Terms and Conditions – Off-Grid Installations

1. SCHEDULING

Fire Mountain Solar, LLC (“FMS”) will expeditiously complete the work, subject to availability of materials, ability to obtain the quality and quantity of materials and/or equipment to perform its work, availability of adequate sewer, water, electricity, gas or any utility service, restricted access to the worksite, delays in communications with Customer or their representatives, unforeseen site conditions, inclement weather, changes in the work, lack of timely receipt of payment from Customer, or other causes beyond FMS’s control. FMS shall be entitled to additional compensation if there are scheduling changes not caused by FMS, including but not limited to: (1) Customer directs FMS to proceed with work and for whatever reason the site is not ready for FMS; (2) FMS is forced to suspend performance of its work, however temporary the suspension may be; and/or (3) FMS is directed to perform work out of normal sequence.

2. PAYMENT

Payment for each invoice is due to FMS no later than ten (10) days after the date on the invoice.  If a deposit is required, the deposit shall be credited to Customer upon the final invoice to Customer.  Unless otherwise agreed upon in writing, Customer shall not be entitled to withhold any retainage or retention from progress payments to FMS.  Any accrued balance owing and unpaid to FMS, regardless of whether the amount in dispute is liquidated or unliquidated, shall bear interest at 1.5% per month from the date payment is due.

3. CHANGES IN THE WORK

Any requested changes, whether it be scope of work, the materials used or the design layout, shall be made directly to FMS or to a lead person designated by FMS.  Changes should be reduced to a written change order signed by both Customer and FMS in order to avoid misunderstandings over cost or scope of the change.  Customer shall be obligated to pay FMS at FMS’s hourly rates for time preparing change orders that Customer later decides not to proceed with.  If Customer accelerates the schedule of FMS’s work, Customer shall be obligated to pay for any overtime labor performed by FMS at overtime rates.  Customer may elect to verbally authorize or approve a change order, in which case FMS may proceed as directed by Customer and without a written change order.  Unless a change order is executed in writing with a fixed price, the new work shall be paid for based per the “Cost Plus” formula on page one of this Agreement, regardless of whether the Customer selected the fixed price option for the original contract work. FMS reserves the right to decline a request to perform extra or changed work.

4. CORRECTIONS

Customer shall not repair or replace any alleged defective work of FMS until after FMS is provided with notice and reasonable opportunity to repair or replace any alleged defective work.  If Customer repairs or replaces allegedly defective work without first affording the above-described opportunity to FMS, Customer accepts all work “AS IS” and waives any claim against FMS for Customer’s cost to correct the alleged defective work.  In the unlikely event that Customer remains unsatisfied with FMS’s repair after providing FMS with access and opportunity to repair or replace the alleged defective work as stated above, and Customer chooses to hire a third party to repair or replace the alleged defective work, Customer shall first provide FMS with written notice and reasonable opportunity for FMS to take pictures of FMS’s work at the job site prior to undertaking repair or replacement of the alleged defective work.  Otherwise, any disagreement between Customer and FMS as to the state of FMS’s work when FMS’s services were terminated shall be resolved in favor of FMS and Customer shall be deemed to have accepted all of FMS’s work “AS IS” and waives any claim against FMS for Customer’s cost to repair or replace the alleged defective work.

5. PUNCH LIST

At such time that FMS determines that the work is substantially complete, FMS shall notify Customer of substantial completion. Customer may review the work performed by FMS and identify in writing any items that Customer believes should be corrected or completed.  This is called a punch list.  There shall be no more than one punch list.  The punch list shall be signed and dated by Customer and FMS.  FMS shall complete the punch list items for which FMS is responsible.  Upon FMS’s completion and/or correction of the work identified on Customer’s single punch list, the final payment shall be paid within five days to FMS.

6. WARRANTY

FMS warrants that its labor will meet industry standards.  FMS will correct any of its work that does not comply with its warranty, subject to the conditions and limitations listed below.  Alternatively, FMS may hire another company to perform FMS’s warranty work.  The decision as to whether FMS or another company performs FMS’s warranty work shall be made exclusively by FMS. If Customer or its agent repairs or replaces FMS’s work, Customer shall not be entitled to any reimbursement from FMS.

1. ONE-YEAR PERIOD. FMS’s warranty expires one year after: (1) the day FMS’s scope of work is substantially completed, (2) the last day that FMS performs work at the project (repair work and warranty work does not count) or (3) the date of FMS’s final invoice to Customer, whichever occurs first.  Any warranty work performed by FMS or its agent shall not extend the warranty period.
2. NOTICE PROCEDURE. FMS must be given written notice of a warranty claim before the one-year warranty period expires. No lawsuit may be filed for any warranty claim that is not delivered in writing to FMS before the one-year warranty period expires.
3. FULL PAYMENT AS CONDITION PRECEDENT. Full payment of FMS’s final invoice within 30 days of the date on the final invoice is a condition precedent to the operation of FMS’s warranty.  If Customer disputes FMS’s final invoice in good faith and Customer desires to not fully pay FMS’s final invoice, but desires to have the warranty, then Customer shall deposit the unpaid balance with a third party mutually agreed upon in writing between the parties to remain there until written agreement between the parties or the order of a court of competent jurisdiction.  If Customer does not pay the full balance of the final invoice to FMS or deposit said funds in the manner described within 30 days after the date of FMS’s final invoice, then Contractor’s warranty is null and void and Customer forfeits any breach of warranty claim that Customer might otherwise have.    
4. MANUFACTURER’S WARRANTY. Full payment of FMS’s final invoice within 30 days of the date on the final invoice is a condition precedent to the operation of FMS’s warranty.  If Customer disputes FMS’s final invoice in good faith and Customer desires to not fully pay FMS’s final invoice, but desires to have the warranty, then Customer shall deposit the unpaid balance with a third party mutually agreed upon in writing between the parties to remain there until written agreement between the parties or the order of a court of competent jurisdiction.  If Customer does not pay the full balance of the final invoice to FMS or deposit said funds in the manner described within 30 days after the date of FMS’s final invoice, then Contractor’s warranty is null and void and Customer forfeits any breach of warranty claim that Customer might otherwise have.
5. EXCLUSIONS. 1. Wireless setup and online monitoring connection and service are excluded from our scope of work and this warranty. 2. Rental cost of man-lift if required to access solar array and/or inverters safely. Cost of rental will be billed to client.
6. VOIDING OF WARRANTY. Fire Mountain Solar’s warranty shall be null and void if the renewable energy system is modified, repaired or serviced by other than FMS or if FMS’ approved and suggested maintenance procedures are not followed.

7. NO LIABILITY ITEMS

FMS shall not be responsible or liable to Customer for any of the following items:

1. Suitability or function of materials and products specified by Customer (whether or not installed by FMS)
2. Suitability or function of materials and products supplied by Customer (whether or not installed by FMS)
3. Suitability, function or safeness of Customer’s existing equipment (whether or not connected to or otherwise utilized with equipment and products supplied and/or installed by FMS)
4. Suitability or function of materials and products installed or worked on by another contractor.
5. Safeness or function of design(s) furnished by Customer.
6. Damage or loss caused by chemical, biological or toxic agents or elements that may be part of any building material utilized by FMS.
7. Microorganisms, fungus, wet rot, dry rot, soft rot, rotting of any kind, mold, mildew, vermin, termites, insects, rodents, birds, corrosion, rust, radon, radiation, formaldehyde, asbestos, any solid liquid or gaseous pollutant, contaminant, toxin, irritant or carcinogenic substance, and electromagnetic field or emission, including any claim of health risk or uninhabitability based on any of the foregoing.
8. Discolorations due to the elements, light, rain runoff, weathering, leaching of salts, bleaching or normal wear and tear.
9. FMS will not inspect or test for the existence of hazardous substances or materials. FMS assumes no responsibility for exposing, disturbing, or otherwise causing any damage as a consequence of FMS’s work with regard to hazardous substances or materials.
10. FMS is not liable for property damages caused by FMS in the normal course of FMS’s work due to Customer’s property not being sufficiently stable, sturdy or durable. For example, if FMS uses a standard sized lift and the weight of the lift cracks Customer’s concrete, FMS shall not be liable.
11. Problems caused by improper care or maintenance including failure to follow FMS’s or the manufacturer’s maintenance recommendations and failure to maintain proper environmental conditions, including proper temperatures and humidity levels.
12. Damages for Customer not obtaining an incentive, rate, rebate or tax credit from the IRS or public utility for installation or use of a solar product. Customer is advised to consult with a tax advisor, accountant or other professional for qualifying for incentives, rates, rebates and/or tax credits.

8. UNFORSEEN SITE CONDITIONS

This Agreement and contract price is based on the assumptions that: (1) there are no physical conditions at the site differing from those ordinarily encountered and generally recognized as inhering in work of the character provided for in this Agreement; (2) there are no conditions or occurrences at the site that will impede or delay FMS in performance of its scope of work; and (3) the foundation, structural support and electrical system are all proper and suitable for FMS’s scope of work; and (4) all conditions in the premises comply with the building code. If any of these assumptions turns out to be incorrect , Customer shall be responsible to fairly compensate FMS for all additation work performed by FMS that is necessary to complete FMS’s original scope of work.  Customer shall inform FMS of the exact location of any items not visible to FMS that affect FMS’s work prior to the time of contract execution.

9. GROUND MOUNT SYSTEMS

Washington law requires that all ground mount systems be surrounded by a fence.  The main purpose of this requirement is to prevent someone from accessing the ground mount system from underneath and touching the exposed electrical terminals.  The cost of fencing is the Customer’s responsibility.  If FMS installs a ground mount system, FMS will attempt to level the ground afterwards, but FMS does not guarantee that it will be perfectly level.

10. DRYWALL REPAIRS

FMS may perform wire and conduit runs.  This typically results in damage to the drywall, including walls and ceilings.  This damage is expected to occur and Customer shall bear the cost of its repair.  Customer may either contract with FMS to perform the drywall repairs or Customer may contract with another party to do so.

11. BUILDING CODES AND PERMITS

FMS will obtain an electrical permit for the project. Any additional permit that might be necessary shall be obtained by FMS and FMS shall be reimbursed for this cost by Customer.  In the event that a building department or other government agency requires additional work to be performed, or in the event that FMS uncovers or discovers defects or problems in the existing structure which should be corrected to conform to safety requirements or standard construction practices, FMS will advise Customer of any changes in the required work and proceed to perform such changes per the Change Order section of this Agreement.  If a building permit is required for this project, FMS will not commence work until a building permit is secured regardless of which party is responsible for securing the building permit.

12. WORK OF CUSTOMER AND OTHERS

Customer shall not perform any work at the project within the scope of this Agreement until after FMS has finished its work and has been paid in full. Customer shall be responsible for all additional costs incurred by FMS resulting from the work of Customer.  FMS is not responsible for any work performed or materials supplied by Customer or other persons or companies hired by Customer.  As stated in the Warranty Section, if anyone other than FMS performs or re-performs any of FMS’s work, then FMS shall be relieved of its obligations under this warranty and Customer shall be deemed to have waived the benefits of this warranty.

13. OWNERSHIP OF PLANS, SPECIFICATIONS, PHOTOGRAPHS, ETC.

FMS shall retain 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 concerning this project, 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.

14. NO TRANSFER OR ASSIGNMENT

This contract, including the warranty, may not be assigned by either party to any other person or company without the express written and signed consent of the other party. This prohibition of assignment applies not only to the assignment of rights to compel performance but also to the assignment of any claim or cause of action, including but not limited to claims for breach of contract, breach of warranty, tort and indemnification.

15. TERMINATION

If Customer terminates this Agreement without cause prior to completion of FMS’s work, then in addition to any other damages to which FMS may be entitled, FMS shall be entitled to its lost profits, which the parties agree shall be a liquidated sum in the amount of ten percent of the portion of the work that has not been completed at the time of termination.  For purpose of the preceding sentence, “cause” means that FMS has materially breached the contract.  FMS may terminate this Agreement at any time and for any reason upon two-day written notice to Customer, in which case FMS shall be entitled to payment for work performed through the date of termination.

16. LIMITATION OF REMEDIES AND LIABILITY

FMS shall not be liable for consequential damages, including but not limited to damages incurred by Customer for delays, loss of income or profit, financing, storage, transportation, rental, food, reputation or investigation expenses relating to repair, or any other costs due to loss of use, inconvenience or annoyance.  FMS’s maximum liability to Customer for all damages, including defects, loss, liability and injury and attorney fees and costs arising therefrom (hereinafter in this Section, “Damages”) shall not exceed the amount of money Customer paid to FMS under this Agreement, except to the extent that said Damages are covered by FMS’s insurance.  These limitations of remedies and liability are reflected in the contract price and/or rates. Prior to commencement of services, increased liability limits may be negotiated upon Customer’s written request and agreement to pay additional compensation to FMS.

17. CANCELLATION

You have the right to change your mind and cancel this contract.  To do so, you must mail or deliver a signed notice of cancellation to Fire Mountain Solar, LLC at 18388 Periwinkle Lane, Mount Vernon, WA 98274, or email notice of cancellation to [email protected] no later than midnight of the third business day after the day you sign this contract.

18. TIME LIMIT TO FILE LAWSUIT

No lawsuit may be filed against FMS as to any claim, known or unknown, arising from this agreement and/or the project at issue, including but not limited to claims of breach of contract, breach of warranty, tort, indemnification, or claims based on equitable principles, unless the lawsuit is filed within one month after the expiration of FMS’s one-year warranty period.

19. VENUE

If a lawsuit is filed concerning this agreement, venue shall be in the county where the project is located.   

20. ATTORNEY FEES

If a lawsuit is filed concerning this agreement, the provisions of RCW 4.84.250 through 4.84.300 shall apply, except as provided herein.  The maximum dollar limitation in RCW 4.84.250 shall not apply.  In applying RCW 4.84.280, the time period for serving offers of settlement on the adverse party shall be the period not less than one (1) month and not more than five (5) months after completion of the service and filing of the summons and complaint.  An offer of settlement shall expire ten (10) days after service of the offer of settlement, unless accepted before then. For the plaintiff to be eligible for an award of attorney fees and costs, the recovery to plaintiff, after netting claims and counterclaims, and exclusive of costs, must be more than the amount offered in settlement by the plaintiff.  For the defendant to be eligible for an award of attorney fees and costs, the recovery to plaintiff, after netting claims and counterclaims, and exclusive of costs, must be less than the amount offered in settlement by the defendant.  If a payment is received more than five (5) months after completion of the service and filing of the summons and complaint, the payment shall be disregarded for purposes of determining the prevailing party. The parties hereby mutually waive any and all other rights to attorney fees and costs that they might otherwise have whether by statute or common law.

21. ENTIRE AGREEMENT

This Agreement represents the entire agreement of the parties, and supersedes all prior negotiations, understandings and agreements between the parties, whether oral or written. The parties have not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance, except those set out in this Agreement, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of this Agreement.