Terms and Conditions

Terms and Conditions

Solar Protect Pro

1. Service agreement includes the following services.
1.1. Preventative Maintenance – These services will be performed once per year on or about the anniversary of the contract execution:
1.1.1. Service provider agrees to perform the following
• Visually inspect the system and repair and/or replace any system features that are not installed as intended.
• Measure system output voltage and current and record the results. Report any corrective measures to customer and make the necessary corrections. If the component that is operating improperly is under a manufacturer warranty, we will process a “return merchandise authorization (RMA)” on the customer’s behalf. If the component is not covered under manufacturer’s warranty, service provider will provide customer with a quote to repair or replace the component.
• Clean filters, fans and other important components of the inverter(s) as necessary.
• Bi- annual solar panel cleaning using a non-abrasive brush, cleaner and water, Customer agrees to allow service provider to use their water supply for the cleaning.
1.2. Service Calls
1.2.1. Service agreement includes two service calls to the customer’s property per contract year. This is in addition to the annual preventative maintenance visit. Each service call is limited to two hours on site. Each additional hour will be charged at current labor rates less any applicable discounts described in section 1.3 below.
1.2.2. Service provider shall respond to any customer call within 24 hours and perform initial site visit within 72 hours of call back unless otherwise requested by customer.
1.3. Service-Related Discounts
1.3.1. Labor discount – a 30% discount on labor shall apply to any quotes for repairs or replacements.
• Discount is applied to current labor rates published publicly on our website and can be found here:
www.hessolar.com/labor-rates
• In addition to discount service provider agrees not to charge any overtime rates for work performed outside normal business hours defined as Monday – Friday 8AM – 4PM._
1.3.2. Parts discount – a 20% discount shall apply to HES Solar’s retail value of any parts or components that need to be repaired or replaced.
1.4. Proactive system monitoring
1.4.1. Service provider agrees to monitor solar system via online portal no less than once per week.
• Customer agrees to maintain a reliable internet connection required for remote monitoring.
• Remote monitoring installation is NOT included in this agreement and is required for proactive system monitoring. Monitoring system shall be defined as “Solar Monitoring System”
• If remote monitoring installation is not existing, service provider shall provide a quote to install one
• Customer agrees to notify service provider of any change to internet service including changing internet service provider, changing any internet related equipment such as router or modem. Customer agrees to notify service provider within 48 hours of such a change. If such a notification is not made by customer; HES Solar reserves the right to pause performance guarantee during time period.
• Should service provider notice an anomaly or reduction in system performance, it will notify customer upon discovery and if necessary, schedule a service call for further discovery.
1.4.2. Upon execution of this agreement service provider shall produce a system baseline production expectation measured in kWh. There shall be a report generated with expected system performance (kWh) production on a monthly basis and displayed for the same number of years as the service agreement
• This baseline performance expectation shall supersede any existing performance expectation and shall be used solely for purposes of this agreement.
• The established baseline performance shall be used to track and analyze any proactive monitoring activities.
• Baseline performance shall be added to this agreement as Exhibit C.
• Service provider reserves the right to adjust baseline performance expectation should the system be tampered with for any of the following reasons:
• System is tampered with by any person, company, or entity other than service provider. This includes but is not limited to disconnect switches, inverter switches, breakers or other system components that would affect performance.
• Customer also agrees to keep any trees, plants, or any other objects trimmed or otherwise eliminated from providing any shade to the solar array during any time of the year and any time of the day.
1.5. Performance guarantee
1.5.1. For each calendar year during the term, it is expected that the solar system shall generate a number of kWh as defined in section 1.4.2 proactive system monitoring.
1.5.2. Commencing on the date of execution of this agreement, service provider shall guarantee delivery of an annual amount of energy not less than 90% of the baseline expectation defined in Exhibit C.
1.5.3. Within 90 days after the anniversary of the execution of this agreement, service provider shall notify customer whether it has satisfied the applicable guaranteed energy amount.
• If the guaranteed energy amount has been satisfied, customer shall be notified as such and no further action is required.
• If the guaranteed energy amount is not satisfied, customer shall be notified and service provider shall pay as described herein.
• Should system exceed expected annual performance, any kWh production over 105% of the expected annual performance shall be available as a credit in the subsequent year.
1.5.4. Payment for loss of production
• If production is less than 90% of baseline estimate, service provider will pay for each kWh under that amount.
• The rate that service provider will pay is $.15/kWh. This rate will increase by 3% for each year that the contract is in place per the following schedule:

Year kWh rate
1 $.150
2 $.155
3 $.159
4 $.164
5 $.169

• For example, if a system has a baseline estimated annual production of 10,000 kWh:
• Guaranteed energy amount is 9000 kWh (90% of 10,000 baseline)
• If system produces 8500 kWh, it would be short of the guaranteed amount by 500kWh
• 500kWh x $.15 per kWh for year one = payment of $75 for the year
1.5.5. Maximum annual amount that service provider will pay for the performance guarantee is $500.

1. HES Solar Responsibilities.
1.1. System Services. In exchange for the Subscription Services Fee, HES Solar shall perform those services to the extent expressly set out in Exhibit B (the “System Services”).
1.2. Service Warranty. HES Solar warrants for a period of one year from the date of performance of any specific Service hereunder (the “Warranty Period”), that such Services shall be performed in a good and workmanlike manner in accordance with industry practices generally acceptable in the location in which such Services are provided and in conformance with all requirements of applicable law (the “Service Warranty”).
1.2.1. Exclusive and Limited Remedies. Provided HES Solar is notified of a defect covered by the Service Warranty within the Warranty Period, HES Solar shall, at its option and its sole cost and expense, either repair, replace or re-perform any such non- conforming services. Such repair, replacement and/or re-performance constitutes Customer’s sole and exclusive remedy for any breach of the Services Warranty, and shall not extend the Warranty Period.
1.2.2. Limitation and Exclusion of Warranties. THE SERVICES WARRANTY SET FORTH IN THIS SECTION 1.3 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE. THERE ARE NO OTHER WARRANTIES, AGREEMENTS OR UNDERSTANDINGS, ORAL OR WRITTEN, WHICH EXTEND BEYOND THOSE SET FORTH IN THIS SECTION 1.3 WITH RESPECT TO THE SERVICES WHETHER THE CLAIMS OF CUSTOMER ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. HES Solar shall not be liable for breach of the Services Warranty to the extent such breach arises from: (i) modifications, alterations or repairs to the System not performed by HES Solar; (ii) nonconformities to the extent caused by the System not being operated by Customer or any third party in accordance with any manuals and revisions thereto (including the replacement of worn or failed parts); or (iii) any damage to the System caused by accident, vandalism, malicious mischief, theft or attempted theft or any other Force Majeure Event (as defined below).
1.3. Manner of HES Solar’s Performance. In performing and providing the Services, HES Solar shall: (a) comply with all applicable federal, provincial, state and local laws, ordinances, orders, rules and regulations, and (b) perform and provide such Services in a good and workmanlike manner in accordance with industry practices generally acceptable in the location in which such Services are provided.
1.4. Indemnification. HES Solar shall protect, defend, indemnify and hold harmless the Customer from and against any and all claims, liabilities, loss, costs, or damages, including court costs and attorneys’ fees arising out of or resulting from any claim by any third party for personal injury (including death) or damage to property caused by the gross negligence, fraud or willful misconduct of HES Solar or any agent, contractor, employee, other party engaged by HES Solar in the performance of the Services. Notwithstanding any provision to the contrary, neither Party shall indemnify the other Party to the extent any Claim arises out of the non-indemnifying Party’s own negligent or intentionally tortious acts or omissions.
1.5. Insurance. Contractor shall obtain, and shall cause its subcontractors to obtain and keep in force, such liability and other insurance coverage as described below.
1.5.1. “All Risk” Builders Risk Insurance on all materials, equipment, and supplies which are to become a permanent part of the Project, while waiting, and until completion of erection, construction and/or installation. Coverage shall be on a replacement cost basis and shall include the interests of Owner, Contractor and all other contractors and subcontractors performing work on the Project, as their interests may appear.
1.5.2. Comprehensive General Liability written on an occurrence basis in the minimum amount of $1,000,000.00 per occurrence and $2,000,000.00 aggregate and products and completed operations covering the liability of Owner and Contractor for bodily injury and property damage arising as a result of the construction of the Project and the services provided hereunder. Coverage shall be broad form insurance insuring all of Contractors indemnity obligations under this Agreement. Owner shall be included in the policy as an additional insured. The coverage shall include, but not be limited to: Blanket Contractual Liability; Products and Completed Operations; Broad Form Properly Damage; Employees of Owner as an Additional Insured; Cross Liability; and Subsidence Earth Movement.
1.5.3. Comprehensive Automobile Liability for owned, non-owned and hired automobiles in the amount of One Million Dollars ($1,000,000.00) combined single limit coverage covering Contractor and Owner. The policy shall be written to apply to all bodily injury, property damage, personal injury and other covered loss occurring during the policy term arising in any way out of such use of vehicles.
1.5.4. Workers compensation as required by law for employees of Contractor performing work on the Property. Contractor shall also require its subcontractors to carry Workers’ Compensation insurance as required by law.
2. Customer Responsibilities. Customer shall perform the following obligations:
2.1. Site Access. For so long as any Services are provided by HES Solar hereunder, Customer shall, as a condition precedent to HES Solar’s obligations hereunder, enable HES Solar and any of its subcontractors or agents to gain free, unobstructed access to the Site during normal business hours for the purpose of performing the Services hereunder.
2.2. Payment. Customer shall pay annually in advance, commencing on the Commencement of System Services hereof and on each anniversary of the Commencement of System Services, the Subscription Services Fee (as defined in Exhibit A) as well as any additional amounts for Transactional Services. All Transactional Services performed hereunder shall be billed monthly in arrears for the Transactional Service performed during the previous month. Customer shall pay all amounts invoiced hereunder within thirty (30) days from the invoice date. Overdue payment obligations shall bear interest from the date due until the date paid at a rate of (a) one and a half percent (1.5%) per month or (b) the maximum rate allowed under any applicable law. In addition to any interest due on unpaid amounts hereunder and to any other right or remedy available to HES Solar hereunder, Customer shall pay all HES Solar’s attorney fees and costs associated with the collection from Customer of any amounts due hereunder.
2.3. Indemnification. Customer shall protect, defend, indemnify and hold harmless HES Solar and its affiliates, officers, employees, partners, members, successors and assigns from and against any and all claims, liabilities, loss, costs, or damages, including court costs and attorneys’ fees (collectively, “Claims”) arising out of or resulting from any claim by any third party for personal injury (including death) or damage to property caused by the gross negligence, fraud or willful misconduct of Customer or any agent, contractor, employee, other party engaged by Customer. Moreover, Customer agrees to expressly indemnify HES Solar for any Claims to the extent (a) such Claims are brought, alleged, or maintained by any third party and such Claims arise out of the design, construction, or operation of any energy storage facility, or; (b) such Claims arise out of the negligent or intentionally tortious acts or omissions of Customer, any agent, contractor, employee, or other party engaged by Customer. Notwithstanding any provision to the contrary, neither Party shall indemnify the other Party to the extent any Claim arises out of the non-indemnifying Party’s own negligent or intentionally tortious acts or omissions.

2.4. Intellectual Property. Customer agrees that any: proprietary or confidential information, software, technology, formulae, descriptions, diagrams, data, drawings, listings, techniques, procedures, “know how”, “means and methods”, documentation, manuals, specifications, designs, and any other form of intellectual or industrial property developed, created, modified, edited, or authored by HES Solar (collectively, “HES Solar IP”) shall be deemed as owned solely by HES Solar and HES Solar shall own solely all rights in, to and under patents, trade secret rights, copyrights, trademarks, service marks, moral rights and other similar rights of any type under the laws of any governmental authority. Customer shall use any HES Solar IP only to the extent expressly authorized by HES Solar and Customer shall not, unless expressly authorized in writing by HES Solar, copy, redistribute, disclose, license, or sublicense any HES Solar IP. Customer shall not knowingly, nor knowingly permit third parties to: (a) make any HES Solar IP available to, or use any HES Solar IP for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any HES Solar IP, or (c) use HES Solar IP to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
2.4.1. Customer further agrees that HES Solar shall have limited rights (collectively, “HES Solar’s Limited Rights”) to any system monitoring data gathered by or on behalf of Customer in connection with HES Solar’s performance under this Agreement and any and all compilations, reports, extractions or copies of such data created by HES Solar (collectively, the “System Monitoring Data”). HES Solar’s Limited Rights in the System Monitoring Data include: (a) a limited right to collect, store, manipulate and provide to a third party the System Monitoring Data as requested by Customer pursuant to this Agreement or as reasonably required for HES Solar or its Representatives to perform HES Solar’s obligations set forth in this Agreement or further agreement; (b) a right to analyze the System Monitoring Data for internal business purposes, including product performance analysis, maintenance planning, and any energy storage planning, engineering, or storage solutions; and (c) a right to use the System Monitoring Data on a bulk anonymized basis for external business and marketing purposes. Notwithstanding anything herein to the contrary, any data that is not Customer’s Confidential Information shall not be considered System Monitoring Data and shall not be subject to any limitations on use by HES Solar.
3. Term and Termination.
3.1. Term. The term of this Agreement is specified Exhibit A attached hereto (the “Term”), unless sooner terminated in accordance with the provisions hereof. Except as provided herein, this Agreement may be extended or renewed only upon mutual agreement by the Parties.
3.2. Commencement of System Services. HES Solar is to commence provision of System Services on the date of execution of this document, considering the following:
3.2.1. Performance verification testing has been performed in accordance with the relevant construction agreement;
3.2.2. All permits and licenses required to be obtained under any applicable law in connection with the operation of the System have been obtained by Customer and are in full force and effect;
3.2.3. Customer has entered into any required interconnection agreement with the relevant utility entity;
3.2.4. Customer has received the relevant utility’s permission to operate (“PTO”);
3.2.5. The relevant construction contractor has issued a certificate of substantial completion or other documentation certifying that the relevant System is substantially complete, and;
3.2.6. The relevant System is online and functioning within specification.

3.3. Termination.
3.3.1. Termination Without Cause. Either Party may terminate this Agreement, without cause, by giving the other Party at least 90 days prior written notice.
3.3.2. Termination for Cause. If either Party hereunder defaults in the performance of any material obligation hereunder and such default is not cured within 30 days after written notice thereof, the non-defaulting Party may terminate this Agreement for cause.
3.3.3. Termination for Non-Payment. Notwithstanding the provisions of Section 3.3.1 above, if Customer fails to pay any amounts due hereunder HES Solar may (i) suspend the provision of Services hereunder within three days after notice thereof to Customer.
3.3.4. Termination Without Notice. Notwithstanding any provisions of this Section 3.3 to the contrary, this Agreement shall terminate immediately and without the requirement for notice to be given, upon (i) the dissolution or termination of the corporate or partnership existence of a Party or (ii) the bankruptcy, insolvency, receivership, or assignment for the benefit of creditors of a Party.
3.3.5. Consequences of Termination. Termination of this Agreement shall not affect any rights or obligations between the Parties accruing prior to the date of such termination or which expressly or by implication are intended to survive termination. If either Party terminates this Agreement pursuant to this Section 3.3, Customer shall pay HES Solar for all Transactional Services performed by HES Solar prior to the effective date of such termination.
4. Disputes and Interpretation.
4.1. Law and Venue. This Agreement shall be governed in all respects by and construed in accordance with the laws of California without regard to conflicts of law provisions that would mandate that application of the laws of another jurisdiction. All disputes arising under, out of, or relating to this Agreement shall be settled by binding arbitration by the American Arbitration Association (“AAA”) by a single arbitrator under the Commercial Arbitration Rules of the AAA in force as of the date the AAA receives notice of such claim or dispute. The substantially prevailing Party shall be entitled to recovery of its reasonable attorney’s fees and arbitral costs. The language of arbitration shall be English. The place and seat of arbitration shall be San Diego, CA. The Parties hereto expressly agree to the joinder of any arbitral proceedings hereunder together with any other arbitral proceedings as deemed necessary and proper by the arbitrator.

4.2. Severability. If any provisions of this Agreement shall be found to be invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and this Agreement shall be enforced to the greatest extent permitted by law.
4.3. Independent Contractor. HES Solar shall perform the Services hereunder as an independent contractor and not as an agent or employee of Customer, its parent, subsidiaries or affiliates.
4.4. LIMITATION ON LIABILITY.
4.4.1. CONSEQUENTIAL DAMAGES. IN NO EVENT WILL HES SOLAR OR ANY OF ITS AFFILIATES EMPLOYEES OR CONTRACTORS BE LIABLE TO CUSTOMER OR ANY OF ITS AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR (I) ANY LOSS OF PROFIT OR REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR SUFFERED AS A RESULT OF THE UNAVAILABILITY OF FACILITIES, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, OR (II) FOR ANY OTHER REASON, EVEN IF CUSTOMER ADVISES HES SOLAR OF THE POSSIBILITY OF THIS LOSS OR DAMAGE.

4.4.2. LIABILITY CAP. IN NO EVENT SHALL HES SOLAR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF, UNDER, OR RELATING TO THIS AGREEMENT FOR ALL CLAIMS, DAMAGES, LIABILITIES, LITIGATIONS, OR LOSSES OF ANY TYPE THAT ARISE OUT OF OR ACCRUE IN ANY GIVEN CALENDAR YEAR EXCEED THE SUBSCRIPTION SERVICES FEE ATTIBUTATBLE FOR SUCH YEAR. IN NO EVENT SHALL HES SOLAR’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT EXCEED THE VALUE OF ALL SUBSCRIPTION SERVICESS PAYABLE BY CUSTOMER DURING THE FIRST TWO YEARS OF THIS AGREEMENT.

4.5. Assignment; Successors and Assigns. Each Party’s rights, duties and obligations under this Agreement shall not be assigned without the prior written consent of the other Party; provided, however, that HES Solar may assign this Agreement to affiliates of HES Solar without the prior written consent of Customer. Notwithstanding anything to the contrary herein, HES Solar may delegate its duties hereunder to its subcontractors, provided that HES Solar shall continue to be primarily responsible for all of its obligations hereunder.

4.6. Complete Agreement. This Agreement constitutes the entire agreement between Customer and HES Solar as to the matters set forth herein, and any and all previous agreements (written or oral) entered into between the Parties hereto with respect to the matters set forth herein shall be deemed merged herewith. In the event of a conflict between the terms of this Agreement and any exhibit attached hereto, the terms of this Agreement shall control.

4.7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument.

4.8. Amendments. Except as otherwise herein provided, any and all amendments, additions or deletions to this Agreement shall be null and void unless approved by each of the Parties hereto in writing.
4.9. Notices. All notices, demands and consents provided for in this Agreement shall be in writing and shall be given to Customer or HES Solar at the address set forth in the preamble hereto.

4.10. Force Majeure. Other than with respect to failure to make payments due under this Agreement, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by, or due to any cause beyond its reasonable control, including, but not limited to, fire, earthquake, wind, flood, water, the elements, acts of God, third party labor disputes, utility curtailments, power failures, explosions, civil disturbances, vandalism, governmental actions, shortages of equipment or supplies, unavailability of transportation or acts or omissions of third parties (any such event, a “Force Majeure Event”). If the performance of Services by HES Solar is delayed due to inclement weather or other cause or circumstance beyond HES Solar’s control, HES Solar shall be excused from its obligation to perform the Services and such performance shall be rescheduled to a future date.

—————————————————————————————————-

Solar Protect Plus

1. Service agreement includes the following services.
1.1. Preventative Maintenance – These services will be performed once per year on or about the anniversary of the contract execution:
1.1.1. Service provider agrees to perform the following
• Visually inspect the system and repair and/or replace any system features that are not installed as intended.
• Measure system output voltage and current and record the results. Report any corrective measures to customer and make the necessary corrections. If the component that is operating improperly is under a manufacturer warranty, we will process a “return merchandise authorization (RMA)” on the customer’s behalf. If the component is not covered under manufacturer’s warranty, service provider will provide customer with a quote to repair or replace the component.
• Clean filters, fans and other important components of the inverter(s) as necessary.
• Annual solar panel cleaning using a non-abrasive brush, cleaner and water, Customer agrees to allow service provider to use their water supply for the cleaning.
1.2. Service Calls
1.2.1. Service agreement includes one service call to the customer’s property per contract year. This is in addition to the annual preventative maintenance visit. Each service call is limited to two hours on site. Each additional hour will be charged at current labor rates less any applicable discounts described in section 1.3 below.
1.2.2. Service provider shall respond to any customer call within 24 working hours and perform initial site visit within 72 working hours of call back unless otherwise requested by customer.
1.3. Service-Related Discounts
1.3.1. Labor discount – a 20% discount on labor shall apply to any quotes for repairs or replacements.
• Discount is applied to current labor rates published publicly on our website and can be found here:
www.hessolar.com/labor-rates
• In addition to discount service provider agrees not to charge any overtime rates for work performed outside normal business hours defined as Monday – Friday 8AM – 4PM._
1.3.2. Parts discount – a 10% discount shall apply to HES Solar’s retail value of any parts or components that need to be repaired or replaced.
1.4. Proactive system monitoring
1.4.1. Service provider agrees to monitor solar system via online portal no less than once bi-weekly.
• Customer agrees to maintain a reliable internet connection required for remote monitoring.
• Remote monitoring installation is NOT included in this agreement and is required for proactive system monitoring. Monitoring system shall be defined as “Solar Monitoring System”
• If remote monitoring installation is not existing, service provider shall provide a quote to install one
• Customer agrees to notify service provider of any change to internet service including changing internet service provider, changing any internet related equipment such as router or modem. Customer agrees to notify service provider within 48 hours of such a change. If such a notification is not made by customer; HES Solar reserves the right to pause performance guarantee during time period.
• Should service provider notice an anomaly or reduction in system performance, it will notify customer upon discovery and if necessary, schedule a service call for further discovery.

1. HES Solar Responsibilities.
1.1. System Services. In exchange for the Subscription Services Fee, HES Solar shall perform those services to the extent expressly set out in Exhibit B (the “System Services”).
1.2. Service Warranty. HES Solar warrants for a period of one year from the date of performance of any specific Service hereunder (the “Warranty Period”), that such Services shall be performed in a good and workmanlike manner in accordance with industry practices generally acceptable in the location in which such Services are provided and in conformance with all requirements of applicable law (the “Service Warranty”).
1.2.1. Exclusive and Limited Remedies. Provided HES Solar is notified of a defect covered by the Service Warranty within the Warranty Period, HES Solar shall, at its option and its sole cost and expense, either repair, replace or re-perform any such non- conforming services. Such repair, replacement and/or re-performance constitutes Customer’s sole and exclusive remedy for any breach of the Services Warranty, and shall not extend the Warranty Period.
1.2.2. Limitation and Exclusion of Warranties. THE SERVICES WARRANTY SET FORTH IN THIS SECTION 1.3 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE. THERE ARE NO OTHER WARRANTIES, AGREEMENTS OR UNDERSTANDINGS, ORAL OR WRITTEN, WHICH EXTEND BEYOND THOSE SET FORTH IN THIS SECTION 1.3 WITH RESPECT TO THE SERVICES WHETHER THE CLAIMS OF CUSTOMER ARE BASED IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE. HES Solar shall not be liable for breach of the Services Warranty to the extent such breach arises from: (i) modifications, alterations or repairs to the System not performed by HES Solar; (ii) nonconformities to the extent caused by the System not being operated by Customer or any third party in accordance with any manuals and revisions thereto (including the replacement of worn or failed parts); or (iii) any damage to the System caused by accident, vandalism, malicious mischief, theft or attempted theft or any other Force Majeure Event (as defined below).
1.3. Manner of HES Solar’s Performance. In performing and providing the Services, HES Solar shall: (a) comply with all applicable federal, provincial, state and local laws, ordinances, orders, rules and regulations, and (b) perform and provide such Services in a good and workmanlike manner in accordance with industry practices generally acceptable in the location in which such Services are provided.
1.4. Indemnification. HES Solar shall protect, defend, indemnify and hold harmless the Customer from and against any and all claims, liabilities, loss, costs, or damages, including court costs and attorneys’ fees arising out of or resulting from any claim by any third party for personal injury (including death) or damage to property caused by the gross negligence, fraud or willful misconduct of HES Solar or any agent, contractor, employee, other party engaged by HES Solar in the performance of the Services. Notwithstanding any provision to the contrary, neither Party shall indemnify the other Party to the extent any Claim arises out of the non-indemnifying Party’s own negligent or intentionally tortious acts or omissions.
1.5. Insurance. Contractor shall obtain, and shall cause its subcontractors to obtain and keep in force, such liability and other insurance coverage as described below.
1.5.1. “All Risk” Builders Risk Insurance on all materials, equipment, and supplies which are to become a permanent part of the Project, while waiting, and until completion of erection, construction and/or installation. Coverage shall be on a replacement cost basis and shall include the interests of Owner, Contractor and all other contractors and subcontractors performing work on the Project, as their interests may appear.
1.5.2. Comprehensive General Liability written on an occurrence basis in the minimum amount of $1,000,000.00 per occurrence and $2,000,000.00 aggregate and products and completed operations covering the liability of Owner and Contractor for bodily injury and property damage arising as a result of the construction of the Project and the services provided hereunder. Coverage shall be broad form insurance insuring all of Contractors indemnity obligations under this Agreement. Owner shall be included in the policy as an additional insured. The coverage shall include, but not be limited to: Blanket Contractual Liability; Products and Completed Operations; Broad Form Properly Damage; Employees of Owner as an Additional Insured; Cross Liability; and Subsidence Earth Movement.
1.5.3. Comprehensive Automobile Liability for owned, non-owned and hired automobiles in the amount of One Million Dollars ($1,000,000.00) combined single limit coverage covering Contractor and Owner. The policy shall be written to apply to all bodily injury, property damage, personal injury and other covered loss occurring during the policy term arising in any way out of such use of vehicles.
1.5.4. Workers compensation as required by law for employees of Contractor performing work on the Property. Contractor shall also require its subcontractors to carry Workers’ Compensation insurance as required by law.
2. Customer Responsibilities. Customer shall perform the following obligations:
2.1. Site Access. For so long as any Services are provided by HES Solar hereunder, Customer shall, as a condition precedent to HES Solar’s obligations hereunder, enable HES Solar and any of its subcontractors or agents to gain free, unobstructed access to the Site during normal business hours for the purpose of performing the Services hereunder.
2.2. Payment. Customer shall pay annually in advance, commencing on the Commencement of System Services hereof and on each anniversary of the Commencement of System Services, the Subscription Services Fee (as defined in Exhibit A) as well as any additional amounts for Transactional Services. All Transactional Services performed hereunder shall be billed monthly in arrears for the Transactional Service performed during the previous month. Customer shall pay all amounts invoiced hereunder within thirty (30) days from the invoice date. Overdue payment obligations shall bear interest from the date due until the date paid at a rate of (a) one and a half percent (1.5%) per month or (b) the maximum rate allowed under any applicable law. In addition to any interest due on unpaid amounts hereunder and to any other right or remedy available to HES Solar hereunder, Customer shall pay all HES Solar’s attorney fees and costs associated with the collection from Customer of any amounts due hereunder.
2.3. Indemnification. Customer shall protect, defend, indemnify and hold harmless HES Solar and its affiliates, officers, employees, partners, members, successors and assigns from and against any and all claims, liabilities, loss, costs, or damages, including court costs and attorneys’ fees (collectively, “Claims”) arising out of or resulting from any claim by any third party for personal injury (including death) or damage to property caused by the gross negligence, fraud or willful misconduct of Customer or any agent, contractor, employee, other party engaged by Customer. Moreover, Customer agrees to expressly indemnify HES Solar for any Claims to the extent (a) such Claims are brought, alleged, or maintained by any third party and such Claims arise out of the design, construction, or operation of any energy storage facility, or; (b) such Claims arise out of the negligent or intentionally tortious acts or omissions of Customer, any agent, contractor, employee, or other party engaged by Customer. Notwithstanding any provision to the contrary, neither Party shall indemnify the other Party to the extent any Claim arises out of the non-indemnifying Party’s own negligent or intentionally tortious acts or omissions.

2.4. Intellectual Property. Customer agrees that any: proprietary or confidential information, software, technology, formulae, descriptions, diagrams, data, drawings, listings, techniques, procedures, “know how”, “means and methods”, documentation, manuals, specifications, designs, and any other form of intellectual or industrial property developed, created, modified, edited, or authored by HES Solar (collectively, “HES Solar IP”) shall be deemed as owned solely by HES Solar and HES Solar shall own solely all rights in, to and under patents, trade secret rights, copyrights, trademarks, service marks, moral rights and other similar rights of any type under the laws of any governmental authority. Customer shall use any HES Solar IP only to the extent expressly authorized by HES Solar and Customer shall not, unless expressly authorized in writing by HES Solar, copy, redistribute, disclose, license, or sublicense any HES Solar IP. Customer shall not knowingly, nor knowingly permit third parties to: (a) make any HES Solar IP available to, or use any HES Solar IP for the benefit of, anyone other than Customer, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any HES Solar IP, or (c) use HES Solar IP to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights.
2.4.1. Customer further agrees that HES Solar shall have limited rights (collectively, “HES Solar’s Limited Rights”) to any system monitoring data gathered by or on behalf of Customer in connection with HES Solar’s performance under this Agreement and any and all compilations, reports, extractions or copies of such data created by HES Solar (collectively, the “System Monitoring Data”). HES Solar’s Limited Rights in the System Monitoring Data include: (a) a limited right to collect, store, manipulate and provide to a third party the System Monitoring Data as requested by Customer pursuant to this Agreement or as reasonably required for HES Solar or its Representatives to perform HES Solar’s obligations set forth in this Agreement or further agreement; (b) a right to analyze the System Monitoring Data for internal business purposes, including product performance analysis, maintenance planning, and any energy storage planning, engineering, or storage solutions; and (c) a right to use the System Monitoring Data on a bulk anonymized basis for external business and marketing purposes. Notwithstanding anything herein to the contrary, any data that is not Customer’s Confidential Information shall not be considered System Monitoring Data and shall not be subject to any limitations on use by HES Solar.
3. Term and Termination.
3.1. Term. The term of this Agreement is specified Exhibit A attached hereto (the “Term”), unless sooner terminated in accordance with the provisions hereof. Except as provided herein, this Agreement may be extended or renewed only upon mutual agreement by the Parties.
3.2. Commencement of System Services. HES Solar is to commence provision of System Services on the date of execution of this document, considering the following:
3.2.1. Performance verification testing has been performed in accordance with the relevant construction agreement;
3.2.2. All permits and licenses required to be obtained under any applicable law in connection with the operation of the System have been obtained by Customer and are in full force and effect;
3.2.3. Customer has entered into any required interconnection agreement with the relevant utility entity;
3.2.4. Customer has received the relevant utility’s permission to operate (“PTO”);
3.2.5. The relevant construction contractor has issued a certificate of substantial completion or other documentation certifying that the relevant System is substantially complete, and;
3.2.6. The relevant System is online and functioning within specification.

3.3. Termination.
3.3.1. Termination Without Cause. Either Party may terminate this Agreement, without cause, by giving the other Party at least 90 days prior written notice.
3.3.2. Termination for Cause. If either Party hereunder defaults in the performance of any material obligation hereunder and such default is not cured within 30 days after written notice thereof, the non-defaulting Party may terminate this Agreement for cause.
3.3.3. Termination for Non-Payment. Notwithstanding the provisions of Section 3.3.1 above, if Customer fails to pay any amounts due hereunder HES Solar may (i) suspend the provision of Services hereunder within three days after notice thereof to Customer.
3.3.4. Termination Without Notice. Notwithstanding any provisions of this Section 3.3 to the contrary, this Agreement shall terminate immediately and without the requirement for notice to be given, upon (i) the dissolution or termination of the corporate or partnership existence of a Party or (ii) the bankruptcy, insolvency, receivership, or assignment for the benefit of creditors of a Party.
3.3.5. Consequences of Termination. Termination of this Agreement shall not affect any rights or obligations between the Parties accruing prior to the date of such termination or which expressly or by implication are intended to survive termination. If either Party terminates this Agreement pursuant to this Section 3.3, Customer shall pay HES Solar for all Transactional Services performed by HES Solar prior to the effective date of such termination.
4. Disputes and Interpretation.
4.1. Law and Venue. This Agreement shall be governed in all respects by and construed in accordance with the laws of California without regard to conflicts of law provisions that would mandate that application of the laws of another jurisdiction. All disputes arising under, out of, or relating to this Agreement shall be settled by binding arbitration by the American Arbitration Association (“AAA”) by a single arbitrator under the Commercial Arbitration Rules of the AAA in force as of the date the AAA receives notice of such claim or dispute. The substantially prevailing Party shall be entitled to recovery of its reasonable attorney’s fees and arbitral costs. The language of arbitration shall be English. The place and seat of arbitration shall be San Diego, CA. The Parties hereto expressly agree to the joinder of any arbitral proceedings hereunder together with any other arbitral proceedings as deemed necessary and proper by the arbitrator.

4.2. Severability. If any provisions of this Agreement shall be found to be invalid or unenforceable to any extent, the remainder of this Agreement shall not be affected thereby and this Agreement shall be enforced to the greatest extent permitted by law.
4.3. Independent Contractor. HES Solar shall perform the Services hereunder as an independent contractor and not as an agent or employee of Customer, its parent, subsidiaries or affiliates.
4.4. LIMITATION ON LIABILITY.
4.4.1. CONSEQUENTIAL DAMAGES. IN NO EVENT WILL HES SOLAR OR ANY OF ITS AFFILIATES EMPLOYEES OR CONTRACTORS BE LIABLE TO CUSTOMER OR ANY OF ITS AFFILIATES OR EMPLOYEES OR TO ANY THIRD PARTY FOR (I) ANY LOSS OF PROFIT OR REVENUE, OR FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SIMILAR OR ADDITIONAL DAMAGES, WHETHER INCURRED OR SUFFERED AS A RESULT OF THE UNAVAILABILITY OF FACILITIES, PERFORMANCE, NON-PERFORMANCE, TERMINATION, BREACH, OR OTHER ACTION OR INACTION UNDER THE AGREEMENT, OR (II) FOR ANY OTHER REASON, EVEN IF CUSTOMER ADVISES HES SOLAR OF THE POSSIBILITY OF THIS LOSS OR DAMAGE.

4.4.2. LIABILITY CAP. IN NO EVENT SHALL HES SOLAR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF, UNDER, OR RELATING TO THIS AGREEMENT FOR ALL CLAIMS, DAMAGES, LIABILITIES, LITIGATIONS, OR LOSSES OF ANY TYPE THAT ARISE OUT OF OR ACCRUE IN ANY GIVEN CALENDAR YEAR EXCEED THE SUBSCRIPTION SERVICES FEE ATTIBUTATBLE FOR SUCH YEAR. IN NO EVENT SHALL HES SOLAR’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT EXCEED THE VALUE OF ALL SUBSCRIPTION SERVICESS PAYABLE BY CUSTOMER DURING THE FIRST TWO YEARS OF THIS AGREEMENT.

4.5. Assignment; Successors and Assigns. Each Party’s rights, duties and obligations under this Agreement shall not be assigned without the prior written consent of the other Party; provided, however, that HES Solar may assign this Agreement to affiliates of HES Solar without the prior written consent of Customer. Notwithstanding anything to the contrary herein, HES Solar may delegate its duties hereunder to its subcontractors, provided that HES Solar shall continue to be primarily responsible for all of its obligations hereunder.

4.6. Complete Agreement. This Agreement constitutes the entire agreement between Customer and HES Solar as to the matters set forth herein, and any and all previous agreements (written or oral) entered into between the Parties hereto with respect to the matters set forth herein shall be deemed merged herewith. In the event of a conflict between the terms of this Agreement and any exhibit attached hereto, the terms of this Agreement shall control.

4.7. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall comprise but a single instrument.

4.8. Amendments. Except as otherwise herein provided, any and all amendments, additions or deletions to this Agreement shall be null and void unless approved by each of the Parties hereto in writing.
4.9. Notices. All notices, demands and consents provided for in this Agreement shall be in writing and shall be given to Customer or HES Solar at the address set forth in the preamble hereto.

4.10. Force Majeure. Other than with respect to failure to make payments due under this Agreement, neither Party shall be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused by, or due to any cause beyond its reasonable control, including, but not limited to, fire, earthquake, wind, flood, water, the elements, acts of God, third party labor disputes, utility curtailments, power failures, explosions, civil disturbances, vandalism, governmental actions, shortages of equipment or supplies, unavailability of transportation or acts or omissions of third parties (any such event, a “Force Majeure Event”). If the performance of Services by HES Solar is delayed due to inclement weather or other cause or circumstance beyond HES Solar’s control, HES Solar shall be excused from its obligation to perform the Services and such performance shall be rescheduled to a future date.

CORONAVIRUS (COVID-19) INFORMATION

HES Solar places safety as our highest priority, and that extends from our employees to our customers, to anyone else we may potentially be in contact with through the course of business. Along with the safety procedures we adhere to in the normal course of our work and projects, we have instituted several safety protocols for all of our employees during these times of vigilant public health precautions due to COVID-19. 

Our employees are given temperature checks each time they enter the office, and office visits are only allowed when necessary. 

We’ve instituted remote working for all of our employees who are able to perform their job duties at home. Meetings are done through virtual meeting rooms. 

Field employees maintain a six-foot distance between themselves and fellow employees, customers, vendors, and all others unless unavoidable. 

Masks are required whenever interacting with fellow employees, customers, or the public and whenever social distancing is not possible. 

To ensure these procedures can be met, employees have been provided with face masks or face coverings, eye protection, gloves (as necessary), and foot coverings (as necessary). 

To help ensure frequent sanitizing, employees have been provided sanitizers in the form of gel, liquid, and wipes, antibacterial soap, and paper products for cleaning such as tissues and paper towels. 

Contact Us Today for a Free Estimate

Name*
This field is for validation purposes and should be left unchanged.

Robert Laverty

Senior Energy Consultant, Residential

Robert Laverty joined the HES team in the summer of 2018, bringing his ten years of solar design experience and his Bachelor’s degree from the University of Puget Sound with him. Robert is dedicated to finding solutions to help families produce and store electricity in order to reduce their reliance on grid power as well as help reduce their household’s carbon footprint. Robert’s experience as a newspaper editor as well as his involvement with the sustainability-focused Rocky Mountain Institute drives him to constantly seek out innovative ways to meet energy needs through renewable resources as well as helps him share those ideas with Southern California homeowners. When not at work or volunteering time with his church or community, Robert spends time with his wife and two sons or pursues his passion of fly fishing.
Skip to content