Terms and Conditions OE Optics Monitoring Service
OE Solar Terms and Conditions for our OE Solar Optics Monitoring Service (“Agreement”) is a binding agreement between you (“Client”) and Osceola, Inc. (“OE Solar”), a New Mexico corporation and, together with Client, collectively, the “Parties,” and each a “Party”). This Agreement set forth the terms and conditions under which OE Solar agrees to provide to Client certain solar software monitoring mutually agreed to by the Parties (collectively, the “Services”) and purchased by Client for one or more PV Systems (defined below) owned or leased by Client. By signing your proposal, Licensor is agreeing to be bound by the terms and conditions of this Agreement.
DEFINITIONS
Capitalized terms below or otherwise defined in this Agreement will have the following meanings:
“Affiliate” of any Person means a Person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Person specified.
“Applicable Law” means all applicable laws of any Governmental Authority, including, without limitation, ordinances, judgments, decrees, injunctions, writs and orders or like actions of any Governmental Authority and rules and regulations of any federal, regional, state, county, municipal or other Governmental Authority.
“Force Majeure Event” means any event, condition or circumstance beyond the control of OE Solar and not caused by its failure to comply with Applicable Laws, which, by the exercise of due foresight OE Solar could not reasonably have been expected to avoid, and which by the exercise of due diligence OE Solar without fault or negligence attributable to it is unable to overcome, including, but not limited to, action by a Governmental Authority, failure to obtain or maintain a permit, license, consent or approval (provided that OE Solar has made timely and reasonable commercial efforts to obtain and maintain the same), national or regional third party labor disputes, flood, earthquake, fire, lightning, epidemic, pandemic, war, act of terrorism, riot, civil disturbance or Act of God.
“Governmental Authority” shall mean any national, regional, province, town, city, or municipal
government, whether domestic or foreign, or other administrative, regulatory or judicial body of any of the foregoing.
“Permits” means all governmental or regulatory approvals required for the ownership, maintenance,
operation and removal of each Project.
“Prudent Electrical Practices” means those (a) prudent standards of performance within the residential solar energy electrical generation industry and (b) those practices, methods, acts and equipment, as changed from time to time, that are commonly used to operate solar electric generating equipment of a type and size similar to the PV Systems and in the same geographic region lawfully and with safety, dependability, efficiency and economy. Prudent Electrical Practices are not intended to be limited to the optimum practices, methods or acts to the exclusion of all others, but rather to be a spectrum of good and proper practices, methods and acts.
“PV System” means a photovoltaic system, including photovoltaic panels, racks, wiring and other
electrical devices, conduit, weatherproof housings, hardware, inverter(s), remote monitoring system,
connectors, disconnect, and over current devices.
“PV System Agreement” means any agreement between Client and the manufacturer or installer of the PV System on Client’s property.
“Subcontractor” means any person to whom OE Solar subcontracts any of its obligations under this
Agreement, including the vendors and any person to whom such obligations are further subcontracted.
PV System Services
Subject to the terms and conditions set forth herein, OE Solar shall provide the Services set
forth below throughout the Subscription Period for the fees set forth herein.
Standard of Performance. OE Solar will perform the Services on a subscription basis in compliance with Prudent Electrical Practices, Applicable Law, all Permits held by Client with respect to each PV System, and the applicable terms and conditions of the Client’s Solar Agreement(s), except as otherwise instructed by Client. In the event Client instructs OE Solar not to perform the Services as set forth above, Client will indemnify, defend and hold OE Solar harmless from any claims with respect to such nonconformance or compliance with such Prudent Electrical Practices, Applicable Law, Permits or Solar Agreement. Notwithstanding the foregoing, OE Solar reserves the right to disregard Client instructions in the event OE Solar determines, in its sole and reasonable judgment, that such instructions will violate Applicable Law, Permits, Prudent Electrical Practices or any Solar Agreement terms.
Grant of Access. Client hereby grants to OE Solar and its authorized agents, employees and
Subcontractors access to Client’s online monitoring system and property if necessary, along with any
rights necessary under the applicable Solar Agreements, for the purpose of performing the Services.
Such access right shall automatically expire immediately upon the termination or expiration of this
Agreement.
Maintenance Services Terms: OE Solar will not perform any maintenance services unless directed to by
the Client. OE Solar will always reach out to client via on file phone number and email address to inform the client of any issues that can not be fixed remotely. Client will need to approve work prior to a tech being deployed to Clients Site. Client will be billed at Current Time and Material pricing with materials marked up by 30% for the time spent on site. OE Optics offers 10% off total invoice amount. New Mexico Gross Receipts Tax Applies per law.
Obligations of the Parties: With respect to the maintenance services provided by OE Solar, each Party
agrees as follows: Client will: (i) keep all PV Systems in good repair, good operating condition and
working order (ordinary wear and tear excepted), and in compliance with the manufacturer’s
recommendations, the Solar Agreements, all manufacturers’ warranties, Prudent Electrical Practices and Applicable Law, (ii) properly service all components of the PV Systems following the manufacturer’s written operating and servicing procedures and in accordance with the Solar Agreements. OE Solar will work with Manufacturers on Clients behalf to the extent required, with respect to the PV System equipment in order for OE Solar to perform the Services. As part of the Services, OE Solar will manage any Return Merchandise Authorization (RMA) process with the applicable manufacturer(s) if required for any warranties for equipment within the PV System. Labor will still be billed to customer as Manufactures Warranties do not cover this service. OE Solar will utilize the current Monitoring System provided with the system for measuring the performance of PV System. OE Solar will require access to the current system that is installed. If this can not be provided OE Solar will install a monitoring system that will be billed to the Client and owned by the Client. If the Client does not have a monitoring system OE Solar will install one and will charge the customer for this initial installation. The monitoring will then be owned by the customer. Any cell connection needed will be billed to the customer for cell service monthly. properly maintain its proprietary monitoring software and equipment used in connection with providing the maintenance Services, if any, OE Solar will collect data and analytical Services to identify low and non-performing PV Systems. This includes defining the expected performance for each PV System based on actual weather. Reports: In connection with its monitoring Services, OE Solar will provide to Client notice of any issues or failures of the Client’s PV System that constitute a breach of, or a default under, any Solar Agreement of the Client. Such notice will include the nature and length of time of such issue or failure. OE Solar will recommend any action that the Client should take respect thereto and will take such action upon instruction from Client.
Access to Data and Meters: Throughout the Subscription Period, and subject to any confidentiality
obligation owed to any third party and/or any restrictions on the disclosure of information:
(a)Client shall allow OE Solar access to all data, including electricity production data (“System Data”)
from all PV System equipment and meters to the extent available to, and permitted by Applicable Law and Solar Agreements. OE Solar shall only use and/or disseminate such System Data and other personal information or other data in accordance with OE Solar’s Privacy Policy, to the extent required to enable it to perform the Services and in compliance with Applicable Law. All System Data, records and reports generated in connection with the Services shall be treated by OE Solar and its Subcontractors as the exclusive property of Client and OE Solar and its Subcontractors will use such System Data or other data only as necessary to perform and provide the Services. Upon request by Client at any time, OE Solar will deliver to Client a copy of any System data in electronic format as exists on the date of the request by Client. Notwithstanding the foregoing, OE Solar may use System Data to improve the performance processes and software systems of OE Solar. (b)During the Subscription Period, Client agrees to assist OE Solar to improve on the quality of the System Data exchanged and the method of such exchange for improving the performance of the PV Systems and the Services.
FEES AND PAYMENT
Client will pay OE Solar then current monthly subscription fee published by OE Solar for the
Services (“Subscription Fee”). Client will further pay any expenses or fees not covered by the
Subscription Fee for Services as set forth in this Agreement or otherwise agreed to by the Parties
(“Additional Fees and Expenses”). For example, if any equipment within a PV System is out of warranty and Client desires for OE Solar to repair such equipment, such Services will be billed separately by OE Solar to Client.
The Subscription Fee will be charged to your credit card on the specific payment date chosen
by Client. You will be charged monthly via your credit card until you cancel. To use the Services you
must provide a credit card. Use of your credit card is subject to our Privacy Policy. If a payment is not
successfully settled, due to expiration, insufficient funds, or otherwise, we will cancel you from the
program. Following any update, you authorize us to continue to charge the applicable payment method. You can cancel your subscription at any time by writing an email to support@oesolarnm.com with the Subject Line “Cancel my service with OE Optics”, and you will continue to have access to the Services through the end of your billing period. On a monthly basis (or as otherwise specified for the Service) OE Solar will invoice Client for Additional Fees and Expenses. Client will pay invoice within thirty (30) days of the date of each invoice. OE Solar may upon ten (10) days prior written notice to Client, suspend the provision of the Services if any invoice remains unpaid for more than fifteen (15) days following OE Solar’s written notice to Client. This right of suspension will not limit any other of OE Solar’s rights or remedies related to Client’s failure to pay the Subscription Fee or any Additional Fees and Expenses.
All fees are exclusive of, and Client will be responsible for payment of, taxes, levies, duties or
similar local, state, provincial, federal or foreign jurisdiction governmental assessments on the Services, other than taxes imposed on OE Solar’s income. All fees due hereunder will be paid in U.S. Dollars. Annual Subscription Fee Increase. The Subscription Fees are subject to increase annually on each anniversary of the Subscription Period.
TERM AND TERMINATION
Term of Subscriptions. The subscription term of this Agreement will be one year from the acceptance of Client of this Agreement (the “Subscription Period”). The Subscription Period will automatically renew for additional one-year periods, unless either party gives the other written notice of non-renewal at least 30 days before the end of the Subscription Period or the Agreement is otherwise terminated as set forth herein Termination for Convenience. Either party may terminate the Subscription at any time upon notice. Upon termination during a Subscription Period, the Services will continue for the end of the then current month.
Termination for Cause. Should either Party default in the performance of or breach this Agreement and not substantially cure the default or breach thirty (30) days after receipt of written notice by the other Party, then in addition to other remedies set forth herein, the Agreement in its entirety may be
terminated upon notice by the non-defaulting/non-breaching Party. In the event either party ceases its business operations, makes a general assignment for the benefit of creditors, is adjudged insolvent or bankrupt, or becomes insolvent, then the other Party may, at its sole discretion, terminate this Agreement in its entirety immediately upon giving written notice of termination to the other Party.
Effect of Termination. Upon termination for any reason, Client will be entitled to a pro-rata refund for
prepaid fees for the Services not performed as of the date of termination, provided that Client will
remain obligated to pay any Additional Fees and Expenses then due and outstanding. Upon termination or expiration of the Agreement for any reason, OE Solar shall immediately cease to perform the Services.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Representations and Warranties of Client. In addition to the representations and warranties set forth
herein, the Client further represents and warrants the following:
(a) Client possesses all requisite power and authority to enter into and perform this Agreement and
to carry out the transactions contemplated herein.
(b) Client’s execution, delivery and performance of this Agreement constitutes Client’s legal, valid
and binding obligation, enforceable against Client in accordance with its terms.
(c) Except as otherwise contemplated herein, no material consent or approvals are required in
connection with the execution, delivery and performance by Client of this Agreement that have not
been obtained by Client.
(d) The execution, delivery and performance by Client of this Agreement will not violate any
Applicable Law, Solar Agreement, or Permit.
(e) Client will be responsible for providing and maintaining the required connectivity between the
Client’s property to the Internet in order for OE Solar to access the PV System and provide the Services.
Customer agrees that OE Solar will have no liability for, and Client will not be excused from, any of its
obligations under the Agreement as a result of the quality, speed or interruption of the communication lines from the Client’s property to the Internet.
Representations and Warranties of OE Solar. In addition to the representations and warranties set forth herein, the Client further represents and warrants the following:
(a) the Services are subject to additional Limited Warranties provided by OE Solar, which are
located at Limited Warranty (“Limited Warranties”). In the event of any inconsistencies between the
terms and conditions of this Agreement and the terms and conditions of the Limited Warranties, the
terms and conditions of the Limited Warranties shall govern and control.
(b) OE Solar is a corporation duly incorporated and existing in good standing under the laws of the
State of New Mexico.
(c) OE Solar possesses all requisite power and authority to enter into and perform this Agreement
and to carry out the transactions contemplated herein.
(d) OE Solar’s execution, delivery and performance of this Agreement have been duly authorized
and this Agreement has been duly executed and delivered and constitutes OE Solar’s legal, valid and
binding obligation, enforceable against OE Solar in accordance with its terms.
(e) The execution, delivery and performance by OE Solar of this Agreement will not (i) violate any
Applicable Law applicable to OE Solar.
(f) OE Solar has the requisite expertise and sufficiently skilled personnel and resources available to
provide the Services under this Agreement.
DISCLAIMER OF WARRANTY; LIMITATIONS ON LIABILITY
Disclaimer; Limitation of Liability. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN OR THE LIMITED WARRANTIES, THE SERVICES PROVIDED BY OE SOLAR OR ITS SUBCONTRACTORS ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. Damages Exclusion. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOST REVENUE, LOST PROFITS, LOSS OF INCOME, OR LOSS OF BUSINESS ADVANTAGE), WHETHER OR NOT FORESEEABLE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Aggregate Liability Limitation. IN NO EVENT WILL EITHER PARTY’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID BY CLIENT UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST DATE ON WHICH LIABILITY AROSE. THESE LIMITATIONS OF LIABILITY WILL REMAIN IN FULL FORCE AND EFFECT, REGARDLESS OF WHETHER EITHER PARTY’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE ABOVE LIMITATIONS WILL NOT, HOWEVER, LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT. Certain jurisdictions have heightened consumer protection laws that may make certain portions of these Terms inapplicable to you. These provisions are intended to be only as broad and inclusive as is permitted by the laws of your jurisdiction. No provision of these terms shall limit or waive your rights as a consumer under the law of your state of residence. In any event, OE Solar reserves all rights, defenses and permissible limitations under the law of your state or country of residence.
INDEMNIFICATION
Indemnification of OE Solar by Client. Client shall indemnify, defend and hold OE Solar and its
Subcontractors, and its and their respective Affiliates, officers, employees, partners, and agents,
harmless from any losses, damages, liabilities, costs or expenses, including attorneys’ fees and costs of settlement asserted by any third party and arising out of any actual or threatened action, claim, suit, or proceeding in connection with: (i) the initial installation of the PV System at Client’s premises; (ii) Client’s unlawful use of the Services; or (iii) Client’s failure to comply with Applicable Law, its Solar Agreement, or Permit; (iv) Client’s negligence or willful misconduct in connection with its use of the PV System.
FORCE MAJEURE
Force Majeure. If OE Solar is rendered wholly partially unable to perform the Services due to a Force
Majeure Event, OE Solar shall be excused from whatever performance is affected by the Force Majeure Event, provided that:
(a) OE Solar shall, as soon as is reasonably possible after the occurrence of the Force Majeure
Event, give Client written notice describing the particulars of the occurrence and the measures it
proposes to take to overcome the effect of such Force Majeure Event;
(b) the suspension of performance shall be of no greater scope and of no longer duration than is
required by the Force Majeure Event; and
(c) OE Solar shall make all reasonable diligent efforts, including reasonable expenditures, necessary
to mitigate the effects of a Force Majeure Event as they related to the obligations of the OE Solar.
MISCELLANEOUS
Independent Contractors. The Parties acknowledge that OE Solar shall perform its obligations under this Agreement and act at all times as an independent contractor (except as expressly provided herein) and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors, and the Parties expressly disclaim any intention to create a partnership, joint venture, association or other such relationship. Neither Party is granted any right (except as expressly provided herein) on behalf of the other Party to assume or create any obligation or responsibility binding such other Party. None of OE Solar’s employees, Subcontractors or any such Subcontractor’s employees shall be or shall be considered to be employees of Client.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally, by electronic mail transmission or by overnight delivery via a nationally recognized courier or registered or certified mail (return receipt requested), postage prepaid, to the recipient Party at its address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof), and in each case with a copy to follow immediately by electronic mail: ap@oesolarnm.com
Entire Agreement. This Agreement reflects the entire agreement with respect to the matters set forth
herein and supersedes any prior agreements, commitments, drafts, communication, discussions and
understandings, oral or written, with respect thereto.
Further Assurances. The Parties agree to do such further acts and things and execute and deliver such
additional agreements and instruments as the other may reasonably require to consummate, evidence or confirm the agreements contained herein in the matter contemplated hereby.
Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under all applicable laws and regulations. If, however, any provision of this Agreement shall be prohibited by or invalid under any such law or regulation in any jurisdiction, it shall, as to such jurisdiction, be deemed modified to conform to the minimum requirements of such law or regulation, or, if for any reason it is not deemed so modified, it shall be ineffective and invalid only to the extent of such prohibition or invalidity without affecting the remaining provisions of this Agreement, or the validity or effectiveness of such provision in any other jurisdiction.
Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the Client without the prior written approval of OE Solar. OE Solar may assign, sublicense or otherwise transfer this Agreement without the prior written approval of Client, provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement. Any purported assignment in violation of this section will be void. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
Governing Law. This Agreement is governed by the laws of the State of New Mexico, without regard to its conflict of law principles. Any dispute relating to this Agreement or the Services shall be resolved solely in the state or federal courts located in Bernalillo County, New Mexico. Client agrees to waive trial by jury in any such action.
