Solar Services Agreement

Created by:
[Provider.FirstName] [Provider.LastName]

Prepared for:
[Customer.FirstName] [Customer.LastName]

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:

1
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.

2
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.
Make sure that the payment terms are set out. This should state
everything that’s included, as well as all exclusions so that the Customer
knows what extra fees may be applicable.

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

3
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

4
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

5
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

6
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.

7
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.

8
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.

9
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

10
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;

11
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

12
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.
Providers may use third-party subcontractors to deliver certain services.
Make sure that you ask your Provider beforehand if they make use of any
subcontractors and, if so, for which services.
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

13
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.
Once both parties have signed the Agreement, it becomes legally binding.
It’s very diff icult to make changes to these agreements after the fact, so
make sure you take your time and be certain of all the conditions.

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:

[Customer.FirstName]
[Customer.LastName]
Signature
MM / DD / YYYY

14
[Provider.FirstName]
[Provider.LastName]
Signature
MM / DD / YYYY

15