customer, credit to the Customer the Energy Shortfall Amount.

For each anniversary of the Commercial Operation Date beginning on the third anniversary of such Date, if the actual output of the Systems for the prior three years (the “Actual System Output”) does not equal or exceed the Minimum Output Guarantee for such three-year period, in its next invoice(s) to Customer (and in the final invoice for any credit owed for the final year of the Term or any Renewal Term), Provider shall credit Customer an amount equal to the product of (a) the lesser of (i) the positive difference, if any, of the average price per kWh for energy provided by the Local Electric Utility during such three-Contract Year period minus the applicable kWh Rate hereunder, or (ii) the applicable kWh Rate hereunder, multiplied by (b) the difference between the Actual System Output for such three-year period and the Minimum Output Guarantee for such three-year period (“Energy Shortfall Amount”).

For the avoidance of doubt, this section shall continue to apply throughout any Renewal Term. Any failure of the Provider to satisfy the Minimum Output Guarantee under this section shall not constitute a Provider Default.

Provider shall install a performance monitoring system, which monitoring system shall, at minimum, meet the requirements for reporting actual production of electricity to the Local Electric Utility and any appropriate state or regional agency. Such a system shall be more particularly described in Schedule 2 and may include a state-of-the-art remote data acquisition system (DAS) designed to gather and record system parameters as well as weather-related parameters, including power, sunlight, wind speed, and air temperature from a local area weather station.

It is agreed that these Provider proprietary items shall remain the sole and exclusive property of the Provider. Provider grants Customer a perpetual, non-exclusive, paid-up license to use Provider proprietary items subject to the following:

1. Customer may use Provider’s proprietary items solely in connection with the products purchased hereunder for the purpose for which those products were originally purchased.

2. Customer may not transfer, sell, or otherwise dispose of any Provider proprietary items without the prior written consent of the Provider.

3. This license gives no title or ownership rights in Provider proprietary items or related intellectual property to Customer.

4. If software source code is delivered to Customer under this license, Customer agrees to keep the source code strictly confidential in accordance with this Agreement. If software object code is delivered, Customer will not copy or change the software or subject the software to any process intended to create computer source code from Provider proprietary items.

5. Customer agrees to retain or reproduce on all copies of any Provider proprietary items, all copyright notices and other proprietary legends, and all trademarks or service marks of Provider or any third party.

6. Customer will have no rights to assign or sell the license granted herein to others.

7. If Customer orders any commercial off-the-shelf type products, a separate licensing agreement shall be negotiated and shall become part of the applicable Statement of Work.

8. Customer grants Provider a perpetual, non-exclusive, paid-up license to use all portions of the deliverables first developed by Provider during the performance of this Agreement, not to include content or any material provided to Provider by Customer.

Acceptance

The Deliverables, if any, shall be deemed accepted by Customer upon completion of the following acceptance test:

1. Immediately upon receipt of said Deliverables, Customer shall promptly perform testing of the Deliverables to confirm that the Deliverables perform in accordance with the documentation or other standards applicable thereto as set forth in the Statement of Work.

2. Customer shall either promptly provide Provider with written acceptance of the Deliverables or deliver to Provider a detailed written statement of nonconformities to be corrected prior to Customer’s acceptance of the Deliverables. Unless otherwise agreed to in writing by the parties, Provider will redeliver corrected Deliverables to Customer within a reasonable amount of time after receipt of such statement of non-conformities.

3. Following the re-delivery of corrected Deliverables, a new acceptance test shall be immediately commenced by the Customer. Any such written statement of nonconformities shall provide sufficient detail to enable the Provider to remedy the failure to conform to the Completion Criteria.

If Customer fails to provide a written acceptance or a written statement of nonconformities within five (5) days of initial receipt of said Deliverables or such other mutually acceptable period as defined in the applicable Statement of Work, or within five (5) days of re-delivery of said corrected Deliverables or such other mutually acceptable period, the Deliverables shall be deemed immediately accepted by Customer.

Warranties and Remedies

1. Provider warrants deliverable functionality substantially as defined in the Statement of Work for a period of (Number of days) days following final delivery.

2. Provider warrants that with respect to any Deliverable assigned by Provider to Customer that Provider has the right to transfer title to Customer.

3. Provider further warrants that to its knowledge, the Deliverables do not infringe any intellectual property right held by a third party.

4. Customer’s sole and exclusive remedy and Provider’s only obligation for breach of the warranty hereunder will be, at Provider’s option, to correct any material errors in the provision of Services or to replace or repair Deliverables which do not conform to the warranty.

In order for Customer to exercise this remedy, Customer must give Provider written notice of such non-conformity within the warranty period, and Provider must determine that any non-conformity did not arise due to any cause specified below.

Provider shall be given free and full access to deliverables to make corrections, and Customer shall promptly inform Provider of any changes in the location of Deliverables during the warranty period. If this remedy is adjudged to have failed of its essential purpose, Provider’s total liability will be to refund the price paid to Provider by Customer for the nonconforming Deliverables.

The remedy provided by Provider for breach of warranty does not include the following, which may be provided, at Provider’s sole option, at Provider’s then-current time and materials rates:

4.1. Repair of damage to Deliverables caused by Customer during unpacking.

4.2. Repair of damage caused by events beyond the Provider’s reasonable control.

4.3. Repair of damage caused by Customer’s improper installation, relocation, or rearrangement of Deliverables.

Except for the warranties stated in this Section, Provider DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SERVICES AND DELIVERABLES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST NON-INFRINGEMENT.

Provider expressly does not warrant that the operation of Deliverables, which are software, shall be uninterrupted or error-free; or that Deliverables will operate on any system, or with any software, other than the system with which the Provider tested such Deliverables. The Provider does not warrant any third-party software development tools. Provider does not warrant the accuracy of any technical or subject matter content of the courseware or software that is based upon information or direction provided by Customer.

Limitation of Liability

The total liability of Provider to Customer, from any cause whatsoever, will be limited to the lesser of Customer’s actual damages or the Project price paid to Provider for those Services and Deliverables in a project that is the subject of Customer’s claim.

In no event will either party be liable for SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, including but not limited to loss of profits, revenues, data or power, damage to or loss of the use of products, damage to property, claims of third parties, including personal injury or death, suffered as a result of the provision of Services or use of Deliverables.

All claims against Provider must be brought within one (1) year after the cause of action arises, and Customer waives any statute of limitations which might apply by operation of law or otherwise.

Indemnification

Customer shall defend, indemnify, and save Provider harmless, at Customer’s own expense, against any action or suit brought for any loss, damage, expense, or liability that may result by reason of an infringement of any patent, trademark, copyright, or trade secret based upon the normal and intended use of the Deliverables furnished to Provider hereunder.

Should any of the Deliverables furnished to Provider hereunder become the subject of a claim of any infringement of a patent, trademark, copyright, or trade secret, Customer shall, at its option and expense, deliver non-infringing material, change the material so that it becomes non-infringing, or procure for Provider the right to continue using Customer’s infringing material.

Customer agrees to indemnify and hold Provider harmless against all claims, liabilities, demands, damages, or expenses (including attorneys’ fees and expenses) arising out of or in connection with Customer’s use of the Deliverables.

Force Majeure

Neither party shall be liable for failure to perform, nor be deemed to be in default, under this Agreement for any delay or failure in performance resulting from causes beyond its reasonable control, including but not limited to failure of performance by the other party, acts of State or governmental authorities, acts of terrorism, natural catastrophe, fire, storm, flood, earthquake, riot, insurrection, civil disturbance, sabotage, embargo, blockade, acts of war, or power failure. In the event of such delay, the date of delivery or time of completion will be extended by a period of time reasonably necessary to overcome the effect of any such delay.

Termination

Customer reserves the right to terminate a Project in whole or in part upon (Number of days) days written notice to Provider. In the event the Project is terminated by Customer prior to completion, Provider shall use its best efforts to conclude or transfer the Project, as directed by Customer.

Provider shall not undertake further work, incur additional expenses, or enter into further commitments with regard to the Project after receiving such notice of termination from Customer, except as mutually agreed upon by the parties. In the event of termination of a

Project as described above, Provider shall be entitled to compensation as follows:

1. All payments due and owing under this Agreement at the time of Provider’s receipt of the written notice of termination for work completed and in progress;

2. Reimbursement for any non-cancelable services and commitments entered into by Provider, in connection with the Project being terminated, provided Provider provides Customer with documentation of completion of work or expenses incurred.

Termination of the Project shall not affect either party’s obligations in connection with any other ongoing Projects, and the rights and obligations of all non-terminating parties to the Agreement shall remain in full force and effect.

Failure by either party to comply in any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured within (Number of days) days after receipt of such notice, the notifying party shall be entitled to terminate this Agreement by giving notice of such termination to take effect immediately.

The right of either party to terminate this Service Contract, as herein provided, shall not be affected in any way by its waiver of, or failure to take action with respect to, any previous default.

Delay or Suspension of Work

If Customer acts or failure to act causes Provider to delay or suspend the performance of Services, the Provider and Customer will mutually agree to one of the following remedies:

1. Provider will use reasonable efforts to continue performance as practicable under the circumstances, and Customer will continue to make all scheduled payments; or

2. Provider will re-assign personnel to extend Provider’s work schedule without liability, and Customer will pay all additional costs, if any.

Notwithstanding the above, Provider shall have the right to invoice Customer for any work performed to Date of suspension.

Confidentiality

Provider and Customer acknowledge that during the course of the performance of a Project, information of a confidential nature may be disclosed between the parties. Such information, excluding the Deliverables and any other information incident to the Deliverables that a party could reasonably be expected to be provided to the other party as contemplated hereunder, shall be considered confidential information (“Confidential Information”).

Neither party has the right to disclose the Confidential Information of the other, in whole or in part, to any third party. Neither party will make use of the Confidential Information of the other for its own or a third party’s benefit or in any way use such Confidential Information other than for the purposes of performance of this Agreement without the prior written consent of the disclosing party. Each party agrees to take all reasonable steps to protect the other’s Confidential Information from unauthorized use and/or disclosure.

The parties agree not to copy, in whole or in part, any Confidential Information nor change the same in any way without prior written consent from the other party. Neither party will be liable to the other for the disclosure of Confidential Information if, as shown by clear and convincing evidence, the Confidential Information:

(a) is generally known to the public at the time of disclosure by the disclosing party; or

(b) becomes generally known to the public through no fault of the receiving party; or

(c) was lawfully in the possession of the receiving party prior to signing this Agreement, or

(d) is subject to applicable United States laws or a valid court order requiring disclosure of such Confidential Information.

In any judicial proceeding, it will be presumed that the Confidential Information in question constitutes protectable trade secrets of the disclosing party. The receiving party shall bear the burden of proving that the Confidential Information was publicly or rightfully known or disclosed.

Publicity

Provider may use the Customer’s name or mark and identify the Customer as a client. Provider may issue a press release containing Customer’s name related to any award under this Agreement.

Neither party will use the other party’s name or marks, refer to or identify the other party for any other reason, except as established in this section, without the other party’s written approval. Any approval required under this Section shall not be unreasonably withheld or delayed by either party.

Subcontracting

Provider may, at its option, subcontract work under a Statement of Work. However, the Provider’s use of sub-providers shall not affect its responsibilities under the applicable Statement of Work. Moreover, the Provider shall be fully responsible for work done by its sub-providers within the scope of the applicable Statement of Work as it is for work done by its own employees.

Provider shall have written Agreement (s) with its sub-providers that contain, at a minimum, clauses that are the same as or comparable to the sections of this Agreement regarding ownership rights and confidentiality of Customer’s materials.

General Terms

a. This Service Contract shall be deemed to have been made, executed, and delivered in the State of (State) and shall be construed in accordance with the laws of the State of (State).

b. Notices to be given by either party under this Agreement shall be sent by certified mail, express overnight delivery, or telecopy to the attention of the other party at the addresses of the parties as first set forth above.

c. The invalidity or unenforceability, in whole or in part, of any provision in this Agreement shall not affect in any way the rest of the provisions herein. This Agreement may not be assigned by the Customer without Provider’s consent.

d. This Agreement, together with any other materials referenced in or expressly made a part of the Agreement, constitutes the final and entire Agreement between Provider and Customer and supersedes all prior and contemporary agreements, oral or written.

e. The Parties hereto agree that facsimile signatures shall be as effective as originals. This Agreement may be executed via facsimile in any number of counterparts, all of which, taken together, shall constitute one and the same Agreement.

In Witness whereof, this Agreement is duly executed by the duly authorized representatives of the parties as set forth below: