1.  Terms and Conditions Part of Agreement

These Terms and Conditions form a part of the Proposal and Sales Agreement (the “Proposal”), dated ___________, by and between Fire Mountain Solar, LLC (“FMS”) and _____________________ (“Client”).  The Proposal and all accompanying attachments, together with these Terms and Conditions, constitute the entire agreement between the parties (the “Agreement”).  In the event of any conflict between the Proposal and these Terms and Conditions, the Proposal will govern.  The words “you,” “your,” and similar pronouns refer to Client.  The words “we,” “our,” “us,” and similar pronouns refer to FMS.

2.  Payment of Contract Amount

If any installment under the Proposal (the “Contract Amount”) is not paid when due, you agree to reimburse FMS for any expenses FMS incurs, including reasonable attorney’s fees, in the collection of the same.  In addition, you will pay FMS a fee in the amount of one and one-half percent (1.5%) of any outstanding balance more than thirty (30) days past due, or if that fee exceeds the maximum fee permitted by applicable law, then at the highest fee permitted by law.  Failure to make timely payment of any installment will entitle us to terminate the Agreement and to pursue other remedies against you to collect the unpaid amount.  Such termination will not, however, relieve you of your payment obligations hereunder.

3.  Additional Costs and Expenses

In addition to the Contract Amount, Client shall be responsible for the following additional costs and expenses:

     (a)  Unless otherwise expressly set forth in the Agreement, Client shall be solely responsible for all costs associated with drywall repair to finished walls and ceilings due to FMS’ required access for wire and conduit runs.  Client, at its sole discretion, may arrange for such finish work to be sub-contracted through FMS or through another third party of Client’s choosing.

     (b)  Unless otherwise agreed to in writing, FMS will obtain an electrical permit as required by the local jurisdiction.  Additional permits and accompanying engineering services that become necessary shall be obtained by FMS, the costs of which shall be billed to Client at cost.

     (c)  In the event of unforeseen site conditions or other changes to the original scope of the Proposal, FMS shall present a change order to Client, reflecting any changes in work or price.  FMS shall not perform any work outside of the scope of the original Proposal without receiving a signed change order by Client.

     (d)  In the event that the work is delayed for the reasons set forth in Section 17(b), FMS shall have the right to adjust the Contract Amount to reflect any changes in equipment costs that occur during any period of delay.

4.  Changes to Proposal Specifications

       (a)  It may be necessary to change the proposal specifications in the course of design, materials procurement, or installation. Any such major change in proposal specifications, limited to PV module, inverter, or rack type or size, and layout or location of these components, shall be communicated to Client as soon as the need for such change becomes known, and in writing whenever possible. Approval of the described changes is, by default, approved by Client unless expressly disapproved by Client within 12 hours of being informed of such change by phone, email, or letter.

        All change orders will become an extra charge above the price set forth in this Agreement.  All agreements by the Parties for changes must be approved by the FMS representative who signed this agreement. FMS’s employees and subcontractor’s have no authority to approve changes requested by client.

       (b)  Any change in proposal specification that will affect the projected system performance or rated output negatively by more than two and one-half percent (2.5%) will be communicated to, and must be approved by, Client in writing (email or letter).

       (c)   All other changes in proposal specifications are at the sole discretion of FMS.

5.  Site Preparation

Client agrees the site will be ready for the work under this Agreement on the date/time scheduled for commencement. Failure to comply may result in delays which shall not be responsibility of FMS.

6.  Commencement and Completion

Work will commence as soon as scheduling allows after the contract is signed by both Parties. FMS will proceed with the work in a commercially expeditious manner unless delayed by unforeseen circumstances such as unavailability of labor and materials, restricted access to the work site, delays in communication with the Client or architect, inclement weather, insufficient drawings, changes in work, or other causes beyond FMS’s control.

7.  Inspection and Discovery of Non-Conforming Work.  

Client shall exercise reasonable and timely diligence in discovering and reporting all materials and labor which are not satisfactory to Client, to avoid trouble and cost to FMS in correcting any defect; objections shall be deemed to have been waived if the same was reasonably discoverable upon physical inspection of the premises by the Client.

8.  Correction of Nonconforming Work

Upon completion or at any time during the Warranty Period, Client shall prepare a written work list specifying, in detail, the nature of the defective or incomplete work, if any. FMS shall have a reasonable access to the premises examine the claimed defects and a commercially reasonable time to make corrections. Claims must be submitted within 30 days of discovery of nonconforming work. Client shall not contract for completion of the work list nor claim a back charge for completing work list items unless FMS has been given reasonable opportunity to correct the work. If Client performs the correction work or contracts for same without providing the opportunity to make corrections, then Client agrees to accept all work as is and hereby waives any claim against FMS. FMS shall be entitled to the balance owed as if correction had occurred.

9.  Insurance

Unless otherwise provided, Client will purchase and maintain property insurance upon the project to the full insurable value thereof commencing not later than delivery of components to site.

10.  Retention of Title

The Goods shall remain the sole and absolute property of FMS as legal and equitable owners until the Clients have paid FMS in full for all of the Goods and all other goods and services the subject of any other contract with FMS.  If the Client defaults in payment or if, for any other reason, FMS treats this contract as discharged, FMS may repossess the Goods and the Client hereby irrevocably licenses FMS to enter into the Client’s premises for the purpose of such repossession.  FMS shall be entitled, where the Goods have been fixed or attached to any other product, to detach the Goods in order to recover possession of them.  Such delivery or retaking of possession shall be without prejudice to the obligation of the Clients to purchase the Goods.

11.  Limited Warranty.  

Fire Mountain Solar LLC warrants the system will operate in compliance with safety and performance standards established by the National Electric Code, the Institute of Electrical and Electronics Engineers, and, Underwriters Laboratories.  In addition to the foregoing, the system will meet all local requirements for net energy metering and production metering.

Fire Mountain Solar LLC also warrants the installation services of FMS related to the system owner’s photovoltaic modules, inverters and other components installed by FMS (collectively, the “solar system”) to be free from defects in the installation services under normal application, use, and service conditions for a period of five (5) years from the date of system commissioning.  If the solar system malfunctions or becomes inoperable due to defective or improper installation services of FMS during the five-year period of this warranty, FMS will provide the service to determine the cause of the defect and resolve the defect through re-performance of the defective or improper installation services or replacement of a component, as, and to the extent, covered by the manufacturer’s warranty.

All work which has not been performed in a good and workmanlike manner according to the standards in the industry for the area shall be considered non-conforming work. Upon discovery of non-conforming work, Client shall promptly notify FMS in writing of the non-conforming work. Defects that may result in further damage to the premises or which directly affect habitability shall be corrected within three days of notice, if reasonably possible. All other defects shall be corrected within thirty days of notice, unless a longer time is required to obtain materials or specific tradesmen. Client’s remedies under this warranty are limited to repair or replacement of non-conforming work. No warranties are given in respect to equipment or appliances other than those supplied by the manufacturer or subcontracting installer.  Any action to enforce this warranty shall be commenced within four months of expiration. Warranty work will not extend the warranty period. The warranty period commences from the earlier of substantial completion or issuance of a Certificate of Occupancy by the local building authority.

12.  Warranty Exclusions

Defects or failures due to manufacturer’s defects are covered only by the manufacturer’s warranty, unless caused by improper installation by FMS or its subcontractors.  Service to determine the cause of the defect and resolve the defect or replacement of a component due to manufacturer’s defects is warranted for two (2) years, after which it shall be at Client’s expense.  Consult your product documentation for specific limited warranty information provided by the manufacturer.  If, in FMS’s sole judgment, a system has been subject to misuse, neglect or accident, or has been damaged through alteration, failure to follow operation or maintenance instructions, or has been repaired by a party other than FMS, or has been subjected to damage due to forces of nature or other events reasonably beyond FMS’s control, then this warranty shall not be applicable.  FMS does hereby assign a pass-thru to Client of all manufacturers’ warranties for the component parts of the system, to the greatest extent such warranties are assignable.

13.  Disclaimer of Other Warranties

FMS disclaims any liability for consequential or incidental damages suffered as a result of breach of this agreement.  To the extent permitted by Washington law, FMS gives no other warranties, expressed or implied. The warranty given is in lieu of all other warranties or tort or contractual remedies, including any expressed or implied warranties of fitness, merchantability, or habitability otherwise provided for under the laws of the State of Washington. Any warranty work performed by FMS does not extend the warranty period. FMS shall have no obligation to perform warranty work if a person or entity other than the FMS performs or re-performs any work or repairs within the scope of this warranty.  This warranty is transferable, but only if the equipment remains in the originally installed location. This agreement does not confer any benefit to persons not parties to this Agreement, other than permissible warranty transfer. THIS WARRANTY, AS LIMITED HEREIN, PROVIDES YOU WITH SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE.

14.  Communications with FMS

Unless written notice is given to FMS, all communications regarding system installation, including, without limitation, site decisions, changes and scheduling, shall be directly with Client.  No communication between FMS and a third party representing the Client shall occur unless expressly authorized in writing by Client.

15.  Ownership of Plans, Specifications, Photographs, etc.

FMS retains sole and exclusive right and title in and to all designs, design concepts, plans, specifications, methodologies, innovations, formulas, prototypes, techniques and all other works that are conceived, created or developed by FMS, either alone or jointly with others, within the scope of or in connection with the services performed by FMS pursuant to the Agreement, in all forms in which they may exist, whether on paper, magnetic or electronic media or otherwise.  FMS shall have the right to photograph the system, and any part of the installation thereof, and shall have the right to use such photographs in its marketing and advertising materials.

16.  Disclaimers

     (a)  FMS makes no representation or guarantee with respect to the sale of Renewable Energy Credits (“RECs”).  Unless otherwise expressly set forth in the Agreement, FMS may, at its sole discretion, offer to purchase or aggregate RECs from Client or advise Client of alternative options. FMS makes no representation or guarantee with respect to the availability of credits, rebates or other offers by organizations or entities apart from FMS.

     (b)  FMS is not qualified to offer tax advice, and Client is encouraged to consult with its own tax advisors regarding tax credits, filings, or any other matter related to the tax benefits or implications of the system.

     (c)  Stated System performance estimates are based on regional weather conditions and industry standard averages.  Actual performance may vary based on specific climate and site conditions.

17.  Limitation of Liability

     (a)  You agree that FMS will not be liable for any claims, losses, damages, liabilities, costs or expenses related to FMS’ services, except to the extent finally determined by a court of competent jurisdiction to have resulted from the gross negligence or willful misconduct of FMS, and then only to the extent of the Contract Amount paid by you to FMS.  Under no circumstances will FMS be liable for consequential, special, indirect, incidental or punitive damages, losses or expenses.

     (b)  FMS will not be liable for any delays or failure to perform due to causes beyond FMS’ reasonable control, including, without limitation, strikes, weather conditions, other contractors, or acts of God.

     (c)  FMS is a Washington limited liability company, and Client understands and agrees that no member, employee, agent, or other individual acting for or on behalf of FMS, will have any personal liability to Client upon any claim or suit brought in connection with the Agreement or FMS’ services, whether the same is brought under contract, tort or otherwise.

18.  Termination

     (a)  Either party may at any time terminate the Agreement, for convenience, prior to expiration of the Contract Term by giving at least ten (10) days written notice to the other party.

     (b)  Either party may terminate the Agreement upon the material breach of the Agreement by the other party, if such breach is not cured within ten (10) days after written notice thereof to such other party.

     (c)  Upon any termination of the Agreement, Client will pay FMS that portion of the Contract Amount that has become due through the date of termination.  If the Agreement is terminated (i) by Client without cause pursuant to Section 18(a) or (ii) by FMS by reason of Client’s breach of the Agreement pursuant to Section 18(b) or by reason of the events described in Section 17(b), then, in addition to payment of the Contract Amount due through the date of termination, Client will pay FMS for all costs incurred by reason of such termination along with reasonable overhead and profit on work not performed.

     (d)  If not sooner terminated, the Agreement will terminate automatically 20 years from the date of the Agreement.  This provision is added in order to comply with the Rule Against Perpetuities.

19.  Governing Law/Jurisdiction

Any dispute between the Client and FMS shall be decided according to the Mandatory Arbitration Rules of the county where the work was performed, regardless of the amount in dispute. Washington State law shall be applied to this agreement. The arbitrator’s award shall not be limited by MAR rules. The arbitrator shall have authority to determine the amount, validity, and enforceability of a lien. See RCW Chapter 7.06 MAR provisions. The prevailing party shall be awarded reasonable attorney’s fees, expert witness fees, and cost. Venue shall be in Skagit County, at option of FMS.

20.  Severability

If any provision in the Agreement is held to be invalid, illegal or unenforceable in any respect, this will not affect any other provision of the Agreement, but the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained herein, but only to the extent it is invalid, illegal or unenforceable.  Each such provision will be valid, legal and enforceable to the fullest extent allowed by, and will be construed wherever possible as being consistent with, applicable law.

21.  Binding Effect

This agreement will be binding upon and will inure to the benefit of the parties hereto and their respective heirs, legatees, personal representatives and other legal representatives, successors and permitted assigns.  This Agreement may be amended only in writing executed by the parties hereto affected by such amendment.

19.  Miscellaneous

The headings of the sections of the Agreement are merely for convenience of reference and do not impose any obligations and have no substantive significance.  Unless the context otherwise requires, as used in the Agreement, the singular includes the plural, the plural includes the singular, and the masculine gender includes the neuter or feminine gender and vice versa.  This Agreement will be construed without the aid of any canon, custom or rule of law requiring construction against the draftsman, and the Agreement will be construed reasonably to carry out its intent without presumption against or in favor of either party.